The commissioner of insurance adopts amendments to 28 TAC §34.303, relating to Adopted Standards, and §34.832, relating to Specific Requirements for Retail Fireworks Sites Other Than Stands. The amendments are adopted without changes to the proposed text published in the October 28, 2016, issue of the Texas Register (41 TexReg 8506).

REASONED JUSTIFICATION. The amendments to §34.303 are necessary to implement Government Code §417.008 and to provide State Fire Marshal Office's inspectors with an update to the currently adopted standard in §34.303. The amendments to §34.832 are necessary to implement Occupations Code Chapter 2154 and to efficiently provide for the necessary protection, safety, and preservation of life and property.

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 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 NFPA 101 is necessary to provide State Fire Marshal Office's 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 practice 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. 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 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 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 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 intervals.

The NFPA 101 2015 edition includes new provisions for applying 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 inspection instructions for door assemblies to address both fire-rated doors and nonrated 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 such as nursing homes 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 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 amendment, §34.832(5) requires 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 customer handling would constitute a violation of §34.832(5). Even with the change, the requirement in §34.832(5) provides for the necessary protection, safety, and preservation of life and property.

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

SUMMARY OF COMMENTS AND AGENCY RESPONSE.

Commenters: TDI received written comments from seven individuals. There were six commenters in support of the proposal, and one commenter in support of the proposal with changes.

Comment on §34.832(5).

Several commenters support the removal of the requirement for a continuous durable restraint around displayed fireworks separating the customers from all merchandise, because the amended section will give customers and employees a safer environment with less obstructions.

Agency Response to Comment on §34.832(5).

TDI appreciates the supportive comments.

Comment on §34.832(5).

One commenter suggested a change to §34.832(5) to delete the requirement that an attendant "directly" assist a customer. Instead, they suggest "sales display areas must be sufficiently designed to prevent customers from handling fireworks, unless an attendant is available to assist the customer." The commenter stated that the suggested language would provide the necessary protection and safety for the preservation of life and property. The commenter further stated that the change would be in the best interest of the owner, and the customers would be monitored and assisted as needed. The commenter also stated that other states have similar regulations that allow customers to shop without being directly assisted and still maintain excellent safety records.

Agency Response to Comment on §34.832(5).

TDI disagrees with the comment and declines to make the suggested amendments. The amended provision is less restrictive than the prior requirement, but does not go as far as the commenter suggests. TDI will monitor compliance with the adopted provision, and at a later date may address further changes to tighten or loosen the requirement, as needed. The state fire marshal is concerned that unattended access to fireworks in a retail setting can pose a danger where consumers have criminal intent. On June 15, 2016, a person intentionally set fire to a fireworks display in an Arizona Walmart. TDI hopes that such an event would not be possible where sufficient attendants are available to directly assist customers at indoor fireworks retail sites, but the instance demonstrates the potential harm from inadequate supervision.

Comment on §34.832(13).

One commenter suggested that an amendment be made to §34.832(13) so that the requirement that trashcans be metal or heavy plastic remain, but to remove the requirement for a 10-foot distance from any displayed or stored fireworks. The commenter states that this requirement is not necessary for the disposal of cigarettes, since the rules do not allow smoking in the buildings and require "No Smoking" signs. Additionally, the commenter states that it can be difficult to place a trashcan 10 feet from displayed or stored fireworks. Absent convenient trashcans, the commenter states that disposed packaging can be slip and fall hazards.

Agency Response to Comment on §34.832(13).

TDI disagrees with the comment and declines to make the suggested amendment to paragraph §34.832(13). With respect to the disposal of cigarettes, notwithstanding the prohibition of smoking and the requirement to post "No Smoking" signs, it is good practice to plan for contingencies where the public isn't as wise to fire dangers as the staff of a retail fireworks site. The inconvenience resulting by the placement restrictions are reasonably necessary to reduce the potential of fire hazards. The speed at which a fire in a fireworks retail site can put lives and property at risk necessitates taking extra precautions.

STATUTORY AUTHORITY. The commissioner adopts the amendments to the section 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 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 will 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 will 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.