Home » 2009 Issues » November 10, 2009 » LAB-45-09-00002-E Licensing of Blaster, Crane Operators, Laser Operators and Pyrotechnicians
LAB-45-09-00002-E Licensing of Blaster, Crane Operators, Laser Operators and Pyrotechnicians
11/10/09 N.Y. St. Reg. LAB-45-09-00002-E
NEW YORK STATE REGISTER
VOLUME XXXI, ISSUE 45
November 10, 2009
RULE MAKING ACTIVITIES
DEPARTMENT OF LABOR
EMERGENCY RULE MAKING
I.D No. LAB-45-09-00002-E
Filing No. 1228
Filing Date. Oct. 26, 2009
Effective Date. Oct. 26, 2009
Licensing of Blaster, Crane Operators, Laser Operators and Pyrotechnicians
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of Part 61 to Title 12 NYCRR.
Statutory authority:
General Business Law, section 483
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
These regulations are needed to clarify and standardize the procedures for regulating various occupations which the legislature has found pose special risks to the safety and health of the citizens of New York as well as to their property. There have been several incidents where individuals have been or could have been seriously injured a pyrotechnic displays.
The licensing of pyrotechnicians is a new requirement enacted this year under Section 482 of the General Business Law, by Part CC of Chapter 57 of the Laws of 2009. Every pyrotechnic display conducted in New York on or after October 4, 2009 must have at least one lead pyrotechnician who possesses a certificate of competence issued by the Department of Labor. These regulations set forth the procedure and requirements for obtaining the certificate.
Subject:
Licensing of blaster, crane operators, laser operators and pyrotechnicians.
Purpose:
To clarify and standardize the licensing of blasters, crane operators, laser operators and pyrotechnicians.
Substance of emergency rule:
The proposed amendment will create a new part to Title 12 – Labor Law of the State Administrative Code. Under this amendment, Part 61 will be added to Subchapter A – Industrial Code. Part 61 provides for general licensing guidelines for crane operators, blasters, and laser operators as well as an entirely new subpart for the licensing of pyrotechnicians. It is the purpose and intent of Part 61, to provide consistent and uniform regulations for these dangerous occupations and to insure that only individuals with proper experience and ability engage in these activities in order to protect the lives, health, and safety of the citizens of the state.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire January 23, 2010.
Text of rule and any required statements and analyses may be obtained from:
Nancy Pepe, New York State Department of Labor, State Office Campus, Building 12, Room 509, Albany, NY 12240, (518) 457-0288, email: nancy.pepe@labor.state.ny.us
Additional matter required by statute:
National Fire Protection Association, 1123 and 1126 Standards on Fireworks Displays and Use of Pyrotechnics Before a Proximate Audience
Regulatory Impact Statement
1. Statutory Authority:
General Business Law Sections 482(1) and 483(1)(a) provide that the Commissioner of Labor is hereby authorized and directed to prescribe such rules and regulations with respect to lasers, crane operators, blasters and pyrotechnicians and that no individual shall operate lasers, cranes or act as a blaster or a pyrotechnician without holding a valid certificate of competence issued by the Commissioner or Labor.
2. Legislative Objectives:
General Business Law Section 480 states that the use of lasers, the operation of cranes, the detonation of explosives, and the preparation and firing of pyrotechnics involves such elements of potential danger to the lives, health and safety of the citizens of this state and to their property that special regulations are necessary to insure that only persons of proper ability and experience shall engage in such operations.
The general provision of this regulation does not supersede and incorporates by reference the current licensing criteria for each of the following occupations: crane operators, General Business Law Section 481.3, 12 NYCRR § 23-8.5; blasters, General Business Law Section 481.4, 12 NYCRR § 39.5; and laser operators, General Business Law Section 481.1., 12 NYCRR § 50.9.
The legislature specified that pyrotechnicians must be certified and directed the Commissioner of Labor to promulgate rules and regulations to administer and enforce the certification requirement.
3. Needs and Benefits:
The Commissioner of Labor recognizes the need for procedures to regulate various occupations which have been designated by the legislature as creating special risks to the safety and health of the citizens of New York as well as to their property. These regulations are needed to clarify and standardize the procedures for regulating the various occupations designated by the legislature as creating special risks to the safety and health of the citizens of New York as well as to their property. There have been several incidents where individuals have been or could have been seriously injured a pyrotechnic displays. The most recent incident occurred during the summer of 2008 when a member of the public was struck by a pyrotechnic shell in the Village of Ticonderoga during an aerial display. By requiring certification only individuals who have demonstrated that they have had training and experience in the field will be allowed to be in charge of these displays.
These emergency regulations clarify that firework displays subject to the permitting requirements of Penal Law Section 405.00 may be conducted by a single certified operator, who shall ensure that a sufficient number of authorized assistants are available for the safe conduct of the fireworks display. Penal Law Section 405.00(3) discusses two operators but makes no provision regarding certification of these individuals. These regulations clarify that at least one certified operator (as defined in the regulation) must conduct the fireworks display with the assistance of a sufficient number of authorized assistants (as defined in the regulation) to ensure the safe conduct of the fireworks display. Penal Law Section 405.00(2) provides that the permit application for a fireworks display must contain a verified statement from the applicant identifying the individuals who are authorized to fire the display, however firing the display is undefined in the statute. These regulations clarify that the firing of the display refers to the actions of the certified operator in issuing a signal to start, or halt, the ignition of fireworks, but does not include the actions of authorized assistants, including shooters, who ignite fireworks in response to such a signal.
4. Costs:
The cost to the certified party will be a one hundred and fifty dollar ($150) non refundable application fee which will entitle them to be certified for three years. They will also be required to submit to a criminal background check as part of the application process which will cost ninety four dollars and twenty five cents ($94.25). The total cost will be two hundred and forty four dollars and twenty five cents ($244.25) every three years.
Additionally, they will be required to demonstrate that they had training in safe handling and firing of pyrotechnic displays. Most employers currently provide this training to their staff on an annual basis.
The other requirement for certification is experience. Applicants will have to be able to demonstrate that they have practical experience by having worked on displays.
The final requirement will be that the applicant passes a written examination demonstrating that they do have the knowledge necessary to properly carry out their duties as a pyrotechnician.
5. Local Government Mandates:
This rule imposes no additional requirements on local governments; certification is the sole responsibility of the Department. Pyrotechnicians must still comply with local laws and obtain applicable permits and variances. For example, the City of New York requires Certificates of Fitness for firework displays (see 3 RCNY Section 113-01(e)(2)(B)).
6. Paperwork:
The paperwork requirements contained in the proposed rule are minimal. The Department will have to develop and complete new documents including application forms and letters to address certification determinations. The Department will also need to develop a data base to process the certificates of compliance.
7. Duplication:
No duplication of rules was identified. Rather, the general provision of this regulation does not supersede and incorporates by reference the current licensing criteria for crane operators, blasters and laser operators. As noted previously, applicants must still comply with local laws and obtain permits and variances in addition to obtaining a state issued license.
8. Alternatives:
The legislation requiring promulgation of the rule provided little room for any alternative to be considered. The amendment specifically requires pyrotechnicians to be certified. The alternatives provided by the Department involve different classifications depending on the applicants training and certification. The regulation requires basic requirements for certification recommended by various stakeholders.
9. Federal Standards:
There are no Federal Standards for pyrotechnic displays.
10. Compliance Schedule:
The statute becomes effective on October 4, 2009. The regulation contains provisions to allow individuals, who can otherwise demonstrate compliance with the requirements for certification, to be certified without having to sit for the exam. These individuals would have until April 1, 2010 to apply. Anyone applying after that date would be required to take a written exam.
These regulations become effective on August 1, 2009 and provide a procedure and requirements for obtaining a Pyrotechicians Certificate of Competence. The sections of the regulations requiring such certificate to conduct firework displays are not effective until October 4, 2009, the effective date for the statutory provisions requiring pyrotechnicians to be certified. However, these regulations provide the procedures and requirements for obtaining the Certificate of Competence prior to October 4, 2009.
Regulatory Flexibility Analysis
1. Effect of rule:
These regulations accomplish two purposes. One is to standardize the certification process for the various occupations that the Department is charged with regulating. The second is to adopt specific requirements that relate to the issuance of a Pyrotechnician's Certificate of Competence. The requirement for a Pyrotechnician's Certificate of Competence was enacted by Chapter 57 of the Laws of 2009. These regulations do not impose any new burdens on local governments. All of the requirements for review and issuance of certificates rests with the Department of Labor.
It is expected that the requirement to certify pyrotechnicians may have some economic impact on small businesses. The person in charge of each display will have to be certified by the Department. Currently there are approximately 79 businesses outside of New York City that are involved in pyrotechnic displays. Most of these would qualify as small businesses.
Chapter 57 amended the General Business Law, the Penal Law and the Labor Law. The amendments to the Penal Law now make it possible for pyrotechnic companies to put on "private" displays for things such as weddings etc. Prior to this change only public displays of fireworks were allowed. It is expected that this change will increase the number of shows being done on an annual basis thereby having a positive economic impact on these small businesses.
2. Compliance requirements:
There are no requirements for local governments associated with this rule. Small businesses will be required to hire at least one certified pyrotechnician to be in overall charge of each display.
3. Professional services:
The only required professional services associated with this regulation are those of the pyrotechnician created by the regulation.
4. Compliance costs:
The certifications issued under this regulation are individual occupational certifications. The cost of compliance is borne by the employee not the business or government. It is possible that there may be some positive impact on wages for these licensed individuals but that will remain to be determined by the marketplace.
5. Economic and technological feasibility:
There are no undue economic or technological requirements being imposed by this standard.
6. Minimizing adverse impact:
This rule will have no adverse impact on small businesses or local governments because it is an individual licensing requirement. These regulations provide a procedure for obtaining certification and the requirements for certification. The cost of the license is borne by the employee not the business or the government. The review and issuance of certificates for these individuals is the sole responsibility of the Department. Pyrotechnicians must still comply with local laws and obtain applicable permits and variances.
7. Small businesses and local government participation:
The Department has done extensive outreach with the industry while developing this regulation. It began two years ago with a public forum in Syracuse where members of the industry were invited to discuss reforms to the Departments existing regulations. At the conclusion of the meeting the Department requested that individuals be selected to act as industry representatives. These individuals worked with the Department in developing and revising the existing statutes and regulations. This is one of the changes developed by that workgroup.
Rural Area Flexibility Analysis
1. Types and Estimated Numbers:
It is expected that the requirement to certify pyrotechnicians may have some economic impact on rural areas. The person in charge of each display will have to be certified by the Department. Currently there are approximately 79 businesses outside of New York City that are involved in pyrotechnic displays. Most of these would qualify as small businesses.
2. Reporting, Recordkeeping and other Compliance Requirements; and Professional Services:
There are no requirements for local governments associated with this rule. Small businesses will be required to hire at least one certified pyrotechnician to be in charge of each display.
3. Costs:
The certifications issued under this regulation are individual occupational certifications. The cost of compliance is borne by the employee not the business or government. It is possible that there may be some positive impact on wages for these licensed individuals.
4. Minimize Adverse Impact:
This rule should have no adverse economic impact on rural areas.
5. Rural Area Participation:
In developing the proposed regulation, the Department sought assistance from the industry, which included rural areas. It began two years ago with a public forum in Syracuse where members of the industry were invited to discuss reforms to the Departments existing regulations. At the conclusion of the meeting the Department requested that individuals be selected to act as industry representatives. These individuals worked with the Department in developing and revising the existing statutes and regulations. This is one of the changes developed by that workgroup.
Job Impact Statement
1. Nature of impact:
The certifications issued under this regulation are individual occupational certificates. It is possible that there may be some positive impact on wages for these licensed individuals. The regulation requires that the person in charge of a pyrotechnic display be certified to ensure that they have the necessary training and experience to properly set up and carry out pyrotechnic displays. This certification requirement was enacted into law by Chapter 57 of the Laws of 2009 and is effective on October 4, 2009.
2. Categories and numbers of jobs or self-employment opportunities affected:
Currently, approximately 79 businesses in New York State are involved in pyrotechnic displays. Some are manufactures, some are display companies and some are a combination of both. These facilities are located across the state in rural areas as well as in proximity to urban area.
3. Regions of the state where there would be a disproportionate adverse impact:
There should be no adverse impact from these regulations; therefore, there will be no disproportionate impact.
