INTRODUCTION. The Texas Department of Insurance proposes amendments to 28 TAC §34.303, relating to Adopted Standards for Inspections, and §34.832, relating to Specific Requirements for Retail Fireworks Sites Other Than Stands.

EXPLANATION.

Adopted Standards for State Fire Marshal Inspections.

Government Code §417.008 authorizes the state fire marshal, on the complaint of any person, to enter any building or premises in the state at any reasonable time to examine the structure for certain dangerous conditions. Government Code §417.008 also authorizes the commissioner to adopt by rule any appropriate standard developed by a nationally recognized standards-making association under which the state fire marshal may enforce §417.008. The standards adopted by rule do not apply in a geographic area under the jurisdiction of a local government that has adopted fire protection ordinances that apply in the geographic area.

Section 34.303, which adopts by reference certain standards and recommendations of the National Fire Protection Association (NFPA), is proposed to be amended to adopt the 2015 NFPA 1 Fire Code (NFPA 1) and the 2015 NFPA Life Safety Code 101 (NFPA 101). The NFPA is a nationally recognized standards-making association. The adoption of 2015 NFPA 1 and 2015 NFPA 101 is necessary to provide State Fire Marshal's Office inspectors with an update to the currently adopted standard in §34.303. The 2015 editions reflect revised provisions to best protect property and lives. Adoption of the current standard is a best practices and alleviates problems created when other agencies adopt new companion codes, such as the NFPA 70E Standard for Electrical Safety in the Workplace. For example, failure to adopt the newer code creates discrepancies between construction practices of state universities, which have already adopted the newer code, and fire marshal inspections conducted on university campuses.

NFPA 1 references other NFPA standards to facilitate broad, comprehensive references to other standards that provide more detail to the standards in the NFPA 1 Fire Code. NFPA 1 is similar to the International Fire Code that most municipalities in Texas use. NFPA 1 allows for review of all the systems and components in the building to ensure compliance with best practices to prevent a fire. If a fire occurs, NFPA 1 requirements for extinguishing, confining, egress of occupants, and code requirements that minimize risk exposure for people in the structure and in the surrounding community. This standard allows a fire inspector to inspect the sufficiency of fire sprinklers, egress of occupants, compliance with electrical standards, need for fire extinguishers, and the storage of products that cause increased fire hazards.

2015 NFPA 1 Fire Code

The NFPA revised the fire alarm system requirements in order to coordinate with the NFPA 101. Approximately 100 pages of the 650-page NFPA 1 are excerpted from NFPA 101. The NFPA revised mandatory fire hydrant locations and water supply requirements. The NFPA also created a comprehensive set of provisions relating to the placement and number of water supply fixtures in new construction. The 2015 revision includes changes to Chapter 60 of the NFPA 1 that mirror NFPA 400 Hazardous Materials code, although §34.303 specifically excludes application of that chapter to laboratories and laboratories in health care occupancies. Another Chapter 60 change specifies size and locations of alcohol based hand stations. Note that this would not be applicable to laboratories and laboratories in health care occupancies.

NFPA 1 also adds a new requirement to address the dangers of combustible dusts. One of the changes the NFPA made that is applicable to existing buildings gives an authority having jurisdiction the ability to permit the removal of existing occupant-use fire hose. NFPA 1 also further elaborates on its instruction for cleaning and purging of gas lines. NFPA 1 also offers new provisions for cooking oil storage tank systems in commercial kitchens, and expanded ammonia refrigeration system maintenance and testing requirements.

2015 NFPA Life Safety Code 101

The 2015 revisions to NFPA 101 include a variety of changes that may affect buildings inspected by the State Fire Marshal's Office. For example, NFPA 101 adds a new requirement for required real-time video monitoring of high rise stairwells in buildings with more than 4,000 occupants. A new procedural requirement is an annual inspection of door openings, and related documentation for the inspection, testing and maintenance internals.

The 2015 edition includes new provisions in detailing the application of a code requirements hierarchy where a provision in one chapter conflicts with a provision in another chapter. NFPA 101 revised or added guidance on means of egress provisions relative to rooms opening directly onto an exit enclosure, door opening threshold height for spaces not normally occupied, door encroachment on egress width, existing door frames without labels, security access turnstiles, handrail orientation on flaring-width stairs, horizontal exit stacking, horizontal exit exterior wall extensions, elevators in towers, occupant evacuation elevators, and occupant load factors for ambulatory health care and concentrated business use. NFPA 101 now permits atrium walls to serve as part of the separation for creating separated occupancies on a story-by-story basis.

The 2015 edition provides for revised the inspection instructions for door assemblies to address both fire-rated doors and non-rated egress doors. NFPA 101 expands the table addressing minimum fire protection ratings for opening protectives. The NFPA added provisions for alcohol-based hand-rub dispensers and now references these provisions by occupancy chapters. The NFPA expanded provisions on high-rise buildings to include remote video monitoring of exit stair enclosures, as were the assembly occupancy life safety evaluation provisions. NFPA 101 contains revised daycare and residential board-and-care occupancy provisions to permit consideration of more than one floor level for egress.

The NFPA further revised the health care occupancy provisions to permit facilities to be more home-like, including a reduction in the allowable width of nursing home minimum corridors and the clarification of permitted smoke alarm placement for kitchens that are open to the corridor. The revisions permit health care occupancy doors that are subject to locking in specialty treatment units, such as units for patients with dementia, to be disguised with murals. NFPA 101 allows smoke barriers permitted to be omitted on a non-health care floor below a health care floor. And the NFPA revised the ambulatory health care occupancy chapters so they are self-contained, removing the need to reference the business occupancy chapters.

As previously stated, the proposal does not create a statewide building code. The proposal does not authorize the state fire marshal to assess fines, require building plan review, or grant permits. The commissioner has routinely adopted revised fire protection standards for use by the State Fire Marshal's Office, as those standards are updated.

Copies of the NFPA 1 and NFPA 101 standards are available for public inspection in the State Fire Marshal's Office. The NFPA also makes available the published standards for read-only inspection online through its website at www.nfpa.org. To view NFPA standards on the NFPA website, users must create a free account and agree to certain terms and conditions. A video summarizing the changes to NFPA 1 is available online at www.youtube.com/watch?v=8vyiFxJKmec.

Specific Requirements for Retail Fireworks Sites Other Than Stands

The proposed amendment to §34.832(5) deletes the requirement for sales display areas to include a continuous durable restraint around displayed fireworks separating the customers from all merchandise. Retail fireworks sites other than stands may continue to operate with a continuous durable restraint around displayed fireworks. This section was added in 2002 as a response to the increased presence of nonstand retail fireworks sales. In practice, the existence of the continuous durable restraint only marginally reduces the handling of fireworks by consumers. Industry stakeholders have suggested that the continuous durable restraint itself may be a hazard during the emergency egress of the building.

Even after the proposed amendment, §34.832(5) would still require that fireworks sales display areas must be sufficiently designed to prevent customers from handling fireworks, unless an attendant is directly assisting the customer. Insufficient staffing and unmonitored costumer handling would constitute a violation of §34.832(5). Even with the proposed change, the requirement in §34.832(5) will still provide for the necessary protection, safety, and preservation of life and property.

The proposed amendment also includes nonsubstantive changes for purposes of matching agency style, consistency, and to improve readability. None of these nonsubstantive changes alter the meaning of the rules.

FISCAL NOTE AND LOCAL EMPLOYMENT IMPACT STATEMENT. Ernest McCloud, director, State Fire Marshal's Office, has determined that, for each year of the first five years the proposed section is in effect, there may be measurable fiscal impact to state and local governments as a result of the enforcement or administration of this proposal. The cost analysis in the Public Benefit And Cost Note part of this proposal is applicable to these local and state governments should the state fire marshal conduct an examination and order the correction of a dangerous condition identified as a result of enforcing the proposed NFPA standards. Mr. McCloud does not anticipate any measurable effect on local employment or the local economy as a result of this proposal.

PUBLIC BENEFIT AND COST NOTE. Mr. McCloud also determined that for each year of the first five years the proposal is in effect, the anticipated public benefit as a result of the proposal is the use of thorough and recent fire standards for the inspection of buildings. The proposed updated fire protection standards will be applied to examine whether conditions exist that are dangerous or are likely to cause or promote fire or create danger for firefighters, occupants, or buildings or structures. This means that examinations conducted by the state fire marshal applying these most recent nationally recognized standards for detection of potential fire dangers will result in better protection of individual citizens, firefighters, and buildings and structures. In order to properly protect life and property, it is necessary that the current nationally recognized standards for inspection of buildings and premises be used. This is consistent with Government Code §417.008(e), which authorizes the adoption of "any appropriate standard developed by a nationally recognized standards-making association." As stated previously, the standards adopted by the state fire marshal do not apply in a geographic area under the jurisdiction of a local government that has adopted fire protection ordinances.

Cost of purchasing NFPA standards. There will be nominal costs to persons and entities wanting to purchase the updated standards. The estimated cost to purchase the proposed updated NFPA 1 Fire Code is approximately $96.50, and NFPA 101 Life Safety Code is $98.00. The cost for both codes will be the same for all persons and entities. NFPA 1 Fire Code refers to other NFPA codes, so persons and entities may want to acquire copies of related NFPA codes. An interested person or entity can purchase an NFPA all-access online subscription plan for $1,450.00 for one year. NFPA also makes available standards for read-only inspection online through their website at www.nfpa.org.

Cost of remediating dangerous conditions. Businesses and individuals may face higher costs to meet the updated code standards. Costs for compliance with the updated standards is the result of Government Code §417.008, which grants authority to the state fire marshal to enter and examine buildings and premises in the state to examine whether conditions exist that are dangerous or are liable to cause or promote fire or create danger for firefighters, occupants, or buildings or structures. The application of the new standards will provide inspectors with additional technical knowledge to identify dangerous conditions that may not be identified when only applying past editions of NFPA 1 and NFPA 101. Not every violation of an adopted code is a sufficient public safety hazard to allow the state fire marshal to order correction of the condition. The adoption of new standards does not create new standards of dangerous conditions. To the extent that using additional standards will assist the state fire marshal's identification of dangerous conditions, some buildings and premises may be more likely to receive an order to remediate dangerous conditions. These costs will vary based on the individual circumstances of each dangerous condition. Some dangerous conditions can be remedied with negligible costs, including revising operations, storage of certain materials in other places, testing safety devices, and unlocking barriers to egress. Other dangerous conditions may cost tens of thousands of dollars or more to comply with a state fire marshal order. It is possible, but not likely, that adoption of this new version will identify a dangerous condition that requires expensive repairs.

Cost of proposed amendment to §34.832 Specific Requirements for Retail Fireworks Sites Other Than Stands. The amendment to §34.832(5) deletes the requirement for sales display areas to include a continuous durable restraint around displayed fireworks separating the customers from all merchandise. Retail fireworks sites other than stands may continue to operate with a continuous durable restraint around displayed fireworks. The amendment will allow for the flexibility of not including a continuous durable restraint, and regulated entities will not incur a cost.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL AND MICRO BUSINESSES. The department has determined that the adoption of new standards may have an adverse economic effect or a disproportionate economic impact on small or micro businesses.

This proposal specifies code standards for life safety protection and fire hazard management. All small or micro businesses in Texas will be required to comply with the proposed requirement. The cost analysis in the Public Benefit and Cost Note part of this proposal is also applicable to these small and micro businesses. The estimated cost for the purchase of new editions of NFPA 1 and NFPA 101 from the NFPA is $194.50. Any other costs that result from small and micro businesses' compliance with the updated standards are the result of Government Code §417.008, which grants authority to the state fire marshal to enter and examine buildings and premises in the state to determine whether conditions exist that are dangerous or likely to cause or promote fire or create danger for firefighters, occupants, or buildings or structures.

In the event that the proposal does have an adverse economic effect on small businesses or micro businesses that are required to comply with the proposal, the proposal does not require the statutorily mandated regulatory flexibility analysis specified by Government Code §2006.002(c)(2). Section 2006.002(c)(2) requires that a state agency, before adopting a rule that may have an adverse economic effect on small businesses, prepare a regulatory flexibility analysis that includes the agency's consideration of alternative methods of achieving the purpose of the proposed rule. Government Code §2006.002(c-1) requires that the regulatory flexibility analysis "consider, if consistent with the health, safety, and environmental and economic welfare of the state, using regulatory methods that will accomplish the objectives of applicable rules while minimizing adverse impacts on small businesses" An agency is not required to consider alternatives that, while possibly minimizing adverse impacts on small and micro businesses, would not be protective of the health, safety, and environmental and economic welfare of the state.

The purpose of Government Code §417.008 is to ensure compliance with the most recent standards of safety for fire and related hazards for the purpose of protecting life and property in this state. The proposed amendment establishes the 2015 NFPA 1 and NFPA 101 as minimum standards for fire hazard management.

The purpose of this proposal is to protect the health and safety of the firefighters, individual citizens, and buildings and structures of Texas through the adoption of safety standards. In order to protect life and property in this state, it is necessary that all businesses, regardless of size, comply with the minimum safety requirements. The requirements in this proposal are consistent with Government Code §417.008, which specifies that on the complaint of any person, the state fire marshal is entitled to enter any building or premises in Texas at any reasonable time for the purpose of examination for dangerous conditions.

The department has determined, in accordance with Government Code §2006.002(c-1), that because the purpose of this proposal and the authorizing statute is to protect the safety of life and property in this state, there are no regulatory alternatives to the requirements in this proposal that will sufficiently protect the safety of people, buildings, and structures in this state.

TAKINGS IMPACT ASSESSMENT. The department has determined that no private real property interests are affected by this proposal and that this proposal does not restrict or limit an owner's right to property that would otherwise exist in the absence of government action. As a result, this proposal does not constitute a taking or require a takings impact assessment under Government Code §2007.043.

REQUEST FOR PUBLIC COMMENT. The department invites the public and affected persons to comment on this proposal. Submit your written comments on the proposal no later than 5 p.m., Central time, on November 28, 2016. Send written comments by mail to the Office of the Chief Clerk, Mail Code 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714-9104, or by email to chiefclerk@tdi.texas.gov. You must simultaneously submit an additional copy of the comments by mail to Ernest McCloud, Assistant State Fire Marshal, Mail Code 112-FM, P.O. Box 149104, Austin, Texas 78714-9104; or by email to ernest.mccloud@tdi.texas.gov. You must submit any request for a public hearing separately to the Office of the Chief Clerk, MC 113-2A, Texas Department of Insurance, P.O. Box 149104, Austin, Texas 78714- 9104, or by email to chiefclerk@tdi.texas.gov before the close of the public comment period. If a hearing is held, written comments and public testimony presented at the hearing will be considered.

STATUTORY AUTHORITY. The amendment is proposed under Government Code §417.005 and §417.008, Occupations Code §2154.051 and §2154.052, and Insurance Code §36.001.

Government Code §417.005 states that the commissioner, after consulting with the state fire marshal, may adopt rules necessary to guide the state fire marshal in the performance of other duties for the commissioner. Government Code §417.008(e) provides that the commissioner may adopt by rule any appropriate standard related to fire danger developed by a nationally recognized standards-making association. Government Code §417.0081 provides that the commissioner by rule shall adopt guidelines for assigning potential fire safety risk to state-owned and state-leased buildings and providing for the inspection of each building to which this section applies.

Occupations Code §2154.051 states the commissioner shall determine reasonable criteria and qualifications for licenses and permits pertaining to the regulation of fireworks and fireworks displays. Section 2154.052 states that the commissioner shall adopt and the state fire marshal must administer rules the commissioner considers necessary for the protection, safety, and preservation of life and property.

Insurance Code §36.001 provides that the commissioner may adopt any rules necessary and appropriate to implement the powers and duties of the department under the Insurance Code and other laws of this state.

CROSS-REFERENCE TO STATUTE. Government Code §417.008 is implemented by this §34.303 and Occupations Code §2154.051 and §2154.052 is implanted by §34.832.