No. 34835 (Emergency Rule): Rule R710-2. Rules Pursuant to the Utah Fireworks Act

DAR File No.: 34835
Filed: 05/16/2011 08:10:51 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

On 05/10/2011, the Utah Fire Prevention Board met in a regularly scheduled Board meeting and made several amendments to Rule R710-2. The Board voted by unanimous motion to delete two incorporated references, add two definitions, eliminate the need for an approved fireworks list, eliminate the testing requirement of fireworks, add some requirements for the display, sale and signage of aerial fireworks devices, and make some further some adjustments to clarify the intent of the rule.

Summary of the rule or change:

The Fire Prevention Board proposes by rule amendment to change the following: 1) in Subsections R710-2-1(1.5) and (1.6), the Board proposes to eliminate the usage of two sets of codes incorporated by reference; 2) in Subsections R710-2-2(2.2) and (2.3), the Board proposes to adopt two new definitions to define "aerial device" and "covered fuse"; 3) in Subsections R710-2-3(3.12) and (4.4), the Board proposes to move a requirement from indoor sales to general requirements so the requirement covers all sales venues rather than just indoor sales; 4) in Section R710-2-6, the Board proposes to strike the section that required the approved list of fireworks and the testing of fireworks to make the list; 5) in Section R710-2-6, the Board proposes to recreate Section R710-2-6 and establish the requirements to display and sell aerial devices and also to establish signage requirements; and 6) in Subsection R710-2-7(7.12.2), the Board proposes to enter the Artisan and Performer Safety Standard Manual that was prepared by the State Fire Marshal to assist those that will be testing for certification. (DAR NOTE: The proposed amendment to Rule R710-2 is under DAR No. 34809 in this issue, June 1, 2011, of the Bulletin.)

Emergency rule reason and justification:

Regular rulemaking procedures would cause an imminent peril to the public health, safety, or welfare.

Justification: The fireworks season and the allowance to sell and discharge fireworks begins on 06/26/2011, and goes for 31 days. With the passage of H. B. 22 in the 2011 General Session, it made significant changes in the adopted fireworks law. With the enactment of the legislation on 05/10/2011, the Utah Fire Prevention Board was charged by the legislature to establish safe selling and handling procedures especially with the allowance to ignite cake fireworks that go as high as 150 feet in the air. The regular rule filing amendments will not go into effect until 07/08/2011. To eliminate imminent peril to the public health, safety or welfare, and to provide public safety for the citizens of the State of Utah, the immediate enactment of these changes must be completed before the 07/08/2011 enactment of the regular rule filing amendments. (DAR NOTE: H.B. 22 (2011) was effective 05/10/2011.)

State statutory or constitutional authorization for this rule:

• Section 53-7-204

Anticipated cost or savings to:

the state budget:

There would be no aggregate anticipated cost to the state budget but there would be an aggregate anticipated savings to the state budget with the removal of the annual testing requirement and the removal of the annual approved fireworks list. With the passage of H. B. 22, in the 2011 General Session, these two requirements are no longer needed to fulfill the intent of the statute.

local governments:

There would be no aggregate anticipated cost to local government but there would be an aggregate anticipated savings to local government due to the removal of the requirement that the fireworks stands, tents and retail facilities would have to be inspected each year, to make sure the only fireworks items for sale were listed on the approved fireworks list.

small businesses:

There would be an aggregate anticipated cost to small businesses to enact this rule due to the requirement to have the newly allowed aerial fireworks devices separated from the public by a physical barrier that would require an employee to assist the customer in the purchasing of the aerial firework devices. Depending on the process the retailer uses when selling aerial device fireworks would determine the aggregate anticipated cost. Without the exact knowledge of how each retailer would provide the needed service, it is impossible to compute an exact aggregated cost to this issue.

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

The major effect for the implementation of the proposed amendments to this rule is the requirement that the aerial firework devices be physically separated from the other types of fireworks. It requires that an employee be present to assist in the procuring of aerial device fireworks in retail facilities to include tents.

Compliance costs for affected persons:

There would be a compliance cost for affected persons to sell aerial devices by the requirement in the rule that an employee would be required to interact with the customer that wishes to purchase aerial fireworks. The allowance has been removed that would permit the customer to purchase aerial firework devices with having person-to-person contact with the employee to inform the customer of the increased hazard to discharge these types of fireworks.

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

There would be a fiscal impact to retailers that decide to sell aerial fireworks by having to involve store employees when the customer wishes to procure those aerial fireworks devices. The rule would require that the aerial devices would have to be physically separated so that the customer would have to seek assistance from the employee to secure aerial devices. If the store decided to not sell aerial devices there would be no fiscal impact on businesses.

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]

This rule is effective on:

05/17/2011

Authorized by:

Brent Halladay, 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; [providing a list of approved class C common state approved fireworks for retail sale;] and requirements for licensing of importer, wholesaler, display operator, special effects operator, flame effects operator, and flame effect performing artist.

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

1.1 International Fire Code (IFC), 2009 edition, as published by the International Code Council, Inc. (ICC), 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 R710-2-10, 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 R710-2-10, 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.[7]5 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 "Aerial device" means a cake that is a collection of mine/shell tubes that has a single covered fuse which is used to light several tubes in sequence. A cake may also be defined as an aerial repeater or multi-shot aerial and does not exceed more than 500 grams of pyrotechnic composition.

2.3 "Covered fuse" means a fuse or designed point of ignition that is protected against accidental ignition by contact with a spark, smoldering item or small open flame.

2.[2]4 "Flame Effects" means Flame Effects Operator or Flame Effects Performing Artist.

2.[3]5 "Flame Effects Performing Artist" means a fire spinner, fire dancer or fire performer who is paid to perform professionally in a public location.

2.[4]6 "ICC" means International Code Council, Inc.

2.[5]7 "IFC" means International Fire Code.

2.[6]8 "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]9 "NAFAA" means the North American Fire Arts Association.

2.[8]10 "NFPA" means National Fire Protection Association.

2.[9]11 "Permanent structure" means a non-movable building, securely attached to a foundation, housing a business.

2.[10]12 "Person" means an individual, company, partnership or corporation.

2.[11]13 "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.[12]14 "Resale" means the act of reselling class B or C explosives to a new party.

2.[13]15 "SFM" means the State Fire Marshal.

2.[14]16 "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.[15]17 "Temporary Stands and Trailers" means a non-permanent structure used exclusively for the sale of fireworks.

2.[16]18 "UCA" means Utah Code Annotated.

 

R710-2-3. General Requirements.

3.1 No person shall engage in any type of retail storage or sale of class C common state approved explosives, without first having obtained a license to sell fireworks from the authority having jurisdiction, if required.

3.2 If a municipality or county in which fireworks are offered for sale, requires a seller to obtain a license, it shall be available at the store or stand for presentation upon request to authorized public safety officials.

3.3 All fireworks retail sales locations shall be under the direct supervision of a responsible person who is 18 years of age or older.

3.4 Those selling fireworks at retail sales locations shall be at least 16 years of age or older.

3.5 A salesperson shall remain at the sales location at all times unless suitable locking devices or secured metal storage containers are provided to prevent the unauthorized access to the merchandise by others.

3.6 Class C common state approved explosives shall not be sold to any person under the age of 16 years, unless accompanied by an adult.

3.7 All retail sales locations shall be kept clear of dry grass or other combustible material for a distance of at least 25 feet in all directions.

3.8 Storage of class C common state approved explosives shall not be located in residences to include attached garages.

3.9 "No Smoking" signs shall be conspicuously posted at all sales and storage locations.

3.10 A sign, clearly visible to the general public, shall be posted at all fireworks sales locations, indicating the legal dates for discharge of fireworks.

3.11 All retail sales locations shall be equipped with an approved, portable fire extinguisher having a minimum 2A rating.

3.12 Class C common state approved explosives shall only be stored, handled, displayed, and sold as packaged units with covered fuses.

 

R710-2-4. Indoor Sales.

4.1 Display of class C common state approved explosives inside of buildings shall be so located to ensure constant visual supervision.

4.2 In all retail sales locations in permanent structures, the area where class C common state approved explosives are displayed or stored shall be at least 50 feet from any flammable liquid or gas, or other highly combustible material.

4.3 In permanent structures, retail sales displays of Class C common state approved explosives shall not be placed in locations that would impede egress from the building.

[ 4.4 Class C common state approved explosives shall only be stored, handled, displayed, and sold as packaged units, with unexposed fuses, within a permanent structure.

] 4.[5]4 Display of Class C common state approved explosives inside of buildings protected throughout with an automatic fire sprinkler system shall not exceed 25 percent of the area of the retail sales floor or exceed 600 square feet, whichever is less.

4.[6]5 Display of Class C common state approved explosives inside of buildings not protected with an automatic fire sprinkler system shall not exceed 125 pounds of pyrotechnic composition. Where the actual weight of the pyrotechnic composition is not known, 25 percent of the gross weight of the consumer fireworks, including packaging, shall be permitted to be used to determine the weight of the pyrotechnic composition.

4.[7]6 Display of Class C common state approved explosives inside of buildings shall not exceed a height greater than six feet above the floor surface.

4.[8]7 Rack storage of Class C common state approved explosives inside of buildings is prohibited.

 

[ R710-2-6. List of Approved Class C Common State Approved Explosives.

6.1 The State Fire Marshal shall test and approve any Class C common state approved explosive before it is placed on the approved list as required in UCA 53-7-222(1).

6.2 The State Fire Marshal shall publish a list of approved class C common state approved explosives each year as required in UCA 53-7-222(1)(b).

6.3 The testing shall be conducted annually or as needed.

6.4 Any firework that bears the "California State Fire Marshal Safe and Sane Registered Fireworks Seal" is exempted from the testing process and can be placed on the approved list.] R710-2-6. Display, Sale, and Signage of Aerial Devices.

6.1 In addition to those requirements in R710-2-3, R710-2-4 and R710-2-5, all aerial devices shall be packaged and displayed for sale in a manner that would provide public safety by completing the following:

6.1.1 Aerial devices shall be placed in an area that is physically separated from the public so that the customer cannot handle the aerial devices without the assistance of an employee. There shall be signage placed at the aerial device display directing customers that aerial devices cannot be attained without the assistance of a store employee.

6.1.2 Where aerial devices are sold in permanent structures or other approved locations, the aerial device display shall be placed in a location that gives the customer access to the aerial devices just before the customer checks out and exits the store.

6.1.3 Wherever aerial devices are sold, there shall be signage with a minimum font of one inch, to warn and inform the customer of the dangers of aerial devices and the signage shall state the following:

6.1.3.1. Aerial fireworks are designed to travel up to 150 feet into the air and then explode.

6.1.3.2 Aerial fireworks shall be placed on a hard level surface outdoors, in a clear and open area prior to ignition.

6.1.3.3 Anyone under the age of 16 shall not handle or operate aerial fireworks.

6.1.3.4 Ignition of aerial fireworks shall be a minimum of 30 feet from any structure or vertical obstruction.

6.1.3.5 Aerial fireworks shall not be ignited within 150 feet of the point of sale.

6.1.3.6 Please read and obey all safe handling instructions before using aerial fireworks."

 

R710-2-7. Display Operator, Special Effects Operator, Flame Effects Operator, or Flame Effects Performing Artist Licenses.

7.1 Application for a display operator, 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.

7.3 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.

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 9 of these rules. The applicant, upon such refusal, shall also have those rights as are granted by Section 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

7.11 Every person who wishes to secure a display licensed operator, special effects licensed operator, or flame effects licensed operator original license shall demonstrate proof of competence by:

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

7.11.2 The applicant is allowed to use the statute, the administrative rule, and the NFPA standard that applies to the certification examination.

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

7.11.4 Submit written verification with the application that the applicant has worked with a licensed display operator, 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]and the Artisan and Performer Safety Standards prepared by the SFM.

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.

7.13 The written examination stated in Section 7.11.1 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.

7.15 At the end of the five year period the licensed display operator, 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 7.16 of these rules.

7.16 After the issuance of the original license, and each year thereafter, the display operator, special effects operator, flame effects operator, or flame effects performing artist shall complete a minimum of one of the following:

7.16.1 Complete one show or performance annually

7.16.2 Attend an operator safety class or flame effects performing artist meeting annually

7.16.3 Work with another licensed display operator, special effects operator, flame effects operator, or flame effects performing artist with a show annually to demonstrate proof of competence.

7.17 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 Sections 7.11 or 7.12 of these rules.

7.18 Every person who wishes to secure a display operator, special effects operator, flame effects operator, or flame effects performing artist license shall be at least 21 years of age.

7.19 Every licensed display operator, special effects operator, flame effects operator, or flame effects performing artist shall complete an After Action Report within ten (10) working days after the conclusion of any 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]9 of these rules. The applicant, upon such refusal, shall also have those rights as are granted by Section [8]9 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.

 

KEY: fireworks

Date of Enactment or Last Substantive Amendment: May 17, 2011

Notice of Continuation: June 4, 2007

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

 

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