LAB-26-09-00007-A Provision of Safety Ropes and System Components for Firefighters at Risk of Being Trapped at Elevations

12/2/09 N.Y. St. Reg. LAB-26-09-00007-A

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 48

December 02, 2009

RULE MAKING ACTIVITIES

DEPARTMENT OF LABOR

NOTICE OF ADOPTION

 

I.D No. LAB-26-09-00007-A

Filing No. 1281

Filing Date. Nov. 12, 2009

Effective Date. Dec. 02, 2009

Provision of Safety Ropes and System Components for Firefighters at Risk of Being Trapped at Elevations

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

Action taken:

Addition of Section 800.7 to Title 12 NYCRR.

Statutory authority:

Labor Law, art. 2, sections 27 and 27-a; title 7, section 200

Subject:

Provision of safety ropes and system components for firefighters at risk of being trapped at elevations.

Purpose:

To insure that firefighters are provided with appropriate ropes and system components for self-rescue and emergency escape.

Text or summary was published

in the July 1, 2009 issue of the Register, I.D. No. LAB-26-09-00007-EP.

Final rule as compared with last published rule:

No changes.

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

Thomas McGovern, NYS Department of Labor, State Office Campus, Bldg. 12, Rm. 509, Albany, NY 12240, [phone], email: [e-mail]

Assessment of Public Comment

1. On May 15, 2009, the Department received a letter from Hinman Straub, Attorneys at Law, 121 State Street, Albany, New York 12207-1693 (518-436-0751) as representatives of the New York State Professional Fire Fighters Association (NYSPFFA) stating their opposition to "any expansion of the types of devices or other equipment that may be considered acceptable," arguing that "the original intent of this law was to be very specific in providing safety ropes and system components. To now expand the types of equipment is contrary to that intent an otherwise not acceptable to the NYSPFFA."

It is the Department's contention that there has been no such expansion of types of devices or equipment. All provisions of the regulation are based either in the statutory language of Labor Law § 27-a(4)(c) or, as required by that statute, in the adoption of "the codes, standards and recommended practices promulgated by the most recent edition of National Fire Protection Association 1983, Standard on Fire Service Life Safety Rope and System Components" (NFPA 1983 Standard).

2. On or about July 14, 2009, the Department received a letter from Bond, Schoenick & King, PLLC, 111 Washington Avenue, Albany, New York 12210-2211 (518-533-3000) as representatives of the New York State Association of Fire Chiefs, Inc. (NYSAFC) disputing the statements in the July 1, 2009 New York Register "that the Proposed Regulation was prepared following consultation and input from and meetings with the Executive Director of NYSAFC and the Counsel for the Fireman's Association of the State of New York ("FASNY")" by stating that while such organizations "spoke to the Department concerning the Emergency Regulations, they were not consulted with or provided opportunity to comment on the Proposed Regulations."

The Department denies these statements.

3. On August 14, 2009, the Department received a second letter from Bond, Schoenick & King, PLLC, also on behalf of NYSAFC, alleging that the Proposed Regulation, "is extremely vague, imprecise, ambiguous and unclear," that it is "technically flawed and patently inconsistent with the customary and recommended standards and practices of the firefighting community," and "gives no fundamental guidance or direction as to how the fire service should comply with same." The August 14, 2009 letter goes on to make the specific allegations that the use of emergency escape ropes is not a safe option, that the requirement for a risk assessment contains no objective criteria with which to measure "reasonable risk," the form of the written assessment, that the NFPA 1983 Standard should not be used to determine the creation or proper use of emergency escape systems or the adequacy of combining System Components, and that the Proposed Regulation contains no guidance on the form of proper training.

Upon information and belief, all of these arguments and more were raised by the NYSAFC in its Article 78 proceeding against the Department in the Supreme Court, Albany County, Index No. 9744-08. The Department has made a Motion to Dismiss this proceeding on the grounds, among other things, that the requirements set forth in the Proposed Regulation are identical to those set forth in statute, that the use of emergency escape ropes is required by statute, that the Court of Appeals has warned the Department of Labor against using Section 27-a to "second-guess" decisions of persons such as fire chiefs in balancing the risks and hazards inherent in certain employment against protection of the public (see Williams v. City of New York, 2 NY2d 352, 367-368 (2004)), and that the adoption of the NFPA 1983 Standard is mandated by statute. The Motion to Dismiss was fully submitted on April 8, 2009 and the parties are awaiting a decision.