LAB-46-09-00003-P Ski Tows and Other Passenger Tramways

11/18/09 N.Y. St. Reg. LAB-46-09-00003-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 46

November 18, 2009

RULE MAKING ACTIVITIES

DEPARTMENT OF LABOR

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. LAB-46-09-00003-P

Ski Tows and Other Passenger Tramways

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Repeal of Part 32 and addition of new Part 32 to Title 12 NYCRR.

Statutory authority:

Labor Law, sections 27 and 202-c; and General Obligations Law, art. 18

Subject:

Ski Tows and Other Passenger Tramways.

Purpose:

To ensure that ski tows and other passenger tramways are designed, constructed, operated, and maintained in a manner that helps reduce danger and exposure to risk to passengers and maintenance and operational personnel.

Public hearing(s) will be held at:

1:00 p.m. and 4:00 p.m., Jan. 19, 2010 at Department of Labor, State Office Campus, Bldg. 12, Rms. A and B, Albany, NY.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Substance of proposed rule (Full text is posted at the following State website:www.labor.state.ny.us):

These regulations are being revised at this time at the request of the ski industry in New York. The proposed amendments repeal Part 32 in its entirety. This was done to facilitate the change in format that will take place with this newest edition of the regulations. The new Part 32 makes New York State regulations once again consistent with nationally accepted standards for design and installation of ski tows and passenger tramways. The standard has been incorporated by reference into the regulation and issued by the national standard organization, American National Standard for Passenger Ropeways-Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors-Safety Requirements (hereinafter Standards). The proposed amendments repeal Sections 32-1 (General Provisions) 32-2 (Ariel Tramways) 32-3 (Detachable Grip Aerial Lifts) 32-4 (Fixed Grip Aerial Lifts) 32-5 (Surface Lifts) 32-6 (Tows) 32-7 (Reserved) 32-8 (Conveyers) in their entirety and replace them with a shorter set of rules.

The proposed new sections of ICR 32 are summarized as follows:

Section 32.1 Title and citation. Administrative information about ICR 32.

Section 32.2 Application. Defines the scope of regulations and what they apply to as well as the statutory authority.

Section 32.3 Purpose and intent of Part. Defines the intent of the regulation and when this edition becomes effective. Also explains when regulations apply to existing equipment installed prior to the effective date of this edition.

Section 32.4 Definitions. This section provides a list of definitions used in the revised Code Rule. It incorporates definitions from the current ICR 32 and the ANSI B77 standard.

Section 32.5 Quality program. Lists quality program requirements for the design and construction of tramways.

Section 32.6 General requirement of safety. Requires that tramways not be operated with known defects and that all operations be conducted in a manner that will provide reasonable protection against personal injuries to employees and the public.

Section 32.7 Approval of materials and devices. That unless otherwise stated in the rule no special approvals by the Commissioner are required for use of devices and materials associated with tramways.

Section 32.8 Plans and specifications. Explains the requirements for plan submissions to the Commissioner and requires approval of the same by the Commissioner for new installations as well as major modifications of existing installations. Also defines what changes would be considered major modifications.

Section 32.9 Registration. Requires that all devices be registered with the Commissioner prior to operation. Explains the Commissioner's authority to suspend or cancel a registration.

Section 32.10 Personal injury report. Requires an operator to notify the Commissioner by the close of the next business day on any accident with a lift that resulted in a serious personal injury.

Section 32.11 Severability clause.

Section 32.12 Adoption of standards. Lists the nationally recognized standards that are applicable to the design, operation and maintenance of ski lifts.

Section 32.13 Adoption of ANSI B77 Standard. In the process of reviewing the ANSI B-77 Standard several exceptions to the requirements of the Standard were identified. The exceptions are provided in the context of the text of the B-77 Standard. These exceptions are requirements that were carried over from previous versions of Code Rule 32.

Text of proposed rule and any required statements and analyses may be obtained from:

Nancy Pepe, New York State Department of Labor, Building 12, State Office Campus, Room 509, Albany, NY 12240, [phone].

Data, views or arguments may be submitted to:

Lansing Lord, New York State Department of Labor, Building 12, State Office Campus, Room 157, Albany, NY 12240, [phone].

Public comment will be received until:

Five days after the last scheduled public hearing.

Additional matter required by statute:

ANSI B77

Regulatory Impact Statement

1. Statutory authority:

Labor Law Section 200(1) makes it the public policy of the State of New York to protect the health and safety of employees by ensuring that all machinery, equipment and devices are maintained efficiently. Section 202-c of Article 7 of the Labor Law authorizes the Commissioner to "make rules consistent with article eighteen of the general obligations law, guarding against personal injuries to employees and the public in the use and operation of ski tows, other passenger tramways and downhill ski areas."

2. Legislative objectives:

The intent of the Legislature was to ensure the health and safety of employees of ski resorts and the general public who frequent these areas. The Legislature has authorized the Commission of Labor to adopt, amend or repeal safety and health standards which provide reasonable and adequate protection to the lives, safety or health of employees and of persons lawfully frequenting a place of employment. It was the intent to establish a code and regulations to promote safety for all aspects of the ski industry.

These amendments fulfill these legislative objectives and are in accordance with the legislative objectives of Labor Law Section 27 and 202-c.

3. Needs and benefits:

These regulations are being revised at the request of the alpine ski industry in New York. The regulations address two key points: the design of these devices and their operation and maintenance. In crafting the regulations, considerations were given to the financial impact these changes could create.

All of the changes to the design requirements are for lifts that are to be built after the effective date of the new regulation. There are no new requirements or changes to existing requirements that would require a modification to existing equipment that is currently in compliance with Code Rule 32. When a ski area expands or upgrades its lifts, the new design requirements will enable the ski area to do so without incurring the added expenses of complying with the current New York specific regulations. By incorporating the national standards to a much greater degree, the proposed regulation simultaneously make compliance less complicated and costly and promotes implementation of the latest design features.

The revisions to Part 32 are needed to conform New York State regulations to national safety standards outlined in the American National Standard for Passenger Ropeways-Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors-Safety Requirements, (hereinafter referred to as the Standards). In developing the proposed amendments, the Department sought assistance from the National Ski Areas Association (NSAA) and Ski Areas of New York (SANY), which represent ski areas, architects, engineers, design consultants, construction managers and ski lift owners, and other organizations and businesses most affected by parts of the code under review. NSAA and SANY concluded that these recommendations would not increase costs and will actually reduce costs.

According to data compiled by the NSAA and SANY, New York State leads the nation in the number of ski areas. New York is fifth in the nation in skier visits with over an estimated 4,000,000 skier visits expected during 2009. The ski industry has an economic impact of over $1.1 billion on the upstate economy. The industry estimates that during 2007/2008 total wages and salaries paid to the 18,000 New York employees was $50 million. The bulk of the employment occurs during the winter months with 1,700 employees working full time year round.

The absence of consistency between current New York State regulations and the Standards increases construction costs in the form of higher consulting fees charged to the ski industry by architects and engineers. These professionals are accustomed to designing ski tows and passenger tramways in accordance with prevailing industry norms. The incorporation of the Standards into the code will eliminate this inconsistency and associated costs, thus lowering the overall cost of design and construction. The Standards themselves also emphasize flexibility, recognizing the need for ski tows and passenger tramway owners to design and configure their passenger tramways in ways that respond to an industry which is characterized by innovation and ongoing change.

It is the purpose and intent of this Part to require reasonable and proper guarding against personal injuries to employees and the public in the use and operation of ski tows and other passenger tramways. It is recognized that certain dangers and risks are inherent in machines of this type and their operation. It is also recognized that inherent and other risks or dangers exist for those who are in the process of approaching, loading, unloading, and departing from passenger tramways. This rule is intended to result in passenger tramways that are designed, constructed, operated, and maintained in a manner that helps reduce danger and exposure to risk to passengers and maintenance and operational personnel. It is intended to be construed accordingly and to be read, construed and applied with Sections 27, 200 and 202-c of the Labor Law.

4. Costs:

To impacted parties: All of the proposed changes to the regulations are for lifts to be built. These changes will allow new lifts to be constructed at lower costs to the ski areas since no special New York requirements will have to be met, or special approvals requested for new installations. The operational and maintenance requirements for existing ski lifts will remain the same as they have been in the past and are consistent with national standards for ski lift operation.

To the Department of Labor: There is no additional administrative or inspection cost to the Department of Labor.

5. Local government mandates:

There are 7 ski centers that are operated by villages or towns. They are subject to the same provisions of the rule that privately owned ski centers are. This rule imposes no mandates on local governments for inspection and enforcement. This remains the sole responsibility of the Department. This rule should have no adverse economic impact on local governments. The rule will simplify and streamline existing regulations which will enable new lifts to be built at a lower cost by using national standards and fewer New York specific standards.

6. Paperwork:

This regulation will not require any additional paperwork.

7. Duplication:

None.

8. Alternatives:

Overall, there are no viable alternatives to the design requirements set forth in the proposed rule. The rule reinforces basic nationally accepted engineering requirements for the design of ski tows and other passenger tramways. These standards have been adopted by consensus by the various stakeholders in the industry. If the regulation is kept as is, all ski lift facilities would continue to pay for the extra costs that are created by New York having a special standard.

In reviewing the specifics of the standards the Department, in consultation with the Passenger Tramway Advisory Council, did make some changes to the operational sections of the standards.

For example, under the current ANSI Standard, all lifts and tows are now required to have hardwired voice communication between the top and bottom terminals. This requirement addresses a problem that occurs in areas with multiple lifts, where conversations could be confused and instructions misunderstood. While the vast majority of the ski areas in New York have already employed this technology, some smaller municipal locations have not; it was decided to allow these existing locations to continue using radio phones.

Another example of changes to the operational part of the ANSI regulation is the approval of evacuation plans. Under ANSI, all facilities with aerial lifts are required to have written evacuation plans and to conduct at least one test drill each year. The Department, in conjunction with the Tramway Council, decided many years ago that in order to ensure that every area had a plan, the plan would have to be approved by the Department and the Department would witness at least one drill in order to ensure the plans and drills were adequately protecting the safety of employees and the public.

9. Federal standards:

None

10. Compliance schedule:

Existing installations should already be in compliance. No provision of this Part as amended requires or is intended to require any modifications to any passenger tramway whose plan review was completed prior to the effective date of this code, and which complies with prior editions or versions of this Part or with variations granted and in effect.

Operators will be required to comply with standards after the effective date of the standard. Existing passenger tramways, when removed and reinstalled, shall be classified as new installations.

Regulatory Flexibility Analysis

1. Effect of rule:

This rule change was undertaken at the request of the ski industry in New York. The major change accomplished by the proposed amendments would be to make New York State regulations more consistent with the latest version of the national safety standards outlined in the American National Standard for Passenger Ropeways-Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors-Safety Requirements, (hereinafter referred to as the Standards). The absence of consistency between current New York State regulations and the Standards increases construction costs in the form of higher consulting fees charged by architects and engineers. These professionals are accustomed to designing facilities in accordance with prevailing industry norms. The incorporation of much of the Standards into the code will eliminate this inconsistency and these associated costs, thus lowering the overall costs of design and construction. The Standards themselves also emphasize flexibility, recognizing the need for ski tows and passenger tramway owners to design and configure their passenger tramways in ways that respond to an industry which is characterized by innovation and ongoing change.

All of the locations are either alpine ski areas, snow tubing operations or amusement parks. Six of the locations are operated primarily as winter recreation facilities by local towns or villages. One other facility, the McCauley Mountain is a commercial operation operated by the Town of Webb. Three facilities are operated by State agencies or authorities, Gore Mountain, Lake Placid and Belleayre Mountain. The remaining fifty-seven (57) locations are privately owned and operated. All of these privately owned facilities are considered small businesses.

2. Compliance requirements:

Thus, the proposed amendments do not impose new design requirements on those facilities and design and consulting firms that are small businesses, nor on local governments that run ski lifts or passenger tramways and they may actually lower the costs of doing business and be conducive to the implementation of cost-saving innovations by such entities.

3. Professional services:

New York requires that licensed professional engineers are used for the construction of new aerial tramways. This requirement has been in place for over forty years.

4. Compliance costs:

There are no changes in the cost of ongoing maintenance for existing aerial tramways. The cost of maintenance of lifts to be installed are driven mainly by the particular design and terrain where the device is to be used and other market factors. The regulations require that owners maintain devices in compliance with manufacturer's maintenance requirements. This requirement is carried out equally by small business, local municipalities or State agencies that operate these devices. The design and components chosen are the factors impacting cost, not the regulation. There are no additional costs to the Department of Labor.

5. Economic and technological feasibility:

There are no undue economic or technological requirements being imposed by this Standard. The new regulations should make it easier to achieve compliance since the technology being used is the same across the country. Economies of scale should help to control costs for new installations.

6. Minimizing adverse impact:

This rule should have no adverse economic impact on small business or local governments. It will help to control the costs of new installations by making State regulations consistent with nationally accepted standards for design and installation of aerial tramways. This will reduce potential extra costs that could be created by having a New York only special standard.

In crafting the regulations considerations were given to the financial impact that some changes could have on these small businesses. For example, language was retained that would allow existing tramway installations to retain their current communication systems instead of installing new ones.

7. Small businesses and local government participation:

In developing the proposed amendments, the Department sought assistance from the National Ski Areas Association (NSAA) and Ski Areas of New York (SANY), which represented ski areas, architects, engineers, design consultants, construction managers and ski lift owners and other organizations and businesses most affected by parts of the code under review. NSAA and SANY concluded that they would not increase costs. As noted in the foregoing narrative on cost impact, it is expected that the proposed changes will actually reduce costs.

Department staff deals with architects, construction managers and ski lift planners in the interpretation and application of construction regulations to individual projects. The proposed amendments reflect this knowledge as well as the expertise of NSAA and SANY.

Rural Area Flexibility Analysis

1. Types and estimated numbers:

With the exception of the Roosevelt Island Tramway, all ski area locations are in rural upstate areas. All of the locations are either alpine ski areas, snow tubing operations or amusement parks. Six of the locations are operated primarily as winter recreation facilities by local towns or villages. One other facility, the McCauley Mountain is a commercial operation operated by the Town of Webb. Three facilities are operated by State agencies or authorities, Gore Mountain, Lake Placid and Belleayre Mountain. The remaining fifty-seven (57) locations are privately owned and operated.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

The proposed rule does not impose any additional reporting, recordkeeping or other compliance requirements on ski lifts or passenger tramways in rural areas.

Thus, the proposed amendments do not impose new compliance requirements on those facilities and design and consulting firms that are in rural areas, and they may actually lower the costs of doing business and be conducive to the implementation of cost -saving innovations by such entities.

3. Costs:

This rule will help to control the costs of new installations by making State regulations consistent with nationally accepted standards for design and installation of aerial tramways. This will reduce potential extra costs that could be created by having a New York only special standard.

4. Minimizing adverse impacts:

This rule should have no adverse economic impact on rural areas. It will help to control the costs of new installations by making State Regulations consistent with nationally accepted standards for design and installation of aerial tramways. This will reduce potential extra costs that could be created by having a New York only special standard.

5. Rural area participation:

In developing the proposed amendments, the Department sought assistance from the National Ski Areas Association (NSAA) and Ski Areas of New York (SANY), which represented rural ski areas, architects, engineers, design consultants, construction managers and ski lift owners and other organizations and businesses most affected by parts of the code under review. Among the factors which influenced the recommendation of these regulatory amendments by NSAA and SANY were that these amendments would not increase the costs of design, construction, or operation of ski trams. As noted in the foregoing narrative on cost impact, it is expected that the proposed changes will actually reduce costs.

Job Impact Statement

No job impact statement is submitted with this notice because it is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs and employment opportunities. These revisions to Part 32 are to bring New York State regulations in conformance with national standards and these changes will not reduce or affect the need for employees at any of the ski resorts throughout the state.