Proposed Rules Title 37

TITLE 37. PUBLIC SAFETY AND CORRECTIONS

PART 13. TEXAS COMMISSION ON FIRE PROTECTION

Chapter 421. STANDARDS FOR CERTIFICATION

37 TAC §421.5

The Texas Commission on Fire Protection (the Commission) proposes an amendment to §421.5, concerning Definitions. The purpose of this proposed amendment is to allow the Commission to accept college courses from an institution that has been accredited by a nationally recognized accrediting agency as approved by the U.S. Secretary of Education.

Jake Soteriou, Director of the Fire Service Standards and Certification Division, has determined that for the first five-year period the proposed amendment is in effect there will be no fiscal impact on state or local governments.

Mr. Soteriou has also determined that for each year of the first five years the proposed amendment is in effect, there will be a public benefit anticipated as a result of enforcing the amendments in that other college courses approved by a nationally accredited agency will be accepted for higher levels of certification. There are no additional costs of compliance for small or large businesses or individuals that are required to comply with these proposed amendments.

Comments regarding these proposed amendments may be submitted, in writing, within 30 days following the publication of this notice in the Texas Register to Gary L. Warren, Sr., Executive Director, Texas Commission on Fire Protection, P.O. Box 2286, Austin, Texas 78768-2286 or e-mailed to info@tcfp.state.tx.us. Comments will be reviewed and discussed at a future Commission meeting.

This amendment is proposed under Texas Government Code, §419.028, which allows the Commission to authorize training programs and instructors.

Cross reference to statute: Texas Government Code, §419.030.

§421.5.Definitions.

The following words and terms, when used in this standards manual, shall have the following meanings, unless the context clearly indicates otherwise.

(1) - (10) (No change.)

(11) College credits--Credits earned for studies satisfactorily completed at an [~~a regionally accredited~~ ] institution of higher education accredited by an agency recognized by the U.S. Secretary of Education and including National Fire Academy (NFA) open learning program colleges, or courses recommended for college credit by the American Council on Education (ACE) or delivered through the National Emergency Training Center (both EMI and NFA) programs. A course of study satisfactorily completed and identified on an official transcript from a college or in the ACE National Guide that is primarily related to Fire Service, Emergency Medicine, Emergency Management, or Public Administration is defined as applicable for Fire Science college credit, and is acceptable for higher levels of certification.

(12) - (43) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on October 30, 2008.

TRD-200805737

Gary L. Warren, Sr.

Executive Director

Texas Commission on Fire Protection

Earliest possible date of adoption: December 14, 2008

For further information, please call: (512) 936-3838

CHAPTER 435. FIRE FIGHTER SAFETY

37 TAC §435.1

The Texas Commission on Fire Protection (the Commission) proposes amendments to §435.1, concerning Protective Clothing. The purpose of these proposed amendments is to offer a method which enables the fire service to prolong the in-service life of protective clothing that must be retired at 10 years from the date of manufacture as required by the National Fire Protection Association Standard 1851 - 2008 Edition ("Standard 1851"). The revised edition of the standard went into effect on June 24, 2007 and, pursuant to §419.040 Texas Government Code, ultimately must be placed in effect for the fire service in Texas. The Commission is also proposing to remove the reference to the product identified as BREATHE-TEX®, manufactured by Aldan Engineered Coated Fabrics, used as a moisture barrier in some protective clothing. The company had identified the product as defective and the Commission mandated the BREATHE-TEX® vapor barrier not be used in Texas. Aldan Engineering Coated Fabrics ceased manufacturing BREATHE-TEX® in 1992 and subsequently went out of business.

Jake Soteriou, Director of the Fire Service Standards and Certification Division, has determined that if implemented immediately in accordance with its terms, Standard 1851 could cause immediate, significant, and burdensome costs on local governments. The intent of these amendments to §435.1 is to allow fire departments to continue using protective clothing for two years beyond the ten-year mandated retirement age as long as the protective clothing passes the advanced inspections found in Standard 1851. There are no cost implications for state government. Under the proposed amendments to §435.1, local government may incur costs to replace any protective clothing older than ten years that does not meet the inspection provisions set forth in the Standard 1851. Fire departments that own protective clothing older than 10 years could incur costs up to $1,500 per person to replace the protective clothing. There are approximately 26,000 sets of protective clothing in service in the approximately 500 regulated fire departments in Texas. Under the proposed amendment, the department will have to continue to perform an advanced inspection on protective clothing that is up to 12 years old. Protective clothing that fails the advanced inspection may have components replaced or repaired that would allow the garment to pass the inspection and the department may continue using the protective clothing for up to 12 years. Repair cost is estimated to be half the amount to replace existing ten-year-old protective clothing, which is far less than the cost of immediate compliance. The Commission proposes to limit this exception to two years. The Commission feels this time period would give all departments time to make the necessary budget adjustments that would allow them to be in full compliance with the conditions set forth in the NFPA 1851 Standard.

Mr. Soteriou has also determined that the public benefit anticipated as a result of enforcing these amendments would be to ensure the safety of fire fighters wearing the protective clothing when they are involved in fire suppression efforts. There are no additional costs of compliance for small or large businesses or individuals as they are not required to comply with these proposed amendments. Volunteer fire departments are not affected by this amendment.

This amendment is proposed under Texas Government Code, §419.008, which provides the Commission with the authority to propose rules for the administration of its powers and duties.

Cross reference to statute: Texas Government Code, Chapter 419.043.

§435.1.Protective Clothing.

(a) - (b) (No change.)

[(c) It has been demonstrated that the product identified as BREATHE-TEX®, manufactured by Aldan Engineered Coated Fabrics, used as a moisture barrier in some protective clothing, may fail unpredictably and allow moisture to pass through the barrier. This product is the subject of recalls by some manufacturers. Pursuant to the Government Code, §419.040 (b), the commission has determined that continued use of protective clothing having the moisture barrier identified above constitutes an undue risk to the wearer. Therefore, all regulated fire departments shall as of January 1, 2002, remove from service all protective clothing containing Breathe-Tex® moisture barriers.]

(c) [~~(d)~~] Protective clothing in use or contracted for prior to January 1, 2002, shall be exempted from the record keeping requirements contained in Section 2.3, Records, of NFPA 1851.

(d) In accordance with §419.043, Texas Government Code and subsection (b) of this section as set out hereinabove and consistent with past practice with respect to the implementation of NFPA standards when immediate implementation of a standard as written is impractical for Texas, the modifications contained in Sections 10.1.2, 10.1.3, and 10.1.3.1 of the 2008 Edition of NFPA 1851 (effective June 24, 2007) shall be implemented as follows:

(1) with respect to Section 10.1.2, structural fire fighting ensembles and ensemble elements shall be retired in accordance with Section 10.2.1 of the 2008 Edition of NFPA 1851, no more than 12 years from the date the ensembles or ensemble elements were manufactured, or no more than 10 years from the date the ensemble or ensemble elements were first put into service;

(2) with respect to Section 10.1.3, proximity fire fighting ensembles and ensemble elements shall be retired in accordance with Section 10.2.1 of the 2008 Edition of NFPA 1851, no more than 12 years from the date the ensembles or ensemble elements were manufactured, or no more than ten years from the date the ensemble or ensemble elements were first put into service; and

(3) with respect to Section 10.1.3.1, the radiant reflective outer shells shall be retired in accordance with Section 10.2.1 of the 2008 Edition of NFPA 1851, no more than 7 years from the date the outer shells are manufactured or no more than 5 years from the date the outer shells were first put into service.

(e) Subsections (d) and (e) of this section will expire March 1, 2011.