LAB-26-09-00007-E 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-E

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 48

December 02, 2009

RULE MAKING ACTIVITIES

DEPARTMENT OF LABOR

EMERGENCY RULE MAKING

 

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

Filing No. 1282

Filing Date. Nov. 12, 2009

Effective Date. Nov. 12, 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

Finding of necessity for emergency rule:

Preservation of public safety.

Specific reasons underlying the finding of necessity:

To give fire departments sufficient time to conduct risk assessments regarding the types of safety ropes and rescue system needed, to purchase needed equipment, and to train firefighters in their effective use before the date of the statutory requirement.

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 of emergency rule:

Section 800.7

Emergency Escape and Self Rescue Ropes and System Components for Firefighters

(a) Title and Citation: Within and for the purposes of the Department of Labor, this part may be known as Code Rule 800.7, Emergency Escape and Self Rescue Ropes and System Components for Firefighters, specifying the requirements for safety ropes and associated system components.

(b) Purpose and Intent: This rule is intended to ensure that firefighters are provided with necessary escape rope and system components for self rescue and emergency escape and to establish specifications for such ropes and system components.

(c) Application: This part shall apply throughout the State of New York to the State, any political subdivision of the State, Public Authorities, Public Benefit Corporations or any other governmental agency or instrumentality thereof employing firefighters within the meaning of § 27-a of the Labor Law.

This Part shall not apply to such employers located in a city with a population of over one million.

Section 800.7(d)

Definitions. Within this part, the following terms shall have the meanings indicated:

(1) "System Components" means safety harnesses, belts, ascending devices, carabiners, descent control devices, rope grab devices, and snap links.

(2) "Escape Rope" means a single purpose, single use, emergency escape (Self-rescue) rope.

(3) "Interior Structural Fire Fighting" means the physical activity of fire suppression, rescue or both, inside of buildings or enclosed structures which are involved in a fire situation beyond the incipient stage.

(4) "Interior Structural Fire Fighter" means a firefighter who is designated by their employer to perform interior structural firefighting duties in an immediately dangerous to life and health (IDLH) atmosphere and is medically qualified to use self-contained breathing apparatus (SCBA) as defined in 29 CFR 1910.134.

(5) "Entrapment at Elevations" means a situation where a firefighter finds the normal route of exit is made unusable by fire, or other emergency situation, that requires the firefighter to immediately exit the structure from an opening not designed as an exit, that is above the ground floor and at an elevation above the surrounding terrain which would reasonably be expected to cause injury should the firefighter be required to exit.

Section 800.7(e)

Specifications for Escape Ropes and System Components

Escape ropes and system components provided to firefighters shall conform to the requirements of "The National Fire Protection Association Standard 1983, Standard on Fire Service Life Safety Rope and Equipment for Emergency Services" in effect at the time of their manufacture. Escape ropes and system components purchased after the effective date of this Part shall conform to the 2006 edition (NFPA1983- 2006) of such standard.

Section 800.7(f)

Risk Assessment and Equipment Selection

(1) Each employer who employs firefighters shall develop a written risk assessment to be used to determine under what circumstances escape ropes and system components will be required and what type will be required to protect the safety of firefighters in its employ. In performing the assessment, the employer shall:

(i) Identify the types and heights of buildings and other structures in the area the firefighters are expected to work. Such area shall include the regular scope of the fire district or other area covered by the fire department in question as well as any other districts or communities to which the fire department provides mutual aid with a reasonably predictable frequency.

(ii) Assess the standard operating procedures followed by the department with regard to rescue of firefighters from elevations.

(iii) Identify the risks to firefighters of being trapped at an elevation during structural fire fighting operations given the types of buildings or other structures located in the area(s) in which firefighters are expected to work. Identification of the risk in question shall include an assessment of:

(a) the extent to which standard operating procedures already in place will mitigate the risks identified;

(b) the type of escape ropes and system components that will be necessary to protect the safety of firefighters if operating procedures do not sufficiently mitigate the risk.

(2) Should the risk assessment establish that firefighters employed by the department performing interior structural firefighting are reasonably expected to be exposed to the risk of entrapment at elevations, the employer shall provide to each interior structural firefighter in its employ a properly fitted escape rope and those system components which meet the specifications for such rope and system components set forth in Section 800.7(e) and which would mitigate the danger to life and health associated with such risk.

Section 800.7(g)

Training

(1) The employer shall ensure that each firefighter who is provided with an escape rope and system components is instructed in their proper use by a competent instructor. Instruction shall include the requirements of paragraph (h) of this Part and the user information provided by the manufacturer as required by NFPA 1983 Chapter 5.2 for each rope and system component.

(2) Instruction shall include hands-on use of the equipment in a controlled environment.

(3) A record of such instruction including the name of the individual being trained, the name of the individual delivering the training, and the date on which the training was provided shall be maintained by the employer until such time as the firefighter is no longer employed by the employer or the employer delivers a subsequent training on this topic, whichever comes first.

Section 800.7(h)

Employer Duties. In addition to the duties set forth in Parts 800.7(f) and (g), employers covered by this Part shall have the following duties:

(1) To ensure the adequacy of the safety ropes and system components, the employer shall routinely inspect and ensure that:

(i) Existing safety ropes and system components meet the codes, standards, and recommended practices adopted by the Commissioner;

(ii) Existing safety ropes and system components still perform their function by taking precautions to identify any of their limitations through reasonable means, including, but not limited to:

(a) Checking the labels or stamps on the equipment; and

(b) Checking any documentation or equipment specifications; and

(c) contacting the supplier or approval agency.

(iii) Firefighters are informed of the limitations of any safety rope or system components;

(iv) Firefighters are not allowed or required to use any safety rope or system components beyond their limitations;

(v) Existing or new safety ropes and system components have no visible defects that limit their safe use;

(vi) Safety ropes and system components are used, cleaned and maintained according to the manufacturer's instructions;

(vii) Firefighters are instructed in identifying to the employer any defects the firefighter may find in safety ropes and system components; and

(viii) Any identified defects are corrected or immediate action is taken to eliminate the use of the equipment by:

(a) Ensuring that escape rope and system components with defects which are repairable are tagged as unsafe and stored in such a manner that they cannot be used until repairs are made;

(b) Ensuring that escape rope and system components that cannot be repaired are immediately destroyed or rendered unusable as an escape rope and system components; and

(c) Ensuring that any escape rope that has been utilized under load for the purpose of self rescue / emergency escape is immediately removed from service, destroyed, or rendered unusable as an escape rope and immediately replaced.

(2) The employer's routine inspection cycle required by this paragraph shall be based upon the volume of activity the Department undertakes but, in no case, any less frequently than once each month.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. LAB-26-09-00007-EP, Issue of July 1, 2009. The emergency rule will expire December 2, 2009.

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

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

Regulatory Impact Statement

Statutory Authority: The legislature placed the amendment in Article 2 Section 27a of the Labor Law, Public Employee Safety and Health Act. Section 4 of the Act directs the Commissioner to promulgate rules to provide for the enforcement of the amendment and require that the latest edition of the National Fire Protection Association's standard on Life Safety Ropes and System Components be adopted.

The Commissioner has broad authority to promulgate rules and regulations under New York State Labor Law Article 2, Section 27a; Article 2, Section 27; Article 7, Section 200.

Legislative Objective: The intent of the Legislature was to insure that firefighters are provided with the appropriate ropes and system components to allow self-rescue from upper stories of buildings should they become trapped. The Legislature also specified the national consensus standard to which life safety ropes and system components must conform as well as the testing criteria that must be followed by the manufacturer.

Needs and Benefits: Firefighters occasionally become trapped on upper stories during fire suppression activities. Many times the firefighter is rescued by ladders or aerial apparatus; however, there are cases where the trapped fire fighter cannot be reached or the rapid development of the emergency situation does not allow for rescue by other means and those cases could result in death or serious injury. One such case involved 6 trapped firefighters who were forced to jump from a fourth story. Four were seriously injured and two died of their injuries. Some of these injuries and deaths were attributable, in part, to either the lack of rescue ropes or the failure of the rope involved.

Costs: The ropes and system components needed to equip a firefighter for self rescue can be obtained for as little as $60.00. New York City has provided each of its firefighters with a system that costs more than $400.00. The proposed rule contains no minimum cost threshold. This allows the employer to take appropriate steps to reduce the cost of providing the equipment required by the rule, so long as the employer provides equipment appropriate for the risks identified in its risk assessment. Moreover, the equipment need only be provided to interior structural firefighters who work in areas where they could become trapped. Employers need not purchase or provide ropes and rescue devices to apparatus drivers and fire policemen or other employees not expected to perform interior structural firefighting.

Additional costs would be incurred for training in instructing employees in the use of the selected equipment and self rescue techniques. These costs will vary but as an example of the potential costs associated with the rule, one manufacturer sells a system which costs $400.00 while the training in the system use is $250.00 per person. On the other hand, the manufacturer will offer train the trainer instruction to a Fire Department Trainer for a one time cost; this instruction will then permit the Department to train its affected employees at a much lower cost than it would incur if it purchased the manufacturer's training for each of its members. Also, as mentioned elsewhere in this rulemaking, fire departments may also consider other methods to reduce training costs such as using in-house trainers and consolidating training classes with fellow departments to maximize training resources.

Paperwork: The paperwork requirements contained in the proposed rule are minimal. The employer must certify that the hazard assessment has been completed and must maintain that document. The employer must also keep training record identifying all employees trained under the rule. Since other standards and laws already require that training records be maintained, this provision will have minimal impact on the employer.

Local Government Mandates: Fire protection is a function of local government and as such the monetary burden of providing this equipment will be borne by the local government responsible for fire protection. The legislature did not provide funding for mandate relief.

Duplication: This rule does not duplicate any state or federal regulations.

Alternatives: The legislation requiring promulgation of the rule provided little room for any alternative to be considered. The amendment specifically requires equipment that meets a defined national consensus standard for specific purposes. The alternatives provided by the Department involve the judgment of the Department with regard to the risks faced by its employees performing interior structural firefighting and the ropes and equipment needed to mitigate that risk. The agency determined that the employer would be best suited to survey the hazards in the local protection area and select the equipment based upon the hazards firefighters would be exposed to, as opposed to imposing its own stringent requirements specifying the type of equipment needed.

Federal Standards: There are no federal standards with like requirements.

Compliance Schedule: The provisions of the amendment are effective on May 18, 2008 and employers will be required to be in compliance by November 1, 2008. The effective date of the rule will be upon adoption. The compliance aspects are not difficult and under normal inspection protocols an employer would be given 30 days to comply.

Regulatory Flexibility Analysis

Effect of the Rule: The proposed rule does not apply to small businesses. The rule will apply to all local governmental entities that employ a firefighter except for the City of New York. Not all governmental entities employ firefighters. With regard to fire departments that will be affected by this rule, the rule requires them to conduct an assessment of the potential risk of entrapment at elevations faced by their employees, identify those employees subject to this risk, obtain protective equipment for these employees, and train them in its proper use. There should be little or no cost to performing the risk assessment. Basically a fire department must identify a responsible party to determine whether there are buildings or other structures within the district or in neighboring districts where the department provides mutual aid firefighting services which are of sufficient height that they pose a risk of entrapment at elevations. The individual must then identify those firefighters within their department who perform interior structural firefighters to determine how much equipment needs to be purchased, and must then review available equipment and determine which equipment to purchase. This process should, at most, take a couple of hours to conduct. It should ideally be conducted by an officer of the fire department, not a consultant, so no professional services should be needed. The most significant potential effect of the rule will be the costs associated with purchasing protective equipment. In some areas of the state, compliance costs are expected to be less than $100.00 per firefighter. For all governmental entities that do employ firefighters, the effect of the rule would be limited by the results of the hazard assessment conducted by the fire department; costs would accrue depending on the nature of the hazard identified and the number of firefighters that would require the protective equipment addressed in the rule. Further details regarding potential costs are discussed below under the section entitled "Compliance Costs." Local Governments with hazards requiring the provision of protective equipment and training for firefighters may collaborate on the training and use quantity buying practices to reduce costs. Training requirements could also be met by utilizing free training provided by the Department of State, Office of Fire Prevention and Control, although that agency does not have the resources to train every firefighter affected by this rule.

Compliance Requirements: The enabling legislation requires that each employer that employs firefighters must provide emergency escape rope and system components appropriate for the risk to which firefighters in their employ are exposed. To determine this, the employer must conduct an assessment of the types of structures in the fire protection area, determine what the hazard to employees would be and then provide the appropriate harnesses, ropes and equipment so that employees may perform self rescue should they become trapped at an elevation expected to cause injury should the individual be required to jump. The law also requires that the employer provide training in the use of the provided equipment and inspect and assure the safety of the equipment. The authorizing legislation was also specific as to the design and testing of the provided equipment citing a national consensus standard, The National Fire Protection Association Standard 1983, "Life Safety Rope and Equipment for Emergency Responders". The law requires the commissioner to adopt the latest edition which is the 2006 edition. NFPA 1983-2006 established the design, construction and testing requirements for emergency escape and life safety ropes and system components and all such equipment must bear a label attesting to its conformance.

To meet the statutory compliance requirements the proposal includes the following steps that the employer must take:

1. Conduct a hazard assessment to establish the risk.

2. Identify employees subject to the risk.

3. Select the appropriate ropes and system components.

4. Provide properly fitted ropes and system components (many belts and harnesses are sized) to each employee at risk.

5. Train each employee in the use of the selected rope and system components.

6. Inspect the ropes and system components at least once each month to assure they are safe for use.

Professional Services: Training on the required subject matter is provided free of charge by the Office of Fire Prevention and Control. OFPC classes are limited and would not meet the needs of all employers. There are also many experts in the field who provide rope training and smaller employers could collaborate and share the expense of training. Under provisions of the executive law, career departments must have a Municipal Training Officer who would be capable of providing the training. See New York Executive Law § 156(6).

Compliance Costs: Purchase of the ropes and system components would be relatively inexpensive in suburban fire protection areas. As the height and complexity of structures increase, the equipment will become more expensive and the required training more comprehensive. Many suppliers can provide ropes and attachment devices at a price range from $ 20.00 to $50.00. Harnesses or escape belts can run from $50.00 to $100.00. On the high end of the cost spectrum, the system developed and used by FDNY costs approximately $400.00 per firefighter and the Manufacturer (Petzl) requires that the employer participate in their training program at $250.00 per person. They will provide train-the-trainer services.

In an effort to estimate the cost of compliance with the proposed rule, the Department contacted three fire departments of different size. A suburban volunteer department purchased a harness for $150.00 which is suitable for not just emergency escape but for other technical rope rescues that the department performs. The Chief stated that he had purchased escape rope in bulk and cut it into prescribed length. He estimates that the rope cost about $30.00 per member. He also purchased "Crosby Hooks" (an anchoring device designed for this purpose) at $40.30 each. He estimates that it cost $230.30 to equip each member with individual equipment assigned to them. 50 sets were purchased for a total of $11,015.00. Since the Chief and one other member are OFPC Level 2 instructors certified to teach rope work no cost was incurred for training.

Albany Fire Department, a career fire department, reports that after conducting a risk assessment they chose a "Manufactured System" which costs $410.00. The Fire Department Training Division will be trained by FDNY in the use of the system. Additional costs will be incurred in sending the trainers to NYC and time away from duty for each firefighter to receive training. Albany FD has opted to issue each firefighter a system for their exclusive use. They will require 260 sets at a cost of $106,600.00. The City has applied for a grant to finance the cost. Outside of NYC there are an estimated 5500 career firefighters in NYS. Following Albany FD's assessment of the risks (which is representative of the majority of areas covered by career fire departments), the statewide cost could be $2,255,000 for equipment alone.

On the other hand, a volunteer fire department in a rural area consisting of one and two story homes and agricultural buildings conducted a risk assessment and determined that a Belt, 30 feet of rope, and two carabineers were all that was necessary. The department already has a number of harnesses which are serviceable and utilized for high angle rescue. These harnesses will be issued to interior structural firefighters at no additional cost. The cost of the escape rope was set at $30.00, and two carabineers at $8.99 each. The rope and the Carabineers will be attached to the firefighters' airpacs. This Department has 12 airpacs. Training in rope work has consistently been provided by a member who is certified to teach rope work. As a result, this department can be adequately equipped for $552.00.

Since the determination of what equipment is necessary under the rule and the numbers of firefighters who will need the equipment will be based on the department assessment, such figures will be inexact. However, other potential costs under the rule are standardized, for example, the requirement that the equipment purchased meet the NFPA standards. If each local government bought one copy of the NFPA Standard at $34.50 per copy, the cost would be $55,441.50.

Economic and Technological Feasibility: The emergency regulation does not impose any new technological requirements. Economic feasibility is addressed above under compliance costs.

Minimizing Adverse Impact: The regulation is necessary to implement Labor Law, Section 27-a(4)( c), as enacted by chapter 433 of the Laws of 2007 and amended by chapter 47 of the Laws of 2008, and to that extent, does not exceed any minimum State standards. Section 27-a(4)( c) requires the Commissioner to adopt the codes, standards and recommended practices promulgated by the most recent edition of the National Fire Protection Association 1983, Standard on Fire Service Life Safety Ropes and System Components, and as are appropriate to the nature of the risk to which the firefighter shall be exposed. This regulation has been carefully drafted to minimize the potential impact of the statute by allowing employers to assess risks based upon individual needs of their fire departments, by identifying those firefighters who are subject to such risk, and by identifying the types and quantity of equipment necessary to address the risk. Once the risk assessment has been performed, the regulation requires distribution of ropes and rescue equipment only to those interior structural firefighters who the assessment identifies as being at risk of entrapment. Moreover, the regulation requires that written training records be made available to the Department only upon request, limits required hands-on training only to those firefighters identified as being at risk through the risk assessment, and limits the inspection of the life safety rope systems to one time each month. These requirements help minimize potential adverse impacts. For example, if the proposal required every fire fighter to be provided equipment and undergo training, costs and record keeping requirements would have increased; if inspection was required more than once a month, it may have been unnecessarily burdensome, if less than once a month, it may have compromised the suitability of the equipment or the safety of the firefighters.

Small Business and Local Government Participation: This regulation will have no impact on small business. The regulation applies to all governmental entities that employ a firefighter. This rule reflects input obtained through consultation with the Executive Director of the New York State Association of Fire Chiefs and the NYS Department of State, Office of Fire Prevention and Control (OFPC). An initial meeting was held in the summer of 2007 and corrected or improved copies of the proposed rule were circulated among the agencies for consensus. The Proposed rule was also reviewed by the Department of State Counsel and their comments were incorporated into the proposed rule. Input was also solicited from the NYS Professional Firefighters Association, the NYS AFL CIO, and the Counsel for the Firemen's Association of the State of New York. The Department's Public Employee Safety and Health program staff also conducted outreach and information sessions at a dozen different meetings of fire departments and fire-related associations around the state and feedback received at these sessions was also considered by the Department in arriving at this final language.

The Department also posted the proposed rule on the Division of Safety and Health web page and filed it as an emergency rule.

Comments received through all these outreach efforts primarily requested that the document include direction to employers with regard to the selection of appropriate equipment and with regard to the identification of employees who might be at risk of entrapment such that they would require ropes and system components. As a result of these comments, the rule was altered to include additional guidance on conducting a risk assessment and the definitions were changed to make it clear who would need to be equipped and what job duties would require ropes and system components.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The rule will apply to all public employers who employ firefighters. As many as 800 employers in rural or suburban areas will be affected by this rule.

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

The rule will require the employer to maintain training records to show that the firefighters have been trained. Employers are already required to maintain training records by other rules such as the OSHA requirements promulgated under 12NYCRR Part 800. The proposed rule does not appear to impose an additional recordkeeping burden on the employer and will require a minimum amount of effort to comply. The training record must be maintained until the training is repeated, for a period of one year.

Compliance with the overall rule will be less and less burdensome as the size of the employer decreases. The employer must perform a hazard assessment to determine the level of risk to which its employees are exposed and use that information to select the appropriate equipment to be provided. Depending on the height and types of structures in the area where the employer provides fire protection, the equipment could be a little as a rope, belt, and attachment devices.

The employer must also train employees in the techniques of self rescue. Many Fire Departments have the expertise in-house to provide this service, particularly in rural areas where building size and configurations may limit the risks addressed by the rule. Moreover, in rural areas rope work is part of high angle rescue work which a number of fire departments in mountainous areas provide. Individuals trained in high angle rescue techniques would require little or no extra training to meet the requirements of this proposed rule.

Training provided by the State Office of Fire Prevention and Controlalso covers the criteria involved. However, this office does not have sufficient staff resources to provide the training on a statewide basis. Some rope and rescue system manufacturers will provide training in their equipment; there will typically be a cost associated with this service, however.

Another option open to employers is to group together and hire a professional trainer to provide a train-the-trainer course for individuals from a number of departments who would then train the members of their own department. This method would make the expense of hiring a contractor a shared expense.

3. Costs:

There are two primary areas of cost imposed by the rule: the cost of purchasing and maintaining the equipment and the cost of providing the required training. The cost of the equipment would fluctuate by department, depending upon the risks identified in the risk assessment conducted by the Department and the equipment needed to address the risk. Each firefighter who is at risk of entrapment at elevation must be provided with properly fitted (belts and harnesses come in different sizes) self-rescue rope and other components such as a belt and caribiners. A rural fire department employer could reasonably outfit each employee covered by the rule for as little as $100.00; if employers were to coordinate purchases and buy these items in bulk that cost could be reduced substantially. We should note that some of the manufactured systems cost as much as $400.00. In most rural areas such expensive systems should not be necessary.

Costs associated with the provision of training in systems are discussed above. If training is provided in-house, costs would be minimal or none at all. A professional trainer could be provided by a manufacturer "free of charge" if the employer purchases a sufficient number of units of equipment. [Note: although this is classified as a free service, it is really a service whose cost is included in the equipment purchase cost.] If the professional trainer's services are not provided along with the purchase, the charges for the trainer's time could range up to $500.00.

4 Minimizing adverse impact:

The only adverse impact resulting from the proposed rule are the costs associated with compliance. As discussed previously, covered employers can try to minimize such costs through coordination with other fire departments to purchase equipment in bulk and through train the trainer sessions which will allow one or more members to deliver the training to their fellow firefighters.

5. Rural area participation:

The proposed rule was posted on the department web site along with a contact. Numerous emails and phone calls were taken during the 6 months it was posted.

Meetings were held with employer groups such The New York State Association of Fire Chiefs and Regional Fire Administrators from around the state. The rule was discussed with the Counsel for The Firemen's Association of the State of New York.

Meetings were also held with representatives of the Office of Fire Prevention and Control and with Department of State Counsel.

Comments from these meetings and contacts were used to develop the rule.

Job Impact Statement

This rule concerns the provision of safety ropes and system components for public sector Fire Fighters. It is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs and employment.