No. 34247 (Amendment): Rule R710-2. Rules Pursuant to the Utah Fireworks Act

(Amendment)

DAR File No.: 34247
Filed: 11/18/2010 02:48:00 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Utah Fire Prevention Board met on 11/09/2010, in a regularly scheduled Board meeting and passed by unanimous vote amendments to Rule R710-2. The major amendments to the administrative rule are with regard to the addition of Flame Effects Operator and Flame Effects Performing Artist as disciplines now required to be licensed to perform as professionals. This was passed by the 2010 Utah State Legislature and is located in Section 53-7-223.

Summary of the rule or change:

The summary of the rule amendments are as follows: 1) in Section R710-2-1, the Board proposes to clean up verbiage and add three new incorporated by reference standards; 2) in Section R710-2-2, the Board proposes to add three definitions to include what is flame effects, a licensed operator, and an acronym; 3) in Section R710-2-7, the Board proposes to add the classification of disciplines, establish separate testing procedures for the flame effects performing artist, and correct several sections with regard to verbiage and titles; 4) in Section R710-2-8, the Board proposes to create a new section for Importers and Wholesalers. This section was taken from Section R710-2-7 and the Board felt it better to create its own section for these two disciplines; and 5) in Section R710-2-11, the Board added one requirement to the fireworks display safety class.

State statutory or constitutional authorization for this rule:

• Section 53-7-204

This rule or change incorporates by reference the following material:

• Adds Incendiary Circus Safety Manual, published by Incendiary Circus, LLC, 09/01/2006
• Adds NFAA - Performer Safety Guidelines, published by North American Fire Arts Association, 07/05/2005
• Adds NFPA 160 - Standard for the Use of Flame Effects Before an Audience, published by National Fire Protection Association, 2011

Anticipated cost or savings to:

the state budget:

There would be an aggregate anticipated cost to the state budget of approximately $3,000 to purchase the standards, develop the examinations, and administer the program.

local governments:

There is no aggregate anticipated cost or savings to local government because this program is overseen by the Utah State Fire Marshal's Office and local government has no participation in the enactment of this program.

small businesses:

There would be an aggregate cost to small businesses of approximately $77 for the cost of the standard and the cost of the license. Every license after that would be an additional $40. There would be an approximate aggregate cost of $1,000 to small businesses.

persons other than small businesses, businesses, or local governmental entities:

There would be a cost of approximately $77 for persons that would perform by themselves as some flame effects performing artists do. The cost would be broken down into $40 for the license and $37 to purchase the NFPA 160 Standard. There would be an aggregate cost of approximately $3,850 for all to license.

Compliance costs for affected persons:

The compliance cost for affected persons would be approximately $77 per person. The cost would be broken down into the license and testing cost of $40 for the license and the $37 for the NFPA Standard.

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be a fiscal impact of approximately $77 for each performer to license to be a flame effects operator or a flame effects performing artist. There has been considerable effort by all involved to complete this licensing process and the majority of the professionals in our state that do either discipline are aware of this new program and the ensuing costs.

D. Lance Davenport, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Public Safety
Fire Marshal
5272 S COLLEGE DR
MURRAY, UT 84123-2611

Direct questions regarding this rule to:

• Brent Halladay at the above address, by phone at 801-284-6352, by FAX at 801-284-6351, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

01/14/2011

This rule may become effective on:

01/21/2011

Authorized by:

Ron Morris, Utah State Fire Marshal

RULE TEXT

R710. Public Safety, Fire Marshal.

R710-2. Rules Pursuant to the Utah Fireworks Act.

R710-2-1. Adoption.

Pursuant to Title 53, Chapter 7, Section 204, Utah Code Annotated 1953, the Utah Fire Prevention Board adopts rules establishing minimum safety standards for retail storage, handling, and sale of class C common state approved explosives indoor or outdoor; [minimum requirements for placement and discharge of display fireworks;]providing a list of approved class C common state approved fireworks for retail sale; and requirements for licensing of importer, wholesaler, display operator, [or] special effects operator , flame effects operator, and flame effect performing artist[ licenses].

There is further adopted as part of these rules the following codes which are incorporated by reference:

1.1 International Fire Code (IFC), [2006]2009 edition, as published by the International Code Council, Inc. (ICC), [except as amended by provisions listed in R710-2-9, et seq.]and as enacted and amended by the Utah State Legislature in Sections 102 and 201 of the State Fire Code Adoption Act.

1.2 National Fire Protection Association (NFPA), Standard 1123, Code for Fireworks Display, 2006 edition, as

published by the National Fire Protection Association, except as amended by provisions listed in R710-2-[9]10, et seq.

1.3 National Fire Protection Association (NFPA), Standard 1126, Standard for the Use of Pyrotechnics Before a Proximate Audience, 2006 edition, as published by the National Fire Protection Association, except as amended by provisions listed in R710-2-[9]10, et seq.

1.4 National Fire Protection Association (NFPA), Standard 160, Standard for the Use of Flame Effects Before an Audience, 2011 edition, as published by the National Fire Protection Association, except as amended by provisions listed in R710-2-10, et seq.

1.5 North American Fire Arts Association (NAFAA), Performer Safety Guidelines, Revision 2.1, updated July 5, 2005, as published by the North American Fire Arts Association, except as amended by provisions listed in R710-2-10, et seq.

1.6 Incendiary Circus, Safety Manual, September 2006, as published by the Incendiary Circus, LLC, except as amended by provisions listed in R710-2-10.et seq.

1.[4]7 Copies of the above codes are on file in the Office of Administrative Rules and the State Fire Marshal's Office.

 

R710-2-2. Definitions.

2.1 "Authority having jurisdiction (AHJ)" means such county and municipal officers who are charged with the enforcement of state and municipal laws; consisting of all fire enforcement officials including designated staff from the Utah State Department of Public Safety.

2.2 "Flame Effects" means Flame Effects Operator or Flame Effects Performing Artist.

2.3 "Flame Effects Performing Artist" means a fire spinner, fire dancer or fire performer who is paid to perform professionally in a public location.

2.[2]4 "ICC" means International Code Council, Inc.

2.[3]5 "IFC" means International Fire Code.

2.6 "Licensed Operator" means any person who discharges, ignites, supervises, manages, oversees or directs the discharge of display fireworks, special effects fireworks, flame effects or flame effects performing artist.

2.7 "NAFAA" means the North American Fire Arts Association.

2.[4]8 "NFPA" means National Fire Protection Association.

2.[5]9 "Permanent structure" means a non-movable building, securely attached to a foundation, housing a business.

2.[6]10 "Person" means an individual, company, partnership or corporation.

2.[7]11 "Pre-packaged means that the product is wrapped in a clear plastic wrap or other equivalent material to prevent the fuse of the class C common state approved explosive from being accessible to the customer.

2.[8]12 "Resale" means the act of reselling class B or C explosives to a new party.

2.[9]13 "SFM" means the State Fire Marshal.

2.[10]14 "Tent" means a temporary structure, enclosure or shelter constructed of fabric or pliable material supported by any manner except by air or the contents it protects.

2.[11]15 "Temporary Stands and Trailers" means a non-permanent structure used exclusively for the sale of fireworks.

2.[12]16 "UCA" means Utah Code Annotated.

 

R710-2-7. [Importer, Wholesaler, ]Display Operator, [or ]Special Effects Operator, Flame Effects Operator, or Flame Effects Performing Artist Licenses.

7.1 Application for a [importer, wholesaler,] display operator, [or] special effects operator , flame effects operator, or flame effects performing artist license shall be made in writing on forms provided by the SFM.

7.2 Application for a license shall be signed by the applicant.[ If the application is made by a partnership, it shall be signed by all partners. If the application is made by a corporation or association, it shall be signed by a principal officer.]

7.3 Original licenses shall be valid from the date of issuance through December 31st of the year in which issued. Original [L]licenses issued on or after October 1st, will be valid through December 31st of the following year.

7.4 Application for renewal of license shall be made before January 1st of each year. Application for renewal shall be made in writing on forms provided by the SFM.

7.5 The SFM may refuse to renew any license pursuant to Section [8]9 of these rules. The applicant, upon such refusal, shall also have those rights as are granted by Section [8]9 of these rules.

7.6 Every licensee shall notify the SFM, in writing, within thirty (30) days, of any change of his address or location.

7.7 No licensee shall conduct his licensed business under a name other than the name which appears on his license.

7.8 No license shall be issued to any person as licensee who is under twenty-one (21) years of age.

7.9 The holder of any license shall submit such license for inspection upon request of the SFM, his duly authorized deputies, or any authorized enforcement official.

7.10 The applicant shall indicate on the application which license the applicant wishes to apply for:

7.10.1 Display Operator

7.10.2 Special Effects Operator

7.10.3 Flame Effects Operator

7.10.4 Flame Effects Performing Artist

7.[10]11 Every person who wishes to secure a display licensed operator, [or] special effects licensed operator , or flame effects licensed operator original license shall demonstrate proof of competence by:

7.[10]11.1 Successfully passing an open book written examination and obtaining a minimum grade of seventy percent (70%).

[7.10.2 Examinations will be given according to the following requirements:

]7.[10]11.2[.1] The applicant is allowed to use the statute, the administrative rule, and the NFPA standard that applies to the certification examination.[ Any other materials to include cellular telephones are prohibited in the examination room.

7.10.2.2 Completion of the certification examination will not be allowed if it appears to the test administrator that the applicant has not prepared to take the examination.

7.10.2.3 Each certification examination taken has a time limit of two hours to completion. Leaving the office or testing location before the completion of the examination voids the examination and will require the examination to be retaken by the applicant.]

7.[10.2]11.3 Submit written verification with the application of having completed a display operators safety class, [or]a special effects operators safety class , a flame effects operator safety class or demonstrate previous experience acceptable to the SFM.

7.[10.3]11.4 Submit written verification with the application that the applicant has worked with a licensed display operator, [or] special effects operator , or a flame effects operator for at least three shows or demonstrate previous experience acceptable to the SFM.

7.12 Every person who wishes to secure an original flame effects performing artist operator license shall demonstrate proof of competence by:

7.12.1 Successfully passing an open book written examination and obtaining a minimum grade of seventy percent (70%).

7.12.2 The applicant is allowed to use the statute, the administrative rule, NFPA 160, the NAFAA Performer Safety Guidelines, and the Incendiary Circus Safety Manual.

7.12.3 Submit written verification with the application of having received a flame effects performing artist safety class or demonstrate previous experience acceptable to the SFM.

7.12.4 Submit written verification with the application that the applicant has worked with a licensed flame effects performing artist for at least five training meetings or practice sessions or demonstrate previous experience acceptable to the SFM.

7.[11]13 The written examination stated in Section 7.[10(a)]11.1 or 7.12.1 shall be valid for five years from the date of the examination.

7.14 Applicants seeking an original license as stated in Sections 7.11 of these rules, may perform the various acts while under the direct supervision of a person holding a valid license for a period not to exceed 45 days. By the end of the 45 day period, the applicant shall have taken and passed the required examination and completed all other licensing requirements.

7.[12]15 At the end of the five year period the licensed display operator, [or] special effects operator , flame effects operator, or flame effects performing artist shall take a re-examination. The re-examination shall be open book and sent to the license holder at least 60 days before the renewal date. The re-examination shall focus on the changes in the last 5 years to the adopted standards. The license holder is responsible to complete the re-examination and return it to the Division in time to renew and also comply with the requirements listed in Section 7.[13]16 of these rules.

7.[13]16 After the issuance of the original license, and each year thereafter, the display operator, [or] special effects operator , flame effects operator, or flame effects performing artist shall complete a minimum of [one fireworks]one of the following:

7.16.1 Complete one show or performance annually[ or]

7.16.2 A[a]ttend an operator safety class or flame effects performing artist meeting annually[ or]

7.16.3 W[w]ork with another licensed display operator, [or] special effects operator , flame effects operator, or flame effects performing artist with a show annually to demonstrate proof of competence.

7.[14]17 When the license has expired for more than one year, an application shall be made for an original license and the initial requirements shall be completed as required in Section s 7.[10]11 or 7.12 of these rules.

7.[15]18 Every person who wishes to secure a[n importer, wholesaler,] display operator, [or] special effects operator[s], flame effects operator, or flame effects performing artist license shall be at least 21 years of age.

7.[16]19 Every licensed display operator, [or] special effects operator , flame effects operator, or flame effects performing artist shall complete [the Pyrotechnician's]an After Action Report [for Fireworks Display form] within ten (10) working days after the conclusion of any [display or special effects] show and send it to the State Fire Marshal. If there are more than one licensed operator involved in the show, only one After Action Report needs to be sent to the State Fire Marshal for that show.

 

R710-2-8. Importer or Wholesaler License.

8.1 Application for an importer or wholesaler license shall be made in writing on forms provided by the SFM.

8.2 Application for a license shall be signed by the applicant. If the application is made by a partnership, it shall be signed by all partners. If the application is made by a corporation or association, it shall be signed by a principal officer.

8.3 Original licenses shall be valid from the date of issuance through December 31st of the year in which issued. Original licenses issued on or after October 1st, will be valid through December 31st of the following year.

8.4 The SFM may refuse to renew any license pursuant to Section 8 of these rules. The applicant, upon such refusal, shall also have those rights as are granted by Section 8 of these rules.

8.5 Every licensee shall notify the SFM within thirty (30) days of any change of address or location.

8.6 No licensee shall conduct his licensed business under a name other than the name which appears on his license.

8.7 No license shall be issued to any person as licensee who is under twenty-one (21) years of age.

8.8 The holder of any license shall submit such license for inspection upon request of the SFM, his duly authorized deputies, or any authorized enforcement official.

 

R710-2-[8]9. Adjudicative Proceedings.

[8]9.1 All adjudicative proceedings performed by the agency shall proceed informally as set forth herein and as authorized by UCA, Sections 63G-4-202 and 63G-4-203.

[8]9.2 The issuance, renewal, or continued validity of a license may be denied, suspended or revoked, if the SFM, or his authorized deputies finds that the applicant, licensee, person employed for, the person having authority and management of a concern commits any of the following violations:

[8]9.2.1 The person or applicant is not the real person in interest.

[8]9.2.2 The person of applicant provides material misrepresentation or false statement on the application.

[8]9.2.3 The person or applicant refuses to allow inspection by the AHJ.

[8]9.2.4 The person or applicant for a license does not possess the qualifications of skill or competence to conduct operations for which application is made, as evidenced by failure to pass the written examination , [or] demonstrate practical skills or complete the safety class.

[8]9.2.5 The person or applicant has been convicted of one or more federal, state or local laws.

[8]9.2.6 Failure to accurately complete the [Pyrotechnician's] After Action Report[ for Fireworks Display form].

[8]9.2.7 The person or applicant has been convicted of a violation of the adopted rules or been found by a Board administrative proceeding to have violated the adopted rules.

[8]9.2.8 Any offense or finding of unlawful conduct, or there is or may be, a threat to the public's health or safety if the applicant or person were granted a license or certificate of registration.

[8]9.2.9 There are other factors upon which a reasonable and prudent person would rely to determine the suitability of the applicant or person to safely and competently engage in the practice of [servicing portable fire extinguishers]being an importer, wholesaler, display operator, special effects operator, flame effects operator or flame effects performing artist.

[8]9.3 A person may request a hearing on a decision made by the AHJ, by filing an appeal to the Board within 20 days after receiving final notice from the AHJ.

[8]9.4 All adjudicative proceedings, other than criminal prosecution, taken by the AHJ to enforce the Utah Fire Prevention and Safety Act, and these rules, shall commence in accordance with UCA, Section 63G-4-201.

[8]9.5 The Board shall act as the hearing authority, and shall convene as an appeals board after timely notice to all parties involved.

[8]9.6 The Board shall direct the SFM to issue a signed order to the parties involved giving the decision of the Board within a reasonable time of the hearing pursuant to UCA, Section 63G-4-203.

[8]9.7 Reconsideration of the Board's decision may be requested in writing within 20 days of the date of the decision pursuant to UCA, Section 63G-4-302.

[8]9.8 After a period of three years from the date of revocation, the Board shall review the submitted written application of a person whose license or certificate of registration has been revoked. After timely notice to all parties involved, the Board shall convene to review the revoked persons application, and that person shall be allowed to present themselves and their case before the Board. After the hearing, the Board shall direct the SFM to allow the person to complete the licensing or certification process or shall direct that the revocation be continued.

[8]9.9 Judicial review of all final Board actions resulting from informal adjudicative proceedings shall be conducted pursuant to UCA, Section 63G-4-402.

 

R710-2-[9]10. Amendments and Additions.

[9]10.1 The following are amendments and additions to the codes and standards adopted to regulate class C common state approved explosives, placement and discharge of display fireworks, and importer, wholesaler, display or special effects operator licenses, as adopted in Section 1 of these rules:

[9]10.2 IFC, Chapter 33, Section 3301.2.1 and 3301.2.2 is deleted, and rewritten to read as follows:

[9]10.2.1 For the following periods of time: June 1 through July 31; December 1 through January 5; and 30 days before and up to 5 days after the Chinese New Year; class C common state approved explosives may be stored for retail sale as follows:

[9]10.2.1.1 The retail seller shall notify the local fire authority to where the class C common state approved explosives are to be stored.

[9]10.2.1.2 Class C common state approved explosives shall not be stored in residences to include attached garages.

[9]10.2.1.3 The local fire authority shall approve the storage site of the class C common state approved explosives and may use the following guidelines for acceptable places of storage:

[9]10.2.1.3.1 In self storage units where the owner allows it.

[9]10.2.1.3.2 In a temporary stand or trailer used for the retail sales of Class C common state approved explosives, which must be locked or secured when not open for business.

[9]10.2.1.3.3 In a locked or secured truck, trailer, or other vehicle at an approved location.

[9]10.2.1.3.4 In a locked or secured container, garage, shed, barn, or other building, which is detached from an inhabited building.

[9]10.2.1.3.5 Wholesalers warehouse.

[9]10.2.1.3.6 An approved Group M occupancy.

[9]10.2.1.3.7 In a locked or secured metal container adjacent to the temporary stand, trailer or tent that is acceptable to the authority having jurisdiction.

[9]10.2.1.3.8 Any other structure or location approved by the authority having jurisdiction.

[9]10.2.2 All other periods of time, except those stated in Section 9.2[(1)].1 of these rules, the storage, use, and handling of fireworks are prohibited, except as follows:

[9]10.2.2.1 The storage and handling of fireworks are allowed as required in IFC, Chapter 33 and these rules.

[9]10.2.2.2 The use of fireworks for display is allowed as set forth in IFC, Chapter 33 and these rules.

 

R710-2-[10]11. Fire Department Displays.

[10]11.1 As required in UCA 53-7-223(1) and as allowed for fire departments in UCA 53-7-202(9)(b), the fire department's involvement in the discharge of display fireworks is allowed only for the discharge of display fireworks in that fire departments community or communities it has a contract to protect.

[10]11.2 Within 10 working days after the conclusion of a fireworks display, the fire chief or an assigned fire department member shall complete an [Pyrotechnician's] After Action Report and send it to the State Fire Marshal.

[10]11.3 Any fire department member that will be involved in the discharge site as defined in NFPA 1123, shall complete a fireworks display safety class and examination on-line yearly to be allowed in the discharge area during the display. A copy of the completed certificate shall be sent to the SFM yearly to be placed in the fire department file.

[10]11.4 Any fireworks purchased by a community or fire department outside of the State of Utah shall require the securing of an annual importers license as required in UCA 53-7-224.

 

KEY: fireworks

Date of Enactment or Last Substantive Amendment: [May 12, 2009]January 21, 2011

Notice of Continuation: June 4, 2007

Authorizing, and Implemented or Interpreted Law: 53-7-204

 

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