Section 34.1206 - Alternative Testing Methods(a) General Requirements. (1) Pursuant to § 796.004 of the Health and Safety Code, a cigarette manufacturer may not certify a cigarette variety under the Health and Safety Code Chapter 796 and this subchapter using a cigarette testing method and performance standard other than the method specified in the Health and Safety Code § 796.003 without the prior written authorization of the SFMO.(2) The manufacturer is solely responsible for ensuring that all cigarettes accepted for alternative testing under this section are tested in compliance with the alternative testing method and performance standard accepted by the SFMO for that cigarette variety.(3) SFMO authorization to use an alternative testing method and performance standard must be granted for each specific cigarette variety that will be subject to the alternative testing method and performance standard.(4) Accepted requests for an alternative testing method and performance standard are not transferable to other cigarette varieties and may not be used to test other cigarette varieties without the prior written authorization of the SFMO.(b) Initiation of Review of Alternative Test Method. The SFMO may initiate a review of an alternative test method to make a determination under this subsection based on the application of the cigarette manufacturer or the SFMO's own action.(c) Request for an Alternative Test Method.(1) If the SFMO determines that a variety of cigarette cannot be tested in accordance with the Health and Safety Code § 796.003, a cigarette manufacturer may request an alternative test method and performance standard.(2) A cigarette manufacturer may also seek authorization to use an alternative test method and performance standard approved in another state.(3) Requests for authorization to use an alternative test method and performance standard must be submitted in accordance with § 34.1203 of this subchapter (relating to General Provisions Regarding Required and Voluntary Submissions).(d) SFMO Authorization. (1) If a request is submitted under subsection (c)(1) of this section, the SFMO shall authorize the cigarette manufacturer to use the alternative test on the variety of cigarette if the cigarette manufacturer demonstrates to the satisfaction of the SFMO that the performance standard proposed by the manufacturer is equivalent to the performance standard under the Health and Safety Code § 796.003.(2) If a request is submitted under subsection (c)(2) of this section, unless the SFMO can demonstrate a reasonable basis why the alternative test method should not be accepted under Health and Safety Code Chapter 796, the SFMO shall authorize the cigarette manufacturer to use the alternative test on the variety of cigarette if the cigarette manufacturer demonstrates to the satisfaction of the SFMO that: (A) another state has enacted reduced cigarette ignition propensity standards that include a test method and performance standard that are the same as those contained in the Health and Safety Code Chapter 796; and(B) the officials responsible for implementing those requirements have approved the proposed alternative test method and performance standard for the particular cigarette variety proposed by a manufacturer as meeting the fire safety standards of that state's law or regulation under a legal provision comparable to the Health and Safety Code § 796.004, including a provision that the performance standard proposed by the manufacturer is equivalent to, or greater than, the performance standard established under the Health and Safety Code § 796.003.(e) SFMO Rejection. If the requested alternative method is rejected by the SFMO, the cigarette manufacturer may proceed under § 34.1203(b)(4) of this subchapter.(f) SFMO Notice of Determination. Notice regarding the SFMO's determination concerning an alternative test method and performance standard requested pursuant to this section shall be made as described in § 34.1203 of this subchapter.28 Tex. Admin. Code § 34.1206
The provisions of this §34.1206 adopted to be effective December 31, 2008, 33 TexReg 10443