[Federal Register Volume 89, Number 24 (Monday, February 5, 2024)]
[Proposed Rules]
[Pages 7774-8023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28203]
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Vol. 89
Monday,
No. 24
February 5, 2024
Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1910
Emergency Response Standard; Proposed Rule
Federal Register / Vol. 89 , No. 24 / Monday, February 5, 2024 /
Proposed Rules
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. OSHA-2007-0073]
RIN 1218-AC91
Emergency Response Standard
AGENCY: Occupational Safety and Health Administration (OSHA), Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: OSHA is proposing through this notice of proposed rulemaking
(NPRM) to issue a new safety and health standard, titled Emergency
Response, to replace the existing Fire Brigades Standard. The new
standard would address a broader scope of emergency responders and
would include programmatic elements to protect emergency responders
from a variety of occupational hazards. The agency requests comments on
all aspects of the proposed rule.
DATES: Comments on this NPRM (including requests for a hearing) and
other information must be submitted by May 6, 2024.
Informal public hearing: OSHA will schedule an informal public
hearing on the proposed rule if requested during the comment period. If
a hearing is requested, the location and date of the hearing,
procedures for interested parties to notify the agency of their
intention to participate, and procedures for participants to submit
their testimony and documentary evidence will be announced in the
Federal Register.
ADDRESSES:
Written comments: You may submit comments and attachments,
identified by Docket No. OSHA-2007-0073, electronically at https://www.regulations.gov, which is the Federal e-Rulemaking Portal. Follow
the instructions online for making electronic submissions. After
accessing ``all documents and comments'' in the docket (Docket No.
OSHA-2007-0073), check the ``proposed rule'' box in the column headed
``Document Type,'' find the document posted on the date of publication
of this document, and click the ``Comment Now'' link. When uploading
multiple attachments to regulations.gov, please number all of your
attachments because regulations.gov will not automatically number the
attachments. This will be very useful in identifying all attachments in
the preamble. For example, Attachment 1--title of your document,
Attachment 2--title of your document, Attachment 3--title of your
document. For assistance with commenting and uploading documents,
please see the Frequently Asked Questions on regulations.gov.
Instructions: All submissions must include the agency's name and
the docket number for this rulemaking (Docket No. OSHA-2007-0073). All
comments, including any personal information you provide, are placed in
the public docket without change and may be made available online at
http://www.regulations.gov. Therefore, OSHA cautions commenters about
submitting information they do not want made available to the public,
or submitting materials that contain personal information (either about
themselves or others), such as Social Security Numbers and birthdates.
Docket citations: This Federal Register document references
materials in Docket ID OSHA-2007-0073, which is the docket for this
rulemaking. OSHA also references documents in the following dockets
which the agency adopts by reference into this rulemaking:
2016, National Advisory Committee on Occupational Safety
and Health (NACOSH)--Docket ID OSHA-2016-0001; and
2015, NACOSH Emergency Responder Preparedness
Subcommittee--Docket ID OSHA-2015-0019.
All of these dockets are available for viewing at https://www.regulations.gov, the Federal eRulemaking Portal.
Citations to documents: The docket referenced most frequently in
this document is the docket for this rulemaking, docket number OSHA-
2007-0073, cited as Docket ID OSHA-2007-0073. Documents in the docket
get an individual document identification number, for example ``OSHA-
2007-0073-0044.'' Because this is the most frequently cited docket, the
citation is shortened to indicate only the document number. The example
is cited in the NPRM as ``Document ID 0044.''
Citations to documents in other dockets include the full document
identification number, cited as, for example ``Document ID OSHA-2015-
0019-0014.'' The citation may also include page numbers. The NACOSH
subcommittee meetings were transcribed. Citations to the transcripts,
and the referenced page(s), are cited as, for example, ``Document ID
OSHA-2015-0019-0015, Tr. 53.''
Documents cited in this NPRM are available in the rulemaking docket
(Docket ID OSHA-2015-0073) or in the dockets OSHA is adopting in this
rulemaking. They are available to read and download by searching the
docket number or document ID number at https://www.regulations.gov.
Each docket index lists all documents in that docket, including public
comments, supporting materials, meeting transcripts, and other
documents. However, some documents (e.g., copyrighted material) in the
dockets are not available to read or download from that website. All
documents in the dockets are available for inspection at the OSHA
Docket Office. This information can be used to search for a supporting
document in the docket at www.regulations.gov. Contact the OSHA Docket
Office at (202) 693-2350 (TTY number: 877-889-5627) for assistance in
locating docket submissions.
Consensus standards: Throughout this NPRM, OSHA makes numerous
references to the consensus standards published by the National Fire
Protection Association (NFPA). The NFPA standards are available to be
viewed without cost at https://www.nfpa.org/for-professionals/codes-and-standards/list-of-codes-and-standards/free-access.
FOR FURTHER INFORMATION CONTACT:
For press inquiries: Contact Frank Meilinger, Director, Office of
Communications, Occupational Safety and Health Administration, U.S.
Department of Labor; telephone: (202) 693-1999; email:
[email protected].
For general information and technical inquiries: Contact Mark
Hagemann, Director, Office of Safety Systems, Directorate of Standards
and Guidance, Occupational Safety and Health Administration, U.S.
Department of Labor; telephone (202) 693-2222 or fax (202) 693-1678;
email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. Need for the Standard
B. Events Leading to the Proposed Rule
C. National Consensus Standards
III. Pertinent Legal Authority
A. Introduction
B. Coverage
C. General Requirements for Occupational Safety and Health
Standards
D. Special Considerations for Health Standards
E. Significant Risk
F. Best Available Evidence
G. Feasibility
IV. Issues and Questions
A. Scope
B. State Plans
C. Questions in the Summary and Explanation
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D. Additional Issues
V. Summary and Explanation of the Proposed Rule
A. Section 1910.120 Hazardous Waste Operations and Emergency
Response
B. Section 1910.134 Respiratory Protection
C. Section 1910.155 Scope, Application, and Definitions
Applicable to This Subpart
D. Section 1910.156 Emergency Response
E. Section 1910.157 Portable Fire Extinguishers
F. Section 1910.158 Standpipe Hose Systems
G. Section 1910.159 Automatic Sprinkler Systems
VI. Technological Feasibility
VII. Preliminary Economic Analysis
A. Market Failure and Need for Regulation
B. Profile of Affected Industries
C. Costs of Compliance
D. Benefits
E. Economic Feasibility Analysis
F. Initial Regulatory Flexibility Analysis
VIII. Additional Requirements
A. Unfunded Mandates Reform Act
B. Consultation and Coordination With Indian Tribal Governments/
Executive Order 13175
C. Environmental Impacts/National Environmental Policy Act
D. Consensus Standards
E. Executive Order 13045 (Protecting Children From Environmental
Health and Safety Risks)
F. Federalism
G. Requirements for States With OSHA Approved State Plans
H. OMB Review Under the Paperwork Reduction Act of 1995
I. Executive Summary
A ``100-word summary'' is available on https://www.regulations.gov.
Elements of emergency responder (firefighters, emergency medical
service providers, and technical search and rescuers) health and safety
are currently regulated by OSHA primarily under a patchwork of hazard-
specific standards, and by state regulations in states with OSHA-
approved State plan programs. (While OSHA standards do not apply to
volunteers, some volunteers are covered in states with OSHA-approved
State plan programs.) All of the OSHA standards referred to above were
promulgated decades ago, and none was designed as a comprehensive
emergency response standard. Consequently, they do not address the full
range of hazards currently facing emergency responders, nor do they
reflect major changes in performance specifications for protective
clothing and equipment or major improvements in safety and health
practices that have already been accepted by the emergency response
community and incorporated into industry consensus standards. Notably,
the OSHA standards do not align with the Department of Homeland
Security's National Incident Management System (NIMS), which guides all
levels of government, nongovernmental organizations, and the private
sector to work together to prevent, protect against, mitigate, respond
to, and recover from emergency incidents.
In the aftermath of the terrorist attacks on September 11, 2001,
all government agencies, including OSHA, were directed to strengthen
their preparedness to respond to terrorist attacks, major disasters,
and other emergencies. In response to this direction, the agency
reviewed its standards applicable to the safe conduct of emergency
response and disaster recovery activities and identified gaps in the
protections for emergency responders and disaster recovery workers. The
agency subsequently published a Request for Information (RFI), using
the Fire Brigades standard (29 CFR 1910.156) as a baseline for
emergency response activities, to determine if it should proceed with
updating and expanding the standard.
Responses to the RFI generally supported the need for continued
rulemaking; therefore, the agency worked with the National Advisory
Committee for Occupational Safety and Health (NACOSH) to assemble a
subcommittee of emergency response community representatives to develop
draft regulatory language through a process akin to negotiated
rulemaking. To ensure a draft standard would incorporate best practices
and the latest advances in technology, OSHA invited emergency response
stakeholder organizations to provide subject matter experts to consult
with and participate on the Subcommittee. The Subcommittee comprised a
balanced group of subject matter experts representing labor and
management, career and volunteer emergency service management
associations, other Federal agencies and State plans, a national
consensus standard organization, and general industry skilled support
workers. NACOSH unanimously recommended that OSHA proceed with the
rulemaking to update its emergency response standard and endorsed the
draft regulatory language developed by the Subcommittee.
In accordance with the requirements of the Small Business
Regulatory Enforcement Fairness Act (SBREFA), OSHA convened a Small
Business Advocacy Review (SBAR) panel in the fall of 2021. The panel,
comprising members from the Small Business Administration's (SBA)
Office of Advocacy, OSHA, and OMB's Office of Information and
Regulatory Affairs, listened to and reported on what Small Entity
Representatives (SERs) from entities that would potentially be affected
by the proposed rule had to say. OSHA provided SERs with the draft
regulatory language developed by the NACOSH subcommittee for their
review and comment. The Panel received advice and recommendations from
the SERs and reported its findings and recommendations to OSHA. OSHA
has taken the SERs' comments and the Panel's findings and
recommendations into consideration in the development of the proposed
rule.
The proposed rule updates by replacing the existing Fire Brigades
standard and would expand the scope of OSHA's standard to include a
broad range of hazards emergency responders encounter during emergency
response activities and would bring the standard in line with the
Federal Emergency Management Agency's (FEMA) National Response
Framework and modernize the standard to align with the current industry
consensus standards issued by the National Fire Protection Association
(NFPA) on the safe conduct of emergency response activities.
As noted in the first paragraph above, and discussed in detail
below, OSHA standards do not apply to volunteer emergency responders.
However, in States with OSHA-approved State Plans, volunteers may be
treated as employees under state law. OSHA has no authority over how
individual states regulate volunteers. See section III.B, Pertinent
Legal Authority, and section VIII.G, Requirements for States with OSHA-
Approved State Plans, for further discussion. Throughout this document,
the agency seeks input on alternatives and potential exclusions for
economically at-risk small and volunteer organizations that will be
shared with State Plans as they determine how to proceed with their
subsequent individual state-level rulemaking efforts.
Organizations that provide emergency services vary significantly in
size and the type(s) of service(s) they provide. They are often not
well suited for ``one-size-fits-all'' prescriptive standards.
Accordingly, the proposed rule is a ``performance-based'' standard,
which provides flexibility for affected employers to establish the
specific criteria that best suits their organization. The proposed rule
focuses on the achievement of desired results--improving emergency
responder health and safety and reducing injuries and fatalities--while
providing flexibility as to the precise methods used to achieve those
results. The performance-based nature of the proposed rule is
particularly beneficial to small and
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volunteer organizations with limited resources.
Additionally, in accordance with Executive Orders 12866 and 13563,
the Regulatory Flexibility Act (RFA), and the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.), OSHA has prepared a Preliminary Economic
Analysis (PEA), including an Initial Regulatory Flexibility Analysis,
for the replacement of the existing Fire Brigades standard. Supporting
materials prepared by OSHA are available in the public docket for this
rulemaking, Docket ID OSHA-2007-0073, through www.regulations.gov.
II. Background
A. Need for the Standard
I. Fatality and Injury Analysis
On April 17, 2013, while engaged in fire suppression activities at
a fertilizer plant in West, Texas, ten firefighters died after
approximately 40 to 60 tons of ammonium nitrate unexpectedly detonated.
Five civilians, two of whom were providing support for firefighting
activities, were also killed, and five firefighters were injured.
Victims of the blast included both volunteer and career firefighters,
ranging in age from 26 to 52 years, each with 1 to 31 years of
firefighting experience. A subsequent investigation into the incident
performed by the National Institute for Occupational Safety and Health
(NIOSH) revealed numerous contributing factors in the incidents that
led to the fatalities, including limited responder knowledge and
recognition of the hazards created by ammonium nitrate, inadequate pre-
incident emergency response planning for the fertilizer plant, and the
fact that response personnel performed fire suppression activities from
a location that was within the blast radius of the explosion (NIOSH
2014, Document ID 0331). As part of its investigation report, NIOSH
made several recommendations for how fire departments could prevent
fatalities and injuries, including the development of a written risk
management plan, the conducting of pre-incident planning inspections
for the buildings located within a fire department's jurisdiction, the
development and implementation of a written incident management system
for all emergency incident operations, the mandated use of turnout
clothing and other personal protective equipment (PPE) that has been
determined to be appropriate for each task, and a minimum standard of
training for every firefighter.
Every day, the duties of an emergency responder may require making
life and death decisions. The typical workday of an emergency responder
could include tasks that range from responding to a minor medical
emergency to addressing a more severe incident such as a multi-building
fire or assisting in the rescue and helicopter medical evacuation of an
injured rock climber trapped on the side of a cliff. In performing
their assigned tasks associated with the protection of the public,
personal and real property, and the environment, emergency responders
face numerous safety and health hazards which may lead to injury,
illness, and death. After conducting a review of the fatalities and
injuries sustained during regular work activities by emergency response
personnel operating within the current regulatory framework, OSHA has
determined that existing safety and health standards do not adequately
protect the emergency response workforce from these hazards.
As explained in the Preliminary Economic Analysis, OSHA estimates
that approximately 1,054,611 individuals are exposed on an annual basis
to the workplace hazards associated with the emergency response
activities falling within the scope of the proposed rule, including
public-sector employees in States with OSHA-approved State Plans.\1\
Workers performing emergency response activities can be assigned to a
wide variety of tasks, including firefighting, medical assistance, and
search and rescue. The hazards associated with emergency response
activities are not limited to emergency situations; OSHA has also
identified safety and health risks present during training exercises
and other routine tasks. While some individuals are employed full-time
as emergency response workers, a substantial number of personnel are
categorized as volunteers. OSHA estimates that, of the 1,054,611
emergency responders anticipated to fall within the scope of the
proposed rule, 331,472 will be self-identified as volunteers.
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\1\ The proposed rule defines two types of emergency response
workers: responders and team members. For purposes of the discussion
in this section and the Health Effects of Emergency Response
Activities section that follows, both types of workers are referred
to as ``emergency responders'' or ``emergency response personnel.''
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A. Fatalities
To determine the frequency and nature of workplace fatalities for
emergency responders, OSHA reviewed the datasets of published summary
reports available from a variety of sources, including reports
published by the United States Fire Administration (USFA), FEMA, the
NFPA, NIOSH, the National Wildfire Coordinating Group (NWCG), the OSHA
Information System (OIS), and the Bureau of Labor Statistics (BLS).
Review of the overall rate of reported workplace-related deaths for
emergency response personnel contained within these reports revealed
substantial variation among reporting agencies (Table VII-A-1). Some
organizations reported higher rates of fatal injuries as compared to
other, non-emergency response professions, while other organizations
reported lower rates of fatal injuries. OSHA also determined that each
reporting agency varied significantly in the number of deaths reported
annually, the number and date of the years examined, the inclusion or
exclusion of certain victims (volunteer, non-firefighter job
categories), and their definition of an `on-duty' fatality.
Additionally, although each study provided summary numbers for the
causes of death, the extent of the investigations performed to identify
the root cause of each fatality varied among reports. Table VII-A-1,
below, shows a summary of the reports reviewed by OSHA in consideration
of the annual fatality rates for emergency response personnel.
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From the information in Table VII-A-1, OSHA concluded that a
conservative estimate of workplace deaths for emergency response
personnel falling within the scope of the proposed rule would include
those firefighter deaths reported by NFPA (an average of 72.4 deaths
annually, including career and volunteer firefighters), combined with
BLS information on the number of non-firefighter emergency responder
deaths (an average of 11.3 deaths, annually), which produces an
estimate of 83.7 emergency responder deaths annually, on average. The
agency believes that the majority of technical search and rescue job
activities are performed by firefighters, EMS providers, and law
enforcement officers (such as park rangers, conservation officers, and
natural resource police), who are cross trained to perform technical
search and rescue. As such, OSHA believes that most injuries and
fatalities that occur during technical search and rescue activities are
attributed to firefighters, EMS personnel, and law enforcement officers
in data sources. This assumption is supported by the information
available in the OSHA Information System (OIS) database; of the 273
emergency response-related fatalities in the OIS database, 19 occurred
while the victim was engaged in non-fire-related technical search and
rescue activities. Among these victims, each was identified by the OSHA
investigator as employed within one of the job categories of
firefighter, EMS provider, or law enforcement, and not as a technical
search and rescuer.
Listed below are examples of fatalities from the OIS database that
occurred while the rescuer (victim) was engaged in activities that were
determined to be technical search and rescue related.
Inspection #343188371--At 8:15 p.m. on May 28, 2018, an employee
was working as a firefighter and diver for a big city fire department.
A man fell into the South Branch of the Chicago River. The firefighter
and a coworker, his diving partner, had been deployed from a helicopter
into the river to conduct dive rescue operations. During the attempt,
the firefighter surfaced with his partner. Then he subsequently sank to
the bottom of the river. At that time, he lost communication with the
fire department. Divers from the department's marine unit searched for
firefighter. After several minutes, they located the firefighter and
pulled him out of the water with his diving equipment intact. Despite
resuscitation attempts by paramedics on the scene and at the hospital,
he was pronounced dead at 10:02 p.m. that same day.
Inspection #334815610--At approximately 5:00 p.m. on June 21, 2012,
during a mountain rescue, an employee was preparing to place rescue
victim in a stokes litter to be hoisted on to a helicopter at
approximately 13,800 foot level of Emmons Glacier on Mt. Rainier. The
helicopter was lowering a litter to the employee. The employee reached
up and unhooked the litter when he apparently lost his footing and slid
approximately 3,7000 feet down the face of the glacier. The employee
was killed.
Inspection #315597187--At approximately 9:45 p.m. on May 23, 2011,
Employee #1 and a firefighter crew were standing in the driveway of the
fire hall. They had completed a rope rescue-training course using a
rope and pulley system, which was hooked to the bucket of a ladder
truck. The bucket was 20 ft above the pavement. Employee #1 placed his
foot in the loop of the rope and pulled himself up by pulling down on
the other end of the rope. When his feet were approximately 4.5 ft
above the ground, the two ends of the rope spread apart, so his feet
went in one direction and his hands went in the other. This caused his
body to be positioned horizontally. He fell backwards to the ground and
struck his back and head on the pavement below. Employee #1 sustained
head trauma that killed him.
The information in the OIS dataset, while limited, supports OSHA's
inclusion of technical search and rescue-related job activities within
the scope of the proposed rule. However, as fully discussed in section
VII.D. Benefits, the number of fatalities in the OIS dataset is likely
a significant underestimation of the total emergency responder
fatalities occurring annually in the United States. Moreover, in
contrast to firefighters, publicly available injury and fatality data
specific to technical search and rescue is difficult to obtain, in part
because it may be included with non-technical rescue data, as in this
article titled ``Injuries to Search and Rescue Volunteers; A 30-year
Study,'' in which there is no differentiation between technical and
non-technical rescuers. https://www.researchgate.net/publication/20566794_Injuries_to_search_and_rescue_volunteers_A_30-year_experience.
Similarly, as noted above, OSHA believes that many
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injuries arising from technical search and rescue activities are
categorized generally as firefighting or EMS injuries, making them
difficult to disaggregate from other firefighter and EMS data.
In addition to the lack of peer-reviewed publications focusing
exclusively on technical search and rescue, a review of publicly
available information from the professional associations devoted to
providing support for technical search and rescue employees on a
national level identified no readily available summary reports of
technical search and rescue-related accidents, injuries, or fatalities
for victims falling within the scope of OSHA's proposed rule. Further
examination of available BLS data is infeasible because BLS does not
have an occupational code for Technical Search/Rescue.
Despite the limited availability of data specific to technical
search and rescue, the hazards posed by these activities are recognized
in the industry. The NACOSH subcommittee, comprised of subject matter
experts representing labor and management, career and volunteer
emergency service management associations, other Federal agencies and
State plans, a national consensus standard organization, and general
industry skilled support workers, recommended coverage for technical
search and rescue activities by including it in its proposed draft
standard (Docket ID OSHA-2015-0019-0002, Ex. 5). Similarly, NFPA has
standards specific to technical search and rescue; NFPA 1670,
Operations and Training for Technical Search and Rescue Activities; and
NFPA 1006, Rescue Technician Professional Qualifications.
Based on the available data and industry recognition, OSHA
preliminarily concludes that technical search and rescue emergency
response activities involve risks to employee safety and health
comparable to those in other types of emergency response such as
firefighting and EMS. OSHA requests comment on this conclusion and
specifically invites additional data and information on the risks posed
by technical search and rescue activities.
OSHA believes that the fatalities present in the OSHA OIS dataset
are likely a significant underestimation of the fatalities occurring
annually within the emergency response community. This is likely
because the OIS database contains information about fatality
investigations performed by OSHA field investigators, but does not
contain information about deaths not reported to OSHA, which includes
many volunteer firefighter deaths. The total number of fatalities may
also be underestimated as there is no blanket mandatory reporting
requirement for emergency responder deaths. This is also likely due in
part to varying methodology among reporting organizations for
categorizing a heart attack as work-related. The differences observed
between the OIS dataset and the NFPA dataset in these two categories of
fatalities are summarized in Table VII-A-2. Although the NFPA dataset
contained more victims in each of these fatality characteristics, when
OSHA compared the manner and cause of deaths in the OIS dataset with
those in the NFPA summary reports, observable similarities were present
(Table VII-A-2).
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For example, both datasets show that a majority of emergency
responder deaths occurred while the responder was responding to
emergencies or fighting fires (58% for NFPA, 62% for OIS). A
substantial number of fatalities also occurred while engaged in
training activities (12% and 14% for the NFPA and OIS datasets,
respectively). The leading cause of death for both the NFPA (19%) and
the OIS (26%) datasets was being struck by an object, and a similar
percentage of deaths fell into the striking/crushing/collision category
(32% in the NFPA dataset, 26% in the OIS dataset). Important
distinctions between the NFPA and OIS datasets include both scope and
level of detail. Specifically, NFPA reports are limited to deaths
occurring among firefighters. The OIS dataset includes deaths of all
emergency response personnel determined to fall within the scope of the
proposed rule, including other, non-firefighter individuals.
Additionally, the NFPA dataset contains little to no information
regarding identified workplace hazards associated with the reported
deaths, while the OIS dataset includes summary information for
contributory hazards, as identified by the standards cited by the OSHA
investigator and the information contained in each accident's summary
abstract. For these reasons, while OSHA determined that the overall
number of firefighter deaths annually is more accurately reflected by
the NFPA annual summary reports, OSHA determined that the descriptive
information available in the OIS dataset regarding task at time of
death, cause of death, and workplace hazards identified by the OSHA
inspector while investigating an individual's death is a representative
sample of the characteristics of emergency response fatalities across
the larger dataset. OSHA reviewed all 273 fatalities in the OIS dataset
to identify the causes of death and any contributory safety or health
hazards. Table VII-A-3 shows a summary of the reported cause of death
and the assigned task at the time of death for each of the fatalities
in the OIS dataset.
A review of the available literature identifying common causes of
death for emergency responders supports OSHA's analysis of the
fatalities available in the OIS dataset. From this review, OSHA
determined that some of the most common safety and health hazards
encountered by emergency responders include vehicle collisions; falls
from heights to lower levels due to structural or building collapses;
being struck by, caught in between, or crushed by vehicles; falling
objects or debris; burns; and entrapments (FEMA, 2022, Document ID
0341; NWCG, 2017,
[[Page 7780]]
Document ID 0265; NFPA, 2022, Document ID 0122).
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Among these 273 fatalities, hazards identified by OSHA
investigators as present on-site at the time of death included hazards
involving the incorrect use of PPE and other equipment, inadequate
vehicle preparedness and operation, lack of effective implementation of
standard operating procedures in various emergency scenarios, failure
to adhere to practices for Immediately Dangerous to Life and Health
(IDLH) situations, failure to meet medical evaluation requirements,
failure to meet minimum training requirements, lack of or ineffective
implementation of an Emergency Response Plan (ERP), and the lack of an
effective Risk Management Plan (RMP). These hazards were identified by
reviews of the citations issued at the time of the inspection and of
the summary abstracts for each investigation. A summary of the number
of hazards found at each of the OIS fatalities can be found in Table
VII-A-4, below.
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[GRAPHIC] [TIFF OMITTED] TP05FE24.003
From these 273 fatalities, OSHA identified 212 (77.7%) in which at
least one of the safety hazards addressed by the proposed rule was
determined to be present at the time of the emergency responder's
death.
Heart attacks were identified in both the NFPA (43%) and OIS (20%)
datasets as one of the most commonly occurring means by which an
emergency responder will die while at work. Among the 212 fatalities in
the OIS dataset determined to have at least one of the safety hazards
addressed by the proposed rule present in the workplace at the time of
death, eight were classified as heart attack fatalities, approximately
15% of the total number of heart attacks observed in the dataset.
Cardiovascular health and the reduction of heart attacks is further
discussed in the Health Effects of Emergency Response Activities
section, below.
B. Nonfatal Injuries
OSHA reviewed the available literature to examine the extent and
nature of workplace injuries occurring among emergency response
personnel. From this review, OSHA determined that, overall, emergency
responders are at higher risk of injury than the general population.
Workplace hazards identified in the literature as leading to injury
among emergency response personnel include exposure to toxic chemicals,
falls, environmental hypoxia, exposure to excessive noise, over-
exertion due to lifting heavy objects, wearing heavy protective
equipment, repetitive motion, and other similar activities (Gentzler,
2010, Document ID 0337; Neitzel et. al, 2013, Document ID 0333; Neitzel
et. al, 2016, Document ID 0338; Campbell, 2017, Document ID 0342).
Estimations of the increased risk as compared to all private industries
varied by the type of emergency service provided, ranging from 1.7
times for private ambulance service workers to 4 times for EMS
responders (Reichard, 2017, Document ID 0339; Reichard et al, 2018,
Document ID 0335). For the purposes of this analysis, OSHA focused on
lost-time injuries; expected lost-time injuries for the hazards
identified above include fractures, sprains, internal bodily trauma,
dislocations, chemical burns, and chemical pneumonia.
OSHA determined that the most common cause of injury among
emergency medical services providers was overexertion or strain.
Multiple studies identified overexertion or strain as the leading
causes of injury, with reported proportions of injury ranging from 23%
to 60% and body motion injuries (e.g., lifting, carrying, or
transferring a patient and/or equipment) commonly serving as the
leading event (Campbell, 2017, Document ID 0342; Campbell and Hall,
2022, Document ID 0336; Campbell and Molis, 2020, Document ID 0343;
Butry et al., 2019, Document ID 0334; Reichard et al., 2018, Document
ID 0335; Dworsky et al., 2021, Document ID 0332). In addition to
reviewing the available literature, OSHA conducted an analysis of the
injury statistics available from the BLS for the EMT and Paramedic
categories of emergency response professions, from the years 2007
through 2020. In total, 107,720 non-fatal incidents requiring days away
from work were reported, an average of 7,694 injuries annually. In
addition to the common sources of injury as identified by the
literature review, the BLS injury statistics revealed further causes of
frequent injury among emergency response professionals, summarized in
Table VII-A-5, below.
BILLING CODE 4310-26-P
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To determine the number of injuries occurring annually among
firefighters, OSHA reviewed the annual NFPA injury summary reports from
2007 to 2020 (Docket Nos. 0362-0376). These reports show that, on
average, 67,964 injuries occurred among firefighters annually, with an
average of 14,172 of those classified as a lost time injury, 21% of
total injuries (see Table VII-A-6).
[GRAPHIC] [TIFF OMITTED] TP05FE24.005
[[Page 7783]]
Review of the reported tasks that injured firefighters were engaged
in at the time of injury revealed persistent trends, both among the
injury task categories, and when compared to the task categories of the
fatality victims (Table VII-A-7). Specifically, each year, the work
associated with firefighting activities results in an average of 42.4%
of all injuries, while non-fire emergency tasks result in 20.4% of all
injuries. The activities associated with responding to or returning
from an emergency result in an average of 6.6% of annual injuries.
Training activities result in 11.6% of all firefighter injuries, and
duties not associated with emergencies, emergency response, or training
result in, on average, 19% of injuries. Examples of injuries in this
last category could include things like a responder slipping on an icy
walkway at the fire station, dropping an old tire on their foot while
doing a changeout at the fire station, having their foot run over while
directing a fire truck back into the station after a fire, and sliding
down the fire pole and landing poorly, spraining an ankle. The
proportion of total injuries for each assigned job category was similar
to the proportions observed in each of the fatality categories (see
Table VII-A-2).
[GRAPHIC] [TIFF OMITTED] TP05FE24.006
The most common source of injury among firefighters was
overexertion or strain (27.0% of injuries, on average). While
overexertion was also the leading source of injury among emergency
response personnel not classified as firefighters, the proportion of
these injuries varied significantly among the professional categories,
27.0% of firefighter injuries compared to 53.6% of injuries for non-
firefighter personnel. Other significant causes of injury among
firefighters included fall, jump, slip injuries (22.8% of injuries, on
average) exposure to fire products (11.5% of injuries, on average),
contact with objects (10.8%), and being struck by a moving object
(6.0%). (see Table VII-A-8).
[[Page 7784]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.007
BILLING CODE 4510-26-C
II. Health Effects of Emergency Response Activities
In addition to the traumatic injuries discussed above, emergency
response activities are associated with exposure to hazards that can
cause both chronic physical health and adverse psychological health
effects for responders, including but not limited to adverse
cardiovascular and respiratory effects, cancers, post-traumatic stress
disorder (PTSD), and suicide. Exposure to combustion products is a
major factor behind physical illnesses associated with emergency
response activities; however, factors such as exposure to infectious
diseases, heat, physical exertion, physical stress reactions to alarms
and sirens, shift work, and other exposures also play a role.
Psychological health effects have been attributed to exposure to
trauma, stressful situations, and threats to life and health, including
due to workplace violence.
This section presents a summary of OSHA's review of the health
effects literature for emergency response activities, including the
workplace exposures that contribute to these health effects, and the
agency's preliminary conclusions based on that review. OSHA's full
analysis is contained in the background document entitled ``Emergency
Response Health Effects Literature Review,'' which has been placed in
the rulemaking docket (Document ID 0361).
OSHA conducted a literature search to collect relevant information,
studies, reports, and materials related to the occupational safety and
health of emergency responders such as firefighters, search and rescue
personnel, and emergency medical service providers. OSHA sought
literature that evaluated workplace exposures and health effects for
emergency responders including:
Exposures to combustion products, other contaminants and
substances, and infectious diseases
Acute and chronic health conditions (e.g., cancer,
cardiovascular disease, respiratory disease)
Behavioral health issues (e.g., mental health, substance
use disorders, suicide)
Workplace violence
OSHA searched the National Library of Medicine (NLM) (https://pubmed.ncbi.nlm.nih.gov/) and (https://www2a.cdc.gov/nioshtic-2/advsearch2.asp) in 2020 and again in 2022. The search was date limited
to 2010 and included several occupational and risk key words to target
relevant search results. OSHA obtained and reviewed the full text of
relevant articles. OSHA also searched several key organizations'
websites for relevant reports and information. This section summarizes
the results of this search.
A. Exposures
Emergency responders are exposed to a variety of health hazards in
the workplace. OSHA focused its literature review on three areas:
combustion products, other contaminants and substances, and infectious
diseases. The combustion products review covers substances released
during fires. The other contaminants and substances review examines
specific situations where emergency responders were exposed to harmful
chemicals (e.g., vinyl chloride, phosphine, opioids) while responding
to emergency situations in the field or when participating in training
exercises that involved simulated smoke. It also includes studies that
assessed contaminants inside firehouses and substances off-gassing from
emergency
[[Page 7785]]
response gear. The infectious diseases review summarizes research on a
variety of diseases, including hepatitis B, Clostridiodes difficile,
Methicillin-resistant Staphylococcus aureus (MRSA), and COVID-19.
Many of the studies identified under these three topics focused
solely on examining the likelihood or the extent of exposures among
emergency responder populations. In some cases, the studies also
provided information about the health effects observed among exposed
groups. More detailed information about health effects is presented in
section 2, Acute and Chronic Health Conditions and section 3,
Behavioral Health.
(i) Combustion Products
Combustion products, many of which are considered respiratory
hazards, are released when materials burn. The combustion product
studies identified during OSHA's literature review addressed
firefighters, including both structural and wildland firefighters.
Firefighters may be exposed to a wide variety of combustion products,
even when wearing protective gear, and exposures can occur during a
broad range of activities. Emergency responders can be exposed to
combustion products during live training exercises as well as when
responding to actual events; while performing exterior operations and
during interior fire attack operations; during the early phase of
operations as they delay donning self-contained breathing apparatus to
conserve vital air supply, through leaks while wearing respiratory
protection, or during post-fire clean-up activities. Emergency
responders can also be exposed to combustion products through off-
gassing from contaminated protective clothing and equipment or while
cleaning such items after fire operations. (Geer Wallace et al., 2019a,
Document ID 0204; Poutasse et al., 2020, Document ID 0259; Fent et al.,
2010, Document ID 0213; Fent et al., 2022, Document ID 0207; Levasseur
et al., 2022, Document ID 0253).
The literature provides evidence of firefighters being exposed to a
variety of different combustion products, including carbon monoxide
(McCleery et al., 2011, Document ID 0281; Semmens et al., 2021,
Document ID 0291; Navarro et al., 2021a, Document ID 0252; Reinhardt
and Broyles, 2019, Document ID 0278); particulate matter (Baxter et
al., 2010, Document ID 0179; Horn et al., 2017, Document ID 0243);
dioxins (Shaw et al., 2013, Document ID 0218); radionuclides (Carvalho
et al., 2014, Document ID 0180); and a variety of volatile organic
compounds (VOCs) and semi-volatile organic compounds (SVOCs), including
polycyclic aromatic hydrocarbons (PAHs) (Hwang et al., 2021, Document
ID 0155; Hwang et al., 2022, Document ID 0156; Pleil et al., 2014,
Document ID 0158; Rossbach et al., 2020, Document ID 0289; Fent et al.
2013, Document ID 0206; Fent et al., 2022, Document ID 0207; Alharbi et
al., 2021, Document ID 0171; Kirk et al., 2021, Document ID 0240;
Cherry et al., 2019, Document ID 0188; Poutasse et al., 2020, Document
ID 0259; Adetona et al., 2015, Document ID 0167). A 2022 report by the
National Academies, ``The Chemistry of Fires at the Wildland-Urban
Interface'', provides additional detailed information on fire emissions
from a variety of household components, vehicles, and biomass (NASEM
2022, Document ID 0395). These studies show that firefighters can be
exposed to combustion products through inhalation and dermal routes
during both live fires and training exercises. It is difficult to
provide estimates of how many firefighters are exposed and at what
level because of the variables involved in firefighting. For example,
the number of firefighters exposed varies depending on the size of the
fire, with fewer firefighters exposed in response to a car fire than at
a large industrial fire. The quantity and type of combustion products
that firefighters are exposed to also varies depending on what is
burning. Since fires are generally not planned events, the
instrumentation that would be required to quantify firefighter
exposures is not present at most fires. The frequency of firefighter
exposures can also vary greatly, from very few exposures annually in
rural areas to many exposures annually in metropolitan areas.
Nonetheless, the literature is clear that firefighters are exposed to
combustion products at harmful levels.
The specific types and concentration of combustion products
released during a fire vary depending on which types of materials are
burning and whether the fire is a wildfire, residential fire,
industrial fire, or vehicle fire. It is not uncommon for residential
fires to involve hazardous materials stored in paint cabinets,
workshops, or garages; or buildings that still contain lead paint or
asbestos. As a result, emergency responders' exposures to combustion
products vary broadly (Alharbi et al., 2021, Document ID 0171; Kirk et
al., 2021, Document ID 0240; Fent et al., 2010, Document ID 0213). For
example, one study reported that residential fires release more VOCs
than industrial fires but lower levels of inorganic gases (Alharbi et
al., 2021, Document ID 0171). Another study, which involved controlled
fires in a simulated house structure, showed that hydrogen cyanide was
detected at concentrations exceeding occupational exposure limits, and
at times, at levels regarded as immediately dangerous to life and
health (Horn et al., 2017, Document ID 0243). A training exercise
focused on vehicle fires suggested that firefighters might encounter
acute overexposures to formaldehyde, carbon monoxide, and isocyanates
(Fent et al., 2010, Document ID 0213).
Multiple studies found that firefighters are exposed to VOCs,
especially PAH compounds, through the dermal and inhalation routes; the
studies conducted personal air sampling on the exterior of firefighter
gear and compared urinary metabolites from before and after firefighter
trainings. For firefighters wearing self-contained breathing apparatus
(SCBA), the dermal route appears to be the main route of exposure
(Hwang et al., 2021, Document ID 0155; Hwang et al. 2022, Document ID
0156; Pleil et al., 2014, Document ID 0158; Rossbach et al., 2020,
Document ID 0289; Fent et al., 2022, Document ID 0207). Firefighter PAH
levels were correlated with estimated exposures (based on combustion
products identified in environmental samples), length of exposure, and
number of fire suppressions (Cherry et al., 2019, Document ID 0188;
Cherry et al., 2021, Document ID 0192; Poutasse et al., 2020, Document
ID 0259). Also, elevated VOC and PAH levels were associated with
certain job positions, including overhaul, attack, search, and outside
ventilation positions (Baxter et al., 2014, Document ID 0157; Geer
Wallace et al., 2019b, Document ID 0202). Some studies examined ways to
reduce VOC and PAH exposures, including enhanced skin hygiene. One
study found that the transitional attack method (which involves
applying water to the fire from outside of a structure through windows
or openings) could lower firefighters' exposures to PAHs compared to
the interior attack method (which involves entering the structure for
water application) (Fent et al., 2020, Document ID 0205).
Many of the articles identified in the combustion product
literature review focused on wildland firefighters, who have much
longer fire suppression shifts (8 to 13 hours) compared to structural
firefighters (typically 30 minutes) and are more likely to be exposed
to combustion products through inhalation since they often wear no
respiratory protection or sometimes only a bandana or an N95 respirator
rather than an
[[Page 7786]]
SCBA like structural firefighters do (Hwang et al., 2022, Document ID
0156; Navarro, 2021, Document ID 0257). It is important to note that an
N95 respirator or bandana can only filter out particulate matter and
cannot reduce or prevent exposure to toxic gasses and vapors from
combustion products. Among wildland firefighters, certain job tasks
were associated with higher exposures to different combustion products:
for particulate matter, mop-up, direct suppression, and holding tasks
had the highest exposures; for carbon monoxide, direct suppression,
fireline construction, and holding job tasks had the highest exposures
(Navarro, 2021, Document ID 0257; Reinhardt and Broyles, 2019, Document
ID 0278). Prescribed burns were found to produce higher exposures of
particulate matter and carbon monoxide than wildfires. Time spent on
the fireline increased carbon monoxide exposure, and VOC levels were
highest for Type 1 crews, which typically have the most experienced
firefighters performing the most complex tasks (Navarro et al., 2021a,
Document ID 0252). Simultaneous carbon monoxide and noise exposure from
chain saws and woodchippers have been found to result in greater
hearing loss than if carbon monoxide was not a co-exposure in wildland
fire fighters (Ramsey et al. 2019, Document ID 0256). Additionally,
wildland firefighters are at risk of radionuclide exposure due to
incineration of vegetation that contains naturally occurring
radionuclides (Carvalho et al., 2014, Document ID 0180). Studies about
wildland firefighters identified multiple negative health effects due
to exposures to combustion products, including decline in lung
function, oxidative and inflammatory stress response, and increased
cardiovascular health effects and mortality (Navarro, 2021, Document ID
0257; Ferguson et al., 2016, Document ID 0197; Main et al., 2019,
Document ID 0258; Adetona et al., 2013, Document ID 0165; Wu et al.,
2019, Document ID 0318; Navarro et al., 2019, Document ID 0247).
Based on the evidence described above, OSHA has preliminarily
determined that emergency responders, specifically both structural and
wildland firefighters performing firefighting activities, are exposed
to combustion products. These combustion products contain components
that are known to cause cardiovascular and pulmonary illness and to be
carcinogenic to humans. OSHA therefore preliminarily finds
justification to promulgate a standard which requires protective
equipment and practices to limit exposure to combustion products. In
addition, since exposure cannot be completely eliminated due to the
nature of firefighting activities, OSHA has preliminarily determined
that medical surveillance is necessary for these responders to detect
and respond to health conditions as soon as possible in order to
mitigate the long-term health impact of such exposures on emergency
responders.
(ii) Other Contaminants and Substances
In addition to the combustion products reviewed in section A.(i),
emergency responders may be exposed to varied, unpredictable, and often
unknown contaminants and substances while performing their duties.
(Hall et al., 2018, Document ID 0220; Melnikova et al., 2018, Document
ID 0246). Overall, OSHA's literature review found evidence of adverse
health effects among emergency responders who encountered contaminants
and other potentially harmful substances on the job, with the most
injuries seen among firefighters. As an example of the sources of these
contaminants, in 2022 the U.S. Department of Transportation's Pipeline
and Hazardous Materials Safety Administration recorded 23,178 highway
incidents involving hazardous materials (hazmat) and 355 railway spill
hazmat incidents. Additionally, the U.S. Chemical Safety Board reported
102 reportable chemical release events in 2022. Studies also show that
emergency responders can be exposed to hazardous substances through
equipment contamination and inside their workplaces even when they are
not responding to emergencies.
Studies show that emergency responders are exposed to a variety of
chemicals in the field, including vinyl chloride, phosphine, ammonia,
and hydrochloric acid (Hall et al., 2018, Document ID 0220; Melnikova
et al., 2018, Document ID 0246; Brinker et al., 2013, Document ID 0177;
Brinker et al., 2015, Document ID 0175). Examples of emergency response
activities that can involve such exposures include attending to drug
overdose victims (Chiu et al., 2018a, Document ID 0191; Chiu et al.,
2018b, Document ID 0182; Chiu et al., 2018c, Document ID 0186), putting
out a fire at a chemical manufacturing facility (Eisenberg et al.,
2019, Document ID 0203), working with chainsaws that released carbon
monoxide and generate wood dust (Ramsey et al., 2019, Document ID
0256), and participating in training that exposed them to a variety of
chemicals and potential irritants in simulated smoke such as mineral
oil, diethylene glycol, aldehydes, PAHs, VOCs, and carbonaceous
particles (Fent et al., 2013, Document ID 0206). The literature review
also captured studies that examined diesel exhaust particulate matter
and PAH concentrations inside firehouses (Sparer et al., 2018, Document
ID 0292; Baxter et al., 2014, Document ID 0157), as well as
contaminants associated with firefighting gear, including residual
combustion products that adhere to the gear, and substances used to
make the gear, such as organophosphorus flame retardants, per-and
polyfluoroalkyl substances (PFAS) chemicals, and plasticizers
(Alexander and Baxter, 2014, Document ID 0164; Banks et al., 2021b,
Document ID 0168; Fent et al., 2018, Document ID 0210; Kirk and Logan,
2015, Document ID 0232; and Muensterman et al., 2022, Document ID
0282).
Respiratory effects (e.g., cough, asthma-like symptoms) were the
most frequently reported symptoms among the emergency responders who
were assessed (Melnikova et al., 2018, Document ID 0246; Chiu et al.,
2018a, Document ID 0191, Chiu et al., 2018c, Document ID 0186; Fent et
al., 2013, Document ID 0206; Eisenberg et al., 2019, Document ID 0203;
Brinker et al., 2013, Document ID 0177; Brinker et al., 2015, Document
ID 0175). Melnikova et al. (2018, Document ID 0246) examined 566 acute
chemical exposures among 1,460 emergency responders and found that
respiratory system problems were the most common adverse health effect,
constituting 56.3 percent of all adverse effects. Other adverse health
effects included trauma (11.3 percent), eye irritation (10.5 percent),
headache (9.9 percent), and dizziness/other non-head-related central
nervous system symptoms (9.9 percent). The chemicals most likely to
cause adverse health effects were respiratory irritants, including
ammonia (12.4 percent); unspecified, illegal methamphetamine-related
chemicals (7.4 percent); carbon monoxide (6.2 percent); propane (6.0
percent); and hydrochloric acid (4.8 percent). Given the prominence of
respiratory symptoms in responders exposed to these chemicals, several
articles emphasized the importance of wearing respiratory PPE to
protect emergency responders from negative health effects (Hall et al.,
2018, Document ID 0220; Chiu et al., 2018a, Document ID 0191; Chiu et
al., 2018c, Document ID 0186).
A few NIOSH Health Hazard Evaluations (HHEs) investigated health
impacts among emergency responders who assisted drug overdose victims.
In
[[Page 7787]]
a 2018 opioid-related exposure, eight of nine emergency responders
reported adverse health effects that were consistent with drug
exposure: weakness, confusion, palpitations, lightheadedness, headache,
nausea, numbness, double vision, chest discomfort, and stomach
discomfort (Chiu et al., 2018a, Document ID 0191; Chiu et al., 2018c,
Document ID 0186). Overall, wearing appropriate PPE during responses to
drug overdoses was deemed important, especially for preventing eye and
mouth exposure.
Multiple studies identified contaminants inside fire stations and
on firefighting gear and equipment that firefighters may be exposed to.
In studies that examined separate rooms within fire stations, truck
bays had the highest contaminant concentrations (Sparer et al., 2018,
Document ID 0292; Baxter et al., 2014, Document ID 0157). Banks et al.
(2021b, Document ID 0168) found that off-gassing of SVOCs from uniforms
stored in private vehicles could be a source of dermal or inhalation
exposure for firefighters. Therefore, laundering of firefighters'
protective gear (Kirk and Logan, 2015, Document ID 0232), field
decontamination, and dermal wipes (Fent et al., 2018, Document ID 0210)
were recommended methods to prevent exposures. PFAS (Muensterman et
al., 2022, Document ID 0282) and di(2-ethylhexyl)phthalate (Alexander
and Baxter, 2014, Document ID 0164) were highlighted as contaminants
that need further research due to their presence in and/or persistence
on firefighter gear.
Based on the evidence described above, OSHA has preliminarily
determined that in the course of their duties, firefighters, emergency
medical service providers and technical rescuers are exposed to
hazardous substances in the workplace. OSHA therefore preliminarily
finds justification to promulgate a standard which requires protective
equipment and practices to limit exposure to hazardous substances. In
addition, since exposure cannot be completely eliminated due to the
nature of emergency response activities, OSHA has preliminarily
determined that medical surveillance is also necessary for these
responders to detect and respond to health conditions as soon as
possible in order to mitigate long-term health impacts.
(iii) Infectious Diseases
When responding to community needs, emergency responders come in
direct contact with people who have infectious diseases. OSHA's
literature review identified multiple infectious diseases that
firefighters, technical rescue responders, and emergency medical
service providers are exposed to, including hepatitis B, Clostridiodes
difficile, Methicillin-resistant Staphylococcus aureus (MRSA), and
COVID-19. The studies covered a range of topics, such as the incidence
rate or prevalence of infectious disease among emergency responders,
the likelihood of emergency equipment being contaminated, and the
impact of other variables (e.g., wildfire smoke, social vulnerability
index) on emergency responders' occupational risks.
Generally, bloodborne diseases (e.g., hepatitis B, hepatitis C, and
human immunodeficiency virus) pose low risk to emergency responders,
whereas infectious diseases spread through airborne pathways (e.g.,
meningococcal meningitis, severe acute respiratory syndrome (SARS),
influenza, and tuberculosis) and direct contact transmission (e.g.,
MRSA) pose higher risk (Thomas et al., 2017, Document ID 0307).
However, EMS providers' exposure to infectious diseases declined
between 1993 and 2011 and remains generally low except during pandemics
(Thomas et al., 2017, Document ID 0307).
MRSA and Staphylococcus aureus prevalence was generally high among
emergency responders. Miramonti et al. (2012, Document ID 0274) found
that EMTs and paramedics have a significantly higher nasal colonization
rate of MRSA compared to the general population (4.5% vs. 0.084%).
Elie-Turenne et al., (2010, Document ID 0195) found that paramedics had
the highest rate of Staphylococcus aureus nasal colonization (57.7%),
but the lowest rate of MRSA compared to other health care professionals
(i.e., nurses, clerical workers, and physicians). The authors suggested
that the lower relative rate of MRSA may be due to paramedics spending
more time in the field compared to other health care professionals.
However, two studies examining the contamination of environmental
surfaces that emergency responders contact found MRSA in fire stations
(Sexton and Reynolds, 2010, Document ID 0284) and Clostridiodes
difficile on EMS monitoring equipment (Gibson et al., 2021, Document ID
0199).
COVID-19 can serve as a proxy for both epidemic and pandemic
exposures for emergency responders. Inconsistent results were found for
COVID-19 prevalence among emergency responders. Two studies that
examined seroprevalence rates found that first responders had a higher
risk of contracting COVID-19 than other health care professionals (Sami
et al., 2021, Document ID 0290; Zhang et al., 2022, Document ID 0319).
In contrast, other studies found that the prevalence of COVID-19 was
not elevated in first responders compared to the general public (Shukla
et al., 2020, Document ID 0285; Vieira et al., 2021, Document ID 0302)
or to other medical professionals (Akinbami et al., 2020, Document ID
0170; MacDonald et al., 2021, Document ID 0251). Some of these studies
suggested that increased PPE usage and the strict infection control
measures that emergency responders instituted during the COVID-19
pandemic helped prevent elevated rates among this population (Akinbami
et al., 2020, Document ID 0170; Zhang et al., 2022, Document ID 0319;
Newberry et al., 2021, Document ID 0261; Vieira et al., 2021, Document
ID 0302). Additionally, two studies showed that vaccination may
mitigate occupational risks (Grunau et al., 2022, Document ID 0211;
Caban-Martinez et al., 2022, Document ID 0178). Other variables also
affected first responders' occupational risk of contracting COVID-19 or
developing severe COVID-19. Sami et al. (2021, Document ID 0290) and
Akinbami et al. (2020, Document ID 0170) both found that community
levels of COVID-19 correlated with seroprevalence rates of SARS-CoV-2
in first responders. Moreover, emergency responders who resided in more
socially vulnerable response areas (gauged using the CDC's Social
Vulnerability Index) were found to have increased exposure to COVID-19
(Haas et al., 2021, Document ID 0230). Additionally, increased levels
of wildfire smoke inhalation may increase occupational risk for
developing severe COVID-19 among wildland firefighters (Navarro et al.,
2021b, Document ID 0279).
Based on the above, OSHA has preliminarily determined that
emergency responders are exposed to infectious diseases in the course
of their work. Exposures occur due to contact with victims of
emergencies (e.g., traumatic injuries) and the treatment and transport
of emergency medical patients suffering from either traumatic injuries
or illness (e.g., viral meningitis). Infectious agents can contaminate
emergency response vehicles and response equipment; protective clothing
and equipment; or station uniforms and be brought back to communal
quarters such as a fire stations or wildfire basecamps. OSHA therefore
preliminarily finds justification to promulgate a standard which
requires protective equipment and practices to address exposures to
infectious disease.
B. Acute and Chronic Health Conditions
OSHA has identified evidence suggesting that the hazardous
exposures
[[Page 7788]]
that emergency responders encounter, as described above, put them at
elevated risk for certain acute and chronic health conditions. OSHA's
literature review on acute and chronic health conditions among
emergency responders covered cancer, cardiovascular disease, and
respiratory disease.
(i) Cancer
Emergency responders, particularly firefighters, are exposed to
known and suspected carcinogens when performing their work (see
Sections A.(i) and A.(ii) above), which places them at a 12-19% greater
risk of dying from cancer (Muegge et al., 2018, Document ID 0269;
Daniels et al., 2014, Document ID 0187; Pinkerton et al., 2020,
Document ID 0245) and a 9% greater risk of developing cancer (Daniels
et al., 2014, Document ID 0187) than the general population. Studies
show that firefighters are at higher risk for multiple cancers compared
to the general U.S. population. In fact, the International Association
for Research on Cancer (IARC) has concluded that occupational exposure
as a firefighter is itself carcinogenic to humans (Group 1) (Demers et
al. 2022, Document ID 0194; IARC 2023, Document ID 0236; NASEM 2022,
Document ID 0395).
Researchers found that, compared to the general population, male
firefighters are at increased risk for melanoma and prostate cancer
(Lee et al., 2020, Document ID 0250; Tsai et al., 2015, Document ID
0311); testicular cancer, thyroid cancer, late-stage colon cancer (Lee
et al., 2020, Document ID 0250); multiple myeloma, acute myeloid
leukemia, esophageal cancer, kidney cancer, and brain cancer (Tsai et
al., 2015, Document ID 0311). Researchers found that female
firefighters are at increased risk compared to the general population
for brain cancer and thyroid cancer (Lee et al., 2020, Document ID
0250) and increased risk of death from bladder cancer (Daniels et al.,
2014, Document ID 0187; Pinkerton et al., 2020, Document ID 0245).
For males and females combined, researchers found that firefighters
are at increased risk compared to the general population for all-cancer
mortality (Muegge et al., 2018, Document ID 0269; Daniels et al., 2014,
Document ID 0187; Pinkerton et al., 2020, Document ID 0245); all-cancer
incidence (Daniels et al., 2014, Document ID 0187); buccal cavity and
pharynx cancer mortality (Muegge et al., 2018, Document ID 0269;
Pinkerton et al., 2020, Document ID 0245); other parts of the buccal
cavity cancer mortality, pancreatic cancer mortality, kidney cancer
mortality, connective tissues cancer mortality, brain and other parts
of the nervous system cancer mortality (Muegge et al., 2018, Document
ID 0269); digestive cancer incidence and mortality (Daniels et al.,
2014, Document ID 0187); respiratory cancer incidence and mortality
(Daniels et al., 2014, Document ID 0187); malignant mesothelioma
incidence and mortality (Daniels et al., 2014, Document ID 0187;
Pinkerton et al., 2020, Document ID 0245); non-Hodgkins lymphoma
mortality; esophageal cancer mortality; intestine cancer mortality;
rectal cancer mortality; lung cancer mortality; biliary, liver, and
gall bladder cancer; and other digestive cancer mortality (Pinkerton et
al., 2020, Document ID 0245). Systematic reviews and meta-analyses
corroborate many of these results (IARC, 2023, Document ID 0236;
Jalilian et al., 2019, Document ID 0233; Sritharan et al., 2017,
Document ID 0299; LeMasters et al., 2006, Document ID 0268; Demers et
al., 2022, Document ID 0194). Additionally, researchers have studied
whether dose-response relationships exist between firefighting
exposures and developing cancer. In these dose-response studies,
researchers found associations between increased firefighting exposures
and increased lung cancer incidence and mortality (Daniels et al.,
2015, Document ID 0184; Pinkerton et al., 2020, Document ID 0245) and
leukemia mortality (Daniels et al., 2015, Document ID 0184). In a risk
assessment, Navarro et al. (2019, Document ID 0247) found that wildland
firefighters were at an 8 to 43 percent increased risk of lung cancer
mortality.
All 50 states have adopted some form of firefighter cancer
legislation that provides benefits to firefighters who develop or die
from cancer. In 80% of those, the cancers are presumed to have been the
result of firefighting duties. It is also noteworthy that Congress
recently passed the Fiscal Year 2023 National Defense Authorization Act
(https://www.dol.gov/agencies/owcp/FECA/NDAA2023). Section 5305 of this
Act, titled ``Fairness for Federal Firefighters,'' determined that
certain conditions, including various cancers, will be presumed to be
work-related for Federal employees who perform fire protection
activities and modified the Federal Employees' Compensation Act (FECA)
accordingly.
OSHA has preliminarily determined that the exposures discussed in
sections A.(i) and A.(ii) lead emergency responders who perform
firefighting duties to have an increased risk of developing cancer.
OSHA therefore preliminarily finds justification to promulgate a
standard which requires protective equipment and practices to limit
exposure to known and suspected carcinogens. In addition, since
exposure cannot be completely eliminated due to the nature of emergency
response activities, OSHA has preliminarily determined that medical
surveillance is necessary for these responders to detect and respond to
health conditions as soon as possible in order to mitigate long-term
health impacts.
(ii) Cardiovascular Disease
Emergency responders, especially firefighters, may be called on to
engage in physically strenuous activities while wearing heavy,
insulated, and restrictive PPE ensembles that pose physiological
burden, exacerbate heat stress hazards, and raise core temperatures to
dangerous levels (Horn et al., 2013, Document ID 0219; West et al.,
2020, Document ID 0314). In combination, these factors strain the
body's cardiovascular system and increase the risk of sudden cardiac
events (Soteriades et al., 2011, Document ID 0121).
Many studies assessed cardiovascular disease prevalence among
firefighters. They revealed that cardiac events are the leading cause
of on-duty death among U.S. structural and wildland firefighters, with
cardiovascular disease causing 45 to 50 percent of on-duty firefighter
deaths each year (Smith et al., 2016, Document ID 0120; Soteriades et
al., 2011, Document ID 0121; NWCG, 2017, Document ID 0265; NASEM 2022,
Document ID 0396). Navarro et al. (2019, Document ID 0247) estimated
that wildland firefighters had an increased cardiovascular disease
mortality of 16 to 30 percent compared to the general population.
Soteriades et al. (2011, Document ID 0121) reported that firefighting
causes considerable cardiovascular strain, which may trigger a sudden
cardiac event. However, Muegge et al. (2018, Document ID 0269), in a
study that reviewed death certificates in Indiana, found that the odds
of dying from cardiovascular disease overall were no different between
current and retired firefighters and non-firefighters, possibly due to
the healthy worker effect. OSHA does not view this study as
determinative of the cardiovascular risks facing firefighters; rather
it must be viewed in the larger context of the weight of evidence
discussed here on the association between emergency response work and
cardiovascular events. Several studies identified factors and
activities in firefighter populations that are associated with
increased risks for cardiovascular disease and mortality. Factors that
resulted in increased risks of cardiac fatalities included volunteer
[[Page 7789]]
status and stress or overexertion (Sen et al., 2016, Document ID 0300);
participation in fire suppression activities (Smith et al., 2019,
Document ID 0303); and hypertension, a history of cardiovascular
disease, and smoking (Yang et al., 2013, Document ID 0309). Martin et
al. (2019, Document ID 0271) found that 68 percent of the firefighters
in one study population had two or more cardiovascular risk factors.
Obesity (Smith et al., 2022, Document ID 0294; Khaya et al., 2021,
Document ID 0242), reduced cardiorespiratory fitness (Smith et al.,
2022, Document ID 0294), metabolic syndrome or abnormal metabolic
syndrome components (Li et al., 2017, Document ID 0260), and elevated
blood pressures and/or hypertension (Lan et al., 2021, Document ID
0226; Bond et al., 2022, Document ID 0176; Khaja et al., 2021, Document
ID 0242) were highly prevalent among firefighters and could serve as
markers for cardiac dysfunction. Observed elevated blood pressures and/
or hypertension among firefighters was attributed to increased
psychological stress (Lan et al., 2021, Document ID 0226; Bond et al.,
2022, Document ID 0176; Khaja et al., 2021, Document ID 0242) and
increased frequency of work shifts (Choi et al., 2016, Document ID
0181).
A few studies examined methods that improved cardiovascular health.
Horn et al. (2013, Document ID 0219) and Mani et al. (2013, Document ID
0270) measured cardiovascular responses during specific workplace tasks
and activities and found that systolic blood pressures were
significantly lower during rest periods. Cash et al. (2021, Document ID
0190) found that firefighters who slept for recommended durations
(seven to nine hours) nearly doubled their likelihood of having ideal
cardiovascular health. OSHA has preliminarily determined that emergency
response activities can produce physiological and psychological strain
that is sufficient to trigger a cardiovascular event up to and
including sudden cardiac death. In addition, elevated core body
temperature, disrupted sleep patterns, noise from alarms and sirens,
circadian rhythm disruptions, overexertion, and stress associated with
emergency response occupations can contribute to the development of
cardiovascular disease. OSHA therefore preliminarily finds
justification to promulgate a standard which requires medical screening
and prevention programming for these responders. OSHA seeks additional
information and data on how emergency response activities contribute to
cardiovascular disease.
(iii) Respiratory Diseases and Other Respiratory Effects
Emergency responders, especially firefighters, can encounter a wide
variety of airborne respiratory hazards on the job, including gases,
fumes, and particulates. In addition, many emergency responders are
regularly exposed to diesel exhaust particulates in the course of their
jobs, both responding to emergency incidents and while in ESO
facilities where vehicle engines are started and run, such as in fire
stations (Sparer et al., 2018, Document ID 0292; Couch et al. 2016,
Document ID 0324). Emergency response equipment is commonly powered by
diesel fuel, a known respiratory irritant and carcinogen. Unless
adequate protective measures are taken, these exposures can impair
pulmonary function and may cause respiratory diseases such as chronic
obstructive pulmonary disease (COPD), bronchitis, and asthma (Barbosa
et al., 2022, Document ID 0173). OSHA reviewed several studies on
pulmonary function in firefighter populations. The studies identified
respiratory protection as crucial for preventing lung function decline
in responders.
First, as explained above, several evaluations, reports, and
studies that looked at emergency responder exposures to a variety of
hazardous chemicals indicated that respiratory effects (e.g., cough,
asthma-like symptoms) were the most frequently reported symptoms among
the emergency responders who were assessed (Melnikova et al., 2018,
Document ID 0246; Chiu et al., 2018a, Document ID 0191; Chiu et al.,
2018c, Document ID 0186; Fent et al., 2013, Document ID 0206; Eisenberg
et al., 2019, Document ID 0203; Brinker et al., 2013, Document ID 0177;
Brinker et al., 2015, Document ID 0175). Melnikova et al. (2018,
Document ID 0246) examined 566 acute chemical exposures among 1,460
emergency responders and found that respiratory system problems were
the most common adverse health effect, constituting 56.3 percent of all
adverse effects.
Studies also show that firefighters experience declines in lung
function after acute exposure events such as the World Trade Center
disaster response and wildland firefighting activities. Two studies,
both of which were reviews, reported accelerated pulmonary function
declines after the World Trade Center disaster (Slattery et al., 2018,
Document ID 0301; Rajnoveanu et al., 2022, Document ID 0273). A meta-
analysis of 32 articles identified small but statistically significant
short-term declines in lung function in response to occupational
exposure to wildland fires (Groot et al., 2019, Document ID 0212).
Rajnoveanu et al. (2022, Document ID 0273) included studies reporting
cross-season declines in wildland firefighter lung function. Similarly,
biomarker levels for oxidative stress were marginally higher following
exposure to wildland fire smoke in Wu et al. (2019, Document ID 0318),
suggesting that wildland fire smoke exposure can cause mild pulmonary
responses. Another study found that forced expiratory volume in one
second (FEV1) levels decreased (but non-significantly) after
wildland firefighting shifts and that cross-shift FEV1
declines were more pronounced in firefighters who were exposed to
higher levels of wood smoke (Gaughan et al., 2014, Document ID 0198).
The more general relationship between emergency responder exposure to
smoke and other harmful substances and lung function decline is less
clear. For example, COPD diagnosis among firefighters was not
significantly increased as compared to the general population in the
majority of the 43 studies assessed in the Rajnoveanu et al. (2022,
Document ID 0273) meta-analysis. Similarly, lung function was not
significantly different among firefighters in a meta-analysis of 24
studies (Barbosa et al., 2022, Document ID 0173). Researchers have
suggested that this could be explained by a number of factors,
including the ``healthy worker effect'' and the fact that many
emergency responders wear respiratory protection on the job (Rajnoveanu
et al., 2022, Document ID 0273; McCluskey et al., 2014, Document ID
0262). OSHA welcomes comments and evidence about emergency responders'
relative risk for COPD and other respiratory diseases.
OSHA has preliminarily determined that emergency responders are
exposed to combustion products and diesel exhaust that have been shown
to acutely affect lung function and may lead to chronic lung
conditions. OSHA therefore preliminarily finds justification to
promulgate a standard which requires protective equipment and practices
to limit exposure to these substances. In addition, since exposure
cannot be completely eliminated due to the nature of emergency response
activities, OSHA has preliminarily determined that a baseline
spirometry measurement and repeated measurement as deemed medically
appropriate is necessary for these responders to detect and respond to
[[Page 7790]]
lung-related health conditions as soon as possible in order to mitigate
long-term health impacts.
C. Behavioral Health
The intense and stressful (both physically and mentally) situations
that emergency responders encounter on the job place them at risk for a
range of behavioral health impacts. OSHA's review of the literature on
behavioral health among emergency responders covered general mental
health issues, substance use disorders, and suicide.
(i) General Mental Health
Emergency responders are exposed to traumatic, emotionally charged
events, and they may work long shifts, hold multiple jobs, and get
inadequate rest (Alexander and Klein, 2001, Document ID 0166; Patterson
et al., 2012, Document ID 0266; Weaver et al., 2015, Document ID 0298).
Lack of sleep, long working hours, working in isolated locations, and
repeated exposure to stressful scenarios are all risk factors for
developing mental health problems (Carey et al., 2011, Document ID
0183; Kshtriya et al., 2020, Document ID 0231; Donnelly, 2012, Document
ID 0201; Cash et al., 2020, Document ID 0193). OSHA's literature review
on mental health focused on depression, anxiety, stress, post-traumatic
stress symptoms, PTSD, and burnout.
Compared with the general population, emergency responders have
elevated rates of depression (Petrie et al., 2018, Document ID 0275;
SAMHSA, 2018, Document ID 0286; Jahnke et al., 2012, Document ID 0235),
stress (SAMHSA, 2018, Document ID 0286), PTSD (Jones et al., 2018,
Document ID 0229; Petrie et al., 2018, Document ID 0275; SAMHSA, 2018,
Document ID 0286), anxiety (Petrie et al., 2018, Document ID 0275), and
poor sleep (Cash et al., 2020, Document ID 0193). Some articles found
significant relationships between emergency response activities and
PTSD, emotion regulation difficulties, and thwarted belongingness
(Leonard and Vujanovic, 2021, Document ID 0255); alcohol use disorder,
PTSD, trauma load, depression, and anxiety (Lebeaut et al., 2021,
Document ID 0244; Lebeaut et al., 2020, Document ID 0276; Zegel et al.,
2021, Document ID 0320); tinnitus and occupational stress (Odes et al.,
2023, Document ID 0267); and stress and burnout on diminished safety
behaviors (Smith et al., 2020, Document ID 0306).
Multiple articles described healthy coping strategies and
techniques that improve mental health outcomes. These included:
exercise, having a strong interpersonal network, leadership support
(DeMoulin et al., 2022, Document ID 0196), and finding mental
fulfillment and enjoyment from the day's challenges and recovery
activities (Hruska and Barduhn, 2021, Document ID 0223). Obstacles to
improving mental health included: lack of resources (DeMoulin et al.,
2022, Document ID 0196), an absence of medical professionals who
understand situations unique to emergency responder occupations
(DeMoulin et al., 2022, Document ID 0196), occupational stressors
(Hruska and Barduhn, 2021, Document ID 0223), social conflict (Hruska
and Barduhn, 2021, Document ID 0223), and stigmatization (DeMoulin et
al., 2022, Document ID 0196).
Based on this review, OSHA has preliminarily determined that
emergency responders are exposed to traumatic events and psychological
stress that place them at increased risk of mental health issues such
as PTSD, depression, anxiety, and burnout. OSHA therefore preliminarily
finds justification to promulgate a standard which requires behavioral
health screening and prevention programming for these responders.
(ii) Suicide
According to the Firefighter Behavioral Health Alliance (FBHA), at
least 1,399 suicides occurred between 2011 and 2022 among firefighters,
emergency responders, and communication specialists (i.e., emergency
response dispatchers). The actual number may well be higher, as many
suicides are not reported or appropriately identified as work-related
(FBHA, 2023). OSHA found evidence that emergency responders are at
higher risk for suicidal ideation, plans, and attempts. One literature
review (Stanley et al., 2016, Document ID 0310) and several studies
(Abbott et al., 2015, Document ID 0169; Stanley et al., 2015, Document
ID 0312; Tiesman et al., 2015, Document ID 0295; Vigil et al., 2019,
Document ID 0296; Vigil et al., 2021, Document ID 0297) reported
approximately three and a half times higher rates of suicide ideation
and suicide attempts and approximately five times higher rates of
suicide plans among emergency responders when compared to the general
public. Stanley et al. (2017b, Document ID 0305) found that volunteer
firefighters reported elevated levels of suicide plans and attempts
compared to career firefighters. Hom et al. (2018, Document ID 0323)
concluded that women firefighters exposed to suicide during their
careers (either in professional or personal settings) are themselves at
increased suicide risk. Stanley et al. (2017a, Document ID 0304)
reported higher rates of suicidal ideation, suicide plans, and non-
suicidal self-injury among women firefighters compared to the general
U.S. population. Problematic alcohol use (Gallyer et al., 2018,
Document ID 0209), occupational stress (Stanley et al., 2018, Document
ID 0316), PTSD (Bing-Canar et al., 2019, Document ID 0174; Boffa et
al., 2017, Document ID 0189; Martin et al., 2017, Document ID 0254;
Stanley et al., 2019, Document ID 0308; Pennington et al., 2021,
Document ID 0263), depression (Martin et al., 2017, Document ID 0254),
and past physical and sexual abuse (Hom et al., 2017, Document ID 0217)
were contributors to suicide risk over the course of the responder's
career.
The issue of suicide in the emergency response community has become
so prevalent that in 2022, Congress passed and President Biden signed
into law, House Resolution 6943, the Public Safety Officer Support Act,
which added death by suicide to the causes of death that are eligible
for benefits under the U.S. Department of Justice, Bureau of Justice
Assistance's Public Safety Officers Benefits Program (PSOB).
OSHA has preliminarily determined that the traumatic events and
psychological stress that emergency responders are exposed to places
them at increased risk for death by suicide. OSHA therefore
preliminarily finds justification to promulgate a standard which
requires behavioral health resources for these responders.
(iii) Substance Use Disorders
Studies suggest that repeated exposure to traumatic situations can
lead to mental health strain and post-traumatic stress (Murphy et al.,
1999, Document ID 0280) coupled with substance use disorders (Hruska et
al., 2011, Document ID 0227) and resorting to substance use as a coping
mechanism (Vujanovic et al., 2011, Document ID 0317). During its
literature review, OSHA sought articles that examined whether emergency
responders have elevated rates of substance use. OSHA identified
multiple articles that focused on alcohol consumption among emergency
responders, two that addressed tobacco use, and one that spoke about
substance use disorders more broadly during the COVID-19 pandemic.
Overall, there is evidence that emergency responders are at
increased risk for problematic alcohol consumption. Several studies
observed a high prevalence of increased alcohol use and at-risk
drinking episodes for both male and female firefighters (Carey et al.,
2011, Document ID 0183; Gallyer
[[Page 7791]]
et al., 2018, Document ID 0209; Haddock et al., 2012, Document ID 0214,
Haddock et al., 2015, Document ID 0215, Haddock et al., 2017, Document
ID 0218; Meyer et al., 2012, Document ID 0272). A few studies indicated
higher rates of alcohol consumption during the first few years of fire
fighter/EMS service (Haddock et al., 2015, Document ID 0215; Piazza-
Gardner et al., 2014, Document ID 0248; Gulliver et al., 2019, Document
ID 0216) compared with fire fighters/EMS personnel with more years of
service. There is also some evidence that firefighters use alcohol as a
coping mechanism (Haddock et al., 2017, Document ID 0218; Rogers et
al., 2020, Document ID 0287; Tomaka et al., 2017, Document ID 0293).
Literature on tobacco use among emergency responders was limited.
Poston et al. (2012, Document ID 0277) indicated that smoking rates
among firefighters have generally declined, whereas smokeless tobacco
use has increased. Smoking regulations were cited as the primary reason
for declining smoking rates, but other common reasons included fire
service culture changes, impacts of smoking on job performance, and
smoking costs. Jitnarin et al. (2019, Document ID 0224) found that age-
adjusted smoking prevalence was lower among female firefighters (1.9
percent) than the prevalence observed for male firefighters (13.2
percent) and for adult women in the U.S. (13.5 percent). As for
smokeless tobacco, age-adjusted use in female firefighters (0.5
percent) was comparable with U.S. adult women (0.3 percent), but well
below rates observed for male firefighters (10.5 percent).
OSHA did not identify any published research that addresses the
prevalence of opioid use among emergency responders. An online article
(Jahnke, 2020, Document ID 0237) confirmed the absence of published
research, stating ``there is no available published research on the
rates of opioid use among first responder groups, so quantifying the
risk is not possible.'' That author did note, however, that ``it is
important to recognize that first responders are at a high risk for
opioid use disorder for several reasons,'' which were identified as
high risk of injury, risky health behavior, exposure to stressors,
behavioral health concerns, and sleep issues.
OSHA has preliminarily determined that the traumatic events and
psychological stress that emergency responders are exposed to places
them at increased risk of substance abuse. OSHA therefore preliminarily
finds justification to promulgate a standard which requires behavioral
health resources for these responders.
D. Exposure to Violence
At times, emergency responders encounter belligerent behaviors
because the people they are trying to help, their family members, or
nearby bystanders are not receptive to assistance. This can lead to
conflict and may result in emergency responders being subjected to
verbal aggression and/or physical violence, which can be a contributing
factor to mental health problems or cause injuries. Additionally,
emergency responders are sometimes called to respond to situations that
have a law enforcement aspect that has not been fully resolved or
contained by police (e.g., active shooter situations). Exposure to
violence incidents can result in both observable traumatic injuries as
well as significant mental health impacts. OSHA found multiple studies
that document workplace violence against emergency responders. Only one
study addressed emergency responders who were injured from violent
interactions. Taylor et al. found that male and female paramedics were
at increased likelihood of patient-initiated violent injury compared to
male and female firefighters (Taylor et al., 2016, Document ID 0313).
In the Murray et al. 2020 review (Document ID 0249), the authors found
violence to be the leading cause of stress and that stress was the most
frequent injury reported by EMS survey respondents. Violence exposure
was found to be associated with increased levels of stress, fear, and
anxiety in EMS responders. The review found that exposures to workplace
violence, especially cumulative exposures, in concert with other job
stressors, were associated with adverse mental health outcomes such as
anxiety, depression, and PTSD. Most other studies did not indicate
whether the violence actually led to adverse health effects, such as
mental health issues or physical injuries. The studies provide insight
on the types of violence occurring among emergency response populations
and the prevalence between different groups (e.g., men versus women).
Estimates of the proportion of emergency responders who reported
experiencing at least one type of violence on the job ranged from 57 to
93 percent (Gormley et al., 2016, Document ID 0208; Murray et al.,
2020, Document ID 0249). Survey-based results in Gormley et al. (2016,
Document ID 0208) found that verbal aggression was the most common form
experienced (67.0 percent), but physical violence was reported by 43.6
percent of respondents. These findings fell in line with the review-
based results (from 104 studies) provided in Murray et al. (2020,
Document ID 0249), which indicated that 21 to 88 percent of emergency
responders reported experiencing verbal aggression and 23 to 90 percent
reported experiencing physical violence. Additionally, multiple studies
assessed risks for occupational violence among different types of
emergency responders. Paramedics were found to be at significantly
higher risk for occupational violence compared to both firefighters
(Taylor et al., 2016, Document ID 0313; Murray et al., 2020, Document
ID 0249) and emergency medical technicians (Gormley et al., 2016,
Document ID 0208; NAEMT, 2019, Document ID 0264). In general,
responders who provided more direct patient care were at a higher risk
for violence (Murray et al., 2020, Document ID 0249).
Three studies investigated differences in workplace violence risks
between male and female emergency responders, with mixed results. NAEMT
(2019, Document ID 0264) found that percentages of reported physical
and verbal assaults among National Association of Emergency Medical
Technicians members were higher for males than females. In contrast,
Taylor et al. (2016, Document ID 0313) found that female responders had
increased odds (though not statistically significant) of suffering
patient-initiated violent injuries compared to male responders, and
Gormley et al. (2016) reported increased odds of experiencing physical
violence among female personnel compared to male personnel. The studies
do not break down violence exposure by race or ethnicity.
OSHA has preliminarily determined that emergency responders are
exposed to verbal aggression and physical violence at their workplaces
that may lead both to physical injury and to adverse behavioral health
outcomes.
B. Events Leading to the Proposed Rule
The existing 29 CFR 1910.156, Fire Brigades standard was
promulgated in 1980 (45 FR 60656 (Sept. 12, 1980)). In the time since,
there have been significant improvements in PPE and the guidance
provided by national consensus standards. In the aftermath of the
terrorist attacks on September 11, 2001, all government agencies,
including OSHA, were directed to strengthen their preparedness to
respond to terrorist attacks, major disasters, and other emergencies.
In response to this direction, the agency reviewed its standards
applicable to the safe conduct of emergency response and
[[Page 7792]]
identified gaps in the protections for emergency responders. The agency
determined that it should proceed in the process for potentially
updating its standard for Fire Brigades and consider including other
emergency responders.
In 2007, OSHA published a 41-question Request for Information (RFI)
for the public to evaluate what action, if any, the agency should take
to further address emergency response and preparedness (72 FR 51735
(Sept. 11, 2007)). The RFI encouraged commenters to provide input
covering the scope of emergency response operations, personal
protective clothing and equipment, training and qualifications, medical
evaluation and health monitoring, safety, and economic impacts related
to potential regulatory action. The agency received 85 responses
largely in support of updating the existing rule.
On July 30 and 31, 2014, OSHA hosted stakeholder meetings that
attracted 49 participants and approximately the same number of
observers (Document ID 0087). Participants represented a broad range of
emergency responders as well as allied stakeholders such as State plan
representatives, skilled support workers, and law enforcement. Broad
support for a comprehensive standard was evident in both days of
stakeholder meetings. Participants favored OSHA proceeding with
comprehensive rulemaking that covered a broad scope of emergency
preparedness and response workers rather than the agency's historical
perspective covering industrial fire brigades.
In September 2015, OSHA convened a NACOSH subcommittee to develop
recommendations, including regulatory text for a proposed rule, for
NACOSH to consider (Docket ID OSHA-2015-0019-0001). To assist the
Subcommittee, OSHA provided draft regulatory language for the purpose
of initiating and facilitating discussion (Docket ID OSHA-2015-0019-
0002, Ex. 5). The Subcommittee participants were subject matter experts
from major stakeholder entities that represented a broad range of
emergency response experts, who provided balance and a diversity of
views. The Subcommittee was co-chaired by two NACOSH members, a labor
representative, and a management representative.
The Subcommittee met for 12 days in six in-person meetings and held
numerous sub-group teleconferences from September 9, 2015, to September
9, 2016 (Docket ID OSHA-2015-0019). The members heard and discussed
reports from the subgroups, and deliberated on various issues, as they
developed their recommendations and proposed regulatory text. The
Subcommittee completed its recommendations for a proposed rule and
transmitted the documents to the full NACOSH in October 2016 (Docket ID
OSHA-2015-0019-0035).
NACOSH met on December 14, 2016, and after hearing some public
support for the project and deliberating over the draft document
developed by the Subcommittee, voted unanimously to recommend to the
Secretary of Labor that OSHA proceed with rulemaking using the draft
language as the basis for developing a proposed rule.
On October 4, 2021, OSHA convened a SBAR Panel for a potential
Emergency Response draft proposed standard (Document ID 0094). OSHA
convened this panel under section 609(b) of the RFA, 5 U.S.C. 601 et
seq., as amended by SBREFA. 5 U.S.C. 609(b).
The panel included representatives from OSHA, the Office of
Advocacy within the SBA, and the Office of Information and Regulatory
Affairs of the Office of Management and Budget. SERs made oral and
written comments on the draft regulatory framework and submitted them
to the panel. The Panel received advice and recommendations from the
SERs and reported its findings and recommendations to OSHA. OSHA has
taken SERs' comments and the Panel's findings and recommendations into
consideration in the development of the proposed rule.
The SBREFA Panel issued a report on December 2, 2021, which
included the SERs' comments. SERs expressed concerns about the impact
of the proposed rule on small and volunteer fire departments. Their
comments addressed potential costs associated with compliance with the
proposed rule's medical screening, physical fitness, and training
requirements. In addition, many SERs were concerned with OSHA's
extensive use of NFPA consensus standards in the development of the
draft regulation. They were concerned about the costs associated with
compliance with the proposed rule if OSHA incorporated by reference
certain NFPA standards (Document ID 0115).
I. Preliminary Determination of Significant Risk and Material
Impairment
As explained in section III, Pertinent Legal Authority, the OSH Act
and Supreme Court precedent require OSHA to determine, prior to issuing
a safety or health standard, that employees are being subjected to a
significant risk of serious injury or material impairment of health or
functional capacity by the hazards being targeted. OSHA has reviewed
the evidence currently in the record, including the data and scientific
studies discussed above; the comments received in response to the 2007
Emergency Response RFI, from SERs during the SBREFA process, and from
NACOSH; and industry consensus as evidenced in the various NFPA
consensus standards, and preliminarily determined that emergency
response activities place team members and responders at significant
risk of personal injury, several acute and chronic health conditions,
and death.
As identified above, the documented serious injuries suffered by
emergency responders are numerous, including fractures, sprains,
internal bodily trauma, dislocations, chemical burns, and chemical
pneumonia. There can also be little doubt that the morbidity and
mortality risks posed by cancer, cardiovascular disease, and lung
disease represent material impairments of health and functional
capacity. In addition, the adverse mental health outcomes resulting
from emergency response activities, including substance use disorder,
PTSD, depression, anxiety, burnout, and suicidality, can significantly
impair responders' quality of life and limit their ability to function
in daily life, can cause or exacerbate other physical conditions, and,
in the worst cases, can lead to death. Accordingly, OSHA preliminarily
finds these behavioral health effects represent a serious impairment of
health.
C. National Consensus Standards
In development of the proposed rule, OSHA extensively examined
numerous relevant consensus standards. The NFPA standards are available
to be viewed without cost at https://www.nfpa.org/for-professionals/codes-and-standards/list-of-codes-and-standards/free-access. ANSI/ISEA
standards are available for purchase at https://webstore.ansi.org. Many
of the provisions in the proposed rule are based on or consistent with
provisions in these standards. Additionally, OSHA is proposing to
incorporate by reference (IBR) several consensus standards.\2\
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\2\ In addition to revising 29 CFR 1910.6, Incorporation by
Reference, to include the consensus standards incorporated in this
proposal, OSHA is also taking this opportunity to make a number of
non-substantive revisions to align Sec. 1910.6 with updated Federal
Register requirements.
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In certain provisions of the proposed rule, OSHA would require
compliance with the relevant portions of the NFPA and ANSI/ISEA
standards incorporated by reference. In certain other provisions, OSHA
is proposing to require
[[Page 7793]]
Workplace Emergency Response Employers (WEREs) and Emergency Service
Organizations (ESOs) to provide protections at least equivalent to
various aspects of some of the NFPA standards listed below, such as
training job performance requirements being equivalent to those in the
consensus standard. In the latter case, compliance with the NFPA
standard would satisfy the requirement, but the ESOs and WEREs retain
flexibility to utilize alternative measures, so long as those measures
provide equivalent protection. Below is a list and description of the
national consensus standards that OSHA is proposing to IBR in whole or
in part.
NFPA 1001, Standard for Structural Fire Fighter Professional
Qualifications, 2019 ed. (Document ID 0138)--This standard contains the
minimum job performance requirements including the requisite knowledge
and skills to perform structural firefighting duties for career and
volunteer fire fighters through two progressive levels of
qualification.
NFPA 1002, Standard for Fire Apparatus Driver/Operator Professional
Qualifications, 2017 ed. (Document ID 0140)--This standard contains the
minimum job performance requirements including the requisite knowledge
and skills to drive and operate fire apparatus for career and volunteer
fire fighters and fire brigade personnel. The standard differentiates
requirements based on the type of apparatus driven such as pumper,
aerial, aerial with tiller, water tender, and others.
NFPA 1005, Standard for Professional Qualifications for Marine Fire
Fighting for Land-Based Fire Fighters, 2019 ed. (Document ID 0136)--
This standard contains the minimum job performance requirements
including the requisite knowledge and skills to perform marine fire
fighting for land-based fire fighters.
NFPA 1006, Standard for Technical Rescue Personnel Professional
Qualifications, 2021 ed. (Document ID 0149)--This standard contains the
minimum job performance requirements including the requisite knowledge
and skills to perform technical rescue operations for twenty different
rescue scenarios for fire service and other emergency responders who
perform these operations.
NFPA 1021, Standard for Fire Officer Professional Qualifications,
2020 ed. (Document ID 0144)--This standard contains the minimum job
performance requirements including the requisite knowledge and skills
to perform fire officer duties through four progressive levels of
qualification.
NFPA 1081, Standard for Facility Fire Brigade Member Professional
Qualifications, 2018 ed. (Document ID 0134)--This standard contains the
minimum job performance requirements including the requisite knowledge
and skills to perform fire brigade operations from incipient facility
fire brigade member through fire brigade leader, and also fire brigade
training coordinator, and support member.
NFPA 1140, Standard for Wildland Fire Protection, 2022 ed.
(Document ID 0153)--This standard contains requirements for wildland
fire management as well as the job performance requirements including
the requisite knowledge and skills to perform wildland fire positions.
Included in the standard are requirements for fighting wildland/urban
interface fires.
NFPA 1407, Standard for Training Fire Service Rapid Intervention
Crews, 2020 ed. (Document ID 0143)--This standard contains requirements
for training fire service personnel to safely perform rapid
intervention operations to rescue firefighters who become lost,
injured, trapped, incapacitated, or disoriented at an emergency scene
or during training operations.
NFPA 1582, Standard on Comprehensive Occupational Medical Program
for Fire Departments, 2022 ed. (Document ID 0118)--This standard
contains provisions for an occupational medical program that is
designed to reduce risks and provide for the health, safety, and
effectiveness of fire fighters while performing emergency operations.
NFPA 1910, Standard for the Inspection, Maintenance, Refurbishment,
Testing, and Retirement of In-Service Emergency Vehicles and Marine
Firefighting Vessels, 2024 ed. (Document ID 0151)--This standard
contains requirements for establishing an inspection, maintenance,
refurbishment, retirement, and testing program for emergency service
vehicles and marine firefighting vessels and provides the minimum job
performance requirements including the requisite knowledge and skills
for emergency vehicle technicians.
NFPA 1951, Standard on Protective Ensembles for Technical Rescue
Incidents, 2020 ed. (Document ID 0347)--This standard specifies the
minimum design, performance, testing, and certification requirements
for utility technical rescue, rescue and recovery technical rescue, and
chemical, biological, radiological, and nuclear (CBRN) technical rescue
protective ensembles including garments, helmets, gloves, footwear,
interface, and eye and face protection.
NFPA 1952, Standard on Surface Water Operations Protective Clothing
and Equipment, 2021 ed. (Document ID 0348)--This standard specifies the
minimum design, performance, testing, and certification requirements
for protective clothing and equipment items, including full body suits,
helmets, gloves, footwear, and personal flotation devices designed to
provide limited protection from physical, environmental, thermal, and
certain common chemical and biological hazards for emergency services
personnel during surface water, swift water, tidal water, surf, and ice
operations.
NFPA 1953, Standard on Protective Ensembles for Contaminated Water
Diving, 2021 ed. (Document ID 0349)--This standard specifies the
minimum design, performance, testing, and certification requirements
for protective clothing and protective equipment used during operations
in contaminated water dive operations.
NFPA 1971, Standard on Protective Ensembles for Structural Fire
Fighting and Proximity Fire Fighting, 2018 ed. (Document ID 0350)--This
standard specifies the minimum design, performance, testing, and
certification requirements for structural and proximity firefighting
protective ensembles and ensemble elements.
NFPA 1977, Standard on Protective Clothing and Equipment for
Wildland Fire Fighting and Urban Interface Fire Fighting, 2022 ed.
(Document ID 0351)--This standard specifies the minimum design,
performance, testing, and certification requirements for items of
wildland fire fighting and wildland-urban interface firefighting
protective clothing and equipment including protective garments,
helmets, gloves, footwear, goggles, chain saw protectors, and load-
carrying equipment.
NFPA 1981, Standard on Open-Circuit Self-Contained Breathing
Apparatus (SCBA) for Emergency Services, 2019 ed. (Document ID 0139)--
This standard contains requirements for the design, performance,
testing, and certification of new SCBA used by emergency service
personnel.
NFPA 1982, Standard on Personal Alert Safety Systems (PASS), 2018
ed. (Document ID 0352)--This standard specifies the minimum
requirements for the design, performance, testing, and certification
for all personal alert safety systems (PASS) for emergency services
personnel.
NFPA 1984, Standards on Respirators for Wildland Fire-Fighting
Operations and Wildland Urban Interface Operations, 2022 ed. (Document
ID
[[Page 7794]]
0353)--This standard specifies the minimum design, performance,
testing, and certification requirements for respirators to provide
protection from inhalation hazards for personnel conducting wildland
firefighting operations for use in non-immediately dangerous to life or
health (IDLH) wildland environments during wildland firefighting
operations and/or wildland urban interface operations.
NFPA 1986, Standard on Respiratory Protection Equipment for
Tactical and Technical Operations, 2023 ed. (Document ID 0354)--This
standard specifies the minimum requirements for the design,
performance, testing, and certification of new compressed breathing air
open-circuit SCBA and compressed breathing air combination open-circuit
SCBA and supplied air respirators and replacement parts, components,
and accessories for the respirators for use by emergency services
personnel in non-firefighting operations where the atmosphere is
categorized as IDLH.
NFPA 1987, Standard on Combination Unit Respirator Systems for
Tactical and Technical Operations, 2023 ed. (Document ID 0355)--This
standard specifies the minimum requirements for the design,
performance, testing, and certification of new combination unit
respirator systems and for the replacement parts, components, and
accessories for such respirators for emergency services personnel in
non-firefighting operations and in atmospheres that are categorized as
entry into and escape from IDLH atmospheres in open-circuit SCBA mode
and entry into non-IDLH and escape from IDLH and non-IDLH atmospheres
when in air-purifying respirator (APR) mode or powered air-purifying
respirator (PAPR) mode.
NFPA 1990, Standard for Protective Ensembles for Hazardous
Materials and CBRN Operations, 2022 ed. (Document ID 0356)--This
standard specifies the minimum design, performance, testing,
documentation, and certification requirements for new ensembles and new
ensemble elements that are used by emergency responders during
hazardous materials emergencies and CBRN (chemical, biological,
radiological and nuclear) terrorism incidents.
NFPA 1999, Standard on Protective Clothing and Ensembles for
Emergency Medical Operations, 2018 ed. (Document ID 0357)--This
standard specifies the minimum design, performance, testing,
documentation, and certification requirements for new single-use and
new multiple-use emergency medical operations protective clothing
including garments, helmets, gloves, footwear, and face protection
devices used by emergency medical responders prior to arrival at
medical care facilities and used by medical first receivers at medical
care facilities during emergency medical operations. The standard also
applies to health care workers providing medical and supportive care;
however these workers are not covered by the proposed rule.
ANSI/ISEA 207, American National Standard for High-Visibility
Public Safety Vests, 2011 ed. (Document ID 0358)--This standard
specifies performance requirements for high-visibility vests for use by
public safety workers which are intended to provide conspicuity of the
user in hazardous situations under any light conditions by day and
under illumination by vehicle headlights in the dark. Performance
requirements are included for color, retroreflection, and minimum
areas, as well as the suggested configuration of highly visible
materials used in the construction of high-visibility public safety
vests. Test methods are provided in the standard to ensure that a
minimum level of visibility is maintained when items are subjected to
ongoing care procedures.
The following NFPA standards, although not being formally
incorporated into the proposed standard, were extensively examined and
many of the provisions in the proposed rule are based on or are
consistent with provisions in them:
NFPA 10, Standard for Portable Fire Extinguishers, 2022 ed.
(Document ID 0345)--This standard contains requirements for the
selection, installation, inspection, maintenance, recharging, and
testing of portable fire extinguishers and Class D extinguishing
agents.
NFPA 600, Standard on Facility Fire Brigades, 2020 ed. (Document ID
0133)--This standard contains requirements for organizing, operating,
training, and equipping facility fire brigades for response to fires in
industrial, commercial, institutional, and similar properties; and for
the occupational safety and health of brigade members while performing
their duties.
NFPA 1201, Standard for Providing Fire and Emergency Services to
the Public, 2020 ed. (Document ID 0141)--This standard contains
requirements on the structure and operations of fire emergency service
organizations that provide a wide range of services to the community.
The standard serves as guidance for organizations that provide services
to protect lives, property, infrastructure, and the environment from
the effects of hazards.
NFPA 1451, Standard for a Fire and Emergency Service Vehicle
Operations Training Program, 2018 ed. (Document ID 0137)--This standard
contains the requirements for a fire and emergency service vehicle
operations training program including the knowledge and skills required
of safety, training, maintenance, and administrative officers assigned
to develop and implement the program.
NFPA 1500, Standard on Fire Department Occupational Safety, Health,
and Wellness Program, 2021 ed. (Document ID 0135)--This standard
contains requirements for occupational safety, health, and wellness
programs for fire departments.
NFPA 1521, Standard for Fire Department Safety Officer Professional
Qualifications, 2020 ed. (Document ID 0147)--This standard contains job
performance requirements for the assignment of a health and safety
officer and an incident safety officer for a fire department to ensure
responders holding these positions are qualified for the jobs.
NFPA 1561, Standard on Emergency Services Incident Management
System and Command Safety, 2020 ed. (Document ID 0145)--This standard
contains requirements for the development and implementation of an
incident management system that is intended to be used by emergency
services and apply to operations conducted at the scene of all types of
emergency incidents. The standard is intended to integrate with systems
that apply to multiple agencies and large-scale incidents.
NFPA 1581, Standard on Fire Department Infection Control Program,
2022 ed. (Document ID 0148)--This standard contains requirements for a
fire department infection control program that includes infection
control in the fire station, in fire apparatus, at incident scenes, and
any other routine or emergency operations.
NFPA 1660, Standard for Emergency, Continuity, and Crisis
Management: Preparedness, Response, and Recovery, 2024 ed. (Document ID
0359)--This standard establishes a common set of criteria for emergency
management and business continuity programs; mass evacuations,
sheltering, and re-entry programs; and development of pre-incident
plans for personnel responding to emergencies.
NFPA 1700, Guide for Structural Fire Fighting, 2021 ed. (Document
ID 0150)--This guide addresses research in fire dynamics that have led
to alterations in fire behavior models that
[[Page 7795]]
have been taught in the fire service for decades and that support
changes needed in structural fire-fighting strategy, tactics, and
tasks.
NFPA 1710, Standard for the Organization and Deployment of Fire
Suppression Operations, Emergency Medical Operations, and Special
Operations to the Public by Career Fire Departments, 2020 ed. (Document
ID 0146)--This standard contains requirements for the organization and
deployment of fire suppression operations, emergency medical
operations, and special operations to the served community by career
fire departments. The standard also contains system requirements for
health and safety, incident management, training, communications, and
pre-incident planning.
NFPA 1720, Standard for the Organization and Deployment of Fire
Suppression Operations, Emergency Medical Operations, and Special
Operations to the Public by Volunteer Fire Departments, 2020 ed.
(Document ID 0142)--This standard contains requirements for the
organization and deployment of fire suppression operations, emergency
medical operations, and special operations to the served community by
volunteer and combination fire departments. The standard also contains
system requirements for health and safety, incident management,
training, communications, and pre-incident planning.
NFPA 1851, Standard on Selection, Care, and Maintenance of
Protective Ensembles for Structural Fire Fighting and Proximity Fire
Fighting, 2020 ed. (Document ID 0346)--This standard contains
requirements for the selection, care, and maintenance structural and
proximity fire fighter protective ensembles and the individual ensemble
elements that include garments, helmets, gloves, footwear, and
interface components.
NFPA 2500, Standard for Operations and Training for Technical
Search and Rescue Incidents and Life Safety Rope and Equipment for
Emergency Services, 2022 ed. (Document ID 0152)--This standard contains
requirements for conducting operations at a wide range of technical
search and rescue incidents; for the design, performance, testing, and
certification of life safety rope and other search and rescue
equipment; and for the selection, care, and maintenance of rope and
search and rescue equipment for emergency services.
As noted in the SBAR Panel Report, during the teleconferences and
in written public comments several SERs expressed concern with the
potential expense of time and money in having to comply with the
provisions in NFPA standards (Document ID 0115, pp. 16-17/370; 18/370;
21/370; 33/370; 57-58/370). In Question II. C, OSHA is seeking input on
the potential impacts of incorporating by reference of various NFPA
standards, and how equivalency or consistency could be achieved if the
NFPA standards were not incorporated by reference. NFPA makes their
standards available to be viewed without cost at https://www.nfpa.org/Codes-and-Standards/All-Codes-and-Standards/Free-access or for purchase
at https://catalog.nfpa.org/Codes-and-Standards-C3322.aspx.
The agency is aware that the NFPA is currently in the process of
combining many of their standards into larger consolidated standards
(see https://www.nfpa.org/Codes-and-Standards/Resources/Standards-in-action/Emergency-Response-and-Responder-Safety-Project). OSHA will
review the consolidated standards during development of a potential
final rule. The referenced standards that will be affected by the
consolidation project are the following:
NFPA 1001, NFPA 1002, NFPA 1003, and NFPA 1005 will become NFPA
1010, Standard for Firefighter, Fire Apparatus Driver/Operator, Airport
Firefighter, and Marine Firefighting for Land-Based Firefighters
Professional Qualifications, scheduled for 2024.
NFPA 1021 and other standards will become NFPA 1020, Standard for
Fire Officer and Emergency Services Instructor Professional
Qualifications, scheduled for 2025.
NFPA 1407, NFPA 1451 and other standards will become NFPA 1400,
Standard on Fire Service Training, scheduled for 2026.
NFPA 1581, NFPA 1582 and other standards will become NFPA 1580,
Standard for Emergency Responder Occupational Health and Wellness,
scheduled for 2025.
NFPA 1201, NFPA 1710, NFPA 1720, and other standards will become
NFPA 1750, Standard for the Organization and Deployment of Fire
Suppression Operations, Emergency Medical Operations, and Providing
Fire and Emergency Services to the Public, scheduled for 2026.
NFPA 1981, NFPA 1982 and other standards will become NFPA 1970,
Standard on Protective Ensembles for Structural and Proximity
Firefighting, Work Apparel and Open-Circuit Self-Contained Breathing
Apparatus (SCBA) for Emergency Services, and Personal Alert Safety
Systems (PASS), scheduled for 2024.
NFPA 1951, NFPA 1977, and NFPA 1999 will become NFPA 1950, Standard
on Protective Clothing, Ensembles, and Equipment for Technical Rescue
Incidents, Emergency Medical Operations, and Wildland Firefighting, and
Urban Interface Firefighting, scheduled for 2025.
NFPA 1952 and NFPA 1953 will become NFPA 1955, Standard on Surface
Water Operations Protective Clothing and Equipment and Protective
Ensembles for Contaminated Water Diving, scheduled for 2025.
NFPA 1984 and NFPA 1989 will become NFPA 1985, Standard on
Breathing Air Quality for Emergency Services Respiratory Protection and
Respirators for Wildland Firefighting and Wildland Urban Interface
Operations, scheduled for 2026.
III. Pertinent Legal Authority
A. Introduction
The purpose of the Occupational Safety and Health Act, 29 U.S.C.
651 et seq. (``the Act'' or ``the OSH Act''), is ``to assure so far as
possible every working man and woman in the Nation safe and healthful
working conditions and to preserve our human resources'' (29 U.S.C.
651(b)). To achieve this goal, Congress authorized the Secretary of
Labor (``the Secretary'') ``to set mandatory occupational safety and
health standards applicable to businesses affecting interstate
commerce'' (29 U.S.C. 651(b)(3); see also 29 U.S.C. 654(a) (requiring
employers to comply with OSHA standards)). Section 6(b) of the Act
authorizes the promulgation, modification or revocation of occupational
safety or health standards pursuant to detailed notice and comment
procedures (29 U.S.C. 655(b)).
B. Coverage
I. Volunteers
The OSH Act requires ``[e]ach employer'' to ``comply with
occupational safety and health standards promulgated under this Act''
(29 U.S.C. 654(a)(2)). The term ``employer'' is defined as ``a person
engaged in a business affecting commerce who has employees, but does
not include the United States (not including the United States Postal
Service) or any State or political subdivision of a State'' (29 U.S.C.
652(5) (emphasis added)). This proposed standard would cover some
emergency service organizations (ESOs) whose responders may be referred
to as volunteers rather than employees. However, whether an emergency
response worker is an employee, and
[[Page 7796]]
therefore whether the standard would apply to that worker's ESO, does
not depend on the label assigned by the ESO. The following discussion
lays out the relevant legal principles governing employment status
under the OSH Act. For a more detailed discussion of how OSHA expects
these principles to apply in the context of this proposed standard, see
the Summary and Explanation for paragraph (a), Scope, under the heading
Coverage for Volunteers.
The Act defines an ``employee'' as ``an employee of an employer who
is employed in a business of his employer which affects commerce'' (29
U.S.C. 652(6)). Because this definition is circular, courts apply the
test for employee status enunciated in Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 322-23 (1992) (see Quinlan v. Secretary, U.S.
Dep't of Labor, 812 F.3d 832, 836 (11th Cir. 2016); Slingluff v.
Occupational Safety and Health Review Comm'n, 425 F.3d 861, 867-68
(10th Cir. 2005)). In Darden the Supreme Court set forth the following
test for employee status: ``In determining whether a hired party is an
employee under the general common law of agency, we consider the hiring
party's right to control the manner and means by which the product is
accomplished'' (Id. at 323) (internal quotation marks omitted). The
Court went on to list a number of factors which relate to the right to
control (Id.).
The Darden Court's use of the phrase ``hired party'' indicates that
an essential prerequisite for employee status is that the worker
receive some form of compensation for services performed (see also
N.L.R.B. v. Town & Country Elec., Inc., 516 U.S. 85, 90 (1995) (``The
ordinary dictionary definition of `employee' includes any `person who
works for another in return for financial or other compensation.'
American Heritage Dictionary 604 (3d ed. 1992).'') (emphasis added).
Accordingly, seven Federal courts of appeals have adopted the so-called
threshold remuneration test (Acosta v. Cathedral Buffet, Inc., 887 F.3d
761, 766-67 (6th Cir. 2018); Juino v. Livingston Parish Fire Dist. No.
5, 717 F.3d 431, 435-40 (5th Cir. 2013); Pietras v. Bd. of Fire Comm'rs
of Farmingville Fire Dist., 180 F.3d 468 (2d Cir. 1999) (firefighter
regarded as employee despite being called a volunteer because of
benefits received); McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d
974, 979 (10th Cir. 1998); Llampallas v. Mini-Circuits Lab, Inc., 163
F.3d 1236, 1243-44 (11th Cir. 1998); Haavistola v. Cmty. Fire Co. of
Rising Sun, Inc., 6 F.3d 211, 220-21 (4th Cir. 1993); Graves v. Women's
Prof'l Rodeo Ass'n, Inc., 907 F.2d 71, 73 (8th Cir. 1990)). Only one
Federal court of appeals does not require a showing of compensation to
find employee status (Fichman v. Media Center, 512 F.3d 1157, 110 (9th
Cir. 2008)).
Remuneration may be direct remuneration, i.e., salary or wages, or
significant indirect benefits that are not incidental to the service
performed, i.e., job-related benefits (Juino, 717 F.3d at 437; Pietras,
180 F.3d at 473; Haavistola, 6 F.3d at 221-22). For example,
significant indirect benefits may consist of a retirement pension, life
insurance, death benefits, disability insurance, and some medical
benefits (Pietras, 180 F.3d at 471). Similarly, the provision of food,
clothing, shelter, and other in-kind benefits may be significant
remuneration (see Tony and Susan Alamo Foundation v. Secretary of
Labor, 471 U.S. 290, 292, 299-303 (interpreting ``employee'' under the
Fair Labor Standards Act); but see Fichman, 512 F.3d at 1160 (travel
reimbursements and food at board meetings insufficient to render board
member of nonprofit organization an employee under related test for
determining employee status of directors)). Minor incidental benefits
do not suffice to meet the threshold remuneration test (see Juino, 717
F.3d at 339-440 (receipt of $78 for 39 service calls, life insurance,
uniform, badge, and emergency/first responders training do not
suffice)).
In addition to these principles, volunteer emergency responders may
be deemed employees under State law in States with occupational safety
and health plans approved by OSHA under section 18 of the Act (29
U.S.C. 667). See the Summary and Explanation of paragraph (a), Scope,
for further discussion on this issue.
II. Private-Sector Coverage
With the exception of the United States Postal Service,
occupational safety and health standards issued under section 6 of the
OSH Act apply only to private-sector employers.\3\ They do not apply to
any ``State or a political subdivision of a State'' \4\ (29 U.S.C.
652(5)). Accordingly, this proposed standard would not apply to any
State or local government entities determined to be a political
subdivision of a State. Note, however, that States with OSHA-approved
State Plans pursuant to section 18 of the OSH Act, 29 U.S.C. 667, would
be required to treat public-sector employees the same as they do
private-sector employees when adopting and enforcing a standard at
least as effective as any final standard which may result from this
rulemaking. This issue is discussed separately in section VIII.G,
Requirements for States with OSHA Approved State Plans.
---------------------------------------------------------------------------
\3\ Pursuant to section 19 of the OSH Act (29 U.S.C. 668) and
Executive Order 12196, Federal agency occupational safety and health
programs are established by each agency head and must be consistent
with the standards promulgated under section 6 of the Act.
Accordingly, Federal agencies must comply with all applicable
section 6 standards unless an alternative standard is approved by
the Secretary (see 29 CFR 1960.16 and 1960.17).
\4\ Under the Act the term ``State'' includes a State of the
United States, the District of Columbia, Puerto Rico, the Virgin
Islands, American Samoa, and Guam (29 U.S.C. 652(7)). The
Commonwealth of the Northern Mariana Islands is also a State because
the covenant establishing the Commonwealth provides that generally
applicable Federal laws which apply to Guam also apply to the
Commonwealth as they do to Guam. Article V, section 502(a), Covenant
to Establish a Commonwealth of the Northern Mariana Islands in
Political Union with the United States of America. Public Law 94-24,
90 Stat. 263 (Mar. 24, 1976). Thus, because Guam is a State under
the OSH Act so is the Commonwealth.
---------------------------------------------------------------------------
Under OSHA's regulations, an entity is a ``State or political
subdivision of a State'' if (1) it has been ``created directly by the
State, so as to constitute a department or administrative arm of the
government,'' or (2) it is ``administered by individuals who are
controlled by public officials and responsible to such officials or to
the general electorate'' (29 CFR 1975.5(b); cf. N.L.R.B. v. Natural Gas
Util. Dist. of Hawkins County, Tenn., 402 U.S. 600 (1971)). Any such
entity shall be deemed outside the Act's definition of employer, and,
consequently, not subject to the Act as an employer (29 CFR 1975.5(b)).
Paragraph (c) of 29 CFR 1975.5 lists a number of factors used to
determine whether one or both of these tests has been met. One
important factor under the second test is whether the individuals who
administer the entity are appointed by a public official or elected by
the general electorate. Other issues relate to the terms and conditions
of the appointment, to the identity of the person who may dismiss such
individuals, and to the procedures for dismissal. For example, in
StarTran, Inc. v. Occupational Safety and Health Review Comm'n, 608
F.3d 312 (5th Cir. 2010), the court held that a nonprofit corporation
established by a transit district to supply bus drivers and mechanics
was a political subdivision under the second test because all the
members of StarTran's board were appointed and subject to removal by
the transit district. In contrast, in Brock v. Chicago Zoological
Society, 820 F.2d 909 (7th Cir. 1987), only one member of the Society's
thirty-five member board of trustees was a public official; the other
board members were chosen by 240 governing members, only four of whom
were public officials. Thus, the
[[Page 7797]]
court found that the Society was not a political subdivision within the
meaning of the OSH Act, despite its contract with a local forest
preserve district, a governmental entity. Similarly, in Tricil
Resources v. Brock, 842 F.2d 141 (6th Cir. 1988), a private for-profit
corporation which had a contract with a city and none of whose board
members were appointed or subject to removal by the city was not a
political subdivision within the meaning of the Act. Thus, as a general
rule, if a majority of the board of directors of an entity are not
subject to selection or removal by public officials or the general
electorate, the entity for that reason fails the second test for being
a political subdivision (see StarTran, 608 F.3d at 323). OSHA will
consider these factors in determining whether the proposed standard
applies to a particular entity.
C. General Requirements for Occupational Safety and Health Standards
A safety or health standard is a standard which requires
conditions, or the adoption or use of one or more practices, means,
methods, operations, or processes ``reasonably necessary or
appropriate'' to provide safe or healthful employment and places of
employment (29 U.S.C. 652(8)). A standard is reasonably necessary or
appropriate within the meaning of section 652(8) when a significant
risk of material harm exists in the workplace and the standard would
substantially reduce or eliminate that workplace risk (see Indus. Union
Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980)
(``Benzene'')).
The Supreme Court in Benzene clarified that ``[i]t is the agency's
responsibility to determine, in the first instance, what it considers
to be a `significant' risk'' (Benzene, 448 U.S. at 655). The Court
declined to ``express any opinion on the . . . difficult question of
what factual determinations would warrant a conclusion that significant
risks are present which make promulgation of a new standard reasonably
necessary or appropriate'' (Id. at 659). The Court stated, however,
that the substantial evidence standard applicable to OSHA's significant
risk determination (see 29 U.S.C. 655(b)(f)) does not require the
agency ``to support its finding that a significant risk exists with
anything approaching scientific certainty'' (Benzene, 448 U.S. at 656).
Rather, OSHA may rely on ``a body of reputable scientific thought'' to
which ``conservative assumptions in interpreting the data'' may be
applied, ``risking error on the side of overprotection'' (Id.). The
D.C. Circuit has further explained that OSHA may thus act with a
pronounced bias towards worker safety in making its risk determinations
(Bldg & Constr. Trades Dep't v. Brock, 838 F.2d 1258, 1266 (D.C. Cir.
1988) (``Asbestos II'')).
The Supreme Court further recognized that the determination of what
constitutes ``significant risk'' is ``not a mathematical straitjacket''
and will be ``based largely on policy considerations'' (Benzene, 448
U.S. at 655 & n.62). The Court gave the following example: ``If . . .
the odds are one in a billion that a person will die from cancer by
taking a drink of chlorinated water, the risk clearly could not be
considered significant. On the other hand, if the odds are one in a
thousand that regular inhalation of gasoline vapors that are 2% benzene
will be fatal, a reasonable person might well consider the risk
significant[.]'' (Id. at 655).
In addition to the requirement that each standard address a
significant risk, standards must also be technologically feasible (see
UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994)). A standard is
technologically feasible when the protective measures it requires
already exist, when available technology can bring the protective
measures into existence, or when that technology is reasonably likely
to develop (see Am. Iron and Steel Inst. v. OSHA, 939 F.2d 975, 980
(D.C. Cir. 1991)).
Finally, a standard must be economically feasible (see Forging
Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1453 (4th Cir.
1985)). A standard is economically feasible if industry can absorb or
pass on the costs of compliance without threatening its long-term
profitability or competitive structure (see American Textile Mfrs.
Inst., Inc., 452 U.S. 490, 530 n. 55 (``Cotton Dust'')). Each of these
requirements is discussed further below.
D. Special Considerations for Health Standards
The proposed standard deals in part with the exposure of
firefighters, emergency medical service providers, and technical
rescuers to toxic substances. Section 6(b)(5) of the Act provides that
in promulgating standards dealing with ``toxic materials or harmful
physical agents,'' the Secretary ``shall set the standard which most
adequately assures, to the extent feasible, on the basis of the best
available evidence, that no employee will suffer material impairment of
health or functional capacity even if such employee has regular
exposure to the hazard dealt with by such standard for the period of
his working life'' (29 U.S.C. 655(b)(5)). Thus, ``[w]hen Congress
passed the [OSH] Act in 1970, it chose to place pre-eminent value on
assuring employees a safe and healthful working environment, limited
only by the feasibility of achieving such an environment'' (Cotton
Dust, 452 U.S. at 541). ``OSHA is not required to state with scientific
certainty or precision the exact point at which each type of [harm]
becomes a material impairment'' (AFL-CIO v. OSHA, 965 F.2d 962, 975
(11th Cir. 1992)). Courts have also noted that OSHA should consider all
forms and degrees of material impairment--not just death or serious
physical harm (AFL-CIO, 965 F.2d at 975).
In acting to protect workers from health hazards the Secretary is
authorized to require employers to offer medical examinations. Section
6(b)(7) of the Act provides that ``where appropriate, any such standard
shall prescribe the type and frequency of medical examinations or other
tests which shall be made available, by the employer or at his cost, to
employees exposed to such hazards in order to most effectively
determine whether the health of such employees is adversely affected by
such exposure'' (29 U.S.C. 655(b)(7)).
E. Significant Risk
As explained above, OSHA's workplace safety and health standards
must address a significant risk of material harm that exists in the
workplace (see Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448
U.S. 607 (1980) (``Benzene'')). The agency's risk assessments are based
on the best available evidence, and its final conclusions are made only
after considering all information in the rulemaking record. Reviewing
courts have upheld the Secretary's significant risk determinations
where supported by substantial evidence and ``a reasoned explanation
for his policy assumptions and conclusions'' (Asbestos II, 838 F.2d at
1266).
Once OSHA makes its significant risk finding, the standard it
promulgates must be ``reasonably necessary or appropriate'' to reduce
or eliminate that risk. In choosing among regulatory alternatives,
however, ``[t]he determination that [one standard] is appropriate, as
opposed to a marginally [more or less protective] standard, is a
technical decision entrusted to the expertise of the agency'' (Nat'l
Mining Ass'n v. Mine Safety and Health Admin., 116 F.3d 520, 528 (D.C.
Cir. 1997) (analyzing a Mine Safety and Health Administration standard
under the Benzene significant risk standard)). In making its choice,
OSHA may
[[Page 7798]]
incorporate a margin of safety even if it theoretically regulates below
the lower limit of significant risk (Nat'l Mining Ass'n, 116 F.3d at
528 (citing American Petroleum Inst. v. Costle, 665 F.2d 1176, 1186
(D.C. Cir. 1982))).
F. Best Available Evidence
Section 6(b)(5) of the Act requires OSHA to set standards ``on the
basis of the best available evidence'' and to consider the ``latest
available scientific data in the field'' (29 U.S.C. 655(b)(5)). As
noted above, the Supreme Court has explained that OSHA must look to ``a
body of reputable scientific thought'' in making its material harm and
significant risk determinations, while noting that a reviewing court
must ``give OSHA some leeway where its findings must be made on the
frontiers of scientific knowledge'' (Benzene, 448 U.S. at 656). In
upholding the vinyl chloride standard, the Second Circuit stated:
``[T]he ultimate facts here in dispute are `on the frontiers of
scientific knowledge,' and, though the factual finger points, it does
not conclude. Under the command of OSHA, it remains the duty of the
Secretary to act to protect the workingman, and to act even in
circumstances where existing methodology or research is deficient''
(Society of the Plastics Industry, Inc. v. OSHA, 509 F.2d 1301, 1308
(2d Cir. 1975) (quoting Indus. Union Dep't, AFL-CIO v. Hodgson, 499
F.2d 467, 474 (D.C. Cir. 1974) (``Asbestos I''))). Similarly, the D.C.
Circuit has stated that when there is disputed scientific evidence in
the record, OSHA must review the evidence on both sides and
``reasonably resolve'' the dispute (Pub. Citizen Health Research Grp.
v. Tyson, 796 F.2d 1479, 1500 (D.C. Cir. 1986)).
G. Feasibility
The statutory mandate to consider the feasibility of the standard
encompasses both technological and economic feasibility; these analyses
have been done primarily on an industry-by-industry basis (Lead I, 647
F.2d at 1264, 1301). The agency has also used application groups,
defined by common tasks, as the structure for its feasibility analyses
(Pub. Citizen Health Research Grp. v. OSHA, 557 F.3d 165, 177-79 (3d
Cir. 2009)). The Supreme Court has broadly defined feasible as
``capable of being done'' (Cotton Dust, 452 U.S. at 509-10).
I. Technological Feasibility
A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that can reasonably be
expected to be developed (Lead I, 647 F.2d at 1272; Amer. Iron & Steel
Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991) (``Lead II'')).
Courts have also interpreted technological feasibility to mean that a
typical firm in each affected industry or application group will
reasonably be able to implement the requirements of the standard in
most operations most of the time (see Public Citizen v. OSHA, 557 F.3d
165, 170-71 (3d Cir. 2009); Lead I, 647 F.2d at 1272; Lead II, 939 F.2d
at 990)). OSHA's standards may be ``technology forcing,'' i.e., where
the agency gives an industry a reasonable amount of time to develop new
technologies, OSHA is not bound by the ``technological status quo''
(Lead I, 647 F.2d at 1264).
II. Economic Feasibility
In addition to technological feasibility, OSHA is required to
demonstrate that its standards are economically feasible. A reviewing
court will examine the cost of compliance with an OSHA standard ``in
relation to the financial health and profitability of the industry and
the likely effect of such costs on unit consumer prices'' (Lead I, 647
F.2d at 1265 (omitting citation)). As articulated by the D.C. Circuit
in Lead I, ``OSHA must construct a reasonable estimate of compliance
costs and demonstrate a reasonable likelihood that these costs will not
threaten the existence or competitive structure of an industry, even if
it does portend disaster for some marginal firms'' (647 F.2d at 1272).
A reasonable estimate entails assessing ``the likely range of costs and
the likely effects of those costs on the industry'' (Lead I, 647 F.2d
at 1266). OSHA standards satisfy the economic feasibility criterion
even if they impose significant costs on regulated industries so long
as they do not cause massive economic dislocations within a particular
industry or imperil the very existence of the industry (Lead II, 939
F.2d at 980; see also Lead I, 647 F.2d at 1272; Asbestos I, 499 F.2d.
at 478).
IV. Issues and Questions
OSHA is providing this issues and questions section to solicit
stakeholder input on various issues associated with the proposed rule.
While OSHA invites stakeholders to comment on all aspects of this
proposal, this section identifies specific areas of interest to the
agency. OSHA is including certain issues and questions in this section
to assist stakeholders as they review the proposal and consider the
comments they plan to submit. However, to fully understand the
questions, and to provide substantive input and feedback in response to
them, the agency suggests commenters review the other sections of the
preamble that address these issues in detail. Some issues and options
that have cost implications are discussed more thoroughly in the
Preliminary Economic Analysis and Initial Regulatory Flexibility
Analysis (Section VII.).
It should be noted that the proposed regulatory text provided at
the end of this document would completely replace the existing
regulatory text for 29 CFR 1910.156, Fire Brigades. Comments addressing
more than one section or paragraph should include all relevant
references. Submitting comments in an organized manner with clear
reference to the issue(s) raised will enable the agency and all
participants to better understand the issues the commenter addressed
and how they addressed them. Some commenters may confine their interest
(and comments) to the issues that specifically affect them;
correspondingly they will benefit from being able to quickly identify
comments on these issues in others' submissions. While the agency
welcomes relevant comments on any aspect of this proposal, OSHA is
interested in responses, supported by evidence and explanations, to the
following issues and questions, and to other issues and questions
raised in this document.
A. Scope
OSHA recognizes that many emergency responders, particularly
firefighters, emergency medical service providers, and technical search
and rescuers, are referred to as ``volunteers.'' The OSH Act applies to
employers, as defined in 29 U.S.C. 652(5), who have employees, 29
U.S.C. 652(6), and does not cover true volunteers. However, some
workers labeled as volunteers may actually be considered employees
under Federal law because they receive a certain level of compensation,
which may include the direct payment of money or other types of
remuneration (see Pertinent Legal Authority, section III of this
preamble). Therefore, any emergency responders who are referred to as
volunteers but receive ``significant remuneration'' within the meaning
of Federal law would be included within the scope of this proposed rule
as employees. OSHA believes that volunteer emergency responders rarely
receive compensation substantial enough to render them employees under
this ``significant remuneration'' legal test and thus OSHA does not
expect that many emergency responders will fall into this category.
Additionally, OSHA notes that this rulemaking will not in any way alter
the existing legal
[[Page 7799]]
requirements under Federal law on this issue. Accordingly, all
volunteer emergency responders who are currently excluded from coverage
under the OSH Act should expect that they will continue to be excluded
from the scope of this rulemaking.
B. State Plans
OSHA also recognizes that among the States with OSHA-approved State
Plans there is variability as to whether volunteer emergency responders
are classified as employees under state law. Regardless of state law,
should there be any ``volunteers'' who receive ``significant
remuneration'' such that they would be considered employees under
Federal law (see Section III. Pertinent Legal Authority, B. Coverage),
State Plans would be required to cover those employees as part of their
obligation to promulgate a standard that is ``at least as effective''
as the Federal standard. 29 U.S.C. 667(c)(2). As noted above, OSHA
believes this would be rare.
In addition, some States with OSHA-approved State Plans regard
volunteer firefighters and other volunteers as employees under State
law. See, e.g., A.R.S. 23-901(6)(d) (2021) (in Arizona, firefighters,
police, and other emergency management personnel who are volunteers are
deemed to be employees). Regardless of whether these volunteers are
considered employees under Federal law, such States must treat them as
it does other emergency response workers under its analogue to any
final standard resulting from this rulemaking. Cf. Letter from John A.
Pendergrass, Assistant Secretary of Labor for Occupational Safety and
Health, to Rep. Hamilton Fish, May 4, 1988 (if a State with an OSHA-
approved State Plan regards volunteer firefighters as employees, it
must apply its fire brigade standard to them) available at https://www.osha.gov/laws-regs/standardinterpretations/1988-05-04.
In States with OSHA-approved State Plans, each state determines
what types of volunteer emergency responders it covers, and to what
extent they are covered, based upon state definitions of who
constitutes an employee and whether or not volunteer organizations are
covered by state legislation. While the proposed rule does not directly
apply to volunteers because OSHA does not have regulatory authority
over volunteers, the agency is concerned with the potential
``downstream'' economic impact the proposed rule may have on
organizations with volunteer responders. OSHA encourages stakeholders
to engage with local and state officials about reducing potential
impacts of the proposed rule.
Additionally, the agency seeks input on what it could do in the
final rule to reduce undesirable impacts on volunteer organizations.
OSHA understands that negative financial impacts on volunteer emergency
response entities could have undesirable public safety implications.
When drafting this NPRM, OSHA considered the possibility of excluding
certain categories of emergency response organizations from certain
provisions of the proposed rule based on organization size, funding
source, and/or the number of emergencies responded to each year, but
was unable to determine any appropriate exclusions in light of the
agency's obligation to ameliorate significant risks to employees where
economically feasible. OSHA welcomes public comment on these issues.
C. Questions in the Summary and Explanation
Throughout the summary and explanation of this proposed rule, OSHA
has requested information or asked questions similar to those in this
section. For more information on these topics, refer to the Summary and
Explanation discussion for each respective topic.
(a)-1. OSHA is seeking information about how many private-sector
emergency response organizations in States without State Plans (Federal
OSHA States) have workers who are called volunteers but who receive
substantial benefits, such as a retirement pension, life and/or
disability insurance, death benefits, or medical benefits. How many
such workers do these organizations have and of what type(s) (fire,
EMS, technical rescue)?
(a)-2. OSHA is seeking information about which States with OSHA-
approved State Plans expressly cover volunteer emergency responders. In
those States, how many emergency response organizations have
volunteers? How many volunteers do they have and of what type(s) (fire,
EMS, technical rescue)?
(a)-3. OSHA is seeking information from States with OSHA-approved
State Plans that do not expressly cover volunteer emergency responders.
In those States, how many emergency response organizations have workers
who are called volunteers but receive substantial benefits, such as a
retirement pension, life and/or disability insurance, death benefits,
or medical benefits; and as such may be considered employees within the
meaning of Federal law? How many such workers do these organizations
have and of what type(s) (fire, EMS, technical rescue)? Additionally,
OSHA seeks similar input regarding inmate/incarcerated workers.
(a)-4. OSHA is seeking input regarding what types and levels of
search and rescue services and technical search and rescue services
should be included or excluded from the rule, and the extent to which
those inclusions or exclusions should be specifically listed.
(a)-5. OSHA is seeking input whether the agency should consider
developing a separate rule for protecting workers involved in the
clean-up of disaster sites, and associated recovery efforts? Why or why
not?
(a)-6. OSHA is seeking input on whether the agency should consider
excluding other activities besides those in 29 CFR 1910.120 (Hazardous
Waste Operations and Emergency Response (HAZWOPER)), 29 CFR 1910.146
(Permit-Required Confined Spaces in General Industry.
(b)-1. OSHA is seeking information and data from commenters on
whether WEREs have living areas for team members, and if so, whether
WEREs should be included in the definition for Living area.
(e)-1. OSHA is considering adding to both paragraphs (e)(1) and (2)
a requirement to permit employee representatives to be involved in the
development and implementation of an ERP, and to paragraph (e)(4) a
requirement to allow employee representatives to participate in
walkaround inspections, along with team members and responders, and is
seeking input from stakeholders on whether employee representative
involvement should be added to paragraph (e).
(f)-1. OSHA is seeking input on whether other activities or
subjects should be specifically included in the list of minimum
requirements for the risk management plan.
(f)-2. OSHA is proposing to have a performance-based infection
control program provision in the risk management plan. OSHA is seeking
comment on this approach including whether a final standard should
incorporate a particular consensus standard or other guidance, or
otherwise include specific requirements regarding infection control.
(g)-1. OSHA is seeking input and data on whether the proposed
rule's requirements for medical evaluations are an appropriate minimum
screening. Should the minimum screening include more or fewer elements,
and if so, what elements? Provide supporting documentation and data
that might establish the appropriate minimum
[[Page 7800]]
screening. OSHA is also seeking additional data and information on the
feasibility of the proposed medical evaluation and surveillance
requirements for WEREs and ESOs.
(g)-2. OSHA is seeking input on whether an action level of 15
exposures to combustion products within a year is too high, too low, or
an appropriate threshold. OSHA is also considering action levels of 5,
10, or 30 exposures a year as alternatives and is seeking public input
on what action level would be appropriate. Provide supporting
documentation and data that would help with identifying an appropriate
action level.
(g)-3. OSHA is seeking input on whether the additional medical
surveillance proposed in paragraph (g)(3) should be extended to include
WEREs and team members.
(g)-4. OSHA is seeking input and data on whether stakeholders
support the proposed fitness for duty requirements or whether the
requirements pose a burden on or raise concerns for team members,
responders, WEREs or ESOs. Commenters should provide explanation and
supporting information for their position.
(g)-5. OSHA is seeking input on whether the health and fitness
program in proposed paragraph (g)(6) should be extended to include
WEREs and team members.
(g)-6. OSHA is seeking input on whether every three years is an
appropriate length of time for fitness re-evaluation, and if not, what
period of time would be appropriate. The agency is seeking any
available data to support an alternative length of time between
evaluations.
(h)-1. OSHA is seeking stakeholder input and data regarding the
appropriate methods and interval(s) for skills checks, as it relates to
proposed paragraph (h)(3).
(i)-1. OSHA is seeking input regarding what WEREs are currently
doing for decontamination, disinfection, cleaning, and storage of PPE
and equipment, and whether OSHA should include any additional
requirements for these processes in a final standard.
(j)-1. OSHA is seeking input on whether the agency should consider
prohibiting the installation of fire poles in new ESO facilities.
(j)-2. OSHA is seeking input on whether ESO facilities with
sleeping facilities should be protected by automatic sprinkler systems,
as proposed in paragraph (j)(2)(ii).
(k)-1. OSHA is seeking input on whether the agency should specify
retirement age(s) for PPE.
(k)-2. OSHA is seeking input regarding whether and how WEREs and
ESOs currently provide separation and distinction of PPE and non-PPE
equipment that have not undergone gross decontamination.
(k)-3. OSHA is seeking information on whether there is evidence of
per- and polyfluoroalkyl substances (PFAS) in PPE causing health issues
for team members and responders.
(k)-4. OSHA is seeking input on whether the scheduled updates to
NFPA 1971 will address or alleviate stakeholder's concerns about PFAS
in PPE.
(l)-1. OSHA is seeking information on whether there are any other
situations or vehicles where OSHA should require, or exclude, the use
of seat belts and vehicle harnesses. If so, please explain.
(l)-2. OSHA is seeking input on how compliance with (l)(2)(iii)
would be achieved in situations where PPE must be donned enroute to an
incident. Would the team members or responders stop enroute or wait
until arrival at the scene?
(l)-3. OSHA is seeking input on whether it should also require that
patients be restrained during transport to prevent an unrestrained
patient from being thrown into a team member or responder in the event
of a vehicle collision or an evasive driving maneuver.
(o)-1. OSHA is seeking input about WERE and ESO current use of an
IMS, whether the NIMS and NRF were used as guidance for the IMS, and if
there are any concerns with being compatible with NIMS.
(o)-2. OSHA is seeking input on which aspects of an IMS are the
most effective and the least effective in protecting the safety and
health of team members and responders. Commenters should explain how
and why certain IMS components are or are not effective.
(p)-1. OSHA is seeking stakeholder input on current practices for
identifying and communicating the various control zone boundaries. What
marking methods are used? How are they communicated to team members and
responders? Do the marking methods help or hinder on-scene operations?
(q)-1. OSHA seeks input on whether the agency should include
requirements for Standard Operating Procedures (SOPs) regarding
protections against workplace violence for team members and responders,
and for any data or documentation to support or refute potential
requirements. OSHA notes that its regulatory agenda includes a separate
rulemaking addressing workplace violence against health care workers.
While OSHA has not published a proposed rule in that rulemaking, OSHA
welcomes comments on whether violence against emergency responders
should be addressed in a potential Emergency Response final rule in
addition to that Workplace Violence rulemaking, instead of in that
rulemaking, or primarily in that other rulemaking.
(r)-1. OSHA is considering adding a requirement to permit team
members, responders, and their representative to be involved in the
review and evaluation of the relevant plans as part of the Post-
Incident Analysis and would like stakeholder input on whether to add
this requirement.
D. Additional Issues
I. Aligned Organizations
The scope of the proposed rule focuses on employers whose employees
respond to emergency incidents to mitigate the incidents. OSHA believes
that some employees of aligned employers face similar hazards to those
who mitigate incidents. For instance, while some jurisdictions have
their own fire investigators as part of the fire department, many more
depend on State Fire Marshal's office employees to respond to incident
scenes to conduct fire investigations. However, these agencies may not
provide a firefighting service. Similarly, many jurisdictions have
instructors and training facilities directly within the emergency
service organization. However, many more depend on other organizations
for training such private entities or State-run training centers that
do not perform incident mitigation. Nonetheless, these employees face
similar hazards while providing training such as exposure to combustion
products, and technical rescue scenarios such as confined spaces,
trenches, high angle rope rescue, and swift water. OSHA seeks input and
supporting arguments on whether these types of aligned employers should
be included within the scope of this rulemaking.
II. Portable Fire Extinguishers
OSHA's current standard, 29 CFR 1910.157, Portable Fire
Extinguishers, is based on the 1978 edition of NFPA 10, Standard for
Portable Fire Extinguisher, and was last updated more than 20 years
ago. OSHA's current standard does not include Class K extinguishers or
wet chemical agents. Because Class K extinguishers are provided by
employers, and the proposed rule would require employers to provide
training for team members and responders on all portable fire
extinguishers in the
[[Page 7801]]
workplace, OSHA is proposing to update the standard to include Class K
portable extinguishers and wet chemical agents. OSHA is seeking
stakeholder input and data regarding whether the agency should consider
updating the standard to improve consistency with a version of the
national consensus standard, NFPA 10, Standard for Portable Fire
Extinguishers, that is current when the final rule is being developed.
III. Heat
OSHA is in the preliminary stages of developing a proposed rule for
Heat Illness Prevention in Outdoor and Indoor Work Settings (for
additional information, see https://www.osha.gov/heat-exposure/rulemaking). OSHA recognizes that emergency response workers must
perform their duties regardless of the outdoor environmental
conditions. However, some activities, such as exercising for physical
fitness and vocational training could be modified based on external
temperatures. OSHA is seeking stakeholder input and supporting
documentation on whether it should include requirements for operating
in external environments with elevated temperature in situations that
are not emergency incidents.
IV. Consensus Standards
OSHA is seeking input on the potential impacts of incorporating by
reference of various NFPA standards, and how equivalency or consistency
could be achieved if the NFPA standards were not incorporated by
reference.
OSHA recognizes that organizations such as the National Wildfire
Coordinating Group (NCWG) develop standards applicable to their member
organizations, and other organizations who perform wildland
firefighting services. OSHA seeks input on whether standards such as
those developed by NWCG should be considered equivalent to various
provisions in the proposed rule; particularly those related to policies
and procedures, personal protective equipment, and medical evaluation
and surveillance requirements. Are there standards for other
``specialty or non-structural'' types of firefighting that OSHA should
consider? Commenters should provide supporting data, documents, and
side-by-side comparison.
V. Timeline for Compliance
OSHA expects that some stakeholders may have concerns about the
timeline for compliance when the final rule is published. Unless the
agency delays compliance, compliance obligations begin on the effective
date of a final rule: 60 days after publication of the final rule.
However, OSHA often allows regulated parties additional time to come
into compliance with certain provisions of a standard that would
require additional resources. Many of the provisions in the proposed
rule are based on or consistent with current NFPA standards, which are
considered to be the industry best practices for emergency services. As
such, OSHA believes that most WEREs and ESOs that already meet the NFPA
standards are likely to be close to complying with, or already
compliant with, many provisions of the proposed rule.
OSHA recognizes that some provisions can be implemented quickly,
while others might take more time to phase in. So, the agency is
proposing the following timelines for compliance with the specified
paragraphs (the time period indicates the number of months past the
rule's effective date when compliance would be required):
--(c) and (d)--6 months
--(e)--2 months
--(f)--6 months
--(g)(1), (4)--6 months
--(g)(2), (3), (5), (6)--12 months
--(h)(1)--12 months
--(h)(2) (3)--24 months
--(i) and (j)--24 months
--(k)(1)--12 months
--(k)(2)(i), (vii) through (x), (k)(3)--6 months
--(k)(2)(ii) through (vi)--24 months
--(l) through (q), and (s)--12 months
--(r)--6 months
OSHA is open to considering alternative compliance dates for the
proposed standard and seeks input on what reasonable implementation
periods would be for specific provisions and why. The agency is also
interested if extended compliance timelines would be particularly
helpful to small and/or volunteer organizations as a way of mitigating
the impact of the rulemaking.
V. Summary and Explanation of the Proposed Rule
The following discussion, which tracks the proposed rule paragraph
by paragraph, summarizes the proposed rule's requirements and explains
how and why OSHA determined what those requirements would be. This
section covers the comments received in response to the 2007 RFI,
public input from the stakeholder meetings held in 2014, comments from
the NACOSH subcommittee members, small entity representative comments
as part of the 2021 SBREFA process, and research conducted by OSHA.
References in parentheses are to exhibits in the rulemaking record, as
noted in the Docket paragraph above in Addresses. These references are
not meant to be exhaustive but are examples of sources that are
relevant to the statements made in the preamble discussion.
As noted in section II., Background, earlier in this preamble,
section 6(b)(8) of the OSH Act requires OSHA to adopt existing
consensus standards or explain why a rule which deviates substantially
from a pertinent national consensus standard better effectuates the
purposes of the Act. In most cases the proposed standard is aligned
with the language of a national consensus standard, and the Summary and
Explanation so indicates. While OSHA intends to incorporate by
reference some portions of several different consensus standards, it
has preliminarily determined that in some cases deviating from
pertinent consensus standards will better effectuate the purposes of
the Act.
In the RFI, OSHA solicited input regarding the types of emergency
response activities, emergency responders (called team members and
responders in the proposed rule), and organizations that should be
covered by a potential rule. Firefighting, pre-hospital emergency
medical service, and technical rescue were offered in the RFI as
examples of activities for discussion.
Team members and responders deal with a wide range of emergency
events. To them, some events are routine or commonly encountered, while
others are rarely seen. OSHA recognizes that team members and
responders encounter ``routine'' emergencies to the extent that they
become commonplace occurrences. Many fewer team members and responders
encounter rare events. The broad range of emergency events is
overwhelming, and it would be a daunting, if not impossible, task to
list them all. Several respondents to the RFI offered examples of
common events, while others questioned what constitutes a rare event.
Given the vast differences in emergency response organizations across
the country, a rare event for a small community or small plant or
facility might be a common occurrence in a larger one.
There were 39 respondents to the RFI who offered an opinion on the
range of emergency events that should be regulated by OSHA. For
example, the Texas Industrial Emergency Services Board (Document ID
0044) wrote that ``all types of emergency incidents (an `all hazards'
approach) should be considered by OSHA for appropriate agency action.''
The International Association of Fire Fighters (Document ID 0060)
stated that ``no incident types
[[Page 7802]]
or responding activities should be excluded. Emergency response
agencies must not only be prepared for mitigating emergency incidents
in their jurisdictions, but must be prepared, before and during the
event to ensure the health and safety of their employees is
protected.'' Overall, many of the respondents were in favor of an
``all-hazards'' approach (Document ID 0011; 0018; 0024; 0027; 0028;
0037; 0039; 0040; 0041; 0044; 0046; 0047; 0048; 0049; 0050; 0052; 0053;
0059; 0060; 0063; 0065; 0069; 0071; 0072; 0073; 0074; 0078; 0080; 0082;
0083; 0085). The agency agrees with these commenters and has
preliminarily determined that the safety and health of emergency
responders needs to be protected in all types of emergency events.
Accordingly, the proposed rule takes an all-hazards approach.
A. Section 1910.120 Hazardous Waste Operations and Emergency Response
OSHA is proposing to update 29 CFR 1910.120(q)(3)(iii) to reflect
the revised paragraph for PPE requirements in the proposed rule. The
proposed rule would also revise appendix B to Sec. 1910.120 to replace
the existing reference to three outdated consensus standards in the
Note to Part B, section IV, with the current national consensus
standard, NFPA 1990--Standard for Protective Ensembles for Hazardous
Materials and CBRN Operations, 2022 ed.
B. Section 1910.134 Respiratory Protection
The proposed rulemaking essentially moves the Respiratory
Protection for Structural Firefighting requirements from 29 CFR
1910.134(g)(4) to proposed Sec. 1910.156. This move will help
stakeholders by incorporating these requirements related to
firefighting into one standard; the proposed rule. The proposed
revision would delete the requirement and replace it with a referral to
the proposed rule.
C. Section 1910.155 Scope, Application and Definitions Applicable to
This Subpart
Definitions for terms in subpart L-Fire Protection are provided in
29 CFR 1910.155. Terms used in the proposed rule are defined therein.
The new terms proposed coincide with the updates to other subpart L
standards proposed herein and are consistent with those recognized
within the industry. OSHA is proposing to add the following
definitions:
Class K fire means a fire in a cooking appliance involving animal
oils, vegetable oils, or fats.
Clean agent means an extinguishing agent that is odorless,
colorless, electrically non-conducive, and leaves no residue.
Halogenated agent means a liquified gas extinguishing agent that
chemically interrupts the combustion reaction between the fuel and
oxygen to extinguish fires.
Wet chemical means an aqueous solution of organic or inorganic
salts, or a combination thereof, that forms an extinguishing agent.
Wetting agent means a concentrate mixed with water that reduces the
surface tension of the water which increases its ability to spread and
penetrate, thus extending the efficiency of the watering extinguishing
fires.
OSHA is also proposing to delete from 29 CFR 1910.155 definitions
needed for terms used in the current Fire Brigades standard but not
used in the proposed rule. The definitions proposed to be removed are
those for Afterflame, Buddy-breathing device, Enclosed structure, Fire
brigade, Flame resistance, Helmet, Lining, Outer shell, Positive-
pressure breathing apparatus, Quick disconnect valve, and Vapor
barrier. These terms are not used in any other subpart L standards.
D. Section 1910.156 Emergency Response
Paragraph (a) Scope
Proposed paragraph (a) establishes the scope of general industry
employers that would be covered by the proposed rule. The proposed rule
would not include employers engaged in activities and operations
regulated by OSHA's construction, maritime, and agriculture standards.
The existing Fire Brigades standard, 29 CFR 1910.156, applies to
employers in general industry that have or establish ``fire brigades,
industrial fire departments, and private or contractual type fire
departments'' (29 CFR 1910.156 (a)(2)). The scope of the proposed rule
is larger, expanding beyond employers who provide only firefighting
services to include employers that provide other emergency services,
such as pre-hospital EMS and technical search and rescue services. In
addition, the proposed rule would impact public and municipal fire
departments and other emergency response employers in States with OSHA-
approved State Plans, as explained in section VIII.G., Requirements for
States with OSHA Approved State Plans.
Proposed paragraph (a)(1)(i) provides that the proposed rule would
apply to employers that have a workplace emergency response team as
defined in paragraph (b) of this section. The employees on the team, as
a collateral duty to their regular daily work assignments, respond to
emergency incidents to provide services such as firefighting, emergency
medical service, and technical search and rescue. For the purposes of
this section, this type of employer is called a Workplace Emergency
Response Employer (WERE), the team is called a Workplace Emergency
Response Team (WERT), and the employees assigned to the team are called
team members.
Proposed paragraph (a)(1)(ii) provides that the proposed rule would
also apply to employers that are emergency service organizations as
defined in paragraph (b) of this section, namely those that provide one
or more of the following emergency services as a primary function:
firefighting, EMS, and technical search and rescue; or the employees
perform emergency service(s) as a primary duty for the employer. For
the purposes of this section, this type of employer is called an
Emergency Service Organization (ESO), and the employees and members are
called responders. The term ESO encompasses entities who pay their
employees, entities with volunteers, and entities whose members are a
combination of paid and volunteer. Similarly, OSHA uses the term
responders to encompass both those who are paid employees of an ESO and
those who are volunteer members of an ESO.
I. Coverage of Volunteers
OSHA recognizes that many emergency responders, particularly
firefighters and EMTs, are referred to as ``volunteers.'' The OSH Act
applies to employers who have employees, 29 U.S.C. 652(5), and does not
cover true volunteers. However, workers who are labeled as volunteers
actually are occasionally considered employees under Federal law
because they receive a certain amount of compensation, which may be
money or other types of remuneration (see Section III. Pertinent Legal
Authority). Therefore, any emergency responders who are referred to as
volunteers but receive ``significant remuneration'' within the meaning
of Federal law would be included within the scope of this proposed rule
as employees. OSHA believes that volunteer emergency responders rarely
receive compensation substantial enough to render them employees under
this ``significant remuneration'' test and thus OSHA does not expect
that many emergency responders will fall into this category.
Additionally, OSHA notes that nothing in this rulemaking will in any
way alter the existing requirements of
[[Page 7803]]
Federal law on this issue. Accordingly, all volunteer emergency
responders who are currently excluded from coverage under the OSH Act
should expect that they will continue to be excluded from the scope of
this rulemaking.
OSHA also recognizes that among the States with OSHA-approved State
Plans there is variability as to whether volunteer emergency responders
are classified as employees under state law. Regardless of state law,
should there be any ``volunteers'' who receive ``significant
remuneration'' such that they would be considered employees under
Federal law (see Section III. Pertinent Legal Authority, B. Coverage),
State Plans would be required to cover those employees as part of their
obligation to promulgate a standard ``at least as effective'' as the
Federal standard. 29 U.S.C. 667(c)(2).
In addition, some States with OSHA-approved State Plans regard
volunteer firefighters and other volunteers as employees under state
law. See, e.g., A.R.S. 23-901(6)(d)(2021) (in Arizona, firefighters,
police, and other emergency management personnel who are volunteers are
regarded as employees). Regardless of whether these volunteers are
considered employees under Federal law, such States must treat them as
it does other emergency response workers under its analogue to any
final standard resulting from this rulemaking. Cf. Letter from John A.
Pendergrass, Assistant Secretary of Labor for Occupational Safety and
Health, to Rep. Hamilton Fish, May 4, 1988 (if a State with an OSHA-
approved State Plan regards volunteer firefighters as employees, it
must apply its fire brigade standard to them).
In Question (a)-1, OSHA seeks information about how many private-
sector emergency response organizations in States without State Plans
(Federal OSHA States) have workers who are called volunteers but who
receive substantial benefits, such as a retirement pension, life and/or
disability insurance, death benefits, or medical benefits. How many
such workers do these organizations have and of what type(s) (fire,
EMS, technical rescue)?
In Question (a)-2, OSHA seeks information about which States with
OSHA-approved State Plans expressly cover volunteer emergency
responders. In those States, how many emergency response organizations
have volunteers? How many volunteers do they have and of what type(s)
(fire, EMS, technical rescue)?
In Question (a)-3, OSHA seeks information from States with OSHA-
approved State Plans that do not expressly cover volunteer emergency
responders. In those States, how many emergency response organizations
have workers who are called volunteers but who receive substantial
benefits, such as a retirement pension, life and/or disability
insurance, death benefits, or medical benefits; and as such may be
considered employees within the meaning of Federal law? How many such
workers do these organizations have and of what type(s) (fire, EMS,
technical rescue)? Additionally, OSHA seeks similar input regarding
inmate/incarcerated workers.
II. Coverage of Employees Who Perform Emergency Services as a
Collateral Duty
The existing Fire Brigades standard, 29 CFR 1910.156, does not
differentiate between employers whose workers perform emergency
services as their primary duty and employers whose primary business
operation is not an emergency service but who have workers who perform
emergency service as a collateral duty, and not as their primary duty.
Likewise, the existing standard does not differentiate between primary
duty emergency service employees and collateral duty emergency service
employees.
While they are an important component in the overall community of
emergency and first responders, the proposed rule would not apply to
employees while engaged in law enforcement/crime prevention activities.
The proposed rule would, however, apply to employers whose employees,
in addition to performing law enforcement duties, also provide services
such as firefighting, emergency medical service, or technical search
and rescue. Employees engaged in these dual roles are sometimes known
as Public Safety Officers, and the proposed rule would apply only with
respect to when those employees provide services that do not qualify as
law enforcement. For example, OSHA understands that many law
enforcement employers have employees who are trained in some aspects of
emergency medical care to attend to the public and fellow employees.
They are excluded from the proposed rule when they arrive at an
emergency scene to provide law enforcement duties such as traffic
control or securing an area, but they would be covered by the rule if
they then transport an injured person to a medical facility via a
dedicated medical transport vehicle such as an ambulance or helicopter.
Additionally, some employers have employees who are trained in the use
of ropes for law enforcement, such as a tactical response team using
rope for tactical access to above- or below-grade locations as part of
a hostage rescue operation. These employees would not be covered by the
proposed rule during the hostage rescue. They would, however, be
covered when they are designated to provide rope rescue during non-law
enforcement activities, such as helping to secure a person who is
trapped on a scaffold.
III. WEREs and ESOs
During the SBREFA teleconferences, SERs commented that the
employees of employers whose primary business is emergency response are
exposed to more hazards more frequently than the employees of employers
that are not in the business of providing emergency services but
require their workers to perform emergency response activities as a
collateral duty to their primary work assignments. There was consensus
from the SERs that OSHA should have fewer and/or less stringent
requirements for the latter employers because of the less frequent
exposure of their employees to emergency response-related hazards and
should clearly differentiate between the requirements for the two types
of employers (Document ID 0115, p. 27). OSHA agrees and, to the extent
appropriate, has provided separate requirements in the proposed rule.
To clearly distinguish between the two types of employers and
employees, OSHA proposes to use different terms to refer to each type.
The first term is ``Workplace Emergency Response Employer (WERE).''
This term applies to employers engaged in industries such as
manufacturing, processing, and warehousing that have, or establish, a
workplace emergency response team. As noted earlier, the employees on
the team, as a collateral duty to their regular daily work assignments,
respond to emergency incidents to provide service(s) such as
firefighting, EMS, and technical search and rescue at the employer's
facility. The team is called a ``Workplace Emergency Response Team
(WERT),'' and the employees assigned to the team are called ``team
members.''
The second term is ``Emergency Service Organization (ESO).'' This
term applies to employers that provide emergency service(s) as a
primary function of the organization, or the employees perform
emergency service(s) as a primary duty for the employer. Examples
include providers of emergency services such as firefighting, emergency
medical service, and technical search and rescue. In the proposed rule,
the employees and members of an ESO are called ``responders.''
[[Page 7804]]
IV. Search and Rescue: Technical v. Non-Technical
The proposed rule defines technical search and rescue as a type of
service that utilizes special knowledge and skills and specialized
equipment to resolve unique or complex search and rescue situations,
such as rope rescue, vehicle/machinery rescue, structural collapse,
trenches, and technical water rescue. OSHA anticipates the proposed
rule would apply to WEREs and ESOs that provide such service, utilizing
team members and responders who have the technical knowledge, skills,
and abilities and are trained to perform and direct the designated
technical rescue.
OSHA believes that technical level search and rescue means the WERT
or ESO has specialized equipment and team members and responders who
are trained to use the equipment and perform specialized tasks. OSHA
consulted NFPA 2500, 2022 ed., Standard on Operations and Training for
Technical Search and Rescue Incidents and Life Safety Rope and
Equipment for Emergency Services, for guidance in using the technical
level as the determining point for what types of search and rescue
activities should be covered by the proposed rule. The scope of this
proposed rule does not extend to employers that perform search and
rescue at a lower-than-technical level. There is little evidence that
the provisions of the proposed rule would reduce injuries and
fatalities in organizations that only provide rescue services below the
technical level.
OSHA is seeking input from the regulated community about how and
where to draw the line between technical and non-technical search and
rescue activities. As drafted, for example, the proposed rule
encompasses rescue services such as swift water and underwater rescue
as technical. On the other hand, while the agency is in no way
demeaning the valuable services provided by emergency service providers
such as pool lifeguards, OSHA preliminarily deems this type of service
to be non-technical rescue and therefore is not intending to cover it
under this proposed rule. This same distinction can be drawn with
regard to other types of search and rescue which may be technical or
non-technical, such as, for example, mountain and wilderness search and
rescue, which could include ski patrols at recreational snow skiing and
snowboarding facilities. Some mountain and wilderness search and rescue
organizations may provide services that qualify as being technical, so
are within the scope of the proposed rule, while those who do not
provide a technical service are not within the scope. In Question (a)-
4, OSHA is seeking input regarding what types and levels of search and
rescue services and technical search and rescue services should be
included or excluded from the rule, and the extent to which those
inclusions or exclusions should be specifically listed.
V. Skilled Support Workers
As noted above, proposed paragraphs (a)(1)(i) and (ii) indicate
that this section applies to WEREs and ESOs. There are no proposed
provisions for other employers. There are, however, some provisions
related to skilled support workers who work for other employers.
Proposed paragraph (b) defines skilled support worker as an employee of
an employer whose primary function is not as an emergency service
provider and who is skilled in certain tasks or disciplines that can
support a WERT or ESO. The proposed rule would require WEREs and ESOs
to provide protection for skilled support workers who work for other
employers but are performing duties in support of the WERE and ESO
activities on the emergency incident scene. These skilled support
workers would operate under the direction of the Incident Commander
(IC) or the Unified Command (UC) as provided in proposed paragraph
(p)(10) of this section.
For example, a WERT or ESO needs a backhoe and operator to dig
through the rubble of a collapsed structure to complete extinguishment
of fire but does not have a backhoe or operator. The WERT or ESO could
arrange to use a backhoe and operator belonging to another employer.
The backhoe operator would be considered a skilled support worker under
the direction of the WERT's or ESO's IC, and thus within the scope of
the proposed rule. But once the IC or the UC terminates the incident or
the WERT or ESO leaves the location of the incident, the operator's
activities would no longer fall under the scope of the proposed rule.
Note that other standards might apply to the operator's work during
this period; for example, if the operator were operating a crane, the
crane standard would apply.
On a larger scale such as a disaster site, skilled support workers
who operated under the direction and control of the WERE's or ESO's IC
or the UC might remain at the location to participate in disaster site
clean-up and recovery efforts. Once the emergency nature of the
incident has ended, however, skilled support workers would no longer be
working under the direction of the WERE or ESO and the proposed rule
would no longer apply to them.
VI. Exclusions
Proposed paragraph (a)(2) ensures that employers are aware of
activities that are not covered by the proposed rule. Paragraph
(a)(2)(i) of the proposed rule explains that employers performing
disaster site clean-up or recovery duties following natural disasters
such as earthquakes, hurricanes, tornados, and floods and human-made
disasters such as explosions and transportation incidents would be
excluded from the requirements of this section after emergency response
activities have terminated. OSHA intends it to be clear that the
proposed rule would not apply to clean-up and recovery operations once
the emergency nature of an incident has ended. OSHA is seeking input in
Question (a)-5 whether or not the agency should consider developing a
separate rule for protecting workers involved in the clean-up of
disaster sites, and associated recovery efforts? Why or why not?
Proposed paragraph (a)(2)(ii) would specifically exclude activities
covered by 29 CFR 1910.120 (Hazardous Waste Operations and Emergency
Response (HAZWOPER)) and 29 CFR 1910.146 (Permit-Required Confined
Spaces in General Industry). In addition, OSHA notes that there are a
number of other general industry OSHA standards that impose
requirements on employers concerning emergency-type or related
services. These include 29 CFR 1910.38, Emergency action plans; 29 CFR
1910.157, Portable fire extinguishers; 29 CFR 1910.151, Medical
services and first aid; 29 CFR 1910.119, Process safety management of
highly hazardous chemicals; and 29 CFR 1910.272, Grain handling
facilities. While employees are engaged solely in activities subject to
one or more of these other OSHA standards, OSHA intends that the
protections of those standards apply instead of the protections of the
proposed rule. So, if an emergency response employer limits its
activities exclusively to activities covered by those other standards,
it may not be subject to any provisions of this proposed rule. OSHA
notes, however, that most employers engaged in activities covered by
those other standards are likely to also engage in other emergency
response activities and would therefore need to comply with the
proposed standard in order to prepare for and respond to covered
emergency incidents.
OSHA's intent is to avoid additional burden or inflicting
overlapping or conflicting requirements on an
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employer who only performs the activities identified in this proposed
provision. In Question (a)-6, OSHA is seeking input on whether the
agency should consider excluding other activities besides those listed
in paragraph (a)(2)(ii).
Paragraph (b) Definitions
Proposed paragraph (b) defines terms that are applicable to
proposed 29 CFR 1910.156. OSHA drew from or based these definitions on
other OSHA standards (e.g., 29 CFR 1910.120 and 1910.134), FEMA's
guidance ``National Incident Management System'' (NIMS), and NFPA
national consensus standards. To facilitate compliance, OSHA is using
terms that are familiar to the emergency response community, and thus
relies heavily on definitions already in use in the community. However,
some terms currently in use have multiple interpretations. OSHA is
providing definitions in its proposed rule to clearly provide the
agency's intended meaning of these terms. Additionally, OSHA is
proposing to delete some definitions from existing 29 CFR 1910.155
because the terms are only used in existing 29 CFR 1910.156, which
would be replaced by the proposed rule. Specific changes to 29 CFR
1910.155 are listed in the Proposed Amendments.
OSHA based several definitions in this paragraph on the following
NFPA standards:
NFPA 600, Standard on Facility Fire Brigades. 2020 Ed. (NFPA
600)
NFPA 1500, Standard on Fire Department Occupational Safety,
Health, and Wellness Program. 2021 Ed. (NFPA 1500)
NFPA 1561, Standard on Emergency Service Incident Management
System and Command Safety. 2020 Ed. (NFPA 1561)
NFPA 1660, Standard for Emergency, Continuity, and Crisis
Management: Preparedness, Response, and Recovery. 2024 Ed. (NFPA 1660)
NFPA 2500, Standard on Operations and Training for Technical
Search and Rescue Incidents and Life Safety Rope and Equipment for
Emergency Services. 2022 Ed. (NFPA 2500)
NFPA 1700, Guide for Structural Fire Fighting. 2021 Ed. (NFPA
1700)
NFPA 1710, Standard for the Organization and Deployment of
Fire Suppression Operations, Emergency Medical Operations, and Special
Operations to the Public by Career Fire Departments. 2020 Ed. (NFPA
1710).
The following definitions apply to 29 CFR 1910.156:
Combustion product. The proposed rule defines this term as the
heat, volatized liquids and solids, particulate matter (microscopic and
small unburned particles), ash, and toxic gases released as a result of
combustion (fire). OSHA based the definition on the term in NFPA 1700.
Smoke is a visible indicator of the presence of combustion products;
however, combustion products may be present without visible smoke. OSHA
believes exposure to combustion products is a leading cause for many
illnesses among team members and responders. Exposure to combustion
products is a significant factor for Workplace Emergency Response
Employers (WEREs) and Emergency Service Organizations (ESOs) in
developing their Risk Management Plan and when determining what medical
evaluation and surveillance is needed for team members and responders.
Community. The proposed rule defines this term as a state, region,
municipality or portion thereof, such as a village, town, township,
borough, city, county, or parish. This term and definition are used in
conjunction with the term community vulnerability assessment. Community
is a general term that is meant to encompass the geographic area where
the ESO has a primary responsibility to provide emergency service(s);
sometimes referred to as the first due area. OSHA recognizes that many
ESOs are not limited by specific political boundaries to define their
service community and that the community boundary between ESO
facilities is often determined as the geographic midpoint between the
ESO facilities, based on response times.
Community vulnerability assessment. The proposed rule defines this
term as the process of identifying, quantifying, and prioritizing the
potential and known vulnerabilities of the overall community that may
require emergency service from the ESO, including the community's
structures, inhabitants, infrastructure, organizations, and hazardous
conditions or processes. The definition also indicates that the
assessment is intended to include both human-created vulnerabilities
and natural disasters. OSHA intends the assessment to be a systematic
evaluation of the community to determine the impact that could be
caused by potential emergency incidents, the severity of the impact,
and the available or needed resources for mitigation. It would include
risks and vulnerabilities associated with the prevailing residential
structures and principal structures such as schools, colleges, and
universities; hospitals and medical centers; large residential
structures and hotels; transportation, manufacturing, processing, and
warehousing facilities; and retail. It would also include an assessment
of the community's critical infrastructure such as available water
supply, electric power generation and transmission, routine and
emergency communication, and highways and railways.
Control zone. The proposed rule defines this term as an area at an
incident that is designated based upon safety and the degree of hazard
to team members and responders. The definition also states that a
control zone may be designated as cold, warm, hot, or no-entry. OSHA
based the definitions on the terms in NFPA 1500. Control zones are used
to establish what activities take place, what resources are available,
and what PPE is required based on the zone. OSHA notes that control
zones are not permanent areas for the duration of an incident. Zone
boundaries are expected to change as the incident and environmental
conditions dictate.
Cold zone. The proposed rule defines this term as the area
immediately outside the boundary of the established warm zone where
team members and responders are not exposed to dangerous areas or
contaminants from fire, toxic chemicals, and carcinogens. The
definition indicates that the cold zone typically contains the command
post and such other support functions as are deemed necessary to
control the incident and that it may also be known as the support zone.
Warm zone. The proposed rule defines this term as the area
immediately outside the boundary of the hot zone that serves to
transition to the cold zone. The definition indicates that the warm
zone typically is where team member and responder and equipment
decontamination and hot zone support take place and that it may also be
known as the contamination reduction zone.
Hot zone. The proposed rule defines this term as the area including
and immediately surrounding the physical location of a fire or other
hazardous area, having a boundary that extends far enough away to
protect team members and responders outside the hot zone from being
directly exposed to the hazards present in the hot zone.
No-entry zone. The proposed rule defines this term as an area
designated to keep out team members and responders, due to the presence
of dangers such as imminent hazard(s), potential collapse, or the need
to preserve the scene. This zone may contain hazards where PPE cannot
provide protection; for example, the
[[Page 7806]]
presence of a downed energized electrical line or the potential
collapse of a wall or roof. An area could be designated as a no-entry
zone for team members and responders for other reasons, such as the
need to preserve evidence for determining the cause and origin of a
fire, to preserve evidence of a possible crime, or for accident/
incident investigation.
Emergency Medical Service (EMS). The proposed rule defines this
term as the provision of patient treatment, such as basic life support,
advanced life support, and other pre-hospital procedures, and may
include transportation to a medical facility. The definition also
indicates that the term does not include the provision of first aid
within the scope of 29 CFR 1910.151, Medical services and first aid.
The definition is based on NFPA 1500. EMS covers a broad range of pre-
hospital care that WEREs and ESOs may provide. Examples of EMS include
Basic Life Support, First Responder, Emergency Medical Technician
(EMT)-Basic, EMT-Intermediate, EMT-Advanced, Paramedic, and Flight/
Transport Nurse. As part of the Emergency Response Program (ERP), WEREs
and ESOs would identify the type(s) and level(s) of service they intend
to provide. By excluding from the definition first aid within the scope
of 29 CFR 1910.151, Medical services and first aid, the proposed rule
would not apply to situations in which an employer utilizes employees
or medical personnel to treat sick or injured workers strictly for
compliance with Sec. 1910.151.
Emergency Response Program (ERP). The proposed rule defines this
term as a written program, developed by the WERE or ESO, to ensure that
the WERE or ESO is prepared to safely respond to and operate at
emergency incidents and non-emergency situations, and to provide for
the occupational safety and health of team members and responders. The
definition further states that the ERP shall be composed of at least
the information and documents proposed to be required by this section.
Additional specific requirements for the ERP are identified in
paragraphs (c) and (d) of the proposed standard. The WERE and ESO would
determine and include in the ERP what specifically would be best for
their organization and for the health and safety of their team members
and responders.
Emergency Service Organization (ESO). The proposed rule defines
this term as an organization that provides one or more of the following
emergency response services as a primary function: firefighting,
emergency medical service, and technical search and rescue; or the
employees perform emergency service(s) as a primary duty for the
employer. Personnel (called responders in the proposed rule), as part
of their regularly assigned duties, respond to emergency incidents to
provide service such as firefighting, emergency medical service, and
technical search and rescue. Additionally, the term ESO encompasses
employers whose primary function is not as an emergency service
provider but have employees whose primary duty for the employer is to
perform emergency service(s); for example, refineries and manufacturing
facilities with full-time fire departments and hospital-based emergency
medical service and transport.
OSHA recognizes that ESOs may also be called upon to perform non-
emergency services, defined below. The proposed definition goes on to
clarify that the term would not include organizations solely engaged in
law enforcement, crime prevention, facility security, or similar
activities. As such, those organizations are excluded from the scope of
the rule. However, organizations whose employees are cross-trained to
provide fire, EMS, or technical search and rescue services covered by
the scope of this proposed rule are included in the scope, but only for
those activities covered by this proposed rule. In states with OSHA-
approved State Plans, public sector employers, and volunteer
organizations whose members the State deems to be employees, would be
covered as ESOs under this proposed rule.
Facility. The proposed rule defines this term as a structure,
including industrial, commercial, mercantile, warehouse, power plant
(utility), assembly occupancy, institutional or similar occupancy,
public, and private as well as for-profit, not-for-profit, and
governmental location, structure, campus, compound, base, or similar
establishment. This definition is consistent with the same term as
defined in NFPA 600. For the proposed rule, OSHA is focused on those
facilities that have a Workplace Emergency Response Team (WERT) or a
dedicated ESO for the facility. This term and definition are used in
conjunction with the term facility vulnerability assessment, discussed
below. As defined, the term Facility may cover an individual structure
or location and its associated property or a location with multiple
related structures such as a campus, base, or multi-building
manufacturing plant.
Facility vulnerability assessment. The proposed rule defines this
term as the process of identifying, quantifying, and prioritizing the
potential and known vulnerabilities of the entire facility, including
the facility's structures and surrounding locations, inhabitants,
infrastructure, and hazardous conditions or processes. A facility's
vulnerable areas are those areas which are most susceptible to
emergencies or disasters; the loss of which could severely impact the
facility's operation, adversely affect the health and safety of
employees, or cause potential damage to the environment. OSHA intends
for the assessment to be a systematic evaluation of the facility to
determine the impact that could be caused by potential emergency
incidents, the severity of the impact, and the available or needed
resources for mitigation. It would include risks and vulnerabilities
associated with the principal structures; processing facilities;
significant storage; hazardous materials and processes; critical
infrastructure such as available water supply, electric power
generation and transmission, and routine and emergency communication;
and potential for damage to the environment.
Gross decontamination. The proposed rule defines this term as the
initial phase of the decontamination process during which the surface
contaminants and foreign materials on team member's or responder's
skin, clothing, personal protective equipment (PPE), tools, and
equipment are removed or significantly reduced, such as by brushing,
rinsing, wiping, use of detergents, or use of personal hygiene wipes.
The term is consistent with NFPA 1500. Gross decontamination is a
preliminary exposure reduction method and is the first step in the
decontamination process.
Immediately Dangerous to Life or Health (IDLH). The proposed rule
defines this term as an atmosphere that poses an immediate threat to
life, would cause irreversible adverse health effects, or would impair
an individual's ability to escape from a dangerous atmosphere. OSHA
drew the term and definition from 29 CFR 1910.134, Respiratory
Protection.
Incident. The proposed rule defines this term as any situation to
which a WERE or an ESO responds to perform services, such as
firefighting; emergency medical service; technical search and rescue;
other situations such as responses to downed electrical power lines,
and outside propane or natural gas leaks. The term is based on NFPA
1561 and NIMS. Incidents may be the result of a natural or human-caused
occurrence.
Incident action plan (IAP). The proposed rule defines this term as
the
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incident objectives, strategy, and tactics necessary to manage an
incident. The definition further states that the IAP is developed at
the incident site and provides essential information for actionable
incident organization, work assignments, management of resources, risk
management, and team member or responder safety when operating at an
incident. This definition is consistent with NFPA 1500 and NIMS. The
IAP is developed by the Incident Commander (IC) and updated as needed
throughout the incident. Because the IAP includes the information
``necessary to manage the incident,'' the form and level of detail of
the IAP is dependent on the needs of the situation. In the initial
stage of an incident, the IAP may be a simple plan, based on incomplete
situational information, and communicated orally to team members and
responders. Small-scale incidents may not need a written IAP or may
only need to use something such as a fillable form, a white/wipe-off
board, or a magnetic incident board. For a larger, complex, or long-
duration incident, a more comprehensive IAP would likely need to be
developed.
Incident Commander (IC). The proposed rule defines this term as the
team member or responder who fulfills the incident command function of
the Incident Management System (IMS); who is responsible for the
overall management of an incident and the safety of all team members or
responders involved in the response; and who is responsible for all
incident activities, including the development of strategies and
tactics, the direction and control of all team members and responders
at the incident, and the ordering and release of resources. This
definition is consistent with NFPA 1710 and NIMS. Proposed paragraph
(o)(3) provides further clarification of the responsibilities of the
IC, including front line management of the incident, overall incident
safety, and planning and execution of intended tactics, and proposed
paragraph (p)(2) contains additional specific requirements related to
emergency incident operations. Depending on the WERE's or ESO's IMS,
the team member or responder who serves in the role of the IC may vary.
For instance, in a single unit response, the senior or ranking team
member or responder would typically fulfill the role of IC. In a
multiple unit response, often the senior or ranking team member or
responder on the first arriving unit might serve at the initial IC
until a higher-ranking team member or responder assumes the role.
Incident Management System (IMS). The proposed rule defines this
term as a system used for managing and directing incident scene
operations and activities. The definition further states that the IMS
includes establishing functions for managing incidents, describes the
roles and responsibilities to be assumed by team members and
responders, and standard operating procedures to be utilized. Incident
command is a function of the IMS. The IMS would provide core concepts,
principles, and terminology used by WEREs or ESOs, and provides for
structure and coordination with other WEREs and ESOs for safely
managing incidents.
Incident Safety Officer (ISO). The proposed rule defines this term
as the team member or responder at an incident scene who is responsible
for monitoring and assessing safety hazards and unsafe situations and
for developing measures for ensuring team member and responder safety.
This term is based on NFPA 1521 and is consistent with the definition
of safety officer in NIMS and other NFPA standards. The ISO is
typically a member of the command staff responsible for advising the IC
or Unified Command (UC) on matters related to operational safety, and
the health and safety of team members and responders. The ISO monitors
incident operations and modifies or stops the action(s) being performed
to prevent unsafe acts.
Incident scene. The proposed rule defines this term as the physical
location where activities related to a specific incident are conducted.
The definition goes on to state it includes nearby areas that are
subject to incident-related hazards or used by the WERE or ESO for team
members, responders, and equipment. The definition is consistent with
NFPA 1561. Incident scenes can be divided into control zones, as
defined in the proposed rule and discussed above, depending on the
location and nature of the incident.
Living area. The proposed rule defines this term as the room(s) or
area(s) of the ESO's facility where responders may cook, eat, relax,
read, study, watch television, complete paperwork or data entry, and
similar daily living activities. The definition includes the following
examples: day rooms, kitchen/dining areas, classrooms, offices, and TV
rooms. Sleeping areas are not included in this definition because they
are defined separately. However, if any areas provided as examples of
living spaces have a bed(s), such as a wall bed or ``Murphy'' bed, then
it is considered a sleeping area. The definition also clarifies that
areas such as maintenance shops, utility and storage areas, and
interior vehicle parking bays are not considered living areas. OSHA is
aware that some ESOs have areas that are available for use by the
community, such as large reception and meeting halls used for private
or community events which may include commercial/catering kitchens.
Areas such as these would need to meet the same protective requirements
as living areas. WEREs are not included in this proposed definition
because OSHA believes that these types of areas are typically not
provided in WERE facilities. In Question (b)-1, OSHA is seeking
information and data from commenters on whether WEREs have similar
areas for team members, and if so, whether WEREs should be included in
this definition.
Mayday. The proposed rule defines this term as an emergency
procedure term used to signal that a team member or responder is in
distress, needs assistance and is unable to self-rescue; it is
typically used when safety or life is in jeopardy. The term mayday
comes from the French phrase ``venez m'aider'' meaning ``come help
me.'' It is an internationally recognized radio term to signal
distress, most frequently recognized as being used by the maritime and
aviation industries. Use of the term by emergency services has become
more prevalent with the expansive availability and use of portable
radios. Examples of situations where the term mayday would apply
include a lost or missing team member or responder, a Self-Contained
Breathing Apparatus (SCBA) malfunction or loss of air, a team member or
responder seriously injured or incapacitated, a team member or
responder trapped or entangled, or any life-threatening situation that
cannot be immediately resolved.
Mutual aid agreement. The proposed rule defines this term as a
written agreement or contract between WEREs and ESOs, or between ESOs,
that they will assist one another upon request by furnishing personnel,
equipment, materials, expertise, or other associated services as
specified. The definition is consistent with NFPA 1710 and NIMS. The
purpose of establishing a mutual aid agreement(s) is to facilitate the
rapid deployment of needed resources, typically viewed as an automatic
reciprocal response. WEREs and ESOs may have previously referred to
such agreements by other terms such as automatic aid or fire protection
agreement. Mutual aid agreements ensure availability of sufficient
resources to mitigate incidents that may not be possible by the WERE or
ESO alone, or for when an incident occurs that the ESO or WERE does not
have the
[[Page 7808]]
personnel, training, or equipment to mitigate.
Non-emergency service. The proposed rule defines this term as a
situation where a WERT or ESO is called upon to provide a service that
does not involve an immediate threat to health, life, or property, such
as assisting law enforcement with tools, equipment, and scene lighting;
removing people from a stuck elevator; resetting an accidentally
activated fire alarm system; or assisting a mobility-challenged person
downstairs during an elevator outage. OSHA recognizes that WERTs and
ESOs are called upon to perform non-emergency services because of their
knowledge, skills, abilities, and possession of the tools needed to
perform the service. They may also be called upon to go to homes to
check on the health or welfare of persons whom family members are
unable to contact because they have forcible entry tools and can
provide emergency medical treatment, if needed.
Personal protective equipment (PPE). The proposed rule defines this
term as the clothing and equipment worn and utilized to prevent or
minimize exposure to serious workplace injuries and illnesses. The
proposed provision also lists examples including gloves, safety glasses
and goggles, safety shoes and boots, earplugs and muffs, hard hats and
helmets, respirators and SCBA, protective coats and pants, hoods,
coveralls, vests, and full body suits. This definition is consistent
with the definition and use of the term in 29 CFR part 1910, subpart
I--Personal Protective Equipment. Additional examples of PPE that team
members and responders might be required to use include wet suits, dry
suits, personal floatation devices, and self-contained underwater
breathing apparatus (SCUBA) used in technical water rescue. PPE is
particularly important for team members and responders because other
protective measures such as administrative and engineering controls are
often not practical for emergency response activities.
Physician or other licensed health care professional (PLHCP). The
proposed rule defines this term as an individual whose legally
permitted scope of practice (i.e., license, registration, or
certification) allows the individual to independently provide, or be
delegated the responsibility to provide, some or all of the health care
services required by paragraph (g) of this section. OSHA drew the term
and definition from 29 CFR 1910.134, Respiratory Protection. The
provisions in the proposed rule that require a PLHCP have varying
degrees of medical complexity. OSHA expects that PLHCPs would only
perform services within their area of expertise, as well as their
license or certification, and would make referrals to a higher level or
different area of expertise, as appropriate.
Pre-incident plan (PIP). The proposed rule defines this term as a
written document developed by gathering general and detailed data about
a particular facility or location that is used by team members or
responders in effectively and safely managing an emergency incident
there. Specific requirements for WERE and ESO PIPs are set forth in
paragraphs (m) and (n), respectively. A PIP is developed before an
incident occurs and is intended to be used in the development of an IAP
during an incident to aid in the safe mitigation of the incident. The
term is consistent with NFPA 1660. The PIP provides crucial information
to prepare WEREs and ESOs for emergency incidents and assists the IC
with making informed decisions at the time of an emergency.
Rapid intervention crew (RIC). The proposed rule defines this term
as a group of at least two (2) team members or responders dedicated
solely to serve as a stand-by rescue team available for the immediate
search and rescue of any missing, trapped, injured or unaccounted-for
team member(s) or responder(s). This crew must be fully equipped with
the appropriate PPE and rescue equipment needed based on the specifics
of the operation that is underway as required by paragraph (q)(2)(viii)
of the proposed rule. OSHA based the definition on NFPA 1500.
Responder. The proposed rule defines this term as an employee or
member of an ESO who is, or will be, assigned to perform duties at
emergency incidents. Some ESOs, especially those with volunteers, use
the term member when referring to the people in their organizations.
OSHA intends that the term responder in the proposed standard to be
inclusive of both terms. Also, the term responder, as defined, excludes
employees or volunteers who do not have emergency response duties, such
as administrative staff who do not perform duties at emergency incident
scenes. The proposed rule would not cover activities of these
employees. Employees and members of public sector emergency response
employers in states with OSHA-approved State Plans, who are regulated
as employees by the State, are considered responders under this
rulemaking.
Size-up. The proposed rule defines this term as the observation and
evaluation of the influencing factors at an incident used to determine
the scope of the incident and to develop strategic goals and tactical
objectives. The definition is consistent with NFPA 1700. Many factors
are involved in a size-up, beginning with the emergency dispatch
center's receipt of information and the need for emergency service, the
dispatch of the appropriate service(s) to an incident, to the relay of
information received. Factors involved in a size-up vary depending on
the type of incident (fire, EMS, technical rescue), but as discussed in
the Summary and Explanation of paragraph (p), all size-ups need to
include evaluation of the level of safety hazards to the person/people
involved in the incident, bystanders, and team members and responders.
Size-up is an ongoing process that includes a continuing evaluation of
information received and observations made at the incident scene. Based
on the size-up, strategy and tactics may change depending on whether
the changing conditions of the incident are improving or deteriorating.
Skilled support worker (SSW). The proposed rule defines this term
as an employee of an employer whose primary function is not as an
emergency service provider and who is skilled in certain tasks or
disciplines that can support a WERT or ESO. This definition is based on
the description of skilled support personnel in 29 CFR 1910.120,
HAZWOPER. SSWs are not limited to general industry employers. Examples
of SSWs include operators of equipment such as heavy-duty wrecker/
rotator tow vehicles, mechanized earth moving or digging equipment,
crane and hoisting equipment, and others such as utility service
workers (gas, water, electricity), public works workers, and technical
experts. SSWs perform immediate support work that cannot reasonably be
performed in a timely fashion by responders or team members, and who
will be or may be exposed to the hazards at an emergency incident. The
proposed rule does not include requirements for employers of SSWs.
However, proposed paragraph (p) establishes requirements for WEREs and
ESOs who utilize SSWs to provide for the safety of those SSWs.
Sleeping area. The proposed rule defines this term as designated
room(s) or area(s) of the ESO's facility where responders sleep in
beds. OSHA intends for this term to cover ESO's permanent facilities
with room(s) or area(s) such as a dormitory, sleeping quarters, bunk
room, or sack room. It includes rooms or areas with wall beds or
``Murphy'' beds. The term is not intended to apply to areas used
temporarily for sleeping, such as tents or a community center used as a
base camp in a wildfire
[[Page 7809]]
situation, training room with cots set up during inclement weather
events, or a TV room with couches.
Standard operating procedure (SOP). The proposed rule defines this
term as a written directive that establishes a course of action or
administrative method to be followed routinely and explains what is
expected of team members or responders in performing the prescribed
action, duty, or task. OSHA based the definition on NFPA 1710. The
definition is similar in concept with NIMS. Proposed paragraph (q)
addresses requirements regarding SOPs.
Team member. The proposed rule defines this term as an employee of
the WERE whose primary job duties are typically associated with the
business of the WERE (e.g., production, manufacturing, processing,
warehousing, administration) and who is assigned to the WERT to perform
certain designated duties at emergency incidents at the WERE facility.
The definition further clarifies that emergency response is a
collateral duty for team members. The term team member encompasses all
employees who serve roles as part of the WERT in emergency operations,
from the firefighter holding a hose to the facility engineer who, for
example, closes a sprinkler valve at the direction of the IC, ensures
the fire pump is operating properly, or adjusts the control switches
for the heating/ventilating/air conditioning system to provide full
exhaust of smoke.
Technical search and rescue/Technical rescue. The proposed rule
defines this term as a type of service that utilizes special knowledge
and skills and specialized equipment to resolve complex search and
rescue situations, such as rope, confined space, vehicle/machinery,
structural collapse, trench, or technical water rescue. The definition
is based on NFPA 2500. With respect to water rescue, OSHA specifically
uses the term technical to specify that non-technical water rescue
would be excluded from the proposed rule. Examples of non-technical
water rescue include services such as pool and water-amusement park
lifeguard services, lake and beach lifeguard services that only use
non-mechanized equipment such as rescue boards, rescue buoys, rescue
tubes and cans, and snorkeling equipment. Proposed paragraph
(h)(2)(vii) addresses the required qualifications for technical search
and rescue team members and responders.
Unified Command (UC). The proposed rule defines this term as a
structure for managing an incident that allows for all agencies with
jurisdictional responsibility for an incident, either geographical or
functional, to manage an incident by establishing a common set of
incident objectives and strategies. The definition is consistent with
NFPA 1561 and NIMS. A UC is typically utilized when an incident is
large and complex and involves multiple ESOs and agencies, such as a
large-scale wildland fire or flash flood; a derailed passenger train or
aircraft crash; or the collapse of a large, occupied structure. Other
agencies involved may vary depending on the type, size, and location of
the incident and could include agencies such as law enforcement, public
works, utilities, Federal agencies such as FEMA and OSHA, non-
governmental organizations, and others.
Workplace Emergency Response Employer (WERE). The proposed rule
defines this term as an employer who has a workplace emergency response
team; and whose employees on the team, as a collateral duty to their
regular daily work assignments, respond to emergency incidents to
provide service such as firefighting, emergency medical service, or
technical search and rescue. WEREs are typically for-profit entities
engaged in industries such as manufacturing, processing, and
warehousing. They have a workplace emergency response team to respond
to emergency incidents at the facility. Workers on the employer's
emergency response team meet the definition of team member under this
proposed rule. However, if an employer has workers who meet the
definition of responder (providing emergency service(s) is their
primary duty for the employer), then the employer is an ESO, not a
WERE.
Workplace Emergency Response Team (WERT). The proposed rule defines
this term as a group of employees (known as team members) who, as a
collateral duty, prepare for and respond to emergency incidents in the
WERE's workplace. This term, and variations of it, are currently in use
in multiple industries, with varying degrees of application. OSHA is
providing this proposed definition to clearly identify what it means by
the term WERT. In the proposed rule, team members are workers who would
typically be engaged in an activity related to the employer's primary
business function and leave that position when alerted to an emergency
requiring the worker's service as a WERT team member. OSHA believes
that various terms previously used, such as industrial or facility fire
brigade or fire department; emergency response team; fire team; and
plant emergency organization are confusing to many employers. The terms
have often been used interchangeably by various entities. In the
proposed rule, OSHA clearly differentiates the types of emergency
response entities by using and defining the terms WERE, WERT, and ESO.
OSHA recognizes that WEREs may also be called upon to perform non-
emergency services, defined above.
Paragraph (c) Organization of the WERT, and Establishment of the ERP
and Emergency Service(s) Capability
As noted in the Summary and Explanation for proposed paragraph (a)
Scope, the proposed rule would not apply to any employer that is not an
Emergency Service Organization (ESO) and does not have a Workplace
Emergency Response Team (WERT). Nothing in this proposed rule would
require an employer to establish a WERT. Each employer makes the
decision for itself, based on a risk assessment of its facility, about
how emergency response services will be provided for its workers at its
facility. Employers may choose to rely on emergency services available
in the community where the facility is located. Community fire and EMS
ESOs are available in varying capacities throughout the country. When
an employer is considering how emergency response services will be
provided at its facility, response time and community ESO availability
may be a concern and should be a factor in the employer's decision.
Additionally, employers should not assume that the local ESO is able to
provide all types of services that may be needed at their facility. In
particular, ESOs with technical rescue capabilities are not as widely
available as fire and EMS ESOs.
Another option would be for the employer to establish a team of
facility workers into a WERT to provide some, or all of the emergency
services potentially needed at the facility. The establishment of the
WERT could be a component of the employer's 29 CFR 1910.38 compliant
emergency action plan, when required. For example, if the employer's
facility risk assessment identified the need for technical rescue, but
the community ESO provides only fire and EMS services, the employer
could establish a WERT for technical rescue only. Or perhaps the risk
assessment indicates a need for firefighting services because the
facility is located a long distance from the community ESO. To ensure
an adequate response time, the employer could establish a WERT to
provide the appropriate level of firefighting services at its facility.
Under the proposed rule,
[[Page 7810]]
an employer who establishes a WERT is considered a Workplace Emergency
Response Employer (WERE). If an employer chooses to establish a WERT,
the requirements of the proposed standard would apply.
Paragraph (c) of the proposed rule sets forth the core
responsibilities of WEREs. The purpose of the proposed rule is to
reduce team member injuries and fatalities, and a primary means to
achieve this intended purpose is to require WEREs to develop and
implement an Emergency Response Program (ERP) that encompasses the
rule's requirements. As discussed in the Summary and Explanation of
paragraph (b), the proposed rule defines an ERP as a written program,
developed by the WERE or ESO, to ensure that the WERE or ESO is
prepared to safely respond to and operate at emergency incidents and
non-emergency service situations, and to provide for the occupational
safety and health of team members and responders. The ERP will assist
WEREs in ensuring emergency preparedness and compliance with the rule.
In developing an ERP, WEREs will be better prepared for emergency
incidents by establishing emergency procedures that are maintained in a
central plan that can be readily shared with and accessed by
supervisors and employees. This will promote clear understanding and
knowledge of the WERE's emergency procedures and better prepare the
workplace for emergency incidents.
Paragraphs (c)(1) and (2) of the proposed rule would require the
WERE to develop and implement a written ERP that provides protection
for each of its employees designated to operate at an emergency
incident. In the proposed rule, these designated workers are referred
to as team members. The ERP would establish the existence of the WERT;
the basic organizational structure of the WERT, such as management and
leadership structure/chain-of-command, and the purpose of the WERT and
duties and responsibilities of team members; and include how the WERE
is addressing the provisions in the following paragraphs of the
Proposed rule: (c), (e), (f), (g), (h), (i), (k), (l), (m), (o), (p),
(q), (r), and (s). The ERP must include an up-to-date copy of all
written plans and procedures, except for pre-incident plans (PIPs),
required by this section. Hence, the ERP is a compilation of all
documents required by the proposed rule, except for PIPs. The
organizational structure would include how the WERT is managed and how
it fits into the operation of the facility. Most written plans and
procedures might only be updated annually, unless deficiencies are
discovered. The ERP would be revised as these plans and procedures are
updated. PIPs, on the other hand, have the potential to be developed or
updated on a much more frequent basis, new versions must be provided to
the WERT when updates are made, and the most recent versions must be
available and accessible to team members and responders on incident
scenes. As such, OSHA has preliminarily determined it is not necessary
for PIPs to also be redundantly included in the ERP.
Proposed paragraph (c)(3) would require the WERE to conduct a
vulnerability assessment of their facility for the purpose of
establishing its emergency response capabilities and determining its
ability to match the facility's vulnerabilities with available
resources. The employer's facility risk assessment would have already
determined whether there is a need or desire to establish a WERT to
provide emergency services. Building on that risk assessment, this
proposed paragraph would require a more in-depth assessment of the
facility to determine specific vulnerabilities, such as workers who
work at elevated locations or the use or storage of large quantities of
flammable liquids; what resources are needed for mitigation, such as
the tools or equipment needed to rescue a worker who is suspended after
falling from an elevated location or specialized extinguishing agents
for flammable liquids; and whether the resources are available at the
facility and are sufficient for mitigating the identified
vulnerabilities.
Paragraph (c)(4) of the proposed rule would require the WERE, as
part of the facility vulnerability assessment, to identify each
structure, process area, and other location where a PIP is needed.
Proposed paragraph (m) provides additional information and proposed
provisions for developing PIPs, which would be used by team members at
emergency incidents as discussed further in proposed paragraph (p).
Under proposed paragraphs (c)(4)(i) and (ii), the facility
vulnerability assessment would identify each vacant structure and
location at the facility that is unsafe for team members to enter due
to conditions such as previous fire damage, damage from natural
disasters, and deterioration due to age and lack of upkeep; and would
require the WERE to provide a means for notifying team members of the
vacant structures and unsafe locations. Such vacant structures and
locations are typically unsafe to enter under normal circumstances, and
are even more dangerous during an emergency incident, particularly when
on fire. Possible means of notification include installing a sign or
painting a warning symbol on the wall adjacent to the entrance(s) that
is visible to team members before they would enter the structure and
blocking off an unsafe location. Also, the office responsible for
alerting and communicating with team members (emergency dispatch
center, safety office, security office) could maintain information on
file for the vacant structure or unsafe location and could inform team
members when an emergency incident occurs. The term vacant indicates
that no person would be expected to be inside the structure. OSHA
believes that team members should only enter the unsafe structure or
location during an emergency incident in an attempt to perform a
feasible rescue of a person or persons known to be inside.
Paragraph (c)(5) of the proposed rule would require the WERE to
specify the resources needed, including personnel and equipment, for
mitigation of emergency incidents identified in the facility
vulnerability assessment. This is an important step in the process of
determining what is needed to address an emergency incident at the
facility in order to ensure that team members have the resources
necessary to perform their duties safely and effectively.
In paragraphs (c)(6) and (7), the proposed rule would require the
WERE to establish and document in the ERP, the type(s) and level(s) of
emergency service it intends to perform, and establish tiers of team
member responsibilities, qualifications, and capabilities for each of
the type(s) and level(s). The concept of type(s), level(s), and tiers
is used throughout the proposed rule. The WERE would use these terms
consistently to determine how and to what extent various provisions of
the proposed rule apply. For example, requirements for medical
evaluations, training, and PPE may differ depending on the type(s),
level(s), and tier(s) of service the WERT performs. The WERE would
identify whatever tiers are appropriate to their organization.
The type(s) of service(s) might include firefighting, technical
rescue, or EMS for example. For firefighting operations, examples of
levels of service could be incipient stage, advanced exterior, interior
structural, and both advanced exterior and interior firefighting. Tiers
of team members could be trainee, incipient stage, advanced exterior,
interior structural, and both advanced exterior and interior
firefighter, team leader/officer, team manager/chief, or support.
[[Page 7811]]
For technical rescue type of operations, examples of levels of
service could be rope rescue, vehicle/machinery rescue, structural
collapse, trench rescue, and technical water rescue. Tiers of team
members could be trainee, awareness, operation, technician, team
leader/officer, team manager/chief, or support.
For EMS, level(s) of service could be, for example, Basic Life
Support or Advanced Life Support, or another level of pre-hospital care
such as aeronautical medical evacuation. As noted above, the proposed
rule would not apply to employers who only provide first aid and first
aid kits in accordance with 29 CFR 1910.151, Medical services and first
aid. For tiers, positions such as trainee, Emergency Medical Responder
(EMR), Emergency Medical Technician (EMT), Advanced EMT, Paramedic,
Nurse, Physician, or support.
For the example support tier identified in proposed paragraph
(c)(7), OSHA envisions that a team member in this tier would not
perform any mitigation duties. Instead, this could be a building
engineer who checks to make sure the fire pump is functioning properly
while sprinklers are flowing, ensures that the smoke exhaust system is
effectively exhausting smoke, or ensures sources of energy are locked
out and tagged out during a technical rescue of an employee trapped in
a machine. It could also be a cafeteria worker-team member designated
to deliver and provide water and other refreshments at the incident
scene, or an employee-team member designated to meet mutual aid WERTs
or ESOs at the entrance gate and direct them to the location of the
incident.
Proposed paragraph (c)(8) would require the WERE to identify, and
document in the ERP, what emergency service(s) the WERE itself is
unable to provide, and develop mutual aid agreements with other WEREs
and ESOs, as necessary, or contract with an ESO(s), to ensure adequate
resources are available to mitigate foreseeable incidents. For example,
if a WERE identifies that its facility has tall structures that need an
aerial ladder or elevated platform vehicle for firefighting or rescue,
but its WERT does not have such a vehicle, the WERE would need to
establish a mutual aid agreement with a neighboring WERE or ESO with an
aerial ladder or elevated platform vehicle to provide it when needed.
Another example is where a WERE has a permit-required confined space,
but its WERT only performs firefighting. The WERE would need to
establish a mutual aid agreement with a neighboring WERE or ESO, or
contract an ESO, that provides confined space rescue services.
Proposed paragraph (c)(9) and (10) would require the WERE to keep
for a minimum of five (5) years previous editions of ERP documents
required by the proposed rule; notify team members of any changes to
the ERP; and make the current ERP and previous editions available for
inspection by team members, their representatives, and OSHA personnel.
Ensuring that team members have knowledge of and access to the most up-
to-date ERP documents is essential to ensuring those documents serve
their purpose. The proposed retention and access requirements will also
aid OSHA's enforcement and compliance activities. Availability of OSHA
required documents is a long-standing requirement imposed by the agency
in its standards and is carried forward from existing 29 CFR
1910.156(b)(1).
Paragraph (d) ESO Establishment of ERP and Emergency Service(s)
Capability
Paragraph (d) of the proposed rule sets forth the ESO's
responsibility to establish and implement an Emergency Response Program
(ERP). As explained above in the Summary and Explanation for paragraph
(c), the purpose of this rulemaking is to reduce responder injuries and
fatalities, and a primary means to achieve this intended purpose is to
require WEREs and ESOs to develop and implement an ERP that encompasses
the rule's requirements. An ERP serves the same purpose for ESOs as it
does for WEREs; that is, it promotes clear understanding and knowledge
among responders of the ESO emergency procedures by maintaining those
procedures in a central plan that can be readily shared with and
accessed by supervisors and employees. This understanding and knowledge
will aid compliance and ensure the protections of the rule will be
realized.
Paragraphs (d)(1) and (2) of the proposed rule would require the
ESO to develop and implement a written ERP that provides protection for
each of its responders designated to operate at an emergency incident.
The ERP would include the ESO's plans for how it will comply with each
of the following paragraphs of the proposed rule: (d) through (h), (j)
through (l), and (n) through (s). The ERP must include an up-to-date
copy of all written plans and procedures, except for PIPs, required by
this section. Hence, the ERP is a compilation of all documents required
by the proposed rule, except for PIPs. Most written plans and
procedures might only be updated annually, unless deficiencies are
discovered. The ERP would be revised as these plans and procedures are
updated. PIPs, on the other hand, have the potential to be developed or
updated on a much more frequent basis, are specific to a particular
location, and are required to be available and accessible to team
members and responders on incident scenes. As such, OSHA has
preliminarily determined it is not necessary for PIPs to also be
redundantly included in the ERP.
Proposed paragraph (d)(3) would require that the ESO conduct a
community or facility vulnerability assessment of hazards within the
primary response area where the emergency service(s) it provides is/are
expected to be performed. An in-depth assessment of the community or
facility would determine specific vulnerabilities. The ESO would be
able to determine what resources are available for mitigation, both
within the ESO and from mutual aid WERTs and ESOs, and whether the
available resources are sufficient for mitigating the identified
vulnerabilities. OSHA believes that most stakeholders are familiar with
the concept of primary response area, which may also be known by other
terms such as the first-due area. It is the area in which the ESO would
be the first in line to be the only emergency service dispatched for an
incident requiring a single response vehicle, such as for a dumpster
fire that is outside with no exposures, or a person with a minor injury
in need of emergency medical attention. In other words, it is the area
where the ESO is principally responsible for responding to emergency
incidents.
In considering its primary response area, the ESO's assessment
would include a systematic evaluation of the community it services to
determine the impact that could be caused by potential emergency
incidents, the severity of the impact, and the available or needed
resources for mitigation. Such assessment would include risks and
vulnerabilities associated with the prevailing residential structures;
and principal structures such as schools, colleges, and universities;
hospitals and medical centers; large residential structures and hotels;
transportation, manufacturing, processing, and warehousing facilities;
and retail. It would also include an assessment of the community's
critical infrastructure such as available water supply, electric power
generation and transmission, routine and emergency communication, and
highways and railways. Natural features such as bodies of water, caves,
[[Page 7812]]
gorges, mountains, and cliffs would also need to be assessed.
As the note to proposed paragraph (d)(3) explains, an ESO whose
primary response area is a community would assess the community it
serves. An ESO whose primary response area is, for example: a
manufacturing facility, a military facility, a research and development
facility, or similar occupational facility or workplace, would assess
that facility.
Paragraph (d)(4) of the proposed rule would require the ESO, as
part of the community or facility vulnerability assessment, to identify
each structure and other location where a PIP is needed. Proposed
paragraph (m) provides additional information and proposed provisions
for developing PIPs, which would be used by responders at emergency
incidents as discussed further in proposed paragraph (p).
Proposed paragraphs (d)(4)(i) and (ii) would further require that
the community or facility vulnerability assessment identify each vacant
structure and location that is unsafe for responders to enter due to
conditions such as previous fire damage, damage from natural disasters,
and deterioration due to age and lack of upkeep; and would require the
ESO to provide a means for notifying responders of the vacant
structures and unsafe locations. Such vacant structures and locations
are typically unsafe to enter under normal circumstances, and are even
more dangerous during an emergency incident, particularly when on fire.
Possible means of notification include installing a sign or painting a
warning symbol on the wall adjacent to the entrance(s) that is visible
to responders before they would enter the structure and blocking off an
unsafe location. Also, the emergency dispatch center could maintain
information on file for the vacant structure or unsafe location and
could inform responders when an emergency incident occurs. The term
vacant indicates that no person would be expected to be inside the
structure. OSHA believes that responders should only enter an unsafe
structure or location during an emergency incident in an attempt to
perform a feasible rescue of a person or persons known to be inside.
Proposed paragraph (d)(5) would require that the ESO's community
vulnerability assessment include all facilities within the ESO's
service area that are subject to reporting requirements under 40 CFR
part 355 pursuant to the Emergency Planning and Community Right-to-Know
Act (EPCRA) (also referred to as the Superfund Amendments and
Reauthorization Act of 1986 (SARA), 42 U.S.C. 11001 et seq.). The fact
that these types of facilities are subject to reporting to the Local
Emergency Planning Committee indicates that they are hazardous, either
because the facility handles an ``extremely hazardous substance'' or
because it has been designated for emergency planning purposes by the
relevant state or tribal entity (see 40 CFR 355.10). Some of these
facilities may have WERTs, in which case, the ESO could communicate
with the WERT to discuss the likelihood of the need for mutual aid, and
to obtain a copy of the PIP from the WERT. In the absence of a WERT-
provided PIP, the ESO would need to develop its own PIP to ensure the
ESO is sufficiently prepared to respond to incidents at the facilities
as required by paragraph (n)(3) of this section.
Proposed paragraph (d)(6) would require the ESO to evaluate the
resources needed, including personnel and equipment, for mitigation of
emergency incidents identified in the community or facility
vulnerability assessment. The provision would also require the ESO to
establish in the ERP the type(s) and level(s) of service(s) it intends
to perform. This is an important step in the process of determining
what is needed to address an emergency incident in the community or at
the facility and would help ensure that responders know what services
they are expected to provide when an incident occurs and have the
resources needed to perform those services.
In paragraph (d)(7), the proposed rule would require the ESO to
establish tiers of responder responsibilities, qualifications, and
capabilities for each of the type(s) and level(s). The concept of
type(s), level(s), and tiers is used throughout the proposed rule. The
ESO would use these terms consistently to determine how and to what
extent various provisions of the proposed rule apply. For example,
requirements for medical evaluations, training, and PPE may differ
depending on the type(s), level(s), and tier(s) of service the ESO
performs. The ESO would identify whatever tiers are appropriate to
their organization. Typically, the ESO will already know what type(s)
and level(s) of service it provides and may already have tiers of
responders based on responder duties, training, qualifications,
certifications, and responsibilities.
The type(s) of service(s) might include firefighting, technical
rescue, or EMS for example. For firefighting type of operations,
examples of levels of service could be structural, wildland, proximity,
marine, and aerial. Tiers of responders could be trainee, basic
firefighter, advanced firefighter, officer/crew leader, command
officer, chief, pilot, fire police/traffic control, or support.
For technical rescue type of operations, examples of levels of
service could be rope rescue, vehicle/machinery rescue, structural
collapse, trench rescue, and technical water rescue. Tiers of
responders could be awareness, operation, technician, crew leader/
officer, or support.
For EMS, level(s) of service could be Basic Life Support or
Advanced Life Support, or another level of pre-hospital care such as
aeronautical medical evacuation. As noted above, the proposed rule
would not apply to employers who only provide first aid and first aid
kits in accordance with 29 CFR 1910.151, Medical services and first
aid. For tiers, positions could be trainee, Emergency Medical Responder
(EMR), Emergency Medical Technician (EMT), Advanced EMT, Paramedic,
Nurse, Physician, EMS officer, chief, pilot, or support.
For the example support tier identified in proposed paragraph
(d)(7), OSHA envisions that a responder in this tier would not perform
any mitigation duties. Instead, this could be, for example, an
auxiliary/associate responder responsible for providing canteen/
refreshment services at incident scenes, a SCBA maintenance technician
responsible for performing services at incident scenes, or vehicle
maintenance technician responsible for servicing or refueling vehicles
at incident scenes.
Under paragraph (d)(8) of the proposed rule, the ESO would be
required to define the service(s) needed, based on paragraph (d)(4) of
this section, that the ESO is unable to provide, and develop mutual aid
agreements with WEREs or other ESOs as necessary to ensure adequate
resources are available to safely mitigate foreseeable incidents. For
example, if an ESO identifies that its community or facility has tall
structures that need an aerial ladder or elevated platform vehicle for
firefighting or rescue, but does not have such a vehicle, the ESO would
need to establish a mutual aid agreement with a neighboring ESO with an
aerial ladder or elevated platform vehicle to provide it when needed.
Another example is an ESO that only provides EMS at the Basic Life
Support level. The ESO would need to establish a mutual aid agreement
with a neighboring ESO to provide EMS at the Advanced Life Support
level to its primary response area.
[[Page 7813]]
Proposed paragraph (d)(9) and (10) would require the ESO to keep
for a minimum of five (5) years previous editions of ERP documents
required by the proposed rule; notify responders of any changes to the
ERP; and make the current ERP, as well as previous editions, available
for inspection by responders, their representatives, and OSHA
personnel. Ensuring that responders have knowledge of and access to the
most up-to-date ERP documents is essential to ensuring those documents
serve their purpose. The proposed retention and access requirements
will also aid OSHA's enforcement and compliance activities.
Availability of OSHA required documents is a long-standing requirement
imposed by the agency in its standards and is carried forward from
existing 29 CFR 1910.156(b)(1).
Paragraph (e) Team Member and Responder Participation
To be effective, any safety and health program needs the meaningful
participation of workers and their representatives. Similarly, for the
Emergency Response Program (ERP) to be effective, team members and
responders need to be involved in establishing, operating, evaluating,
and improving the ERP.
Proposed paragraphs (e)(1) and (2) would require that the WERE and
ESO establish and implement a process to involve team members and
responders in developing and updating the ERP, in implementing and
evaluating the ERP, and in the review and change process. Team members
and responders have much to gain from a successful program and the most
to lose if the program fails. They are often the most knowledgeable
about potential hazards associated with their jobs. Participation by
team members and responders allows them to identify steps to protect
themselves. In addition, participation both enhances understanding and
awareness of the ERP and increases the likelihood that team members and
responders will consistently adhere to its requirements by creating a
sense of ownership. In Question (e)-1, OSHA is considering adding to
both paragraphs (e)(1) and (2) a requirement to permit employee
representatives to be involved in the development and implementation of
an ERP, and to paragraph (e)(4) a requirement to allow employee
representatives to participate in walkaround inspections conducted by
the WERT or ESO, along with team members and responders, and is seeking
input from stakeholders on whether employee representative involvement
should be added to this paragraph.
Under proposed paragraph (e)(3), the WERE and ESO would need to
request input from team members and responders regarding modifications
proposed by the WERE or ESO to their own facility(ies). Just as in the
case of paragraphs (e)(1) and (2), team members and responders who
routinely work in the facility are typically most familiar with the
location where potential modifications are proposed and potentially in
a good position to recognize how modifications could affect their
health and safety in responding to emergencies. It could be that the
modification is being proposed as a result of a complaint or a
suggestion from those familiar with the area, so including them could
help determine if the modification will improve protections during an
incident.
Paragraph (e)(4) of the proposed rule would require the WERE and
ESO to establish and implement a process to involve team members and
responders in walkaround inspections conducted by the WERE or ESO,
inspections conducted in response to health and safety concern(s)
raised, and incident investigations at the WERE and ESO's own
facility(ies). The inspections to which this paragraph refers include
the safety and health inspections conducted to protect the workforce in
general, and those conducted when a health or safety concern is
identified, or in response to a complaint. The agency believes that
inspections and incident investigations are most effective when they
include managers and employees working together, since each bring
different knowledge, understanding and perspectives to the inspection
or investigation.
Proposed paragraphs (e)(5) and (6) would require the WERE and ESO
to establish and implement a process to encourage team members and
responders to report safety and health concerns, such as hazards,
injuries, illnesses, near misses, and deficiencies in the ERP, and to
respond to such reports in a reasonable period. Team members and
responders are often best positioned to identify safety and health
concerns and program shortcomings, such as emerging workplace hazards,
close calls/near misses, and actual incidents. By encouraging reporting
and following up promptly on all reports, WEREs and ESOs can address
issues before an illness, injury, or fatality occurs. Examples of how
the WERE and ESO can encourage team members and responders to report
safety issues include making the reporting process as easy as possible,
giving the option of reporting anonymously, assuring team members and
responders that they will not face retaliation for reporting concerns
and ensuring that no retaliation occurs, addressing concerns quickly,
and seeking input from all team members and responders.
Proposed paragraph (e)(7) would require the WERE and ESO to
establish and implement a process to post procedures for reporting
safety and health concerns under paragraph (e)(5) of this section in a
conspicuous place or places where notices to team members and
responders are customarily posted. Examples of such places are bulletin
boards and internal web pages. This requirement ensures that team
members and responders know how to raise safety and health concerns and
further serves to encourage involvement in the safety and health of the
workplace.
Paragraph (f) WERE and ESO Risk Management Plan
Paragraph (f)(1) of this proposed rule would require WEREs and ESOs
to develop and implement a written comprehensive risk management plan
based on the type and level of service(s) that would be established in
proposed paragraphs (c) and (d) of the proposed rule. The purpose of
the proposed risk management plan is to ensure that risks to the team
members' and responders' health and safety have been identified and
evaluated, and a control plan has been developed and implemented by the
WERE and ESO in a manner that mitigates or reduces the risk to a level
that is as low as reasonably practicable. The minimum proposed
provisions of the risk management plan are based on NFPA 1500, as
recommended by several commenters in response to the RFI (Document ID
0072; 0074; 0078), and by SERs (Document ID 0115).
Proposed paragraphs (f)(1)(i)(A) through (F) provides further
detail and would require the comprehensive risk management plan to
cover, at a minimum, risks to team members and responders associated
with activities at WERE and ESO facilities; training; vehicle
operations (both emergency and non-emergency); operations at emergency
incidents; non-emergency services and activities (e.g., community
outreach activities); and activities that lead to exposure to
combustion products, carcinogens, and other incident-related health
hazards. While these are the minimum areas to be covered, WEREs and
ESOs would need to ensure all reasonably anticipated hazards are
addressed in the risk management plan, regardless of whether it falls
under a covered area identified in (f)(1)(i). In Question (f)-1, OSHA
seeks input on whether other activities or subjects should be
specifically
[[Page 7814]]
included in this list of minimum requirements for the risk management
plan.
To provide a framework for the proposed requirements of the risk
management plan for each of the covered areas identified in proposed
paragraph (f)(1)(i), proposed paragraphs (f)(1)(ii)(A) through (E)
would require the WERE and ESO to include, at a minimum, the following
components: identification of actual and reasonably anticipated
hazards; evaluation of the likelihood of occurrence of a given hazard
and the severity of its potential consequences; establishment of
priorities for action based upon a particular hazard's severity and
likelihood of occurrence; risk control techniques for elimination or
mitigation of potential hazards, and a plan for implementation of the
most effective solutions; and a plan for post-incident evaluation of
effectiveness of risk control techniques. If during a post-incident
analysis conducted in accordance with paragraph (r) of the proposed
rule, or during the ERP program evaluation conducted in accordance with
paragraph (s) of the proposed rule, it is determined that the risk
control techniques were not sufficient, the WERE and ESO would need to
develop and implement improved risk control techniques. These new risk
control techniques would then need to be documented in the risk
management plan and, as required under paragraphs (c)(10) and (d)(10)
of the proposed rule, communicated to all affected team members and
responders.
In addition to the risks that would be identified and addressed in
proposed paragraphs (f)(1)(i) and (ii), respectively, there are several
other written components that would be needed as part of the overall
risk management plan. Proposed paragraphs (f)(1)(iii)(A) through (D)
would require the WERE and ESO to include, at a minimum, a PPE hazard
assessment that meets the requirements of 29 CFR 1910.132(d); a
respiratory protection program that meets the requirements of 29 CFR
1910.134; an infection control program that identifies, limits or
prevents exposure of team members and responders to infectious and
contagious diseases to the extent feasible; and a plan to protect team
members and responders from bloodborne pathogens that meets the
requirements of 29 CFR 1910.1030. OSHA does not currently have a
standard on airborne infectious and contagious diseases. Rather than
incorporating a consensus standard by reference, OSHA believes that
allowing the infection control provision in (f)(1)(iii)(C) to be
performance-based will give WEREs and ESOs the flexibility to design an
infection control program that is tailored to their operations and
facilities. WEREs and ESOs can reference consensus standards, such as
NFPA 1581, 2022 ed., and OSHA, CDC, or other state and local guidance
documents when creating and implementing the infection control program.
In Question (f)-2, OSHA seeks comment on this approach including
whether a final standard should incorporate a particular consensus
standard or other guidance, or otherwise include specific requirements
regarding infection control.
OSHA recognizes that there are extraordinary instances where a team
member or responder would need to deviate from the ordinary procedures
set out in the risk management plan to rescue a person in imminent
peril. To accommodate these situations, proposed paragraph (f)(2) would
require the WERE and ESO to include in the risk management plan a
policy for extraordinary situations when a team member or responder,
after making a risk assessment determination based on the team member
or responder's training and experience, is permitted to attempt to
rescue a person in imminent peril, potentially without benefit of, for
example, PPE, tools, or equipment. A team member's or responder's
decision to not use a risk control technique that has been identified
in the risk management plan is to be made on a case-by-case basis and
must have been prompted by legitimate and truly extenuating
circumstances. These circumstances typically have a time constraint
that would make it infeasible to implement the risk control technique
and rescue a person in imminent peril. This proposed provision could
allow, for example, an ambulance crew, without benefit of firefighting
PPE, to perform a rescue of a person endangered by fire who would
potentially sustain significant injury or death if they did not take
immediate action.
Proposed paragraph (f)(3) would require the WERE and ESO to review
the risk management plan when required by paragraph (r) or (s) of this
section, but no less than annually, and update it as needed. Risks are
dynamic and uncertain. Previously known risks may change, and new risks
may develop that need to be addressed in the risk management plan. An
annual review and update would ensure the risk management plan reflects
the current situation for managing risks effectively, while proposed
paragraphs (r) and (s) ensure that this review and update takes place
upon occurrence of significant events or the discovery of deficiencies.
Paragraph (g) Medical and Physical Requirements
Emergency response is a physically demanding occupation. As
discussed in section II.A., Need for the Standard, approximately half
of all firefighter on-duty and line of duty deaths are due to
cardiovascular events. Emergency response activities can place a
tremendous strain on the cardiovascular system which can trigger a
catastrophic cardiovascular event. This is especially true for team
members and responders with pre-existing heart conditions which they
may or may not be aware of. Emergency response activities often involve
activities that increase the risk of team member and responder
musculoskeletal injuries, e.g., lifting and carrying heavy loads
(equipment, PPE, victims, etc) in awkward positions, sustained use of
equipment that may result in injuries related to repetitive motion,
ergonomically unsafe cutting angles when safer approaches are
unavailable, or vibration. Emergency response activities often occur in
extreme environmental conditions that increase risks for heat or cold
injury. Noise from sirens, alarms, and equipment motors can induce
hearing loss especially if the noise exposure is occurring in
situations where it may be concurrent with exposure to carbon monoxide
or other substances known to have synergistic effects with noise on
hearing loss especially as many responders may not use hearing
protection devices out of concern for effective communication with
others on scene.
Emergency response activities may also involve exposure to numerous
toxic substances. Team members and responders may be exposed to
combustion products produced by the fire they are responding to as well
as from operation of their own equipment/apparatus, hazardous materials
when material releases occur, and infectious diseases during emergency
medical responses that may result in adverse health effects to team
members and responders. Additionally, exposure to combustion products
increases team members' and responders' risk of developing several
different kinds of cancer. Finally, emergency response activities
expose team members and responders to traumatic, emotionally charged
events, and the impact of these events on responders' mental health is
compounded by inadequate duration and quality of sleep due to
unpredictable nature of calls which is exacerbated by frequently
working back-to-back long shifts and excessive overtime especially in
understaffed fire
[[Page 7815]]
departments. Mental health issues may be worsened by perceived stigma
regarding use of mental health services.
Proposed paragraph (g) includes medical and physical requirements
to address these hazards. The physical fitness and physical and mental
medical requirements in paragraph (g) serve two purposes: (1) ensuring
that responders are physically and mentally capable of performing their
duties without injury to themselves or their fellow responders, and (2)
identifying and addressing physical and mental health effects resulting
from emergency response activities.
Most major emergency response organizations support medical
evaluation of emergency responders. The International Association of
Fire Fighters (IAFF) and International Association of Fire Chiefs
(IAFC) include medical evaluation consistent with NFPA 1582 in their
Joint Labor-Management Wellness-Fitness Initiative (Document ID 0127).
The National Volunteer Fire Council (NVFC) recommends getting an annual
physical in their Lavender Ribbon Report--Best Practices for Preventing
Firefighter Cancer (Document ID 0129). The National Fallen Firefighter
Foundation (NFFF) recommends medical physicals in their 16 Firefighter
Life Safety Initiatives (Document ID 0127). Comprehensive medical
evaluations are also recommended by NFPA in NFPA 600 and NFPA 1582
(Document ID 0133, 0118).
OSHA agrees with the industry consensus that medical evaluation and
surveillance is necessary for team members and responders who perform
emergency response duties. The agency has preliminarily determined that
the medical and physical requirements in proposed paragraph (g) are
essential elements of a standard for emergency responders because they
ensure team member and responder fitness for duty and also serve as a
means to monitor and address team member and responder exposures that
cannot otherwise be eliminated due to the nature of emergency response
activities. Fitness and medical surveillance requirements are a highly
effective means of reducing work-related injuries, illnesses, and
fatalities and improving the health of team members and responders.
NFPA 1582, Standard on Comprehensive Occupational Medical Program
for Fire Departments, 2022 ed., contains provisions for an occupational
medical program that is designed to reduce risks and provide for the
health, safety, and effectiveness of fire fighters while performing
emergency operations (Document ID 0118). It requires a comprehensive
medical examination annually for fire fighters engaged in the full
range of emergency response activities including firefighting,
emergency medical response, HAZMAT response, and technical rescue. In
response to the 2007 Emergency Response RFI, several commenters
strongly supported consideration of the provisions in NFPA 1582 for the
medical evaluation program (Document ID 0007, Att. 3; 0022, p. 10;
0024, p. 4; 0041, pp. 26-27; 0046, p. 11; 0047, p. 13; 0050, p. 14;
0060, pp. 17-18; 0078, p. 9; 0080, p. 4; 0083, p. 12; 0084, p. 1).
During a NACOSH subcommittee meeting, Pat Morrison, a subcommittee
member representing the IAFF, stated that requiring medical
evaluations, ``is the single most important thing we can do'' with the
proposed rule (Docket ID OSHA-2015-0019-0006, Tr. 22). The subcommittee
members agreed that while a full NFPA 1582 compliant physical would
provide optimal screening, such physicals are costly and should only be
required for team members and responders expected to enter an IDLH
environment. They also agreed that less extensive medical screening
should be required for other team members and responders based on their
duties. However, they were not able to agree on a recommendation of
what those less extensive requirements should be (Docket ID OSHA-2015-
0019-0006, Tr. 11-14).
During the 2021 SBREFA panel, many of the SERs expressed concern
about the high cost of the medical exams and evaluations identified in
the NFPA 1582 standard (Document ID 0115, p. 16). For example, Clarence
E. ``Chip'' Jewell III, representing the Libertytown Volunteer Fire
Department, submitted in post-panel comments that, ``Unfortunately,
every fire department does not have the manpower or financial resources
to fully implement NFPA 1582 and most likely would never be able to
comply with mandatory regulations'' (Document ID 0109, p. 1). Many SERs
were supportive of team members and responders receiving at least some
medical screening and evaluation; however, SERs did not offer any clear
indication of which medical screening tests should be retained and
which were less crucial for maintaining a healthy workforce (Document
ID 0115, p. 16).
OSHA recognizes that the medical surveillance required by NFPA
1582, Chapter 7, was intended specifically for fire fighters exposed to
combustion products and not for all emergency responders. The
provisions for medical screening and surveillance described below
account for these concerns. The proposed baseline medical examination
focuses on health hazards that are common to all team members and
responders, with potential additional requirements based on the
particular type and level of service(s) performed, while the proposed
medical surveillance requiring a full NFPA 1582-compliant physical is
reserved for those team members and responders exposed to combustion
products above a specific action level. As explained in section VII.C.,
Costs of Compliance, OSHA expects that only structural and wildland
firefighters will meet the threshold for the full NFPA 1582
requirements.
Proposed paragraph (g)(1)(i) would require that each WERE and ESO
establish minimum medical requirements based on the type and level of
service(s) established in paragraphs (c) and (d) of this section. The
medical requirements in proposed paragraph (g) would differ based on
the tiers of team members and responders established by each WERE or
ESO in accordance with paragraphs (c)(7) and (d)(7), except for those
in a support tier (see examples in the Summary and Explanation for
paragraphs (c) and (d)) who are excluded from the requirements in
paragraph (g) of this section. By tying the medical requirements to the
type and level of service(s), proposed paragraph (g)(1)(i) requires the
WERE or ESO to establish those requirements, and only those
requirements, necessary to ensure the health and safety of team members
or responders based on the duties they are expected to perform. This
proposed provision allows the WERE and ESO flexibility so that team
members and responders with less physically demanding duties or who are
exposed to fewer hazards may be subject to less stringent medical
requirements than team members and responders expected to perform more
physically demanding duties or who are exposed to more or more frequent
hazards during emergency response incidents.
Paragraph (g)(1)(ii) of the proposed rule would require that each
WERE and ESO maintain confidential records for each team member and
responder that includes duty restrictions based on medical evaluations;
occupational illnesses and injuries; and exposures to combustion
products, known or suspected toxic substances, infectious diseases, and
other dangerous substances. OSHA is sensitive to concerns that the
medical evaluation may divulge confidential information regarding a
responder's medical condition or may otherwise divulge information that
may adversely affect the responder. The proposed
[[Page 7816]]
requirements are intended to balance team member and responder privacy
with the WERE's and ESO's need for personal medical information to
identify and address occupational hazards by limiting the medical
information obtained, as identified in proposed paragraph (g)(2), to
the type of information necessary to assess a team member's or
responder's ability to perform specific tasks based on their health and
fitness ability. The use of such medical information is limited to
identifying potential health effects or risks related to a team
member's or responder's ability to perform emergency response
activities. The WERE or ESO would be required to maintain the
confidentiality of these medical records by storing them in a secure
location with restricted access.
Proposed paragraph (g)(1)(iii) would require that each WERE and ESO
ensure that medical records maintained under this paragraph are
maintained and made available in accordance with 29 CFR 1910.1020,
Access to employee exposure and medical records. These recordkeeping
requirements are in accordance with section 8(c) of the OSH Act which
authorizes the promulgation of regulations requiring an employer to
make, keep and preserve, and make available, such records as the
Secretary deems necessary or appropriate for the enforcement of this
Act or for developing information regarding the causes and prevention
of occupational accidents and illnesses. As explained in 29 CFR
1910.1020(a), access to personal medical records by employees, their
representatives, and the Assistant Secretary is necessary to yield both
direct and indirect improvements in the detection, treatment, and
prevention of occupational disease. OSHA has preliminarily determined
that maintenance of and access to the medical records required by this
section will help ensure proper evaluation of the team member's or
responder's health status, facilitate compliance, and assist the agency
in enforcing the proposed standard.
Proposed paragraph (g)(2)(i) would require that each WERE and ESO
establish a medical evaluation program for team members and responders,
based on the type and level of service(s), and tiers of team members
and responders established in paragraphs (c) and (d). The purpose of
medical evaluations for team members and responders is to determine,
where reasonably possible, if the individual can perform emergency
response duties without experiencing adverse health effects and to
determine the team member's and responder's fitness to use PPE
appropriate to their designated duties. As one commenter to the 2007
Emergency Response RFI stated, ``[r]equirements should vary based upon
the level of physical and mental activity required that must be
performed'' (Document ID 0024, p. 4). Furthermore, another commenter
stated that ``NFPA 1582 is not the appropriate standard for use by
general industry'' since it was ``designed for municipal fire
fighters'' (Document ID 0039, p. 15). Hence, as stated above, this
proposed provision would allow the WERE and ESO flexibility to tailor
its medical evaluation program so that team members and responders with
less physically demanding duties or who are exposed to fewer hazards
during emergency responses may have less stringent medical requirements
than team members and responders expected to perform more physically
demanding duties who are exposed to more or more frequent hazards.
Additionally, each responder routinely exposed to combustion products
at or above the threshold set forth in proposed paragraph (g)(3) would
be afforded additional medical surveillance as described in that
paragraph.
Paragraph (g)(2)(ii) of the proposed rule would require WEREs and
ESOs to ensure that, prior to performing emergency response duties,
each team member and responder is medically evaluated to determine
fitness for duty by a physician or other licensed health care
professional (PLHCP) at no cost to the team member or responder, in
accordance with proposed paragraphs (g)(2)(iii) through (vi) of this
section. Each responder who is exposed to combustion products above the
action level would also need to be evaluated in accordance with
proposed paragraph (g)(3) of this section. The proposed rule would
require that medical examinations be made available by the WERE and ESO
without cost to team members and responders (as required by section
6(b)(7) of the OSH Act), and at a reasonable time and place.
Paragraph (g)(2)(ii) and the related fitness for duty requirements
in proposed paragraph (g)(5), discussed below, ensure each team member
and responder is capable of performing their assigned job duties
without injury to themselves or their fellow team members or
responders. These requirements are consistent with OSHA's existing Fire
Brigades standard, which requires employers to ensure that employees
expected to perform interior structural firefighting ``are physically
capable of performing duties which may be assigned to them during
emergencies'' (29 CFR 1910.156(b)(2)). Current Sec. 1910.156(b)(2)
also specifies that the employer ``shall not permit employees with
known heart disease, epilepsy, or emphysema, to participate in fire
brigade emergency activities unless a physician's certificate of the
employees' fitness to participate in such activities is provided.''
Other OSHA standards contain similar requirements. For example, the
HAZWOPER standard requires employers to provide certain emergency
responders with medical exams that include an evaluation of ``fitness
for duty including the ability to wear any required PPE under
conditions . . . that may be expected at the work site'' and ``the
physician's recommended limitations upon the employee's assigned work''
(29 CFR 1910.120(f)(2) and (7)). Further, in all cases where
respiratory protection is required, either by a substance-specific
standard (see, e.g., Sec. 1910.1024(g)(1); 1910.1053(g)(1)) or by
OSHA's general Respiratory Protection standard (id. Sec. 1910.134),
employees must be medically evaluated to determine their ability to
wear a respirator (id. Sec. 1910.134(e)(6)) and must pass a fit test
(id. Sec. 1910.134(f)(1)).
The term physician or other licensed health care professional
(PLHCP), as defined in proposed paragraph (b), refers to individuals
whose legal scope of practice allows them to provide, or be delegated
responsibility to provide, some or all of the health care services
required by the medical surveillance provisions. The determination of
who qualifies as a PLHCP is based on state certification, which can
vary from state-to-state. OSHA considers it appropriate to allow any
professional to perform medical surveillance required by the standard
when they are licensed by state law to do so. This proposed provision
provides flexibility to the WERE and ESO while limiting cost and
compliance burdens.
Proposed paragraphs (g)(2)(iii)(A) through (D) specifies elements
that must be included in all medical evaluations, regardless of the
type and level service(s) provided or tiers of team members and
responders, to detect any physical or medical condition(s) that could
adversely affect the team member's or responder's ability to safely
perform the essential job functions. Each evaluation would include
medical and work history with emphasis on symptoms of cardiac and
respiratory disease; physical examination with emphasis on the cardiac,
respiratory, and musculoskeletal systems; spirometry; an assessment of
heart disease risk including blood pressure, cholesterol levels, and
other relevant heart disease risk factors; and any other
[[Page 7817]]
tests deemed appropriate by the PLHCP. These medical evaluations are
all included in NFPA 1582. Medical and work histories are an efficient
and inexpensive means for collecting information that can aid in
identifying individuals who are at risk because of hazardous exposures
(WHO, 1996, Document ID 0119, p. 26). Information on present and past
work exposures, medical illnesses, and symptoms can lead to the
detection of diseases at early stages when preventive measures can be
taken. Recording of symptoms would in some cases help to identify the
onset of disease in the absence of abnormal tests.
OSHA is including spirometry as a baseline measurement so that
decline in lung function can be assessed in subsequent evaluations if
needed. In a study of emergency responders involved in the 2001 World
Trade Center collapse response, a comparison of pre- and post-incident
spirometry was able to demonstrate lung function decline, indicating
the need for medical evaluation and ongoing surveillance (Aldrich et
al., 2010, Document ID 0161, p. 791).
Special emphasis is placed on heart disease risk assessment due to
the nature of emergency response duties and the associated
physiological stress. Cardiac risks include but are not limited to
physical exertion, exposure to asphyxiants and other products of
combustion, noise, psychological stress, and heat (Soteriades et al.,
2011, Document ID 0121, p. 202; Smith et al., 2016, Document ID 0120,
p. 90). Roughly half of all firefighter on-duty and line of duty deaths
(LODD) are the result of heart attacks (Fahey et al., 2022, Document ID
0122, p. 5; Kahn et al., 2015, Document ID 0162, p. 218; Soteriades et
al., Docket ID 0121, p. 202).
Guidance from the American College of Cardiology (ACC)/American
Heart Association (AHA) for heart disease risk assessment and
prevention in the general population utilizes risk calculators to guide
preventive recommendations (Arnett et al., 2019, Document ID 0124, p.
e603). Well-known risk factors, such as blood pressure, elevated
cholesterol levels, smoking or vaping, and diabetic status are used to
calculate lifetime and/or 10-year atherosclerotic cardiovascular
disease risk. Risk enhancers, such as metabolic syndrome and chronic
kidney disease, and coronary artery calcium (CAC) measurement, are
additional considerations for those whose risk remains uncertain. Risk-
enhancing factors are reasonable to use to guide PLHCP screening
decisions and preventive interventions.
As discussed in section II.A., Need for the Standard, emergency
responders are routinely exposed to a wide variety of airborne
respiratory hazards including gases, fumes, particulates, and
infectious diseases. In addition, many emergency responders are
routinely exposed to diesel exhaust both responding to emergency
incidents and while in WERE and ESO facilities where vehicles are
located.
The risks for musculoskeletal issues are further discussed in
section II.A., Need for the Standard, which notes that the increased
risk for musculoskeletal injury rates for emergency responders compared
to all private industries varied by the type of emergency service
provided, ranging from 1.7 times the reportable injury rates for
private ambulance drivers to 4 times the reportable injury rates for
EMS workers, with comparable rates among firefighters. Increased
musculoskeletal injury rates for emergency responders is attributed to
overexertion and strain associated with emergency response activities.
Due to the risk of sudden cardiovascular death from strenuous
emergency response activities, paragraph (g)(2)(iv) of the proposed
rule would require that each WERE and ESO provide additional screening
of team members and responders as deemed appropriate by the PLHCP and
at no cost to the team member or responder. The PLHCP has the option of
ordering additional testing they deem appropriate based on individual
signs or symptoms and clinical judgment. OSHA recognizes that this may
result in increased cardiovascular screening of team members and
responders beyond those recommended for the general population. This is
consistent with NFPA 1582, sections 7.7.7.3.1 through 7.7.7.3.2, which
recommends additional cardiovascular assessment at certain risk levels
beyond authoritative guidance for general population screening
recommended by the ACC/AHA and the United States Preventative Services
Task Force (USPSTF) (USPSTF 2018, Document ID 0163, p. 2311; Arnett et
al., 2019, Document ID 0124, p. e602). The cardiovascular risk
assessment of team members and responders allows the medical provider
the ability to focus further screening on only those team members and
responders at highest risk of suffering a cardiac event while
performing emergency response duties. OSHA has preliminarily determined
that compliance with the proposed provision would reduce the risk of
sudden death in team members and responders brought on by the stress of
their emergency response duties.
These additional screenings may include a symptom-limiting exercise
stress test with imaging of at least 12 Metabolic Equivalents (METs) as
recommended in NFPA 1582, section 7.7.7.3.1.1, for the evaluation of
those at intermediate risk of atherosclerotic cardiovascular disease
(10 to < 20% calculated risk over the next 10 years), and those with
metabolic syndrome, diabetes, or history of coronary artery disease.
This is noted as a consideration for intermediate risk asymptomatic
adults (class IIb) \5\ by AHA/ACC as well (Greenland et al., 2010,
Document ID 0125, p. e66). ACC/AHA also specifically addressed
occupational screening in their 2002 Guideline Update for Exercise
Testing in which exercise testing is a class IIb recommendation in
asymptomatic individuals who work in occupations in which impairment
might impact public safety (Gibbons et al., 2002, Document ID 0126, p.
1538).
---------------------------------------------------------------------------
\5\ For ACC/AHA Class IIb medical conditions, the recommended
procedure or treatment may be considered.
---------------------------------------------------------------------------
NFPA 1582, section 7.7.6, also recommends a resting
electrocardiogram at baseline and annually in those over age 40 or as
clinically indicated. ACC/AHA considers resting to be reasonable for
asymptomatic patient screening in those with diabetes or hypertension
(class IIa) \6\ and a consideration in those without diabetes or
hypertension (class IIb) (Greenland et al., 2010, Document ID 0125, p.
e66). This test may detect abnormalities such as left ventricular
hypertrophy and arrythmias indicative of increased risk.
---------------------------------------------------------------------------
\6\ For ACC/AHA Class IIa medical conditions, ACC/AHA considers
it reasonable to perform the procedure or administer treatment.
---------------------------------------------------------------------------
NFPA 1582, in the explanatory appendix section A.7.7.7.3.1.1, and
ACC/AHA (Arnett et al., 2019, Document ID 0124, p. e613) both
consistently mention CAC as a consideration for medical evaluation of
emergency response personnel, although NFPA 1582 does not specify
indications. Similarly, both organizations emphasize metabolic syndrome
as a risk factor.
Additional medical screening might also be required for other
medical conditions that are detected in the baseline examination, which
may affect a responder's or team member's ability to perform their
emergency response duties. If the PLHCP suspects a musculoskeletal
injury or condition, they may require an x-ray or MRI to determine
medical fitness for duty. For respiratory diseases, the PLHCP may
require a complete pulmonary function test, exercise stress testing, or
[[Page 7818]]
methacholine challenge testing to determine medical fitness for duty.
As noted above, the proposed rule would require that all medical
evaluations, regardless of type and level of service(s) provided or
tiers of team members and responders, include a medical history,
physical examination, spirometry, laboratory tests, and a
cardiovascular disease risk assessment with additional screening as
necessary. In Question (g)-1, OSHA is seeking input and data on whether
the proposed rule's requirements are an appropriate minimum screening.
Should the minimum screening include more or fewer elements, and if so,
what elements? Provide supporting documentation and data that might
establish the appropriate minimum screening. OSHA is also seeking
additional data and information on the feasibility of the proposed
medical evaluation and surveillance requirements for WEREs and ESOs.
The proposed rule also specifies how frequently medical
examinations would be required for team members and responders. In
proposed paragraph (g)(2)(v), WEREs and ESOs would be required to
provide medical evaluations to team members and responders with an
initial (baseline) examination after assignment and repeated every two
years thereafter unless the PLHCP deems more frequent evaluations
necessary, except for spirometry which would be repeated when deemed
appropriate by the PLHCP. The proposed requirement that a medical
examination be required at the time of initial assignment is intended
to determine if a team member or responder would be able to perform the
assigned emergency response duties without adverse health effects. The
expectation is that the baseline physical would be performed prior to
any entrance into an emergency response training academy or beginning a
training program. It also serves to establish a health baseline for
future reference. OSHA has set the medical re-evaluation at every two
years due to the focus on cardiovascular disease and the speed with
which cardiovascular disease develops. The medical re-evaluations are
intended to determine if a medical condition has developed that would
inhibit safe emergency incident response by team members and
responders. Allowing the PLHCP to order more frequent evaluations based
on their medical judgment ensures that team members and responders at
higher risk of adverse health effects, such as a cardiovascular event,
are appropriately monitored to ensure their continued safety and
ability to perform emergency response activities.
Paragraph (g)(2)(vi) of the proposal would require that each WERE
and ESO establish protocols regarding the length of time that absence
from duty due to injury or illness would require a team member or
responder to have a return-to-duty medical evaluation by a PLHCP prior
to returning to work. Lengthy absences or certain medical conditions
can alter a team member's or responder's ability to perform essential
job tasks.
Proposed paragraph (g)(3) applies to ESOs only and includes
additional surveillance for responders who are exposed to combustion
products. Paragraph (g)(3)(i) of the proposed rule would require that
the ESO provide medical surveillance that includes a component based on
the frequency and intensity of expected exposure to combustion products
established in the risk management plan in proposed paragraph (f).
Requirements would differ based on exposures. The proposal is
consistent with section 6(b)(7) of the OSH Act (29 U.S.C. 655(b)(7))
which requires that, where appropriate, medical surveillance programs
be included in OSHA standards to determine whether the health of
workers is adversely affected by exposure to the hazard addressed by
the standard.
Under proposed paragraph (g)(3)(i)(A), the ESO would need to ensure
that responders who are, or based on experience may be, exposed to
combustion products 15 times or more per year, without regard to the
use of respiratory protection, receive medical surveillance at least as
effective as the criteria specified in the national consensus standard,
NFPA 1582, Chapter 7. As noted above, OSHA recognizes that the
recommendations in NFPA 1582 were aimed at and specifically designed
for firefighters who are exposed to combustion products. Thus, although
only some of the requirements in NFPA 1582 may be relevant to other
team members and responders depending on the types and level of
service(s) they provide, OSHA has preliminarily determined that it is
appropriate to require the full NFPA 1582 physical for those responders
exposed to combustion products above a particular action level.
With respect to what level of exposure is appropriate to trigger
these requirements, Matt Tobia, a subcommittee member representing the
IAFC, reported at a subcommittee meeting that a subgroup that discussed
medical requirements considered those emergency responders whose job
duties required them to enter an IDLH environment to be the responders
subject to the full medical requirements (Document ID OSHA-2015-0019-
0006, Tr. 108-111). OSHA received no other suggestions for a threshold
to require additional medical requirements.
Although the NACOSH subcommittee focused on emergency responders
who must enter IDLH environments, some exposures to combustion products
may occur outside of such environments. Because the health risks posed
by combustion products are not limited to exposures in IDLH
environments, the proposed standard would require ESO's to consider all
exposures to combustion products, not just those that occur in an IDLH
environment. At the same time, given the apparent dose-response
relationship between exposures and health effects (see Need for the
Standard), OSHA does not believe that a single exposure to combustion
products would necessitate increased medical requirements beyond what
would be required by proposed paragraph (g)(2).
In considering what level of exposure (i.e., action level) should
trigger additional medical surveillance, OSHA reviewed its existing
standards that require medical surveillance triggered by a specified
action level. Most OSHA standards that have an action level that
triggers medical surveillance use 30 days of exposure at or above a
specified action level: Arsenic (29 CFR 1910.1018); Benzene (29 CFR
1910.1028); 1,3 Butadiene (29 CFR 1910.1051); Cadmium (29 CFR
1910.1027); Hexavalent Chromium (29 CFR 1910.1026); Ethylene Oxide (29
CFR 1910.1047); HAZWOPER (29 CFR 1910.120); Lead (29 CFR 1910.1025);
Methylene Chloride (29 CFR 1910.1052); and Methylenedianiline (29 CFR
1910.1050).
Several OSHA standards use exposure above the established
permissible exposure level (PEL) or short-term exposure limit (STEL)
for 10 days to trigger medical surveillance: Benzene (29 CFR
1910.1028); 1,3 Butadiene (29 CFR 1910.1051); and Methylene Chloride
(29 CFR 1910.1052). Other OSHA standards use any exposure or exposure
at or above an action level, PEL, or while working in a regulated area
to trigger medical surveillance: Acrylonitrile (29 CFR 1910.1045);
Asbestos (29 CFR 1910.1001); Compressed Air Environments (29 CFR
1926.803); Cotton Dust (29 CFR 1910.1043); Formaldehyde (29 CFR
1910.1048); Suspected Carcinogens (29 CFR 1910.1003); Vinyl Chloride
(29 CFR 1910.1017); and 1,2-dibromo-3-chloropropane (29 CFR 1910.1044).
[[Page 7819]]
The proposed rule's action level for medical surveillance of 15 or
more exposures per year is modeled after 29 CFR 1910.1050,
Methylenedianiline (MDA), which requires that employees who are subject
to dermal exposure to MDA for 15 or more days per year receive medical
surveillance. 29 CFR 1910.1050(m)(1)(i)(B). Similar to MDA, dermal
exposure is a particular concern for responders exposed to combustion
products. Research by NIOSH and other scientific experts supports that
dermal exposure is a significant exposure pathway for responders.
Exposures occur as the combustion products enter the PPE through the
interface areas (coat to gloves, coat to pants, pants to boots, neck to
hood), as well as permeating directly through PPE (Hwang et al., 2022,
Document ID 0156, p. 10; Baxter et al., 2014, Document ID 0157, p. D89;
Hwang et al., 2021, Document ID 0155, p. 12; Pleil et al., 2014,
Document ID 0158, p. 16).
For purposes of proposed paragraph (g)(3)(i)(A), an exposure
incident to combustion products is any exposure to materials that are
on fire or smoldering regardless of the use of PPE or respiratory
protection. PPE, such as respiratory protection, is considered the
lowest level of protection in the hierarchy of exposure controls and
cannot be 100% effective as the exposure has not been eliminated.
Moreover, elimination of exposure is not an option for emergency
response activities. Examples of exposure incidents include fires in
residential homes, cars, dumpsters, kitchens, and training scenarios,
among other similar incidents. In the event of a large fire or a
training fire that requires multiple entries into the IDLH environment
for extinguishment or training purposes, the multiple entries would be
considered one exposure incident. Exposure incidents occur only for
those responders who enter the hot zone of the incident, as defined in
proposed paragraph (b) of this rule. If a responder is exposed to
multiple incidents during one shift, the incidents would each be
considered one individual exposure incident. For example, if a
responder on a 24-hour shift responds to a house fire in the morning,
then a car fire in the afternoon, and then a kitchen fire in the
evening and entered the hot zone at each incident, that responder was
exposed to combustion products on three separate incidents during that
shift. For wildland firefighting, an exposure incident to toxic
combustion products is the number of days the responder was exposed to
combustion products while working on the fire line.
OSHA is aware that not all exposure incidents are equal and that
some of the exposure incidents described above involve a low level of
exposure while others involve a higher level of exposure. While some of
the individual components in combustion products have PELs, there are
no PELs for combined combustion products. The nature of combustion
products, being a combination of any number of potentially hazardous
substances, often unknown and changing with each emergency incident, as
well as the difficulty in measuring such exposures in the emergency
response context, would make establishing any such PEL very difficult.
Nonetheless, OSHA has determined that despite the varying levels of
exposure, both low and high exposure incidents contribute in the
aggregate to a responder's overall exposure to toxic combustion
products. Thus, on balance, OSHA has determined that any incident
resulting in exposure to toxic combustion products while in the
incident hot zone, regardless of the level of exposure, should be
counted towards the total number of exposure incidents triggering the
action level in this proposed paragraph.
To determine if their responders exceed the action level requiring
medical surveillance for exposure, ESOs should review their incident
response history. If the average number of exposure incidents is 15 or
more a year for an individual responder or a particular tier of
responders, then those responders would need the additional medical
surveillance.
OSHA has preliminarily determined that an action level of 15 or
more exposures per year is an appropriate threshold for triggering
medical surveillance to detect and prevent adverse health effects from
combustion products. In Question (g)-2, OSHA is seeking input on
whether this number of exposures is too high, too low, or an
appropriate threshold. OSHA is also considering action levels of 5, 10,
or 30 exposures a year as alternatives and is seeking public input on
what action level would be appropriate. Provide supporting
documentation and data that would help with identifying an appropriate
action level.
Proposed paragraph (g)(3)(i)(B) would require ESOs to provide
medical consultation and ongoing surveillance to responders who, either
immediately or subsequently, exhibit signs and symptoms which may have
resulted from exposure to combustion products. Examples include
shortness of breath, coughing, or wheezing after an exposure incident.
Demonstration of exposure signs and symptoms may indicate a significant
exposure event, failure of PPE, a catastrophic event, or some
combination thereof and warrants exposure monitoring and medical
surveillance. The extension of medical surveillance to responders who
demonstrate signs and symptoms of exposure would be required regardless
of whether the responder was exposed above the action level. The PLHCP
would determine the necessary medical surveillance following the
significant exposure event.
Proposed paragraph (g)(3)(ii) would require the ESO to document
each exposure to combustion products for each responder, for the
purpose of determining the need for the medical surveillance as
specified in (g)(3)(i)(A), and for inclusion in the responder's
confidential record, as required in (g)(1)(ii). ESOs would review
previous incident reports to determine a responder's exposures for the
preceding 12 months or from the date when ESOs began keeping such
records up to the preceding 12 months. This proposed requirement would
ensure the ESO documents exposures in order to comply with the
requirements of the proposed rule. OSHA notes, however, that the ESO
would not need 12 months of records for a particular responder to
determine whether that responder may be exposed above the action level.
If the ESO knows, based on experience, that responders in the same tier
may be exposed 15 or more times per year, medical surveillance pursuant
to paragraph (g)(3) would be required for that responder. As stated
previously, proposed paragraph (g)(3) applies only to ESOs. OSHA is
seeking input in Question (g)-3 on whether the additional medical
surveillance proposed in paragraph (g)(3) should be extended to include
WEREs and team members.
In paragraph (g)(4)(i) of the proposed rule, the WERE and ESO would
be required to provide behavioral health and wellness resources at no
cost to the team member or responder or identify where resources are
available at no cost in their community. As discussed in section II.A.,
Need for the Standard, emergency response activities expose team
members and responders to traumatic, emotionally charged events, and
they frequently work long shifts, get inadequate rest and are
repeatedly exposed to stressful scenarios that contribute to mental
health issues. The physical and psychological stressors associated with
emergency response activities puts team members and responders at
increased risk of PTSD, depression, anxiety, burnout, suicide,
[[Page 7820]]
and substance use disorders. During the 2021 SBREFA panel, SERs
reported that they believed that ongoing behavioral health support is
an important component of team member and responder wellness (Document
ID 0115, p. 18). For those WEREs and ESOs who do not provide behavioral
health resources at their place of employment, they would need to
identify local, state, or Federal governmental, non-governmental, and
non-profit behavioral health resources that can be accessed by team
members and responders. Behavioral health resources provided by a
WERE's or ESO's health care plan would meet the requirements of the
proposed rule. Although community-based resources are preferred, for
those communities that do not have the resources available, telehealth
resources would also meet the requirements of the proposed rule.
Proposed paragraphs (g)(4)(ii)(A) through (D) identify the
behavioral health and wellness resources that would need to be
included, at a minimum. They are diagnostic assessment, short-term
counseling, crisis intervention, and referral for behavioral health
conditions arising from the team member's or responder's performance of
emergency response duties. The conditions that could require referral
include substance use disorder, anxiety, depression, suicidality, acute
stress reactions, or grief resulting from or exacerbated by the team
member's or responder's emergency response duties, such as potentially
traumatic events or the cumulative emotional strain of emergency
response work. These behavioral health conditions may require more
intensive interventions than short-term counseling or crisis
intervention would provide. Behavioral health resources should be
accessible to the team member or responder both on and off-duty.
Proposed paragraph (g)(4)(iii) would require that each WERE and ESO
inform team members and responders, on a regular and recurring basis,
and following each potentially traumatic event, of the behavioral
health resources that are available to them and how to access those
resources. Although resources familiar with the behavioral health
aspects of emergency response activities are preferred, it is most
important to have resources available for team members and responders
to access. ESOs and WEREs should manage team member and responder
expectations concerning available behavioral health resources and
provide periodic reminders concerning their availability.
In proposed paragraph (g)(4)(iv), the WERE and ESO would be
required to ensure that if the WERE or ESO possesses records of a team
member or responders use of behavioral health services, those records
are kept confidential. Similar to the privacy and confidentiality
concerns about medical evaluations and medical records, OSHA is aware
that behavioral health evaluations present similar concerns due to the
potential to divulge confidential information regarding a team member's
or responder's psychological condition that may adversely affect the
team member or responder. Proposed paragraph (g)(4)(iv) protects the
team member or responder from such unwanted disclosure. Thus,
behavioral health record management would be consistent with the
requirements for medical record management established in paragraph
(g)(1)(iii).
Proposed paragraph (g)(5) focuses on fitness for duty and would
require the WERE and ESO to establish and implement a process to
evaluate and re-evaluate annually the ability of each team member and
responder to perform the essential job functions, based on the type,
level, and tier of service(s) established in paragraphs (c) and (d).
The fitness for duty evaluation confirms for the WERE and ESO that the
team member or responder can physically perform the job functions
required of them at emergency scenes. This requirement differs from
being medically cleared to perform emergency response duties as
determined by paragraph (g)(2). This requirement requires the WERE or
ESO to determine if the team member or responder is physically capable
to perform the duties required of them during an emergency response. It
is possible for a team member or responder to have no medical
limitations to performing emergency response activities and still not
be physically able to perform the duties. If the team member or
responder does not have the physical capability to perform their
assigned duties it not only places them at increased risk of injury or
death but also increases the risk for other team members and responders
on the emergency scene.
During the 2021 SBREFA panel, many SERs expressed concern that the
physical fitness for duty requirements would be difficult for team
members and responders, especially volunteer responders, to meet
(Document ID 0115, p. 17). OSHA understands these concerns. However,
the safety of all team members and responders is dependent upon each
team member and responder being physically able to perform their
assigned duties at an emergency incident. OSHA expects that assessment
of the ability to perform essential job functions would be determined
during training scenarios in which emergency response activities are
practiced under controlled conditions, or during the skills checks
required under proposed paragraph (h)(3) of this section. OSHA does not
expect a formal testing program to be initiated. In Question (g)-4,
OSHA seeks input and data on whether stakeholders support the proposed
fitness for duty requirements or whether the requirements pose a burden
on or raise concerns for team members, responders, WEREs or ESOs.
Commenters should provide explanation and supporting information for
their position.
Proposed paragraph (g)(6) applies to ESOs only and includes
requirements for a health and fitness program. In proposed paragraph
(g)(6)(i), the ESO would be required to establish and implement a
health and fitness program that enables responders to develop and
maintain a level of physical fitness that allows them to safely perform
their assigned functions, based on the type, level, and tier of duty
established in paragraph (d). Multiple studies and stakeholder
organizations recognize the necessity of fitness programs to maintain
the ability to perform job duties as well as to prevent or minimize
injuries and to reduce the risk of heart disease and cancer (IAFF and
IAFC (Document ID 0127, p. 33); NVFC (Docket ID 0128, p. 24); U.S. Fire
Administration (USFA) (Document ID 0130, p. 131); NFPA (Docket ID 0135
p. 34); NIOSH (Document ID 0131, p. 4)).
As the proposed regulatory text indicates, these health and fitness
requirements are focused solely on ensuring responders can safely
perform their assigned functions. The requirements are aimed at
minimizing the risk of occupational injury and illness posed by
emergency response activities. OSHA intends these provisions to ensure
that responders have the opportunity, means, and knowledge necessary to
maintain fitness for duty and to prevent work-related injury and
illness.
Proposed paragraphs (g)(6)(ii)(A) through (D) establish the minimum
components of the fitness program that the ESO would be required to
include. Proposed paragraph (g)(6)(ii)(A) would require that the
fitness program have an individual designated to oversee it. If
available, the ESO should designate an individual who has knowledge and
skills that would benefit program implementation. To have the desired
effect on responder health and fitness, a
[[Page 7821]]
fitness program needs an individual identified to provide guidance and
assistance to responders with the health and fitness program and
maintain accountability.
Paragraph (g)(6)(ii)(B) of the proposed rule would require a
periodic fitness assessment for all responders, not to exceed every
three years. The purpose of the fitness assessment is to inform the
responder on their fitness status and whether their fitness has
improved, maintained, or decreased. This physical fitness assessment is
different from the fitness for duty evaluation described in proposed
paragraph (g)(5) in that it is solely a physical fitness-related
evaluation and is indirectly related to the evaluation of a responder's
ability to perform essential job tasks. The physical fitness assessment
should evaluate physical parameters such as responder muscular
strength, muscular endurance, cardiovascular endurance, and mobility/
flexibility. A physical fitness assessment can flag fitness conditions
that may make a responder particularly vulnerable to a negative
cardiovascular event. Maintaining fitness is important as responders
with higher fitness levels perform essential job tasks at a lower
exertion level as a percent of their maximum exertion. Performing
essential job tasks at a lower exertion level reduces the responder's
risk of suffering a negative cardiovascular event while performing
those job tasks.
Proposed paragraph (g)(6)(ii)(C) would require exercise training
that is available to all responders during working hours. This
provision would not mandate a particular exercise regimen nor require
the ESO to purchase or utilize any specific fitness equipment.
Effective exercise training could be accomplished using common
emergency response tools to provide the resistance necessary to achieve
muscular overload. A program of body weight exercises, which use the
responder's own body weight to provide resistance, would also satisfy
the requirement.
Proposed paragraph (g)(6)(ii)(D) would require health promotion
education and counseling for all responders. Health promotion education
and counseling aims to provide responders with the knowledge necessary
to ensure fitness for duty and is another avenue to address the risk
factors and adverse health effects associated with emergency response
activities. Responder health promotion can be accomplished with
educational resources available in the community or on the internet.
Topics that may be covered by the health promotion program could
include heart disease risk reduction, smoking-vaping and tobacco
cessation, healthy blood pressure, physical fitness, safer personal
training methods and other ways to minimize risk of muscle breakdown
(rhabdomyolysis), nutrition, weight management, the amount and quality
of sleep, infectious disease prevention, and behavioral health topics
such as stress management. OSHA emphasizes that these education and
counseling resources are one element in the broader health and fitness
program with the ultimate goal of ensuring the safe performance of
emergency response activities.
OSHA is seeking input in Question (g)-5 whether the health and
fitness program in proposed paragraph (g)(6) should be extended to
include WEREs and team members. OSHA Question (g)-6 asks for input
whether every three years is an appropriate length of time for fitness
re-evaluation, and if not, what period of time would be appropriate.
The agency is seeking any available data to support an alternative
length of time between evaluations.
Paragraph (h) Training
Training is the backbone of WERTs and ESOs. Effective training
produces team members and responders with the skills, knowledge, and
confidence to safely perform their duties in the face of various
hazards at emergency incidents. Paragraph (h) of the proposed rule
contains requirements for initial and follow-up training for responders
and team members, as well as requirements for maintaining proficiency
in the necessary skills and knowledge through regular--at least
annual--skills checks. These provisions ensure that team members and
responders become and remain prepared and capable of performing their
duties safely. Many of the provisions in proposed paragraph (h) are
based on, or consistent with, provisions in NFPA 600, NFPA 1500, and
other NFPA standards.
To ensure team members and responders are prepared to participate
safely in emergency operations, WEREs and ESOs need to establish
comprehensive training programs. Proposed paragraph (h)(1) addresses
minimum training requirements for team members and responders.
Paragraph (h)(1)(i) would require WEREs and ESOs to establish the
minimum knowledge and skills required for each team member and
responder to participate safely in emergency operations, based on the
type and level of service(s), and tiers of team members and responders
established in paragraphs (c) and (d) of this section. These minimum
requirements will vary based on the type of emergency response being
performed; for example, firefighters will have different training
requirements than technical rescuers.
Paragraph (h)(1)(ii) of the proposed rule would require the WERE
and ESO to ensure each team member and responder is provided with
initial training, ongoing training, refresher training, and
professional development commensurate with the safe performance of
their expected duties and functions based on the tiers of team members
and responders, and the type and level of service(s) established in
paragraphs (c) and (d) of this section. Training is important at all
stages of a team member's or responder's career. Initial training
teaches team members and responders how to properly and safely perform
their duties; and ongoing and refresher training ensures that these
skills stay sharp over time. As they progress through their careers
providing emergency service(s), team members and responders learn more
about protecting their fellow team members and responders, particularly
if they become team leaders, officers, or chiefs.
Proposed paragraph (h)(1)(iii) would require the WERE and ESO to
restrict the activities of each new team member and responder during
emergency operations until the team member or responder has
demonstrated to a trainer/instructor, supervisor/team leader/officer,
the skills and abilities to safely complete the tasks expected. Team
members and responders performing tasks for which they are not
appropriately trained pose a hazard not only to themselves, but also to
other team members and responders. The proposed provision would ensure
that team members and responders who are new to their jobs are properly
trained before performing emergency service tasks.
Proposed paragraph (h)(1)(iv) would require the WERE and ESO to
ensure that each instructor/trainer has the knowledge, skills, and
abilities to teach the subject matter being presented. It is intuitive
that those teaching should be more knowledgeable in the subject matter
than those being taught, and when physical skills are required it can
be important for the instructor/trainer to have the ability to
demonstrate the skills or address a problem when it arises. This
provision ensures that the training is conducted by competent
individuals who can provide accurate and valuable instruction, leading
to a higher level of understanding and proficiency among the trainees.
Proposed paragraph (h)(1)(v) of the proposed rule would require
WEREs and ESOs to ensure that training is
[[Page 7822]]
provided in a language and at a literacy level that team members and
responders understand, and that the training provides an opportunity
for interactive questions and answers with the instructor/trainer. Team
member and responder comprehension is critical to ensuring that
training is effective. If training information is not presented in a
way that all team members and responders understand, the training will
not be effective. WEREs and ESOs must thus consider language, literacy,
and social and cultural appropriateness when designing and implementing
training programs for team members and responders. Compliance with the
language requirement could be accomplished with an instructor/trainer
providing direct instruction in the appropriate language or by use of
an interpreter. The purpose of the literacy level provision is to make
sure that each team member and responder understands the materials.
WEREs and ESOs may consider providing training materials in a language
which is as simple as possible without sacrificing necessary content.
The last part of the provision recognizes the fact that asking
questions facilitates the learning process for many people. WEREs and
ESOs may conduct training in different ways, such as in-person or
virtually (e.g., videoconference, recorded video). However, this
paragraph requires the WERE and ESO to provide an opportunity to team
members and responders to ask questions regardless of the medium of
training. This may involve, for example, having a knowledgeable person
present during the training in-person or via phone/video call. If it is
not possible to have someone present during the training, WEREs and
ESOs could also provide the contact information of the individual who
team members or responders can contact to answer their questions (e.g.,
an email or telephone contact).
Paragraph (h)(1)(vi) of the proposed rule would require the WERE
and ESO to provide each team member and responder with training on the
RMP (risk management plan) established in paragraph (f)(1) of this
section. The training would ensure that team members and responders
receive comprehensive instruction on various aspects of risk
management. It would familiarize them with the specific protocols,
procedures, and practices associated with WERE and ESO facilities,
training activities, vehicle operations, response to emergency
incidents, non-emergency services, and the risks associated with
exposure to hazardous substances. Training would also need to include
the PPE hazard assessment, the respiratory protection program, the
infection control program, and the bloodborne pathogens exposure
control plan required by paragraph (f)(1)(iii). Note that the training
requirements of this standard are in addition to the training
requirements of other standards such as the bloodborne pathogens
standard (29 CFR 1910.1030(g)(2)).
Proposed paragraph (h)(1)(vii) would require the WERE and ESO to
train each team member and responder about the safety and health policy
established in paragraph (f)(2) of this section and the Standard
Operating Procedures (SOPs) established in paragraph (q) of this
section. Proposed paragraph (f)(2) would require the WERE and ESO to
establish a policy for extraordinary situations when a team member or
responder, after making a risk assessment determination based on the
team member or responder's training and experience, is permitted to
attempt to rescue a person in imminent peril, potentially without
benefit of, for example, PPE and other equipment. As explained above,
proposed paragraph (f)(2) is important because there might be times
when team members or responders come across emergency incidents while
they are not fully equipped with PPE or other equipment but could, for
example, potentially save a life.
Team members and responders need to be trained so that they
understand the policy established by the WERE or ESO for these
extraordinary situations. SOPs form the foundation of how WEREs and
ESOs expect team members and responders to perform at various types of
incidents, where they will face a variety of hazards. The SOPs provide
procedures intended to facilitate incident operations and keep team
members and responders safe.
Paragraph (h)(1)(viii) of the proposed rule would require the WERE
and ESO to provide each team member and responder with training that
covers the selection, use, limitations, maintenance, and retirement
criteria for all PPE used by the team member or responder based on the
type and level of service(s), and tiers of team members and responders
established in paragraphs (c) and (d) of this section. This training
would provide team members and responders with the necessary knowledge
and skills to effectively utilize the PPE they are required to wear on
the basis of their duties. It would need to include various aspects,
including selecting appropriate equipment, use including proper donning
and doffing techniques, understanding the limitations of PPE,
performing proper maintenance, and knowing when to retire and replace
worn-out or damaged equipment. By providing this comprehensive
training, WEREs and ESOs can enhance safety and ensure that team
members and responders are well-prepared to utilize PPE effectively.
Paragraph (h)(1)(ix) proposes to require the WERE and ESO to train
each team member and responder in the selection, proper use, and
limitations of portable fire extinguishers provided for employee use in
the WERE or ESO's facility and vehicles, in accordance with 29 CFR
1910.157. It is important for all team members and responders
(firefighters, EMS providers, and technical rescuers) to be trained to
use portable fire extinguishers. Most fires start out small enough that
they can be easily controlled or extinguished by a portable fire
extinguisher. Portable fire extinguishers are readily found in most
workplaces and on many vehicles that team members and responders use,
and it is important for team members and responders be trained about
how to use them and what their limitations are.
Proposed paragraph (h)(1)(x) would require the WERE and ESO to
train each team member and responder in the incident management system
(IMS) established under paragraph (o) of this section, in order to
operate safely within the scope of the IMS. Because the IMS is required
to be used at all emergency incidents (see proposed paragraph
(p)(1)(i)), everyone on every incident scene would be operating within
it. The training should focus on team member and responder roles and
responsibilities within the IMS, including incident scene assessment
for hazards, incident safety oversight, means for reporting unsafe
conditions, and interactive components for clear communication and
effective operations.
Paragraph (h)(1)(xi) of the proposed rule would require the WERE
and ESO to ensure that training for each team member and responder
engaged in emergency activities includes procedures for the safe exit
and accountability of team members and responders during orderly
evacuations, rapid evacuations, equipment failure, or other dangerous
situations and events. Development of the procedures is required by
proposed paragraph (q)(2)(vii) of this section. Team members and
responders need to be trained to know their roles in the accountability
system. They need to be trained in the actions to take during an
orderly evacuation, such as taking all their equipment with them as
they back out to regroup their efforts, versus during a rapid
evacuation, such as when a
[[Page 7823]]
structural collapse seems imminent, when the appropriate action may be
to ``drop and run.'' PPE or equipment failure often occurs without
warning. Team members and responders need to be trained in the proper
procedures for evacuating safely and maintaining accountability should
such a situation occur.
Paragraph (h)(1)(xii) proposes to require the WERE and ESO to
ensure that each team member and responder is trained to meet the
requirements of 29 CFR 1910.120(q)(6)(i) (HAZWOPER), First Responder
Awareness Level. While all team members and responders who take part in
actual emergency operations are already subject to these requirements
per the requirements of the HAZWOPER standard, this training is also
important for other responders and team members. Team members and
responders who are not part of a hazardous materials (hazmat) team need
to be aware of the precautions and actions to be taken at hazmat
incidents because they are usually the first to arrive. This training
focuses on equipping team members and responders with the necessary
knowledge and skills to respond effectively to hazardous materials
incidents and take appropriate actions, such as maintaining a safe
distance away, evacuating other people, cordoning off the area, and
summoning the appropriate resources.
Proposed paragraph (h)(1)(xiii) would require the WERE and ESO to
ensure that each team member and responder who is not trained and
authorized to enter specific hazardous locations (e.g., confined
spaces, trenches, and moving water) is trained to an awareness level
(similar to the requirements in 29 CFR 1910.120(q)(6)(i)) to recognize
such locations and their hazards and avoid entry. Similar to the
requirements of proposed paragraph (h)(1)(xii) with respect to hazmat
incidents, this training would provide team members and responders with
an understanding of the potential risks and dangers posed by specific
hazardous locations, enabling them to identify such locations, exercise
caution, not enter the hazardous area, and request assistance from
those trained to enter such areas.
Paragraph (h)(1)(xiv) of the proposed rule would require WEREs and
ESOs to train each team member and responder to perform cardiopulmonary
resuscitation (CPR) and use an automatic external defibrillator (AED).
It is important that every team member and responder be able to perform
CPR and use an AED as they may be nearby, or the first to arrive, when
someone is experiencing a cardiac emergency. Proper training allows
team members and responders to confidently respond to cardiac
emergencies and perform potentially life-saving interventions.
Furthermore, team members and responders need to know how to perform
these procedures safely. For example, they need to know how to avoid
electric shocks from an AED.
Proposed paragraph (h)(2) specifies vocational training that would
be required for designated team members and responders to perform their
duties safely. Paragraphs (h)(2)(i) through (viii) each reference a
specific NFPA standard and require that team members and responders be
trained to a level that is at least equivalent to the job performance
requirements (JPR) of the identified standard, for the duties to which
they are assigned. The particular editions of the NFPA standards noted
in the proposed rule are the ones in existence at the time of the
publication of this proposal. OSHA expects that in the final rule it
will incorporate the particular edition most recently approved by the
NFPA before the public comment period for this NPRM closes.
Paragraph (h)(2)(i) of the proposed rule would require each WERT
team member who is designated to perform firefighting duties to be
trained to safely perform the duties assigned, to a level that is at
least equivalent to the job performance requirements of NFPA 1081,
Standard for Facility Fire Brigade Member Professional Qualifications,
2018 ed. NFPA 1081 sets the professional qualifications for
firefighting team members and specifies the essential competencies and
performance standards required for effective firefighting. This
training equips team members with necessary skills in fire suppression
techniques, fire behavior, incident command, and other topics related
to firefighting, ensuring their ability to perform their duties safely.
As explained above, each individual team member need be trained only
with respect to the specific job duties they are assigned to perform.
For example, a WERT team member designated at the incipient stage tier
would need to be trained to a level equivalent to the NFPA 1081 JPRs
for that tier only, and not the JPRs for interior structural
firefighting.
Paragraph (h)(2)(ii) of the proposed rule would require each ESO
responder who is designated to perform interior structural firefighting
duties to be trained to safely perform the duties assigned, to a level
that is at least equivalent to the job performance requirements of NFPA
1001, Structural Fire Fighter Professional Qualifications, 2019 ed.
NFPA 1001 sets the professional qualifications for structural
firefighters and outlines the essential competencies and performance
standards required for effective firefighting in interior structural
environments. This training covers critical areas such as fire
behavior, ventilation techniques, search and rescue operations, and
incident command systems, ensuring that responders possess the
necessary skills to perform their duties safely within interior
structural firefighting scenarios.
Paragraph (h)(2)(iii) of the proposed rule would require each team
member and responder who is designated to perform interior structural
firefighting duties to be trained to safely perform search and rescue
operational capabilities at least equivalent to the job performance
requirements of NFPA 1407, Standard for Rapid Intervention Team
Training, 2020 ed. NFPA 1407 sets the standards for rapid intervention
team (RIT) training, specifically focusing on the operational
capabilities required for effective search and rescue in hazardous
environments. The training covers critical areas, such as search
techniques, victim extrication, firefighter self-rescue, and effective
communication strategies during rescue operations. This ensures that
team members and responders possess the necessary skills to perform
search and rescue operations safely and effectively within interior
structural firefighting incidents.
Paragraph (h)(2)(iv) of the proposed rule would require each team
member and responder who is a vehicle operator to be trained to safely
operate that vehicle at a level that is at least equivalent to the job
performance requirements of NFPA 1002, Standard for Fire Apparatus
Driver/Operator Professional Qualifications, 2017 ed., or similar
Emergency Vehicle Operator qualifications based on the type of vehicle
the team member or responder operates. NFPA 1002 establishes the
professional qualifications for fire apparatus driver/operators and
outlines the essential competencies and performance standards required
for safe and effective vehicle operation. The training covers critical
areas such as vehicle handling, emergency vehicle operations, driving
techniques, and knowledge of vehicle systems. This training will help
ensure that team members and responders are capable of safely operating
vehicles within the scope of their assigned responsibilities. Again,
each individual team member or responder need be trained only with
respect to the specific job duties they are assigned to perform. For
example, a firefighter designated to only operate a
[[Page 7824]]
four-wheel drive pick-up truck with a skid-mounted pump and tank would
only need to be trained to the equivalent JPRs for that vehicle, and
not, for example, the JPRs for tillering a tractor-drawn aerial.
Paragraph (h)(2)(v) of the proposed rule would require each team
member and responder who is a manager/supervisor (crew leader/officer)
to be trained to safely perform at a level that is at least equivalent
to the job performance requirements of NFPA 1021, Standard for Fire
Officer Professional Qualifications, 2020 ed. NFPA 1021 establishes the
professional qualifications for fire officers and outlines the
essential competencies and performance standards required for effective
leadership and supervision in fire and emergency service organizations.
The training covers critical areas such as incident management,
emergency response coordination, personnel management, risk assessment,
and decision-making processes. This training will help ensure that
managers and supervisors are equipped with the expertise to fulfill
their roles while prioritizing the safety and well-being of team
members and responders.
Paragraph (h)(2)(vi) of the proposed rule would require each
wildland ESO responder to be trained to safely perform at a level that
is at least equivalent to the job performance requirements of NFPA
1140, Standard for Wildland Fire Protection, 2022 ed., or that such
responder has a ``Red Card'' in accordance with the National Wildfire
Coordinating Group--Interagency Fire Qualifications. NFPA 1140
establishes the standards for wildland fire protection and outlines the
essential competencies and performance requirements for personnel
involved in wildland firefighting operations. The training covers
critical areas such as fire behavior, incident management,
communication systems, safety protocols, and effective use of
firefighting equipment in wildland settings. This training will help
ensure that wildland ESO responders are appropriately prepared to
mitigate wildland fire risks and respond to these challenging
situations in a safe and coordinated manner.
Paragraph (h)(2)(vii) of the proposed rule would require each
technical search and rescue team member and responder who is designated
to perform a technical rescue to be trained to safely perform at a
level that is at least equivalent to the technician capabilities of the
job performance requirements of NFPA 1006, Standard for Technical
Rescuer Professional Qualifications, 2021 ed. NFPA 1006 establishes the
professional qualifications for technical rescuers, defining the
essential capabilities and performance requirements for personnel
involved in technical rescue operations. By adhering to this standard,
team members and responders can acquire the necessary knowledge and
skills to safely perform technical rescues. The training covers
critical areas such as rope rescue, confined space rescue, structural
collapse rescue, vehicle and machinery rescue, and water rescue. This
training will help ensure that technical rescuers possess the expertise
required to operate safely in complex and hazardous rescue scenarios.
Paragraph (h)(2)(viii) of the proposed rule would require each
firefighting team member and responder who operates in a marine
environment to be trained to safely perform at a level that is at least
equivalent to the job performance requirements of NFPA 1005, Standard
for Professional Qualifications for Marine Fire Fighting for Land-Based
Fire Fighters, 2019 ed. These individuals play a critical role in
responding to fire incidents in marine settings, such as ports,
marinas, or waterfront areas. NFPA 1005 sets the professional
qualifications for land-based firefighters engaged in marine
firefighting operations. It outlines the essential competencies and
performance requirements necessary for effectively combating fires in
marine environments. By adhering to this standard, firefighting team
members and responders can acquire the necessary knowledge and skills
to safely operate in marine settings. The training covers critical
areas such as marine fire behavior, vessel fire suppression tactics,
shipboard firefighting systems, water supply operations, and search and
rescue techniques specific to marine environments. This training will
help ensure that firefighters are appropriately prepared to handle the
unique challenges presented by marine fire incidents.
Paragraph (h)(2)(ix) of the proposed rule would require the WERE
and ESO ensure that each EMS team member and responder possesses the
professional qualification, certification, or license, required by the
applicable jurisdiction, which is relevant to the type and level of
service established in paragraphs (c) and (d). This requirement, which
was recommended by NACOSH, would help ensure that EMS providers are up
to date on the latest methods for safely performing their duties.
Proposed paragraph (h)(3) contains requirements related to
maintaining proficiency in the skills and knowledge required by
paragraphs (h)(1) and (2). Proposed paragraph (h)(3) would require
WEREs and ESOs to provide annual skills checks to ensure that each team
member and responder maintains proficiency in the skills and knowledge
commensurate with the safe performance of expected duties and
functions, based on the type and level of service(s) established in
paragraphs (c) and (d) of this section. Initial training is important,
but ongoing training or on-the-job performance is just as essential so
that team members and responders can maintain proficiency.
OSHA is proposing annual skills checks based on that periodicity
referenced in national consensus standards such as NFPA 600, NFPA 1500,
and NFPA 1670; and other OSHA regulations, such as 29 CFR 1910.120 and
1910.134, and the existing 29 CFR 1910.156. Conducting periodic skills
checks for team members and responders at least once a year (each
twelve-month period) is important to ensure they maintain a minimum
level of proficiency for safely performing their assigned duties. By
conducting regular skills checks, organizations can identify any gaps
in proficiency and provide additional training or resources as needed
to enhance the capabilities of team members and responders.
OSHA recognizes that skill checks may be completed in different
ways, and within the minimum annual period between skill checks the
appropriate interval for additional skill checks varies with the nature
of the skill in question. For instance, if a pumper operator regularly
operates the vehicle, including pumping hose lines, routine observation
may substitute for a separate skills check. However, an operator who
has not operated the vehicle and pump for nine months may need a more
formal skills check to ensure they can still perform the tasks safely
even if they last passed a skills check eleven months earlier. In
Question (h)-1, OSHA is seeking stakeholder input and data regarding
the appropriate methods and interval(s) for skills checks.
Paragraph (i) WERE Facility Preparedness
Proposed paragraph (i) provides requirements to ensure that WERE
facilities are safe for team members. Paragraph (i)(1)(i) of the
proposed rule would require WEREs to ensure their facilities comply
with 29 CFR part 1910, subpart E, Exit Routes and Emergency Planning.
Note, however, that the various ERP plans and programs required by this
proposed rule (e.g., IAPs, RMPs, PIPs) are not ``emergency
[[Page 7825]]
action plans'' for purposes of 29 CFR 1910.38. This proposed provision
is not a new requirement because WEREs are already required to comply
with subpart E. It is included here to reinforce the concept that
compliant means of egress, emergency lightning, exit marking, etc., are
of the utmost importance during emergency situations, for all workers,
but especially for team members because they spend more time in the
dangerous situation. For instance, an obstructed aisle or hallway could
interfere with removing a sick or injured non-team-member employee by
means of a wheelchair or ambulance cot. That same obstructed aisle or
hallway could delay firefighting team members in reaching a fire, thus
allowing the fire to grow, further endangering the team members, or
block their escape path if they need to evacuate due to deteriorating
conditions.
Proposed paragraph (i)(1)(ii) would require WEREs to provide
facilities for the decontamination, disinfection, cleaning, and storage
of PPE and equipment. Cleaning and decontamination of PPE and equipment
is an important step in reducing or preventing exposure to bloodborne
pathogens, carcinogens, and other contaminants which can cause cancer
and other illnesses in team members and responders. The proposed
requirement would ensure that team members have a means to
decontaminate, disinfect, and clean their PPE and equipment as needed
and as required by proposed paragraph (k). These requirements are based
on NFPA 1581, Standard on Fire Department Infection Control Program,
2022 ed., and NFPA 1851, Standard on Selection, Care, and Maintenance
of Protective Ensembles for Structural Fire Fighting and Proximity Fire
Fighting, 2020 ed. In Question (i)-1, OSHA seeks input regarding what
WEREs are currently doing for decontamination, disinfection, cleaning,
and storage of PPE and equipment, and whether OSHA should include any
additional requirements for these processes in a final standard.
The manner of compliance with this provision could vary depending
on a WERE's facility, the activities of the WERT, and the
manufacturer's instructions for particular PPE and equipment. Some
WEREs may provide a dedicated room or area with commercial style
washing machines or extractors for PPE. Others may only provide
facilities for basic cleaning and gross decontamination using a utility
hose and brushes, a large sink with spray nozzle, appropriate cleaning
chemicals and disinfectants, and drying racks. Alternatively, if PPE is
to be decontaminated or disinfected at another location, such as an
off-site commercial launderer, WEREs would need to provide for bagging
and storage of contaminated PPE while it is still at the WERE facility,
to prevent exposure to employees and team members, and prevent cross
contamination with clean PPE.
Proposed paragraph (i)(1)(iii) would require the WERE to ensure
that fire detection, suppression, and alarm systems, and occupant
notification systems are installed, tested, and maintained in
accordance with manufacturer's instructions and 29 CFR part 1910,
subpart L--Fire Protection. WEREs are already required to comply with
subpart L. Cross-referencing this provision in the proposed rule serves
as a reminder to WEREs and reinforces the importance of these
requirements in the context of a WERT, where proper operation of these
systems during a fire emergency could affect the safety of team
members.
Proposed paragraph (i)(2) would require the WERE to ensure fire
hose connections and fittings are compatible with, or adapters are
provided for, firefighting infrastructure such as fire hydrants,
sprinkler system and standpipe system inlet connections, and fire hose
valves (FHV), to facilitate prompt firefighting support from mutual aid
WERTs and ESOs. A majority of fire hose fittings and connections, with
varying diameters, use a standard hose screw thread dimension. However,
there are other screw thread dimensions that are available and used for
fire hose connections and fittings, including nonthreaded connections.
While OSHA believes it would be advantageous to have uniformity of all
screw threads, it is more important that the fitting diameters, screw
threads, and nonthreaded connections at the facility are compatible
with those used by the WERT(s) and ESO(s) who would potentially provide
firefighting support. Any delay in providing needed fire suppression
water to a sprinkler system or standpipe system could result in a fire
spreading and thus endangering or further endangering team members (as
well as other employees at the facility). Inability to connect hoses
from a fire engine to the inlet connections due to noncompatible screw
treads or fitting diameter would certainly cause a delay in providing
needed fire suppression water.
OSHA's existing standard for standpipe and hose systems, 29 CFR
1910.158, requires standardized screw threads or adapters for hose
connections (29 CFR 1910.158(c)(2)(ii)) for quick connection of fire
hoses. The existing provision applies within the employer's facility
but fails to take into consideration the need for potential support
from mutual aid WERTs or ESOs. Additionally, the existing provision
predates the development of nonthreaded connections for large diameter
fire hoses, which are sometimes used for sprinkler and standpipe inlet
connections and fire hydrant fittings. The proposed provision would
ensure mutual aid WERTs and ESOs, as required by proposed paragraph
(c)(8) of this section, could provide needed water supply without
delay, thus reducing the potential risk to team members, non-team
member employees, and responders.
To provide added clarity and as noted elsewhere in this preamble,
OSHA proposes in this rulemaking to revise 29 CFR 1910.158, Standpipe
and hose systems and 1910.159, Automatic sprinkler systems, to add a
provision for system inlet fitting compatibility with, or adapters
provided for, mutual aid WERTs and ESOs, consistent with paragraph
(i)(2) of this proposed rule.
Proposed paragraph (i)(3) would require WEREs to identify the
location of each fire hose valve (FHV) in a manner suitable to the
location, such as with a sign, painted wall, or painted column, to
ensure prompt access to FHVs. The proposed provision excludes FHVs that
are clearly visible on standpipes in enclosed stairways. Compliance
with this provision could be achieved by various methods including
marking the location of each FHV with a sign, painted wall, painted
column, or other suitable means that would ensure that each FHV is
clearly visible, thus making the FHV easier to locate during an
emergency. This approach is particularly important in facilities with
large open areas, such as parking garages, plant manufacturing areas,
and storage rack areas, where FHVs may otherwise be difficult to
locate, especially during an emergency.
Paragraph (j) ESO Facility Preparedness
Many responders spend a significant amount of time in the
workplace, often sleeping and eating meals there, because they are
required to be at the ESO facility to respond to emergency incidents
quickly. While responders expect to encounter hazards at an emergency
incident, they may also become injured or ill from hazards they are
exposed to in ESO facilities. Proposed paragraph (j) provides
requirements to ensure that ESO facilities are safe for responders.
Proposed paragraph (j)(1)(i) states that the ESO must ensure each
ESO facility complies with 29 CFR part 1910,
[[Page 7826]]
subpart E--Exit Routes and Emergency Planning. This proposed provision
is not a new requirement because ESOs are already required to comply
with subpart E. It is included here to emphasize the necessity of safe
means of egress, emergency lightning, exit marking, etc., during
emergency situations.
Proposed paragraph (j)(1)(ii) would require the ESO to provide
facilities for decontamination, disinfection, cleaning, and storage of
PPE and equipment. As discussed in Need for the Standard, responders
are exposed to a variety of hazardous substances from contaminated PPE
and equipment. Cleaning and decontamination of PPE and equipment are
important steps in reducing or preventing exposure to carcinogens,
infectious diseases, and other contaminants which can cause other
illnesses. This provision also aids compliance with proposed paragraph
(k)(2)(viii), which would require the ESO to ensure that protective
ensembles, ensemble elements, and protective equipment are
decontaminated, cleaned, cared for, inspected and maintained in
accordance with the manufacturer's instructions (see the Summary and
Explanation for paragraph (k)).
The manner of compliance with proposed paragraph (j)(1)(ii) would
vary depending on an ESO's facility and manufacturers' instructions.
However, basic cleaning and gross decontamination typically involves
using a utility hose and brushes, a large sink with a spray nozzle,
appropriate cleaning chemicals and disinfectants, and drying racks.
Some ESOs may choose to install commercial-style washing machines or
extractors for PPE. Alternatively, if PPE is to be decontaminated off-
site, ESOs must provide for bagging and storage of contaminated PPE
while it is still at the ESO facility.
The requirements proposed in paragraph (j)(1)(ii) are based on NFPA
1581, Standard on Fire Department Infection Control Program, 2022 ed.,
and NFPA 1851, Standard on Selection, Care, and Maintenance of
Protective Ensembles for Structural Fire Fighting and Proximity Fire
Fighting, 2020 ed.
Proposed paragraph (j)(1)(iii) would establish requirements for
fire poles, slides, and chutes. Under proposed paragraph
(j)(1)(iii)(A), the ESO would need to ensure each responder who uses a
fire pole maintains contact with the pole using all four extremities
and is not holding anything other than the pole. Sliding down the pole
is essentially a controlled fall, and maintaining contact with all four
extremities offers the best chance for responders to control their
speed while descending the pole. Ensuring the responder does not hold
anything while using the pole would help them focus on the importance
of gripping the pole and would avoid potential distraction such as
spilling a cup of coffee or dropping a handful of papers.
Proposed paragraph (j)(1)(iii)(B) would require the ESO to ensure
that each fire pole has a landing cushion that is at least 30 inches in
diameter, has a contrasting color to the surrounding floor, and has
impact absorption to reduce the likelihood and severity of injury. The
minimum diameter requirement is meant to accommodate responders of
varying shapes and sizes. The contrasting color would enhance
visibility to the potential tripping hazard on the floor. The landing
cushion would also need to be made of a material with sufficient
thickness to reduce the impact of a responder landing on the cushion.
Proposed paragraph (j)(1)(iii)(C) would require ESOs to ensure that
each floor hole with a fire pole, chute, or slide that provides rapid
access to a lower level is secured or protected in accordance with 29
CFR part 1910, subpart D--Walking-Working Surfaces to prevent
unintended falls through the floor hole. Given the importance of these
requirements in addressing the hazard posed by these floor openings in
ESO facilities, OSHA believes it is important to remind ESOs of their
obligations under subpart D to reinforce compliance.
The trend in the design and construction of new ESO facilities is
to install slides, chutes, and stairs as an alternative to installing
new fire poles. In Question (j)-1, OSHA seeks input whether the agency
should consider prohibiting the installation of fire poles in new ESO
facilities. In addition to supporting data, the agency seeks input on a
potential phase-in period should a prohibition against new poles is
included in the final rule.
Paragraph (j)(1)(iv) of the proposed rule would require the ESO to
ensure that fire detection, suppression, and alarm systems, and
occupant notification systems are installed, tested, and maintained in
accordance with manufacturer's instructions and 29 part CFR 1910,
subpart L--Fire Protection. Fire protection systems are important for
protecting responders from the danger of fire in ESO facilities. They
must function properly to provide protection. Following the
manufacturer's instructions for installing, testing, and maintaining
this equipment will help to provide this protection because the
instructions are tailored to deal with the unique features of a
particular manufacturer's equipment. The last part of this provision
serves as a reminder to comply with subpart L, which contains specific
requirements to ensure the effectiveness of various types of fire
detection, suppression, and alarm systems.
Paragraph (j)(2) proposes requirements for protective measures for
sleeping and living areas of ESO facilities, as defined in proposed
paragraph (b) of this section. Proposed paragraph (j)(2)(i) would
require the ESO to ensure that interconnected hard-wired smoke alarms
with battery back-up are installed inside each sleeping area, and
outside in the immediate vicinity of each opening (door) to a sleeping
area, and on all levels of the facility, including basements. Smoke
detectors that are integral to a fire alarm system would also satisfy
this proposed provision. Smoke alarms and detectors provide early
warning about the presence of smoke, thus alerting occupants to the
hazard and need for evacuation before they are overcome by smoke
inhalation and typically before the fire grows to the point of
preventing escape.
Proposed paragraph (j)(2)(ii) would require the ESO to ensure that
each new ESO facility with one or more sleeping area(s) is protected
throughout by an automatic sprinkler system. This provision would apply
to new facilities constructed (as determined by the date of building
permit issuance) two years or more after the final rule is published.
It has long been established that automatic sprinklers save lives. They
provide containment or extinguishment of a fire, often before those
endangered by the fire are aware of the fire, particularly for those
who are asleep. Automatic sprinkler systems are routinely installed in
many places where people sleep, such as hotels, motels, dormitories,
apartment buildings, and single-family dwellings. OSHA believes it is
important for ESOs to provide the same protection for responders. The
proposed rule provides ample time for ESOs in the preliminary planning
process of designing new facilities to include the installation of
sprinklers. In Question (j)-2, OSHA seeks input on whether ESO
facilities with sleeping facilities should be protected by automatic
sprinkler systems.
Proposed paragraph (j)(2)(iii) would require the ESO to ensure that
each sleeping and living area has functioning carbon monoxide alarms
installed. Similar to smoke alarms/detectors, carbon monoxide alarms
alert occupants
[[Page 7827]]
to the presence of the poisonous gas, thus allowing them to evacuate
before they become incapacitated. The risk of carbon monoxide exposure
may be high for responders because ESO vehicle engines are started and
run inside of ESO facilities.
Proposed paragraph (j)(2)(iv) would require the ESO to prevent
responder exposure to, and contamination of sleeping and living areas
by, exhaust emissions. OSHA believes that compliance with this
provision can be achieved by any of several means, including direct or
source capture systems attached to vehicle exhaust pipes, automatic
ventilation systems, positive air pressure in sleeping and living
areas, self-closing doors with weather seals, and others.
Paragraph (j)(2)(v) of the proposed rule would require the ESO to
ensure that contaminated PPE is not worn or stored in sleeping and
living areas. This provision, in conjunction with proposed paragraphs
(j)(1)(ii) (decontamination, disinfection, cleaning, and storage
facilities) and (k)(2)(viii) (decontamination and cleaning of PPE),
would ensure that responders are not unnecessarily exposed to
contaminants in sleeping and living areas.
Paragraph (k) Equipment and PPE
Proposed paragraph (k) contains requirements related to the
provision, maintenance, and use of equipment and PPE. Team members and
responders rely on PPE to provide protection from and minimize exposure
to various hazards they may encounter during emergency response
activities that may cause injuries, illnesses, or fatalities. Team
members and responders are routinely exposed to hazards such as sharp
edges, falling and flying objects, extreme temperatures, bodily fluids,
combustion products, and a broad range of other potential contaminants.
They depend on PPE because many of the hazards they are exposed to
cannot be abated by administrative or engineering controls (see, e.g.,
Sec. 1910.1000(e)).
To train for and perform their duties properly and safely, team
members and responders depend on a wide variety of equipment, such as
hoses and nozzles; ladders; saws; hand tools; hydraulic, pneumatic, and
electric rescue tools; rope access and fall protection equipment;
ambulance cots; stethoscopes and blood pressure cuffs; and oxygen
delivery systems. In the proposed rule, OSHA uses the general term
equipment to be inclusive. (Note: Vehicles used in emergency response
are addressed in proposed paragraph (l)). Malfunctioning or inoperable
equipment may cause injuries or delays in performing emergency services
which could escalate the seriousness of the incident, posing a greater
hazard to team members and responders.
Equipment and PPE are routinely exposed to various contaminants and
combustion products on emergency incident scenes. Decontamination
reduces exposure of team members and responders to the detrimental
health effects related to contaminants and combustion products. Many of
the provisions in proposed paragraph (k) are based on, or consistent
with, NFPA 1500.
Proposed paragraph (k)(1)(i) would require that each WERE and ESO
provide or otherwise ensure access to the equipment that team members
and responders need to train for and safely perform emergency services,
based on the type and level of service(s) that the individual WERE or
ESO has established in accordance with proposed paragraphs (c) and (d).
The equipment must be provided at no cost to team members or
responders. The provision states ``provide . . . or ensure access to''
because WEREs and ESOs may have their own training equipment for tasks
they frequently perform, but may depend on a centralized cache of
equipment, other WEREs or ESOs, or a training facility for other
equipment. For example, all team members and responders would need to
be trained to perform cardiopulmonary resuscitation (CPR) and in the
use of an automatic external defibrillator (AED) as proposed in
paragraph (h). The training for these skills typically uses a CPR
manikin and a training model AED. Since this equipment is not
frequently used, OSHA believes that instead of purchasing their own
training equipment, some WEREs and ESOs would ensure team members and
responders have access to the equipment from another source.
Employers are already required to provide necessary PPE at no cost
to employees under OSHA's general PPE requirements, 29 CFR 1910.134(h).
Proposed paragraph (k)(1)(i) reiterates this requirement and makes
clear that non-PPE equipment needed to train for and safely perform
emergency services must also be provided at no cost to team members and
responders. This requirement is consistent with OSHA's longstanding
position that ``[t]he OSH Act requires employers to pay for the means
necessary to create a safe and healthful work environment'' (Employer
Payment for Personal Protective Equipment, 72 FR 64342, 64344 (Nov. 15,
2007)).
Paragraph (k)(1)(ii) of the proposed rule would require that each
WERE and ESO ensure that newly purchased or acquired equipment is safe
for use in the manner the WERE or ESO intends to use it. ``Newly
purchased or acquired'' means purchased or acquired after the effective
date of any final rule that would result from this rulemaking. Often,
when WEREs and ESOs purchase or obtain new(er) equipment, they donate
or sell their older equipment to other WEREs or ESOs. This provision
would require the receiving WERE and ESO to ensure that the equipment
received is safe for use prior to utilizing the equipment. Under
proposed paragraphs (k)(1)(iii), each WERE and ESO would be required to
inspect, maintain, functionally test, and service test equipment at
least annually, in accordance with the manufacturer's instructions and
industry practices, and as necessary to ensure equipment is in safe
working order. Functional testing and service testing are different in
that functional testing is performed by using and observing the
equipment as it would normally be used. Service testing involves
following specific procedures and evaluating test criteria, such as
hydrostatic testing of SCBA air cylinders and flow testing SCBA
regulators. Proper inspection, maintenance, and testing are necessary
to ensure equipment is in proper, safe, working order and ready for use
by team members and responders. Many pieces of equipment, such as hand
tools, ladders, and rope rescue equipment, would be inspected after
each use, and some would only require annual service testing. The
manufacturer's instructions are the best source of information about
inspection frequency and appropriate maintenance and testing. However,
if a WERE or ESO has reason to believe a piece of equipment may not be
in safe working order, that equipment would need to be inspected and
tested immediately or removed from service, regardless of the
inspection frequency recommended by the manufacturer. Paragraph
(k)(1)(iv) of the proposed rule would require that each WERE and ESO
immediately remove from service any equipment found to be defective or
in an unserviceable condition. Equipment that is defective or that is
not ready or able to be used safely poses a hazard to team members and
responders. The equipment would need to be immediately removed from
service to prevent potential injuries to team members and responders.
Once repaired to a safe operational condition, the equipment could be
returned to service for use.
In proposed paragraph (k)(2)(i), each WERE and ESO would be
required to
[[Page 7828]]
conduct a PPE hazard assessment for the selection of the protective
ensemble, ensemble elements, and other protective equipment for team
members and responders. WEREs and ESOs would evaluate their facilities
or communities to determine what hazards their team members and
responders could be exposed to and what PPE they would need to be
protected during an emergency incident, based on the type and level of
service established under paragraphs (c) and (d) of this section.
Potential hazards requiring PPE could be acute (such as fire) or
longer-term (such as exposure to carcinogens) and a comprehensive
hazard assessment would identify hazards in both categories. Examples
of ensemble elements include gloves, safety glasses and goggles, safety
shoes and boots, earplugs and muffs, hard hats and helmets, respirators
and Self-Contained Breathing Apparatus (SCBA), protective coats and
pants, hoods, coveralls, vests, and full body suits.
Paragraph (k)(2)(ii) of the proposed rule would require that each
WERE and ESO provide team members and responders with properly fitting
protective ensembles, ensemble elements, and protective equipment
designed to provide protection from hazards to which they are likely to
be exposed and suitable for the tasks they are expected to perform, as
determined by the PPE hazard assessment conducted under paragraph
(k)(2)(i). It is OSHA's position that ``properly fits'' means the PPE
is the appropriate size to provide the team member or responder with
the necessary protection from hazards and does not create additional
safety and health hazards arising from being either too small or too
large. As with the equipment required by proposed paragraph (k)(1), all
required PPE would need to be provided at no cost to team members and
responders.
Proposed paragraph (k)(2)(iii) would require that each WERE and ESO
ensure that PPE complies with 29 CFR part 1910, subpart I, Personal
Protective Equipment. This provision makes clear that the specific PPE
requirements in the proposed standard supplement, but do not replace,
OSHA's existing PPE requirements. Because most exposures to hazards on
emergency incident scenes cannot be abated by administrative or
engineering controls, it is particularly important that team members
and responders have appropriate PPE to perform their jobs safely.
OSHA's existing PPE standard contains important requirements regarding
selection of PPE, employee training, and fit testing, among other
requirements, that ensure PPE is effective.
Proposed paragraph (k)(2)(iv) would require the WERE and ESO to
ensure that existing PPE complies with the requirements of the edition
of the respective standard, listed in proposed (k)(2)(v), in effect
when the PPE was manufactured. Manufacturers of compliant PPE typically
include a tag or label in or on the PPE that indicates the standard to
which it was manufactured.
Proposed paragraph (k)(2)(v) lists the PPE-related national
consensus standards that the WERE and ESO would need to follow where
applicable. These standards represent industry consensus regarding the
proper means of selecting, using, and maintaining specific types of
PPE. Compliance with these consensus standards ensures that the
relevant PPE serves its intended purpose and effectively protects team
members and responders. The standards are proposed to be incorporated
by reference as noted in section II.C., National Consensus Standards.
These national consensus standards are as follows:
(A) NFPA 1951, Standard on Protective Ensembles for Technical
Rescue Incidents, 2020 ed.;
(B) NFPA 1952, Standard on Surface Water Operations Protective
Clothing and Equipment, 2021 ed.;
(C) NFPA 1953, Standard on Protective Ensembles for Contaminated
Water Diving, 2021 ed.;
(D) NFPA 1971, Standard on Protective Ensembles for Structural Fire
Fighting and Proximity Fire Fighting, 2018 ed.;
(E) NFPA 1977, Standard on Protective Clothing and Equipment for
Wildland Fire Fighting and Urban Interface Fire Fighting, 2022 ed.;
(F) NFPA 1981, Standard on Open-Circuit Self-Contained Breathing
Apparatus (SCBA) for Emergency Services, 2019 ed.;
(G) NFPA 1982, Standard on Personal Alert Safety Systems (PASS),
2018 ed.;
(H) NFPA 1984, Standards on Respirators for Wildland Fire-Fighting
Operations and Wildland Urban Interface Operations, 2022 ed.;
(I) NFPA 1986, Standard on Respiratory Protection for Tactical and
technical Operations, 2023 ed.;
(J) NFPA 1987, Standard on Combination Unit Respirator Systems for
Tactical and Technical Operations, 2023 ed.;
(K) NFPA 1990, Standard on Protective Ensembles for Hazardous
Materials and CBRN Operations, 2022 ed.;
(L) NFPA 1999, Standard on Protective Clothing and Ensembles for
Emergency Medical Operations, 2018 ed.; and
(M) ANSI/ISEA 207, American National Standard for High-Visibility
Public Safety Vests, 2011 ed.
Proposed paragraph (k)(2)(vi) would require each WERE and ESO to
ensure that air-purifying respirators are not used in atmospheres that
are immediately dangerous to life and health (IDLH), as defined in
paragraph (b), and are only used for those contaminants that NIOSH
certifies them against. Air-purifying respirators are ineffective in
IDLH atmospheres because they do not provide protection from the
inhalation of gases and vapors, particularly the superheated gases
present during fires. They are, however, appropriate for use by team
members and responders performing duties such as post-fire overhaul,
fire investigation, collapsed building search and rescue, trench/
excavation rescue when exposure to respirable crystalline silica is
possible, and for emergency medical operations where an airborne
infectious disease is known or suspected to be present.
Proposed paragraph (k)(2)(vii) would require that each WERE and ESO
ensure that each team member and responder properly uses or wears the
protective ensemble, ensemble elements, and protective equipment
whenever the team member or responder is exposed, or potentially
exposed to the hazards for which it is provided. PPE is effective only
when it is worn and used properly. This provision makes clear that the
WERE or ESO is not only responsible for providing required PPE and
equipment, but must also ensure that they are used whenever exposure to
the hazard for which they are provided is reasonably foreseeable.
Paragraph (k)(2)(viii) of the proposed rule would require that each
WERE and ESO ensure that protective ensembles, ensemble elements, and
protective equipment are decontaminated, cleaned, cared for, inspected
and maintained in accordance with the manufacturer's instructions.
Proper care and maintenance ensure the PPE will perform as designed.
Cleaning and decontaminating ensure that team members and responders
are not exposed to carcinogens and pathogens from their PPE. Cleaning,
care, and maintenance consistent with this paragraph would include
appropriate inspection and testing of the PPE to ensure that it
continues to function and protect as it was designed.
During the 2021 SBREFA process, some SERs expressed concern over
the PPE retirement schedule in NFPA 1851, Standard on Selection, Care,
and
[[Page 7829]]
Maintenance of Protective Ensembles for Structural Fire Fighting and
Proximity Fire Fighting (Document ID 0115, pp. 13-14), which calls for
PPE to be retired ten years after the date of manufacture. OSHA
recognizes that there are users with concerns that there may be a gap
in the scientific evidence on whether PPE aged beyond the retirement
schedule published in NFPA 1851 is incapable of providing the designed
protection level, regardless of the amount of use. Additionally, OSHA
recognizes that older PPE may still be of use for activities where the
primary protective properties of the PPE are not needed, for example
for some exterior activities on fire scenes, during some training
scenarios, and firefighting PPE used for identification and for
protection against sharp edges at vehicle accident scenes. However,
there is concern that older PPE could be used in situations where it is
no longer able to provide the needed protection. In the proposed rule,
OSHA is not proposing specific retirement age criteria for any PPE, and
instead requires that PPE be cared for and maintained in accordance
with manufacturer's instructions. OSHA is seeking input in Question
(k)-1 on whether the agency should specify retirement age(s) for PPE.
Paragraph (k)(2)(ix) of the proposed rule would require each WERE
and ESO to immediately remove from service any defective or damaged
protective ensembles, ensemble elements, or protective equipment.
Defective or damaged PPE is not protective and could expose team
members and responders to the hazards that the PPE is supposed to be
protecting against.
Proposed paragraph (k)(2)(x) would require that when a WERE or ESO
permits a team member or responder to provide their own protective
ensemble, ensemble element, or other protective equipment for personal
use, the requirements of paragraphs (k)(2)(iii) through (ix) of this
section are met. Some WEREs and ESOs permit their team members and
responders to provide and use their own protective equipment. The
proposed provision would require that, to ensure safety and health
protections, team member or responder-provided PPE meet the same
requirements as that provided by the WERE and ESO. OSHA emphasizes that
the use of team member or responder-provided PPE and protective
equipment must be truly voluntary. As discussed above, the WERE or ESO
possesses primary responsibility for ensuring necessary PPE and
equipment is provided at no cost to team members or responders.
Finally, paragraph (k)(3) of the proposed rule addresses protection
from contaminants. Paragraph (k)(3)(i) would require that, to the
extent feasible, each WERE and ESO ensure that contaminated PPE and
non-PPE equipment undergo gross decontamination or are separately
contained before leaving the incident scene. Paragraph (k)(3)(ii) would
require that, to the extent feasible, team members and responders are
not exposed to contaminated PPE and non-PPE equipment in the passenger
compartment(s) of vehicles. Decontaminating these items as soon as
possible after an incident is an important step in protecting team
members and responders from contaminants. It is preferable to perform
gross decontamination of PPE and non-PPE equipment before the team
member or responder leaves the incident scene. Gross decontamination is
defined in paragraph (b) of this section. Examples include rinsing with
a hose to reduce or dilute liquid contaminants, or rinsing and brushing
to displace solid particulate matter. At times it may not be possible
to gross decontaminate equipment at the scene due to weather or other
operational considerations. In these situations, to the extent feasible
the contaminated PPE or non-PPE equipment should be separated from team
members and responders by bagging the contaminated PPE or non-PPE
equipment, or separating it by some other physical means, such as
storing it in an equipment compartment outside of the vehicle seating
area(s). OSHA is seeking input in Question (k)-2 regarding whether and
how WEREs and ESOs currently provide this type of separation.
As discussed in section II.A., Need for the Standard, exposure to
contaminated PPE has been identified as one of the many ways in which
team members and responders have been exposed to carcinogens. Beginning
the decontamination process at the incident scene and separating
contaminated PPE from the team members and responders after the
incident have been shown to reduce or eliminate many of these
exposures. Full decontamination of PPE by removing or neutralizing
contaminants by a mechanical, chemical, thermal, or combined process
should occur as soon as operational requirements allow in accordance
with the standard operating procedures required by proposed paragraph
(q) (see the summary and explanation for paragraph (q), Standard
Operating Procedures).
According to the U.S. Environmental Protection Agency (EPA), per-
and polyfluorinated substances (PFAS) are widely used, long-lasting
chemicals found in many different consumer, commercial, and industrial
products. (Further information regarding PFAS is available at: https://www.epa.gov/pfas/pfas-explained.) EPA says there are thousands of PFAS
chemicals and because of their widespread use and persistence in the
environment, they are found in low levels in a variety of food
products, water sources, and the environment. PFAS are found in the
blood of some people and animals all around the world. OSHA is aware of
the emerging concern of PFAS, their carcinogenicities, and potential
exposure to firefighters from PFAS in some firefighting foam and
firefighting PPE. While current information leans towards ingestion
being the most common mode of exposure to PFAS, such as drinking water
contaminated with it, concerns have been raised about other modes of
exposure.
Performance testing requirements in NFPA 1971, 2018 ed. resulted in
firefighting PPE manufacturers using PFAS in their products. OSHA is
also aware that manufacturers of firefighting foams and PPE are
considering options for reducing or eliminating the use of PFAS in
their products. OSHA seeks information in Question (k)-3 whether there
is evidence of PFAS in PPE causing health issues for team members and
responders. NFPA routinely updates their standards. OSHA seeks
information in Question (k)-4 whether NFPA's future standard update(s)
will address or alleviate stakeholder's concerns.
Paragraph (l) Vehicle Preparedness and Operation
Paragraph (l) of the proposed rule establishes requirements for
vehicle safety both in preparation of and during operation in both
emergency and non-emergency incidents. Many team members and responders
are injured and killed in vehicle-related incidents and collisions, as
discussed in section II.A.I. Fatality and Injury Analysis.
Some are due to poor or improper vehicle maintenance or repair, or
the manner that the vehicles are operated. Others are a result of
improper or lack of use of seat belts and restraints as designed and
intended. The controls in paragraph (l) are aimed at mitigating these
hazards.
While not defined in the proposed rule, OSHA intends for the term
vehicle to include any device used to transport responders and team
members while performing their duties. This covers a broad range of
modes of conveyance for transporting a person or people by land,
[[Page 7830]]
water, or air. Examples include bicycles, motorcycles, snowmobiles,
golf carts, utility carts, cars, trucks, buses, ambulances, watercraft,
and aircraft.
Proposed paragraph (l)(1) would ensure that vehicles are prepared
for safe use by team members and responders. Paragraph (l)(1)(i) of the
proposal would require the WERE or ESO to ensure that each vehicle
provided by the WERE or ESO and driven or operated by team members or
responders be inspected, maintained, and repaired in accordance with
the manufacturer's instructions. Inspection and maintenance schedules
can vary widely based on the type of vehicle and the nature of the
inspection or maintenance. WEREs and ESOs may choose to conduct more
frequent inspections and maintenance, based on the type of vehicle and
the amount of use. A robust vehicle inspection, maintenance, and repair
program ensures vehicle safety.
Proposed paragraph (l)(1)(ii) would require the WERE or ESO to
ensure that vehicles are immediately removed from service when safety
deficiencies are discovered. Once properly repaired the vehicle could
be returned to service. Deficiencies could be discovered by team
members and responders during the inspection performed in accordance
with paragraph (l)(1)(i) or at times such as when being driven or
operated, or during normal daily activities. Examples include a bird
strike on the windshield that affects the driver's visibility, a
missing or broken windshield wiper during inclement weather, the
driver's seat belt not functioning properly, a door not latching closed
properly, loose or missing lug nuts, brakes not functioning properly, a
cot retention mechanism not latching, and no heat or air conditioning
in the patient transport compartment. Manufacturers' instructions and
guidance from national consensus standards such as NFPA 1910, 2024 ed.,
offer a broad range of examples of potential deficiencies. When a
safety-related deficiency is identified, the vehicle would be required
to be taken out of service as soon as possible.
Some SERs expressed concern that OSHA would adopt the vehicle
replacement schedule recommended in NFPA 1910, Standard for Inspection,
Maintenance, Refurbishment, Testing, and Retirement of In-Service
Emergency Vehicles and Marine Firefighting Vessels, 2024 ed. (Document
ID 0115, pp. 19-20, 30). OSHA recognizes that there are many variables
related to the amount of use and conditions of operation for the wide
variety of vehicles used by team members and responders that can affect
the safe working life of a particular vehicle and firm deadlines for
retiring vehicles may result in costly and unwarranted replacement.
Given this variability, OSHA is not proposing particular timeframes for
vehicle replacement. Instead, the proposed rule requires that vehicles
be inspected, maintained, and repaired as specified by the manufacturer
and that any vehicle with a safety-related deficiency be immediately
removed from service.
Paragraph (l)(1)(iii) of the proposed rule would require the WERE
or ESO to ensure that each vehicle is provided with a seat for each
riding position, and each riding position is provided with a
functioning seat belt or vehicle safety harness that is designed to
accommodate a team member or responder with and without heavy clothing,
unless the vehicle is designed, built, and intended for use without
seat belts or vehicle safety harnesses. The seat belts and vehicle
safety harnesses would need to accommodate a team member or responder
wearing a duty uniform or other daily apparel or heavy clothing, such
as a winter coat or firefighting PPE. The benefits of seatbelts and
vehicle safety harnesses in preventing and reducing injuries and
fatalities are well known. A vehicle safety harness would be used in
place of a seatbelt, typically in a patient transport vehicle where the
EMS provider needs access to treat a patient that would not be possible
while using a seatbelt. Team members and responders would be required
to use the seats, seatbelts, and vehicle safety harnesses as specified
in proposed paragraph (l)(2) of this section.
OSHA realizes that many types of vehicles used by team members and
responders are designed, built, and intended for use without seatbelts
or vehicle safety harnesses. Examples include some All-Terrain
Vehicles, passenger seats in buses, bicycles, motorcycles, snowmobiles,
boats, and personal watercraft. Such vehicles are exempted from the
requirements in paragraph (1)(1)(iii).
Proposed paragraphs (l)(1)(iv) and (v) would require the WERE or
ESO to ensure that vehicles with aerial devices and vehicles with
vehicle-mounted water pumps be inspected, maintained, and service
tested in accordance with the manufacturer's instructions or in a
manner at least equivalent to the criteria specified in NFPA 1910, 2024
ed. The testing and maintenance program specified in the manufacturer's
instructions and the consensus standard are recognized as the most
effective programs to ensure the safety of these devices. Failure to
inspect and maintain an aerial device could result in serious injuries
or fatalities should a catastrophic failure occur when the device is
elevated or extended. Water provided through vehicle mounted pumps is
needed for fire suppression. Team members and responders depend on the
water to protect them when they are in close proximity to a fire. They
could be injured or killed if a pump were to malfunction or breakdown
due to inadequate maintenance. Service testing ensures that aerial
devices and pumps are functioning properly.
Proposed paragraph (l)(2) would ensure vehicles are driven and
operated in a manner that would keep team members and responders safe.
While the primary focus of this provision is for the safety of team
members and responders, it would also have the effect of protecting the
public such as other drivers on the road and their passengers,
bystanders, and patients being transported by EMS providers.
Proposed paragraph (l)(2)(i) would require the WERE and ESO to
ensure that each vehicle is operated by a team member or responder who
has successfully completed an operator training program commensurate
with the type of vehicle the team member or responder will operate, or
by a trainee operator who is under the supervision of a qualified
operator. Operators of vehicles would have to be adequately trained, or
in the process of being trained, to operate the vehicle. An untrained
or inadequately trained operator poses a safety hazard to team members
and responders riding in the vehicle, to operators of other vehicles,
and to bystanders.
Proposed paragraph (l)(2)(ii) would require the WERE or ESO to
ensure that each vehicle is driven or operated in accordance with the
standard operating procedures (SOP) developed in proposed paragraph
(q)(2)(iv) (see the Summary and Explanation for paragraph (q)). The
proposed SOP provision includes several safety-related topics that are
key to safe vehicle operation. Paragraph (l)(2)(ii) requires the WERE
or ESO to ensure that these important procedures are not only
established but that they are understood and followed by team members
and responders.
Paragraphs (l)(2)(iii) and (iv) are aimed at protecting team
members and responders both during the normal operation of the vehicle
and in the event of an accident. Paragraph (l)(2)(iii) would require
that the WERE or ESO ensure the team member or responder operating the
vehicle does not move the vehicle until all team members or
[[Page 7831]]
responders in or on the vehicle are seated and secured with seat belts
or vehicle safety harnesses in approved riding positions, except for
vehicles without seat belts and vehicle safety harnesses as noted in
proposed paragraph (l)(1)(iii), or as provided in proposed paragraph
(l)(2)(viii). The proposed provision anticipates that the driver or
operator would verify with team members and responders that they are
safely secured in an appropriate position or are otherwise prepared for
vehicle movement. In Question (l)-1 OSHA is interested in getting
information on whether there are any other situations or vehicles where
OSHA should require, or exclude, the use of seat belts and vehicle
harnesses? If so, please explain.
Whereas proposed paragraph (l)(2)(iii) would ensure team members
and responders are ready for the vehicle to move, proposed paragraph
(l)(2)(iv) would require the WERE or ESO to ensure they remain seated
and secured any time that the vehicle is in motion and ensure seat
belts and vehicle safety harnesses are not released or loosened for any
purpose while the vehicle is in motion, including the donning (putting
on) or doffing (taking off) of PPE.
When dispatched to an incident from the WERE or ESO facility, OSHA
anticipates team members and responders would don PPE before being
seated and secured, as required by proposed paragraph (l)(2)(iii).
However, there are often occurrences when team members and responders
are not wearing PPE while the vehicle is moving, such as for driver
training, community assessment and familiarity, and other non-response
driving situations, and they are dispatched to respond to an incident
that requires donning PPE. The proposed provision requires that they
not release or loosen seat belts or vehicle safety harnesses to don PPE
when the vehicle is moving. Conversely, if the PPE has already been
donned, the proposed provision prohibits the loosening of seat belts or
vehicle safety harnesses to doff the PPE when the PPE is no longer
needed, such as when the response is terminated. Question (l)-2 asks
how would compliance be achieved? Would the team members or responders
stop enroute or wait until arrival at the scene?
Paragraph (l)(2)(v) of the proposed rule would require the WERE or
ESO to ensure that team members and responders actively performing
necessary emergency medical care while the vehicle is in motion are
secured to the vehicle by a seat belt, or by a vehicle safety harness
designed for occupant restraint, to the extent consistent with the
effective provision of such emergency medical care. Restraining EMS
providers who are providing care during transport reduces the
likelihood of serious injury or death, should the vehicle make abrupt
turns, stops, or starts; or become involved in a collision or rollover.
In Question (l)-(3), OSHA is seeking input on whether it should also
require that the patient be restrained to prevent an unrestrained
patient from being thrown into a team member or responder in the event
of a vehicle collision or an evasive driving maneuver?
Proposed paragraph (l)(2)(vi) would require the WERE or ESO to
ensure that the establishment and implementation of a procedure for
driver training on vehicles with tiller steering that ensures when the
instructor and trainee are both located at the tiller position, they
are both adequately secured to the vehicle whenever it is in motion.
Tractor-drawn aerial (TDA) ladder trucks, and tractor-drawn heavy
duty and technical rescue vehicles, are unique in that they are
required to have two operators; the main driver in the front, similar
to other tractor-trailer trucks, and a second (tiller) operator who
steers the wheels at the rear end of the trailer. They are also unique
in that there is no passenger seat for the tiller instructor to sit in,
as there would be when training the main driver at the front of the
truck.
Some manufacturers provide a detachable seat with a seat belt for
the instructor to use. There are other options for compliance including
the use of a vehicle safety harness with a designated anchor point that
has sufficient strength to support a fallen team member or responder
and is not just an ordinary handhold/grab rail.
OSHA recognizes that boats are vehicles subject to the proposed
standard, and some boats have tiller steering. However, this proposed
provision would not apply to boats with tiller steering because they
are designed, built, and intended for use without seat belts or vehicle
safety harnesses, as noted in the discussion above regarding proposed
paragraph (l)(1)(iii) of this section.
Paragraph (l)(2)(vii) of the proposed rule would require the WERE
or ESO to ensure that a vehicle safety harness designed for occupant
restraint is provided to secure the team member or responder in a
designated stand-up position during pump-and-roll operations. While
manufacturers have typically phased out stand-up positions on newer
models, many older model vehicles used for wildland or wildland urban
interface firefighting have designated stand-up positions for operating
the water delivery systems. Stand-up positions pose a fall hazard to
team members and responders if they are not restrained.
Proposed paragraph (l)(2)(viii) would require the WERE or ESO to
ensure that policies and procedures are established and implemented for
ensuring the safety of team members and responders when it is
determined that it is not feasible for each team member, responder, or
person to be belted in a seat. Examples include when moving the vehicle
while reloading long lays of hose, standing as honor guards during a
funeral procession, transporting people acting as holiday figures or
other characters or mascots (e.g., Santa Claus, Easter Bunny, Smokey
Bear, Superman, etc.), during parades, and for vehicles without
seatbelts as noted in proposed paragraph (l)(1)(iii) of this section.
The policies and procedures would differ depending upon the type of
vehicle and activity taking place. OSHA anticipates a variety of
alternatives for compliance such as the use of ladder belts, harnesses,
or other fall protection, and limitations on the speed vehicles may
travel.
When an emergency incident occurs, some WEREs and many ESOs depend
on team members or responders driving to their facilities to provide
staffing for emergency response vehicles, or to respond directly to the
incident scene to provide emergency services. In these instances, as
noted in section VII., Preliminary Economic Analysis and Initial
Regulatory Flexibility Analysis, some team members and responders are
injured and killed while responding in privately owned vehicles (POVs).
OSHA is including requirements in the proposed rule to address this
hazard.
Proposed paragraph (l)(2)(ix) would require the WERE or ESO to
ensure that policies and procedures are established and implemented for
team members and responders who, when alerted of an emergency incident,
are authorized by the WERE or ESO to respond in vehicles not under the
direct control of the WERE or ESO to the emergency incident scene or to
the WERE facility. Such vehicles are those that are, for example,
privately owned, leased, rented, or otherwise under the control of the
team member or responder (including on-loan from a friend or family
member).
Some WEREs and ESOs depend on ``home response'' by team members and
responders. In other words, team members are at home or otherwise on
personal time, and directly respond in their POV to the incident
location or to the WERE or ESO facility when alerted
[[Page 7832]]
of an emergency incident. This response is typically time-sensitive,
requiring the team member or responder to travel with haste, often
while communicating and coordinating with the WERE, ESO, or other team
members or responders. This scenario presents hazards that are directly
related to emergency response activities. As such, OSHA does not
consider this sort of home response to be a commute to the workplace as
described in 29 CFR 1904.5(b)(2)(vii), which is not treated as work-
related for purposes of recordkeeping and injury and illness reporting
requirements under 29 CFR part 1904. Rather, OSHA intends to cover
these types of home responses under the proposed standard. Under the
proposal, the WERE's or ESO's procedures for use of POV vehicles in
these circumstances would need to include the same elements as those
for driving their emergency vehicles, including requirements for
wearing seatbelts, speed limits, stopping and proceeding at traffic
control devices, passing other vehicles, and the use of warning lights
and signals.
Paragraph (l)(2)(x) proposes to require the WERE or ESO to ensure
that, where tools, equipment, and respiratory equipment are carried
within enclosed seating areas of vehicles, each is secured either by an
effective mechanical means of holding the item in its stowed position
or by placement in a compartment with an effective latching mechanism.
This would ensure that these items do not become flying projectiles
that could injure team members and responders should the vehicle be
involved in a collision or roll-over.
Paragraph (m) WERE Pre-Incident Planning
Pre-incident plans (PIPs) help team members effectively manage
incidents and maximize the protection of team members as well as
facility employees and the facility. PIPs provide critical information
to team members that can guide their response to an emergency incident.
PIPs typically include maps of the facility and diagrams and drawings,
along with the designation of predetermined locations for emergency
vehicle positioning during an incident. An accurate, up-to-date PIP is
a valuable tool for assisting team members with safe and effective
mitigation of incidents.
Under paragraph (m)(1) of the proposed rule, the WERE would be
required to develop PIPs for locations within the facility where team
members may be called to provide service. The PIPS are based on the
facility vulnerability assessment and the type(s) and level(s) of
service(s) established in paragraph (c) of this section. The facility
and vulnerability assessment would identify the locations and processes
in the facility where WERT services are likely to be needed.
Proposed paragraph (m)(2) would require the WERE to include in the
PIP(s) the locations of unusual hazards that team members may
encounter, such as storage and use of flammable liquids and gases,
explosives, toxic and biological agents, radioactive sources, water-
reactive substances, permit-required confined spaces, and hazardous
processes. Unusual hazards are those hazards that are particularly
dangerous to the health and safety of team members when carrying out
their activities on the WERT. Including them in the PIP provides team
members with notice of their presence and thus allows team members to
prepare for them and to take appropriate action during emergency
situations.
Proposed paragraph (m)(3) would require that the WERE include in
the PIPs the locations of fire pumps, fire hose valves, control valves,
control panels, and other equipment for fire suppression systems, fire
detection and alarm systems, and smoke control and evacuations systems.
During an emergency, team members need quick access to built-in
protective systems, equipment, and components. Including their
locations in the PIPs makes it easier for team members to find these
items when needed. PIPs may also be used in training situations for
familiarizing team members with the facility layout and locations of
the important items specified in the proposed provision.
Under paragraph (m)(4) of the proposed rule, the WERE would ensure
that the most recent versions of PIPs are provided to the WERT and are
accessible and available to team members operating at emergency
incidents. To be useful, PIPs must be accessible to responding team
members, especially the incident commander. PIPs should also be made
available as a training tool.
Proposed paragraph (m)(5) would require the WERE, to the extent
feasible, to include in PIPs the actions to be taken by team members if
the scope of the incident is beyond the capability of the WERT. For
example, a PIP that includes the location of an unusual hazard that the
WERT is not trained for might indicate that team members must remain a
safe distance from the area, ensure facility workers are being
evacuated, and summon mutual aid to mitigate the incident. Including
these procedures in the PIP ensures that team members know the steps to
take when faced with unusual hazards that are beyond their capability.
It also helps to ensure team members do not expose themselves to
hazards they are unequipped to handle by articulating the expectation
in the event of such a hazard.
Paragraph (m)(6) would require that WEREs review PIPs annually and
when conditions or hazards change at the facility. They shall be
updated as needed. To be useful, PIPs must be up to date. OSHA believes
that requiring the WERE to review PIPs when condition or hazards change
and at least annually is sufficient to ensure the WERE identifies
deficiencies in the PIP and keeps it up to date. The requirement
ensures the WERE addresses known changes that might affect the WERT in
a timely manner while the annual review allows the WERE to identify
small changes that may have been overlooked since the past review. For
example, the WERE would know when significant changes are made to the
facility, such as building renovations and additions. This knowledge
would prompt an update of the PIP as soon as reasonably possible. A
smaller change, such as the relocation of bottled gas storage from one
room to another, is something that might be identified during an annual
review of the PIPs and appropriate updates would then be made.
Paragraph (n) ESO Pre-Incident Planning
Pre-incident plans (PIPs) help responders effectively manage
incidents and maximize the protection of responders by planning in
advance. Also, PIPs provide critical information to responders that can
guide their response to an emergency incident. PIPs typically include
maps of the subject facility, and diagrams and drawings, along with
designation of predetermined locations for emergency vehicle
positioning during an incident. The provisions in proposed paragraph
(n) are based on the pre-incident planning paragraphs in NFPA 1660,
Standard for Emergency, Continuity, and Crisis Management:
Preparedness, Response, and Recovery, 2024 ed. While not required by
the proposed rule, ESOs would benefit from using a standard form and
format for PIPs for ease of use by incident commanders (IC) and other
responders during an incident.
Under paragraphs (n)(1) and (2) of the proposed rule, the ESO would
be required to determine the locations and facilities where responders
may be called to provide services that need a PIP, based on the
community or facility
[[Page 7833]]
vulnerability assessment and the type(s) and level(s) of service(s)
established in paragraph (d), and develop PIPs for facilities,
locations, and infrastructure where emergency incidents may occur. The
proposed rule does not require a PIP for every incident imaginable.
Rather, through the community or facility vulnerability assessment, the
ESO must identify structures, facilities, and other locations where a
PIP would help the ESO prepare for an incident, and then assist the IC
with the development of the IAP in paragraph (p)(2)(vi).
ESOs should prioritize PIP development according to the type and
magnitude of the potential incident. Hazards to life and health are of
the utmost importance and would have the highest priority in creating
PIPs. Likewise, the larger or more complex a structure or facility is,
the greater the risk in mitigating an emergency incident at these
places and therefore the need for a PIP would also be greater.
Proposed paragraph (n)(3) would require the ESO to prepare a PIP
for each facility within the ESO's primary response area that is
subject to reporting requirements under 40 CFR part 355 pursuant to the
Emergency Planning and Community Right-to-Know Act (EPCRA) (also
referred to as the Superfund Amendments and Reauthorization Act of 1986
(SARA)), 42 U.S.C. 11001 et seq. These types of facilities are
particularly hazardous because they involve hazardous chemicals, and
PIPs are necessary to ensure ESOs are sufficiently prepared to respond
to incidents at these facilities. Additionally, these facilities may
not have a WERT organized to mitigate emergencies, or the size and
scope of the emergency may be beyond the WERT's capabilities.
Under proposed paragraph (n)(4), the ESO would need to ensure that,
when preparing a PIP for a facility, the facility personnel the ESO
consults are knowledgeable about the facility's use, contents,
processes, hazards, and occupants. It is important that all potential
hazards are identified to responders preparing PIPs, so it is important
that the facility personnel assisting with the PIP development have
thorough knowledge of the facility. It may be necessary to consult with
more than one facility representative to ensure that all the necessary
information needed for the PIP is accurately conveyed. While preparing
the PIP, the responder may be provided access to information,
materials, or processes that are considered proprietary business
information. A note to proposed paragraph (n)(4) recommends that the
ESO develop a policy for protecting this information.
Paragraph (n)(5) of the proposed rule would require that the ESO
ensure that the responders responsible for PIP preparation know how to
identify the information to be collected and included in the PIP. The
PIP is only as good as the information contained in it. For instance,
all necessary facility information must be recorded, items of concern
must be noted, and accurate sketches or diagrams must be prepared.
Proposed paragraph (n)(6) would require the ESO to ensure that PIPs
have a level of detail commensurate with the facility's complexity and
hazards. PIPs for facilities which are not complex can be developed
with minimal amounts of data. However, additional data are required for
more complex facilities with more hazards. For example, the PIP for a
multi-story high school would be expected to be more complex than the
PIP for a fast-food restaurant. Regardless of facility complexity, the
PIP details should be presented as concisely as possible to make them
easily understandable to the appropriate responders.
Paragraph (n)(7) of the proposed rule would require the ESO to
ensure that PIPs include actions to be taken by responders if the scope
of an incident is beyond the capacity of the ESO. The PIP would be
developed with an understanding of the ESO's response capability based
on the type(s) and level(s) of service established in paragraph (d),
and this provision would require planning for what to do if the ESO
encounters an incident that exceeds that response capability. For
example, the PIP might include what mutual aid ESO or skilled support
resources would be needed. The PIP would also describe action(s) the
ESO would take, such as establishing defensive firefighting positions,
establishing no-entry zones, ensuring surrounding areas are evacuated,
etc. In some situations, the appropriate action might be simply to pull
back all responders to a safe distance away from the hazard.
Under proposed paragraph (n)(8), the ESO must ensure that the most
recent PIPs are disseminated as needed and are accessible and available
to responders operating at emergency incidents. OSHA is aware that some
ESOs use electronic versions of PIPs in a database, while others use
hardcopies kept in binders in response vehicles. Any method that
ensures the PIPs are accessible and available would comply with the
provision. PIPs can only be useful if they are available at the
incident site and accessible to responders operating at emergency
incidents. Also, they should be easy for responders to understand. PIPs
are particularly important for the IC's use during an incident.
Paragraph (n)(9) of the proposed rule would require the ESO to
ensure that PIPs be reviewed annually and updated as needed. For
example, during the course of their daily routines, responders might
observe facilities being renovated, additions being built, or a change
of occupancy. Observations such as these might prompt a PIP update.
Other information on PIPs might not be easily observed, such as names
and phone numbers for responsible parties, access codes for doors and
gates, etc. This type of information would be gathered during an annual
review.
Paragraph (o) Incident Management System
WERTs and ESOs respond to a wide variety of incidents; most of
which are considered routine and involve a small commitment of
resources. Some incidents are more complex and involve larger
commitments of resources, and potentially higher-risk operations. It is
important for the WERE and ESO to develop an incident management system
(IMS) that accommodates all types and sizes of incidents and provides
for a systematic process of escalation from the arrival of the first
units at a routine incident, to an appropriate response to larger and
more complex incidents.
As discussed in the Summary and Explanation of proposed paragraph
(b), the proposed rule defines an IMS as ``a system used for managing
and directing incident scene operations and activities. It includes
establishing functions for managing incidents, describes the roles and
responsibilities to be assumed by team members and responders, and
standard operating procedures to be utilized.'' Because OSHA is aware
that some WERTs and ESOs use the terms IMS and Incident Command System
(ICS) synonymously, the definition also indicates that incident command
is a functional component of the IMS.
An IMS provides for the safety and health of team members and
responders by establishing structure and coordination for the
management of emergency incident operations. Several commenters
responding to OSHA's 2007 RFI indicated that an IMS is appropriate for
managing all types of emergency incidents and is effective in reducing
injuries and illnesses to team members and responders (Document ID
0018; 0022; 0024; 0030; 0032; 0036; 0037; 0039; 0041; 0044; 0046; 0047;
0048;
[[Page 7834]]
0049; 0050; 0051; 0052; 0053; 0060; 0070; 0071; 0072; 0073; 0074; 0078;
0080; 0081; 0082; 0083; 0085). Lack of, or deficiencies in, an IMS are
routinely cited by NIOSH in their investigation reports for team member
and responder injuries and fatalities (Document ID 0326; 0327; 0328;
0329; 0330). Examples of deficiencies noted include multiple team
members and responders serving in command roles in an uncoordinated
manner, lack of an established accountability system for tracking team
members and responders, not establishing a rapid intervention crew
(RIC), and not designating an Incident Safety Officer (ISO) or
otherwise ensuring for the safety and health of team members and
responders.
Paragraphs (o)(1)(i) through (iii) of the proposed rule would
require that each WERE and ESO develop and implement an IMS to manage
emergency incidents based on the type and level of service(s)
established in paragraphs (c) and (d) of this section, the facility or
community vulnerability assessment conducted in accordance with
paragraphs (c) and (d) of this section, and the pre-incident plans
developed in accordance with paragraphs (m) and (n) of this section. An
IMS provides a standard approach to managing the broad range of
emergency incidents that team members and responders may encounter. The
IC should be able to apply the IMS in a manner that supports the
effective and efficient management of the incident. Each WERE and ESO
should evaluate existing systems as it develops and implements an IMS
that meets its own requirements and provides compatibility with systems
used by mutual aid WERTs and ESOs, and other agencies that it would
reasonably be expected to work with at emergency incidents.
Proposed paragraph (o)(2)(i) would require that WEREs and ESOs
ensure that their IMS include flexible and scalable components that are
adaptable to any situation. A note included with the proposed provision
indicates that standardization of the IMS, such as provided in the NIMS
and the National Response Framework (NRF), developed by FEMA, an agency
of the U.S. Department of Homeland Security, is essential to the
successful coordination and function of WERTs and ESOs in incident
response operations. The NRF provides guidance for how the nation
responds to all types of disasters and emergencies. It is built on
scalable, flexible, and adaptable concepts identified in the NIMS to
align key roles and responsibilities. The NIMS guides WERTs and ESOs
with shared vocabulary, systems, and processes for working effectively
together at emergency incidents. In Question (o)-1, OSHA asks for
stakeholder input about their current use of an IMS, whether the NIMS
and NRF were used as guidance for the IMS, and if there are any
concerns with being compatible with NIMS.
Paragraph (o)(2)(ii) of the proposed rule would require that each
WERE and ESO ensure that, in the absence of a dedicated ISO, the IC
assesses the incident scene for existing and potential hazards and
oversees incident safety. Many incidents have an ISO whose primary
responsibilities are to assess the incident scene for existing and
potential hazards and oversee incident safety. Small-scale incident
scenes, however, may not have a team member or responder who is
designated as the ISO. In these circumstances, the IC would need to
oversee incident safety.
Paragraph (o)(2)(iii) of the proposed rule would require that each
WERE and ESO ensure that the IMS includes a means for team members or
responders to notify the IC or Unified Command (UC) of unsafe
conditions and actions on the incident scene. Unsafe conditions or
actions may become evident to team members and responders while they
are performing their duties. It is important that they be able to alert
the ISO, IC or UC as soon as possible, by means of portable radio, cell
phone, face-to-face communication, or another method designated in the
IMS, so that actions can be taken by the IC or UC to address the
hazard.
Paragraph (o)(2)(iv) of the proposed rule would require that each
WERE and ESO ensure that the IMS consists of collaborative components
that provide the basis for clear communication and effective
operations. Components, such as those identified in the NIMS--resource
management, command and coordination, and communications and
information management--would provide structure and coordination for
ICs and UCs to manage emergency incident operations, which would
provide for the safety and health of team members and responders.
Proposed paragraphs (o)(3)(i) through (iii) would require that each
WERE and ESO designate the responsibilities of the IC that at least
include front-line management of the incident, overall incident safety,
and tactical planning and execution. The front-line management of the
incident could include activities such as establishing a command post,
conducting size-ups of the incident, and controlling incident
communications. The overall incident safety responsibility of the IC
could cover activities such as including team member and responder
safety in the IAP, and continuously assessing the risk to the safety
and health of team members and responders. The tactical planning and
execution could include activities such as developing an overall
strategy and an IAP, assigning duties and tasks to team members and
responders, establishing hazard control zones, maintaining resource and
team member or responder accountability, and updating the IAP as
needed.
Under proposed paragraph (o)(3)(iv), the WERE and ESO would also
designate to the IC the responsibility of determining if additional
assistance is needed, and relaying requests for internal resources,
mutual aid, and skilled support assistance through the emergency
communications and dispatch center. The IC is in the best position to
know what and when additional assistance is needed. Assistance is
requested by the IC through the dispatch center which would contact the
requested internal resources, mutual aid WERT or ESO, or the employer
who can provide the requested skilled support.
Paragraph (o)(4) of the proposed rule would require that each WERE
and ESO ensure that the IC has the training and authority to perform IC
duties. Training would vary depending on the team member's or
responder's tier of duty. For example, NFPA 1021, Standard for Fire
Officer Professional Qualifications, 2020 ed., identifies four levels
for minimum requirements for leadership and supervision over others and
operations, which includes incident management. Level 1 is a tier for
an entry level/first-line supervisor, ESO ``company officer,'' or team
leader. Level 4 is the top level or top tier for the chief of the ESO.
On a single unit response incident, typically the senior team member or
responder would be the IC. On a multi-unit response incident, the
senior team member or responder could be the initial IC, but the role
of IC would pass up the chain of command as more senior/higher tier
team members or responders arrive on the scene. Additionally, as part
of the IMS, the WERE and ESO would need to authorize the appropriate
team members and responders to serve as an IC.
Many of the provisions in this section are based on, or are
consistent with, NFPA 1500, and NFPA 1561, Standard on Emergency
Services Incident Management System and Command Safety, 2024 ed. OSHA
has preliminarily determined that development and use of an IMS would
make incident scenes safer and prevent injuries and fatalities. In
Question (o)-2, OSHA is seeking input on which
[[Page 7835]]
aspects of an IMS are the most effective and the least effective in
protecting the safety and health of team members and responders.
Commenters should explain how and why certain IMS components are or are
not effective.
Paragraph (p) Emergency Incident Operations
During emergency incident operations, team members and responders
face the most challenging aspects, both physically and psychologically,
of their vocation. Ensuring safe operations at incidents can reduce
team member and responder injuries and fatalities, and limit exposure
to health hazards. Paragraph (p) of the proposed rule is based on
current industry practices, as reflected by NFPA consensus standards
and FEMA's ``National Incident Management System,'' and would not
present new requirements for most ESOs and WEREs.
Proposed paragraph (p)(1) would establish requirements for incident
command and management. Paragraphs (p)(1)(i) and (ii) would require the
WERE and ESO to ensure that the IMS developed in accordance with
paragraph (o) of this section is used at every emergency incident and
that every incident has an Incident Commander (IC) or a Unified Command
(UC). For an IMS to be effective on large scale incidents, it needs to
be used on small scale incidents so that all involved are familiar with
it and experienced with working within its scope. Also, it is important
that every incident, no matter how large or how small, has a person
designated to be in charge. For a simple EMS response for a sick person
laying in the yard with two EMS providers on the ambulance, one
provider would be designated the leader, or IC, and in charge of
response activities for the incident.
Under proposed paragraph (p)(1)(iii), the WERE and ESO would need
to ensure that the task of overseeing incident safety is addressed, or
an ISO is assigned and designated to monitor and assess the incident
scene for safety hazards and unsafe situations and develop measures for
ensuring team member and responder safety. The task of overseeing
incident safety is sometimes referred to as the ``safety'' role.
Typically, the IC would oversee the safety role on small(er) incidents.
For larger or more complex incidents, where division of labor is
appropriate so that the IC is not overwhelmed, a team member or
responder (usually with seniority or in a higher tier) can be
designated to fill the safety role as the ISO. Whoever fulfills the
safety role needs to be mindful of observed and anticipated safety
hazards and develop measures to stop or correct them to prevent
injuries or fatalities.
Proposed paragraph (p)(1)(iv) would require the WERE and ESO to
ensure that if an incident escalates in size and complexity, the IC
divides the incident into strategic or tactical level management
components. Dividing complex incidents into manageable components
allows for an appropriate span of control for team members and
responders managing the components and reduces the likelihood that the
IC or component managers will be overwhelmed. For example, a derailed
and overturned passenger train is a large-scale incident that involves
multiple WERTs or ESOs spread apart by distance, due to the length of
the train, and also by the train itself being a large obstruction
physically separating one side of the incident from the other. In this
situation, the ESO could separate the incident into geographic areas,
separating each side of the tracks (north/south, east/west) into
individual divisions (as described in NIMS), with an overall IC, and a
senior team member or responder designated as the division leader.
Under proposed paragraph (p)(1)(v), the WERE and ESO would need to
ensure that a Unified Command (UC) structure is utilized on incidents
where the complexity requires a shared responsibility among two or more
WEREs, ESOs, or other agencies. For example, a common situation
requiring a UC could be during a large-scale wildfire that crosses
jurisdictional boundaries, such as town/city, county, state, and
Federal lands (such as national parks). The UC would likely be
comprised of individuals who would be the IC in their own jurisdiction,
to coordinate efforts and operate together to achieve a common goal to
mitigate the incident and prevent injuries and fatalities.
Proposed paragraph (p)(1)(vi) would require the WERE and ESO ensure
that IC(s), team members, and responders are rotated or replaced during
complex or extended operations, as determined by the WERE or ESO.
Emergency response activities can be physically and mentally
challenging, resulting in fatigue that can impair the team member or
responder's ability to safely and effectively perform their duties. It
is important that team members and responders receive adequate rest
breaks and the opportunity to mentally decompress.
Proposed paragraph (p)(2) would establish requirements for the
incident commander. Paragraph (p)(2)(i) would require the WERE and ESO
to ensure a team member or responder is assigned as the IC. Each
incident needs someone to be in charge, who would serve as the IC.
However, the team member or responder designated to fill the role of IC
may change as the incident progresses and more senior tier team members
or responders arrive at the scene, or as the incident escalates in size
or complexity.
Paragraph (p)(2)(ii) would require each WERE and ESO to ensure that
the identity of the IC and the location of the command post are
communicated to the team members or responders who are on the incident
scene or responding to it. The IC should announce via radio the
specific location of the command post. For communications via radio
between the sender and receiver, the command post could be anywhere
within range of the radio. However, most often incident scene
communication occurs face-to-face. Thus, team members and responders
need to know who and where the IC is on the scene. Often, response
vehicles are used as the command post, but where multiple vehicles are
on the scene, it may be difficult to distinguish which vehicle is being
used as the command post. The command post could also be a free-
standing table/command board located close to incident operations or
away from vehicles. A visible object, such as a steady or flashing
light of a distinct color, or a flag, banner, or other visible marker
could be used to help identify the location of the command post. If the
IC is outside of the identified vehicle, a distinguishing garment, such
as a reflective vest with ``Command,'' or other suitable means should
be used to identify the IC.
Under proposed paragraphs (p)(2)(iii) and (iv), the WERE and ESO
would need to ensure the IC conducts a comprehensive and ongoing size-
up of the incident scene that places life safety as the highest
priority and conducts a risk assessment based on the size up before
actively engaging the incident. Factors involved in a size-up vary
depending on the type of incident (e.g., fire, EMS, technical rescue),
but all size-ups need to include evaluation of the safety hazards to
the person/people involved in the incident, bystanders, and team
members and responders. Size-up is an ongoing process that includes a
continuing evaluation of information received and assessment of the
hazards present. When feasible, the size-up should include a 360-degree
walkaround survey of the involved structure or incident scene to
evaluate the incident from all angles so that a
[[Page 7836]]
clear mental picture of the scope of the incident can be developed.
Under proposed paragraph (p)(2)(v), the WERE and ESO would ensure
the IC coordinates and directs all activities for the duration of the
incident. This provision would require the IC, or successive ICs, to
remain engaged in managing the incident from beginning to end. Similar
to the IC role being passed as an incident escalates, the IC role could
be passed again as the incident de-escalates. Because all activities
must be conducted under the direction of the IC, ``freelancing''
(operating without direction from the IC and outside the scope of the
IMS) on the incident scene would be prohibited.
Proposed paragraph (p)(2)(vi) would require the WERE and ESO to
ensure the IC develops an Incident Action Plan (IAP) that prioritizes
life safety for each incident, updates it as needed during the
incident, and utilizes the information contained in the PIP. The IAP
helps to coordinate incident operations and activities, and ensure they
support the incident mitigation objectives. The IAP provides structure
to manage the incident. For the majority of incidents, the IAP is
usually not a formal, written plan, although for some large-scale
incidents the IC or UC may develop a written plan. Often, the IAP may
only be documented on a fill-in incident management/incident command
template, chart, magnetic or wipe-off board, or others means depending
on the IC's preference. If a PIP was developed for the incident scene
location, proposed provision (p)(2)(vi) would require that it be used
in the development of the IAP. The purpose for requiring the
development of PIPs in proposed paragraphs (m) and (n) is to aid the
IC's management of the incident.
Proposed paragraph (p)(3) would establish requirements for control
zones. In paragraph (p)(3)(i), the WERE and ESO would be required to
establish control zones at every emergency incident to identify the
level of risk to team members and responders and the appropriate
protective measures needed, including PPE. Control zones serve to
delineate the areas where certain team members and responders are
designated to operate. In addition to the protective measures or PPE
needed for each zone, the differentiation among control zones may also
indicate the required level of training (i.e., team member or responder
tier) appropriate to operate in each zone.
Proposed paragraphs (p)(3)(ii) and (iii) would require the WERE and
ESO to ensure the perimeters of control zones are designated by the IC,
and that any changes to the perimeters during the incident are
communicated to all team members and responders on the scene. For
control zones to serve their intended purpose, team members and
responders need to be notified of the zone perimeters. As an incident
escalates or de-escalates the boundaries of the zones are likely to
expand or contract. For example, when a fire extends from one attached
dwelling (i.e., townhouse, rowhouse) to another the zones would expand
to include the additional dwelling on fire. As the fire is brought
under control, the zones would contract. Team members and responders
would need to be notified of these changes via radio or visually by the
relocation of the marking method required by proposed paragraph
(p)(3)(iv)(B).
Under proposed paragraphs (p)(3)(iv)(A) through (C), the WERE and
ESO would need to ensure that control zones are established as no-
entry, hot, warm, and cold, as defined in proposed paragraph (b);
marked in a conspicuous manner, with colored tape, signage, or other
appropriate means, unless such marking is not possible; and
communicated to all team members and responders attending the incident
before the team member or responder is assigned to a control zone.
These proposed provisions elaborate on the general requirements in the
preceding provisions. The individual zones are defined in proposed
paragraph (b), and further explained in the Summary and Explanation for
paragraph (b). In Question (p)-1, OSHA is seeking stakeholder input on
current practices for identifying and communicating the various zone
boundaries. What marking methods are used? How are they communicated to
team members and responders? Do the marking methods help or hinder on-
scene operations?
Proposed paragraph (p)(3)(v) would require the WERE and ESO to
ensure that only team members and responders with an assigned task are
permitted in the hot zone. The hot zone is the area with the greatest
potential for risk of injury or exposure to hazards. Team members or
responders entering the hot zone without an assigned task would be
considered to be freelancing, thus operating outside the scope of the
IMS, and therefore placing themselves at risk, and potentially
increasing the risk to those designated to operate within the zone.
Freelancing team members and responders are also likely to be difficult
to track in the personnel accountability system established in proposed
paragraph (p)(2)(vi).
Paragraph (p)(3)(vi) of the proposed rule would require the WERE
and ESO ensure that where a no-entry zone is designated, team members
and responders are prohibited from entering the area. A no-entry zone
can be established for any number of reasons. The most important reason
is to protect team members and responders from injury or death. For
example, during a structure fire, there is the danger of a wall or
other part of a structure collapsing. The area where the collapsing
structural components are likely to fall would be designated as a no-
entry zone, and team members and responders would be prohibited from
entering that area. While not a hazard to team members and responders,
a no-entry zone could be established to protect evidence for a
potential criminal investigation.
In paragraph (p)(3)(vii) of the proposed rule, the WERE and ESO
would be required to ensure that for each zone the appropriate
protective measures are designated, including PPE, that are
commensurate with the hazards in the zone the team member and responder
will be operating in, and that each team member and responder
appropriately uses the protective measures for that zone. The
protective levels of PPE needed vary for each zone level, with the
highest level needed for the hot zone. A protective measure for a
downed electrical wire could be to a maintain a certain, safe distance
away from the downed wire (a no-entry zone), with no specific PPE
needed.
Proposed paragraph (p)(4) would require safety and health measures
to be taken on the incident scene. Under proposed paragraphs (p)(4)(i)
and (ii), WEREs and ESOs would be required to identify the minimum
staffing needed to ensure that incidents are mitigated safely and
effectively and ensure that operations are limited to those that can be
safely performed by the team members and responders available on the
scene. OSHA recognizes that many WERTs and ESOs ``do more with less.''
The proposed provisions would require the WERE and ESO to identify the
staffing needed for various types of incidents that they may respond
to, potentially prompting a request for mutual aid resources, but also
that they limit operations to those that can be safely performed with
the team members and responders on the scene. NFPA 1710 and NFPA 1720
provide guidance on staffing levels for various types of firefighting
ESOs. To be clear, OSHA is not specifying, nor recommending minimum
staffing levels for emergency response vehicles, or the minimum number
of team members or responders needed on an incident scene for safe
incident operations, except with respect to the ``2-in, 2-out''
requirement discussed below. Operations on the
[[Page 7837]]
incident scene would need to be limited to those that can be safely
conducted by the team members or responders on the scene.
Proposed paragraphs (p)(4)(iii) through (v) are essentially carried
forward into the proposed rule from the existing requirements in 29 CFR
1910.134(g)(4), Respiratory Protection; Procedures for interior
structural firefighting. The existing provisions are commonly referred
to as the ``2-in, 2-out'' rule. As part of this rulemaking, OSHA
intends to delete existing paragraph (g)(4) from 29 CFR 1910.134 and
insert a note there referring readers to this rule for the requirements
on interior structural firefighting. WEREs and ESOs are required to
continue to comply with the remaining provisions of 29 CFR 1910.134. In
addition, under proposed paragraphs (p)(4)(iii) through (v), the
coverage is expanded to include all IDLH atmospheres that team members
and responders enter, not just interior structural firefighting. Team
members and responders performing other duties, such as technical
rescue in an IDLH, face many of the same hazards as those performing
interior structural firefighting, and need to be afforded the same
protective measures.
Paragraph (p)(4)(iii) of the proposed rule would require the WERE
and ESO to ensure that at least four team members or responders are
assembled before operations are initiated in an IDLH atmosphere in a
structure or enclosed area, unless upon arrival at an emergency scene,
the initial team member(s) or responder(s) find an imminent life-
threatening situation where immediate action could prevent the loss of
life or serious injury, in which case such action would be permitted
with fewer than four team members or responders present. The
requirement in this provision of a minimum of four team members or
responders is consistent with existing 29 CFR 1910.134(g)(4), which
requires at least two team members or responders to enter the IDLH
environment and at least two team members or responders located outside
the IDLH environment.
This provision includes an exception to the 2-in, 2-out requirement
and coincides with proposed provision (f)(2) of this section. OSHA's
intent is that this exception is for the rescue of a person in imminent
peril only, where team members or responders observe, or are informed
by a witness of the imminent life hazard. The traditional emergency
services adage may be relevant when considering whether an exception to
the 2-in, 2-out requirement would be appropriate: ``Risk a lot to save
a lot, risk little to save little; risk nothing to save nothing.'' This
proposed provision is not intended to be used as a loophole for non-
compliance with proposed paragraph (p)(4)(iii). Some organizations have
tried to use the existing 2-in, 2-out requirement to justify minimum
staffing levels on emergency response vehicles, which is a
mischaracterization of the requirement. The four team members or
responders need not arrive on the same vehicle and could arrive at the
incident scene separately to be in compliance with the proposed
provision.
Under proposed paragraph (p)(4)(iv), the WERE and ESO would need to
ensure that at least two team members or responders enter the structure
or enclosed area with an IDLH atmosphere as a team and remain in visual
or voice contact with one another at all times, unless there is
insufficient space for two team members or responders, such as for
example, in a confined space or collapsed structure. Two team members
or responders are needed to work together as a team in case one has an
issue that requires the assistance of the other one. Often visible
contact is not possible in dark or smoke-filled locations. Voice
contact is person-to-person, without the use of radios, so that they
can hear one another in case one needs help.
Proposed paragraph (p)(4)(v) would require the WERE and ESO to
ensure that outside the structure or enclosed area with the IDLH
atmosphere, a minimum of two team members or responders are present to
provide assistance to, or rescue of the team operating in the IDLH
atmosphere. One of the two team members or responders located outside
the IDLH atmosphere may be assigned to an additional role, such as IC,
so long as this team member or responder is able to perform assistance
or rescue activities without jeopardizing the safety or health of other
team members or responders operating at the incident.
Paragraph (p)(4)(vi) of the proposed rule would require WEREs and
ESOs ensure each team member and responder in the IDLH atmosphere uses
positive-pressure SCBA or a supplied-air respirator in accordance with
the respiratory protection program specified in proposed paragraph (f)
of this section. The air pressure inside the facepiece of a positive-
pressure SCBA and supplied air respirators is constantly higher than
the air pressure outside the facepiece. Therefore, if a break in the
seal of the facepiece to the face should occur, the high internal air
pressure will push air out thus preventing contaminated air from
entering.
Proposed paragraph (p)(4)(vii) would require the WERE and ESO to
ensure that each supplied-air respirator used in an IDLH atmosphere is
equipped with a NIOSH-certified emergency escape air cylinder and
pressure-demand facepiece. An escape cylinder is needed in case
something happens that stops the air flow from the air hose, or an
event occurs that requires the team member or responder to rapidly
escape, thus disconnecting from the air hose to avoid being hindered by
a potentially entangled air hose.
Under proposed paragraph (p)(4)(viii), the WERE and ESO would
ensure that team members and responders use NIOSH-certified respiratory
protection during post-fire extinguishment activities, such as overhaul
and fire investigation. Once the fire has been substantially
extinguished, team members and responders typically begin overhaul
activities to find and expose any smoldering or hidden pockets of fire
in the area that has burned. Usually, SCBA is no longer needed to
protect team members' and responders' respiratory systems from the
heated gases. However, other combustion products are still present.
Thus, NIOSH-certified respiratory protection suitable for carcinogenic
combustion products would be needed. Fire investigator team members and
responders are also exposed to combustion products while performing
their duties on a fire scene, even after an emergency incident is
contained. Therefore, these team members and responders would also need
to use respiratory protection.
Proposed paragraph (p)(5) would establish requirements for
communication between the emergency communications and dispatch center,
and team members and responders and the IC; and for on-scene
communication. Paragraph (p)(5)(i) of the proposed rule would require
the WERE and ESO ensure, to the extent feasible, that there is adequate
dispatch and monitoring of on-scene radio transmissions by an emergency
communications and dispatch center. Emergency communications and
dispatch centers are known by many different terms, such as emergency
communications center, public safety communications center, and 911
center. OSHA recognizes that WEREs and ESOs may not have direct
supervision or authority over the emergency communications and
dispatch. However, OSHA expects that emergency communications and
dispatch centers would do what they can to ensure adequate monitoring
of on-scene radio transmissions. Even where the WERE or ESO does not
have direct supervision or authority over the
[[Page 7838]]
communications and dispatch center, the WERE or ESO must still take all
feasible steps to ensure adequate monitoring of on-scene radio, such as
by notifying the communications and dispatch center of the need for
monitoring and cooperating with them to facilitate such monitoring.
Where a WERE or private ESO does not utilize the public emergency
communications and dispatch center or knows that the center will not be
monitoring on-scene radio transmissions, the WERE or ESO must ensure
that their own means of communication with team members and responders
are monitored in accordance with proposed paragraph (p)(5)(i).
Monitoring of incident scene radio transmissions is important for
relaying information, ensuring requests for additional resources are
acknowledged and processed, and most importantly, ensuring Mayday calls
are not missed.
Proposed paragraph (p)(5)(ii) would require the WERE and ESO ensure
there is effective communication capability between team members or
responders and the IC. This may involve providing each team member and
responder their own portable, two-way radio. However, in many cases
effective communication may be achieved by ensuring all team members
and responders work with someone who has a radio.
Proposed paragraph (p)(5)(iii) would require the WERE and ESO
ensure that communications equipment allows mutual aid team members and
responders to communicate with the IC and other team members and
responders. For mutual aid to be effective, WEREs and ESOs need to be
able to communicate with each other on the incident scene. Radio
technology has evolved through the years and continues to evolve such
that some two-way radios used by team members and responders have
communication capabilities across many radio channels and frequencies.
OSHA is not proposing to require that WEREs and ESOs replace existing
radio equipment with the latest equipment. Instead, the proposed
provision would require the WERE or ESO to ensure communication
capability, which could be that those WEREs or ESOs with mutual aid
agreements be equipped with two-way radios that match or work with each
other's frequency(ies), or that a separate mutual aid frequency be
established and provided on their existing radios.
Under proposed paragraph (p)(6), OSHA would require the WERE and
ESO to ensure that the personnel accountability system established in
proposed paragraph (q)(2)(vii) is implemented at all incidents. As the
name implies, the personnel accountability system is intended to keep
track of team members and responders operating on the incident scene.
Its primary purpose is to identify any missing team member or
responder. For instance, if a WERE or ESO establishes that personnel
accountability check be conducted at a certain time interval and at
that time interval it is determined that someone is missing, the
personnel accountability system should be able to identify the
individual and where they were expected to be operating on the incident
scene. Many WEREs and ESOs are accustomed to using some form of
personnel accountability system. The proposed provision would require
that a personnel accountability system be used at every incident.
Paragraph (p)(7) of the proposed rule would require the WERE and
ESO to implement a Rapid Intervention Crew (RIC) at each structure fire
incident where team members or responders are operating in an IDLH
atmosphere, in accordance with the SOP established in paragraph
(q)(2)(viii) of this section. Rescuing a team member or responder who
is in trouble and in need of rescue is a difficult process. It is
important that a properly staffed and equipped RIC be established at
incidents where team members and responders are operating in IDLH
atmospheres so that they can be deployed quickly when needed as team
members and responders operating in an IDLH have a limited supply of
air available in their SCBA.
Proposed paragraph (p)(8) would require the WERE and ESO ensure
that medical monitoring and rehabilitation procedures are implemented,
as needed, in accordance with the SOP established in paragraph
(q)(2)(ix) of this section. The IC would need to consider the
circumstances of each incident and make provisions for rest, medical
monitoring, and rehabilitation of team members or responders operating
at the scene. Requirements for on-scene rehabilitation were considered
appropriate by several commenters to the 2007 RFI (Document ID 0022;
0032; 0037; 0041; 0044; 0046; 0047; 0049; 0051; 0052; 0060; 0063; 0071;
0072; 0083). Having preplanned medical monitoring and rehabilitation
procedures that can be applied to a variety of incident types is
essential for the health and safety of team members and responders.
Paragraph (p)(9) of the proposed rule would require that the WERE
and ESO implement the traffic safety procedures, as needed, in
accordance with the SOP established in paragraph (q)(2)(x) of this
section. As noted in section II.A., Need for the Standard, many
responders are injured and killed while operating at incidents on
roadways and highways. To reduce the likelihood of injuries and
fatalities, WEREs and ESOs would need to establish traffic safety
procedures that could include using a large vehicle to block traffic
lanes and the wearing of reflective PPE. Also, WEREs and ESO should
consult with the appropriate authorities regarding procedures for the
complete shutdown of traffic movement on the roadway or highway to
protect team members and responders from moving vehicles on the scene
of an emergency incident.
Some emergency incidents may necessitate the WERE and ESO to call
upon the services of employers who do not typically provide emergency
services. One example would be to call upon the services of a heavy-
duty wrecker-rotator and operator to lift a tractor-trailer truck that
has overturned unto a car with people trapped inside or calling a
construction company to provide a bulldozer and operator to cut a fire
line or access road for a wildland fire. Another example is calling a
plumber with a sewer camera to search for trapped victims in a
collapsed structure. These workers would provide their skills and
equipment, when needed, to support team members and responders
operating at an emergency incident. Known in the proposed rule as
skilled support workers (SSW), they would potentially be exposed to
some of the same hazards as team workers and responders.
Proposed paragraphs (p)(10)(i) through (v) would require the WERE
and ESO to ensure that prior to participation at an incident scene,
each SSW has and utilizes PPE appropriate to the task(s) to be
performed; an initial briefing is provided to each SSW that includes,
at a minimum, what hazards are involved, what safety precautions are to
be taken, and what duties are to be performed by the SSW; an effective
means of communication between the IC and each SSW is provided; where
appropriate, a team member or responder is designated and escorts the
SSW at the emergency incident scene; and all other appropriate on-scene
safety and health precautions provided to team members and responders
are used to ensure the safety and health of each SSW.
The SERs participating in the 2021 SBREFA panel generally agreed
that SSWs did not need additional emergency response-specific PPE when
responding to emergency incidents (Document ID 0115, p. 10). The SERs
indicated that, even at emergency incidents, SSWs generally would need
only the PPE they normally would use
[[Page 7839]]
on any job. Any additional PPE that the SSW would need to be protected
at the incident scene would need to be provided by the WERE or ESO.
Paragraph (q) Standard Operating Procedures
Use of Standard Operating Procedures (SOPs) helps to reduce the
risk of injuries and fatalities by providing written guidance to team
members and responders with established safe procedures for actions to
be taken during a wide variety of incident responses. They provide
direction for team members and responders on what they need to do to
safely perform job tasks that are routine and predictable. SOPs ensure
consistent work performance, contribute to a safe work environment, and
create a template for how to resolve issues and overcome obstacles.
NIOSH, in its firefighter fatality investigation and prevention
program, frequently cites a lack of, or inadequacy of, standard
operating procedures as a contributing factor in firefighter fatalities
(Document ID 0326; 0327; 0328; 0329; 0330).
Paragraph (q)(1) of the proposed rule would require that WEREs and
ESOs develop and implement SOPs for emergency events they are likely to
encounter, based on the type(s) and level(s) of service(s) established
in paragraphs (c) and (d) of this section, and the community or
facility vulnerability assessment developed in accordance with
paragraphs (c) and (d) of this section. For example, many communities
have single family dwellings. An appropriate SOP for firefighting ESOs
might include the location for response vehicles to be positioned as
they arrive at a house on fire, and the duties of responders arriving
on the scene.
Paragraph (q)(2)(i) of the proposed rule would require that WEREs
and ESOs establish SOPs that describe the actions to be taken by team
members and responders in situations involving unusual hazards.
Examples of unusual hazards include downed power lines, natural gas or
propane leaks, flammable liquid spills, bomb threats, derailments of
railroad and subway systems, fast-moving water, and floods. Team
members and responders are sometimes dispatched to incident scenes with
unusual hazards to evaluate the hazard, and a basic SOP may be to set
up a security barrier to protect people from the hazard, request
assistance from the resource provider such as a utility company, or
initiate or assist with evacuation of people in the area. SOPs should
also include additional key information to guide team members and
responders in the appropriate action(s) to be taken in each of these
scenarios to protect themselves and other responders from those
hazards.
Proposed paragraph (q)(2)(ii) would require that each WERE and ESO
establish SOPs that address how team members and responders are to
operate at incidents that are beyond the capability of the WERT or ESO,
as specified in paragraphs (c) and (d) of this section. Typically, this
would include actions to preserve lives, stabilize the scene, and
summon mutual aid resources to help resolve the situation or perform
duties that the WERT or ESO is unable to perform, such as technical
rescue.
Under paragraphs (q)(2)(iii) of the proposed rule, each WERE and
ESO would be required to establish SOPs to provide a systemic approach
for protecting team members and responders from contaminants and for
decontamination of team members, responders, PPE, and equipment. The
SOPs would need to include at a minimum: proper techniques for doffing
contaminated PPE; on-scene gross decontamination and decontamination at
the WERE's or ESO's facility of PPE, equipment, and team members and
responders; encouraging team members and responders to shower with soap
and water, as soon as reasonably practicable, and change into clean
clothing; and protecting team members and responders from contaminated
PPE after an incident. On-scene gross decontamination helps to remove
combustion products which helps prevent further contamination of team
members and responders and reduces cross-contamination of the transport
vehicle.
Proposed paragraph (q)(2)(iv) would require that each WERE and ESO
establish SOPs for vehicle operations that meet the requirements of
paragraph (l)(2) of this section, and include procedures for safely
driving vehicles during both non-emergency travel and emergency
response; criteria for actions to be taken at stop signs and signal
lights; vehicle speed; crossing intersections; driving on the opposite
side of the road with oncoming traffic; use of cross-over/turnaround
areas on divided highways; traversing railroad grade crossings; the use
of emergency warning devices; and the backing of vehicles. For backing
vehicles with obstructed views to the rear, the SOP would need to
include the use of at least one of the following: a spotter, a 360-
degree walk-around of the vehicle by the operator, or a back-up camera.
Other than for backing vehicles with obstructed views to the rear, OSHA
is not specifying the particular content of the vehicle-related SOPs.
The agency is aware that State vehicle laws often permit exceptions for
emergency vehicles which should be included in the SOPs; for example,
an allowance to exceed the posted speed limit by a certain amount.
WEREs and ESOs should consult the appropriate State laws when
considering development of their SOPs. While OSHA intends to provide
discretion to WEREs and ESOs in the crafting of most provisions of the
SOPs, it does not intend to allow WEREs and ESOs to avoid the mandatory
requirements in this proposal even if similar requirements are exempted
at the state or local level. For example, if a state or local law
exempts emergency vehicles from requirements related to addressing
obstructed views to the rear, OSHA's requirement in proposed paragraph
(q)(2)(iv) would still apply.
Under proposed paragraph (q)(2)(v), WEREs and ESOs would be
required to establish SOPs to provide for the use of standard protocols
and terminology for radio communications at all types of incidents.
Standard protocols should include instructions on, for example: the
operation of portable and mobile radios, with a preference for
identifying the unit being called first (receiver), then identifying
the sender; and the need for speaking in a calm voice and as clearly,
concisely, and precisely as possible. Protocols should also include
instructions on use of dispatch and incident scene/tactical radio
frequencies, use of the emergency alert button, ``Mayday'' situations,
and other special situations. The NIMS recommends, and OSHA agrees,
that acronyms, unique jargon, and codes should not be used in radio
communication (Document ID 0344, p. 57). NIMS and OSHA recommend, but
do not require, the use of common terms, plain language, and clear text
to help ensure all team members and responders can transmit and
understand all information being communicated. This would be
particularly helpful during incidents where multiple entities, such as
mutual aid WERTs and ESOs, are participating.
Paragraph (q)(2)(vi) of the proposed rule would require that WEREs
and ESOs establish procedures for operating at structures and locations
that are identified as, or determined to be, vacant, structurally
unsound, or otherwise unsafe for entry by team members or responders.
Structures such as these are typically unsafe to enter under normal
circumstances and are even more dangerous during an emergency incident,
particularly when
[[Page 7840]]
on fire. They pose a serious risk to team members and responders should
they enter, especially if there is a fire in the structure that could
obstruct or conceal structurally unsafe conditions. Structural collapse
and falls through unstable structures have been responsible for many
injuries and fatalities to team members and responders, as explained in
section II.A.I., Fatality and Injury Analysis. OSHA does not intend
that WEREs and ESOs develop SOPs that prohibit entry to these
structures (although WEREs and ESOs may choose to prohibit entry as
they see fit), but the SOPs should establish protocols for minimizing
risks and avoiding hazards during such entries.
Paragraph (q)(2)(vii) of the proposed rule would require each WERE
and ESO to establish SOPs for maintaining accountability and
coordinating evacuation of all team members and responders operating at
an incident that includes periodic accountability checks and reports;
procedures for orderly evacuation of team members and responders; and
procedures for rapid evacuation of team members and responders from
escalating situations, such as rapid growth of fire, impending
collapse, impending explosion, and acts of active violence against team
members and responders. Accountability means keeping track of each team
member and responder on an incident scene. The sooner a team member or
responder is identified as missing, the sooner efforts to find them
could be initiated and the more likely harm could be avoided, so
periodic accountability checks are important during incidents and
evacuations. OSHA is aware that there are various methods already in
use for maintaining accountability and performing periodic
accountability checks to ensure all team members and responders are
accounted for. Under this proposed provision, WEREs and ESOs would need
to establish procedures that best fit their operations and use them at
all incidents. The provision would also require SOPs for an orderly
evacuation, which typically include instructions such as pulling back
and regrouping, as well as procedures for rapid evacuation such as
drop-and-run.
Proposed paragraph (q)(2)(viii) would require that each WERE and
ESO establish SOPs for Mayday situations, such as when a team member or
responder becomes lost, trapped, injured, or ill. These SOPs would need
to cover the use of radio emergency alert buttons and implementation of
a rapid intervention crew (RIC) for immediate deployment to search and
rescue any missing, disoriented, injured, ill, lost, unaccounted-for,
or trapped team members or responders. The establishment of a RIC is
required by proposed paragraph (p)(7) of this section at each
structural fire incident where team members or responders are operating
in an IDLH atmosphere. The SOP would need to specify the minimum number
of team members or responders needed for the RIC, based on the size and
complexity of potential incidents; and a standard list of equipment to
be assembled by the RIC, for foreseeable incidents.
Proposed paragraph (q)(2)(ix) would require that each WERE and ESO
establish SOPs for a systematic approach to provide team members and
responders with medical monitoring and rehabilitation at emergency
incidents as needed, such as rest, medical treatment, rehydration
(fluid replacement), active warming or cooling, and protection from
extreme elements. While most emergency incidents are handled without
the need for medical monitoring and rehabilitation, when it is needed
procedures need to be in place to implement it quickly.
Provisions in proposed paragraph (q)(3) apply to ESOs only.
Proposed paragraph (q)(3)(i) would require that each ESO establish SOPs
for operating at an emergency incident on, or adjacent to, roadways and
highways. The SOP would need to cover setting up a safe work zone
beginning with proper placement of the first arriving ESO vehicle and
subsequent ESO vehicles, a means of coordination with law enforcement
and mutual aid WERTs or ESOs, and use of safety vests that have high
visibility and are reflective. Consideration should be given to using a
large vehicle, such as a fire engine/pumper or ladder truck, to
position as a blocker to prevent vehicles from driving into or through
an incident scene where team members or responders are operating. ESOs
should coordinate with law enforcement regarding authority over closing
travel lanes or the entire roadway or highway for the protection of
team members and responders. High-visibility and reflective vests help
drivers see team members and responders during daylight and at night,
thus reducing the risk of striking those operating on an incident.
Proposed paragraph (q)(3)(ii) would require the ESO to establish
SOPs for operating at incident scenes that are primarily related to law
enforcement, such as crime scenes, active shooters, and civil
disturbances. ESOs may be called upon to stand by at these types of
incidents in case they are needed, and as such the SOP should provide
direction for staging so that responders will not interfere with the
law enforcement activities or be in harm's way. Paragraph (q)(3)(ii)
identifies subjects that must each be addressed in the SOPs, but this
is not a comprehensive list of everything that an employer could
address in an SOP. For example, a typical SOP will prohibit team
members and responders from approaching or entering an incident scene
where there is ongoing violence, and require them to wait until law
enforcement has secured the scene and indicated that it is safe for
team members and responders to enter. Typical SOPs for these types of
incident scenes will also address whether team members and responders
need to be wearing identifying uniforms, ballistic vests, PPE,
reflective vests or other apparel to differentiate team members and
responders from law enforcement officers, bystanders and other
citizens.
Under proposed paragraph (q)(3)(iii), ESOs would be required to
establish a baseline set of procedures for conducting non-emergency
services. Rather than just requiring the ESO to address certain
subjects, these would be mandatory SOPs with specific minimum
requirements that could then be supplemented with additional detail at
the ESO's discretion: responders must present themselves in uniforms,
PPE, vests, or other apparel that clearly identifies them as fire/
rescue/EMS responders and must wear ballistic vests if they are
provided by the ESO and appropriate for the type of incident. In non-
emergency situations, team members and responders might not wear their
usual, identifiable PPE. However, it is important for them to be
identifiable by some means so as not to be confused with bystanders,
appear to be trespassers or intruders, or be mistaken for law
enforcement officers. Often, when family members or friends are unable
to contact an individual, they call 911 and ask for assistance in
checking on the well-being of the individual. These situations can pose
a risk to the responders because if they are not wearing something that
identifies them as responders, they may appear to be trespassers or
intruders. In these situations, the same concerns would dictate that
the SOP would need to require the wearing of ballistic vests if they
are provided by the ESO.
OSHA is also concerned with workplace violence experienced by
workers in various aspects of providing health care, both facility-
based and home-based. In Question (q)-1, OSHA seeks input on whether
the agency
[[Page 7841]]
should include requirements for SOPs regarding protections against
workplace violence for team members and responders, and for any data or
documentation to support or refute potential requirements. OSHA notes
that its regulatory agenda includes a separate rulemaking addressing
Workplace Violence against health care workers. While OSHA has not
published a proposed rule in that rulemaking, OSHA welcomes comments on
whether violence against health care emergency responders should be
addressed in this emergency response proposal in addition to that
Workplace Violence rulemaking, instead of in that rulemaking, or
primarily in that other rulemaking.
Paragraph (r) Post-Incident Analysis
Paragraph (r) of the proposed rule contains requirements for Post-
Incident Analysis (PIA). A PIA serves as a systematic review of
incident operations and activities, and determines whether programs,
plans, and procedures developed by the WERE or ESO perform as intended.
The PIA should be fact-based and focus on strengths, weaknesses,
lessons learned, and recommendations for improvement to enhance health
and safety protections for team members and responders. The primary
purpose of a PIA is to make improvements for the future.
Paragraph (r)(1) of the proposed rule would require the WERE and
ESO to promptly conduct a PIA to determine the effectiveness of the
WERT's or ESO's response after a significant event such as a large-
scale incident involving multiple WERTs or ESOs; a significant near-
miss incident; a team member, responder, or SSW injury or illness
requiring off-scene treatment; or a team member, responder, or SSW
fatality. OSHA believes that requiring a PIA after significant events
will help WEREs and ESOs identify strengths and challenge points where
improvements are needed in their systems, plans, and procedures. For
example, large-scale incidents may test the ESO's or WERE's systems,
plans, and procedures and reveal areas for improvement, while near-
misses, injuries, illnesses, or fatalities may signal inadequacies. The
requirement that the PIA take place promptly following the incident
ensures important information and observations are relayed before team
member's and responder's memories fade.
Proposed paragraph (r)(2) would require the WERE and ESO to include
in the PIA, at a minimum, a review and evaluation of the RMP, IMS,
PIPs, IAPs, and SOPs for accuracy and adequacy. The PIA would include
evaluation of available information and resources relating to the
significant event. It would include a basic review of the conditions
present upon arrival at the incident scene and any changes during the
incident, the actions taken by team members and responders, and any
effect of the conditions and actions on the safety and health of team
members or responders. The RMP would be evaluated for its effectiveness
regarding anticipated outcomes and to identify flaws or shortcomings
that need to be corrected. The IMS would be evaluated to determine if
it functioned as intended. While proposed paragraphs (m) and (n) of
this section would require the development of PIPs for certain types of
locations, there are many locations where incidents occur where PIPs
would not be required, and so would be non-existent. If a PIP was
developed, it would be evaluated to ensure it is up to date and
accurate, and if it functioned as intended or if revisions are needed.
The PIA may also indicate that a PIP is needed for a particular type of
location where one was not previously developed. SOPs would be reviewed
to determine if they were followed and effective, or if changes are
needed. IAPs are typically developed on the incident scene and may be
documented. A review of the IAP would determine its effectiveness and
whether different actions should be taken at future similar incidents.
OSHA anticipates that during a post-incident analysis conducted under
paragraph (r), WEREs and ESOs will involve team members and responders.
In Question (r)-1, OSHA is considering adding to (r)(2) a requirement
to permit team members, responders, and their representative to be
involved in the review and evaluation of the relevant plans as part of
the PIA and would like stakeholder input on whether to add this
requirement.
Proposed paragraph (r)(3) would require the WERE and ESO to
promptly identify and implement changes needed to the RMP, IMS, PIPs,
IAPs, and SOPs based on the lessons learned as a result of the PIA; or
if the recommended changes cannot be promptly implemented, the WERE or
ESO would need to develop a written timeline for implementation. Where
implementation cannot be done promptly, the proposed rule requires that
any needed changes be implemented as soon as feasible. The purpose of
the PIA is to determine what improvements are needed to the systems,
plans, and procedures for future success, and not for finding fault
with or to blame individuals. Changes and improvements would need to be
implemented in a timely manner so that such changes are in place before
the next significant incident. If prompt implementation is not
possible, a timeline for implementation as soon as feasible must be
followed to ensure protective measures for team members and responders
are put into place.
Paragraph (s) Program Evaluation
The ERP is intended to be a dynamic program, with components that
are periodically reviewed and updated. Periodic review and evaluation
are key to ensure that the program functions appropriately, adapts to
changing circumstances or new information as needed, and protects the
health and safety of team members or responders.
Paragraphs (s)(1) through (3) of the proposed rule would require
the WERE and ESO to evaluate the adequacy and effectiveness of the ERP
at least annually, and upon discovery of deficiencies, and document
when the evaluation(s) are conducted; determine if it was implemented
as designed or if modifications are necessary to correct deficiencies;
and identify and implement recommended changes to the ERP and provide a
written timeline for correcting identified deficiencies as soon as
feasible based on the program review, giving priority to
recommendations that most significantly affect team member or responder
safety and health. The agency recommends that all safety and health
programs, such as the ERP, be reviewed at least annually to evaluate
the program to ensure that it functions as intended, is effective in
controlling identified hazards, and makes progress toward established
safety and health goals and objectives (https://www.osha.gov/safety-management/program-evaluation). The proposed provisions would require a
review of the ERP be conducted to identify any revisions or updates
needed that had not been identified previously, such as a result of the
PIA required by proposed paragraph (r) of this section. There may be
discrepancies between how the ERP was designed and intended to function
versus how it was implemented or functions during actual use. Another
deficiency could be, for example, finding that a component of the ERP
was overlooked during development. Periodic evaluations are one method
of measuring how the program is being conducted. Any changes needed
based on the review would need to be implemented with priority given to
the recommendations that most significantly affect team member or
responder safety and health.
[[Page 7842]]
Paragraph (t) Severability
The severability provision, paragraph (t) of the proposed rule,
serves two purposes. First, it expresses OSHA's intent that the general
presumption of severability should be applied to this standard; i.e.,
if any section or provision of the proposed rule is held invalid or
unenforceable or is stayed or enjoined by any court of competent
jurisdiction, the remaining sections or provisions should remain
effective and operative. Second, the severability provision also serves
to express OSHA's judgment, based on its technical expertise, that each
individual section and provision of the proposed rule can continue to
sensibly function in the event that one or more sections or provisions
are invalidated, stayed, or enjoined; thus, the severance of any
provisions, sections, or applications of the standard will not render
the rule ineffective or unlawful as a whole. Consequently, the
remainder of the rule should be allowed to take effect.
With respect to this rulemaking, it is OSHA's intent that all
provisions and sections be considered severable. In this regard, the
agency intends that: (1) in the event that any provision within a
section of the rule is stayed, enjoined, or invalidated, all remaining
provisions within shall remain effective and operative; (2) in the
event that any whole section of the rule is stayed, enjoined, or
invalidated, all remaining sections shall remain effective and
operative; and (3) in the event that any application of a provision is
stayed, enjoined, or invalidated, the provision shall be construed so
as to continue to give the maximum effect to the provision permitted by
law.
Although OSHA always intends for a presumption of severability to
be applied to its standards, the agency has opted to include an
explicit severability clause in this standard to remove any potential
for doubt as to its intent. OSHA believes that this clarity is useful
because of the multilayered programmatic approach to risk reduction it
proposes here. The agency has preliminarily determined that the suite
of programmatic requirements described in the Summary and Explanation
of the Proposed Rule, section V. of this preamble, is reasonably
necessary and appropriate to protect emergency responders from the
significant risks posed by their workplace activities. While OSHA
preliminarily finds that these requirements substantially reduce
emergency responders' risk of occupational injury and illness when
implemented together, the agency also believes that each individual
requirement will independently reduce this risk to some extent, and
that each requirement added to the first will result in a progressively
greater reduction of risk. Therefore, it is OSHA's intent to have as
many protective measures implemented in as many workplaces as possible
to reduce emergency responders' risk of occupational exposure to
injury, illness, and death. Thus, should a court of competent
jurisdiction determine that any provision or section of this standard
is invalid on its face or as applied, the court should presume that
OSHA would have issued the remainder of the standard without the
invalidated provision(s) or application(s). Similarly, should a court
of competent jurisdiction determine that any provision, section, or
application of this standard is required to be stayed or enjoined, the
court should presume that OSHA intends for the remainder of the
standard to take effect. See, e.g., Am. Dental Ass'n v. Martin, 984
F.2d 823, 830-31 (7th Cir. 1993) (affirming and allowing most of OSHA's
bloodborne pathogens standard to take effect while vacating application
of the standard to certain employers).
E. Section 1910.157 Portable Fire Extinguishers
OSHA is proposing to update 29 CFR 1910.157, Portable Fire
Extinguishers, to include Class K fires and Class K portable fire
extinguishers, as defined in proposed 29 CFR 1910.155(c), and to update
this standard, including revisions to Table L-1, to conform with the
current national consensus standard. The existing standard was last
updated in 2002, just as Class K was entering into consideration in the
national consensus standard, NFPA 10, Portable Fire Extinguishers.
F. Section 1910.158 Standpipe Hose Systems
As discussed previously, proposed Sec. 1910.156(i)(2) requires
each WERE to ensure that fire hose connections and fittings are
compatible with, or adapters are provided for, firefighting
infrastructure such as fire hydrants, sprinkler system and standpipe
system inlet connections, and fire hose valves (FHV). Existing 29 CFR
1910.158, which addresses standpipe and hose systems, does not require
fire hose threads to be compatible with the hoses used by the local
fire department. For the same reasons discussed in the summary and
explanation for Sec. 1910.156(i)(2), OSHA is proposing to add a new
provision to 29 CFR 1910.158, at paragraph (c)(2)(iii), requiring the
employer to ensure that standpipe system inlet connections and fittings
are compatible with, or adapters are provided for, the fire hose
couplings used by the fire department(s) or Workplace Emergency
Response Team(s) that pump water into the standpipe system through the
connections or fittings.
G. Section 1910.159 Automatic Sprinkler Systems
Existing 29 CFR 1910.159, which includes requirements for automatic
sprinkler systems, does not require fire hose threads on inlet
connections for automatic sprinkler systems to be compatible with the
hoses used by the local fire department. For the same reasons discussed
in the summary and explanation for Sec. 1910.156(i)(2), OSHA is
proposing to add a new provision, 29 CFR 1910.159(c)(12), requiring the
employer to ensure that sprinkler system inlet connections and fittings
are compatible with, or adapters are provided for, the fire hose
couplings used by the fire department(s) or Workplace Emergency
Response Team(s) that pump water into the sprinkler system through the
connections or fittings.
VI. Technological Feasibility
As discussed in Pertinent Legal Authority (Section III), OSHA must
prove, by substantial evidence in the rulemaking record, that its
standards are technologically and economically feasible, which the
Supreme Court has defined as ``capable of being done, executed, or
effected'' (American Textile Mfrs. Inst. v. Donovan (Cotton Dust), 452
U.S. 490, 508-09 (1981)). A standard is technologically feasible if the
protective measures it requires already exist, can be brought into
existence with available technology, or can be created with technology
that can reasonably be expected to be developed (Am. Iron & Steel Inst.
v. Occupational Safety & Health Admin. (Lead II), 939 F.2d 975, 980
(D.C. Cir. 1991); United Steelworkers v. Marshall (Lead I), 647 F.2d
1189, 1272 (D.C. Cir, 1980), cert. denied, 453 U.S. 913 (1981)).
For this proposed rule, OSHA evaluated each proposed provision to
identify those that required the implementation of protective measures
or addressed facility and equipment-related aspects of emergency
response, as opposed to those that established programs, processes, or
procedures. OSHA also reviewed the emergency response safety practices
currently in place across industry and the recommended practices of
industry trade associations and standards-setting organizations,
including NFPA standards. The NFPA standards provide
[[Page 7843]]
guidelines for industry and are generally compatible with current
industry practices and technology. OSHA did not find any barriers to
technological feasibility with regard to the protective measures,
equipment, or facilities required to comply with these provisions. This
subsection presents the details of this conclusion with regard to
specific requirements for equipment and facilities.
The proposed rule contains requirements for ensuring that team
members and responders who respond to emergency incidents are prepared
for the wide variety of situations where they may be called upon to
provide service. The provisions of the proposed rule are largely
programmatic and require employers to implement a written Emergency
Response Program (ERP) that describes the employer's basic
organizational structure and outlines how the employer is addressing
the provisions of the rule. As part of the ERP, the proposed rule
requires employers to develop a Risk Management Plan (paragraph (f)),
conduct pre-incident planning (paragraphs (m) and (n)), and develop
standard operating procedures (paragraph (q)). Other provisions require
employers to involve employees in various phases of the program
(paragraph (e)), conduct a post-incident analysis after major incidents
(paragraph (r)), and evaluate the program periodically (paragraph (s);
or outline the requirements for medical and physical fitness (paragraph
(g)). These provisions do not include protective measures requiring the
use of specific equipment or technology and therefore do not pose a
technological feasibility concern.
Paragraph (h) of the proposed rule requires that team members and
responders receive training to establish the minimum knowledge and
skills necessary to participate in emergency operations, based on the
tiers of team members and responders and the type and level of
service(s) established in paragraphs (c) and (d), including training on
a number of specific topics. It also requires the employer to provide
initial training, on-going training, refresher training, and
professional development for each team member and responder, including
periodic skills checks to verify the minimum proficiency of team
members and responders. Proposed paragraph (h) does not mandate a
particular form of training nor require the use of particular
technology. Moreover, the proposed requirements are not substantially
different from the requirements of existing NFPA consensus standards
(NFPA 1001, NFPA 1002, NFPA 1005, NFPA 1006, NFPA 1021, NFPA 1081, NFPA
1140, NFPA 1407, NFPA 1500, NFPA 1581), demonstrating that the training
required under the proposed standard has widespread acceptance
throughout the industry. Accordingly, OSHA has preliminarily determined
that such training will not present technological feasibility concerns.
Paragraph (i) of the proposed rule requires WEREs to ensure that
their facilities comply with 29 CFR part 1910, subpart E--Exit Routes
and Emergency Planning, provide facilities for decontamination,
disinfection, cleaning and storage of PPE and equipment, and ensure
that facilities are protected with fire protection systems in
accordance with 29 CFR part 1910, subpart L--Fire Protection. This
paragraph also contains requirements related to fire hose connections
and fire hose valves. The majority of these provisions are already
addressed by NFPA 1581 or required by existing OSHA standards. With
regard to paragraphs (i)(1)(i) and (iii), and (i)(2), the proposed rule
does not substantially modify existing requirements or create new
requirements; compliance with the existing standards under subpart E
and subpart L would generally also meet the requirements of the
proposed standard. Paragraph (i)(1)(ii) requires facilities for
decontamination, disinfection, cleaning, and storage of PPE and
equipment. Similar requirements exist under the HAZWOPER standard (29
CFR 1910.120(k)(8)) and the sanitation standard (29 CFR 1910.141(e)).
The latter requires employers to provide change rooms equipped with
storage facilities whenever employees are required to wear protective
clothing because of possible contamination with toxic materials.
Employer compliance with these existing provisions demonstrates that
this kind of facility is feasible for employers to provide.
Furthermore, the proposed rule does not mandate which of a wide variety
of currently used and readily available materials must be used to meet
the performance-oriented criteria for decontamination and storage.
Based on these considerations, OSHA has preliminary determined that the
proposed requirements in paragraph (i) are technologically feasible.
Paragraph (j)(1) of the proposed rule similarly requires ESOs to
provide facilities for decontamination, disinfection, cleaning, and
storage of PPE and equipment, and to comply with 29 CFR part 1910,
subpart E--Exit Routes and Emergency Planning and subpart L--Fire
Protection. Paragraph (j)(1)(iii) also requires employers to ensure
employees are protected from hazards associated with the use of slide
poles. The requirements related to slide poles are based on NFPA 1500
section 10.1.8, which requires that openings around slide poles be
secured by a cover, enclosure or other means to prevent someone from
accidentally falling through the hole. As discussed above regarding
paragraph (i), the majority of these provisions are already addressed
in existing NFPA standards or required by existing OSHA standards.
Paragraph (j)(2) addresses sleeping and living areas of the ESO's
facility and requires the use of interconnected hard-wired smoke alarms
with battery back-up on all levels of the facility and in sleeping
areas. In addition, it requires that all sleeping and living areas be
equipped with a functioning carbon monoxide detector and be maintained
free from the contamination of exhaust emissions, and that the new
construction of sleeping quarters have sprinkler systems installed.
Employers must also ensure that contaminated PPE is not worn or stored
in sleeping and living areas. OSHA based the requirements in this
paragraph on NFPA 1581, section 10. Because the requirements of the
provision are not substantially different from those in the NFPA
standard, and because the equipment required (smoke alarms, carbon
monoxide detectors, and sprinkler systems) is readily available on the
market, OSHA has preliminarily determined that these requirements are
technologically feasible.
Paragraph (k)(1) of the proposed rule contains design,
manufacturing, inspection, testing, and access requirements for
equipment used in emergency operations. The requirements applicable to
equipment in paragraph (k)(1) of the proposed rule reflect common
industry safety practices, including those found in NFPA 1500, and
currently available equipment meets these criteria. The proposed
provisions generally do not require changes in current technology or
practices for employers who use standard equipment and follow standard
safety procedures.
Paragraph (k)(2) addresses PPE used by team members and responders.
The provision expands on the existing requirements under 29 CFR part
1910, subpart I,Personal Protective Equipment by requiring the employer
to ensure that PPE complies with certain relevant NFPA and ANSI
consensus standards; pay for all required protective equipment without
exceptions; implement procedures to ensure all protective equipment,
not just respiratory protection, is
[[Page 7844]]
decontaminated, cleaned, cared for, inspected and maintained, in
accordance with the manufacturer's instructions; and ensure air-
purifying respirators are not used in IDLH atmospheres and are only
used for those contaminants that NIOSH certifies them against.
Paragraph (k)(3) requires decontamination or containment of
contaminated PPE and equipment before leaving an incident scene, where
feasible, as well as ensuring employees are not exposed to contaminated
PPE in passenger compartments of vehicles.
The proposed rule's PPE requirements expand on existing OSHA
requirements, incorporate widely accepted consensus standards and, as
with the equipment requirements discussed above, do not require changes
in current technology. The proposed rule allows the employer to choose
any of a wide variety of currently used and readily available properly
fitting equipment designs to meet the performance-oriented criteria,
based on the hazards their team members and responders may encounter.
With respect to the decontamination and cleaning requirements, the PPE
must be decontaminated and cleaned according to the manufacturer's
instructions. Such instructions are presumptively technologically
feasible. Decontamination and cleaning typically involve methods such
as rinsing with a hose to reduce or dilute liquid contaminants or
rinsing and brushing to displace solid particulate matter. In any
situation where PPE and equipment cannot be appropriately cleaned, it
can be replaced. Based on these considerations, OSHA preliminarily
concludes that the proposed requirements for equipment and PPE are
technologically feasible.
Paragraph (l) includes requirements for the inspection, repair, and
maintenance of vehicles in paragraph (l)(1) and operation of vehicles
in paragraph (l)(2). All provisions contained in proposed paragraph (l)
establish program elements with the exception of paragraph (l)(1)(iii),
which requires the use of seats, and seatbelts or a vehicle safety
harness where equipped; paragraph (l)(2)(vii), which requires the use
of a safety harness when riding in a standing position; and paragraph
(l)(2)(x), which requires a positive latching enclosure for storage of
tools, equipment, or respiratory protection carried within enclosed
seating areas of vehicles. OSHA drew the requirements for seats, seat
belts, safety harnesses, and the securing of tools and equipment from
NFPA 1500, 1901 and 1911; indicating that industry already adopted the
requirements as a feasible industry practice using existing technology.
The proposed requirements for use of seats and safety belts reflect
basic safety considerations already adopted by manufacturers of
equipment and by employers. Readily available and currently used
technology is capable of meeting these requirements. Where vehicles are
designed, built, and intended for use without seat belts or vehicle
safety harnesses, the employer is not required to comply with the
requirement in paragraph (l)(1)(iii).
Paragraph (p) of the proposed rule contains requirements for
Emergency Incident Operations. In addition to outlining various roles
and responsibilities, paragraph (p) requires employers to establish
hazard control zones, implement traffic safety procedures, establish
site communications, and establish incident safety procedures such as
the use of protective equipment and minimum staffing levels for certain
operations. Most of the provisions in paragraph (p) establish program
and/or policy elements and procedures and compliance with these
provisions does not require any additional or new technology.
Paragraph (p)(5) contains requirements for the use of effective
communication equipment, which can be satisfied with currently
available compatible communication devices or radio technology.
Moreover, the requirements in paragraph (p) are similar to existing
OSHA requirements for certain hazardous chemical response activities in
the HAZWOPER standard (29 CFR 1910.120) and to NFPA consensus codes,
indicating that industry has already adopted the requirements as an
industry practice using existing technology. Therefore, OSHA has
preliminarily determined that the requirements of paragraph (p) can be
met with existing technology.
In conclusion, the proposed rule is largely programmatic and allows
the employer to choose any of a wide variety of currently used and
readily available materials, equipment, and procedures to meet the
performance-oriented criteria. For the few provisions where OSHA has
specified requirements for equipment, the requirements are based on
existing consensus standards, incorporate existing OSHA standards, or
are similar to existing OSHA requirements in other standards. Both
existing and new requirements can be met with readily available and
currently used equipment and technology. Accordingly, OSHA has
preliminarily determined that the proposed rule is technologically
feasible.
VII. Preliminary Economic Analysis
Introduction
OSHA has examined the impacts of this rulemaking as required by
Executive Order 12866 on Regulatory Planning and Review (September 30,
1993), Executive Order 13563 on Improving Regulation and Regulatory
Review (January 18, 2011), Executive Order 14094 entitled ``Modernizing
Regulatory Review'' (April 6, 2023), the Regulatory Flexibility Act
(RFA) (September 19, 1980, Pub. L. 96-354), section 202 of the Unfunded
Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), and
Executive Order 13132 on Federalism (August 4, 1999).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity).\7\ The
Executive Order 14094 entitled ``Modernizing Regulatory Review''
(hereinafter, the Modernizing E.O.) amends section 3(f)(1) of Executive
Order 12866 (Regulatory Planning and Review). The amended section 3(f)
of Executive Order 12866 defines a ``significant regulatory action'' as
an action that is likely to result in a rule: (1) having an annual
effect on the economy of $200 million or more in any 1 year (adjusted
every 3 years by the Administrator of OIRA for changes in gross
domestic product), or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, territorial, or
tribal governments or communities; (2) creating a serious inconsistency
or otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impacts of entitlement
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raise legal or policy issues for which
centralized review would meaningfully further the President's
priorities or the principles set forth in this Executive order, as
specifically authorized in a timely manner by the Administrator of OIRA
in each case.
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\7\ While OSHA presents the following analysis under the
requirements of Executive Orders 12866 and 13563, the agency
ultimately cannot simply maximize net benefits due to the overriding
legal requirements in the OSH Act.
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A regulatory impact analysis (RIA) must be prepared for major rules
with significant regulatory action/s and/or with significant effects as
per section
[[Page 7845]]
3(f)(1) ($200 million or more in any 1 year). Based on our estimates,
OMB's Office of Information and Regulatory Affairs has determined this
rulemaking is significant per section 3(f)(1) as measured by the $200
million or more in any 1 year. Accordingly, OSHA has prepared this
Preliminary Economic Analysis \8\ that to the best of the agency's
ability presents the costs and benefits of the rulemaking. Therefore,
OMB has reviewed this proposed regulation, and the agency has provided
the following assessment of its impact.
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\8\ OSHA historically has referred to their regulatory impact
analyses as Economic Analyses in part because performing an analysis
of economic feasibility is a core legal function of their purpose.
But a PEA (or Final Economic Analysis) should be understood as
including an RIA.
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A. Market Failure and Need for Regulation
I. Introduction
Executive Order 12866 (58 FR 51735 (September 30, 1993)) and
Executive Order 13563 (76 FR 3821 (January 18, 2011)) direct regulatory
agencies to assess whether, from a legal or an economic view, a Federal
regulation is needed to the extent it is not ``required by law.''
Executive Order 12866 states: ``Federal agencies should promulgate only
such regulations as are required by law, are necessary to interpret the
law, or are made necessary by compelling public need, such as material
failures of private markets to protect or improve the health and safety
of the public, the environment, or the well-being of the American
people.'' This Executive order further requires that each agency
``identify the problem that it intends to address (including, where
applicable, the failures of private markets or public institutions that
warrant new agency action)'' and instructs agencies to ``identify and
assess available alternatives to direct regulation.'' (58 FR 51735
(September 30, 1993)). This section addresses those issues of market
failure and alternatives to regulation as directed by the Executive
order.
OSHA is proposing to replace its existing Fire Brigades standard,
29 CFR 1910.156, with a new standard to fully address the workplace
hazards faced by firefighters and other emergency responders because,
based on the evidence in the record, there is a compelling public need
for a stricter, comprehensive standard under OSH Act legal standards.
OSHA presents the legal standards governing this rule and its
preliminary findings and conclusions supporting the proposed rule in
section II. of the Preamble, Pertinent Legal Authority, and throughout
other sections of the Preamble. Even a perfectly functioning market
maximizes efficient allocation of goods and services at the expense of
other important social values to which the market (as reflected in the
collective actions of its participants) is indifferent or undervalues.
In such cases, government intervention might be justified to address a
compelling public need. The history and enactment of the OSH Act
indicate a Congressional view that American markets undervalued
occupational safety and health when it set forth the Act's protective
purposes and authorized the Secretary of Labor to promulgate
occupational safety and health standards.
OSHA has preliminarily determined that emergency responders are
exposed to occupational hazards that place them at a significant risk
of serious injury, material impairment of health and functional
capacity, and death. Emergency responders suffer higher incidence and
death rates of heart attacks and some types of cancers than the general
population, high rates of fatal and nonfatal injuries, and high rates
of suicide and other adverse behavioral health outcomes. OSHA's
proposed rule would reduce the number of fatalities from certain types
of cancer, fatal injuries, and suicide by an estimated 61 deaths per
year and would prevent approximately 11,015 nonfatal injuries per year.
These benefits show the need to protect emergency responders from the
hazards faced while on duty.
OSHA has preliminarily determined that the standard is
technologically and economically feasible (see Section V of the
preamble and Chapter VI of this PEA) and not only finds that this
proposed rule is necessary and appropriate to ensure the safety and
health of emergency responders, as required by the OSH Act, but also
demonstrates, in this section, that this rulemaking corrects a market
failure in which private and public labor markets fail to adequately
protect human health. Although a majority of emergency responders are
employed in the public sector, many are not, and OSHA is mandated to
ensure, so far as possible, a critical minimum level of safety for
these workers. In addition, as discussed, most of these issues pertain
to the public sector labor market as well which, left unchecked, could
undermine the efficiency of even the labor market as it affects
government jobs. Further, in passing section 18 of the OSH Act,
Congress determined that public sector employees in states with OSHA-
approved State Plans should receive the same protections as private
sector employees under those State Plans who, in turn, must receive
protections at least as effective as those provided by Federal
standards (29 U.S.C. 667(c)(2), (6)). In doing so, Congress determined
that protections for these public sector workers should not be left
solely to the public sector labor market.
As discussed in this chapter, OSHA concludes there is a
demonstrable failure of labor markets to protect workers from exposure
to unnecessary risks from emergency response activity. In making this
statement, the agency recognizes that many firms and governments have
responded to the risks to emergency responders by implementing control
programs for their workers. In fact, some existing control programs go
beyond the requirements of the proposed rule, and information that OSHA
has collected suggests that a significant percentage of all employees
in workplaces where emergency responder risks are present are currently
receiving at least some level of protection against the risks posed by
emergency response activities. For these organizations and these
workers, the economic incentives provided by the current labor market
appears to be working effectively. Nevertheless, the effectiveness of
labor markets in providing the level of worker health and safety
required by the OSH Act is not universal, as many other employers in
the same sectors fail to provide their workers with equivalent levels
of protection against emergency response hazards, as evidenced by the
documented injuries, illnesses, and deaths discussed throughout this
preamble. Accordingly, the general availability of adequate protections
speaks to the feasibility of the standard, not necessarily to the lack
of need.
In this case, OSHA has preliminarily determined that, despite
existing OSHA standards, new protections are needed to ensure the
safety and health of emergency responders. If markets worked
efficiently there would be no need for either the existing standards or
a new one. This section is devoted to showing that markets fail with
respect to optimal risk for occupational exposure to emergency response
hazards. Other sections of this preamble address whether, given that
markets fail, a new regulation is needed to replace the existing
regulation.
The discussion below considers why labor markets, as well as
information dissemination programs, workers' compensation systems, and
tort liability options, each may fail to protect workers from emergency
response hazards, resulting in the need for a more
[[Page 7846]]
protective OSHA emergency response rule.
II. Labor Market Imperfections
Under suitable conditions, a market system is economically
efficient in the following sense: resources are allocated where they
are most highly valued; the appropriate mix of goods and services,
embodying the desired bundle of characteristics, is produced; and
further improvements in the welfare of any member of society cannot be
attained without making at least one other member worse off.
Economic theory, supported by empirical data, argues that, in the
job market, employers and workers bargain over the conditions of
employment, including not only salary and other worker benefits, but
also occupational risks to worker safety and health. Employers compete
among themselves to attract workers. In order to induce workers to
accept hazardous jobs, employers must offer a higher salary--termed a
``wage premium for risk'' or ``risk premium'' for short--to compensate
for the additional job risk.\9\ Because employers must pay higher wages
for more hazardous work, they have an incentive to make the workplace
safer by making safety-related investments in equipment and training or
by using more costly but safer work practices. According to economic
theory, the operation of the job market will provide the optimal level
of occupational risk when each employer's additional cost for job
safety just equals the avoided payout in risk premiums to workers. The
theory assumes that each employer is indifferent to whether it pays the
higher wage or pays for a safer or more healthful workplace but will
opt for whichever costs less or improves productivity more.
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\9\ The concept of compensating wage differentials for
undesirable job characteristics, including occupational hazards,
goes back to Adam Smith's The Wealth of Nations, which was
originally published in 1776.
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For the job market to function in a way that leads to optimal
levels of occupational risk, three conditions must be satisfied. First,
workers and employers must have the same, perfect information--that is,
they must be fully informed about their workplace options, including
job hazards, or be able to less costly acquire such information.
Second, participants in the job market must directly bear all the costs
and obtain all the benefits of their actions. In other words, none of
the direct impacts of job market transactions can be externalized to
outside parties. Third, the relevant job market must be perfectly
competitive, which means it must contain such a large number of
employers and such a large number of workers that no individual
economic agent is able to influence the risk-adjusted wage.
The discussion below examines (1) imperfect information, (2)
externalities, and (3) imperfect competition in the job market in more
detail, with particular emphasis on worker exposure to emergency
response hazards, as appropriate.\10\
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\10\ The section on workers' compensation insurance later in
this chapter identifies and discusses other related market
imperfections.
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A. Imperfect Information
As described below, imperfect information about job hazards is
present at several levels that reinforce each other: employers
frequently lack knowledge about workplace hazards and how to reduce
them; workers are often unaware of the workplace health and safety
risks to which they are exposed; and workers typically have difficulty
in understanding the risk information they are able to obtain.
Imperfect information at these various levels has likely impeded the
efficient operation of the job market regarding workplace risk because
workers--unaware of job hazards--do not seek, or receive, full
compensation for the risks they bear. As a result, even if employers
have full knowledge about the risk, their employees do not. If
employees do not have full knowledge about the risk, employers have
less incentive to invest in safer working conditions than they would in
the presence of full information since wages are suppressed below what
full knowledge by the workers would yield.
(i) Lack of Employer Information
In the absence of regulation, employers may lack economic
incentives to optimally identify the health risks that their workers
face.\11\ Furthermore, employers have an economic incentive to withhold
the information they do possess about job hazards from their workers,
whose response would be to demand safe working conditions or higher
wages to compensate for the risk. Relatedly, in the absence of
regulation, employers, as well as third parties, may have fewer
incentives to develop new technological solutions to protect workers on
the job. For evidence of regulatory stimuli inducing innovations to
improve worker health and safety, see, for example, Ashford, Ayers, and
Stone (1985) OSHA-2010-0034, Document ID 0536, as well as more recent
evidence from OSHA's regulatory reviews under section 610 of the RFA (5
U.S.C. 610).
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\11\ Other private parties may lack sufficient incentives to
invest resources to collect and analyze occupational risk data due
to the public-good nature of the information. See Ashford and
Caldart (1996), OSHA-2010-0034, Document ID 0538, p. 234.
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As a result, without regulation, many employers are unlikely to
make themselves aware of the magnitude of emergency responder safety
and health risks in the workplace or of the availability of effective
ways of ameliorating or eliminating these risks.
(ii) Lack of Worker Information About Health Hazards
Although some of the safety risks in emergency response may be
somewhat apparent to the employee because they are obvious (e.g., a
fire, a hole in the floor, or falling objects), the occupational health
hazards are less obvious and well known to employers and employees.
Whereas the relationship between a workplace accident and the resultant
injury is usually both immediate and visible, the connection between
exposure to an occupational health hazard and the resultant disease may
not be. Even though falls and physical trauma occur in everyday life,
it is easier to know when the injuries occurred on the job than to know
the cause of a cancer that may be associated with occupational exposure
to a toxic substance. Some diseases have multiple potential causes and
may be the result of synergistic effects, thus creating difficulties in
ascertaining whether, in some specific situations, a worker's disease
is job-related rather than an ``ordinary disease of life'' resulting
from genetic, physiological, lifestyle, or non-occupational
environmental factors.\12\
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\12\ It is true that, in rare circumstances, the cause of a
disease is unique or nearly so. Examples of such ``signature''
diseases include mesothelioma and angiosarcoma, which are caused by
exposure to asbestos and vinyl chloride, respectively. In the case
of exposure to combustion products the toxic exposure is almost
inevitably a complex mixture of substances lacking any clear
signature.
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Compounding this causation problem is the fact that there is
frequently a long latency period between exposure to the occupational
health hazard and the manifestation of the resultant disease.
Consequently, without specialized knowledge, the connection between
work conditions and a chronic disease is more easily missed than an
acute injury and more easily attributed to non-occupational exposures.
Furthermore, by the time that signs and symptoms of occupational health
problems arise, it is often too late for workers to make use of that
information. Therefore, any
[[Page 7847]]
incentive an employer has to invest in occupational disease prevention
is diluted by the lengthy passage of time between exposure and disease
manifestation (by which time the employees may be working elsewhere or
retired) and the various uncertainties regarding causation in any
specific case. Markets cannot adequately address this risk of latent
occupational disease if employees and employers are unaware of the
changes in risk brought about by an employer's actions. Even if
employees and employers are aware of a risk, the employer may have
limited economic motivation to install controls unless the employees
are able to accurately assess the effects of those controls on their
occupational risks.
Accordingly, even if workers have general knowledge that they are
at increased risk of disease from occupational exposure, it is
unrealistic to expect, absent mandatory regulatory requirements, that
they know the calculated risks associated with different exposure
levels or the exposures they are experiencing or accumulated in the
past, much less that they can use that knowledge to negotiate a
significant reduction in exposures and other protections or (if more
desirable) trade it for greater hazard pay. And without any way to
enforce standards agreed to by an employer, employees would have no way
to check that they are getting the benefit of their bargain or hold the
employer to it. Another reason that imperfect information impairs a
worker's decision-making ability is that workers are unlikely to know
the workplace risks associated with their particular employer, or with
one potential employer versus another, even if the types of work
assignments are the same.
Both experimental studies and observed market behavior suggest that
individuals have considerable difficulty rationally processing
information about low-probability, high-consequence events such as
occupational fatalities and long-term disabilities.\13\ For example,
many individuals may not be able to comprehend or rationally act on
risk information when it is presented, as risk analysis often is, in
mathematical terms--a \1/1\,000 versus a 1/10,000 versus a 1/100,000
annual risk of death from occupational causes.
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\13\ The literature documenting risk perception problems is
extensive. See, in particular, the classic work of Tversky and
Kahneman (1974), OSHA-2010-0034, Document ID 1675. For a recent
summary of risk perception problems and their causes, see Thaler and
Sunstein (2008), OSHA-2010-0034, Document ID 1697, pp. 17-37.
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Of course, in the abstract, many of the problems that employers and
workers face in obtaining and processing occupational risk can lead
workers to overestimate as well as underestimate the risk. However, in
the case of toxic exposure, the related diseases--including various
forms of cancer--may be sufficiently unfamiliar and unobvious that many
workers may be completely unaware of the risk, and therefore will
underestimate it.
In addition, for markets to optimally address this risk, employees
need to be aware of the changes in risk brought about by an employer's
actions. Even if employees are aware of a risk, the employer may have
limited economic motivation to install controls unless the employees
are able to accurately assess the effects of those controls on their
occupational risks. Furthermore, there is substantial evidence that
most individuals are unrealistically optimistic, even in high-stakes,
high-risk situations and even if they are aware of the statistical
risks (Thaler and Sunstein, 2009, OSHA-2010-0034, Document ID 1697, pp.
31-33). Although the agency lacks specific evidence on the effect of
these attitudes on assessing occupational safety and health risks, this
suggests that some workers underestimate their own risk of work-related
injury, disease, or fatality and, therefore, fail to demand adequate
compensation for bearing those risks. Finally, the difficulty that
workers have in distinguishing marginal differences in risk at
alternative worksites, both within an industry and across industries,
creates a disincentive for employers to incur the costs of reducing
workplace risk.
B. Externalities
Externalities arise when an economic transaction generates direct
positive or negative spillover effects on third parties not involved in
the transaction. The resulting spillover effect, which leads to a
divergence between private and social costs, undermines the efficient
allocation of resources in the market because the market is imparting
inaccurate cost and price signals to the transacting parties. Applied
to the job market, when costs are externalized, they are not reflected
in the decisions that employers and workers make--leading to allocative
distortions in that market.
Negative externalities exist in the job market because many of the
costs of occupational injury and illness are borne by parties other
than individual employers or workers. The major source of these
negative externalities, for chronic occupational diseases, is the
occupational illness cost that workers' compensation does not
cover.\14\ Workers and their employers often bear only a portion of
these costs. Outside of workers' compensation, workers incapacitated by
an occupational injury or illness and their families often receive
health care, rehabilitation, retraining, direct income maintenance, or
life insurance benefits, much of which are paid for by society through
Social Security and other social insurance and social welfare
programs.\15\ Moreover, specifically in the case of Emergency Response,
volunteer responders may or may not be covered by Workers Compensation
in any form.\16\
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\14\ Workers' compensation is discussed separately later in this
chapter. As described there, in many cases (particularly for smaller
firms), the premiums that an individual employer pays for workers'
compensation are only loosely related, or unrelated, to the
occupational risks that that employer's workers bear. However,
workers' compensation does not cover chronic occupational diseases
in most instances. For that reason, negative externalities tend to
be a more significant issue in the case of occupational exposures
that result in diseases.
\15\ In addition, many occupational injuries and most
occupational illnesses are not processed through the workers'
compensation system at all. In these instances, workers receive care
from their own private physician rather than from their employer's
physician.
\16\ This depends on the individual state law and how the ESO is
organized. See https://workinjurysource.com/workers-compensation-for-volunteer-firefighters/.
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Furthermore, substantial portions of the medical care system in the
United States are heavily subsidized by the government so that part of
the medical cost of treating injured or ill workers is paid for by the
rest of society (Nichols and Zeckhauser, 1977, Docket OSHA-2010-0034,
Document ID 0834, pp. 44-45). To the extent that employers and workers
do not bear the full costs of occupational injury and illness, they
will ignore these externalized costs in their job-market negotiations.
The result may be an inefficiently high level of occupational risk.
An extreme case of ``spillovers'' is one of a ``public good'':
defined as a commodity such that if it is provided to one, it is zero
cost for another individual to also ``consume'' the commodity. One
classic example is national defense: a defense umbrella helps protect
everyone in a country, though at no charge to any particular person.
Marginal cost pricing can break down and there can be pressure for
other institutional arrangements such as voting mechanisms and economic
``clubs.'' \17\ OMB's circular A-4
[[Page 7848]]
specifically notes that public good aspects can be a valid reason to
turn to a regulation. That document discusses various types of market
failure as being a possible reason for regulation, stating: ```Public
goods,' such as defense or basic scientific research, are goods where
provision of the good to some individuals cannot occur without
providing the same level of benefits free of charge to other
individuals'' (OMB Circular A-4, Regulatory Analysis (Sept. 17, 2003),
p. 4, available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf).
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\17\ The original classic reference on public goods is ``The
Pure Theory of Public Expenditure,'' Samuelson, Paul A., The Review
of Economics and Statistics, Nov. 1954. For related ``club theory,''
the original reference is ``An Economic Theory of Clubs,'' Buchanan,
James M., Economica, Feb., 1965.
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With respect to this proposed rule, the specific nature of
emergency response means that in this industry, even more so than in
others, ordinary market mechanisms do not operate to ensure an optimal
level of employee safety and health. Fires and other types of
emergencies are by their nature unplanned, and there would be no
opportunity, for example, for a fire department to bargain with the
owner of a burning building about the level of toxicity of the burning
materials. Accordingly, fire departments and other emergency response
employers have a prima facie case that regulation can be a replacement
for a missing private market.
(C) Imperfect Competition
In the idealized job market, the actions of large numbers of buyers
and sellers of labor services establish the market-clearing, risk-
compensated wage, so that individual employers and workers effectively
take that wage as given. In reality, however, the job market is not one
market but many markets differentiated by location, occupation, and
other factors; entrants in the labor market face search frictions
because of limited information on employment options; and, furthermore,
in wage negotiations with their own workers, employers are typically in
an advantageous position relative to all other potential employers. In
these situations, discussed below, employers may have sufficient power
to influence or to determine the wage their workers receive. This may
undermine the conditions necessary for perfect competition and can
result in inadequate compensation for workers exposed to workplace
hazards. Significant unemployment levels, local or national, may also
undermine the conditions necessary for adequate compensation for
exposure to workplace hazards.
Beyond the classic--but relatively rare--example of a town
dominated by a single company, there is significant evidence that some
employers throughout the economy are not wage-takers but, rather, face
upward-sloping labor supply curves and enjoy some market power in
setting wages and other conditions of employment.\18\ An important
source of this phenomenon is the cost of a job search and the
employer's relative advantage, from size and economies of scale, in
acquiring job market information.\19\ Another potentially noteworthy
problem in the job market is that, contrary to the model of perfect
competition, workers with jobs cannot without cost quit and obtain a
similar job at the same wage with another employer. Workers leaving
their current job may be confronted with the expense and time
requirements of a job search, the expense associated with relocating to
take advantage of better employment opportunities, the loss of firm-
specific human capital (i.e., firm-specific skills and knowledge that
the worker possesses), the cost and difficulty of upgrading job skills,
and the risk of a prolonged period of unemployment. In addition,
employers derive market power from the fact that a portion of the
compensation their workers receive is not transferable to other jobs.
Examples include job-specific training and associated compensation,
seniority rights and associated benefits, and investments in a pension
plan.
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\18\ See, for example, Borjas (2000) Docket OSHA-2010-0034,
Document ID 0565. See also Ashenfelter, Farber, and Ransom (2010)
and Boal and Ransom (1997), providing supplemental evidence. The
term ``monopsony'' power is sometimes applied to this situation, but
it does not necessarily require a single employer.
\19\ See Borjas (2000), Docket OSHA-2010-0034, Document ID 0565.
As supplemental authorities, Weil (2014) presents theory and
evidence both in support of this proposition and to show that, in
many situations, larger firms have more monopsony power than smaller
firms, while Boal and Ransom (1997, p. 97) note that the persistent
wage dispersion observed in labor markets is a central feature of
equilibrium search models.
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Under the conditions described above, employers would not have to
take the market-clearing wage as given but could offer a lower wage
than would be observed in a perfectly competitive market,\20\ including
less than full compensation for workplace health and safety risks. As a
result, relative to the idealized competitive job market, employers
would have less incentive to invest in workplace safety. In any event,
for reasons already discussed, an idealized wage premium is not an
adequate substitute for a workplace that puts a premium on health and
safety.
---------------------------------------------------------------------------
\20\ For a graphical demonstration that an employer with
monopsony power will pay less than the competitive market wage, see
Borjas (2000), Docket OSHA-2010-0034, Document ID 0565, pp. 187-189.
---------------------------------------------------------------------------
It is worth further noting that while there might be elements of
competition in the labor market for emergency responders, the local
fire department or EMS does in some ways approximate a monopolistic
employer in many localities, for those individuals with emergency
responder skills who choose to use them for the benefit of the
community. Volunteers as well as career employees may have limited
options as to which ESO they choose to join within a certain geographic
area.
The following discussion considers whether non-market and quasi-
market alternatives to the final rule would be capable of protecting
emergency response workers from numerous workplace hazards. The
alternatives under consideration are information dissemination
programs, workers' compensation systems, and tort liability options.
(i) Information Dissemination Programs
One alternative to OSHA's proposed Emergency Response rule could be
the dissemination of information, either voluntarily or through
compliance with a targeted mandatory information rule, akin to OSHA's
Hazard Communication standard (29 CFR 1910.1200), which would provide
more information about the safety and health risks associated with
workplace exposure to the physical hazards and toxic substances
emergency responders might be exposed to. Better informed workers could
more accurately assess the occupational risks associated with different
jobs, thereby facilitating, through labor market transactions, higher
risk premiums for more hazardous work and inducing employers to make
the workplace less hazardous. The proposed rule recognizes the link
between the dissemination of information and workplace risks by
requiring that emergency response workers be provided with information
and training about the risks they encounter and ways to prevent them.
There are several reasons, however, why reliance on information
dissemination programs alone would not yield the level of worker
protection achievable through the proposed rule, which incorporates
hazard communication as part of a comprehensive approach designed to
control the hazard in addition to providing for the disclosure of
information about it.
First, in the context of the Hazard Communication standard, which
[[Page 7849]]
requires employers to transmit information about hazardous substances,
that standard alone does not require that sufficient information be
provided to identify risks in specific workplaces. Emergency responder-
related risks, for instance, are highly specific to individual tasks
and work environments. More hazard-specific training required under the
proposed standard would supplement that.
Second, in the case of voluntary information dissemination
programs, absent a regulation, there may be significant economic
incentives, for all the reasons discussed in the Labor Market Failure
section above, for the employer not to gather relevant exposure data or
distribute occupational risk information so that the workers would not
change jobs or demand higher wages to compensate for their newly
identified occupational risks.
Third, even if workers were better informed about workplace risks
and hazards, all of the defects in the functioning of the private job
market previously discussed--the limited ability of workers to evaluate
risk information, externalities, and imperfect competition--would still
apply. Because of the existence of these defects, better information
alone would not lead to wage premiums for risk in accordance with
efficient market theory.
Finally, as discussed in the Benefits chapter, a number of
additional safety provisions under the proposal would complement
information and training provided by other regulatory vehicles. For
example, while it is useful to know about what toxic substances one
would encounter on the job, proper use and maintenance of PPE are
critical to protecting emergency responders.
Thus, while improved access to information about emergency
response-related hazards can provide for more rational decision-making
in the private job market, OSHA concludes that information
dissemination programs would not, by themselves, produce an adequate
level of worker protection.
(ii) Workers' Compensation Systems
Another theoretical alternative to OSHA regulation could be to
determine that no rule is needed because State workers' compensation
programs augment the workings of the job market to limit occupational
risks to worker safety and health. After all, one of the objectives of
the workers' compensation system is to shift the costs of occupational
injury and disease from workers to employers in order to induce
employers to improve working conditions. Two other objectives relevant
to this discussion are to provide fair and prompt compensation to
workers for medical costs and lost wages resulting from workplace
injury and disease and, through the risk-spreading features of the
workers' compensation insurance pool, to prevent individual employers
from suffering a catastrophic financial loss (Ashford, 2007, Docket
OSHA-2010-0034, Document ID 1702, p. 1712).
OSHA identifies three primary reasons, discussed below, why the
workers' compensation system has fallen short of the goal of shifting
to employers the costs of workplace injury and disease--including, in
particular, the costs of worker exposure to emergency response related
hazards. As a result, OSHA concludes that workers' compensation
programs alone do not adequately protect workers. In addition, although
not necessary to support this conclusion, OSHA takes notice of several
studies highlighting the general decline in the adequacy and fairness
of State workers' compensation programs, the significant variability
among State workers' compensation programs, and the compensation
inadequacies that ultimately shift these costs back to the workers or
to the government (Docket OSHA-2010-0034, Document ID 0386. Document ID
0387).
(a) Failure To Provide Compensation for Most Occupational Diseases
The first, and most important, reason that workers' compensation is
not an adequate alternative is that State workers' compensation
programs tend not to provide benefits for most work-related diseases--
including those resulting from exposure to combustion products and
other hazards encountered in emergency response situations. Several
related factors account for this:
Most occupational diseases have multiple causes and are
indistinguishable from ordinary diseases of life. Therefore, it is
difficult for workers' compensation to trace the cause of these
diseases to the workplace;
Many occupational diseases have long latency periods,
which tends to obscure the actual cause of disease or the place of
employment where exposure occurred;
Workers (as well as medical personnel) often do not
realize that a disease is work-related and, therefore, fail to file a
workers' compensation claim; and
Most States have statutes of limitations that are 10 years
or less for filing workers' compensation claims. This may preclude
claims for illnesses involving long latency periods. Also, many States
have a minimum exposure time period before a disease can be attributed
to an occupational cause.
With the exception of musculoskeletal disorders, workers'
compensation covers only 5 percent of occupational diseases (including
emergency response-related occupational diseases) and 1.1 percent of
occupational fatalities (Ashford, 2007, Docket OSHA-2010-0034 Document
ID 1702, p. 1714).
(b) Limitations on Payouts
The second reason that employers do not fully pay the costs of
work-related injuries and disease under the workers' compensation
system is that, even for those claims that are accepted into the
system, states have imposed significant limitations on payouts.
Depending on the State, these limitations and restrictions include:
Caps on wage replacement based on the average wage in the
State rather than the injured workers' actual wage;
Restrictions on which medical care services are
compensated and the amount of that compensation;
No compensation for non-pecuniary losses, such as pain and
suffering or impairment not directly related to earning power;
Either no, or limited, cost-of-living increases;
Restrictions on permanent, partial, and total disability
benefits, either by specifying a maximum number of weeks for which
benefits can be paid or by imposing an absolute ceiling on dollar
payouts; and
A low absolute ceiling on death benefits.
The last two restrictions may be the most limiting for occupational
diseases with long-term health effects and possible fatal outcomes,
such as those associated with worker exposure to emergency response-
related hazards.
(c) A Divergence Between Workers' Compensation Premiums and Workplace
Risk
The third reason workers' compensation does not adequately shift
the costs of work-related injuries and illnesses to employers is that
the risk-spreading objective of workers' compensation conflicts with,
and ultimately helps to undermine, the cost-internalization
objective.\21\ For the 99 percent of employers who rely on workers'
compensation insurance,\22\ the
[[Page 7850]]
payment of premiums represents their primary cost for occupational
injuries and illnesses, such as emergency response-related injuries and
illnesses. However, the mechanism for determining an employer's
workers' compensation insurance premium typically fails to reflect the
actual occupational risk present in that employer's workplace.
---------------------------------------------------------------------------
\21\ Recall from the earlier discussion of externalities that
the failure to internalize costs leads to allocative distortions and
inefficiencies in the market.
\22\ Only the largest firms, constituting approximately 1
percent of employers and representing approximately 15 percent of
workers, are self-insured. These individual firms accomplish risk-
spreading as a result of the large number of workers they cover. See
Ashford (2007), Docket OSHA-2010-0034, Document ID 1702, p. 1712.
---------------------------------------------------------------------------
Approximately 85 percent of employers have their premiums set based
on a ``class rating,'' which is based on industry illness and injury
history. Employers in this class are typically the smallest firms and
represent only about 15 percent of workers (Ashford, 2007, Docket OSHA-
2010-0034, Document ID 1702, p. 1713). Small firms are often ineligible
for experience rating because of insufficient claims history or because
of a high year-to-year variance in their claim rates. These firms are
granted rate reductions only if the experience of the entire class
improves. The remaining 14 percent of employers, larger firms
representing approximately 70 percent of workers, have their premiums
set based on a combination of ``class rating'' and ``experience
rating,'' which adjusts the class rating to reflect a firm's individual
claims experience. A firm's experience rating is generally based on the
history of workers' compensation payments to workers injured at that
firm's workplace, not on the quality of the firm's overall worker
protection program or safety and health record. Thus, for example, the
existence of circumstances that may lead to catastrophic future losses
are not included in an experience rating--only actual past losses are
included.\23\ Insurance companies do have the right to refuse to
provide workers' compensation insurance to an employer--and frequently
exercise that right based on their inspections and evaluations of a
firm's health and safety practices. However, almost all States have
assigned risk pools that insist that any firm that cannot obtain
workers' compensation policies from any insurer must be provided
workers' compensation insurance at a State-mandated rate that reflects
a combination of class and experience rating. Workers' compensation
insurance does protect individual employers against a catastrophic
financial loss due to work-related injury or illness claims. As a
result of risk spreading, however, employers' efforts to reduce the
incidence of occupational injuries and illnesses are not fully
reflected in reduced workers' compensation premiums. Conversely,
employers who devote fewer resources to promoting worker safety and
health may not incur commensurately higher workers' compensation costs.
This creates a type of moral hazard, in that the presence of risk
spreading in workers' compensation insurance may induce employers to
make fewer investments in equipment and training to reduce the risk of
workplace injuries and illnesses.
---------------------------------------------------------------------------
\23\ In order to spread risks in an efficient manner, it is
critical that insurers have adequate information to set individual
premiums that reflect each individual employer's risks. As the
preceding discussion has made clear, by and large, they do not. In
that sense, insurers can be added to employers and workers as
possessing imperfect information about job hazards.
---------------------------------------------------------------------------
In short, the premiums most individual employers pay for workers'
compensation insurance coverage do not reflect the actual cost burden
those employers impose on the worker's compensation system.
Consequently, employers considering measures to lower the incidence of
workplace injuries and illnesses can expect to receive a less-than-
commensurate reduction in workers' compensation premiums. Thus, for all
the reasons discussed above, the workers' compensation system does not
provide adequate incentives to employers to control occupational risks
to worker safety and health.
III. Tort Liability Options
Another alternative to OSHA regulation could be for workers to use
the tort system to seek redress for work-related injuries and diseases,
including emergency response-related ones. A tort is a civil wrong
(other than breach of contract) for which the courts can provide a
remedy by awarding damages. The application of the tort system to
occupational injury and disease would allow workers to sue their
employer, or other responsible parties (e.g., ``third parties'' such as
suppliers of hazardous material or equipment used in the workplace) to
recover damages. In theory, the tort system could shift the liability
for the direct costs of occupational injury and illness from the worker
to the employer or to other responsible parties. In turn, the employer
or third parties would be induced to improve worker safety and health.
With limited exceptions, the tort system has not been a viable
alternative to occupational safety and health regulation because State
statutes make workers' compensation the ``exclusive remedy'' for work-
related injuries and illnesses. Workers' compensation is essentially a
type of no-fault insurance. In return for employers' willingness to
provide, through workers' compensation, timely wage-loss and medical
coverage for workers' job-related injuries and diseases, regardless of
fault, workers are barred from suing their employers for damages,
except in cases of intentional harm or, in some States, gross
negligence (Ashford and Caldart, 1996, Docket OSHA-2010-0034, Document
ID 0538, p. 233). Practically speaking, in most cases, workers'
compensation is the exclusive legal remedy available to workers for
workplace injuries and illnesses.
Workers are thus generally barred from suing their own employers in
tort for occupational injuries or disease but may attempt to recover
damages for work-related injuries and disease from third parties
through the tort system. However, the process may be lengthy,
adversarial, and expensive. In addition, in tort cases involving
chronic occupational disease, the likelihood of prevailing in court and
ultimately obtaining compensation may be small because:
In a tort action, the burden of proof is on the plaintiff
(i.e., the worker) to demonstrate by ``a preponderance of the
evidence'' that the defendant (i.e., the responsible third party) owed
a duty to the plaintiff, that the defendant breached that duty, and
that the breach caused the worker's injury or disease;
To establish third-party liability the worker must
typically show that the third party's products or equipment or
instructions were defective or negligently designed. Liability is often
in dispute and difficult to prove;
In cases of chronic disease, especially those with long
latency periods, it is typically even more difficult to prove that the
third-party was causally responsible. The worker must prove that not
only was the disease the result of occupational exposure and not an
ordinary disease of life or the result of non-occupational exposure,
but also the causal exposure was due to the defendant's product at the
plaintiff's particular worksite rather than exposure to some other
third party's product or exposure at some other worksite;
For chronic diseases, the potentially lengthy latency
period between worker exposure and manifestation of disease lowers the
probability that the responsible third party will still be in business
when tort claims are ultimately
[[Page 7851]]
filed and have sufficient assets to cover the claims; \24\ and
---------------------------------------------------------------------------
\24\ The same qualification about the firm being in business and
having sufficient assets to pay claims may also apply to liability
insurers, in those cases where the firm has purchased liability
insurance.
---------------------------------------------------------------------------
Workers may be deterred from filing tort actions because
of the substantial costs involved--including attorney fees, court
costs, and the costs of obtaining evidence and securing witnesses--and
the lengthy period before a final decision is rendered.
In sum, the use of the tort system as an alternative to regulation
is severely limited because of the ``exclusive remedy'' provisions in
workers' compensation statutes; because of the various legal and
practical difficulties in seeking recovery from responsible third
parties, particularly in cases of occupational disease such as cancer;
and because of the substantial costs associated with a tort action. The
tort system, therefore, does not adequately protect workers from
exposure to hazards in the workplace.
IV. Summary
OSHA's primary reasons for proposing this rule are based on the
requirements of the OSH Act and are discussed in section II of the
preamble, Pertinent Legal Authority. As shown in the preamble to the
proposed rule and this PEA, OSHA has determined that emergency
responders are exposed to numerous safety and health hazards in the
workplace. This section has shown that labor markets--even when
augmented by information dissemination programs, workers' compensation
systems, and tort liability options--appear to still operate at a level
of risk for these workers that is higher than socially optimal due to a
lack of information about safety and health risks, the presence of
externalities or imperfect competition, and other factors discussed
above.
The following sections present OSHA's estimates of the costs,
benefits, and other impacts anticipated to result from the proposed
rule. The estimated costs are based on employers achieving full
compliance with the requirements of the proposed rule. They do not
include prior costs associated with firms whose current practices are
already in compliance with the proposed rule requirements. The purposes
of this analysis are to:
Identify the establishments and industries affected by the
proposed rule;
Estimate and evaluate the costs and economic impacts that
regulated establishments will incur to achieve compliance with the
proposed rule;
Evaluate the economic feasibility of the proposed rule for
affected industries;
Estimate the benefits resulting from employers coming into
compliance with the proposed rule in terms of reductions in injuries
and fatalities; and
Assess the impact of the proposed rule on small entities
through an Initial Regulatory Flexibility Analysis (IRFA), which
includes an evaluation of significant regulatory alternatives to the
proposed rule that OSHA has considered.
B. Profile of Affected Industries
I. Introduction
This chapter presents a profile of the entities and employees
within the emergency response service sectors that would be affected by
OSHA's proposed Emergency Response Standard. OSHA first identifies the
types of organizations that provide emergency response services that
would be subject to the standard. Next, OSHA provides summary
statistics for the affected entities, including the number of affected
entities and the number of affected workers. This information is
provided for each affected emergency response service sector in total
as well as for small entities as defined by the RFA and by the SBA.
II. Affected Industries and Responders
The proposed rule would apply to employers that provide one or more
of the following emergency response services as a primary function:
firefighting, emergency medical service, and technical search and
rescue; or the employees perform the emergency service(s) as a primary
duty for the employer. OSHA refers to these employers as Emergency
Service Organizations (ESOs) and their employees as responders. The
proposed rule also would apply to Workplace Emergency Response
Employers (WEREs), which are defined as employers that have an
emergency response team where employees, as a collateral duty to their
regular daily work assignments, respond to emergency incidents to
provide services such as fire suppression, emergency medical care, and
technical search and rescue. The team is called a Workplace Emergency
Response Team (WERT), and the employees assigned to the team are called
team members.
The proposed rule would directly cover private ESOs and WERTs but
would also impact a significant number of state and local government
entities, as well as Federal Government entities under the Departments
of Defense, Agriculture, and the Interior. Firefighting services, as
well as technical search and rescue groups, are often part of state and
local governments. These emergency response services are also prominent
functions of the Federal Government. Emergency medical services (e.g.,
ambulance services) are more commonly provided by private entities but
may also be provided by state or local governments. While state and
local government employees are not directly covered by Federal OSHA,
they are covered by states with OSHA-approved State Plans because the
OSH Act requires State Plans to cover government employees. Under
Executive Order 12866, agencies must consider the likely effects of
their rulemakings on state and local governments in their regulatory
analyses. For this analysis, OSHA is assuming that State Plan states
would adopt the requirements in this proposed rule as written.
Emergency response activities undertaken by WERT members at private
worksites are fully covered by Federal OSHA.
Another issue in determining the entities that would be affected by
the proposed rule is that many emergency responders are volunteers.
OSHA does not regulate volunteers, but some State Plan states, listed
below, have laws that treat volunteers as employees for occupational
safety and health purposes. Therefore, in those situations, State Plans
would have to cover those volunteers.
The proposed rule would not cover employers performing disaster
site clean-up or recovery duties following natural disasters such as
earthquakes, hurricanes, tornados, and floods; and human-made disasters
such as explosions and transportation incidents.
The specific types of organizations that would be covered by the
proposed rule are as follows:
Firefighting Services--These organizations include private
and public entities engaged in structural, wildland, proximity, marine,
and aerial firefighting. Employees of these entities may be volunteer
or career team members or responders. This group represents the vast
majority of entities, team members and responders potentially affected
by the proposed rule.
Emergency Medical Services (EMS)--These organizations
include private and public entities engaged in provision of pre-
hospital emergency medical service. Employees of these entities may be
volunteer or career team members and responders, emergency
[[Page 7852]]
medical technicians (EMTs), paramedics, and registered nurses.
Technical Search and Rescue--These organizations are
involved in complex search and rescue situations, such as rope,
vehicle/machinery, structural collapse, trench, and technical water
rescue. Employees of these entities may be volunteer or career team
members and responders.
Detailed descriptions of these organization types are provided in
section 4.
III. Entities Not Covered by the Proposed Rule
As noted above, Federal OSHA does not cover public ESOs in States
without OSHA-approved State Plans. Therefore, for the PEA, public ESOs
and responders in States without OSHA-approved State Plans are excluded
from the analysis. The following states and territories have State
Plans \25\: Alaska, Arizona, California, Connecticut, Hawaii, Illinois,
Indiana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina,
Oregon, Puerto Rico, South Carolina, Tennessee, Utah, U.S. Virgin
Islands, Vermont, Virginia, Washington, and Wyoming. The remaining
states and territories that are assumed to classify volunteers as
covered employees include Alaska, Arizona, California, Hawaii, Indiana,
Iowa, Michigan, Minnesota, Nevada, Oregon, Puerto Rico, South Carolina,
Washington, Connecticut, Illinois, Maine, Massachusetts, New Jersey,
New York, and U.S. Virgin Islands.
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\25\ Seven of these--Connecticut, Illinois, Maine,
Massachusetts, New Jersey, New York, and the Virgin Islands--only
cover public sector employees. However, the comparatively limited
number of private sector employees in those states are covered by
Federal OSHA and have been included in this analysis.
---------------------------------------------------------------------------
Also noted above, many emergency responders are unpaid volunteers
rather than paid employees. Some State Plans cover volunteers, and some
do not. This analysis does not include volunteer responders in State
Plan states where the State Plan does not cover volunteers. State Plan
states do not define ``employee'' in a standard way. Therefore,
determining which employees are covered is not straightforward. For
example, some states may provide benefits in the form of insurance and
tax benefits to volunteers that might affect whether they are
considered employees. Additionally, some State Plans may extend OSHA
protections to volunteer firefighters but not to volunteer EMS
providers or other non-firefighting volunteers, while other State Plans
extend OSHA protections to all volunteers or to no volunteers. OSHA has
determined that the following State Plan states do not consider
volunteers to be employees and therefore do not extend OSHA protections
to volunteers.\26\ As a result, volunteers in these states are not
included in this analysis (although career responders for public entity
ESOs are included): Kentucky, Maryland, New Mexico, North Carolina,
Tennessee, Utah, Vermont, Virginia, and Wyoming.
---------------------------------------------------------------------------
\26\ There are an additional three states (Connecticut,
Minnesota, and South Carolina), plus the U.S. Virgin Islands, for
which it was somewhat ambiguous and where OSHA was unable to
determine whether volunteers are considered employees under their
State Plans. For this analysis, OSHA assumed that these states do
consider volunteers as employees, so as not to underestimate the
impacts of the standard.
---------------------------------------------------------------------------
OSHA welcomes feedback on why this is or is not an appropriate
approach to estimating the number of affected responders. The agency
welcomes additional data or information on how volunteer responders are
treated regarding OSHA protections in State Plan states.
Some states utilize prison labor to fight wildfires. These inmate
firefighters are either paid significantly less per hour than career
firefighters or are not paid at all. While some state plans, such as
California clearly extend OSH coverage to prison labor,\27\ it is
somewhat ambiguous whether all such states do. Therefore, for this PEA,
OSHA assumed that State Plan states that extend OSH coverage to
volunteers do the same for inmate firefighters.
---------------------------------------------------------------------------
\27\ The California Prison Industry Authority (CALPIA) was cited
by the state Division of Occupational Safety and Health (Cal/OSHA)
and fined for exposing prisoners employed in a metal fabrication and
vehicle-outfitting facility at California State Prison-Solano to
COVID-19. https://www.prisonlegalnews.org/news/2021/apr/1/california-prison-factories-fined-exposing-unwitting-workers-covid-19/.
---------------------------------------------------------------------------
Table VII-B-1 shows the number and percentage of volunteer ESOs and
responders in State Plan states where volunteers are and are not
covered. ESOs in State Plan states that do not cover volunteers, and
which are entirely staffed by volunteer responders, would not be
affected by the proposed rule. Approximately 60.2 percent of volunteer
ESOs and 62.9 percent of volunteer responders in State Plan states are
covered overall.
BILLING CODE 4510-26-P
[[Page 7853]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.008
BILLING CODE 4510-26-C
IV. Affected WEREs, ESOs, and Responders
Emergency response services provided by WEREs and ESOs can overlap
(e.g., firefighters may also be trained to provide medical assistance
and technical search and rescue). Additionally, OSHA assumes that WERTs
will likely provide all emergency response services within each
facility. Given the overlap among these groups, OSHA first profiles
WEREs as one group (vs. separately for each emergency response
activity) and then profiles each type of ESO (firefighter, EMS,
technical search and rescue).
A. WEREs
OSHA's estimate of the number of WEREs was derived using data from
the U.S. Fire Administration (USFA) registry on the number of ``private
or industrial fire brigades.'' These entities include private companies
that have indicated they have employees (team members) who, collateral
to their normal duties, provide firefighting and other emergency
response services at the workplace.\28\ Upon examination, OSHA found
that unlike ESOs, WEREs typically do not appear in the registry. OSHA
asked the USFA how representative the National Fire Registry data is,
with USFA stating that the number of fire departments in the Registry
accounted for about 92% of U.S. fire departments. The National Fire
Registry indicates there are 27,091 organizations in the fire registry
with available counts on employees. Multiplying 27,091 by 1/0.92 yields
an estimate of 29,447 total emergency response organizations overall in
the United States. The agency made an additional adjustment for an
undercount of private ESOs, estimating that there are 788 private ESOs
in the U.S. (twice the official count of 394). This leaves a residual
of approximately 1,582 emergency response teams unaccounted for. Based
in part on this, the agency estimates that approximately 1,500
emergency response teams are unaccounted for and exist in the form of
WEREs. Based on communications with SERs, OSHA believes these WEREs to
be within larger establishments across a number of industries such as
refineries, auto assembly plants, paper mills, chemical plants,
hospitals, and airports, among others.
---------------------------------------------------------------------------
\28\ Note that not all private firefighting organizations
reported in the NFPA data are WEREs.
---------------------------------------------------------------------------
To account for potential underreporting of these types of entities
to the registry as well as to account for other types of WEREs that may
not be captured by this registry, OSHA adjusted the number of WEREs to
1,500 WEREs. OSHA scaled the number of WERT members that are captured
in the Registry (1,548) by the ratio of adjusted
[[Page 7854]]
WEREs (1,500) to WEREs captured in the Registry (36). Using this ratio
(1,500/36 = 41.7), OSHA estimates that there are 64,500 team members
employed in total by 1,500 WEREs. The agency welcomes additional data
about the number of WEREs and team members who would fall within the
scope of the proposed rule.
B. Fire Departments
According to the USFA registry, in 2022 there were 27,144 fire
departments; 52,177 fire stations; and approximately 1,232,980
firefighting and non-firefighting individuals employed by fire
departments in the United States.\29\ The registry data also include
the fire department's organization type (e.g., private, state, local,
etc.), department type (i.e., career, volunteer, mostly career, mostly
volunteer), and firefighter type (e.g., active career, paid per call,
active volunteer, etc.). ``Mostly career'' and ``mostly volunteer''
departments are those with a majority of responders who are career or
volunteer firefighters, respectively, and are considered to be
``mixed'' departments.
---------------------------------------------------------------------------
\29\ These statistics are based on the USFA registry database as
of May 17, 2022. Registry data are voluntarily reported by fire
departments.
---------------------------------------------------------------------------
Table VII-B-2 provides an overview of the number of fire
departments in the USFA (2022) registry data by type of department
based on firefighter type. This estimate includes all fire departments,
whether or not they would be covered by the proposed rule. Table VII-B-
2 shows that the majority of fire departments (approximately 61
percent) are volunteer.\30\
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\30\ The fire registry data are self-reported by individual fire
departments, and in some cases, departments have classified
themselves as a ``volunteer'' department even though they also
reported some career or paid-per-call responders. OSHA has
reclassified these departments such that only those departments
where all active firefighters are volunteers are listed as
``volunteer'' departments and only those where all active
firefighters are either career or paid per call are ``career,'' with
the remainder being ``mixed.''
[GRAPHIC] [TIFF OMITTED] TP05FE24.009
The USFA data also enumerate responders by type at each department
in the registry and characterize whether they are career, volunteer,
``paid per call'' (i.e., firefighters employed on a per-incident
basis), or non-firefighting employees and volunteers. (This estimate
includes all firefighters and non-firefighters, whether or not they
would be covered by the proposed rule.) Table VII-B-3 summarizes these
data, showing that a plurality of fire department personnel are
volunteer firefighters (approximately 47 percent), career firefighters
(approximately 30 percent) being the next most common type and paid-
per-call firefighters constituting 11 percent of all personnel.
[GRAPHIC] [TIFF OMITTED] TP05FE24.010
Table VII-B-4 shows the interplay between department and personnel
types (including all departments and personnel, whether or not they
would be covered by the proposed rule). As noted above, the numbers
below have been adjusted so that the ``volunteer'' department type
includes data for those departments comprising only volunteer
firefighters.
[[Page 7855]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.011
As shown in Table VII-B-5, the vast majority of fire departments
(approximately 96 percent) are operated by local governments. When
other public non-federal fire departments (state governments, tribal
governments, transportation authority/airport fire departments, and
``other'' departments) are included, public fire departments account
for about 97.6 percent of fire departments.
BILLING CODE 4510-26-P
[GRAPHIC] [TIFF OMITTED] TP05FE24.012
BILLING CODE 4510-26-C
Not all fire departments and responders included in Table VII-B-5
would be covered by the proposed rule. OSHA does not estimate costs or
impacts for fire departments reporting zero responders \31\ and the
non-firefighting personnel included in the USFA (2022) registry data.
Further, the analysis excludes public fire departments in non-State
Plan states, volunteers in State Plan states where volunteers are not
covered by the State Plan, and all-volunteer fire departments in State
Plan states that do not cover volunteers. OSHA thus limits the fire
department profile to include all private fire departments, all public
fire departments in State Plan states that cover volunteers, all public
fire departments in State Plan states that do not cover volunteers
except those departments that are 100 percent volunteer, and all
Federal fire departments. In addition to removing some fire departments
and responders that are not covered, OSHA checked to ensure that all
fire departments operated by tribal governments were removed from this
analysis for being out-of-
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\31\ There are 90 fire departments with no reported active
firefighting personnel in the 2022 USFA Registry.
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[[Page 7856]]
scope. After these adjustments, OSHA estimates that there are 12,096
fire departments and 534,599 responders (see Table VII-B-6) that would
be affected by the proposed rule.
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\32\ This industry comprises establishments primarily engaged in
performing particular support activities related to timber
production, wood technology, forestry economics and marketing, and
forest protection. These establishments may provide support
activities for forestry, such as estimating timber, forest
firefighting, forest pest control, treating burned forests from the
air for reforestation or on an emergency basis, and consulting on
wood attributes and reforestation. (U.S. Census Bureau, 2021).
[GRAPHIC] [TIFF OMITTED] TP05FE24.013
C. Wildland Firefighting Services
In addition to fire departments, many private-sector fire
suppression organizations provide wildland firefighting and other
emergency services, primarily to Federal, State, and local agencies.
These services include direct firefighting as well as support services
and are assumed to fall into NAICS 115310 Support Activities for
Forestry.\32\ The total number of such organizations and the associated
personnel is unknown. However, the National Wildfire Suppression
Association (NWSA) states that it represents 348 private wildland
firefighting services contractors with 24,000 employees who operate on
an as-needed basis to provide Federal, State, and local agencies with a
variety of resources for wildland firefighting and other emergency
incidents (such as hurricanes and other disasters) (Miley, 2022). These
for-profit companies represent between 65 and 70 percent of for-profit
wildland firefighting services (Miley, 2022). Taking the midpoint of
NWSA's representativeness range (67.5 percent), OSHA estimates that 516
companies offer wildland firefighting services across the United
States.
Using addresses for member companies as well as other contractor
lists (WildlandFireJobs.com) and projecting to the total estimated
number of organizations, OSHA calculated the percent and total wildland
firefighting entities within each state.
Total employment was calculated by dividing the number of wildland
firefighting service estimated above by the number of firms in NAICS
115310 and multiplying this percentage by the total number of employees
in NAICS 115310, according to the 2021 Statistics of U.S. Businesses
(SUSB). This calculation results in an estimated 35,556 employees. All
wildland firefighting entities are private entities, according to the
NWSA. All responders are considered career; none of these employees are
volunteers.
In some states, prison labor is also employed to fight wildfires.
To estimate the number of inmate firefighters, OSHA conducted internet
searches regarding the number of state prison inmates participating in
firefighting training and deployment programs, focusing on State Plan
states. While there are non-State Plan states that have inmate
firefighting programs, those inmates are not within OSHA's
jurisdiction, since the state prisons are publicly owned and operated.
OSHA used the search terms ``[state] inmate firefighters,'' ``[state]
corrections forestry camps,'' ``[state] prisoner wildfires,'' and
``[state] corrections firefighter training.'' Among the 27 states and
two territories that have State Plans, OSHA found evidence of inmate
firefighting programs in 14 states. For this PEA, OSHA assumes that
inmate firefighters are treated as volunteers within State Plan states.
Therefore, only inmate firefighters in State Plan states where the
State Plan covers volunteers would be affected. Of the 14 State Plan
states for which OSHA found evidence of inmate firefighting programs,
seven of them cover volunteers. The counts of inmate firefighters for
each of these states are provided in Table VII-B-7. For some states,
OSHA found more than one count of inmate firefighters. In these
instances, OSHA uses the highest estimate.
[[Page 7857]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.014
The Federal Government also employs wildland firefighters within
the Forest Service. There are approximately 18,700 dedicated wildland
firefighters (GAO, 2022) and an additional 50,000 reserve wildland
firefighters (USDA, 2023).
D. Emergency Medical Services
The proposed rule, or its State Plan equivalent, would cover public
and private ESOs that provide emergency medical services (EMS).
However, detailed data for EMS providers similar to those for fire
departments are not available. Available data on EMS providers are not
captured adequately in the data sources typically used by OSHA that
allow the agency to delineate affected entities by NAICS industry. OSHA
combined data from several sources to construct a profile with similar
parameters to the firefighter profile. OSHA welcomes information on
additional or alternate data sources that would allow the agency to
better estimate the universe of EMS providers.
First, statistics reported by the National Association of Emergency
Medical Technicians (NAEMT, 2014) based on 2008 data suggest that there
are an estimated 15,276 ambulance services ESOs in the United States,
which NAEMT breaks down into detailed categories (see Table VII-B-8).
NAEMT reported that an estimated 49 percent of EMS providers are fire
departments with either cross-trained or separate EMS responders. Other
``government or third party'' providers represent an estimated 15
percent of the total, while private EMS providers account for 18
percent, and hospital-based services represent 7 percent.
The ESOs considered in this section exclude EMS responders that
operate as part of a fire department (as they are already included in
the fire department profile detailed above) and public ESOs located in
non-State Plan states. OSHA combined all other public EMS ESOs to
arrive at an estimated affected population of ambulance service
providers. OSHA based the estimate of the percentages of public ESOs
that are in State Plan and non-State Plan states on the ratio of
employment in Standard Occupational Classification (SOC) codes 29-2042
Emergency Medical Technicians and 29-2043 Paramedics in State Plan
states to employment of those two SOCs in all states in BLS (2023)
Occupational Employment and Wage Statistics (OEWS) data for May 2022.
Based on this calculation, OSHA assumes that 59.04 percent of public
ESOs are based in State Plan states, with 40.96 percent of public ESOs
based in non-State Plan states.
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[[Page 7858]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.015
BILLING CODE 4510-26-C
NAEMT (2014) estimates that ambulance services employ 840,669
responders, which includes first responders, EMTs, paramedics, and
registered nurses. This analysis assumes that those responders are
distributed proportionately among the ambulance services of each type,
which yields an estimate of 360,957 responders at affected ESOs, with
66,723 of these responders at public ESOs in State Plan states and
294,234 responders at private ESOs nationwide.
NAEMT (2014) estimates that approximately 39 percent of ambulance
service entities are staffed by career responders, 21 percent by
volunteers, and 41 percent by both. Unlike the USFA (2022) data used
for the firefighter profile, NAEMT does not specify responder types at
``mixed'' ambulance services (e.g., how many career responders are at
ESOs that are primarily staffed with volunteers). For the fire
departments and firefighters analysis, OSHA identified different types
of staffing arrangements for fire departments, including where
departments were mostly, but not completely, staffed by volunteers and
vice versa. Lacking any data to make similar determinations, this
analysis of ambulance ESOs assumes that entities reported as staffed by
career responders are staffed entirely by career responders, entities
reported as volunteer services are staffed entirely by volunteers, and
an unknown mix of career and volunteer responders staff services in the
``mixed'' category. The estimates of career, volunteer, and ``mixed''
services and responders are shown in Table VII-B-9.
As with fire departments and firefighters, volunteer responders and
ESOs where 100 percent of responders are volunteers are excluded in
OSHA State Plan states where the State Plan does not cover volunteers.
Since the NAEMT and BLS data are not granular enough to allow an exact
calculation of the percentage of volunteers in State Plan states that
cover or do not cover volunteers, OSHA assumes that the percentage of
volunteer emergency medical service ESOs and responders located in
these states is the same as for firefighters.
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[[Page 7859]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.016
BILLING CODE 4510-26-C
E. Technical Search and Rescue
The proposed rule covers technical search and rescue organizations
using special knowledge, skills, and specialized equipment to resolve
complex search and rescue situations, such as rope, vehicle/machinery,
structural collapse, trench, and technical water rescue. The term
covers a variety of activities and operations that may be performed by
different types of team members and responders. (The proposed rule does
not include technical search and rescue activities specifically covered
by other OSHA standards, such as permit-required confined spaces
covered by 29 CFR 1910.146.) OSHA specifically uses the term
``technical'' to limit the proposed rule's coverage to search and
rescue activities that utilize special knowledge and skills and
specialized equipment to resolve complex search and rescue situations
because these activities are particularly hazardous for emergency
responders. There are activities with the same or similar names that
would not be covered by the proposed rule because they do not use
specialized knowledge, skills, or equipment. For example, the term
``wilderness search and rescue'' could apply to both technical and non-
technical operations. Hiking or riding horseback through the wilderness
searching for a lost hiker does not necessarily require special skills,
knowledge, or equipment. However, if it is mountainous terrain where
rescuing the hiker requires rope rescue techniques, for example, then
it is technical search and rescue.
These services are provided by a range of organizations that may
focus on one or more skills (e.g., trench, technical water rescue) or
environments (e.g., wilderness, urban) and may be provided by
volunteers, private companies, fire departments, or law enforcement
agencies. Employers that provide these services do not appear in any
one defined NAICS industry. OSHA's research showed that these employers
are many disparate industries and are frequently providing technical
search and rescue services in conjunction with other lines of business
(e.g., they may primarily train people in occupational safety practices
or rent equipment but also provide technical search and rescue). To
profile these organizations,
[[Page 7860]]
OSHA obtained information from several sources including the National
Association for Search and Rescue (NASAR) and the Mountain Rescue
Association (MRA). OSHA supplemented the MRA and NASAR information with
data on private companies offering specialized skills and equipment,
such as rope/high angle rescue, estimates of Federal Park Rangers who
can perform technical rescue, and U.S. lifeguarding entities providing
specialized skills and equipment to better estimate the total number of
entities and employees involved in technical search and rescue. OSHA
assumed that all WEREs whose WERT members perform technical search and
rescue also perform firefighting operations. Therefore, all WERE and
WERT members were captured above and none are profiled in this section
as providing only technical search and rescue.
According to NASAR, there are between 4,000 and 6,000 search and
rescue organizations in the United States. Information was not
available on the total number of individuals involved in search and
rescue. NASAR estimates that 90 percent of these organizations are
focused on wilderness search and rescue and the other 10 percent are
urban search and rescue organizations (Boyer, 2022). Urban search and
rescue groups are sponsored by fire departments and run by FEMA. Given
the overlap with fire departments, which are accounted for above, urban
search and rescue organizations are excluded from the count of affected
technical search and rescue groups estimated below. Wilderness search
and rescue organizations are typically under the purview of law
enforcement agencies (e.g., police departments, sheriff's offices,
etc.) and are staffed by volunteers.
An estimated 80 percent of wilderness search and rescue groups use
special skills or equipment during search and/or rescue (Boyer, 2022)
and are therefore considered to be technical search and rescue groups.
Combining the midpoint (5,000) of NASAR's estimate of total search and
rescue organizations with these estimates, OSHA estimates that there
are approximately 3,600 wilderness search and rescue groups that use
technical skills or equipment during missions (5,000 search and rescue
organizations x 90 percent wilderness x 80 percent using technical
skills or equipment). OSHA distributed these 3,600 groups across each
state based on the proportion of the population within each state
according to the U.S. Census Bureau (2022b). Accounting only for groups
in State Plan states where volunteers are considered employees, OSHA
estimates a total of 1,572 affected technical search and rescue groups.
Based on the number of MRA member organizations and individuals,
OSHA assumed that there are 30 volunteers per technical search and
rescue group (Miraglia, 2022). After multiplying the number of
technical search and rescue groups within each state by this estimate,
OSHA distributed these employees across employee class sizes using
ratios of employees within specific employee class sizes compared to
the total number of employees derived from Government Units Survey
data. OSHA made a further adjustment to account for instances where the
number of technical search and rescue groups exceeded the number of
volunteers estimated. These instances can occur since the relationships
between MRA's estimates, the Government Units Survey data, and U.S.
Census population data are not uniform from one state to another. In
instances where the number of technical search and rescue groups
exceeded the number of volunteers, the number of entities was capped at
half of the number of employees.\33\ OSHA then calculated the ratio
between the original number of technical search and rescue groups
(3,600) and the new adjusted number of technical search and rescue
groups (2,824) to scale the number of entities and employees to reflect
the original estimate of technical search and rescue groups. This
process results in a preliminary estimate of 3,600 technical search and
rescue groups and 137,675 technical search and rescue responders. All
of these technical search and rescue groups are public entities and all
associated responders are considered volunteers. After accounting for
State Plan status and whether or not a State Plan state covers
volunteers, the number of affected technical search and rescue
responders is adjusted to 60,106. OSHA welcomes comment on the
estimates and assumptions presented here. The agency also encourages
anyone with additional data that could be used to refine these
estimates to submit those data to the rulemaking record.
---------------------------------------------------------------------------
\33\ OSHA assumes that there are at least 2 volunteer responders
per technical search and rescue group.
---------------------------------------------------------------------------
OSHA separately researched private companies offering technical
search and rescue services using internet searches. However, given the
range of industrial sectors to which these companies appear to belong,
OSHA was not able to identify a comprehensive list of all such
companies in the U.S. Therefore, OSHA assumes that the number of
private companies involved in technical search and rescue is equal to
the number of FEMA Urban Search and Rescue Task Force locations
(28).\34\ OSHA requests additional data on private technical search and
rescue service providers that would allow the agency to better estimate
the universe of these employers.
---------------------------------------------------------------------------
\34\ https://www.fema.gov/emergency-managers/national-preparedness/frameworks/urban-search-rescue/task-force-locations.
---------------------------------------------------------------------------
To estimate the number of responders at these private technical
search and rescue companies, OSHA used the sample of companies it
identified via internet searches. Using Demographics Now (2023), OSHA
obtained the number of employees associated with each company. OSHA
also searched for employment numbers for each company through Manta and
ZoomInfo. OSHA then aggregated the companies and their respective
employee estimates into employment class sizes (<25, 25-49, 50-99, 100-
249, 250-499, and 500+). Using the percentage of companies that fell
into each employee class size, OSHA then scaled the number of employees
within each employee class size to reflect expected employment figures
for the estimated 28 companies. With this method, OSHA estimated 1,304
employees across private technical search and rescue companies.
OSHA used publicly available information to estimate approximately
15,000 Park Rangers employed in the United States (Zippia, 2023). OSHA
assumes that a third of these Park Rangers have technical rescue
skills, resulting in 5,000 additional technical search and rescue
responders, which are included in this industry profile.
To calculate the number of technical water rescue entities and
responders affected by the proposed rule, OSHA developed estimates of
the total number of public and private lifeguard agencies that use
specialized knowledge and skills using data from the USLA (USLA,
2022a). While pool and waterpark lifeguards would be excluded because
they do not use specialized equipment, beach and open water lifeguard
employees may be included, depending on whether or not they use
specialized equipment such as SCUBA, boats, personal watercraft, and
ATVs. There are other emergency responders, notably firefighters, who
also provide technical water rescue, but their numbers are already
accounted for elsewhere in the analysis. For the purposes of this
analysis, OSHA assumed that use of
[[Page 7861]]
rescue vehicles \35\ was linked to the provision of specialized
equipment and skills among lifeguards. Using USLA data on ownership of
rescue vehicles by lifeguard agencies, OSHA determined how many of
these employees might use rescue vehicles and therefore be potentially
subject to the proposed rule. The U.S. has 144 USLA-certified lifeguard
agencies (USLA, 2022b). According to USLA, 70 percent of all public
lifeguard agencies are USLA-certified (Brewster, 2022). OSHA,
therefore, estimates that there are 206 public lifeguard agencies
nationwide. USLA also indicated that 95 percent of all lifeguard
entities are public, which translates to an estimated 217 total (public
and private) lifeguard entities nationwide (Brewster, 2022), all of
which are assumed to have the potential to use rescue vehicles.
---------------------------------------------------------------------------
\35\ USLA defines rescue vehicles as lifeguard emergency
vehicles described as four-wheel-drive motor vehicles which are
legally permitted to drive on streets and highways.
---------------------------------------------------------------------------
OSHA counted the number of USLA-certified agencies in each state in
the USLA data and then proportionally distributed the remaining
lifeguard agencies based on the percentage of all USLA-certified
agencies within the state. Based on the statistics presented above, 95
percent of all agencies were assumed to be public and the remaining 5
percent private. Accounting only for public groups in State Plan States
and all private entities, OSHA estimates a total of 134 additional
affected technical water rescue entities.
OSHA used the same approach as used for the other technical search
and rescue organizations to distribute public and private agencies
among each employee class size for technical water rescue
organizations. Partial data on the number of full-time and part-time
employees at each lifeguard agency by year was available from USLA.
However, employment data for some currently certified lifeguard
agencies was unavailable. To fill in these gaps, OSHA calculated the
average number of full-time and part-time employees among the currently
certified lifeguard agencies with recorded employment data. OSHA then
calculated the average number of full-time and part-time employees per
agency in each state. These estimates were then multiplied by the
number of public and private entities in each state to estimate total
full-time and part-time employees within public and private entities.
OSHA then used USLA data on ownership of rescue vehicles by lifeguard
agency to determine how many of these employees might use rescue
vehicles and therefore be providing specialized equipment and skills.
OSHA calculated the average number of employees per rescue vehicle
across currently USLA-certified lifeguard entities and multiplied it by
the number of rescue vehicles per entity to estimate the number of
employees potentially operating rescue vehicles per entity. Next, OSHA
took the difference between total employment at each entity and the
expected number of employees given the number of rescue vehicles to
determine ``excess'' employees, or the employees at an entity that may
not operate a rescue vehicle. OSHA divided the total number of
``excess'' employees by total employment to determine the percentage of
all employees that do not use rescue vehicles. Then the percentage of
employees that do use rescue vehicles was multiplied by total public
and private employment within each employee class size to determine the
number of affected employees within each state. As a final step, OSHA
used the same approach as outlined above for the search and rescue
organizations, capping the number of entities at half the number of
employees estimated given the number of entities originally estimated
exceeded the number of employees. The number of entities and employees
was then scaled back up so that the total number of entities estimated
matched the original estimate. As shown in Table VII-B-10, there are an
estimated 8,275 affected technical water rescuers.
[[Page 7862]]
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[GRAPHIC] [TIFF OMITTED] TP05FE24.017
In summary, the total number of affected technical search and
rescue organizations and responders is presented in Table VII-B-11.
[GRAPHIC] [TIFF OMITTED] TP05FE24.018
[[Page 7863]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.019
F. Summary of Affected WEREs, ESOs, Responders, and Team Members
Table VII-B-12 summarizes the total estimated number of
organizations and responders affected by the proposed rule, drawing
from the profiles for WEREs, firefighters (Table VII-B-6), wildland
firefighters, emergency medical services (Table III-9), and technical
search and rescue groups (Table VII-B-11).
[[Page 7864]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.020
BILLING CODE 4510-26-C
V. Potentially Affected Small Entities
A. Determining Entity Size
Under the RFA, small governmental jurisdictions (sometimes referred
to as ``small governments'' in this analysis) are defined as
``governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than fifty
thousand.'' 5 U.S.C. 601(5). For this PEA, fire departments, EMS
providers, and technical search and rescue groups that are part of
state and local governments are referred to as small entities if the
government they are part of meets this definition of a small
governmental jurisdiction. For private entities, the RFA uses the
definition of ``small business'' found in the Small Business Act, which
authorizes the SBA to define ``small business'' by regulation. This
analysis uses the SBA's definition of a small business for each
industry sector (according to NAICS code) as defined in the SBA table
of size standards (SBA, 2019).
The available data on small governmental jurisdictions does not
allow OSHA to identify the number of fire departments or EMS providers
that serve these jurisdictions, or the number of firefighters and EMS
providers employed by small governments. To derive these estimates,
OSHA estimated the median population served per fire department
employee and used that to estimate how many workers a department would
need to employ to serve a population greater than 50,000. OSHA used
data from multiple Firehouse Magazine surveys to determine the median
population served per employee for career, volunteer, and mixed fire
departments at various employment size classes to extrapolate to the
entire universe of fire
[[Page 7865]]
departments. Part 1 of Firehouse Magazine's (2022) 2021 National Run
Survey presents data from 229 career fire departments' statistics about
population and staffing. Similarly, Firehouse Magazine has volunteer
and mixed fire department data from the 2021 Volunteer Fire Department
Run Survey and 2021 Combination Fire Department Run Survey,
respectively. Estimates of the median population served per employee
derived from each survey are multiplied by the number of employees for
each department in the U.S. Fire Administration's (USFA, 2022) registry
data (used for the Fire Department profile (see Section VII.B.IV.B))
within each employee size class to determine how many departments serve
populations of fewer than 50,000.
No comparable data are available for publicly operated EMS or
technical search and rescue groups. Therefore, OSHA calculated the
number of fire departments serving various population sizes compared to
the total number of fire departments and applied this ratio to the
total number of each of these other responder groups. This approach
estimates the number of government-operated EMS providers and technical
search and rescue groups serving populations of each size.
As mentioned above, private entities are defined as small pursuant
to the SBA's regulations at 13 CFR 121.201, which include different
definitions for each NAICS industry. For private fire departments, the
USFA (2022) registry data do not include the NAICS code of each
department, and these entities represent several industries, each with
a unique SBA definition.\36\ Most private firefighting entities are in
NAICS 561000 Administrative and Support Services, but WEREs can be
found across a wide variety of manufacturing, oil and gas,
petrochemical, and other industries and each 6-digit NAICS industry can
define small entities differently. As a simplifying assumption, OSHA
used an employment size class definition of 500 employees or fewer to
classify private fire departments as small. On balance, this approach
likely overestimates the number of affected small entities. While some
SBA size class definitions within NAICS 561000 use revenue definitions
of ``small'' that approximate to 500 employees, more industries'
definitions of ``small'' within this NAICS code approximate to 100
employees. OSHA uses the 500-employee definition of small fire
departments for this analysis--a method that would pull more ESOs into
the scope of this analysis than a lower threshold would.
---------------------------------------------------------------------------
\36\ Some information on the NAICS distribution of private
firefighting services is available from the BLS employment data, but
these are not at the 6-digit NAICS level needed to determine small
entity status using the SBA definitions.
---------------------------------------------------------------------------
Wildland firefighting services may also be distributed across
several NAICS codes given that many of these entities provide other
forestry support services such as logging, earth moving, and planting.
To estimate the number of wildland firefighting services for the small
entity analysis, OSHA used the proportion of firms in NAICS 115310
(Support Activities for Forestry) that are classified as SBA small to
distribute total wildland firefighting services into an SBA
classification. The SBA small entity definition for NAICS 115310 is
$8,000,000 in receipts, which OSHA converted to 100 employees.\37\
---------------------------------------------------------------------------
\37\ This conversion was made by finding the largest employment
size class with revenue less than $8.0 million per entity in the
U.S. Census Bureau's (2021) Statistics of U.S. Businesses data for
2017, with revenue adjusted to 2022$ using the Bureau of Economic
Analysis (BEA, 2023) implicit price deflators for gross domestic
product.
---------------------------------------------------------------------------
For private emergency medical services (NAICS 621910 Ambulance
Services), SBA defines a small entity as one with annual revenues of
$16.5 million or less. To use this definition in conjunction with the
U.S. Census data used to profile this industry, OSHA converted the
revenue data to an employment size class-based definition.\38\ The
result is that entities with fewer than 500 employees are determined to
meet the SBA definition of a small entity.
---------------------------------------------------------------------------
\38\ This conversion was made by finding the largest employment
size class with revenue less than $16.5 million per entity in the
U.S. Census Bureau's (2021) Statistics of U.S. Businesses data for
2017, with revenue adjusted to 2022$ using the Bureau of Economic
Analysis (BEA, 2023) implicit price deflators for gross domestic
product.
---------------------------------------------------------------------------
This PEA examines costs by entity employment size class including
the six employment size classes used to estimate unit costs for
entities of various sizes (fewer than 25, 25-49, 50-99, 100-249, 250-
499, and 500-plus employees). For state prison inmate populations
engaged in wildfire fighting, the state is assumed to be the affected
entity, where all affected states are assumed to be large based on the
RFA definition.
For fire departments, the USFA (2022) registry data used for the
profile provides an estimate of the number of employees of various
types at each department, and departments are allotted to employment
size classes using the total number of employees. For wildland
firefighting services, OSHA combined data on the number of these
entities represented by the NWSA with the distribution of entities and
associated employees in NAICS 115310 Support Activities for Forestry to
estimate the number of wildland firefighting service employees per
employment size class.
For emergency medical services, OSHA allocated the NAEMT (2014)
data on the total number of responders and ESOs into employment size
classes using the distribution in the U.S. Census Bureau's (2021) SUSB
data for NAICS 621910 Ambulance Services for 2017, which includes data
on the number of entities and employees by detailed size class.
For the public technical search and rescue services, OSHA estimated
the total number of organizations from NASAR and MRA and adjusted this
estimate for the percent that use specialty skills or equipment during
search and rescue. Because there were no available data on these
organizations' location or size characteristics, OSHA distributed these
groups across each state using the percent of the overall U.S.
population residing in a given state (U.S. Census Bureau, 2022b). Next,
OSHA distributed the entities by employee class size using the
Government Units Survey (GUS) data from U.S. Census Bureau (U.S. Census
Bureau, 2017b) as a proxy for local government law enforcement
agencies. OSHA then calculated the proportion of all local government
entities that fall within each employee class size using the GUS data
and multiplied these proportions by the total number of search and
rescue groups in each state. The same approach was used to distribute
total employees (developed from MRA data on the average number of
employees per organization) by employee class size. As outlined in
section VII.B.VI.E, OSHA made a further adjustment to cap the number of
entities to half of the number of employees and then scaled the number
of entities and employees back up to reflect the number of entities
originally estimated.
For private technical search and rescue companies, OSHA used
employment and revenue figures for the sample of companies it
identified via internet searches and their respective SBA definitions.
Each of the identified technical search and rescue companies has a
unique SBA definition of a small entity, with some based on employment
and others on revenues. Based on the varying definitions for these
companies, OSHA determined that seven of the eight companies are
considered small based on their SBA definition. OSHA then scaled up to
obtain an estimated total of 25 small technical search and rescue
companies.
[[Page 7866]]
Finally, for the additional group of technical water rescuers, OSHA
used data on lifeguarding entities in the U.S., limiting the affected
employees to those using rescue vehicles in their activities to
indicate those individuals using specialized equipment or skills. OSHA
used the same process for allocating entities and employees to employee
class sizes as outlined above for technical search and rescue.
B. WEREs
In the absence of data specific enough to identify the industry
sector associated with each of the 1,500 WEREs, OSHA assumed that all
1,500 WEREs are small under SBA definitions, with all 64,500 WERT
members working at these small WEREs.
C. Fire Departments and Responders by Population Served
As noted above, the population served by each fire department is
estimated using the number of firefighters in the USFA (2022) registry
data and the ratio of the population served to firefighters in
Firehouse Magazine's (2022) surveys for career, volunteer, and mixed
departments. Table VII-B-13 presents the number of public fire
departments estimated to serve a population of 50,000 people or fewer
affected by the proposed rule, accounting for the adjustments noted
earlier in this chapter (removing public entities in non-State Plan
states, removing volunteers in State Plan states that do not cover
volunteers, and removing non-firefighting volunteers and civilians).
[GRAPHIC] [TIFF OMITTED] TP05FE24.021
Table VII-B-14 shows the number of firefighters estimated to serve
a population of 50,000 people or fewer.
[GRAPHIC] [TIFF OMITTED] TP05FE24.022
D. Wildland Firefighting Services
As mentioned in section VII.B.V.A, OSHA used the proportion of
firms in NAICS 115310 that are small from the Census Bureau's SUSB
dataset (2021) based on that NAICS' SBA definition ($8,000,000 in
receipts, which OSHA converted to 100 employees) to determine the
number of small wildland firefighting entities. Table VII-B-15 shows
the number of wildland firefighting entities that are small based on
the SBA definition, as well as the responders at those small entities.
[GRAPHIC] [TIFF OMITTED] TP05FE24.023
E. Emergency Medical Services
As outlined in section VII.B.V.A, small entity determinations for
private EMS entities are based on the SBA definition for NAICS 621910
Ambulance Services ($16.5 million or less in revenue, which OSHA
converted to 500 employees or less). Public EMS entities are small if
they serve a
[[Page 7867]]
population of fewer than 50,000 people. Table VII-B-16 presents the
number of small EMS entities based on both definitions. Table VII-B-16
also shows the number of responders at these small EMS entities.
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[GRAPHIC] [TIFF OMITTED] TP05FE24.024
F. Technical Search and Rescue
As described above, OSHA's method for estimating the technical
search and rescue universe included data from wilderness and urban
search and rescue organizations, lifeguard agencies, and private
companies. Table VII-B-17 presents the estimated number of affected
small technical search and rescue groups, as well as the number of
responders among those affected entities.
[[Page 7868]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.025
G. Summary of Affected Small Entities
Table VII-B-18 summarizes the number of small organizations and
responders according to either RFA definitions (for public ESOs) or SBA
definitions (for private ESOs and WEREs).\39\
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\39\ See section V for a discussion of how entity size was
determined.
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[[Page 7869]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.026
BILLING CODE 4510-26-C
References
Biancolli, A. (2018). Albany County launches inmate firefighter-
training program. Available at https://www.timesunion.com/7day-albany/article/Albany-County-launches-inmate-12870374.php. (Accessed
May 29, 2023)
Boyer, C. (2022). Personal communication with the National
Association for Search and Rescue (NASAR).
Brewster, B.C. (2022). Personal communication with United States
Lifesaving Association (USLA).
Bureau of Justice Statistics (BJS). (2022). Census of State and
Local Law Enforcement Agencies, 2018--Statistical Tables. Available
at https://bjs.ojp.gov/library/publications/census-state-and-local-law-enforcement-agencies-2018-statistical-tables. (Accessed November
16, 2022)
Bureau of Labor Statistics (BLS). (2022a). Occupational Employment
and Wage Statistics--May 2021 (Released April 4, 2022). Available at
https://www.bls.gov/oes/#data. (Accessed April 8, 2022)
California Department of Corrections and Rehabilitation (CDCR).
(2023). Conservation (Fire) Camps Program. Available at https://www.cdcr.ca.gov/facility-locator/conservation-camps/. (Accessed May
29, 2023)
Firehouse Magazine. (2022). 2021 Volunteer Fire Department Run
Survey. Available at https://www.firehouse.com/careers-education/document/21278671/2021-volunteer-fire-department-run-survey.
(Accessed November 17, 2022)
Maddux, S. (2020). Prisoner Firefighters Giving Back to Society.
Available at https://hometownnewsnow.com/local-news/515917.
(Accessed May 29, 2023)
Miley, D. (2022). Personal communication with National Wildfire
Suppression Association (NWSA).
Miraglia, M. (2022). Personal communication with Mountain Rescue
Association (MRA).
Mountain Rescue Association (MRA). (2022). MRA Mission Data
Dashboard. Available at https://experience.arcgis.com/experience/6b84b11fc6eb495ea518ee964b79f712/. (Accessed October 21, 2022)
National Association of Emergency Medical Technicians (NAEMT).
(2014). EMS statistics. Available at http://www.naemt.org/about_ems/statistics.aspx. (Accessed October 27, 2014)
National Wildfire Suppression Association (NWSA). (2022). National
Wildfire Suppression Association Member List.
[[Page 7870]]
Available at http://www.nwsa.us/. (Accessed October 4, 2022)
Nevada Division of Forestry. (2023). Conservation Camps. Available
at http://forestry.nv.gov/conservation-camps-program. (Accessed May
29, 2023)
Office of the Arizona Governor. (2021). Arizona Healthy Forest
Initiative. Available at https://azgovernor.gov/sites/default/files/arizona_healthy_forest_initiative_one-pager.pdf. (Accessed May 29,
2023)
Small Business Administration (SBA). (2019). Table of Small Business
Size Standards--August 19, 2019. Available at https://www.sba.gov/contracting/getting-started-contractor/make-sure-you-meet-sba-size-standards/table-small-business-size-standards. (Accessed January 8,
2020)
Stenvick, B. (2020). Prison Inmates Are Fighting Oregon Wildfires
for Under $10 a Day. Available at https://www.portlandmercury.com/news/2020/08/21/28756155/prison-inmates-are-fighting-oregon-wildfires-for-under-10-a-day. (Accessed May 29, 2023)
U.S. Census Bureau. (2017a). State and local government employment
and payroll data: March 2017. Available at https://www.census.gov/programs-surveys/cog/data/tables.All.html. (Accessed July 7, 2020)
U.S. Census Bureau. (2017b). Government Units Survey. Available at
https://www.census.gov/data/datasets/2017/econ/gus/public-use-files.html. (Accessed July 6, 2020)
U.S. Census Bureau. (2021). 2017 SUSB Annual Datasets by
Establishment Industry--May 2021 (Last Revised: May 6, 2021).
Available at https://www.census.gov/data/datasets/2017/econ/susb/2017-susb.html. (Accessed June 3, 2021)
U.S. Census Bureau. (2022a). Annual Survey of State and Local
Government Finances--2017 State & Local Government Finance
Historical Tables. Revised July 6, 2022. Available at https://www.census.gov/data/tables/2017/econ/gov-finances/summary-tables.html. (Accessed November 2, 2022)
U.S. Census Bureau. (2022b). County Population Totals: 2020-2021:
Annual Estimates of the Resident Population for Counties: April 1,
2020 to July 1, 2021. Available at https://www.census.gov/data/tables/time-series/demo/popest/2020s-counties-total.html. (Accessed
October 12, 2022)
U.S. Department of Agriculture (USDA). (2023). OSHA communication
with USDA and U.S. Department of Interior, (November 30, 2023)
U.S. Fire Administration (USFA). (2022). U.S. Fire Administration
(USFA) National Fire Department Registry: National Data. Available
at https://apps.usfa.fema.gov/registry/download. (Accessed May 17,
2022)
United States Government Accountability Office (GAO). (2022).
Wildland Fire: Barriers to Recruitment and Retention of Federal
Wildland Firefighters. Available at https://www.gao.gov/products/gao-23-105517. (Accessed December 1, 2023)
United States Lifesaving Association (USLA). (2022a). American
Lifeguard Rescue and Drowning Statistics for Beaches. Available at
https://www.usla.org/page/Statistics. (Accessed November 16, 2022)
United States Lifesaving Association (USLA). (2022b). USLA Certified
Programs. Available at https://www.usla.org/page/CERTIFIEDAGENCIES.
(Accessed November 16, 2022)
Washington State Department of Corrections (WA DOC). (2023). Work
Crews. Available at https://www.doc.wa.gov/corrections/programs/work-crews.htm. (Accessed May 29, 2023)
Wildland Fire Jobs. (2022). List of Wildland Fire Contractors.
Available at https://wildlandfirejobs.com/list-of-wildland-fire-contractors/. (Accessed October 4, 2022)
Zippia. (2023). Park Ranger Demographics and Statistics in the US.
Available at https://www.zippia.com/park-ranger-jobs/demographics/.
(Accessed December 1, 2023)
C. Costs of Compliance
I. Introduction
This chapter presents OSHA's preliminary analysis of the compliance
costs associated with the proposed emergency response standard.
OSHA estimates that the proposed rule would cost $661 million per
year in 2022 dollars.\40\ All costs were annualized using a discount
rate of 3 percent, which--along with 7 percent and 0 percent--is one of
the discount rates recommended by OMB.\41\ A 10-year period is used to
annualize one-time costs. Note that the benefits of the standard,
discussed in section D of this PEA, were annualized over a 50-year
period to reflect the time needed to sufficiently capture the full
benefits of the proposal. Therefore, the time horizon of OSHA's
complete analysis of this rule is 50 years. Employment and production
in affected sectors are implicitly held constant over this time horizon
for purposes of the analysis. All non-annual costs are implicitly
estimated to repeat every ten years over the 50-year time horizon,
including one-time costs that recur because of changes in operations
over time or because of new entrants that must comply with the
standard.\42\
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\40\ Any adjustments to the price year reflect the use of the
GDP Deflator (https://www.bea.gov/data/prices-inflation/gdp-price-deflator).
\41\ Table VII-C-16 provides estimated costs using a 7% discount
rate, while Table VII-C-17 provides undiscounted costs.
\42\ To the extent one-time costs do not recur, OSHA's cost
estimates, when expressed as an annualization over a 10-year period,
will overstate the cost of the proposed standard.
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The remainder of this chapter is organized as follows: first, OSHA
discusses cost assumptions used in the analysis, followed by the
derivation of the wage information used in the analysis. Next OSHA
presents unit and total costs by affected emergency response service
sectors and by applicable provision of the proposed rule. The final
section presents the total costs of the proposed rule for all affected
entities and responders as well as those that meet the SBA/RFA
definitions of small entities and those with fewer than 20 employees.
II. Cost Assumptions
This section describes the cost assumptions used in this analysis
including those relevant to baseline conditions and type and frequency
of medical exams for certain responders (i.e., firefighters).
A. Baseline Non-Compliance Rates
The estimated costs of the proposed rule are measured against the
baseline activities of the affected emergency services sectors. The
baseline for this analysis includes existing conformity with the
provisions of the proposed rule, which is discussed in terms of
entities with practices that currently do not conform with the proposed
rule and would therefore incur costs to comply with it.
Table VII-C-1 shows the estimated baseline non-compliance rate for
each provision of the proposed rule by entity size, for WEREs, fire
departments, wildland firefighting services, EMS providers, and
technical search and rescue groups. OSHA has estimated that few to no
small WEREs and ESOs currently have many of the plans required by the
proposed rule while the majority of very large ESOs are doing much of
what this proposed rule would require. This conclusion is consistent
with comments made by SERs during the SBREFA process suggesting that
larger organizations are likely to have more resources to implement
consensus standards like NFPA 1582 (Document ID 0115). OSHA's estimates
of baseline non-compliance rates were based on consultation with
emergency response organizations and the professional expertise of OSHA
personnel. Non-compliance rates were first estimated for organizations
with 250-499 responders and then scaled to the other size classes.
For both structural and wildland fire departments, the percentage
of firefighters in each group that currently do not receive a full
medical exam as defined in the proposed rule is presented in Table VII-
C-1. For structural firefighters, the estimates of non-compliance for
the full medical exam are broken out by the department
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type in which firefighters serve (career, volunteer, or mixed). These
estimates are derived from a 2016 survey conducted by the IAFC's
Safety, Health and Survival Section (LeDuc, 2018). The non-compliance
rate for professional wildland firefighters is assumed to be the same
as for career firefighters, while the non-compliance rate for inmate
firefighters is assumed to be the same as for volunteer firefighters.
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B. Type and Frequency of Medical Exams
(i) Exposure Threshold Adjustments
The proposed rule requires all team members and responders, except
those in a support tier, to receive a basic medical exam, with
additional screening required in certain circumstances. This exam must
be given once initially and repeated at least biennially. In addition,
team members and responders who are, or based on experience may be,
exposed to combustion products 15 or more times a year without regard
to the use of respiratory protection must be provided an expanded
medical exam that is at least equivalent to the criteria specified in a
national consensus standard (like NFPA 1582). Therefore, OSHA made
additional adjustments to the population of responders for which ESOs
would incur the cost of each medical exam based on how many times per
year responders are exposed to combustion products. Table VII-C-2
presents the percentage of responders within each responder group that
would be required to undergo each type of medical exam. WERT members
are all expected to undergo the minimum medical exam, with 12.5 percent
of those team members estimated to also require additional heart
screening tests.\43\ OSHA assumes that no WERT members will reach the
15-times-a-year exposure threshold for expanded medical exams.
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\43\ Le Duc 2018 indicated approximately 12.5 percent of
firefighters had some type of underlying, significant cardiovascular
issues such as hypertension, elevated cholesterol levels, or
abnormal stress that indicated a need for additional screening.
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For responders at EMS and technical search and rescue ESOs, OSHA
assumed that no responders would meet the 15-combustion product
exposure event threshold that would require an expanded medical exam.
Therefore, responders in these groups all undergo the minimum medical
evaluation, with 12.5 percent estimated to undergo further heart
screening tests. In order to estimate the percentage of firefighters
that would meet the 15-combustion product exposure event threshold,
OSHA obtained data from the NFPA on the number of firefighters and fire
calls responded to categorized by department type (all-career, mostly
career, mostly volunteer, and all-volunteer) and population served size
brackets. OSHA extrapolated the NFPA data to represent a national
estimation of firefighters and fire calls by each department type and
population served bracket. Assuming that an average of eight
firefighters respond to a single fire call, OSHA determined that 96.4
percent of firefighters at career fire departments within the 250-499
employee class size, 21.9 percent at mixed fire departments, and 0.2
percent at volunteer fire departments would meet the 15-combustion
product exposure event threshold. OSHA scaled these percentages to
reflect an assumption that the percentage of firefighters meeting the
exposure threshold would decrease as the department size decreased.
Firefighters with more than 15 exposures, plus a subset of firefighters
that do not exceed the threshold but have medically indicated health
risks warranting more medical evaluation (assumed to be 2 percent of
firefighters within each department type), are estimated to undergo an
expanded medical exam (referred to as additional ESO surveillance in
the proposed rule and in Table VII-C-2). Firefighters who do not meet
the event threshold would undergo the minimum medical exam, with 12.5
percent of those firefighters also undergoing the additional heart
screening.
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(ii) Frequency of Medical Exams
Unlike most provisions of the proposed rule, the number of
responders undergoing each medical exam type changes each year due to
new hires needing a medical exam. Other established employees may need
to be reexamined, since the minimum medical exam is required every
other year. OSHA calculated the number of responders and team members
expected to undergo each medical exam based on the hire rates for each
responder group, the percentage of responders needing each medical exam
based on the event threshold of 15 or more combustion product exposure
events per year, and how often the exam is required under this
standard.
OSHA derived a formula (shown below in Equation 1) for the number
of responders requiring a medical exam nt in a given year t. Initially,
a very large cohort would receive their first medical exam together in
the first year after implementation of the proposed rule. In subsequent
years, new hires would require their initial exam, and those who are
not new hires would be re-examined periodically. However, the initial
cohort would continue to have a large effect, as they would all be re-
examined together every k years. During years when this initial cohort
is not up for re-examination, the number receiving an exam will be
smaller and limited to individuals who were hired later and entered the
workforce when the initial cohort was not being re-examined. As time
passes, the imbalance produced by this initial cohort will gradually
reduce, and the initial cohort will decrease in size due to turnover.
The number of exams given per year will approach a long-run value
nequil.
Equation 1, explained in detail below, accounts for all of these
effects associated with the initial cohort, its re-examination years,
and new hires. The number of responders requiring a medical exam nt in
year t takes one of three forms depending on whether the year t in
question (a) is re-examination year for the first large cohort, (b)
immediately follows a re-examination year for the first large cohort,
or (c) is more than one year after a re-examination year for the first
large cohort.
[GRAPHIC] [TIFF OMITTED] TP05FE24.032
Where:
nt is the number of responders requiring a medical exam in
year t.
N is the total number of responders.
p is the retention rate, which could alternatively be
defined as 1 minus the hire rate.
nequil is the long-run number of medical exams
per year.
nt-1 is the number of exams given in the
preceding year t-1.
The long-run number of medical exams per year nequil is
calculated in the following way and depends on the time between exams
k. For example, if an exam is required every 5 years, then k = 5.
[GRAPHIC] [TIFF OMITTED] TP05FE24.033
Based on the hiring rates for similar jobs with EMS providers
reported in Patterson et al., 2010 and BLS job growth projections, OSHA
estimated that the annual hire rate for fire departments is 10 percent.
For EMS providers, the annual hire rate is estimated to be 10.7 percent
(Patterson et al., 2010). OSHA assumed wildland fire services, search
and rescue groups, and technical water rescue entities have a similar
hire rate to firefighters for this analysis.
III. Wage Estimates Used in the Analysis
Labor costs associated with the proposed rule were derived using
wage data from BLS' cross-industry OEWS for May 2022 (BLS, 2023). Table
VII-C-3 shows the loaded hourly wages used in the analysis. To the
extent possible, OSHA employed the relevant occupational wage category.
As discussed below, for example, OSHA used SOC code 33-2011
Firefighters to estimate the wage for career firefighters.
Volunteer firefighters, volunteer EMS providers, and volunteer
technical search and rescue group members, however, do not receive
wages for their services, and the career emergency responder wages may
not be an accurate characterization of the opportunity cost of
volunteers' time. The same is true for inmate firefighters, who are
typically paid very little or nothing for their work.\44\ Therefore,
OSHA is not using career responder wages to estimate compliance costs
for volunteer responders and inmate firefighters. For these responders,
OSHA believes it is more appropriate to use the overall private
industry median hourly wage, $21.42, because volunteers come from a
broad spectrum of the workforce; their primary occupational wage is a
proxy for the opportunity cost of their time. OSHA recognizes that
compliance costs related to inmate firefighters are likely an
overestimate since the opportunity cost of their time is different from
the average non-incarcerated individual. Accordingly, OSHA created a
weighted average for responders of all types using the number of
volunteer \45\ and non-volunteer responders who would be covered by the
proposed rule. For firefighters, the weighted average is calculated
with 332,658 career and paid-per-call firefighters making the BLS OEWS
median hourly wage for SOC 33-2011 Firefighters ($24.85) and 187,519
volunteer firefighters making
[[Page 7877]]
the private industry median hourly wage ($21.42), for a weighted
average base hourly wage of $23.61. These estimates are also used to
represent wildland firefighter wages, including inmate wildland
firefighters. For WEREs, OSHA used the cross-industry, private sector
median wage for SOC code 11-1021 General and Operations Managers to
represent the wage of WERT leaders and the cross-industry, private
sector median wage of all occupations to represent the wage of WERT
members. These wages equal $46.65 and $21.42, respectively. For EMS
providers, the weighted average is calculated with 280,846 responders
in career and mixed (career and volunteer) ESOs making the BLS OEWS
median hourly wage for SOC 29-2040 Emergency Medical Technicians and
Paramedics ($18.95) and 80,111 responders in volunteer ESOs making the
private industry median hourly wage ($21.42), for a weighted average
base hourly wage of $19.50. Note that while the median wage used for
volunteers is higher than the BLS OEWS wage for EMS providers, OSHA
uses that median wage for volunteer EMS providers as well as for
volunteer firefighters in this analysis to maintain consistency. OSHA
solicits comments on these estimates and, in particular, is interested
in whether the valuation of volunteers' time and incarcerated
individuals' time is reasonable. The agency welcomes suggestions and
thoughts on different wage rates that commenters feel might better
capture the value of these responders' time.
---------------------------------------------------------------------------
\44\ https://www.prisonpolicy.org/blog/2017/04/10/wages/.
\45\ For the purposes of this PEA, inmate firefighters are
treated the same as volunteer responders.
---------------------------------------------------------------------------
OSHA developed separate wage estimates for wilderness and urban
search and rescue and additional technical water rescue groups. For
wilderness and urban search and rescue responders, the weighted average
is calculated with 1,304 responders in career ESOs making the BLS OEWS
median hourly wage for SOC 33-9092 Lifeguards, Ski Patrol, and Other
Recreational Protective Service Workers ($13.11) and 60,106 responders
in volunteer ESOs making the private industry median hourly wage
($21.42), for a weighted average base hourly wage of $21.24. There are
no volunteer technical water rescuers in the industry profile, so the
BLS OEWS median hourly wage for SOC code 33-9092 Lifeguards, Ski
Patrol, and Other Recreational Protective Service Workers ($13.11) is
used in this analysis for technical water rescuers.
OSHA applied a fringe benefits rate of 31.0 percent to the base
wages, drawn from BLS' Employer Costs for Employee Compensation for
December 2022 (BLS, 2023) to account for the value of fringe benefits
provided by the employer. OSHA then calculated total compensation as
wages plus benefits. There are also indirect expenses that cannot be
tied to producing a specific product or service, called overhead costs.
Common examples include rent, utilities, and office equipment. There is
no general consensus on the cost elements that fit this definition and
the lack of a common definition has led to a wide range of overhead
estimates. Consequently, the treatment of overhead costs needs to be
case-specific. In this analysis, OSHA used an overhead rate of 17
percent of base wages (EPA, 2002; Rice, 2002). This 17 percent rate is
based on an estimate of overhead costs for safety and health
professionals in large private organizations. This overhead rate is
consistent with, for example, the overhead rate used for sensitivity
analyses in the Final Economic Analysis (FEA) in support of the 2017
final rule delaying the deadline for electronic submission of certain
injury and illness data (82 FR 55761) and the FEA in support of OSHA's
2016 final standard on Occupational Exposure to Respirable Crystalline
Silica \46\ (83 FR at 36501). OSHA expects that this rate may be an
overestimate in this context, as this reflects a component of average
overhead; in this case, however, the agency anticipates that, for
example, emergency responders will be able to work within the general
physical infrastructure they currently operate in. A rate of 17 percent
of base wages is equivalent to 11.73 percent of the hourly wage rate
with fringe applied.\47\ To calculate the fully loaded hourly labor
cost, OSHA added the three components together: base wages + fringe
benefits (31.0 percent of base wages) + applicable overhead (17 percent
of base wages).
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\46\ See the sensitivity analyses in the Improved Tracking FEA
(https://www.gpo.gov/fdsys/pkg/FR-2017-11-24/pdf/2017-25392.pdf,
page 55765) and the FEA in support of OSHA's 2016 final standard on
Occupational Exposure to Respirable Crystalline Silica (81 FR 16285)
(https://www.gpo.gov/fdsys/pkg/FR-2016-03-25/pdf/2016-04800.pdf
pp.16488-16492.). The methodology was modeled after an approach used
by the Environmental Protection Agency. More information on this
approach can be found at: U.S. Environmental Protection Agency,
``Wage Rates for Economic Analyses of the Toxics Release Inventory
Program,'' June 10, 2002 (Ex. 2066). This analysis itself was based
on a survey of several large chemical manufacturing plants: Heiden
Associates, Final Report: A Study of Industry Compliance Costs Under
the Final Comprehensive Assessment Information Rule, Prepared for
the Chemical Manufacturers Association, December 14, 1989, Ex. 2065.
\47\ This is calculated as 69 percent x 17 percent, i.e., the
percent of wages that are the base hourly rate exclusive of fringe
(69 percent) multiplied by the overhead rate as a percentage of base
hourly wages (17 percent).
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IV. Estimated Compliance Costs
This section presents the unit and total costs of the proposed rule
by emergency services sector and provision. First, the components of
each provision as they pertain to fire departments and wildland fire
services are detailed, followed by a description of any differences in
requirements or approaches to deriving estimates for WEREs, emergency
medical services ESOs, and technical search and rescue ESOs. Where
appropriate, to account for variations in unit costs by size of entity,
OSHA first estimated the labor hours per provision for establishments
in the 250-499 employee size class. Using that estimate as the base,
OSHA scaled the estimates proportionally for the unit time estimates
for establishments in the other size classes. Generally, where an
activity is estimated to take less than an hour, the same estimate is
used across organization sizes since scaling down very small time
estimates would result in unreasonably low time estimates for smaller
establishments.
Unless otherwise noted in this section, the time estimates for
complying with proposed provisions are based on OSHA's professional
expertise, considering what the proposed rule requires and estimates of
the hours necessary to comply with similar requirements in other OSHA
rules.
A. Firefighting
As described in the Profile of Affected Industries, these
organizations include private and public entities engaged in structural
and wildland firefighting. Responders at these entities may be
volunteer or career. This group represents the vast majority of
entities and responders who would be affected by the proposed rule.
Wildland firefighting services providers include private sector
ESOs that provide less common types of firefighting services, primarily
to state and Federal agencies. These services typically support
wildland fire suppression and include direct firefighting as well as
support services such as transportation and food supply services. There
are also some states that utilize prison labor as supplementary
personnel for state wildfire fighting programs.\48\
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\48\ Note that in this analysis, the seven State Plan states
with inmates potentially engaged in wildfire fighting are assumed to
incur the costs of the proposed rule. This approach means that state
governments would be the organization and would incur organization
level costs once. It may be possible that organization level costs
are incurred for each conservation camp (the minimum-security camps
that house inmates serving as firefighters) that has inmates
potentially engaged in wildfire fighting. OSHA welcomes comment on
this issue.
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(i) Rule Familiarization
All ESOs and WEREs affected by the proposed rule would need to
review the requirements under the proposed rule. OSHA estimates that
rule familiarization would take an organization leader two hours to
complete.
(ii) ESO Establishment of ERP and Emergency Service(s) Capability
Under paragraph (d) of the proposed rule, ESOs would be required to
develop, update, and revise an emergency response program. They would
have to conduct a community and/or facility vulnerability assessment to
establish their emergency response capabilities, develop mutual aid
agreements with other ESOs as necessary to ensure adequate resources
are available to safely mitigate foreseeable incidents, evaluate
resources needed, and establish tiers of responders. Except for the ERP
revision and update, all of these tasks are one-time activities, and
all would be carried out by an organization leader. See Table VII-C-5
for the specific labor hours OSHA estimates would be incurred for each
activity at ESOs in all employment size classes. Table VII-C6 presents
the associated unit costs.
(iii) Team Member and Responder Participation
Under paragraph (e) of the proposed rule, ESOs would be required to
involve team members and responders in the process of developing,
updating, implementing, and evaluating the ERP and in inspections and
incident investigations at their own facilities. ESOs would also have
to encourage responders to report safety and health concerns and
respond to those concerns within a reasonable timeframe. In addition,
they would be required to post signs explaining procedures in place for
reporting on safety and health concerns. Both of these activities would
occur annually, with labor hours incurred by firefighters for all
activities except the posting of signs, which would be carried out by
an organization leader. See Table VII-C-5 for the specific labor hours
OSHA estimates would be incurred for each activity at ESOs in all
employment size classes. Table VII-C-6 presents the associated unit
costs.
(iv) WERT and ESO Risk Management Plan
Under paragraph (f) of the proposed rule, ESOs would be required to
prepare and annually update a comprehensive risk management plan (RMP).
The minimum requirements to be covered in the plan are itemized in
paragraph (f)(1) of the proposed rule. Development of the plan is a
one-time activity while updating should occur annually.\49\ Both of
these activities would be carried out by an organization leader. See
Table VII-C-5 for the specific labor hours OSHA estimates would be
incurred for each activity at ESOs in all employment size classes.
Table VII-C-6 presents the associated unit costs.
---------------------------------------------------------------------------
\49\ For this analysis, OSHA estimates that as-needed plan
updates will occur infrequently enough that assuming annual updates
for all entities will be representative of the average firm.
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(v) Medical and Physical Requirements
Under paragraph (g) of the proposed rule, and as discussed in
detail in the Summary and Explanation, ESOs must establish minimum
medical requirements for responders, have responders medically
evaluated (at no cost to the responder), and have their fitness for
duty evaluated. Exposures to combustion products would be tracked and
all medical information would be maintained in a confidential record
for each responder. Beyond these requirements, ESOs would be required
to establish and implement a health and fitness program that enables
responders to develop and maintain a level of physical fitness that
allows them to safely perform their assigned functions, as well as a
behavioral health and wellness program to maintain mental fitness to
safely perform their duties and to address occupational risk factors
for behavioral health. Developing the plan for the health and fitness
program is a one-time activity, while a fitness assessment would take
place every three years and would involve both the time of a responder
and organization leader, one hour each (this estimate may overstate the
amount of time necessary for the fitness assessment if groups of
responders can be evaluated at the same time). OSHA assumes that
fitness for duty assessments and fitness education and counseling will
coincide with periodic refresher training or similar events, which are
already captured in the training provision (see Section IV.I.E.).
The proposed rule would provide a framework for encouraging
responders to maintain fitness levels commensurate with their
responsibilities including, for example, providing exercise training.
However, the agency believes that the proposed rule would not require
an increase in responder compensation by their organizations. For
example, fitness exercises are routine among firefighters
[[Page 7880]]
during downtime (see Poston, et al. (2013), which found that between 80
and 95 percent of firefighters surveyed reported engaging in exercise
at least ``some days'' while at the fire station). The agency welcomes
comment on this aspect of the analysis. Table VII-C-5 presents
estimates of the labor hours incurred for each activity at ESOs by
employment size class. Table VII-C-6 presents the associated unit
costs.
The proposed rule would require that responders receive, at a
minimum, a medical evaluation every two years that includes a medical
and work history, physical examination, spirometry, and assessment of
heart disease risk (includes assessment of blood pressure, cholesterol
levels, and relevant heart disease risk factors such as blood glucose).
Note that OSHA's estimated cost of these services accounts for the fact
that some individuals may already be receiving them (see Section C.II.A
on Baseline Non-Compliance Rates). Responders who show signs of heart
disease risk or who are, or may be, exposed to combustion products 15
or more times a year will require additional screening. To estimate the
percentage of responders needing each type of exam, OSHA relied on the
frequencies in the 2018 NFPA 1582 standard's recommendations for
occupational medical programs. In addition, since some tests are only
recommended or needed for firefighters of certain ages or sex, OSHA
also used NFPA's (2022) estimate of the number of firefighters by age
and sex. The percentage of firefighters needing each exam is multiplied
by the unit cost for each exam to derive a weighted average unit cost
for initial and periodic medical surveillance (for example, if only
half of all firefighters needed a given test, the weighted average per
firefighter for all firefighters would be 50 percent of the cost of the
test). Table VII-C-4 presents the derivation of the weighted average
unit costs for medical surveillance.
The proposed rule would require additional medical screening for
responders if determined by the ESO or WERE to be appropriate for the
particular type and level of service provided or if deemed appropriate
by the PLHCP conducting the baseline screening. OSHA assumed that this
additional screening would include an electrocardiogram (EKG), a
coronary artery calcium (CAC) score test, and an exercise stress test
(EST).
The proposed rule would also require that responders who are either
exposed to combustion products 15 times or more a year or show signs or
symptoms that may have resulted from exposure to combustion products
receive a medical evaluation that is at least equivalent to the
criteria outlined by a national consensus standard. For this PEA, OSHA
uses the NFPA 1582 medical exam to represent the estimated costs of
this additional medical evaluation. As outlined above, not every
responder would need every component of the NFPA 1582 exam since
certain medical components are age- and/or sex-specific. The unit costs
and percentages of responders undergoing each medical component are
presented in Table VII-C-4.
The unit costs for medical surveillance are drawn from the Centers
for Medicare & Medicaid Services (CMS, 2022a) Physician Fee Schedule
data for 2022, CMS (2022b) Clinical Laboratory Fee Schedule data for
2022, the Centers for Disease Control and Prevention (CDC, 2023) Adult
Vaccine Price List, GoodRx's (Khan, 2023) estimate of the cost of a
colonoscopy, HealthInsurance.com's (2022) estimate of the cost to
receive a vision test, and Tatar et al.'s (2020) estimate of the cost
of Hepatitis C screening. The unit costs are applied per exam per
employee. The cost of the exam is added to the per hour cost for the
employee to undergo the exam.
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(vi) Training
Under paragraph (h) of the proposed rule, ESOs would be required to
establish the minimum knowledge and skills required for each responder
to perform emergency response operation activities. ESOs would be
required to provide initial, ongoing, and refresher trainings, as well
as professional development for each responder. The hours necessary to
complete trainings can vary significantly by state and by type of
firefighter (career, volunteer, or paid per call).
While most emergency responders already receive vocational training
for their duties, the PEA estimates the cost of bringing the remainder
up to minimum requirements. OSHA used the time needed to complete an
NFPA-approved volunteer firefighter course (estimated at 110 hours)
(VolunteerFD.org, 2018) to represent initial responder training labor
time for volunteers at fire departments. For career firefighters, OSHA
identified a selection of state firefighter training programs and their
estimated completion times (CA OSFM, 2019a; CA OSFM, 2019b; Florida
Department of Financial Services, 2022; MFSI, 2017; MFRI, 2023a; MFRI,
2023b; New Hampshire Fire Academy and EMS, 2023a; New Hampshire Fire
Academy and EMS, 2023b; Ohio EMS, 2023; Washington State Patrol, 2023).
OSHA calculated the average time to complete these training programs
and used this labor time estimate (308 hours) to represent initial
responder training for career firefighters. For mixed fire departments,
OSHA calculated the weighted average of the initial training time
estimates using the percentages of volunteer and career (or paid-per-
call) firefighters within mixed fire departments according to the
National Fire Registry. Using this method, OSHA estimates that, for the
250-499 employee class size, a ``typical'' firefighter would complete
about 245.5 hours of initial responder training. On-going refresher
training time estimates reflect OSHA's estimation that firefighters
work 10 shifts per month, with firefighter training occurring during
two of those shifts. Under this assumption, firefighters are training
during six shifts per quarter, or 24 shifts per year. Assuming
firefighters train for two hours per training session, OSHA estimates
48 hours of training annually. To estimate the annual time spent on
refresher training courses, OSHA multiplied the maximum time for NREMT
cognitive exams (two hours) by the number of certifications that
responders need, which OSHA estimated was three (NREMT, 2018). This
calculation yields six hours every two years, or three hours every
year. OSHA determined that the use of EMT re-certification estimates
was also appropriate for firefighters given that most career
firefighters are also EMTs (Unitek EMT, 2022). OSHA assumes that other
training required by the proposed rule, including that on various
policies developed under this standard, training on PPE, training to an
awareness level on confined spaces, and others, are either costed under
another OSHA standard (i.e., the PPE standard) or are included in the
training times estimated here.
ESOs would also be required to ensure each responder maintains
proficiency in the skills commensurate with their respective emergency
response activities. Organization leaders would need to document
responders' professional qualifications to ensure proficiency.
Aside from the requirement to establish minimum knowledge and
skills, which occurs once, all other training labor hours would be
incurred annually. OSHA expects an organization leader to establish
minimum knowledge and skills and document professional qualifications,
while firefighters would need labor hours to be trained. Of note,
initial training would only apply to new hires, so the unit cost is
only multiplied by a percentage (the hire rate) of the number of
firefighters in the estimation of total costs for this provision. See
Table VII-C-5 for the specific labor hours OSHA estimates would be
incurred for each activity at ESOs by employment size class. Table VII-
C-6 presents the associated unit costs.
(vii) ESO Facility Preparedness
Under paragraph (j) of the proposed rule, ESOs would be required to
ensure that each facility complies with 29 CFR part 1910, subpart E--
Exit Routes and Emergency Planning; provide facilities for the
decontamination, disinfection, cleaning, and storage of PPE and
equipment; and ensure that fire detection, suppression, and alarm
systems, and occupant notification systems are installed, tested, and
maintained. Additional requirements are directed at ensuring the safety
of firehouse slide poles and sleeping and living areas, including
requirements for smoke alarms, sprinkler systems, carbon monoxide
detectors, vehicle exhaust emissions, and properly handling
contaminated PPE. These activities would be conducted annually by an
organization leader. See Table VII-C-5 for the specific labor hours
OSHA estimates would be incurred for each activity at ESOs in all
employment size classes. Table VII-C-6 presents the associated unit
costs.
(viii) Equipment and PPE
Under paragraph (k) of the proposed rule, ESOs would be required to
provide access to equipment that is compliant with applicable existing
standards as well as to inspect, maintain, and test equipment at
prescribed intervals. Additionally, ESOs would be required to conduct a
hazard assessment to select appropriate PPE; provide PPE to responders
that is compliant with 29 CFR part 1910, subpart I, Personal Protective
Equipment; and ensure SCBA meet applicable requirements, and maintain
all PPE. OSHA expects that equipment and PPE inspection and maintenance
would be conducted by firefighters annually. Organization leaders are
expected to expend labor hours annually to ensure new equipment meets
design and manufacturing requirements, as well as on a one-time basis
to conduct the hazard assessment and provide the PPE. Firefighters
would be expected to annually inspect, maintain, and test equipment, as
well as perform maintenance of PPE. See Table VII-C-5 for the specific
labor hours OSHA estimates would be incurred for each activity at ESOs
by employment size class. Table VII-C-6 presents the associated unit
costs.
(ix) Vehicle Preparedness and Operation
Under paragraph (l) of the proposed rule, ESOs would be required to
ensure that vehicles are prepared for safe use by inspecting,
maintaining, and repairing their vehicles and associated parts (e.g.,
aerial devices, water pumps). ESOs would be required to develop written
SOPs for operating their own and other vehicles as necessary. OSHA
assumes that an organization leader would perform these activities with
the development of the SOPs being a one-time activity and all others
occurring annually. See Table VI-5 for the specific labor hours OSHA
estimates would be incurred for each activity at ESOs by employment
size class. Table VI-6 presents the associated unit costs.
(x) ESO Pre-Incident Planning
Under paragraph (n) of the proposed rule, ESOs would be required to
develop pre-incident plans (PIPs) for facilities where responders may
be called to provide service, based on the community or facility
vulnerability assessment and other factors. ESOs would need to review
their PIPs annually and update them as needed.
[[Page 7884]]
Additionally, ESOs would have to prepare a PIP for any facility in
their response area that is subject to the Emergency Planning and
Community Right-to-Know Act (EPCRA). OSHA expects that organization
leaders will conduct these one-time activities. See Table VII-C-5 for
the specific labor hours OSHA estimates would be incurred each activity
at ESOs by employment size class. Table VII-C-6 presents the associated
unit costs.
(xi) Incident Management System Development
Under paragraph (o) of the proposed rule, ESOs would be required to
develop and implement an Incident Management System (IMS) to manage all
emergency incidents. OSHA expects that organization leaders would
establish a procedural template for such activities one time initially.
See Table VII-C-5 for the specific labor hours OSHA estimates would be
incurred at ESOs by employment size class. Table VII-C-6 presents the
associated unit costs.
(xii) Emergency Incident Operations
Under paragraph (p) of the proposed rule, ESOs would be required to
ensure that the IMS is employed at each emergency incident. OSHA
expects that organization leaders would conduct this activity,
including developing an Incident Action Plan (IAP) for every incident.
While overseeing responder operations at an emergency incident is
underlying job duty for organization leaders, the PEA nonetheless
assumes a limited incremental amount of time at each incident for
implementing the requirements set forth in paragraph (p) of the
proposal. See Table VII-C-5 for the specific labor hours OSHA estimates
would be incurred at WEREs and ESOs by employment size class. Table
VII-C-6 presents the associated unit costs.
(xiii) Standard Operating Procedures
Under paragraph (q) of the proposed rule, ESOs would be required to
develop and implement SOPs for emergency events that they are likely to
encounter, based on the community or facility vulnerability assessments
they have developed as well as SOPs for unusual hazards, responder
protection from contaminants and for decontamination, vehicle
operations, radio communication, Mayday situations, and others. OSHA
expects that organization leaders would conduct this one-time activity.
See Table VII-C-5 for the specific labor hours OSHA estimates would be
incurred at ESOs by employment size class. Table VII-C-6 presents the
associated unit costs.
(xiv) Post Incident Analysis
Under paragraph (r) of the proposed rule, ESOs would be required to
conduct a Post-Incident Analysis (PIA) to determine the effectiveness
of the ESO's response to an incident after any significant event such
as, for example, a large-scale incident, significant near-miss
incident, serious injury, or responder fatality. ESOs would be required
to implement changes to the RMP, IMS, PIPs, IAPs, and SOPs based on
lessons learned. OSHA estimates that organization leaders would spend
five minutes per incident to conduct these activities. OSHA recognizes
that the number of significant events is less than the number of
incidents and adjusted the per-incident time estimate accordingly. OSHA
estimated the number of incidents an organization would respond to
based on whether the organization is composed of career responders,
volunteer responders, or a mix of career and volunteer responders, as
well as the employment class size of the organization. See Table VII-C-
5 for the specific labor hours OSHA estimates would be incurred for
each activity at ESOs by employment size class. Table VII-C-6 presents
the associated unit costs.
(xv) Program Evaluation
Under paragraph (s) of the proposed rule, ESOs would be required to
conduct annual evaluations of the adequacy and effectiveness of their
ERP. They must also identify and implement changes to the ERP based on
the review of the program. OSHA expects that organization leaders would
conduct these annual activities. See Table VII-C-5 for the specific
labor hours OSHA estimates would be incurred for each activity at ESOs
in all employment size classes. Table VII-C-6 presents the associated
unit costs.
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BILLING CODE 4510-26-C
B. WEREs
WEREs potentially affected by the proposed rule are private
organizations whose employees, as a collateral duty to their regular
daily work assignments, are part of a workplace emergency response team
(WERT) and respond to emergency incidents to provide services such as
fire suppression, emergency medical care, and technical search and
rescue. These organizations would be required to comply with many
provisions of the proposed rule, with some requirements taking less
time for WEREs compared to ESOs. OSHA's methods for estimating labor
hours and costs by provision and employee size class are the same as
for firefighters for the following provisions:
Rule Familiarization;
Team Member and Responder Participation;
WERT and ESO Risk Management Plan;
Equipment and PPE;
Vehicle Preparedness and Operation;
Incident Management System Development;
Standard Operating Procedures; and
Program Evaluation.
There are two provisions that, while specific to WEREs, have the
same labor hour estimates as the corresponding ESO-specific provisions:
Organization of the WERT and Establishment of the ERP and
Emergency Service(s) Capability (this provision has the same labor hour
estimates as the ESO Establishment of ERP and Emergency Service(s)
Capability provision); and
WERE Pre-Incident Planning (this provision has the same
labor hour estimates as the ESO Pre-Incident Planning provision).
Estimation methods differ for the following provisions:
Medical and Physical Requirements;
Training;
WERE Facility Preparedness;
Emergency Incident Operations; and
Post-Incident Analysis.
The methods specific to WEREs are described below.
(i) Medical and Physical Requirements
Under paragraph (g) of the proposed rule, WEREs are not required to
establish or implement a health and fitness program, whereas ESOs are.
Team members must receive the same minimum medical evaluation that
responders receive and must also receive any additional screening
determined to be appropriate by the WERE or the PLHCP. Team members are
not required to receive the full NFPA 1582 screening required for
responders exposed to combustion materials. OSHA assumes that all WERT
members would undergo each component of the minimum medical exam, and
all WERT members that exhibit signs and symptoms warranting additional
heart screening (12.5 percent of all WERT members, as shown in Table
VII-C-2) would undergo all components of the additional heart
screening.\50\ The percentage needing each exam is multiplied by the
unit cost for each exam to derive a weighted average unit cost for the
minimum medical evaluation and additional heart screening. Table VII-C-
7 shows the derivation of the weighted average unit cost for medical
surveillance.
---------------------------------------------------------------------------
\50\ Le Duc, 2018 indicated approximately 12.5 percent of
firefighters had some type of underlying, significant cardiovascular
issues such as hypertension, elevated cholesterol levels, or
abnormal stress.
---------------------------------------------------------------------------
The unit costs for medical surveillance are drawn from the Centers
for Medicare & Medicaid Services' (CMS, 2022a) Physician's Fee Schedule
for 2022 and CMS (2022b) Clinical Laboratory Fee Schedule. The unit
costs are applied per exam per employee. The cost of the exam is added
to the per hour cost for the employee to undergo the exam.
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BILLING CODE 4510-26-C
(ii) Training
The time estimate used to determine initial team member training
for WEREs is assumed to be equal to the time estimate for responders in
volunteer fire departments (110 hours). All other training-related
items are the same as for fire departments.
(iii) WERE Facility Preparedness
WEREs are assumed to take less time than ESOs to meet facility
preparedness requirements, since these facilities would not have to
account for elements such as firepoles or sleeping areas. However,
under paragraph (i) of the proposed rule, WEREs have some additional
requirements that ESOs do not have, such as ensuring readiness for
prompt support from mutual aid groups and identifying fire hose valves.
WEREs are estimated to take half the time of fire departments to
prepare their facilities.
(iv) Emergency Incident Operation
OSHA assumes that WEREs would spend the same amount of time (five
minutes) as all other ESOs performing emergency incident operations.
OSHA further assumes that the number of incidents that WERT members
would respond to in a given year equals the number of incidents to
which volunteer fire departments respond.
(v) Post-Incident Analysis
Similar to emergency incident operations, OSHA assumes that WEREs
would spend the same amount of time (five minutes) as all other ESOs
conducting a post-incident analysis after each incident. OSHA has
adjusted this time estimate to be based on the number of incidents, as
the expectation is that organizations would need to conduct a post-
incident analysis only when a significant event occurs. OSHA further
assumes that the number of incidents for which WERT members conduct
post-incident analyses in a given year equals the number of incidents
for which volunteer fire departments conduct post-incident analyses.
Table VII-C-8 shows the specific labor hours that OSHA estimates
would be incurred at WEREs by employment size class. Table VII-C-9
shows the estimated unit costs for each requirement in the proposed
rule for WEREs by employee class size.
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BILLING CODE 4510-26-C
C. Emergency Medical Services (EMS)
Emergency medical services subject to the proposed rule, or its
State Plan equivalent, include private and public entities engaged in
first response and provision of emergency medicine. Employees of EMS
ESOs may be volunteer or career and include first responders, emergency
medical technicians (EMTs), paramedics, and registered nurses. These
organizations would be required to comply with all provisions of the
proposed rule, as described in section D.IV.A. OSHA's methods for
estimating labor hours and costs by provision and employee size class
are the same as for firefighters for the following provisions:
Rule Familiarization;
ESO Establishment of the ERP and Emergency Service(s)
Capability;
Team Member and Responder Participation;
WERT and ESO Risk Management Plan;
Vehicle Preparedness and Operation;
ESO Pre-Incident Planning;
Incident Management System Development;
Standard Operating Procedures; and
Program Evaluation.
Estimation methods differ for the following provisions:
Medical and Physical Requirements;
Training;
ESO Facility Preparedness;
Equipment and PPE; and
Post-Incident Analysis.
The methods specific to EMS are described below.
(i) Medical and Physical Requirements
EMS providers typically have a lower risk of exposure to hazardous
environments or materials relative to firefighters and therefore EMS
providers have fewer medical exam requirements. Specifically, EMS
providers are not expected to undergo a full NFPA 1582 medical exam
since they are not anticipated to reach the 15-times-per-year exposure
threshold to combustion products. OSHA assumes that all EMS providers
would undergo each component of the minimum medical exam, and all EMS
providers that exhibit signs and symptoms warranting additional heart
screening (12.5 percent of all EMS providers, as shown in Table VII-C-
2) would undergo all components of the additional heart screening.\51\
The percentage needing each exam is multiplied by the unit cost for
each exam to derive a weighted average unit cost for the minimum
medical evaluation and additional heart screening. The weighted average
unit cost for medical surveillance is the same as for WEREs, as shown
in Table VII-C-7.
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\51\ Le Duc, 2018 indicated approximately 12.5 percent of
firefighters had some type of underlying, significant cardiovascular
issues such as hypertension, elevated cholesterol levels, or
abnormal stress.
---------------------------------------------------------------------------
(ii) Training
The initial training time for EMS providers varies widely depending
on the responder's certification level. Estimates for training hours
for emergency responders, basic EMTs, advanced EMTs and paramedics were
based on information from the National Highway Traffic Safety
Administration's (NHTSA, 2009) Emergency Medical Services (EMS)
National Emergency Medical Services Education Standards and UCLA Center
for Prehospital Care (2018). NHTSA (2009) reports a range of hours of
training needed to attain each certification level. OSHA made an
initial assumption that EMS providers at smaller ESOs would have lower
levels of certification but welcomes comment on this assumption. OSHA
then assigned the estimated hours of training at the low end of that
range to the smallest establishments (those with <25 and 25-49
employees) and the hours of training estimated at the higher end of
that range to the remaining size classes. The agency then estimated the
weighted average initial training hours by multiplying the number of
training hours by the estimated share of responders at each
certification level (NAEMT, 2014). As shown in Table VII-C-10, for the
size class 250-499, the initial training course is estimated at 776
hours.
OSHA used a similar approach to estimate the hours required for
ongoing training. OSHA obtained training hours estimates for emergency
responders, basic EMTs, advanced EMTs and paramedics from the NREMT
(2018a-d), and multiplied those estimates by the estimated share of
responders at each certification level (NAEMT, 2014) to estimate the
weighted average ongoing training hours.
(iii) ESO Facility Preparedness
ESOs would be required to ensure that each facility complies with
29 CFR part 1910, subpart E--Exit Routes and Emergency Planning and
provide facilities for the decontamination, disinfection, cleaning, and
storage of PPE and equipment. They would also need to ensure that fire
detection, suppression, and alarm systems and occupant notification
systems are installed, tested, and maintained in accordance with
manufacturer's instructions and 29 CFR part 1910, subpart L--Fire
Protection and that any sleeping and living areas meet the requirements
in paragraph (j)(2). These activities would be conducted annually by an
organization leader. Table VII-C-10 presents estimates of labor hours
incurred for each activity at EMS ESOs by employment size class.
(iv) Equipment and PPE
Under paragraph (k) of the proposed rule, all ESOs would be
required to provide access to equipment that conforms with applicable
existing standards as well as inspect, maintain, and test equipment at
prescribed intervals. Additionally, all ESOs would be required to
conduct a hazard assessment to select appropriate PPE; provide PPE to
responders that conforms with 29 CFR part 1910, subpart I, Personal
Protective Equipment; ensure SCBA meet applicable requirements, and
maintain all PPE. While OSHA assumes that equipment preparation and the
inspection, maintenance and testing of equipment would take as long for
EMS as for fire departments, OSHA estimates that the PPE hazard
assessment, provision of PPE, and maintenance of PPE would take less
time for EMS than for fire departments. OSHA bases this assumption on
the fact that EMS PPE are primarily disposable (i.e., gloves and
masks). Organization leaders are expected to expend labor hours
annually to ensure new equipment meets design and manufacturing
requirements, as well as on a one-time basis to conduct the hazard
assessment and provide the PPE. EMTs would be expected to annually
inspect, maintain, and test equipment, as well as perform maintenance
of PPE. See Table VII-C-10 for the specific labor hours OSHA estimates
that would be incurred for each activity at EMS ESOs by employment size
class.
(v) Post-Incident Analysis
While EMS organizations would still be required to conduct a post-
incident analysis to determine the effectiveness of the ESO's response
to an incident after any significant event, OSHA expects that the
average time per incident for an EMS organization to conduct a post-
incident analysis will be less than the average time for fire
departments. OSHA believes that most incidents to which EMS
organizations respond would not be characterized as significant events
(large-scale incidents, significant near-miss incidents, incidents
involving injury or illness to responders requiring off-scene
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treatment, or incidents involving a responder fatality). Based on this
assumption, OSHA estimates that EMS organizations would spend one
minute per incident to meet this requirement. See Table VII-C-10 for
the specific labor hours OSHA estimates that would be incurred annually
for this activity at EMS ESOs by employment size class.
Table VII-C-11 shows the estimated unit costs for each requirement
in the proposed rule for emergency medical services by employee class
size. Note that where unit labor hours are the same as for
firefighters, unit costs differ due to the application of wage rates
for EMS providers rather than firefighters.
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D. Technical Search and Rescue Groups
Technical search and rescue groups are involved in wilderness and
urban search and rescue using technical skills and equipment. These
organizations would be required to comply with all provisions of the
proposed rule, as described in section IV.I.. Technical search and
rescue groups are assumed to incur the same labor hours and medical
costs as EMS organizations for most provisions, as described in section
IV.III., with three exceptions. First, for initial and ongoing training
OSHA assumes that technical search and rescue employees would expend
200 hours on initial training and would spend the same amount of time
as firefighters on ongoing training. Second, in the case of emergency
incident operations, the per incident time estimate is the same for
both EMS and technical search and rescue; however, the number of
incidents that these groups respond to each year differs, which results
in different annual time spent responding to all incidents. Third, the
time per incident for technical search and rescue groups to conduct a
post-incident analysis is five minutes instead of one minute as
estimated for EMS.
As described in the Industry Profile, to fully capture the universe
of technical search and rescue organizations, OSHA obtained data from
multiple sources, which, for the purposes of estimating unit costs,
requires the derivation of separate wage rates. The unit costs are
provided for both subgroups of technical search and rescue in sections
VII.D(i) and VII.D(ii)
(i) Wilderness and Urban Search and Rescue
Wilderness and urban search and rescue groups are involved in and
use special Vknowledge, skills, and specialized equipment to resolve
complex search and rescue situations, such as rope, vehicle/machinery,
structural collapse, trench, and technical water rescue. Table VII-C-12
and Table VII-C-13 show the estimated unit labor hours and costs,
respectively, for each requirement in the proposed rule for wilderness
and urban search and rescue groups by employee class size. Note that
while the unit labor hours are largely the same as for EMS
organizations, unit costs differ due to the application of wage rates
for wilderness and urban search and rescue responders rather than EMS
responders.
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(ii) Additional Technical Water Rescue Entities
This additional group of technical search and rescue entities
includes lifeguarding where specialty skills or equipment is employed
during search and/or rescue. This group is in addition to technical
water rescue activities undertaken by wilderness and urban search and
rescue. These organizations would be required to comply with all
provisions of the proposed rule, as described in section IV.I.
Additional technical water rescue entities would incur the same labor
hours and medical costs as wilderness and urban search and rescue
groups, as described in section IV.A. Table VII-C-14 shows the
estimated unit costs associated with the proposed rule for additional
technical water rescue groups by employment size class. Note that while
the unit labor hours are the same as for wilderness and urban search
and rescue groups, unit costs vary due to the different wage rates for
technical water rescue professionals compared to wilderness and urban
search and rescue responders, as outlined in section III.
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E. Total Costs
(i) Total Costs of the Proposed Rule
OSHA estimated the total cost of the proposed rule by multiplying
the numbers of affected emergency services entities and responders
estimated in the industry profile, as summarized in Table VII-B-12, by
the unit labor costs shown in Table VII-C-6 (for fire departments),
Table VII-C-11 (for emergency medical services), Table VII-C-13 (for
technical search and rescue groups), and Table VII-C-14 (for additional
technical water rescue entities), and adding the unit medical costs
shown in Table VII-C-4 (structural fire departments and wildland fire
services) and Table VII-C-7 (WEREs, emergency medical services, and
technical search and rescue groups).
Table VII-C-15, Table VII-C-16, and Table VII-C-17 show the total
costs (including labor and non-labor costs) for all organizations
affected by the proposed rule at three, seven, and zero percent
discount rates, respectively. Table VII-C-18 shows the costs for
organizations considered small by either the RFA definition (for public
ESOs) or SBA definition (for private organizations) using a three
percent discount rate.
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[[Page 7952]]
(ii) Insurance Adjustments for Medical Exam Costs
OSHA acknowledges that insurance companies likely cover a portion
of the medical costs required by the proposed rule. For this analysis,
OSHA assumed that all career responders would be covered under an
employer-sponsored medical insurance plan. To determine the percentage
of responders at volunteer and mixed departments with medical insurance
coverage, OSHA used data from BLS's (2023) National Compensation
Survey--Benefits program, which suggests that 66 percent of private
industry workers with access to employer-sponsored medical insurance
plans choose to participate. Costs were adjusted for minimum medical
exams (for both WERT members and ESO responders), additional heart
screenings (for both WERT members and ESO responders) and expanded
medical exams (only required for ESO responders). These costs are used
in Chapter VI: Economic Feasibility Analysis to better reflect the
costs that will actually be borne directly by affected entities.
Insurance-adjusted costs for the medical and physical requirements
provision are presented in Table VII-C-19. Total costs with the
insurance-adjusted medical and physical requirements costs are shown in
Table VII-C-20.
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[[Page 7955]]
BILLING CODE 4510-26-C
References
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Employee Compensation--December 2022 (Released March 17, 2023).
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ecec.htm#:~:text=Total%20employer%20compensation%20costs%20for,and%20
accounted%20for%2029.5%20percent. (Accessed June 10, 2023)
Bureau of Labor Statistics (BLS). (2023). Occupational Employment
and Wage Statistics--May 2022 (Released April 27, 2023). Available
at https://www.bls.gov/oes/#data. (Accessed May 16, 2023)
California Office of the State Fire Marshal (CA OSFM). (2019a). Fire
Fighter 1. Available at https://osfm.fire.ca.gov/divisions/state-fire-training/cfstes-professional-certification/fire-fighter-1-2019/. (Accessed September 6, 2023)
California Office of the State Fire Marshal (CA OSFM). (2019b). Fire
Fighter 2. Available at https://osfm.fire.ca.gov/divisions/state-fire-training/cfstes-professional-certification/fire-fighter-2-2019/. (Accessed September 6, 2023)
Centers for Disease Control and Prevention (CDC). (2023). CDC Adult
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Centers for Medicare & Medicaid Services (CMS). (2022b). Clinical
Laboratory Fee Schedule: Details for Title: 22CLABQ2. Available at
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eHealthInsurance.com. (2022). Eye Exams: Understanding the Costs.
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Environmental Protection Agency (EPA). (2002). Revised Economic
Analysis for the Amended Inventory Update Rule: Final report. August
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(Accessed January 28, 2015)
Florida Department of Financial Services. (2022). Firefighter, Part
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(Accessed September 6, 2023)
Khan, S. (2023). How Much Does a Colonoscopy Cost? Available at
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(Accessed October 16, 2023)
LeDuc, T. (2018). Firefighter Physicals: A Picture is Worth a
Thousand Words. Available at https://www.fireengineering.com/health-safety/firefighter-physicals-a-picture-is-worth-a-thousand-words/#gref. (Accessed March 8, 2023)
Maine Fire Service Institute (MFSI). (2017). MFSI Fire Training
Course Catalog. Available at https://mfsi.me.edu/wp-content/uploads/2018/04/Course-Catalog-Training-Catalot-2017-Final.pdf. (Accessed
September 6, 2023)
Maryland Fire and Rescue Institute (MFRI). (2023a). Firefighter I.
Available at https://www.mfri.org/course/msfs/FIRE/101/. (Accessed
September 6, 2023)
Maryland Fire and Rescue Institute (MFRI). (2023b). Firefighter II.
Available at https://www.mfri.org/course/msfs/FIRE/201/. (Accessed
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New Hampshire Fire Academy and EMS. (2023a). Firefighter I.
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National Association of Emergency Medical Technicians (NAEMT).
(2014). EMS statistics. Available at http://www.naemt.org/about_ems/statistics.aspx. (Accessed October 27, 2014)
National Association of Emergency Medical Technicians (NAEMT).
(2023). EMS Safety. Available at https://www.naemt.org/education/ems-safety. (Accessed July 17, 2023)
National Fire Protection Association (NFPA). (2022). U.S. Fire
Department Profile--2020. September 2022. Available at https://www.nfpa.org/News-and-Research/Data-research-and-tools/Emergency-Responders/US-fire-department-profile. (Accessed March 30, 2023)
National Fire Protection Association (NFPA). (2023a). Number of
Firefighters by Department Type and Population Served for 2020 and
2021.
National Fire Protection Association (NFPA). (2023b). Fire Calls by
Department Type and Population Served for 2020 and 2021.
National Highway Traffic Safety Administration (NHTSA) Emergency
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National Registry of Emergency Medical Technicians (NREMT). (2018).
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National Registry of Emergency Medical Technicians (NREMT). (2018a).
EMR Recertification. Available at https://www.nremt.org/rwd/public/document/emr-recert. (Accessed October 3, 2018)
National Registry of Emergency Medical Technicians (NREMT). (2018b).
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National Registry of Emergency Medical Technicians (NREMT). (2018c).
AEMT Recertification. Available at https://www.nremt.org/rwd/public/document/advancedemt-recert. (Accessed October 3, 2018)
National Registry of Emergency Medical Technicians (NREMT). (2018d).
Paramedic Recertification. Available at https://www.nremt.org/rwd/public/document/paramedic-recert. (Accessed October 3, 2018)
New Hampshire Fire Academy and EMS. (2023b). Firefighter II.
Available at https://nhfa-ems.com/course/firefighter-ii/. (Accessed
September 6, 2023)
Ohio EMS. (2023). Fire Service Certificates to Practice. Available
at https://ems.ohio.gov/certifications/fire-service/fire-service-certificates-to-practice. (Accessed September 6, 2023)
Patterson, P.D., Jones, C.B., Hubble, M.W., Carr, M., Weaver, M.D.,
Engberg, J., Castle, N. (2010). The longitudinal study of turnover
and the cost of turnover in emergency medical services. Prehospital
Emergency Care, 14(2), 209-221.
Poston, W., Haddock, C., Jahnke, S., Jitnarin, N., Day, R.S. (2013).
An examination of the benefits of health promotion programs for the
national fire service. Available at https://link.springer.com/article/10.1186/1471-2458-13-805. (Accessed September 7, 2023)
Rice, C. (2002). Wage Rates for Economic Analysis of the Toxics
Release Inventory Program. June 10, 2002.
Tatar, M., Keeshin, S., Mailliard, M., Wilson, F. (2020). Cost-
effectiveness of Universal and Targeted Hepatitis C Virus Screening
in the United States. Available at https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2770156. (Accessed May 17, 2022)
UCLA Center for Prehospital Care. (2018). What's the Difference
Between an EMT and a Paramedic? Available at https://www.cpc.mednet.ucla.edu/node/27. (Accessed October 3, 2018)
Unitek EMT. (2022). EMT to Firefighter: Career Guide for Firefighter
EMTs. Available at https://www.unitekemt.com/blog/emt-to-
firefighter-a-career-guide-for-aspiring-firefighter-emts/
#:~:text=The%20majority%20of%20calls%20to,before%20jumping%20on%20the
%20truck. (Accessed October 17, 2023)
VolunteerFD.org in partnership with the National Volunteer Fire
Council (VolunteerFD.org). (2018). How to Become a Volunteer
Firefighter. Available at https://www.volunteerfd.org/become-a-volunteer-firefighter/. (Accessed August 30, 2018)
Washington State Patrol. (2023). 2023 Weekday Recruit Academy.
Available at https://www.wsp.wa.gov/wp-content/uploads/2022/10/2023-Weekday-RA-Announcement.pdf. (Accessed September 6, 2023)
D. Benefits
I. Introduction
Benefits from OSHA's proposed Emergency Response standard would
[[Page 7956]]
stem from reductions in the number of fatal and nonfatal injuries and
incidents that occur on duty, work-related suicides that would be
prevented by the standard, and reductions in the incidence of illnesses
and subsequent mortality among affected employees. In this benefits
analysis, OSHA estimated and quantified the benefits associated with
the avoidance of certain fatal and nonfatal incidents involving
emergency responders if the safety requirements of this standard were
to be implemented. OSHA also estimated and quantified the benefits of
reducing the number of deaths by suicide among responders when the
behavioral health and wellness components of the proposed standard are
applied. In addition, OSHA estimated and quantified the benefits from
the reduction in deaths from certain cancers due to increased screening
for lung, colorectal, and breast cancers. Although incidence and death
for other types of cancer may be reduced due to the more general
medical evaluation and surveillance provisions of this standard, OSHA
was unable find data to support a specific quantitative impact on the
incidence or mortality of these other types of cancer for responders.
As discussed below, OSHA estimates that the proposed Emergency
Response standard would reduce fatal and non-fatal work-related
injuries to emergency responders, (e.g., burns, struck by objects and
equipment, vehicle collisions) by 50 percent. OSHA also estimates that
the proposed Emergency Response standard would reduce firefighter
deaths due to prostate, testicular, buccal cavity/pharynx, thyroid, and
melanoma cancers by at least 20 percent. As explained in further detail
below, OSHA estimates that this proposed rule would prevent an average
of approximately 54 fatalities and 11,015 nonfatal injuries per year,
with an associated value of $1,864.9 million in Year 1 (using 2022
dollars, the most recent year of data available). Assuming these annual
benefits would continue for 50 years, the average annualized value of
the benefits would be $2,628.5 million using a 3 percent discount rate
and $2,262.3 million using a 7 percent discount rate in 2022 dollars. A
discussion of expected benefits that could not be quantified is
presented in the final section of the chapter.
II. Benefits From Reducing Responder Fatalities
OSHA gathered data from its OIS to characterize fatal incidents
among emergency responders.\52\ OIS is the primary repository of OSHA's
data. This database contains information about work-related incidents
collected through OSHA's Fatality and Investigation Summaries (OSHA
Form 170), which OSHA prepares after conducting an inspection in
response to a fatality or catastrophe. As explained further below, the
OIS database does not capture the full number of emergency responder
fatalities that occur, but the details contained within the summary
descriptions of the incidents in the database provides useful
information that OSHA used to estimate how the proposed rule would help
prevent fatalities.
---------------------------------------------------------------------------
\52\ U.S. Department of Labor, Occupational Safety and Health
Administration. Fatality and Catastrophe Investigation Summaries.
Available at: https://www.osha.gov/ords/imis/accidentsearch.html.
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[[Page 7957]]
Each Fatality and Investigation Summary provides a narrative of the
fatal incident and includes information such as the characteristics of
the worksite; the employee task or activity performed at the time of
the incident; the equipment used; a brief description of the injuries
sustained by those involved in the accident; and other pertinent
information surrounding the incident, including any worksite hazards
present at the time of an individual's death. OSHA used these data to
develop an informed understanding of the workplace fatalities
frequently occurring among the emergency response professions, to
identify common hazards present in worksites at which an emergency
responder fatality has occurred, and to develop an estimate of the
number of fatalities that would be addressed by at least one provision
of the proposed Emergency Response standard.
To identify those fatalities that would be within the scope of the
proposed rule, OSHA performed a query of the OIS database over a 15-
year period (2007 through 2021), using keywords associated with
emergency response activities (examples of relevant keywords include
``fire,'' ``emergency,'' ``respond''). From this initial dataset of
several thousand fatalities, the summary abstracts of each accident
were individually reviewed to determine if the death could be
classified as relevant to the scope of the proposed rule. For each
fatality determined to fall within the scope of the proposed rule, OSHA
collected descriptive information relating to the manner of death, the
assigned task at the time of death, the cause of death, and any
workplace hazards present at the time of death, as identified by OSHA
inspectors during the fatality investigation. OSHA identified 273 fatal
incidents in the OIS database that involved responders or team members
as defined in the proposed standard and emergency response activities
that are within the scope of the proposed rule.
As shown in Table VII-1, the leading cause of death among emergency
responders was attributed to struck by/crushing/collision injuries, 26
percent of all fatalities in the OIS database. Sixty-one percent of all
struck by, crushing, and collision incidents were due to vehicle
accidents. The most common contributory factor of these accidents was
the unsafe operation of emergency response vehicles and equipment.
Heart attacks accounted for an additional 20 percent of all fatalities
in the OIS database, followed by burns, asphyxiations, and falls. Fatal
accidents related to burns, falls and asphyxiations mainly occurred at
the scene of an emergency during participation in response activities.
OSHA did a further analysis of the 273 emergency response-related
fatalities in the OIS database to develop an estimate of how many might
have been prevented if at least one of the provisions of the proposed
standard had been followed. The details surrounding the fatalities were
carefully examined and compared with the requirements of each provision
of the proposed standard. Contributory hazards, as identified by the
investigating OSHA inspector in both an accident's descriptive summary
abstract and cited safety standards, were reviewed to determine the
number and frequency of workplace hazards present at emergency
response-related fatalities. If the identified workplace hazards
present at the time of a fatality were determined to be addressed by
the safety requirements of one or more of the emergency response
provisions, then that fatality was classified as preventable. On the
other hand, if the circumstances surrounding a fatality could not be
matched with any requirements of the proposed standard, then that
incident was categorized as not preventable by the standard. Of the 273
emergency-response-related fatalities in the OIS database, 77.7 percent
or 212 were identified as being preventable if at least one of the
provisions of the proposed standard had been followed. See example
below.
Example:
Inspection Nr: 310966023
Event: 06/18/2007
Fire Department Employees Die of Smoke Inhalation
On June 18, 2007, nine employees of the City of Charleston Fire
Department were engaged in interior structural firefighting in a
furniture store at Sofa Super Store, 1807 Savannah Highway, Charleston,
SC. The store had been converted from a 1960s era grocery store with a
metal truss roof system. The fire and smoke spread rapidly, and they
became lost and separated from their hoses. With air in air-packing
running out, they could not find their way out. They died of smoke
inhalation.
From the investigation report, OSHA inspectors identified four
hazards present at the workplace, including inadequate inspection or
maintenance of the workplace or equipment, inadequate training, and
inadequate or incorrect use of personal protective equipment (PPE).
OSHA determined that the requirements in proposed paragraphs (c), (d),
(h), and (k) could have prevented this fatal incident.
Next, OSHA further developed estimates to determine what percentage
of preventable incidents related to emergency response activities (for
example, the 77.7 percent or 212 out of 273 identified in the OIS
database) would actually be avoided by the standard, treating non-heart
attacks and heart attacks differently. Table VII-2 shows the number of
fatalities in the OIS database the agency estimates could have been
addressed by each major provision category (a fatal incident may be
covered by more than one safety provision of the proposed standard).
Because emergency response operations are highly unpredictable and
dangerous
[[Page 7958]]
in ways that cannot be mitigated, OSHA does not believe this standard
will prevent every fatality among responders. However, the process of
developing plans will help to clarify procedures, roles, training
needs, and other factors that will allow responders to operate more
efficiently and safely at response scenes. The requirements for
equipment, vehicles, and other preparedness measures would, if
followed, protect responders during response operations. Improved and
enhanced training is always a critical step in improving safety in all
sorts of workplaces. OSHA assumes that a reasonable estimate of non-
heart attack fatal incidents related to emergency response activities
that are classified as preventable is that 50 percent would be avoided
by following the requirements of this proposed standard.
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\53\ Natural causes is defined as an internal factor, such as a
disease, that caused the body to shut down; no external reason
contributing to death such as a traumatic injury.
\54\ Deaths for which a descriptive sequence of causes could not
be determined.
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[GRAPHIC] [TIFF OMITTED] TP05FE24.101
BILLING CODE 4510-26-C
OSHA treats heart attack prevention differently. As mentioned
earlier, heart attacks made up 20 percent or 55 of the 273 emergency
response-related fatalities in the OIS database. Thirty-one percent of
the 55 heart attack fatalities occurred on worksites of an emergency
(See Table VII-3). Twenty-seven percent occurred onsite while
participating in training exercises. Another 15 percent occurred on-
site during non-emergency activities such as maintenance work, and 15
percent of heart attacks happened less than 24 hours after
participating in a work-related activity. The remainder were
unspecified.
[GRAPHIC] [TIFF OMITTED] TP05FE24.102
Many studies show that following a healthy lifestyle including
getting regular physical activity, maintaining a healthy weight, and
healthy sleep habits may prevent many cases of sudden cardiac
death.\55\ A number of provisions in the proposed rule--the medical and
physical, fitness for duty, and health and fitness program
requirements--focus on components of a healthy lifestyle for emergency
responders as well as fitness for duty requirements and medical
monitoring that would be expected to prevent some fatal heart attacks.
While the proposed standard would not prevent all fatal heart attacks,
based on a review of the circumstances surrounding the deaths caused by
heart
[[Page 7960]]
attack in the OIS dataset, OSHA believes a reasonable estimate is that
the rule would prevent 20 percent of work-related fatal heart attacks
among emergency responders. OSHA welcomes comment on this estimate and
encourages the public to submit any additional data or data sources
that the agency might use to better estimate this parameter of the
analysis.
---------------------------------------------------------------------------
\55\ See https://www.hsph.harvard.edu/nutritionsource/disease-prevention/cardiovascular-disease/preventing-cvd/ based on Chiuve,
SE, Rexrode, K.M., D.S, Logroscino, G., Manson, J.E., Rimm, E.B.
(2008). Primary prevention of stroke by healthy lifestyle.
Circulation. 118:947-54 and Chiuve, SE, Fung, T.T., Rexrode, K.M.,
et al. (2011). Adherence to a low-risk, healthy lifestyle and risk
of sudden cardiac death among women. JAMA. 306:62-9. The Centers for
Disease Control and Prevention's ``Prevent Heart Disease.''
Available at https://www.cdc.gov/heartdisease/prevention.htm.
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As mentioned above and explained in section II.A., Need for the
Standard, OSHA recognizes that the number of fatalities occurring among
emergency responders contained in the OIS is incomplete. This is in
large part because so many emergency responders are volunteers and/or
work for state or local governments in States without OSHA-approved
State Plans; OSHA inspectors typically would not investigate fatalities
in these groups. Other data sources, such as the NFPA, help provide a
more complete picture, even if they may not contain the same level of
detail about individual incidents that OIS does. From 2007 to 2021, the
NFPA reported a total of 1,086 firefighter fatalities,\56\ compared to
the 273 in the OIS database. Of those 1,086 fatalities, 464 or 42.7
percent were from heart attacks. Applying the assumptions developed
from the OIS data, OSHA first excluded the 464 NPFA fatalities
attributable to heart attacks to produce a total of 622 emergency
response-related fatalities. From this estimate, OSHA applied its
assumption that 77.7 percent of total fatalities would be preventable
by the provisions of the Emergency Response standard, to develop an
estimate of 483.3 fatalities; an average of 32.2 fatalities per year.
OSHA then applied the assumption that only 50 percent of NFPA's
preventable firefighter fatalities would be actually prevented, giving
an estimate of 241.8 prevented firefighter fatalities; an annual
average of 16.1 fatalities.
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\56\ https://www.nfpa.org/News-and-Research/Data-research-and-tools/Emergency-Responders/Firefighter-fatalities-in-the-United-States.
---------------------------------------------------------------------------
It should be noted that while the data can provide broad
characterization in terms of cause of death, there is frequently
insufficient information to isolate the effect on very specific causes
of injury. Injuries to emergency responders take many forms, and the
proposed standard is designed to reduce them on many fronts. For
example, the proposal includes provisions for the safer use of fire
poles. While not the leading cause of firefighter injury and
fatalities, use of fire poles continues to present needless hazards to
responders. While the use of fire poles has become less common due to
use of slides, chutes and stairs, fatalities and serious injuries still
occur, including the recent death of a North Carolina firefighter in
2021 (https://www.firefighterclosecalls.com/north-carolina-firefighter-dies-after-falling-down-pole-hole-in-firehouse/). In 2013 a Seattle
firefighter was awarded $12.75 million due to disabling injuries
related to a fall down a fire pole shaft. (https://www.seattletimes.com/news/high-court-upholds-1275m-award-to-ex-seattle-firefighter/). For these reasons, many fire departments are already
moving away from installing fire poles in new firehouses. The agency
supports the trend away from the use of fire poles, and has included
questions seeking input and data from stakeholders about whether the
agency should consider prohibiting the installation of fire poles in
new facilities in the final rule. On the whole, the agency believes the
multifaceted approach of the emergency response program standard should
prevent approximately half of most safety-related fatalities and
injuries to firefighters.
Because the NFPA data is based on firefighter fatalities only, OSHA
relied on data from BLS, Census of Fatal Occupational Injuries, to
develop estimates for non-firefighting emergency responders
(paramedics, EMTs) and applied the same assumptions. From 2007 to 2021,
BLS reported a total of 169 fatalities to emergency responders,\57\ not
including firefighters. Applying the assumption that 77.7 percent would
fall under the provisions of the Emergency Response standard (131.3
fatalities, an average of 8.8 fatalities per year), and 50 percent
would be preventable (65.7 fatalities), OSHA estimates an additional
4.4 preventable fatalities per year. OSHA did not apply its assumption
for heart attacks to this estimate because BLS considers heart attacks
to be an illness and excludes them from its Census of Fatal
Occupational Injuries unless a traumatic injury contributed to the
death. According to a study, ``Prevalence of risk factors for
cardiovascular disease in paramedics,'' printed in the 2015 publication
of the International Archives of Occupational and Environmental Health,
nine out of ten paramedics are at risk of developing cardiovascular
disease as a result of the cardiovascular risk factors of occupational
stress, obesity, and tobacco consumption.\58\ OSHA is aware that heart
attacks among non-firefighting emergency responders are prevalent and
therefore welcomes comment on this estimate and encourages the public
to submit any additional data or data sources that the agency might use
to better estimate this parameter of the analysis.
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\57\ https://data.bls.gov/gqt/ProfileData.
\58\ Hegg-Deloye, S., Brassard, P., Prairie, J., Larouche, D.,
Jauvin, N., Poirier, P., Tremblay, A., Corbeil, P. (2015).
Prevalence of risk factors for cardiovascular disease in paramedics.
International archives of occupational and environmental health,
88(7), 973-980. https://doi.org/10.1007/s00420-015-1028-z.
---------------------------------------------------------------------------
Using the 2022 estimate of the value of a statistical life (VSL)
developed by the U.S. Department of Transportation (DOT), $12.5
million, OSHA estimates the benefit from avoiding 20.5 fatal incidents
(16.1 firefighter and 4.4 non-firefighter responders) other than heart
attacks in Year 1 would produce benefits of $256.2 million in 2022
dollars.\59\ As stated above, 464 of NFPA's total firefighter
fatalities were heart attacks; an average of 30.9 fatalities per year.
Applying the assumption that 20 percent of heart attacks would be
prevented by the standard, yields another 92.8 fatalities; an annual
average of 6.2 fatalities. The annual value of these avoided cases is
$77.3 million in 2022 dollars. Combining the benefits from avoided non-
heart attack safety-related fatalities and heart attack fatalities
yields estimated annual benefits of $333.5 million in 2022 dollars.
---------------------------------------------------------------------------
\59\ As elsewhere in the PEA, these calculations were performed
on an Excel spreadsheet, so the rounded numbers may appear not to
add precisely. The spreadsheet appears in the docket at (Document ID
0394).
---------------------------------------------------------------------------
III. Benefits From Reducing Non-Fatal Injuries for Responders
NFPA reported a total of 1,012,250 non-fatal firefighter injuries
between 2007 and 2021 of which 215,022 resulted in lost time from work;
an average of 14,335 lost time injuries per year. Non-fatal injuries
occurring during fireground operations (structure fires, vehicle fires,
brush fires, etc.) accounted for 41.7 percent of total injuries,
followed by non-fire emergencies (rescue calls, hazardous calls, and
natural disaster calls) at 20.5 percent, other duties (e.g., inspection
or maintenance duties) at 19.4 percent, training at 11.7 percent, and
responding to or returning from an emergency at 6.7 percent. As shown
in Table VII-4, overexertion and strains were the leading cause of
injuries amongst firefighters, accounting for an average of 27 percent
of total injuries during the 2007 thru 2021 period. Falls, jumps, and
slips accounted for an additional 22.8 percent, with another 20.7
percent of injuries attributed to exposures to fire products, chemicals
or radiation.
[[Page 7961]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.103
From 2007 to 2020, BLS reported a total of 107,720 non-fatal
injuries requiring days away from work to emergency medical technicians
(EMTs) and paramedics; an average of 7,694 injuries per year. As shown
below in Table VII-5, the leading cause of injuries to these responders
were overexertion and bodily reactions, commonly resulting from worker
activities such as lifting, pushing, pulling, carrying, holding, etc.
Falls, slips and trips accounted for nearly 14 percent of all injuries
to EMTs and paramedics, with an average of 1,050 injuries per year,
followed by contacts with objects or equipment, and transportation
incidents, at 10 percent and 7 percent, respectively.
[GRAPHIC] [TIFF OMITTED] TP05FE24.104
[[Page 7962]]
OSHA expects that the proposed standard would reduce the number of
non-fatal emergency responder injuries. Further, given the provisions
of the proposal address the contributory causes of over 75 percent of
the estimated fatalities to emergency responders, OSHA believes it is
reasonable that the proposed standard would reduce these occurrences by
at least 50 percent for all responders. OSHA monetized the benefit of
preventing injuries using the midpoint of the range cited in Viscusi
and Gentry (2015), converted to 2022 dollars using the GDP
deflator.\60\ The total Year 1 benefit of reducing firefighter injuries
by 7,168 (50%) would be $777.5 million and reducing EMT and paramedic
injuries by 3,847 (50%) would be $417.3 million (Table VII-11) for a
total of approximately $1,194.8 million.
---------------------------------------------------------------------------
\60\ Viscusi, K. and E.P Gentry. (2015). ``The value of a
statistical life for transportation regulations: A test of the
benefits transfer methodology.'' Journal of Risk and Uncertainty.
51:53-77. https://doi.org/10.1007/s11166-015-9219-2. OSHA used the
midpoint of the range listed of $77,000 and $84,000 in 2008 dollars
converted to 2022 dollars using the GDP deflator.
---------------------------------------------------------------------------
IV. Benefits From Preventing Some Firefighter and EMT Suicides
OSHA preliminarily finds that the behavioral health and wellness
resources provisions in the proposed standard would benefit responders
by reducing the number of deaths by suicide. Based on Firefighter
Behavioral Health Alliance (FBHA) data, 1,348 firefighters and EMTs
died by suicide between 2007 and 2020, which is an average of 96 deaths
per year.\61\ FBHA estimates that about 17 percent of these deaths
occurred during retirement, so 83 percent, or approximately 77, of the
annual deaths by suicide occurred among active duty responders (64
firefighters and 13 EMTs).62 63 This estimate is adjusted to
account only for the proportion of firefighters and EMTs covered by the
proposed rule, yielding an estimated 43 annual deaths among covered
responders (31 firefighters and 12 EMTs). OSHA was unable to find
definitive evidence to support a specific reduction to these figures
resulting from the implementation of the provisions of this proposed
standard; however, based on available evidence the agency estimates
that a 20 percent reduction is a realistic, even arguably low
estimate.\64\ The expected number of avoided deaths by suicide is
therefore estimated to be 8.5 per year. Based on the value of a
statistical life (VSL) developed by DOT,\65\ the VSL estimate for 2022
is $12.5 million, which translates to an annual benefit from the
reduction in deaths by suicide in Year 1 of $106.8 million. OSHA
expects, but could not quantify, additional benefits from the reduction
in adverse behavioral health outcomes identified in health effects
(stress, depression, PTSD, anxiety, etc.).
---------------------------------------------------------------------------
\61\ Available at: https://www.ffbha.org/ff-ems-suicide-deaths-by-year-type/. Validated and verified by Firefighter Behavioral
Health Alliance.
\62\ OSHA communication with an FBHA representative on May 1,
2023.
\63\ OSHA was unable to determine whether deaths by suicide of
retired responders are considered occupational. If those deaths are
considered occupational, the limitation to active-duty deaths by
suicide in this analysis would likely underestimate the impact of
the proposed standard.
\64\ A review of 13 studies found that the suicide prevention
programs for protective and emergency services employees were
associated with an approximate 50 percent reduction on average in
suicide rates. See Witt, K., et al. (2017). ``Effectiveness of
suicide prevention programs for emergency and protective services
employees: A systematic review and meta-analysis. American Journal
of Industrial Medicine 60(4): 394-407. https://doi.org/10.1002/ajim.22676.
\65\ U.S. Department of Transportation. (2022). ``Departmental
Guidance of Valuation of a Statistical Life in Economic Analysis.''
Available at https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis.
---------------------------------------------------------------------------
V. Cancer Cases in Firefighters
Several studies have found evidence that firefighters are more
likely to develop certain types of cancer compared to the general
population. OSHA did not estimate benefits related to avoided cancer
cases or fatalities among other types of responders due to insufficient
data for other types of emergency responders. To the extent that
medical evaluations and physical fitness requirements prevent cancer
cases or fatalities in other types of responders, the estimated
benefits of this proposed standard may be underestimated. Researchers
have investigated whether firefighters have higher or lower rates of
incidences or mortality for various types of cancer compared to the
general population. Commonly considered cancers are those for which
firefighters may have greater risks due to occupational exposures to
carcinogenic substances. In order to estimate the benefits of reduced
cancer fatalities other than those being screened for and discussed
previously, OSHA primarily used the estimates of the incidence rates of
cancer for firefighters relative to the general population from Lee et
al. (2020).\66\ Lee et al. provided estimates for firefighters for
melanoma, thyroid, prostate, and testicular cancers. OSHA estimated
cases of buccal cavity and pharynx cancer based on Daniels et al.
(2014, Document ID 0187) estimates of incidence.\67\
---------------------------------------------------------------------------
\66\ Lee, D.J., Koru-Sengul, T., Hernandez, M.N., Caban-
Martinez, A.J., McClure, L.A., Mackinnon, J.A., Kobetz, E.N. (2020).
Cancer risk among career male and female Florida firefighters:
Evidence from the Florida Firefighter Cancer Registry (1981-2014).
American Journal of Industrial Medicine, 63(4):285-299. doi.org/10.1002/ajim.23086. These researchers compared firefighters to the
general population over the most recent time period and generally
had estimates that were similar or between other estimates.
\67\ Daniels, R.D., Kubale, T.L., Yiin, J.H., Dahm, M.M., Hales,
T.R., Baris, D., Zahm, S.H., Beaumont, J.J., Waters, K.M.,
Pinkerton. L.E. (2014). Mortality and cancer incidence in a pooled
cohort of US firefighters from San Francisco, Chicago, and
Philadelphia (1950-2009). Occupational and Environmental Medicine,
71:388-397. doi.org/10.1136/oemed-2013-101662.
---------------------------------------------------------------------------
For these cancers, estimates of the incidence rates for the general
population were from the Centers for Disease Control and Prevention
(CDC) or the American Cancer Society (ACS).\68\ To estimate the rates
for firefighters, OSHA made adjustments based on the relevant findings
in the literature. For example, the risk of a firefighter getting
prostate cancer is 1.36 times that of the general population.
Therefore, the annual incidence rate for the general population of 0.11
percent was multiplied by 1.36, which yields a firefighter annual
incidence rate of prostate cancer of 0.15 percent. Multiplying each
incidence rate by the applicable number of firefighters, Table VII-6
shows the estimated annual number of incidents of cancer, by cancer
type and firefighter type.
---------------------------------------------------------------------------
\68\ Data for incidence and mortality rates for prostate cancer
from the CDC: https://www.cdc.gov/cancer/prostate/basic_info/
risk_factors.htm#:~:text=Out%20of%20every%20100%20American,increased%
20risk%20for%20prostate%20cancer. Data from ACS for testicular,
buccal cavity and pharynx, thyroid, and melanoma cancers. For
example, see https://www.cancer.org/cancer/testicular-cancer/about/
key-
statistics.html#:~:text=Testicular%20cancer%20is%20not%20common,testi
cular%20cancer%20is%20about%2033 (Accessed March 26, 2023).
---------------------------------------------------------------------------
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[[Page 7963]]
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[[Page 7964]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.106
BILLING CODE 4150-26-C
VI. Benefits From Reducing Cancer Fatalities of Firefighters Through
Screening
OSHA preliminarily finds that the proposed rule would result in
benefits in the form of avoided firefighter fatalities due to increased
screening for lung, colorectal, and breast cancers. Three recent
articles provided estimates of the effects of screening on fatalities
due to certain types of cancer. Nishihara et al. (2013) followed almost
89,000 participants over 22 years and measured a 53 percent reduction
in mortality from proximal colon cancer with regular colonoscopies.\69\
Among men, de Koning et al. (2020) found that lung-cancer mortality was
0.8 deaths per 1,000 person-years lower over 10 years for patients
getting CT screening than those not getting screened for lung
cancer.\70\ Finally, Seely and Alhassan (2018) conducted a meta-
analysis of breast cancer studies and concluded that women 40-74 years
of age experience a 40 percent reduction in breast cancer mortality
with regular screenings.\71\ The results of these studies are discussed
below.
---------------------------------------------------------------------------
\69\ Nishihara, R., Wu, K., Lochhead, P., Morikawa, T., Liao,
X., Qian, Z.R., et al. Long-term colorectal-cancer incidence and
mortality after lower endoscopy. N Engl J Med 2013; 369:1095-105.
\70\ de Koning, H.J., et al. Reduced Lung-Cancer Mortality with
Volume CT Screening in a Randomized Trial. N. Engl. J. Med. 382,
503-513 (2020). The difference for women in the study was not
statistically significant.
\71\ Seely, J.M., Alhassan, T. Screening for breast cancer in
2018--what should we be doing today? Curr Oncol. 2018 Jun; 25(Suppl
1): S115-S124. doi:10.3747/co.25.3770.
---------------------------------------------------------------------------
The benefits of increased screening are expected to occur for
firefighters in the age ranges designated for screening for each type
of cancer by NFPA 1582. Under the proposed standard, increased
screening would be required for firefighters with at least 15 exposures
to combustion products per year or who have a medically-indicated need
for ongoing surveillance. Based on data from NFPA on the number of fire
calls responded to, 98 percent of career firefighters and 2.2 percent
of volunteer firefighters meet one of these criteria.\72\ The number of
potentially affected firefighters was taken from the U.S Fire
Administration (USFA, 2020) registry data and OSHA's estimate of the
number of inmate firefighters (see Section VII.B., Industry Profile,
for more details).\73\ The age distribution based on NFPA (2017)
estimates was then applied.\74\ The appropriate populations of
firefighters potentially affected by the
[[Page 7965]]
rule would be: women ages 50 and older for breast cancer; individuals
ages 50-75 for colorectal cancer; and individuals ages 55+ for lung
cancer.
---------------------------------------------------------------------------
\72\ See section VI.2.2.1 for more detail.
\73\ Inmate firefighters were included only in state plan states
that cover volunteer firefighters. Due to lack of more appropriate
data, OSHA assumed the same demographic distribution as the
firefighters for the inmate firefighters. In the benefits
estimations, OSHA used the lower estimate of inmate firefighters
when numbers varied by source.
\74\ U.S. Fire Administration (USFA). (2020). U.S. Fire
Administration (USFA) National Fire Department Registry: National
Data. Available at https://apps.usfa.fema.gov/registry/download
(Accessed January 13, 2020).
NFPA (2017). U.S. Fire Department Profile--2015. April 2017.
Available at https://www.nfpa.org/News-and-Research/Fire-statistics-and-reports/Fire-statistics/The-fire-service/Administration/US-fire-department-profile (Accessed September 13, 2018).
---------------------------------------------------------------------------
OSHA applied the findings from the respective studies to the subset
of the firefighter population who would be required to get each of the
screenings to estimate the reduction in annual fatalities that the
proposed rule would yield. For colorectal cancer, a 53 percent
reduction in mortality from proximal colon cancer over a 22-year period
for individuals getting colonoscopy screenings corresponds to a 2.4
percent reduction per year in the probability of a colorectal cancer
fatality (0.53/22 years = .024) (Nishihara (2013), Docket No.
0384).\75\ Applying this reduction to the current number of colorectal
cancer fatalities (15.8) results in a reduction of 0.4 fatalities per
year due to colorectal cancer (Table VII-9). OSHA assumes this annual
benefit begins in Year 10 but welcomes comments on the most appropriate
lag time for benefits.\76\
---------------------------------------------------------------------------
\75\ While the probability of death is likely not uniformly
distributed over the time period, this simplifying assumption should
reasonably provide a way to approximate the benefits.
\76\ See Lee S J, Boscardin W J, Stijacic-Cenzer I, Conell-Price
J, O'Brien S, Walter L C et al. Time lag to benefit after screening
for breast and colorectal cancer: meta-analysis of survival data
from the United States, Sweden, United Kingdom, and Denmark BMJ
2013; 346:e8441 doi:10.1136/bmj.e8441 as an example of research
findings that may be applicable.
---------------------------------------------------------------------------
For lung cancer, OSHA additionally restricted the subpopulation of
firefighters to males due to the lack of a statistically significant
difference found in de Koning et al. (2020) for females (de Koning
2020, Docket No. 0377). Because the results were expressed in terms of
deaths per 1,000 person-years, OSHA could directly apply the difference
in the findings of 0.8, the difference between 2.5 deaths per 1,000
person-years for patients who get CT scans and 3.3 deaths per 1,000
person-years for patients who do not get screenings, to the current
number of cases, 22.9 (Table VII-9). Thus, OSHA estimates that 9.7
fatalities from lung cancer would be avoided annually starting in Year
10 by the proposed rule.
For breast cancer, in addition to restricting the subpopulation of
firefighters to females ages 50 and older, OSHA also assumed that these
women would already be getting mammograms at the same rate as the
general population. According to the National Cancer Institute, about
76 percent of women aged 50-74 years had a mammogram within the past 2
years.\77\ The high rates of screening already being performed likely
contributed to the reduced benefits observed for this screening
activity. Seely and Alhasan (2018) conclude that breast cancer
mortality is reduced by 40 percent in women 40-74 years of age who get
screened (Seely (2018), Docket No. 0379). This result seems to be
strongly driven by a study that followed women from 1990 to 2009, so
OSHA approximated an annual reduction in deaths of 2.1 percent (0.40/19
years). Table VII-9 also contains the value of these avoided fatalities
expected to begin in Year 10.
---------------------------------------------------------------------------
\77\ National Cancer Institute. August 2023. Breast Cancer
Screening. Available at https://progressreport.cancer.gov/detection/breast_cancer. Accessed October 19, 2023.
---------------------------------------------------------------------------
The value of the benefits in Year 1 along with the average
annualized benefits using a 3 percent and a 7 percent discount rate are
shown in Table VII-9.
[GRAPHIC] [TIFF OMITTED] TP05FE24.107
[[Page 7966]]
VII. Benefits From Reducing Cancer Fatalities of Firefighters Through
General Medical Evaluation and Other Provisions of the Proposed
Standard
As noted previously, many researchers have found that firefighters
have higher rates of incidents and/or mortality for various types of
cancer compared to the general population. In order to estimate the
benefits of reduced cancer fatalities other than those being screened
for and discussed previously, OSHA included a range of potential
benefits from a reduction in buccal cavity and pharynx cancer based on
Muegge et al. (2018) estimates of mortality.\78\ For the other types of
cancer checked for in a general medical evaluation (prostate,
testicular, thyroid, melanoma), OSHA applied Pinkerton et al.'s (2020)
estimates of the relative mortality rates of firefighters for cancer in
general.\79\
---------------------------------------------------------------------------
\78\ Muegge, C.M., Zollinger, T.W., Song, Y., Wessel, J.,
Monahan, P.O., Moffatt, S.M. (2018). Excess mortality among Indiana
firefighters, 1985-2013. American Journal of Industrial Medicine,
61(12):961-967. Doi.org/10.1002/ajim.22918.
\79\ Pinkerton, L., Bertke, S.J., Yiin, J., Dahm, M., Kubale,
T., Hales, T., Purdue, M., Beaumont, J.J., Daniels, R. (2020).
Mortality in a cohort of US firefighters from San Francisco,
Chicago, and Philadelphia: an update. Occupational and Environmental
Medicine 77(2):84-93. http://dx.doi.org/10.1136/oemed-2019-105962.
---------------------------------------------------------------------------
For these five cancers, estimates of the mortality rates for the
general population were from the Centers for Disease Control and
Prevention (CDC) or the American Cancer Society (ACS).\80\ To estimate
the rates for firefighters, OSHA made adjustments based on the relevant
findings in the literature of statistically significant mortality rates
of firefighters relative to the general population by type of cancer.
---------------------------------------------------------------------------
\80\ Data for incidence and mortality rates for prostate cancer
from the CDC: https://www.cdc.gov/cancer/prostate/basic_info/
risk_factors.htm#:~:text=Out%20of%20every%20100%20American,increased%
20risk%20for%20prostate%20cancer. Data from ACS for testicular,
buccal cavity and pharynx, thyroid, and melanoma cancers. For
example, see https://www.cancer.org/cancer/testicular-cancer/about/
key-
statistics.html#:~:text=Testicular%20cancer%20is%20not%20common,testi
cular%20cancer%20is%20about%2033 (Accessed March 26, 2023).
---------------------------------------------------------------------------
Multiplying the calculated mortality rates for firefighters by the
applicable population of firefighters yielded an estimate of the
expected number of firefighter deaths from each type of cancer in Year
1.\81\ Although OSHA was unable to find current research directly
quantifying the likely reduction in these fatalities from programs
similar to this proposed standard, the agency believes, for reasons
discussed in the Health Effects of Emergency Response Activities and
the Summary and Explanation of the Proposed Rule sections, that a
combined effect of improved medical surveillance and more consistent
and hygienic use of PPE would provide a meaningful reduction in cancer
mortality among firefighters. In addition, the agency believes the
enhanced medical surveillance and tracking of worker exposure to
combustion products will enhance research in this area to optimize
future cancer reduction. OSHA estimates the proposed standard would
prevent 20 percent of these cancer fatalities (Table VII-10). OSHA also
expects a lag in achieving benefits and assumes they will begin in Year
20. However, this is an area of ongoing research and the agency invites
comment on this estimate.
---------------------------------------------------------------------------
\81\ U.S. Fire Administration (USFA). (2020). U.S. Fire
Administration (USFA) National Fire Department Registry: National
Data. Available at https://apps.usfa.fema.gov/registry/download
(Accessed January 13, 2020). The distributions by age and sex were
based on:
NFPA (2017). U.S. Fire Department Profile--2015. April 2017.
Available at https://www.nfpa.org/News-and-Research/Fire-statistics-and-reports/Fire-statistics/The-fire-service/Administration/US-fire-department-profile (Accessed September 13, 2018).
---------------------------------------------------------------------------
To quantify the benefits of reduced fatalities, OSHA used the value
of a statistical life (VSL) originally developed by the DOT.\82\ The
total value of prevented cancer fatalities in Year 20 is $210.6
million. Table VII-10 also contains the average annualized benefits
over 50 years using a 3 percent discount rate ($163.6 million) and a 7
percent discount rate ($88.3 million).
---------------------------------------------------------------------------
\82\ U.S. Department of Transportation. (2022). ``Departmental
Guidance of Valuation of a Statistical Life in Economic Analysis.''
Available at https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis.
---------------------------------------------------------------------------
BILLING CODE 4510-26-P
[[Page 7967]]
[GRAPHIC] [TIFF OMITTED] TP05FE24.108
VIII. Summary of Quantified Benefits
Table VII-11 presents a summary of the quantified benefits of the
proposed standard in reducing emergency responder fatalities on the
job, firefighter and EMT suicides, and firefighter fatalities from
certain types of cancer. The monetization of the reduction in these
fatalities is based on the VSL developed by DOT. OSHA applied the
estimates of the cost of injuries from the Viscusi and Gentry
(2015).\83\ In total, OSHA estimated that the proposed standard would
prevent an average of approximately 54 fatalities and 11,015 nonfatal
injuries per year, with an associated value of $1,864.9 million in 2022
dollars. Assuming these annual benefits would continue for 50 years,
the average annualized value of the benefits would be $2,628.5 million
using a 3 percent discount rate and $2,262.3 million using a 7 percent
discount rate.
---------------------------------------------------------------------------
\83\ Viscusi, K. and E.P Gentry. (2015). ``The value of a
statistical life for transportation regulations: A test of the
benefits transfer methodology.'' Journal of Risk and Uncertainty.
51:53-77. https://doi.org/10.1007/s11166-015-9219-2.
---------------------------------------------------------------------------
As a sensitivity analysis, OSHA estimated the benefits based on
assuming a large reduction of certain fatalities and injuries. Table B-
1 in Appendix B shows the estimated benefits for 20, 35, and 50 percent
reductions of fatalities and injuries. OSHA assumed a 20 percent
reduction in heart attacks, suicides, and cancer fatalities prevented
by the general medical evaluation (prostate, testicular, buccal cavity
and pharynx, thyroid, and melanoma cancers). OSHA also assumed a 50
percent reduction for safety-related fatalities and nonfatal injuries.
Based on a 50 percent reduction, average annualized benefits would be
$3.4 billion using a 3 percent discount rate, and $2.8 billion using a
7 percent discount rate.
[[Page 7968]]
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BILLING CODE 4510-26-C
IX. Non-Quantified Benefits for Emergency Responders
(i) Reduction in the Incidence of Cancer
OSHA believes that the proposed standard would reduce both the
number of fatalities due to cancer and the incidence of cancer among
firefighters. As previously explained, OSHA believes that research
exists that can be used to estimate the reduction in fatalities but an
estimate of the reduction in the number of total cancer cases would be
more speculative. Additionally, OSHA was unable to develop a monetary
value of avoided cases of non-fatal cancer as empirically validated as
that for the fatal cases. Nonetheless, the agency welcomes comment on
this issue for potential inclusion of these benefits in the Final
Economic Analysis.
As previously noted, several studies have found evidence that
firefighters are more likely to develop certain types of cancer
compared to the general population. Based on general population
incidence rates from the ACS with adjustments as determined in the
studies referenced above, OSHA estimated the number of cancer cases in
firefighters. (Table VII-6).\84\ OSHA
[[Page 7969]]
believes the proposed standard would prevent some of the 765.4
estimated cases of cancer diagnosed per year in firefighters but was
not able to calculate a robust estimate of how many of these cases
would be prevented.
---------------------------------------------------------------------------
\84\ The ACS general population estimates, see for example
https://www.cancer.org/cancer/testicular-cancer/about/key-
statistics.html#:~:text=Testicular%20cancer%20is%20not%20common,testi
cular%20cancer%20is%20about%2033. OSHA primarily used the estimates
of the incidence rates of cancer for firefighters relative to the
general population from Lee et al. (2020). Lee et al. provided
estimates for firefighters for melanoma, thyroid, prostate, and
testicular cancers. Daniels et al. (2014) found differences in
incidence rates for buccal cavity and pharynx cancer. Lee, D.J.,
Koru-Sengul, T., Hernandez, M.N., Caban-Martinez, A.J., McClure,
L.A., Mackinnon, J.A., Kobetz, E.N. (2020). Cancer risk among career
male and female Florida firefighters: Evidence from the Florida
Firefighter Cancer Registry (1981-2014). Daniels, R.D., Kubale,
T.L., Yiin, J.H., Dahm, M.M., Hales, T.R., Baris, D., Zahm, S.H.,
Beaumont, J.J., Waters, K.M., Pinkerton, L.E. (2014). Mortality and
cancer incidence in a pooled cohort of US firefighters from San
Francisco, Chicago, and Philadelphia (1950-2009). Occupational and
Environmental Medicine, 71:388-397. doi.org/10.1136/oemed-2013-101662. The number of in-scope firefighters are from U.S. Fire
Administration (USFA). (2020). U.S. Fire Administration (USFA)
National Fire Department Registry: National Data. Available at
https://apps.usfa.fema.gov/registry/download (Accessed January 13,
2020). The distributions by age and sex were based on:
NFPA (2017). U.S. Fire Department Profile--2015. April 2017.
Available at https://www.nfpa.org/News-and-Research/Fire-statistics-and-reports/Fire-statistics/The-fire-service/Administration/US-fire-department-profile (Accessed September 13, 2018).
---------------------------------------------------------------------------
X. Other Non-Quantified Benefits to Society
While OSHA is estimating the potential costs of vocational training
and has occupational safety-related benefits included in the analysis,
it has not quantified the potential spillover value to society from the
vocational training involved. For example, the NFPA Research Foundation
estimated the total cost to society of fire and fire protections in the
U.S. to be over $300 billion, more than $50 billion of which was the
cost to society of the fires themselves (NFPA, 2017). If the enhanced
vocational training of firefighting estimated in this analysis resulted
in even a 1 percent increase in the proficiency of firefighting, that
would represent a savings to society of over $500 million. The health
value to society from EMT vocational training is potentially of a
similar or greater magnitude.
References
American Cancer Society's Cancer Statistics Center (CSC). 2015-2019
average annual incidence rate.
Centers for Disease Control and Prevention. Prevent Heart Disease.
Available at https://www.cdc.gov/heartdisease/prevention.htm.
Centers for Disease Control and Prevention. Fire Fighter Fatality
Map. Available at: https://wwwn.cdc.gov/wisards/fffmap/.
Centers for Disease Control and Prevention. The National Institute
for Occupational Safety and Health (NIOSH). Data and Statistics.
Available at: https://www.cdc.gov/niosh/fire/data.html.
Chiuve, S.E., Fung, T.T., Rexrode, K.M., et al. (2011). Adherence to
a low-risk, healthy lifestyle and risk of sudden cardiac death among
women. JAMA. 306:62-9. http://dx.doi.org/10.1001/jama.2011.907.
Chiuve, S.E., Rexrode, K.M., D. S, Logroscino, G., Manson, J.E.,
Rimm, E.B. (2008). Primary prevention of stroke by healthy
lifestyle. Circulation. 118:947-54. http://dx.doi.org/10.1161/CIRCULATIONAHA.108.781062.
Daniels, R.D., Kubale, T.L., Yiin, J.H., et al. (2014). Mortality
and cancer incidence in a pooled cohort of US firefighters from San
Francisco, Chicago, and Philadelphia (1950-2009). Occup Environ Med.
71:388-397. http://dx.doi.org/10.1136/oemed-2013-101803.
De Koning, H.J., van der Aalst, C.M., de Jong, P.A., et. Al (2020).
Reduced Lung-Cancer Mortality with Volume CT Screening in a
Randomized Trial. The New England Journal of Medicine. 382(6):503-
513.
Firefighter Behavioral Health Alliance (FBHA). (2023). FF, EMS &
DISP Suicide Deaths by Year & Type. Available at https://www.ffbha.org/ff-ems-suicide-deaths-by-year-type/ but requires
membership. Validated and verified by personal communication with an
FBHA representative on May 1.
Hegg-Deloye, S., Brassard, P., Prairie, J., Larouche, D., Jauvin,
N., Poirier, P., Tremblay, A., Corbeil, P. (2015). Prevalence of
risk factors for cardiovascular disease in paramedics. International
archives of occupational and environmental health, 88(7), 973-980.
https://doi.0rg/10.1007/s00420-015-1028-z.
International Fire Chiefs Association. (2016). Physicals: Your Life
Depends on Them! Available at https://www.fstaresearch.org/physicals-your-life-depends-on-them/.
Jalilian et al. (2019) Cancer incidence and mortality among
firefighters. International Journal of Cancer. 145:2639-2646. http://dx.doi.org/10.1002/ijc.32199.
Lee, D.J., Koru[hyphen]Sengul, T., Hernandez, M.N., et al. (2020).
Cancer risk among career male and female Florida firefighters:
Evidence from the Florida Firefighter Cancer Registry (1981-2014).
Am J Ind Med. 63:285-299. https://doi.org/10.1002/ajim.23086.
Lee, S.J., Boscardin, W.J., Stijacic-Cenzer, I., Conell-Price, J.,
O'Brien, S., Walter, L.C., et al. Time lag to benefit after
screening for breast and colorectal cancer: meta-analysis of
survival data from the United States, Sweden, United Kingdom, and
Denmark BMJ 2013; 346:e8441. https://doi.org/10.1136/bmj.e8441 as an
example of research findings that may be applicable.
Muegge, C.M., Zollinger, T.W., Song, Y., Wessel, J., Monahan, P.O.,
Moffatt, S.M. (2018). Excess mortality among Indiana firefighters,
1985-2013. American Journal of Industrial Medicine, 61(12):961-967.
https://doi.org/10.1002/ajim.22918.
National Fire Protection Association (NFPA). (2017). U.S. Fire
Department Profile--2015. April 2017. Available at https://www.nfpa.org/News-and-Research/Fire-statistics-and-reports/Fire-statistics/The-fire-service/Administration/US-fire-department-profile (Accessed September 13, 2018).
Nishihara, R., Wu, K., Lochhead, P., Morikawa, T., Liao, X., Qian,
Z.R., et al. Long-term colorectal-cancer incidence and mortality
after lower endoscopy. N Engl J Med 2013; 369:1095-105.
Peterson, C., Miller, G.F., Barnett, S.B., Florence, C. Economic
Cost of Injury--United States, 2019. MMWR Morb Mortal Wkly Rep 2021;
70:1655-1659. http://dx.doi.org/10.15585/mmwr.mm7048a1.
Pinkerton, L., Bertke, S.J., Yiin, J., Dahm, M., Kubale, T., Hales,
T., Purdue, M., Beaumont, J.J., Daniels, R. (2020). Mortality in a
cohort of US firefighters from San Francisco, Chicago, and
Philadelphia: an update. Occupational and Environmental Medicine
77(2):84-93.
Seely, J.M., Alhassan, T. (2018) Screening for breast cancer in
2018--what should we be doing today? Current Oncology 25(1):S115-
S124.
U.S. Department of Labor, Occupational Safety and Health
Administration. Fatality and Catastrophe Investigation Summaries.
Available at: https://www.osha.gov/ords/imis/accidentsearch.html.
U.S. Department of Labor, U.S. Bureau of Labor Statistics.
Occupational Injuries/Illnesses and Fatal Injuries Profiles.
Available at https://data.bls.gov/gqt/InitialPage.
U.S. Department of Transportation. (2022). Departmental Guidance of
Valuation of a Statistical Life in Economic Analysis. Available at
https://www.transportation.gov/office-policy/transportation-policy/revised-departmental-guidance-on-valuation-of-a-statistical-life-in-economic-analysis.
U.S. Fire Administration (USFA) National Fire Department Registry:
National Data. (2020). Available at https://apps.usfa.fema.gov/registry/download (Accessed January 13, 2020).
Viscusi, K. and E.P Gentry. (2015). ``The value of a statistical
life for transportation regulations: A test of the benefits transfer
methodology.'' Journal of Risk and Uncertainty. 51:53-77. https://doi.org/10.1007/s11166-015-9219-2.
Witt, K. et al. (2017). Effectiveness of suicide prevention programs
for emergency and protective services employees: A systematic review
and meta-analysis. American Journal of Industrial Medicine
60(4):394-407. https://doi.org/10.1002/ajim.22676.
Appendix A. NIOSH Firefighter Fatalities
While OSHA is relying on data from the OIS and from NFPA to
estimate the safety benefits of the rule, NIOSH has also conducted
extensive analyses of firefighter injuries that parallel OSHA's
analysis and OSHA believes these merit summarizing here. The agency
finds these largely parallel the analysis of the OIS and NFPA data
in terms of the distribution of the cause and nature of the fatal
injuries. However, OSHA decided against using the NIOSH data to
estimate the number of firefighter fatalities
[[Page 7970]]
due to issues in identifying volunteers and which fatalities
occurred in States with OSHA-approved State Plans.
Between 2007 and 2021, NIOSH reported a total of 1,490
firefighter on-duty fatalities, an average of 99.33 firefighter
fatalities per year.\85\ The definition used by NIOSH to categorize
a fatality as ``on-duty'' was provided by the USFA. The USFA defines
``on duty'' as ``being at the scene of an alarm, whether a fire or
non-fire incident; being enroute while responding to or returning
from an alarm; performing other assigned duties such as training,
maintenance, public education, inspection, investigations, court
testimony and fundraising; and being on call, under orders or on
standby duty other than at home or at the individual's place of
business.'' The USFA also states that ``fatalities that occur at a
firefighter's home may be counted if the actions of the firefighter
at the time of injury involved firefighting or rescue'' (USFA 2022).
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\85\ https://wwwn.cdc.gov/wisards/fffmap/. This estimate
includes 99 Covid-19 related fatalities reported by the USFA for
years 2020 and 2021; https://apps.usfa.fema.gov/firefighter-fatalities/.
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During this 15-year period, the leading cause of injury was
stress/over-exertion, making up nearly 50 percent of total
fatalities. The USFA places all firefighter fatalities that are
cardiac or cerebrovascular in nature in this category due to the
strenuous and physical demands of the work. Of the 741 stress and
over-exertion fatalities, 665 were heart attacks. NIOSH cites
undiagnosed medical conditions such as cardiovascular diseases,
hypertension, and obesity as contributing factors to these
fatalities.
Vehicle accidents were the second leading cause of firefighter
deaths in the NIOSH data, accounting for 14 percent of total
fatalities. More than 50 percent of the 209 vehicle accident
fatalities reported occurred when firefighters were responding to an
emergency. In many of these cases, firefighters were fatally injured
when fire apparatus collided with roadway objects or overturned from
traveling at speeds unsafe for vehicle maneuvering, especially
during unfavorable weather and road conditions. In addition,
firefighters' failure to wear seatbelts and lack of experience
operating fire apparatus were also frequently contributors to these
fatal incidents.
The leading nature of these fatal injuries or the primary
physical characteristic that resulted in the death of these
firefighters was heart attacks, accounting for 45 percent of total
fatalities, followed by bodily trauma and asphyxiation, at 24 and 7
percent, respectively.
Appendix B
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BILLING CODE 4510-26-C
E. Economic Feasibility Analysis
I. Introduction
This section estimates the economic impacts of the proposed rule on
affected employers in the three emergency response service sectors:
firefighting, emergency medical service, and technical search and
rescue. The purpose of this analysis is twofold. First, it is used to
determine whether the proposed rule is economically feasible for all
entities in the affected emergency response service sectors, and
second, OSHA will use the results to determine whether the agency can
certify that the proposed rule will not have a significant economic
impact on a substantial number of small entities.
II. Analytical Approach
To determine whether a rule is economically feasible, OSHA
typically begins by using two screening tests to determine whether the
costs of the rule are beneath the threshold level at which the economic
viability of an affected industry might be threatened. As noted in the
Industry Profile, the proposed rule will impact private entities in all
states and state and local government entities in States with OSHA-
approved State Plans.\86\ Because a significant proportion of affected
entities are expected to be state and local government ESOs, the
determination of economic feasibility discussed in this chapter is
expanded to include both private and public (state and local
government) entities.
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\86\ As explained in section VII, Additional Requirements,
States that have elected voluntarily to adopt a State Plan approved
by the agency pursuant to section 18 of the Act must adopt a
standard at least as effective as the Federal standard, which must
apply to State and local government agencies (29 U.S.C. 667(b),
(c)(2) and (6)).
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The first screening test is a revenue test. In the context of
public entities, for the screening test, existing emergency
organization budgets are used as a measure of revenues. While there is
no hard and fast rule on which to base the threshold, OSHA generally
considers a rule to be economically feasible for an affected industry
when the annualized costs of compliance are less than one percent of
annual revenues for an average firm in that industry. The one-percent
revenue threshold is intentionally set at a low level so that OSHA can
confidently assert that the rule is economically feasible for
industries where the average firm is below the threshold (i.e.,
industries for which the costs of compliance are less than one percent
of annual revenues). As discussed further later, ultimately the larger
pool of locality revenue is more analogous to the revenues afforded
private firms; however, impact screening based on the more limited pre-
assigned budget of the emergency organization will readily expose
potential constraints facing the organization.
One complexity to note in the economic impact of the rule is that
the agency anticipates that part of the cost of the rule will not be
borne directly by affected emergency response entities but will be
dispersed widely in the economy because the cost of medical
examinations will be borne in part by insurance companies and other
third parties. While these represent costs to society and are reflected
in the estimated total costs of the rule, they do not pose issues for
the economic feasibility of the rule to emergency response
organizations. Details of this are discussed in the Costs chapter.
The second screening test that OSHA traditionally uses for private
entities to consider whether a rule is economically feasible for an
affected industry is if the costs of compliance are less than ten
percent of annual profits for the average firm in an industry (see,
e.g., OSHA's economic analysis of its Silica rule, 81 FR 16286, 16533
(March 25, 2016); upheld in N. Am. Bldg. Trades Unions v. OSHA, 878
F.3d 271, 300 (D.C. Cir. 2017)). The ten-percent profit test is also
intended to be at a sufficiently low level to allow OSHA to identify
industries that might require further examination. For public entities,
OSHA considers the costs of compliance compared to the revenue for the
entire locality as an alternative revenue measure to assess regulatory
impacts. To the extent that a city or town's budget can be reallocated
to different functions, this approach may result in a better
representation of how the costs of the proposed rule might impact a
given government entity. There has been no threshold established for
public entities equivalent to the ten-percent profits threshold for
private entities, but the agency invites comment on what would
reasonably apply to the public sector.
When an industry ``passes'' both the ``cost-to-revenue'' and
``cost-to-profit'' screening tests, OSHA is assured that the costs of
compliance with the rule are economically feasible for firms in that
industry. A rule is not necessarily economically infeasible, however,
for firms in industries where the average firm does not pass the
initial revenue screening test (i.e., those for which the costs of
compliance with the rule are one percent or more of annual revenues),
the initial profit screening test (i.e., those for which the costs of
compliance are ten percent or more of annual profits), or both.
Instead, OSHA normally views those industries as requiring additional
examination as to whether the rule would be economically feasible (see
N. Am. Bldg. Trades Unions v. OSHA, 878 F.3d at 291).
III. Impacts
A. Impacts and Economic Feasibility Screening Analysis--All
Establishments
Previous chapters of this PEA present summary profile information
of the number of potentially affected ESOs, WEREs, responders, and team
members as well as the costs of the proposed rule by provision and
responder or team member type. As shown in the Costs chapter, the
training and medical requirements provisions contribute the most to the
overall cost of the proposed rule.
To determine whether the proposed rule's projected costs of
compliance would threaten the economic viability of affected emergency
response service sectors, OSHA first compared, for the average firm in
each sector, annualized compliance costs to annual revenues and profits
for private organizations and annualized compliance costs to annual
revenues (represented by ESO budgets) and locality revenues per
(average) affected public organization. Table VII-E-2 and Table VII-E-3
show economic impacts for all public and private organizations,
respectively, where total costs include one-time and annual costs
annualized using a 3 percent discount rate. The estimated average
annualized cost per public organization is $17,012, while the estimated
average annualized cost per private organization is $22,464.
OSHA estimated revenues as follows:
Firefighting Services: To estimate public fire department revenue
by department type (career, volunteer, and mixed), OSHA used data from
Firehouse Magazine's (2022) 2021 National Run Survey, 2021 Volunteer
Fire Department Run Survey, and 2021 Combination Fire Department Run
Survey, respectively. Each of these surveys presents statistics on
funding and staffing.\87\ In order to extrapolate from these fire
departments to the entire universe of public fire departments in the
U.S., OSHA calculated the median budget per employee for each
department type and multiplied that estimate by the number
[[Page 7973]]
of firefighters in each size class as reported in the fire department
profile.
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\87\ The National Run Survey includes 229 fire departments; the
Volunteer Fire Department Run Survey includes 259 fire departments;
and the Combination Fire Department Run Survey includes 94 fire
departments.
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For private fire departments, OSHA conducted an internet search for
NAICS codes linked to a randomly designated subset of the entities
recorded as either a ``contract fire department'' or ``private or
industrial fire brigade'' in the National Fire Registry database (USFA,
2022).\88\ OSHA compared revenue per firm estimates from the 2017 SUSB
dataset for these NAICS codes and used the 25th percentile revenue per
firm estimate ($16,664,010 in 2022 dollars) as representative of
revenues for all private entities in the National Fire Registry.
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\88\ The National Fire Registry does not list NAICS codes
associated with each organization in the database. Since there are
435 organizations listed as ``contract fire department'' or
``private or industrial fire brigade'' in the Registry, OSHA
determined that a subset of organizations could be taken as
representative. OSHA used the 25th percentile revenue estimate as
representative.
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To estimate revenues for private wildland fire service
organizations, OSHA used revenue and employment data from the U.S.
Census Bureau's (2021) 2017 SUSB for NAICS 115310 Support Activities
for Forestry, dividing the total revenue figure by total employment to
estimate revenue per employee ($154,471). This estimate was then
multiplied by the number of wildland firefighters in each employee
class size from section V (Industry Profile) to determine revenues in
each employee class size. These estimates are then inflated to 2022
dollars using the Bureau of Economic Analysis' (BEA, 2023) implicit
price deflators for gross domestic product. OSHA used state-level
revenue data from the Survey of State and Local Government Finances
(2022) and inflated to 2022 dollars using the Bureau of Economic
Analysis' (BEA, 2023) implicit price deflators for gross domestic
product for state governments that utilize inmate firefighters.
Emergency Medical Services (EMS): Emergency medical service revenue
were estimated using revenue data from the U.S. Census Bureau's (2021)
2017 Statistics of U.S. Businesses (SUSB) for detailed employment size
classes in NAICS 621910 Ambulance Services, inflating those data to
2022 dollars using the Bureau of Economic Analysis' (BEA, 2023)
implicit price deflators for gross domestic product.
Technical Search and Rescue: Derivation of technical search and
rescue revenues involves characterization of wilderness and urban
search and rescue entities as well as additional technical water rescue
entities. For the former, OSHA used police department expenditures data
from the U.S. Census Bureau's (2022) 2017 Annual Survey of State and
Local Government Finances, as well as employment data from the Bureau
of Justice Statistics (2022) Census of State and Local Law Enforcement
Agencies for 2018. Using these two sources, OSHA calculated the average
expenditure per employee and multiplied this estimate by the number of
public wilderness and urban search and rescue group members derived in
section V (Industry Profile) for each employee class size. These
estimates are then inflated to 2022 dollars using the Bureau of
Economic Analysis' (BEA, 2023) implicit price deflators for gross
domestic product. OSHA also estimated revenues for private wilderness
and urban search and rescue groups by identifying a subset of these
entities and obtaining annual sales for them in DemographicsNow. OSHA
then extrapolated the revenues of this subset of entities to the full
profile of private wilderness and urban search and groups identified in
section V.
To estimate technical water rescue entity revenue, OSHA used the
median budget of all career fire departments from the Firehouse
Magazine's (2022) 2021 National Run Survey, inflated to 2022 dollars
using the Bureau of Economic Analysis's (BEA, 2023) implicit price
deflators for gross domestic product. OSHA's rationale for using career
fire departments budgets to estimate technical water rescue entity
revenue is explained in the Industry Profile. This estimate was
multiplied by the number of employees within each employee class size
as shown in section V (Industry Profile).
OSHA estimated profits and locality revenues for these emergency
response service sectors as follows:
OSHA estimated before-tax profit rates using corporate balance
sheet data from the Internal Revenue Service's Corporation Source Book
(IRS, 2016).\89\ For each of the years 2000 through 2013, OSHA
calculated profit rates as the ratio of total receipts to net income by
NAICS code and averaged profit rates across the fourteen-year (2000-
2013) period. Since some data provided by the IRS were not available at
disaggregated levels for all industries and profit rates, data at more
highly aggregated levels were used as proxy for such industries--that
is, where data were not available for each six-digit NAICS code,
corresponding 4- and 5-digit NAICS codes were used as appropriate.
Table VII-E-1 presents the NAICS codes and profit rates used for each
emergency response service sector.
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\89\ At the time of this analysis, this source was the most
recent publicly available dataset on industry-wide profit rates at
the NAICS level.
---------------------------------------------------------------------------
To estimate locality revenues, the agency used U.S. Census Bureau
(2022) data on local government finances, which breaks down
expenditures for various functions for local governments in the U.S.
and by state. OSHA used the ratio of expenditures for current
operations ($1.5 trillion) to expenditures for fire protection ($50
billion), a multiplier of approximately 30, to inflate estimated
revenue per public ESO to estimated total expenditures.
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As previously discussed, OSHA has established a minimum threshold
level of annualized costs equal to one percent of annual revenues--and,
secondarily, annualized costs equal to ten percent of annual profits--
below which the agency has concluded that costs are unlikely to
threaten the economic viability of an affected sector. Table VII-E-2
shows that costs as a percent of locality revenues for public
organizations generally range from less than 0.01 percent to 0.16
percent. Public volunteer fire departments are the only emergency
response service group with costs as a percent of revenues estimated to
exceed the one percent revenue test, at an estimated 4.99% of revenues.
In most situations, OSHA expects that the affected community would be
able to allocate the very small additional share of the locality
revenues necessary to permit the fire department to comply with the
standard. However, the agency welcomes comments, information, and data
on the feasibility of compliance for these entities.
Table VII-E-3 shows that all private emergency response service
sectors have costs that are less than one percent of revenues and ten
percent of profits.
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BILLING CODE 4510-26-C
B. Impacts and Regulatory Flexibility Screening Analysis--Small
Entities
The discussion in the preceding section focused on the economic
viability of each sector overall. This section considers the potential
impact of the proposed rule specifically on small organizations. The
RFA requires Federal agencies to consider the economic
[[Page 7977]]
impact that a proposed rulemaking will have on small entities. The RFA
states that whenever a Federal agency is required to publish a general
notice of proposed rulemaking for any proposed rule, the agency must
prepare and make available for public comment an initial regulatory
flexibility analysis (IRFA). 5 U.S.C. 603(a). Pursuant to section
605(b), in lieu of an IRFA, the head of an agency may certify that the
proposed rule will not have a significant economic impact on a
substantial number of small entities. The agency performed the
following screening analysis to determine whether it can certify that
the proposed rule will not have a significant economic impact on a
substantial number of small entities.
Again, OSHA used a minimum threshold level of annualized costs
equal to one percent of annual revenues--and, secondarily, annualized
costs equal to ten percent of annual profits--below which the agency
has concluded that the costs are unlikely to threaten the survival of
small organizations. Compliance costs for organizations meeting the RFA
or SBA definition of a small entity were calculated using compliance
cost estimates for each provision of the proposed rule for each
emergency response service sector.
Table VII-E-4 and Table VII-E-5 show economic impacts for
organizations considered small by RFA (public organizations) and SBA
(private organizations) definitions, respectively, where total costs
include one-time and annual costs annualized using a 3 percent discount
rate. The estimated average annualized cost per small public
organization is $15,027, while the estimated average annualized cost
per small private organization is $22,073. These average costs vary by
emergency sector and organization type (career, volunteer, and mixed).
For small public organizations, the estimated average cost ranges from
$9,040 for volunteer technical search and rescue groups to $30,660 for
volunteer emergency medical services. Small volunteer and mixed public
fire departments are estimated to experience costs that exceed one
percent of revenues. Costs as a percentage of locality revenues are
estimated to vary from 0.01 percent or less for several public
emergency response organizations to 0.17 percent for volunteer public
fire departments. For private organizations, the estimated average cost
per organization varies from $7,956 for technical search and rescue
groups to $26,090 for both volunteer and mixed responder emergency
medical services. All groups are estimated to incur costs that are less
than one percent of revenues. Small private emergency medical services
are estimated to experience costs that exceed ten percent of profits.
Based on these findings, OSHA is unable to certify that the
proposed rule will not have a significant economic impact on a
substantial number of small entities and has therefore prepared an
IRFA, to further examine issues related to small entities and the
proposed rule. The IRFA is presented in Chapter F of this PEA.
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BILLING CODE 4510-26-C
F. Initial Regulatory Flexibility Analysis
I. Introduction
The RFA requires Federal agencies to consider the economic impact
that a proposed rulemaking will have on small entities. The RFA states
that whenever a Federal agency is required to publish a general notice
of proposed rulemaking for any proposed rule, the agency must prepare
and make available for public comment an initial regulatory flexibility
analysis (IRFA). 5 U.S.C. 603(a). Pursuant to section 605(b), in lieu
of an IRFA, the head of an agency may certify that the proposed rule
will not have a significant economic impact on a substantial number of
small entities. A certification must be supported by a factual basis.
If the head of an agency makes a certification, the agency shall
publish such certification in the Federal Register at the time of
publication of a general notice of proposed rulemaking or at the time
of publication of the final rule. 5 U.S.C. 605(b).
To determine whether OSHA can certify that the proposed emergency
response rule will not have a significant economic impact on a
substantial number of small entities, the agency has developed
screening tests to consider minimum threshold effects of the proposed
rule on small entities. These screening tests are similar in concept to
the revenue and profit tests described in Preliminary Economic Analysis
and Initial Regulatory Flexibility Analysis, section VII.E., to
identify minimum threshold effects for purposes of demonstrating
economic feasibility. For private entities, there are two differences.
First, for each affected industry, the screening tests are applied, not
to all establishments, but to small entities (called ``small business
concerns'' by SBA). Second, although OSHA's regulatory flexibility
screening test for revenues also uses a minimum threshold level of
annualized costs equal to one percent of annual revenues, OSHA has
established a minimum threshold level of annualized costs equal to five
percent of annual profits for the average small entity. The agency has
chosen a lower minimum threshold level for the profitability screening
analysis and has applied its screening tests to small entities to
ensure that certification will be made, and an IRFA will not be
prepared, only if OSHA can be highly confident that a proposed rule
will not have a significant economic impact on a substantial number of
small entities in any affected industry.
As stated in Chapter VI, OSHA is not able to certify that the
proposed rule will not result in a significant economic impact on a
substantial number of small entities, thus triggering the need for an
IRFA. Under the provisions of the RFA, as amended in 1996, each such
analysis shall contain:
1. A description of the impact of the proposed rule on small
entities;
2. A description of the reasons why action by the agency is being
considered;
3. A succinct statement of the objectives of, and legal basis for,
the proposed rule;
4. A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
5. A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirements and the type of professional skills necessary for
preparation of the report or record;
6. An identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap, or conflict with the
proposed rule; and
7. A description and discussion of any significant alternatives to
the proposed rule which accomplish the stated objectives of applicable
statutes and which minimize any significant economic impact of the
proposed rule on small entities, such as:
(a) The establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to small entities;
(b) The clarification, consolidation, or simplification of
compliance and reporting requirements under the rule for such small
entities;
(c) The use of performance rather than design standards; and
(d) An exemption from coverage of the rule, or any part thereof,
for such small entities.
5 U.S.C. 603, 607. The RFA further states that the required
elements of the IRFA may be performed in conjunction with or as part of
any other agenda or analysis required by any other law if such other
analysis satisfies the provisions of the IRFA. 5 U.S.C. 605. The
remaining sections of this chapter address each of the components
listed above.
II. Initial Regulatory Flexibility Analysis
A. Description of the Impact of the Proposed Rule on Small Entities
The potential small entity impacts of the proposed rule were
derived and presented in Chapter VI. Table VII-E-4 of that chapter
shows that small public volunteer and mixed fire departments are
estimated to experience costs that exceed one percent of revenues.
Costs as a percentage of locality revenues are estimated to vary from
0.01 percent or less for several types of public emergency response
organizations to 0.17 percent for volunteer public fire departments.
Additionally, Table VII-E-5 shows that small private wildland fire
service and emergency medical service organizations, are estimated to
experience costs that exceed five percent of profits. Note that the
costs in these tables were annualized using a 3 percent discount rate.
B. Description of the Reasons Why Action by the Agency Is Being
Considered
Emergency response workers in America face considerable
occupational health and safety hazards in dynamic and often
unpredictable work environments. Current OSHA emergency response and
preparedness standards are outdated and incomplete. Specifically, the
standards do not address the full range of hazards facing emergency
responders, lag behind changes in protective equipment performance and
industry practices, and conflict with current industry consensus
standards. OSHA's current fire brigade standard, 29 CFR 1910.156, was
promulgated in 1980 and has only had minor revisions since then.
Every day, the duties of an emergency responder may require making
life and death decisions. A typical workday of an emergency responder
could range from responding to a mild medical emergency to a more
severe incident such as a multi-building fire. In doing their jobs of
protecting the public, personal and real property, and the environment,
emergency responders risk exposing themselves to safety and health
hazards that may lead to injuries, illnesses, and death.
Some of the most common hazards emergency responders may face
include:
vehicle collisions while traveling to or from emergency
incidents;
falls from heights due to structural or building
collapses;
being struck by, caught in between, or crushed by falling
objects and debris;
burns and other injuries from flashovers and backdrafts;
exposure to extreme temperatures, both hot and cold;
excessive noise exposure;
exposure to carbon monoxide and other toxic chemicals;
oxygen depletion and inadequate fresh air to breathe; and
over-exertion due to lifting heavy objects, wearing heavy
protective
[[Page 7981]]
equipment, repetitive motion, and other similar activities.
Long-term exposure to the various hazards found at emergency
incidents may lead not only to physical ailments among responders, but
to mental health issues as well. Some longer-term adverse health
effects may potentially be associated with the duties of emergency
responders include:
infectious diseases;
cardiovascular diseases due to environmental stressors and
exposures;
cancer due to exposure to combustion products, asbestos,
carcinogens, and other chemicals; and
stress, PTSD, depression, anxiety, and suicidality
resulting from exposure to traumatic events including workplace
violence.
As described in the benefits analysis in Chapter VII (see Table
VII-10), OSHA estimates that approximately 250 fatalities and
approximately 22,000 non-fatal injuries among emergency responders
occur annually.
C. Statement of the Objectives of and Legal Basis for the Proposed Rule
The objective of the proposed rule is to reduce the number of
injuries, illnesses, and fatalities occurring among emergency
responders in the course of their work. This objective will be achieved
by requiring employers to establish risk management plans, provide
training and medical surveillance, establish medical and physical
requirements, develop standard operating procedures, and provide other
protective measures enabling emergency responders to perform their
duties safely. The legal basis for the rule is the responsibility
delegated to the Secretary of Labor by the Occupational Safety and
Health (OSH) Act of 1970 (29 U.S.C. 651 et seq.). The OSH Act was
enacted ``to assure so far as possible every working man and woman in
the Nation safe and healthful working conditions and to preserve our
human resources.'' 29 U.S.C. 651(b). The legal authority for issuing
safety and health standards is found in section 6(b) of the OSH Act (29
U.S.C. 655).
The OSH Act imposes a number of requirements OSHA must satisfy
before adopting a safety standard. Among other things, the standard
must be highly protective, materially reduce a significant risk to
workers, be technologically feasible, and be economically feasible. See
58 FR 16612, 16614-16 (Mar. 30, 1993); Int'l Union, United Auto.,
Aerospace & Agric. Implement Workers of Am. v. OSHA, 37 F.3d 665, 668-
69 (D.C. Cir. 1994). A standard is technologically feasible if the
protective measures it requires already exist, can be brought into
existence with available technology, or can be created with technology
that can reasonably be expected to be developed. United Steelworkers of
Am. v. Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 1980). In determining
economic feasibility, OSHA must consider the cost of compliance on an
industry rather than on individual employers. In the preliminary and
final economic analyses, OSHA follows the advice of the U.S. Court of
Appeals for the D.C. Circuit to ``construct a reasonable estimate of
compliance costs and demonstrate a reasonable likelihood that these
costs will not threaten the existence or competitive structure of an
industry.'' Id.
D. Description and Estimate of the Number of Small Entities to Which
the Proposed Rule Will Apply
As described above, Chapter VI of this PEA presents OSHA's
preliminary analysis of the impacts associated with this proposed rule,
including an analysis of the type and number of small entities to which
the proposed rule would apply. To estimate the number of small entities
potentially affected by this rulemaking, OSHA used definitions
developed by SBA for each emergency services sector as well as the
definition of a small government according to the RFA. OSHA estimates
that approximately 21,000 small entities would be affected by the
proposed rule. Across these small entities, roughly 833,000 emergency
responders would be protected by the proposed rule.
E. Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule
Table VII-F-1 shows the average costs per small entity for each
provision of the rule by organization type for public entities. Across
all provisions of the proposed rule, the average public fire department
is estimated to incur costs of $14,766 annually. The costs differ
slightly across department type, ranging from $14,397 annually for all-
volunteer departments to $15,389 annually for mixed fire departments.
The average public emergency medical service organization is estimated
to incur costs of $24,180 annually. Among emergency medical services
ESO types, the average annual cost varies from $21,397 for mixed
organizations to $30,660 for volunteer organizations. Technical search
and rescue groups are estimated to incur costs of $9,419 on average
annually, with career organizations incurring costs of $14,266 annually
and volunteer organizations incurring costs of $9,040 annually.
Training is the most expensive provision for fire departments and
emergency medical services, accounting for 35 and 46 percent of costs
overall, respectively. The program evaluation provision is the most
expensive provision for technical search and rescue groups, accounting
for 25 percent of their overall costs on average. The second most
expensive provision for fire departments and technical search and
rescue groups is the medical and physical requirements provision, which
accounts for 16 and 14 percent of costs overall, respectively. For
emergency medical services, the second most expensive provision is the
post incident analysis provision, which accounts for 13 percent of
their overall costs under the proposed rule.
Table VII-F-2 presents the average costs per small entity for each
provision of the rule by organization type for private entities. WEREs
are estimated to incur costs of $16,097 on average annually. Private
fire departments are expected to spend $15,100 on average annually to
comply with the proposed standard, with a range of $13,702 annually for
volunteer fire departments to $18,670 annually for mixed departments.
Private wildland fire services are estimated to incur compliance costs
of $17,909 annually. Emergency medical service organizations are
expected to spend $25,359 on average annually to comply with the
proposed rule, with career EMS entities estimated to spend $24,167 on
average and both volunteer and mixed emergency medical services
entities expected to spend $26,090. The average technical search and
rescue group would spend an estimated $7,956 annually. Training is the
costliest provision of the proposed rule for all private emergency
response service sector entities except for technical search and rescue
groups, with costs ranging from 36 to 52 percent in total costs,
depending on the ESO or WERE type and sector (excluding technical
search and rescue; this group's training costs are estimated to account
for 12 percent of their overall costs). For technical search and rescue
groups, the most expensive provision of the proposed rule is the
program evaluation provision, accounting for 21 percent of overall
costs. The second most expensive provision for all private emergency
response service sector entities except WEREs is the medical and
physical requirements provision, accounting for 11 to 16 percent of
costs overall, depending on the sector. For WEREs, the second most
expensive provision is the equipment and PPE
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provision, which accounts for 14 percent of the average WERE's costs.
OSHA welcomes comment on this analysis and these findings. While
the RFA requires OSHA to show impacts on small entities and defines
small government entities as those serving populations of less than
50,000, it is possible that, given the unique circumstances of
volunteer fire departments, some other approach may be more useful for
purposes of OSHA's analysis. Are there additional analyses that the
agency should develop to demonstrate economic feasibility and
illustrate economic impacts on small entities? If so, what analyses
would be most useful for understanding the potential impacts on small
entities? In addition, there appear to be limitations on the systematic
data available to develop such analyses, particularly as they might
focus on smaller governmental jurisdictions. The agency would welcome
any suggestions in this area.
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F. Federal Rules Which May Duplicate, Overlap, or Conflict With the
Proposed Rule
OSHA has identified several Federal rules and guidelines that
address emergency responders. Below, the agency discusses whether these
rules and guidelines would duplicate, overlap, or conflict with the
proposed regulatory language.
The first set of Federal rules or guidelines that OSHA identified
are regulations promulgated by the Nuclear Regulatory Commission (NRC).
NRC fire protection regulations specify requirements for fire brigades
at nuclear reactor facilities. See 10 CFR 50.48 and appendix R.III(H)
and (I).
OSHA and the NRC have a Memorandum of Understanding (MOU) pursuant
to which the NRC has authority and responsibility for hazards related
to radioactive materials, including facility conditions that could
affect the safety of radioactive materials by, for example, causing a
fire. Under the MOU, OSHA has authority and responsibility for
industrial safety and health hazards not related to the use of
radioactive materials. MOU (Sept. 6, 2013). Thus, pursuant to the MOU,
the proposed standard would apply at nuclear reactor facilities to the
extent it covers hazards not related to the use of radioactive
materials.
The second set of Federal rules or guidelines that OSHA identified
are regulations promulgated by the Federal Aviation Administration
(FAA). The FAA establishes requirements for aircraft rescue and
firefighting. (14 CFR 139.315, 139.317, 139.319)
Pursuant to section 4(b)(1) of the OSH Act, 29 U.S.C. 653(b)(1),
and the Supreme Court's decision in Chao v. Mallard Bay Drilling, Inc.,
534 U.S. 235 (2002), OSHA's regulations are preempted if they conflict
with an exercise of authority by another Federal agency to address
working conditions under that agency's jurisdiction. Therefore, to the
extent the FAA has exercised authority to regulate emergency response
activities covered by the proposed standard that fall under FAA
jurisdiction, the proposed standard would be preempted.
The third set of Federal rules or guidelines that OSHA identified
are standards and a practice model put out by the National Highway
Transportation Safety Administration (NHTSA), part of the Department of
Transportation (DOT). NHTSA establishes standards for EMS providers and
EMS training curriculums.
There would be no conflict between OSHA's proposed standard and the
NHTSA standards and practice model because the NHTSA standards and
practice model recommend practices but do not carry the force of law.
Such non-mandatory guidelines do not constitute rules that would
duplicate, overlap, or conflict with a rule as outlined in the proposed
standard. Cf. Ensign-Bickford Co. v. OSHRC, 717 F.2d 1419, 1421 (D.C.
Cir. 1983) (agency regulates working conditions only if it ``implements
[a] regulatory apparatus''); Marshall v. Northwest Orient Airlines,
Inc., 574 F.2d 119, 122 (2d Cir. 1978) (``sister agency must actually
be exercising a power to regulate safety conditions''). There would
also be no conflict because OSHA's proposed standard would be
performance-based and is intended to ensure that employers adopt and
implement practices and training requirements that are consistent with
the NHTSA standards.
The fourth set of Federal rules or guidelines that OSHA identified
apply to the mining industry which is regulated by the Mine Safety and
Health Administration (MSHA). MSHA regulations have extensive
provisions for emergency incidents in mines including the enhanced
emergency response and rescue requirements established by the Mine
Improvement and New Emergency Response Act of 2006 (MINER Act).
Upon the creation of MSHA in 1977, OSHA and MSHA entered into an
interagency agreement to delineate authority between them. The
agreement stipulates that OSHA does not have jurisdiction where MSHA
regulations apply. As such, there is no conflict between OSHA's
proposed standard and MSHA's emergency response regulations.
The final set of Federal rules or guidelines that OSHA identified
are existing OSHA standards that cover emergency response activities.
OSHA has reviewed existing standards and determined that no standard
conflicts or overlaps with the proposed Emergency Response standard. To
the extent other standards are applicable, they are complementary of
the proposed standard.
G. Alternatives to the Proposed Rule
This section first presents OSHA's responses to recommendations
made by the SBREFA panel in response to comments made by SERs to
potentially alleviate impacts on small entities. Next, the agency
presents four regulatory alternatives to the proposed OSHA emergency
response rule.
(i) SBREFA Panel Recommendations
Table VII-F-3 lists the SBAR Panel recommendations and OSHA's
responses to these recommendations.
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(ii) Regulatory Alternatives
This section discusses four regulatory alternatives considered by
OSHA for the proposed rule. Each regulatory alternative presented here
is described and analyzed relative to the proposed rule and addresses
the costs and benefits to all entities.
Alternatives 1, 2, and 3 change the threshold at which responders
would qualify for the full medical exam requirement of the proposed
standard. While the proposed rule sets this threshold at 15 combustion
products exposure events per year, these alternatives set the threshold
at one (alternative 1), ten (alternative 2), and thirty (alternative 3)
combustion product exposure events per year. Alternative 4 would
require that all responders, regardless of the number of times a
responder is exposed to combustion products, undergo the full medical
exam.
Table VII-F-4. presents the total annualized costs and incremental
costs for each regulatory alternative. Alternative 4, where all
responders receive the full NFPA 1582 exam, is the costliest, with ESOs
incurring an additional $164.5 million annually compared to the
proposed rule. The least costly alternative would set the number of
exposure events at 30 per year, which results in approximately $13.2
million less in compliance costs per year.
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Table VII-F-5 presents the estimated number and monetized benefits
of fatalities and non-fatal injuries avoided by each of the four
alternatives, compared to the proposed rule. As shown in the table, the
alternatives only affect the number of fatalities that would be avoided
by the proposed rule.
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III. Net Benefits
Combining the results of the calculations in the Costs of
Compliance and Benefits sections, OSHA estimates that the proposed rule
would result in annualized net benefits (i.e., benefits minus costs) of
approximately $2 billion, with the results varying somewhat depending
on the discount rate. The calculation is presented in Table VII-F-6.
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OSHA has also estimated the unannualized stream of benefits and
costs over the next 50 years, as shown in Table VII-F-7.
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VIII. Additional Requirements
A. Unfunded Mandates Reform Act
OSHA reviewed this proposed rule according to the Unfunded Mandates
Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et seq. Section 202 of the
UMRA, 2 U.S.C. 1532(a), requires agencies to assess the anticipated
costs and benefits of a rule before issuing ``any general notice of
proposed rulemaking'' that includes a Federal mandate that may result
in expenditures in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector, of at least
$100 million, adjusted annually for inflation. In 2023, that threshold
is $177 million.
This proposed rule does not place a mandate on State or local
government, for purposes of the UMRA, because the agency's standards do
not apply to State and local governments (29 U.S.C. 652(5)). States
that have elected voluntarily to adopt a State Plan approved by the
agency must adopt a standard at least as effective as the Federal
standard, which must apply to State and local government agencies (29
U.S.C. 667(b), (c)(2) and (6)).
The OSH Act does not cover tribal governments in the performance of
traditional governmental functions, such as firefighting, EMS, and
search and rescue for the tribe in general. Reich v. Mashantucket Sand
& Gravel, 95 F.3d 174, 180 (2nd Cir. 1996) (traditionally governmental
activities are excepted from the rule that general Federal statutes
apply to tribes); cf. Snyder v. Navajo Nation, 382 F.3d 892, 895 (9th
Cir. 2004) (Fair Labor Standards Act does not apply to tribal police
because the maintenance of law and order is a traditional governmental
function). However, when tribes engage in activities of a commercial or
service character, such as firefighting, EMS, and search and rescue for
particular commercial enterprises, like casinos and sawmills, they are
subject to general Federal statutes, including the OSH Act. Menominee
Tribal Enters. v. Solis, 601 F.3d 669 (7th Cir. 2010) (OSH Act applies
to tribal sawmill); Mashantucket Sand & Gravel, 95 F.3d at 180; Smart
v. State Farm Ins. Co., 868 F.2d 929 (7th Cir. 1989) (original version
of Employment Retirement Income Security Act applied to tribal health
center). However, this proposed rule would not require tribal
governments to expend, in the aggregate, $100 million or more in any
one year for these activities. As noted below, OSHA also reviewed this
rulemaking in accordance with Executive Order 13175 on Consultation and
Coordination with Indian Tribal Governments (65 FR 67249 (November 9,
2000)) and determined that it does not have ``tribal implications'' as
defined in that Executive order.
Based on the analysis presented in the Preliminary Economic
Analysis and Initial Regulatory Flexibility Analysis, section VII. of
this preamble, OSHA concludes that the proposed rule would impose a
Federal mandate on the private sector of $100 million or more annually,
adjusted for inflation. The Preliminary Economic Analysis constitutes
the written statement containing a qualitative and quantitative
assessment of the anticipated costs and benefits required under section
202(a) of the UMRA (2 U.S.C. 1532).
B. Consultation and Coordination With Indian Tribal Governments/
Executive Order 13175
OSHA reviewed this proposed rule in accordance with Executive Order
13175 (E.O. 13175), Consultation and Coordination with Indian Tribal
Governments, 65 FR 67249 (Nov. 6, 2000), and determined that it does
not have ``tribal implications'' as defined in that order. Section 5 of
the Executive order requires agencies to consult with tribal officials
early in the process of developing regulations that: (1) have tribal
implications, impose substantial direct compliance costs on Indian
governments, and are not required by statute; or (2) have tribal
implications and preempt tribal law (E.O. 13175 section 5(b), (c)). The
Executive order requires that such consultation occur to the extent
practicable.
As explained above, the OSH Act does not cover tribal governments
in the performance of traditional governmental functions, so the
proposed rule would not have substantial direct effects on one or more
Indian tribes in their sovereign capacity, on the relationship between
the Federal Government and Indian tribes, or on the distribution of
power and responsibilities between the Federal Government and Indian
tribes (see E.O. 13175 section 1(a)). However, employees performing,
for example, firefighting and search and rescue for particular tribal
commercial enterprises,
[[Page 7998]]
would receive the same protections and benefits of the standard as all
other covered employees.
On June 20, 2023, OSHA held a listening session with tribal
representatives regarding this Emergency Response rulemaking. OSHA
provided an overview of the rulemaking effort and invited comments and
questions from tribal representatives. A summary of the meeting and
list of attendees can be viewed in the docket (Document ID 0154).
C. Environmental Impacts/National Environmental Policy Act
OSHA reviewed the proposed rule according to the National
Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321 et seq., the
regulations of the Council on Environmental Quality (CEQ), 40 CFR
chapter V, subchapter A, and the Department of Labor's NEPA procedures,
29 CFR part 11. The agency has preliminarily determined that the
proposed rule would have no impact on air, water, or soil quality;
plant or animal life; the use of land; or other aspects of the external
environment. Therefore, OSHA preliminarily concludes that the proposed
rule will have no significant environmental impacts.
D. Consensus Standards
OSHA must consider adopting existing national consensus standards
that differ substantially from OSHA's proposed standard if the
consensus standard would better effectuate the purposes of the Act (see
National Technology Transfer and Advancement Act of 1995, Public Law
104-113, section 12(d), 15 U.S.C. 272 Note; see also 29 U.S.C.
655(b)(8)). Whenever an OSHA rule differs substantially from a national
consensus standard, OSHA must publish in the Federal Register a
statement of the reasons why the rule will better effectuate the
purposes of the Act than the national consensus standard (29 U.S.C.
655(b)(8)). In the development of the proposed rule, OSHA relied
heavily on NFPA national consensus standards. Many of the proposed
provisions are based on or consistent with NFPA standards. Where a
proposed provision does deviate substantially from the relevant
consensus standard, OSHA has explained the departure in the Summary and
Explanation of the Proposed Rule for that provision (see Section V. of
this preamble).
E. Executive Order 13045 (Protecting Children From Environmental Health
and Safety Risks)
Executive Order 13045 (E.O. 13045), on Protection of Children from
Environmental Health Risks and Safety Risks, as amended by Executive
Orders 13229 and 13296, requires that Federal agencies provide
additional evaluation of economically significant regulatory actions
that concern an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children. This proposed
rule is intended to protect emergency responders from occupational
hazards. OSHA has preliminarily determined that the proposed rule will
not disproportionately affect children or have any adverse impact on
children. Accordingly, E.O. 13045, Protection of Children from
Environmental Health Risks and Safety Risks, requires no further agency
action or analysis.
F. Federalism
The agency reviewed this proposed rule in accordance with Executive
Order 13132 (E.O. 13132) on Federalism, which requires that Federal
agencies, to the extent possible, refrain from limiting State policy
options, consult with States before taking actions that would restrict
States' policy options, and take such actions only when required by
statute or when clear constitutional authority exists and the problem
is of national scope (64 FR 43255, (August 10, 1999)). The Executive
Order generally allows Federal agencies to preempt State law only as
provided by Congress or where State law conflicts with Federal law. In
such cases, Federal agencies must limit preemption of State law to the
extent possible.
The Occupational Safety and Health Act is an exercise of Congress's
Commerce Clause authority, and under section 18 of the Act, 29 U.S.C.
667, Congress expressly provided that States may adopt, with Federal
approval, a plan for the development and enforcement of occupational
safety and health standards. OSHA refers to the occupational safety and
health plans that have been submitted by States and approved by OSHA as
``State Plans.'' Occupational safety and health standards developed by
State Plans must be at least as effective in providing safe and
healthful employment and places of employment as the Federal standards.
Subject to these requirements, State Plans are free to develop and
enforce their own occupational safety and health standards.
This proposed rule complies with E.O. 13132. The hazards addressed
by this proposed rule and its goal of protecting firefighters and other
emergency responders are national in scope. As explained in the Need
for the Standard (Section II.A of this preamble), firefighters and
other emergency responders face a significant risk of harm, and a
national standard is necessary to ensure that a uniform, baseline
approach is taken to protect them. Accordingly, the rulemaking
establishes minimum requirements for employers in every State to
protect these workers.
In States without OSHA-approved State Plans, Congress provided for
OSHA standards to preempt State occupational safety and health
standards for issues addressed by the Federal standards. In these
States, this rulemaking limits State policy options in the same manner
as every standard promulgated by the agency. Furthermore, public-sector
fire departments and other public-sector emergency response providers
in these States are not subject to the OSH Act. 29 U.S.C. 652(5). The
following section addresses the effect of the proposed rule on States
with OSHA-approved State Plans.
G. Requirements for States With OSHA-Approved State Plans
When Federal OSHA promulgates a new standard or a more stringent
amendment to an existing standard, OSHA-approved State Plans must
either amend their standards to be identical to or ``at least as
effective as'' the new standard or amendment or show that an existing
State Plan standard covering this area is already ``at least as
effective'' as the new Federal standard or amendment. 29 CFR 1953.5(b).
State Plan adoption must be completed within six months of the
promulgation date of the final Federal rule.
OSHA preliminarily concludes that this proposed rule would increase
protections beyond those provided by current standards, including 29
CFR 1910.156. Therefore, within six months of any final rule's
promulgation date, State Plans would be required to adopt standards
that are identical or ``at least as effective'' as this rule, unless
they demonstrate that such amendments are not necessary because their
existing permanent standards are already ``at least as effective'' in
protecting workers. To avoid delays in worker protection, the effective
date of the State standard and any of its delayed provisions must be
the date of State promulgation or the Federal effective date, whichever
is later. The Assistant Secretary may
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permit a longer time period if the State timely demonstrates that good
cause exists for extending the time limitation (29 CFR 1953.5(a)).
As with all non-identical State Plan standards, State Plans must
submit to Federal OSHA for approval standards that differ from Federal
standards addressing the same issues for such standards to become part
of the State Plan. OSHA will review such non-identical State standards
to determine whether they are at least as effective as any final rule
which may be adopted.
Of the 29 States and Territories with OSHA-approved State Plans, 22
cover both public and private-sector employees: Alaska, Arizona,
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and
Wyoming. The remaining seven States and Territories cover only State
and local government employees: Connecticut, Illinois, Maine,
Massachusetts, New Jersey, New York, and the Virgin Islands.
The proposed rule, if adopted, would impact municipal fire
departments and other public-sector emergency response providers in
States with OSHA-approved State Plans. Section 18(c)(6) of the Act, 29
U.S.C. 667(c), provides that a State Plan must ``establish and maintain
an effective and comprehensive occupational safety and health program
applicable to all employees of public agencies of the State and its
political subdivisions, which program is as effective as the standards
contained in an approved plan.'' Thus, States with OSHA-approved State
Plans would be required to treat these public-sector employees the same
as they do private-sector employees when adopting and enforcing a
standard at least as effective as any final standard which may result
from this rulemaking. Cf. Memorandum from Bruce Hillenbrand, Deputy
Director, Federal Compliance and State Programs, to William W. Gordon,
Regional Administrator-IV, Subject: Tennessee's Fire Protection
Standard, Jan. 24, 1983 (Tennessee State Plan agency must apply its
fire brigade standard analogue to public-sector employees as it does to
private-sector employees) (Document ID 0322). Similarly, State Plans
covering only State and local government employees would need to adopt
and enforce a standard at least as effective as any such Federal
standard.
H. OMB Review Under the Paperwork Reduction Act of 1995
I. Overview
In this NPRM, OSHA is proposing to revise its existing Fire
Brigades standard, 29 CFR 1910.156. This proposal would change the
title of Sec. 1910.156 from Fire Brigades to Emergency Response as
well as impose new requirements for emergency response employers. These
new provisions contain collections of information that are subject to
review by the Office of Management and Budget (OMB) under the Paperwork
Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and OMB
regulations at 5 CFR part 1320, with new 29 CFR 1910.156, Emergency
Response. The agency is planning to revise and update the existing
previously approved paperwork package under OMB control number 1218-
0075 by replacing the existing collection of information requirements
with the proposed collections.
The PRA defines ``collection of information'' to mean ``the
obtaining, causing to be obtained, soliciting, or requiring the
disclosure to third parties or the public of facts or opinions by or
for an agency regardless of form or format'' (44 U.S.C. 3502(3)(A)).
Under the PRA, a Federal agency cannot conduct or sponsor a collection
of information unless OMB approves it and the agency displays a
currently valid OMB control number (44 U.S.C. 3507). Also,
notwithstanding any other provision of law, no employer shall be
subject to penalty for failing to comply with a collection of
information if the collection of information does not display a
currently valid OMB control number (44 U.S.C. 3512).
II. Solicitation of Comments
OSHA prepared and submitted an Information Collection Request (ICR)
to OMB proposing to revise certain collections of information currently
contained in that paperwork package in accordance with 44 U.S.C.
3507(d). The agency is soliciting comments on the revision of these
collection of information requirements, including comments on the
following items:
Whether the collections of information are necessary for
the proper performance of the agency's functions, including whether the
information is useful;
The accuracy of OSHA's estimate of the burden (time and
cost) of the collections of information, including the validity of the
methodology and assumptions used;
The quality, utility, and clarity of the information
collected; and
Ways to minimize the compliance burden on employers, for
example, by using automated or other technological techniques for
collecting and transmitting information (78 FR 56438).
III. Proposed Information Collection Requirements
As required by 5 CFR 1320.5(a)(1)(iv) and 1320.8(d)(2), the
following paragraphs provide information about the ICR.
1. Title: Emergency Response Standard (29 CFR 1910.156).
2. Description of the ICR: The proposal would revise the currently
approved Fire Brigades ICR by changing the title to Emergency Response
ICR and revising the existing collection of information requirements
currently approved by OMB.
3. Brief Summary of the Information Collection Requirements: This
proposal would revise the collection of information contained in the
existing ICR. Specifically, OSHA is proposing to (1) remove the
existing language currently approved under Sec. 1910.156(b)(1) that
requires employers to develop and maintain an organizational statement
that establishes the existence of a fire brigade; the basic
organizational structure; the type, amount, and frequency of training
to be provided to fire brigade members; the expected number of members
in the brigade; and the functions that the fire brigade is to perform
at the workplace; (2) remove the existing language currently approved
under Sec. 1910.156(b)(2) that requires employers to obtain a
physician's certificate of certain employees' fitness to participate in
fire brigade emergency activities; and (3) remove the existing language
currently approved under Sec. 1910.156(c)(4) that requires the
employer to inform fire brigade members about special hazards such as
storage and use of flammable liquids and gases, toxic chemicals,
radioactive sources, and water reactive substances, to which they may
be exposed during fire and other emergencies. In place of these
collection of information requirements, the agency is proposing to add
new collections contained in the proposed Emergency Response standard.
See Table V-1.
---------------------------------------------------------------------------
\90\ Full details of the burden and cost estimates for each
provision are available in the ICR's supporting statement at
reginfo.gov.
---------------------------------------------------------------------------
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BILLING CODE 4510-26-C
4. OMB Control Number: 1218-0075.
5. Affected Public: Business or other for-profit and not for profit
entities.
6. Number of Respondents: 22,551.
7. Frequency of Responses: On occasion.
8. Number of Reponses: 28,305,800.
9. Average Time per Response: Varies.
10. Estimated Annual Total Burden Hours: 3,896,763.
11. Estimated Annual Total Cost (Operation and maintenance):
$104,682,854.
IV. Submitting Comments
Members of the public who wish to comment on the revisions to the
paperwork requirements in this proposal must send their written
comments to the Office of Information and Regulatory Affairs, Attn: OMB
Desk Officer for the Department of Labor, OSHA (RIN: 1218-AD91), Office
of Management and Budget, Room 10235, Washington, DC 20503, email:
OIRA[email protected]. The agency encourages commenters also to
submit their comments on these paperwork requirements to the rulemaking
docket (Docket Number OSHA-2007-0073) along with comments on other
parts of the proposed rule. For instructions on submitting these
comments to the rulemaking docket, see the sections of this Federal
Register notice titled DATES and ADDRESSES. Comments submitted in
response to this document are public records; therefore, OSHA cautions
commenters about submitting personal information such as Social
Security numbers and dates of birth.
V. Docket and Inquiries
To access the docket to read or download comments and other
materials related to this paperwork determination, including the
complete ICR (containing the Supporting Statement with attachments
describing the paperwork determinations in detail), use the procedures
described under the section of this document titled ADDRESSES.
You also may obtain an electronic copy of the complete ICR by
visiting the web page at: http://www.reginfo.gov/public/do/PRAMain.
Scroll under ``Currently Under Review'' to ``Department of Labor
(DOL)'' to view all of the DOL's ICRs, including those ICRs submitted
for proposed rulemakings. To make inquiries, or to request other
information, contact Ms. Seleda Perryman, Directorate of Standards and
Guidance, telephone (202) 693-2222.
List of Subjects in 29 CFR Part 1910
Emergency response, Emergency responder, Emergency medical service,
Firefighter, Incorporation by reference, Search and rescue personal
protective equipment, Occupational safety and health.
Authority and Signature
This document was prepared under the direction of Douglas L.
Parker, Assistant Secretary of Labor for Occupational Safety and
Health, U.S. Department of Labor, 200 Constitution Ave. NW, Washington,
DC 20210. It is issued under the authority of sections 4, 6, and 8 of
the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655,
657); 5 U.S.C. 553, Secretary of Labor's Order No. 8-2020 (85 FR
58383), and 29 CFR part 1911.
Signed at Washington, DC.
Douglas L. Parker,
Assistant Secretary of Labor for Occupational Safety and Health.
Proposed Amendments
For the reasons stated in the preamble, OSHA proposes to amend 29
CFR part 1910 to read as follows:
[[Page 8009]]
PART 1910--OCCUPATIONAL SAFETY AND HEALTH STANDARDS
Subpart A--General
0
1. The authority citation for subpart A continues to read as follows:
Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor's Order
Numbers 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736),
n1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002
(67 FR 65008), 5-2007 (72 FR 31159), 4-2010 (75 FR 55355), or 1-2012
(77 FR 3912), as applicable. Sections 1910.6, 1910.7, 1910.8 and
1910.9 also issued under 29 CFR 1911. Section 1910.7(f) also issued
under 31 U.S.C. 9701; 29 U.S.C. 9a; 5 U.S.C. 553; Public Law 106-113
(113 Stat. 1501A-222); Public Law 11-8 and 111-317; and OMB Circular
A-25 (dated July 8, 1993) (58 FR 38142, July 15, 1993).
0
2. Amend Sec. 1910.6 by:
0
a. Throughout the section,
0
i. Removing the text ``The following material is available for purchase
from the'';
0
ii. Removing the text ``The following materials are available for
purchase from the'';
0
iii. Removing the text ``The following material is available from
the''; and
0
iv. Removing the text ``The following materials are available from
the'';
0
b. Revising paragraph (a) and the introductory text of paragraph (e);
0
c. In paragraph (e),
0
i. Removing the second sentence of paragraphs (e)(59) and (65);
0
ii. Revising paragraphs (e)(66), (67), and (69) through (71); and
0
iii. Adding paragraph (e)(80);
0
d. Revising the introductory text of paragraph (h);
0
e. Removing and reserving paragraph (k);
0
f. Adding introductory text to paragraph (r) and removing and reserving
paragraphs (r)(1) and (2);
0
g. Revising the introductory text of paragraph (t);
0
h. Redesignating paragraphs (t)(2) through (37) as set forth in the
following table:
------------------------------------------------------------------------
Old paragraph New paragraph
------------------------------------------------------------------------
paragraphs (t)(2) through (8).......... paragraphs (t)(3) through (9)
paragraphs (t)(9) through (15)......... paragraphs (t)(12) through (18)
paragraphs (t)(17) through (33)........ paragraphs (t)(19) through (35)
paragraph (t)(34)...................... paragraph (t)(49)
paragraphs (t)(35) through (36)........ paragraphs (t)(10) through (11)
paragraph (t)(37)...................... paragraph (t)(2)
------------------------------------------------------------------------
0
i. In newly redesignated paragraph (t)(10), removing the second
sentence;
0
j. Adding new paragraphs (t)(36) and (37) and adding paragraphs (t)(38)
through (48);
0
k. Revising newly-redesignated paragraph (t)(49);
0
l. Adding paragraphs (t)(50) through (57); and
0
m. Removing and reserving paragraph (v)(2).
The revisions and additions read as follows:
Sec. 1910.6 Incorporation by reference.
(a)(1) The standards of agencies of the U.S. Government and of
organizations which are not agencies of the U.S. Government, which are
incorporated by reference in this part, have the same force and effect
as other standards in this part. The Occupational Safety and Health
Administration (OSHA) adopts only the mandatory provisions (i.e.,
provisions containing the word ``shall'' or other mandatory language)
of material incorporated by reference as standards under the
Occupational Safety and Health Act.
(2) Any changes in the material incorporated by reference in this
part and an official historic file of such changes are available for
inspection in the Docket Office at the national office of the
Occupational Safety and Health Administration, U.S. Department of
Labor, Washington, DC 20210; phone: 202-693-2350 (TTY: 877-889-5627).
(3) The material listed in this section are incorporated by
reference into this part with the approval of the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
To enforce any edition other than that specified in this section, OSHA
must publish a document in the Federal Register and the material must
be available to the public. All approved incorporation by reference
(IBR) material is available for inspection at OSHA and at the National
Archives and Records Administration (NARA). Contact OSHA at: any OSHA
Regional Office or at the OSHA Docket Office, U.S. Department of Labor,
200 Constitution Avenue NW, Room N-3508, Washington, DC 20210; phone:
202-693-2350 (TTY: 877-889-5627); email: [email protected];
website: www.osha.gov/contactus/byoffice/dtsem/technical-data-center.
For information on the availability of this material at NARA, visit
www.archives.gov/federal-register/cfr/ibr-locations or email
[email protected]. The material may be obtained from the source(s)
in the following paragraph(s) of this section or through a document
reseller, including:
(i) Document Center Inc., 111 Industrial Road, Suite 9, Belmont,
94002; phone: 650-591-7600; fax: 650-591-7617; email: center.com">info@document-center.com; website: www.document-center.com.
(ii) Global Engineering Documents, 15 Inverness Way East,
Englewood, CO 80112; phone: 800-854-7179 or 303-397-7956; fax: 303-397-
2740; email: [email protected]; website: https://global.ihs.com;
(iii) Techstreet, a business of Thomson Reuters, 3916 Ranchero
Drive, Ann Arbor, MI 48108; phone: 800-699-9277 or 734-780-8000; fax:
734-780-2046; email: [email protected]; website:
www.Techstreet.com.
(iv) Linda Hall Library, 5109 Cherry Street, Kansas City, Missouri,
64110-2498; phone: 816-363-4600; email: [email protected];
website: https://www.lindahall.org/.
* * * * *
(e) American National Standards Institute (ANSI), 25 West 43rd
Street, 4th Floor, New York, NY 10036; phone: 212-642-4900; fax: 212-
398-0023; website: www.ansi.org.
* * * * *
(66) ANSI Z535.1-2006 (R2011), Safety Colors, reaffirmed July 19,
2011; IBR approved for Sec. Sec. 1910.97(a) and 1910.145(d).
(67) ANSI Z535.2-2011, Environmental and Facility Safety Signs,
published September 15, 2011; IBR approved for Sec. 1910.261(c).
* * * * *
(69) ANSI/ISEA Z87.1-2010, Occupational and Educational Personal
Eye and Face Protection Devices,
[[Page 8010]]
Approved April 13, 2010; IBR approved for Sec. 1910.133(b).
(70) ANSI Z87.1-2003, Occupational and Educational Eye and Face
Personal Protection Devices Approved June 19, 2003; IBR approved for
Sec. 1910.133(b).
(71) ANSI Z87.1-1989 (R-1998), Practice for Occupational and
Educational Eye and Face Protection, Reaffirmation approved January 4,
1999; IBR approved for Sec. 1910.133(b).
* * * * *
(80) ANSI/ISEA 207-2011, American National Standard for High-
Visibility Safety Vests [2011 ed]; IBR approved for Sec. 1910.156(k).
* * * * *
(h) ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West
Conshohocken, PA 19428-2959; phone: 610-832-9585; fax: 610-832-9555;
email: [email protected]; website: www.astm.org.
* * * * *
(r) International Standards Organization (ISO) through ANSI, 25
West 43rd Street, Fourth Floor, New York, NY 10036-7417; phone: 212-
642-4980; fax: 212-302-1286; email: [email protected]; website:
www.ansi.org.
* * * * *
(t) National Fire Protection Association (NFPA), 1 Batterymarch
Park, Quincy, MA 02269; phone: 800-344-3555 or 617-770-3000; fax: 800-
593-6372 or 508-895-8301; email: [email protected]; website:
www.nfpa.org.
* * * * *
(36) NFPA 1001, Standard for Structural Fire Fighter Professional
Qualifications, [2019 edition]; IBR approved for Sec. 1910.156(h).
(37) NFPA 1002, Standard for Fire Apparatus Driver/Operator
Professional Qualifications, [2017 edition]; IBR approved for Sec.
1910.156(h).
(38) NFPA 1005, Standard for Professional Qualifications for Marine
Fire Fighting for Land-Based Fire Fighters, [2019 edition]; IBR
approved for Sec. 1910.156(h).
(39) NFPA 1006, Standard for Technical Rescue Personnel
Professional Qualifications, [2021 edition]; IBR approved for Sec.
1910.156(h).
(40) NFPA 1021, Standard for Fire Officer Professional
Qualifications, [2020 edition]; IBR approved for Sec. 1910.156(h).
(41) NFPA 1081, Standard for Facility Fire Brigade Member
Professional Qualifications, [2018 edition]; IBR approved for Sec.
1910.156(h).
(42) NFPA 1140, Standard for Wildland Fire Protection, [2022
edition]; IBR approved for Sec. 1910.156(h).
(43) NFPA 1407, Standard for Training Fire Service Rapid
Intervention Crews, [2020 edition]; IBR approved for Sec. 1910.156(h).
(44) NFPA 1582, Standard on Comprehensive Occupational Medical
Program for Fire Departments, [2022 edition]; IBR approved for Sec.
1910.156(g).
(45) NFPA 1910, Standard for the Inspection, Maintenance,
Refurbishment, Testing, and Retirement of In-Service Emergency Vehicles
and Marine Firefighting Vessels, [2024 edition]; IBR approved for Sec.
1910.156(l).
(46) NFPA 1951, Standard on Protective Ensembles for Technical
Rescue Incidents, [2020 edition]; IBR approved for Sec. 1910.156(k).
(47) NFPA 1952, Standard on Surface Water Operations Protective
Clothing and Equipment, [2021 edition]; IBR approved for Sec.
1910.156(k).
(48) NFPA 1953, Standard on Protective Ensembles for Contaminated
Water Diving, [2021 edition]; IBR approved for Sec. 1910.156(k).
(49) NFPA 1971, Standard on Protective Ensembles for Structural
Fire Fighting and Proximity Fire Fighting, [2018 edition]; IBR approved
for Sec. 1910.156(k).
(50) NFPA 1977, Standard on Protective Clothing and Equipment for
Wildland Fire Fighting and Urban Interface Fire Fighting, [2022
edition]; IBR approved for Sec. 1910.156(k).
(51) NFPA 1981, Standard on Open-Circuit Self-Contained Breathing
Apparatus (SCBA) for Emergency Services, [2019 edition]; IBR approved
for Sec. 1910.156(k).
(52) NFPA 1982, Standard on Personal Alert Safety Systems (PASS),
[2018 edition]; IBR approved for Sec. 1910.156(k).
(53) NFPA 1984, Standards on Respirators for Wildland Fire-Fighting
Operations and Wildland Urban Interface Operations, [2022 edition]; IBR
approved for Sec. 1910.156(k).
(54) NFPA 1986, Standard on Respiratory Protection for Tactical and
technical Operations, [2023 edition]; IBR approved for Sec.
1910.156(k).
(55) NFPA 1987, Standard on Combination Unit Respirator Systems for
Tactical and Technical Operations, [2023 edition]; IBR approved for
Sec. 1910.156(k).
(56) NFPA 1990, Standard on Protective Ensembles for Hazardous
Materials and CBRN Operations, [2022 edition]; IBR approved for Sec.
1910.156(k).
(57) NFPA 1999, Standard on Protective Clothing and Ensembles for
Emergency Medical Operations, [2018 edition]; IBR approved for Sec.
1910.156(k).
* * * * *
Subpart H--Hazardous Materials
0
3. The authority citation for subpart H continues to read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's
Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR
35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017),
or 5-2007 (72 FR 31159), 4-2010 (75 FR 55355) or 1-2012 (77 FR
3912), as applicable; and 29 CFR part 1911.
Sections 1910.103, 1910.106 through 1910.111, and 1910.119,
1910.120, and 1910.122 through 1910.126 also issued under 29 CFR
part 1911.
Section 1910.119 also issued under Section 304, Clean Air Act
Amendments of 1990 (Pub. L. 101-549), reprinted at 29 U.S.C.A. 655
Note.
Section 1910.120 also issued under Section 126, Superfund
Amendments and Reauthorization Act of 1986 as amended (29 U.S.C.A.
655 Note), and 5 U.S.C. 553.
0
4. Amend Sec. 1910.120 by:
0
a. In paragraph (c)(5)(iii), removing the text ``appendix B'' and
adding in its place the text ``appendix D to this subpart'';
0
b. In paragraph (f)(4)(ii), removing the text ``appendix D'' and adding
in its place the text ``appendix D to this subpart'';
0
c. In paragraphs (g)(3)(iv) and (v). removing the text ``appendix B''
and adding in its place the text ``appendix B to this subpart'';
0
d. In paragraphs (g)(4)(ii) and (iii), removing the text ``appendix A''
and adding in its place the text ``appendix A to this subpart'';
0
e. Revising paragraph (q)(3)(iii);
0
f. Redesignating the note immediately following the undesignated
heading ``Appendices to Sec. 1910.120'' as paragraph (r);
0
g. Removing the undesignated heading ``Appendices to Sec. 1910.120'';
and
0
h. Redesignating appendices A through E to Sec. 1910.120 as appendices
A through E to subpart H of part 29.
The revisions and addition read as follows:
Sec. 1910.120 Hazardous waste operations and emergency response.
* * * * *
(q) * * *
(3) * * *
(iii) Based on the hazardous substances and/or conditions present,
the individual in charge of the ICS shall implement appropriate
emergency operations, and ensure that the personal
[[Page 8011]]
protective equipment worn is appropriate for the hazards to be
encountered. However, personal protective equipment shall meet, at a
minimum, the criteria contained in Sec. 1910.156(k) when worn while
performing firefighting operations beyond the incipient stage for any
incident.
(r) Appendices to this subpart--Hazardous Waste Operations and
Emergency Response. Appendices A through E to this subpart serve as
non-mandatory guidelines to assist employees and employers in complying
with the appropriate requirements of this section. However, paragraph
(g) of this section makes mandatory in certain circumstances the use of
Level A and Level B PPE protection set forth in the appendices.
* * * * *
0
5. Amend newly redesignated appendix B to subpart H by revising Part
B.IV to read as follows:
Appendix B to Subpart H of Part 1910--General Description and
Discussion of the Levels of Protection and Protective Gear
* * * * *
Part B * * *
IV. Level D--Level D protection should be used when:
1. The atmosphere contains no known hazard; and
2. Work functions preclude splashes, immersion, or the potential
for unexpected inhalation of or contact with hazardous levels of any
chemicals.
Note: As stated before, combinations of personal protective
equipment other than those described for Levels A, B, C, and D
protection may be more appropriate and may be used to provide the
proper level of protection.
As an aid in selecting suitable chemical protective clothing, it
should be noted that the NFPA has developed standards on chemical
protective clothing. The standards that have been adopted include:
NFPA 1990, Standard on Protective Ensembles for Hazardous
Materials and CBRN Operations, [2022 ed]. (as incorporated by
reference, see Sec. 1910.6).
This standard applies documentation and performance requirements
to the manufacture of chemical protective suits. Chemical protective
suits meeting these requirements are labelled as compliant with the
appropriate standard. It is recommended that chemical protective
suits that meet these standards be used.
Appendix C to Subpart H [Amended]
0
6. Amend newly redesignated appendix C to subpart H by:
0
a. In section 2., removing the text ``appendix D'' and adding in its
place the text ``appendix D to this subpart''; and
0
b. In section 5., removing the text ``appendix B'' and adding in its
place the text ``appendix B to this subpart''.
Appendix E to Subpart H [Amended]
0
7. Amend newly redesignated appendix E to subpart H by:
0
a. In paragraph B.1.(m), removing the text ``appendices to 29 CFR
1910.120'' and adding, in its place, the text ``appendices to this
subpart''; and
0
b. In section 5., removing the text ``appendix B'' and adding, in its
place, the text ``appendix B to this subpart''.
Subpart I--Personal Protective Equipment
0
8. The authority citation for subpart I continues to read as follows:
Authority: 29 U.S.C. 653, 655, 657; Secretary of Labor's Order
No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90
(55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR
65008 preview citation details), 5-2007 (72 FR 31160), 4-2010 (75 FR
55355), or 1-2012 (77 FR 3912), as applicable, and 29 CFR part 1911.
0
9. Amend Sec. 1910.134 by:
0
a. In paragraph (b), removing the definition for ``Interior structural
firefighting'';
0
b. Revising paragraph (g)(4); and
0
c. Removing Notes 1 and 2 to paragraph (g).
The revision reads as follows:
Sec. 1910.134 Respiratory protection.
* * * * *
(g) * * *
(4) Procedures for interior structural firefighting. (Refer to
Sec. 1910.156)
* * * * *
Subpart L--Fire Protection
0
10. The authority citation for subpart L continues to read as follows:
Authority: Sections 4, 6, and 8 of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 653, 655, and 657); Secretary of
Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48
FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR
50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), as
applicable, and 29 CFR part 1911.
0
11. Amend Sec. 1910.155 by revising paragraphs (a) and (c) to read as
follows:
Sec. 1910.155 Scope, application and definitions applicable to this
subpart.
(a) Scope. This subpart contains requirements for Workplace
Emergency Response Employers and Emergency Service Organizations (as
defined in Sec. 1910.156), and all portable and fixed fire suppression
equipment, fire detection systems, and fire or employee alarm systems
installed to meet the fire protection requirements of this part.
* * * * *
(c) Definitions applicable to this subpart--
Aqueous film forming foam (AFFF) means a fluorinated surfactant
with a foam stabilizer which is diluted with water to act as a
temporary barrier to exclude air from mixing with the fuel vapor by
developing an aqueous film on the fuel surface of some hydrocarbons
which is capable of suppressing the generation of fuel vapors.
Approved means acceptable to the Assistant Secretary under the
following criteria:
(i) If it is accepted, or certified, or listed, or labeled or
otherwise determined to be safe by a nationally recognized testing
laboratory; or
(ii) With respect to an installation or equipment of a kind which
no nationally recognized testing laboratory accepts, certifies, lists,
labels, or determines to be safe, if it is inspected or tested by
another Federal agency and found in compliance with the provisions of
the applicable National Fire Protection Association Fire Code; or
(iii) With respect to custom-made equipment or related
installations which are designed, fabricated for, and intended for use
by its manufacturer on the basis of test data which the employer keeps
and makes available for inspection to the Assistant Secretary.
(iv) For the purposes of paragraph (c)(3) of this section:
(A) Equipment is listed if it is of a kind mentioned in a list
which is published by a nationally recognized testing laboratory which
makes periodic inspections of the production of such equipment and
which states that such equipment meets nationally recognized standards
or has been tested and found safe for use in a specified manner;
(B) Equipment is labeled if there is attached to it a label,
symbol, or other identifying mark of a nationally recognized testing
laboratory which makes periodic inspections of the production of such
equipment, and whose labeling indicates compliance with nationally
recognized standards or tests to determine safe use in a specified
manner;
(C) Equipment is accepted if it has been inspected and found by a
nationally recognized testing laboratory to conform to specified plans
or to procedures of applicable codes; and
(D) Equipment is certified if it has been tested and found by a
nationally recognized testing laboratory to meet nationally recognized
standards or to be
[[Page 8012]]
safe for use in a specified manner or is of a kind whose production is
periodically inspected by a nationally recognized testing laboratory,
and if it bears a label, tag, or other record of certification.
(E) Refer to Sec. 1910.7 for definition of nationally recognized
testing laboratory.
Assistant Secretary means the Assistant Secretary of Labor for
Occupational Safety and Health or designee.
Automatic fire detection device means a device designed to
automatically detect the presence of fire by heat, flame, light, smoke
or other products of combustion.
Carbon dioxide means a colorless, odorless, electrically
nonconductive inert gas (chemical formula CO2) that is a
medium for extinguishing fires by reducing the concentration of oxygen
or fuel vapor in the air to the point where combustion is impossible.
Class A fire means a fire involving ordinary combustible materials
such as paper, wood, cloth, and some rubber and plastic materials.
Class B fire means a fire involving flammable or combustible
liquids, flammable gases, greases and similar materials, and some
rubber and plastic materials.
Class C fire means a fire involving energized electrical equipment
where safety to the employee requires the use of electrically
nonconductive extinguishing media.
Class D fire means a fire involving combustible metals such as
magnesium, titanium, zirconium, sodium, lithium and potassium.
Class K fire means a fire in a cooking appliance involving animal
oils, vegetable oils, or fats.
Clean agent means an extinguishing agent that is odorless,
colorless, electrically non-conducive, and leaves no residue.
Dry chemical means an extinguishing agent composed of very small
particles of chemicals such as, but not limited to, sodium bicarbonate,
potassium bicarbonate, urea-based potassium bicarbonate, potassium
chloride, or monoammonium phosphate supplemented by special treatment
to provide resistance to packing and moisture absorption (caking) as
well as to provide proper flow capabilities. Dry chemical does not
include dry powders.
Dry powder means a compound used to extinguish or control Class D
fires.
Education means the process of imparting knowledge or skill through
systematic instruction. It does not require formal classroom
instruction.
Extinguisher classification means the letter classification given
an extinguisher to designate the class or classes of fire on which an
extinguisher will be effective.
Extinguisher rating means the numerical rating given to an
extinguisher which indicates the extinguishing potential of the unit
based on standardized tests developed by Underwriters' Laboratories,
Inc.
Fixed extinguishing system means a permanently installed system
that either extinguishes or controls a fire at the location of the
system.
Foam means a stable aggregation of small bubbles which flow freely
over a burning liquid surface and form a coherent blanket which seals
combustible vapors and thereby extinguishes the fire.
Gaseous agent is a fire extinguishing agent which is in the gaseous
state at normal room temperature and pressure. It has low viscosity,
can expand or contract with changes in pressure and temperature, and
has the ability to diffuse readily and to distribute itself uniformly
throughout an enclosure.
Halogenated agent means a liquified gas extinguishing agent that
chemically interrupts the combustion reaction between the fuel and
oxygen to extinguish fires.
Halon 1211 means a colorless, faintly sweet smelling, electrically
nonconductive liquefied gas (chemical formula CBrC1F2) which
is a medium for extinguishing fires by inhibiting the chemical chain
reaction of fuel and oxygen. It is also known as
bromochlorodifluoromethane.
Halon 1301 means a colorless, odorless, electrically nonconductive
gas (chemical formula CBrF3) which is a medium for
extinguishing fires by inhibiting the chemical chain reaction of fuel
and oxygen. It is also known as bromotrifluoromethane.
Incipient stage fire means a fire which is in the initial or
beginning stage and which can be controlled or extinguished by portable
fire extinguishers, Class II standpipe or small hose systems without
the need for protective clothing or breathing apparatus.
Inspection means a visual check of fire protection systems and
equipment to ensure that they are in place, charged, and ready for use
in the event of a fire.
Interior structural firefighting 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.
Local application system means a fixed fire suppression system
which has a supply of extinguishing agent, with nozzles arranged to
automatically discharge extinguishing agent directly on the burning
material to extinguish or control a fire.
Maintenance means the performance of services on fire protection
equipment and systems to assure that they will perform as expected in
the event of a fire. Maintenance differs from inspection in that
maintenance requires the checking of internal fittings, devices and
agent supplies.
Multipurpose dry chemical means a dry chemical which is approved
for use on Class A, Class B and Class C fires.
Pre-discharge employee alarm means an alarm which will sound at a
set time prior to actual discharge of an extinguishing system so that
employees may evacuate the discharge area prior to system discharge.
Sprinkler alarm means an approved device installed so that any
waterflow from a sprinkler system equal to or greater than that from
single automatic sprinkler will result in an audible alarm signal on
the premises.
Sprinkler system means a system of piping designed in accordance
with fire protection engineering standards and installed to control or
extinguish fires. The system includes an adequate and reliable water
supply, and a network of specially sized piping and sprinklers which
are interconnected. The system also includes a control valve and a
device for actuating an alarm when the system is in operation.
Standpipe systems. (i) Class I standpipe system means a 21/2'' (6.3
cm) hose connection for use by fire departments and those trained in
handling heavy fire streams.
(ii) Class II standpipe system means a 11/2'' (3.8 cm) hose system
which provides a means for the control or extinguishment of incipient
stage fires.
(iii) Class III standpipe system means a combined system of hose
which is for the use of employees trained in the use of hose operations
and which is capable of furnishing effective water discharge during the
more advanced stages of fire (beyond the incipient stage) in the
interior of workplaces. Hose outlets are available for both 11/2'' (3.8
cm) and 21/2'' (6.3 cm) hose.
(iv) Small hose system means a system of hose ranging in diameter
from 5/8'' (1.6 cm up to 11/2'' (3.8 cm) which is for the use of
employees and which provides a means for the control and extinguishment
of incipient stage fires.
Training means the process of making proficient through instruction
and hands-on practice in the operation of equipment, including
respiratory protection equipment, that is expected to be used and in
the performance of assigned duties.
[[Page 8013]]
Total flooding system means a fixed suppression system which is
arranged to automatically discharge a predetermined concentration of
agent into an enclosed space for the purpose of fire extinguishment or
control.
Wet chemical means an aqueous solution of organic or inorganic
salts, or a combination thereof, that forms an extinguishing agent.
Wetting agent means a concentrate mixed with water that reduces the
surface tension of the water which increases its ability to spread and
penetrate, thus extending the efficiency of the watering extinguishing
fires.
0
12. Revise Sec. 1910.156 to read as follows:
Sec. 1910.156 Emergency response.
(a) Scope. (1) This section applies to:
(i) Employers that have a workplace emergency response team, as
defined in paragraph (b) of this section. The employees on the team, as
a collateral duty to their regular daily work assignments, respond to
emergency incidents to provide service such as firefighting, emergency
medical service, and technical search and rescue. For the purposes of
this section, this type of employer is called a Workplace Emergency
Response Employer (WERE), the team is called a Workplace Emergency
Response Team (WERT), and the employees assigned to the team are called
team members; and
(ii) Employers that are emergency service organizations as defined
in paragraph (b) of this section, that provide one or more of the
following emergency response services as a primary function; or the
employees perform the emergency service(s) as a primary duty for the
employer: firefighting, emergency medical service, and technical search
and rescue. For the purposes of this section, this type of employer is
called an Emergency Service Organization (ESO), and the employees are
called responders.
(2) This section does not apply to:
(i) Employers performing disaster site clean-up or recovery duties
following natural disasters such as earthquakes, hurricanes, tornados,
and floods; and human-made disasters such as explosions and
transportation incidents.
(ii) Activities covered by Sec. 1910.120 (Hazardous Waste
Operations and Emergency Response (HAZWOPER)), Sec. 1910.146 (Permit-
Required Confined Spaces in General Industry).
(b) Definitions.
Combustion product means the heat, volatized liquids and solids,
particulate matter (microscopic and small unburned particles), ash, and
toxic gases released as a result of combustion (fire).
Community means a state, region, municipality or portion thereof,
such as a village, town, township, borough, city, county, or parish.
Community vulnerability assessment means the process of
identifying, quantifying, and prioritizing the potential and known
vulnerabilities of the overall community that may require emergency
service from the ESO, including the community's structures,
inhabitants, infrastructure, organizations, and hazardous conditions or
processes. The assessment is intended to include both human-created
vulnerabilities and natural disasters.
Control zone means an area at an incident that is designated based
upon safety and the degree of hazard to team members and responders. A
control zone may be designated as cold, warm, hot, or no-entry.
(i) Cold zone means the area immediately outside the boundary of
the established warm zone where team members and responders are not
exposed to dangerous areas or contaminants from fire, toxic chemicals,
or carcinogens. The cold zone typically contains the command post and
such other support functions as are deemed necessary to control the
incident. It may also be known as the support zone.
(ii) Warm zone means the area immediately outside the boundary of
the hot zone that serves to transition to the cold zone. The warm zone
typically is where team member and responder and equipment
decontamination and hot zone support take place. It may also be known
as the contamination reduction zone.
(iii) Hot zone means the area including and immediately surrounding
the physical location of a fire or other hazardous area, having a
boundary that extends far enough away to protect team members and
responders outside the hot zone from being directly exposed to the
hazards present in the hot zone.
(iv) No-entry zone means an area designated to keep out team
members and responders, due to the presence of dangers such as imminent
hazard(s), potential collapse, or the need to preserve the scene.
Emergency Medical Service (EMS) means the provision of patient
treatment, such as basic life support, advanced life support, and other
pre-hospital procedures, and may include transportation to a medical
facility. It does not include the provision of first aid within the
scope of Sec. 1910.151.
Emergency Response Program (ERP) means a written program, developed
by the WERE or ESO, to ensure that the WERE or ESO is prepared to
safely respond to and operate at emergency incidents and non-emergency
service situations, and to provide for the occupational safety and
health of team members and responders. The ERP shall be composed of at
least the information and documents required in this section.
Emergency Service Organization (ESO) means an organization that
provides one or more of the following emergency response services as a
primary function: firefighting, emergency medical service, and
technical search and rescue; or the employees perform the emergency
service(s) as a primary duty for the employer. Personnel (called
responders in this section), as part of their regularly assigned
duties, respond to emergency incidents to provide service such as
firefighting, emergency medical service, and technical search and
rescue. It does not include organizations solely engaged in law
enforcement, crime prevention, facility security, or similar
activities.
Facility means a structure or structures and surrounding locations,
including industrial, commercial, mercantile, warehouse, power plant
(utility), assembly occupancy, institutional or similar occupancy; and
public and private as well as for-profit, not-for-profit, and
governmental location, campus, compound, base, or similar
establishment.
Facility vulnerability assessment means the process of identifying,
quantifying, and prioritizing the potential and known vulnerabilities
of the entire facility, including the facility's structures and
surrounding locations, inhabitants, infrastructure, and hazardous
conditions or processes.
Gross decontamination means the initial phase of the
decontamination process, during which the surface contaminants and
foreign materials on a team member's or responder's skin, clothing,
personal protective equipment (PPE), and equipment are removed or
significantly reduced, such as by brushing, rinsing, wiping, use of
detergents, and use of personal hygiene wipes.
Immediately dangerous to life or health (IDLH) means an atmosphere
that poses an immediate threat to life, would cause irreversible
adverse health effects, or would impair an individual's ability to
escape from a dangerous atmosphere.
Incident means any situation to which a WERE or an ESO responds to
perform services, such as firefighting; emergency medical service;
technical search and rescue; other situations such as responses to
downed electrical power lines, and outside propane or natural gas
leaks.
[[Page 8014]]
Incident action plan (IAP) means the incident objectives, strategy,
and tactics necessary to manage an incident. The IAP is developed at
the incident site and provides essential information for actionable
incident organization, work assignments, management of resources, risk
management, and team member or responder safety when operating at an
incident.
Incident Commander (IC) means the team member or responder who
fulfills the incident command function of the Incident Management
System; who is responsible for the overall management of an incident
and the safety of all team members or responders involved in the
response; and who is responsible for all incident activities, including
the development of strategies and tactics, the direction and control of
all team members and responders at the incident, and the ordering and
release of resources.
Incident Management System (IMS) means a system used for managing
and directing incident scene operations and activities. It includes
establishing functions for managing incidents, describes the roles and
responsibilities to be assumed by team members and responders, and
standard operating procedures to be utilized. Incident command is a
function of the IMS.
Incident Safety Officer (ISO) means the team member or responder at
an incident scene who is responsible for monitoring and assessing
safety hazards and unsafe situations and for developing measures for
ensuring team member and responder safety.
Incident scene means the physical location where activities related
to a specific incident are conducted. It includes nearby areas that are
subject to incident-related hazards or used by the WERE or ESO for team
members, responders, and equipment.
Living area means the room(s) or area(s) of the ESO's facility
where responders may cook, eat, relax, read, study, watch television,
complete paperwork or data entry, and similar daily living activities.
Examples include day room, kitchen/dining area, classroom, office, and
TV room. Areas such as maintenance shops, utility and storage areas,
and interior vehicle parking bays are not considered living areas.
Mayday means an emergency procedure term used to signal that a team
member or responder is in distress, needs assistance and is unable to
self-rescue; it is typically used when safety or life is in jeopardy.
Mutual aid agreement means a written agreement or contract between
WEREs and ESOs, or between ESOs, that they will assist one another upon
request by furnishing personnel, equipment, materials, expertise, or
other associated services as specified.
Non-emergency service means a situation where a WERT or ESO is
called upon to provide a service that does not involve an immediate
threat to health, life, or property, such as assisting law enforcement
with equipment and scene lighting; removing people from a stuck
elevator; resetting an accidentally activated fire alarm system; or
assisting a mobility-challenged person downstairs during an elevator
outage.
Personal protective equipment (PPE) means the clothing and
equipment worn and utilized to prevent or minimize exposure to serious
workplace injuries and illnesses. Examples include gloves, safety
glasses and goggles, safety shoes and boots, earplugs and muffs, hard
hats and helmets, respirators and Self-Contained Breathing Apparatus
(SCBA), protective coats and pants, hoods, coveralls, vests, and full
body suits.
Physician or other licensed health care professional (PLHCP) means
an individual whose legally permitted scope of practice (i.e., license,
registration, or certification) allows the individual to independently
provide, or be delegated the responsibility to provide, some or all of
the health care services required by paragraph (g) of this section.
Pre-incident plan (PIP) means a written document developed by
gathering general and detailed data about a particular facility or
other location that is used by team members or responders in
effectively and safely managing an emergency incident there. It is
developed before an incident occurs and is intended to be used during
an incident to aid in the safe mitigation of hazards.
Rapid intervention crew (RIC) means a group of team members or
responders dedicated solely to serve as a stand-by rescue team
available for the immediate search and rescue of any missing, trapped,
injured or unaccounted-for team member(s) or responder(s).
Responder means an employee or member of an ESO who is, or will be,
assigned to perform duties at emergency incidents.
Size-up means the observation and evaluation of the influencing
factors at an incident used to determine the scope of the incident and
to develop strategic goals and tactical objectives.
Skilled support worker (SSW) means an employee of an employer whose
primary function is not as an emergency service provider and who is
skilled in certain tasks or disciplines that can support a WERT or ESO.
Examples include operators of heavy-duty wrecker/rotator tow vehicles,
mechanized earth moving or digging equipment, or crane and hoisting
equipment; utility service employees (gas, water, electricity); public
works employees; and technical experts.
Sleeping area means designated room(s) or area(s) of the ESO's
facility where responders sleep in beds.
Standard operating procedure (SOP) means a written directive that
establishes a course of action or administrative method to be followed
routinely and explains what is expected of team members or responders
in performing the prescribed action, duty, or task.
Team member means an employee of the WERE whose primary job duties
are typically associated with the business of the WERE (e.g.,
production, manufacturing, processing, warehousing, administration) and
who is assigned to the WERT to perform certain designated duties at
emergency incidents at the WERE facility. Emergency response is a
collateral duty for team members.
Technical search and rescue/Technical rescue means a type of
service that utilizes special knowledge and skills and specialized
equipment to resolve complex search and rescue situations, such as
rope, vehicle/machinery, structural collapse, trench, and technical
water rescue.
Unified command (UC) means a structure for managing an incident
that allows for all agencies with jurisdictional responsibility for an
incident, either geographical or functional, to manage an incident by
establishing a common set of incident objectives and strategies.
Workplace Emergency Response Employer (WERE) means an employer who
has a workplace emergency response team; and whose employees on the
team, as a collateral duty to their regular daily work assignments,
respond to emergency incidents to provide service such as firefighting,
emergency medical service, and technical search and rescue.
Workplace Emergency Response Team (WERT) means a group of WERE
employees (known as team members) who, as a collateral duty, prepare
for and respond to emergency incidents in the WERE workplace.
(c) Organization of the WERT, and Establishment of the ERP and
Emergency Service(s) Capability. (1) The WERE shall develop and
implement a written ERP that provides protection for each of its
employees (team members)
[[Page 8015]]
who is designated to provide services at an emergency incident.
(2) In the ERP, the WERE shall establish the existence of a WERT;
describe the basic organizational structure of the WERT; and include
how the WERE is addressing the provisions in the following paragraphs
of this section: (c), (e) through (i), (k) through (m), and (o) through
(s). The ERP must include an up-to-date copy of all written plans and
procedures, except for PIPs, required by this section.
(3) The WERE shall conduct a facility vulnerability assessment for
the purpose of establishing its emergency response capabilities and
determining its ability to match the facility's vulnerabilities with
available resources.
(4) The assessment required by paragraph (c)(3) of this section
shall identify structures, facilities, and other locations where PIPs
are needed.
(i) The assessment shall identify each vacant structure and
location at the facility that is unsafe for team members to enter due
to conditions such as previous fire damage, damage from natural
disasters, and deterioration due to age and lack of upkeep.
(ii) The WERE shall provide a means for notifying team members of
the vacant structures and locations identified in paragraph (c)(4)(i)
of this section.
(5) The WERE shall specify the resources needed, including
personnel and equipment, for mitigation of emergency incidents
identified in the facility vulnerability assessment.
(6) The WERE shall establish, and document in the ERP, the type(s)
and level(s) of emergency service(s) that it intends for the WERT to
perform.
(7) The WERE shall establish, and document in the ERP, tiers of
team members based on responsibilities, qualifications, and
capabilities for the type(s) and level(s) of service it intends to
perform.
Examples of tiers include, but are not limited to:
(i) For firefighting types of operations, tiers such as: trainee,
incipient stage, advanced exterior, interior structural, both advanced
exterior and interior firefighter, support.
(ii) For technical search and rescue types of operations, tiers
such as: trainee, awareness, operation, technician, support.
(iii) For emergency medical types of services, tiers such as:
trainee, Emergency Medical Responder (EMR), Emergency Medical
Technician (EMT), advanced EMT (EMT-A), paramedic, nurse, physician,
support.
(8) The WERE shall define, and document in the ERP, the service(s)
needed, based on paragraph (c)(3) of this section, that the WERE is
unable to provide, and develop mutual aid agreements with other WEREs
and ESOs as necessary, or contract with an ESO(s), to ensure adequate
resources are available to safely mitigate foreseeable incidents.
(9) Previous editions of ERP documents required by this section
shall be maintained by the WERE for a minimum of five (5) years.
(10) The WERE shall notify team members of any changes to the ERP
and make the ERP and documents maintained in accordance with paragraph
(c)(9) of this section available for inspection by team members, their
representatives, and OSHA representatives.
(d) ESO Establishment of ERP and Emergency Service(s) Capability.
(1) The ESO shall develop and implement a written ERP that provides
protection for each of its responders who is designated to operate at
an emergency incident.
(2) In the ERP the ESO shall include how the ESO is addressing the
provisions in the following paragraphs of this section: (d) through
(h), (j) through (l), and (n) through (s). The ERP must include an up-
to-date copy of all written plans and procedures, except for PIPs,
required by this section.
(3) The ESO shall perform a community or facility vulnerability
assessment of hazards within the primary response area where the
emergency service(s) it provides is/are expected to be performed.
Note 1 to paragraph (d)(3): An ESO whose primary response area
is a community would assess the community it serves. An ESO whose
primary response area is, for example: a manufacturing facility, a
military facility, a research and development facility, or similar
occupational facility or workplace, would assess that facility.
(4) The assessment required by paragraph (d)(3) of this section
shall identify structures, facilities, and other locations where PIPs
are needed.
(i) The assessment shall identify each vacant structure and
location that is unsafe for responders to enter due to conditions such
as previous fire damage, damage from natural disasters, and
deterioration due to age and lack of upkeep.
(ii) The ESO shall provide a means for notifying responders of the
vacant structures and locations identified in paragraph (d)(4)(i) of
this section.
(5) All facilities within the ESO's service area that are subject
to reporting requirements under 40 CFR part 355 pursuant to the
Emergency Planning and Community Right-to-Know Act (EPCRA) (also
referred to as the Superfund Amendments and Reauthorization Act of 1986
(SARA), 42 U.S.C. 11001 et seq.), shall be included in the ESO's
community vulnerability assessment.
(6) The ESO shall evaluate the resources needed, including
personnel and equipment, for mitigation of emergency incidents
identified in the community or facility vulnerability assessment, and
establish in the ERP the type(s) and level(s) of emergency service(s)
it intends to perform.
(7) In the ERP the ESO shall establish tiers of responders based on
responsibilities, qualifications and capabilities for the type(s) and
level(s) of service it intends to perform. Examples of tiers include,
but are not limited to:
(i) For firefighting types of operations, tiers such as: trainee,
basic firefighter, advanced firefighter, officer/crew leader, command
officer, pilot, support.
(ii) For technical search and rescue types of operations, tiers
such as: awareness, operation, technician, support.
(iii) For emergency medical types of services, tiers such as: EMR,
EMT, advanced EMT (EMT-A), paramedic, nurse, pilot, support.
(8) In the ERP the ESO shall define the service(s) needed, based on
paragraph (d)(4) of this section, that the ESO is unable to provide,
and develop mutual aid agreements with WEREs or other ESOs as necessary
to ensure adequate resources are available to safely mitigate
foreseeable incidents.
(9) Previous editions of documentation required by this section
shall be maintained by the ESO for a minimum of five (5) years.
(10) The ESO shall notify responders of any changes to the ERP and
make the ERP and documents maintained in accordance with paragraph
(d)(9) of this section available for inspection by responders, their
representatives, and OSHA representatives.
(e) Team Member and Responder Participation. Each WERE and ESO
shall establish and implement a process to:
(1) Involve team members and responders in developing and updating
the ERP;
(2) Involve team members and responders in implementing and
evaluating the ERP, and in the review and change process;
(3) Request input from team members and responders regarding
modifications to the WERE's or ESO's own facility(ies);
(4) Involve team members and responders in walkaround inspections,
inspections conducted in response to a
[[Page 8016]]
health or safety concern raised, and incident investigations at the
WERE and ESO's own facility(ies);
(5) Encourage team members and responders to report safety and
health concerns, such as hazards, injuries, illnesses, near misses, and
deficiencies in the ERP;
(6) Respond to reports made in accordance with paragraph (e)(5) of
this section in a reasonable period; and
(7) Post procedures for reporting safety and health concerns under
paragraph (e)(5) of this section in a conspicuous place or places where
notices to team members and responders are customarily posted.
(f) WERT and ESO Risk Management Plan. (1) The WERE and the ESO
shall develop and implement a written comprehensive risk management
plan (RMP), based on the type and level of service(s) established in
paragraphs (c) and (d) of this section, that:
(i) Covers, at a minimum, risks to team members and responders
associated with the following:
(A) Activities at WERE and ESO facilities;
(B) Training;
(C) Vehicle operations;
(D) Operations at emergency incidents;
(E) Non-emergency services and activities; and
(F) Activities that lead to exposure to combustion products,
carcinogens, and other incident-related health hazards.
(ii) Includes, at a minimum, the following components with respect
to hazards faced by team members and responders operating at incidents:
(A) Identification of actual and reasonably anticipated hazards;
(B) Evaluation of the likelihood of occurrence of a given hazard
and the severity of its potential consequences;
(C) Establishment of priorities for action based upon a particular
hazard's severity and likelihood of occurrence;
(D) Risk control techniques for elimination or mitigation of
potential hazards, and a plan for implementation of the most effective
solutions; and
(E) A plan for post-incident evaluation of effectiveness of risk
control techniques.
(iii) Includes, at a minimum, the following:
(A) A personal protective equipment (PPE) hazard assessment that
meets the requirements of Sec. 1910.132(d);
(B) A respiratory protection program that meets the requirements of
Sec. 1910.134;
(C) An infection control program that identifies and limits or
prevents the exposure of team members and responders to infectious and
contagious diseases; and
(D) A bloodborne pathogens exposure control plan that meets the
requirements of Sec. 1910.1030.
(2) The RMP shall include a policy for extraordinary situations
when a team member or responder, after making a risk assessment
determination based on the team member or responder's training and
experience, is permitted to attempt to rescue a person in imminent
peril, potentially without benefit of, for example, PPE or equipment.
(3) The WERE and ESO shall review the RMP when review is required
by paragraph (r) or (s) of this section, but not less than annually,
and update it as needed.
(g) Medical and Physical Requirements--(1) WERE and ESO medical
requirements. (i) The WERE and ESO shall establish the minimum medical
requirements for team members and responders, based on the type and
level of service(s) established in paragraphs (c) and (d) of this
section. The medical requirements will differ based on the tiers of
team members and responders in accordance with paragraphs (c)(7) and
(d)(7) of this section, except that team members and responders in a
support tier are excluded from the requirements in paragraph (g) of
this section; and
(ii) The WERE and ESO shall maintain a confidential record for each
team member and responder that records, at a minimum, duty restrictions
based on medical evaluations; occupational illnesses and injuries; and
exposures to combustion products, known or suspected toxic products,
contagious diseases, and dangerous substances.
(iii) The WERE and ESO shall ensure that medical records are
maintained and made available in accordance with Sec. 1910.1020,
Access to employee exposure and medical records.
(iv) Medical evaluations, tests, and laboratory analysis required
to comply with paragraph (g) of this section shall be provided at no
cost to team members or responders and without loss of pay.
(2) WERE and ESO medical evaluation and surveillance. (i) The WERE
and ESO shall establish a medical evaluation program for team members
and responders, except for those in a support tier, based on the type
and level of service(s), and tiers of team members and responders
established in paragraphs (c) and (d) of this section;
(ii) Prior to performing emergency response duties, each team
member and responder shall be medically evaluated to determine fitness
for duty by a physician or other licensed health care professional
(PLHCP), in accordance with paragraphs (g)(2)(iii) through (vi) of this
section, and each responder shall also be evaluated in accordance with
paragraph (g)(3) of this section. The WERE and ESO must make medical
surveillance required by this paragraph (g) available at no cost to the
team members and responders, and at a reasonable time and place, to
each team member and responder;
(iii) All medical evaluations must include the following to detect
any physical or medical condition(s) that could adversely affect the
team member or responder's ability to safely perform the essential job
functions:
(A) Medical and work history with emphasis on symptoms of cardiac
and respiratory disease;
(B) Physical examination with emphasis on the cardiac, respiratory,
and musculoskeletal systems;
(C) Spirometry; and
(D) An assessment of heart disease risk including blood pressure,
cholesterol levels, and relevant heart disease risk factors.
(iv) Additional screening shall be provided as deemed appropriate
by the PLHCP;
(v) The medical evaluation shall be repeated biennially (every two
years) thereafter unless the PLHCP deems more frequent evaluations are
necessary with the exception of spirometry which will be repeated when
deemed appropriate by the PLHC; and
(vi) The WERE and ESO shall establish protocols regarding the
length of time that absence from duty due to injury or illness requires
a team member or responder to have a return-to-duty medical evaluation
by a PLHCP.
(3) Additional ESO surveillance. (i) For ESOs whose responders are
exposed to combustion products, medical surveillance shall include a
component based on the frequency and intensity of expected exposure to
combustion products established in the risk management plan in
paragraph (f) of this section. The surveillance component shall
include:
(A) For responders who are, or based on experience may be, exposed
to combustion products 15 times or more a year without regard to the
use of respiratory protection, medical surveillance shall be provided,
at least as effective as the occupational medical examination criteria
specified in a national consensus standard, such as NFPA 1582
(incorporated by reference, see Sec. 1910.6); and
(B) For responders who, either immediately or subsequently, exhibit
signs or symptoms which may have resulted from exposure to combustion
products, medical consultation shall be
[[Page 8017]]
provided and, if medically indicated, ongoing medical surveillance.
(ii) The ESO shall document each exposure to combustion products
for each responder, for the purpose of determining the need for the
medical surveillance specified in paragraph (g)(3)(i)(A) of this
section, and for inclusion in the responder's confidential record, as
required in paragraph (g)(1)(ii) of this section.
(4) WERE and ESO behavioral health and wellness. (i) The WERE and
ESO shall provide, at no cost to the team member or responder,
behavioral health and wellness resources for team members and
responders, or identify where such resources are available at no cost
in the community;
(ii) The resources shall include, at minimum:
(A) Diagnostic assessment;
(B) Short-term counseling;
(C) Crisis intervention; and
(D) Referral services for behavioral health and personal problems
that could affect the team member or responder's performance of
emergency response duties.
(iii) The WERE and ESO shall inform each team member and responder,
on a regular and recurring basis, and following each potentially
traumatic event, of the resources available; and
(iv) The WERE and ESO shall ensure that if there are any records of
team member or responder use of these resources in possession of the
WERE or ESO, the records are kept confidential.
(5) WERE and ESO fitness for duty. The WERE and ESO shall establish
and implement a process to evaluate and re-evaluate annually the
ability of team members and responders to perform essential job
functions, based on the type and level of service(s), and tiers of team
members and responders established in paragraphs (c) and (d) of this
section.
(6) ESO health and fitness program. (i) The ESO shall establish and
implement a health and fitness program that enables responders to
develop and maintain a level of physical fitness that allows them to
safely perform their assigned functions, based on the type and level of
service(s), and tiers of responders established in paragraph (d) of
this section; and
(ii) The program shall include the following components:
(A) An individual designated to oversee the responder health and
fitness program;
(B) A periodic (not to exceed 3 years) fitness assessment for all
responders;
(C) Exercise training that is available to all responders during
working hours; and
(D) Education and counseling regarding health promotion for all
responders.
(h) Training--(1) Minimum training. The WERE and the ESO shall:
(i) Establish the minimum knowledge and skills required for each
team member and responder to participate safely in emergency
operations, based on the type and level of service(s), and tiers of
team members and responders established in paragraphs (c) and (d) of
this section;
(ii) Provide initial training, ongoing training, refresher
training, and professional development for each team member and
responder commensurate with the safe performance of expected duties and
functions based on the tiers of team members and responders and the
type and level of service(s) established in paragraphs (c) and (d) of
this section;
(iii) Restrict the activities of each new team member and responder
during emergency operations until the team member or responder has
demonstrated to a trainer/instructor, supervisor/team leader/officer,
the skills and abilities to safely complete the tasks expected;
(iv) Ensure each instructor/trainer has the knowledge, skills, and
abilities to teach the subject matter being presented.
(v) Ensure training is provided in a language and at a literacy
level that team members and responders understand, and that the
training provides an opportunity for interactive questions and answers
with the instructor/trainer.
(vi) Provide each team member and responder with training on the
RMP established in paragraph (f)(1) of this section;
(vii) Train each team member and responder about the safety and
health policy established in paragraph (f)(2) of this section and the
Standard Operating Procedures (SOPs) established in paragraph (q) of
this section;
(viii) Provide each team member and responder with training that
covers the selection, use, limitations, maintenance, and retirement
criteria for all PPE used by the team member or responder based on the
type and level of service(s), and tiers of team members and responders
established in paragraphs (c) and (d) of this section;
(ix) Train each team member and responder in the selection, proper
use, and limitations of portable fire extinguishers provided for
employee use in the WERE or ESO's facility and vehicles, in accordance
with Sec. 1910.157;
(x) Train each team member and responder in the incident management
system (IMS) established in paragraph (o) of this section, in order to
operate safely within the scope of the IMS.
(xi) Ensure training for each team member and responder engaged in
emergency activities includes procedures for the safe exit and
accountability of team members and responders during orderly
evacuations, rapid evacuations, equipment failure, or other dangerous
situations and events.
(xii) Ensure each team member and responder is trained to meet the
requirements of Sec. 1910.120(q)(6)(i) (HAZWOPER), First Responder
Awareness Level.
(xiii) Ensure each team member and responder who is not trained and
authorized to enter specific hazardous locations (e.g., confined
spaces, trenches, and moving water) is trained to an awareness level
(similar to the requirements in Sec. 1910.120(q)(6)(i)) to recognize
such locations and their hazards and avoid entry;
(xiv) Train each team member and responder to perform
cardiopulmonary resuscitation (CPR) and use an automatic external
defibrillator (AED).
(2) Vocational training. The WERE and ESO shall:
(i) Ensure each WERT team member who is designated to perform
firefighting duties is trained to safely perform the duties assigned,
to a level that is at least equivalent to the job performance
requirements of NFPA 1081(incorporated by reference see Sec. 1910.6);
(ii) Ensure each ESO responder who is designated to perform
interior structural firefighting duties is trained to safely perform
the duties assigned, to a level that is at least equivalent to the job
performance requirements of NFPA 1001 (incorporated by reference see
Sec. 1910.6);
(iii) Ensure each team member and responder who is designated to
perform interior structural firefighting duties is trained to safely
perform search and rescue operational capabilities at least equivalent
to the job performance requirements of NFPA 1407 (incorporated by
reference see Sec. 1910.6);
(iv) Ensure each team member and responder who is a vehicle
operator is trained to safely operate the vehicle at a level that is at
least equivalent to the job performance requirements of NFPA 1002
(incorporated by reference see Sec. 1910.6), or similar Emergency
Vehicle Operator qualifications based on the type of vehicle the team
member or responder operates;
(v) Ensure each team member and responder who is a manager/
supervisor (crew leader/officer) is trained to safely perform at a
level that is at least equivalent to the job performance
[[Page 8018]]
requirements of NFPA 1021 (incorporated by reference see Sec. 1910.6);
(vi) Ensure each wildland ESO responder is trained to safely
perform at a level that is at least equivalent to the job performance
requirements of NFPA 1140 (incorporated by reference see Sec. 1910.6),
or has a ``Red Card'' in accordance with the National Wildfire
Coordinating Group--Interagency Fire Qualifications;
(vii) Ensure each technical search and rescue team member and
responder who is designated to perform a technical rescue is trained to
safely perform at a level that is at least equivalent to the technician
capabilities of the job performance requirements of NFPA 1006
(incorporated by reference see Sec. 1910.6);
(viii) Ensure each firefighting team member and responder who
operates in a marine environment is trained to safely perform at a
level that is at least equivalent to the job performance requirements
of NFPA 1005 (incorporated by reference see Sec. 1910.6); and
(ix) Ensure, based on the type and level of service(s) established
in paragraphs (c) and (d) of this section, that each EMS team member
and responder possesses the relevant professional qualification,
certification, or license required in the WERE's and ESO's
jurisdiction.
(3) Proficiency. The WERE and ESO shall provide annual skills
checks to ensure each team member and responder maintains proficiency
in the skills and knowledge commensurate with the safe performance of
expected duties and functions, based on the type and level of
service(s) established in paragraphs (c) and (d) of this section.
(i) WERE Facility Preparedness. (1) The WERE shall:
(i) Ensure the facility complies with subpart E of this part;
(ii) Provide facilities for the decontamination, disinfection,
cleaning, and storage of PPE and equipment. If PPE is to be
decontaminated off-site, the WERE must provide for bagging and storage
of contaminated PPE while it is still at the WERE facility; and
(iii) Ensure that fire detection, suppression, and alarm systems,
and occupant notification systems are installed, tested, and maintained
in accordance with manufacturer's instructions and subpart L of this
part.
(2) Ensure that, for prompt firefighting support from mutual aid
WERTs and ESOs, fire hose connections and fittings are compatible with,
or adapters are provided for, firefighting infrastructure such as fire
hydrants, sprinkler system and standpipe system inlet connections, and
fire hose valves (FHV); and
(3) Identify the location of each FHV, except for those clearly
visible on standpipes in enclosed stairways, in a manner suitable to
the location, such as with a sign, painted wall, or painted column, to
ensure prompt access to FHVs.
(j) ESO Facility Preparedness--(1) General requirements. The ESO
shall:
(i) Ensure each ESO facility complies with subpart E of this part;
(ii) Provide facilities for the decontamination, disinfection,
cleaning, and storage of PPE and equipment. If PPE is to be
decontaminated off-site, the ESO must provide for bagging and storage
of contaminated PPE while it is still at the ESO facility;
(iii) For fire poles, slides and chutes;
(A) Ensure each responder using a fire pole maintains contact with
the pole using all four extremities and does not hold anything other
than the pole;
(B) Ensure each fire pole has a landing cushion that is at least 30
inches in diameter, has a contrasting color to the surrounding floor,
and has impact absorption to reduce the likelihood and severity of
injury;
(C) Ensure each floor hole with a fire pole, chute, or slide that
provides rapid access to a lower level is secured or protected in
accordance with subpart D of this part to prevent unintended falls
through the floor hole; and
(iv) Ensure fire detection, suppression, and alarm systems, and
occupant notification systems are installed, tested, and maintained in
accordance with manufacturer's instructions and subpart L of this part.
(2) Sleeping and living areas. The ESO shall:
(i) Ensure interconnected hard-wired smoke alarms with battery
back-up are installed inside each sleeping area, and outside in the
immediate vicinity of each opening (door) to a sleeping area, and on
all levels of the facility, including basements;
(ii) Ensure each new ESO facility with one or more sleeping area(s)
(approved for construction, as determined by building permit, after [2
years after date of publication of the final rule in the Federal
Register]) is protected throughout by an automatic sprinkler system,
installed in accordance with Sec. 1910.159;
(iii) Ensure each sleeping and living area has functioning carbon
monoxide alarms installed;
(iv) Prevent responder exposure to, and contamination of sleeping
and living areas by, vehicle exhaust emissions; and
(v) Ensure that contaminated PPE is not worn or stored in sleeping
and living areas.
(k) Equipment and PPE--(1) Equipment needed for emergency
operations. The WERE and the ESO shall:
(i) Provide or ensure access to the equipment needed to train for
and safely perform emergency services, at no cost to team members and
responders, based on the type and level of service(s) established in
paragraphs (c) and (d) of this section;
(ii) Ensure newly purchased or acquired equipment is safe for use
in the manner the WERE or ESO intends to use it;
(iii) Inspect, maintain, functionally test, and service test
equipment as follows:
(A) At least annually;
(B) In accordance with manufacturer's instructions and industry
practices; and
(C) As necessary to ensure equipment is in safe working order; and
(iv) Immediately remove from service equipment found to be
defective or in an unserviceable condition.
(2) Personal protective equipment (PPE). The WERE and the ESO
shall:
(i) Conduct a PPE hazard assessment for the selection of the
protective ensemble, ensemble elements, and other protective equipment
for team members and responders, based on the type and level of
service(s) established in paragraphs (c) and (d) of this section;
(ii) Provide, at no cost to team members and responders, protective
ensembles, ensemble elements, and protective equipment designed to
provide protection from the hazards to which the team members and
responders are likely to be exposed and suitable for the task the team
members and responders are expected to perform, as determined by the
PPE hazard assessment in paragraph (k)(2)(i) of this section;
(iii) Ensure PPE complies with subpart I of this part;
(iv) Ensure existing PPE complies with the requirements of the
edition of the respective standard, listed in paragraph (k)(2)(v) of
this section, that was current when it was manufactured;
(v) Ensure new PPE complies with the appropriate following
standard(s):
(A) NFPA 1951 (incorporated by reference see Sec. 1910.6);
(B) NFPA 1952 (incorporated by reference see Sec. 1910.6);
(C) NFPA 1953 (incorporated by reference see Sec. 1910.6);
(D) NFPA 1971 (incorporated by reference see Sec. 1910.6);
(E) NFPA 1977, (incorporated by reference see Sec. 1910.6);
[[Page 8019]]
(F) NFPA 1981 (incorporated by reference see Sec. 1910.6);
(G) NFPA 1982 (incorporated by reference see Sec. 1910.6);
(H) NFPA 1984 (incorporated by reference see Sec. 1910.6);
(I) NFPA 1986 (incorporated by reference see Sec. 1910.6);
(J) NFPA 1987 (incorporated by reference see Sec. 1910.6);
(K) NFPA 1990 (incorporated by reference see Sec. 1910.6);
(L) NFPA 1999 (incorporated by reference see Sec. 1910.6); and
(M) ANSI/ISEA 207-2011 (incorporated by reference see Sec.
1910.6).
(vi) Ensure air-purifying respirators are not used in IDLH
atmospheres and are only used for those contaminants that NIOSH
certifies them against;
(vii) Ensure each team member and responder properly uses or wears
the protective ensemble, ensemble elements, and protective equipment
whenever the team member or responder is exposed, or potentially
exposed, to the hazards for which it is provided;
(viii) Ensure protective ensembles, ensemble elements, and
protective equipment are decontaminated, cleaned, cared for, inspected
and maintained in accordance with the manufacturer's instructions;
(ix) Immediately remove from service any defective or damaged
protective ensembles, ensemble elements, or protective equipment;
(x) Ensure, when a WERE or an ESO permits a team member or
responder to provide their own protective ensemble, ensemble element,
or other protective equipment for personal use, the requirements of
paragraphs (k)(2)(iii) through (ix) of this section are met;
(3) Protection from contaminants. To the extent feasible, the WERE
and ESO shall:
(i) Ensure contaminated PPE and non-PPE equipment undergo gross
decontamination or are separately contained before leaving the incident
scene; and
(ii) Ensure team members and responders are not exposed to
contaminated PPE and non-PPE equipment in the passenger compartment(s)
of vehicles.
(l) Vehicle preparedness and operation. (1) To ensure vehicles are
prepared for safe use by team members and responders, the WERE and the
ESO shall:
(i) Inspect, maintain, and repair each WERE and ESO provided
vehicle operated by team members and responders, as specified by the
manufacturer;
(ii) Immediately remove from service any vehicle with safety-
related deficiencies; (iii) Ensure each riding position is provided
with a seat and functioning seat belt or vehicle safety harness that is
designed to accommodate a team member or responder with and without
heavy clothing, unless the vehicle is designed, built, and intended for
use without seat belts or vehicle safety harnesses;
(iv) Inspect, maintain, and service test aerial devices on
vehicles, to ensure they are safe for use, as specified by the
manufacturer, or to a standard at least equivalent to NFPA 1910
(incorporated by reference see Sec. 1910.6); and
(v) Inspect, maintain, and service test vehicle-mounted water pumps
as specified by the manufacturer, or to a standard at least equivalent
to NFPA 1910 (incorporated by reference see Sec. 1910.6).
(2) To ensure vehicles are operated in a manner that will keep team
members and responders safe, the WERE and ESO shall:
(i) Ensure each vehicle is operated by a team member or responder
who has successfully completed a training program commensurate with the
type of vehicle the team member or responder will operate, or by a
trainee operator who is under the supervision of a qualified operator;
(ii) Ensure each vehicle is operated in accordance with SOP
developed in paragraph (q)(2)(iv) of this section;
(iii) Ensure the team member or responder operating the vehicle
does not move the vehicle until all team members or responders in or on
the vehicle are seated and secured with seat belts or vehicle safety
harnesses in approved riding positions, other than as specifically
excepted in paragraph (l)(1)(iii) of this section or as provided in
paragraph (l)(2)(viii) of this section;
(iv) Ensure team members and responders remain seated and secured
any time that the vehicle is in motion, except when standing as
permitted in paragraphs (l)(2)(vii) and (viii) of this section, and
that seat belts and vehicle safety harnesses are not released or
loosened for any purpose while the vehicle is in motion, including the
donning or doffing of PPE;
(v) Ensure team members and responders actively performing
necessary emergency medical care while the vehicle is in motion are
secured to the vehicle by a seat belt, or by a vehicle safety harness
designed for occupant restraint, to the extent consistent with the
effective provision of such emergency medical care;
(vi) Establish and implement a procedure for operator training on
vehicles with tiller steering that ensures when the instructor and
trainee are both located at the tiller position, they are adequately
secured to the vehicle whenever it is in motion;
(vii) Provide a vehicle safety harness designed for occupant
restraint to secure the team member or responder in a designated stand-
up position during pump-and-roll operations;
(viii) Establish and implement policies and procedures that provide
alternative means for ensuring the safety of team members and
responders when the WERE or ESO determines it is not feasible for each
team member, responder, or person to be belted in a seat, such as when
reloading long lays of hose, standing as honor guards during a funeral
procession, transporting people acting as holiday figures or other
characters or mascots, parades, and for vehicles without seat belts;
(ix) Establish and implement policies and procedures for operating
vehicles not directly under the control of the WERE or ESO (i.e.,
privately owned/leased/operated by team members and responders), when
the WERE or ESO authorizes team members or responders to respond
directly to emergency incident scenes or to WERE or ESO facilities when
alerted for an emergency incident response; and
(x) Ensure, where equipment or respiratory protection are carried
within enclosed seating areas of vehicles, each is secured either by a
positive mechanical means of holding the item in its stowed position or
by placement in a compartment with an effective latching closure.
(m) WERE Pre-Incident Planning. (1) The WERE shall develop PIPs for
locations within the facility where team members may be called to
provide service, based on the facility vulnerability assessment and the
type(s) and level(s) of service(s) established in paragraph (c) of this
section.
(2) PIPs shall include locations of unusual hazards that team
members may encounter, such as storage and use of flammable liquids and
gases, explosives, toxic and biological agents, radioactive sources,
water-reactive substances, permit-required confined spaces, and
hazardous processes.
(3) PIPs shall include locations of fire pumps, fire hose valves,
control valves, control panels, and other equipment for fire
suppression systems, fire detection and alarm systems, and smoke
control and evacuation systems.
(4) The WERE shall ensure that the most recent versions of PIPs are
provided to the WERT and are accessible and available to team members
operating at emergency incidents.
[[Page 8020]]
(5) To the extent feasible, PIPs shall include actions to be taken
by team members if the scope of the incident is beyond the capability
of the WERT.
(6) PIPs shall be reviewed annually and when conditions or hazards
change at the facility. They shall be updated as needed.
(n) ESO Pre-Incident Planning. (1) The ESO shall determine the
locations and facilities where responders may be called to provide
service that need a PIP, based on the community or facility
vulnerability assessment and the type(s) and level(s) of service(s)
established in paragraph (d) of this section.
(2) The ESO shall develop PIPs for facilities, locations, and
infrastructure where emergency incidents may occur.
(3) The ESO shall prepare a PIP for each facility within the ESO's
primary response area that is subject to reporting requirements under
40 CFR part 355 pursuant to the Emergency Planning and Community Right-
to-Know Act (EPCRA) (also referred to as the Superfund Amendments and
Reauthorization Act of 1986 (SARA), 42 U.S.C. 11001 et seq.).
(4) The ESO shall ensure facility personnel consulted are
knowledgeable about the facility's use, contents, processes, hazards,
and occupants.
Note 2 to paragraph (n)(4): The ESO should develop and implement
a written policy to protect proprietary business information.
(5) The ESO shall ensure the responder(s) responsible for PIP
preparation are knowledgeable in identifying the information to be
collected and included in the PIP.
(6) The PIP shall have a level of detail commensurate with the
facility's complexity and hazards.
(7) PIPs shall include actions to be taken by responders if the
scope of the incident is beyond the capability of the ESO.
(8) The ESO shall ensure that the most recent versions of PIPs are
disseminated as needed and are accessible and available to responders
operating at emergency incidents.
(9) PIPs shall be reviewed annually and updated as needed.
(o) Incident Management System Development. (1) The WERE and the
ESO shall develop and implement an Incident Management System (IMS) to
manage all emergency incidents, based on:
(i) The type and level of service(s) established in paragraphs (c)
and (d) of this section;
(ii) The facility or community vulnerability assessment conducted
in accordance with paragraphs (c) and (d) of this section; and
(iii) The PIPs developed in accordance with paragraphs (m) and (n)
of this section.
(2) To provide structure and coordination to the management of
emergency incident operations, for the safety and health of team
members and responders involved in those activities, the IMS shall:
(i) Include flexible and scalable components that are adaptable to
any situation;
Note 3 to paragraph (o)(2)(i): Standardization of the IMS, such
as provided in the National Incident Management System and the
National Response Framework, developed by the Federal Emergency
Management Agency, an agency of the U.S. Department of Homeland
Security; is essential to the successful coordination and function
of WERTs and ESOs in incident response.
(ii) Ensure that, in the absence of a dedicated Incident Safety
Officer (ISO), the Incident Commander (IC) assesses the incident scene
for existing and potential hazards and oversees incident safety;
(iii) Include a means for team members and responders to notify the
ISO, IC or Unified Command (UC) of unsafe conditions and unsafe actions
on the incident scene; and
(iv) Consist of collaborative components that provide the basis for
clear communication and effective operations.
(3) The WERE and the ESO shall designate the responsibilities of
the IC. The IC shall be responsible for, at least:
(i) Front-line management of the incident;
(ii) Overall incident safety;
(iii) Tactical planning and execution; and
(iv) Determining whether additional assistance is needed and
relaying requests for internal resources, mutual aid, and skilled
support assistance through the communications or emergency operations
center, as appropriate.
(4) The WERE and ESO shall ensure the IC has the training and
authority to perform the assigned duties.
(p) Emergency incident operations--(1) Incident command and
management. The WERE and the ESO shall ensure that:
(i) The IMS, developed in accordance with paragraph (o) of this
section, is utilized at each emergency incident;
(ii) Each emergency incident has an IC or a UC;
(iii) The task of overseeing incident safety is addressed, or an
ISO is assigned and designated to monitor and assess the incident scene
for safety hazards and unsafe situations and develop measures for
ensuring team member and responder safety;
(iv) If an incident escalates in size and complexity, the IC
divides the incident into strategic or tactical-level management
components;
(v) A UC structure is utilized on incidents where the complexity
requires a shared responsibility among two or more WEREs, ESOs, or
other agencies; and
(vi) The IC(s), team members, and responders are rotated or
replaced during complex or extended operations, as determined by the
WERE or ESO.
(2) Incident Commander. The WERE and the ESO shall ensure that:
(i) A team member or responder is assigned as the IC;
(ii) The identity of the IC and the location of command post are
communicated to other team members or responders who are on the
incident scene or responding to it;
(iii) The IC conducts a comprehensive and ongoing size-up of the
incident scene that places life safety as the highest priority;
(iv) The IC conducts a risk assessment based on the size-up before
actively engaging the incident;
(v) The IC coordinates and directs all activities for the duration
of the incident; and
(vi) The IC develops an Incident Action Plan (IAP) that prioritizes
life safety for each incident, updates it as needed during the
incident, and utilizes the information contained in the PIP.
(3) Control zones. The WERE and the ESO shall ensure that:
(i) Control zones are established at every emergency incident to
identify the level of risk to team members and responders and the
appropriate protective measures needed, including PPE;
(ii) The perimeters of the control zones are designated by the IC;
(iii) Any changes to the perimeters during the incident are
communicated to all team members and responders on the scene;
(iv) Control zones are established as follows:
(A) Designated as no-entry, hot, warm, or cold;
(B) Marked in a conspicuous manner, with colored tape, signage, or
other appropriate means, unless such marking is not possible; and
(C) Communicated to all team members and responders attending the
incident before the team member or responder is assigned to a control
zone;
(v) Only team members and responders with an assigned task are
permitted in the hot zone;
(vi) Where a no-entry zone is designated, team members and
[[Page 8021]]
responders are prohibited from entering the zone; and
(vii) The designation of appropriate protective measures, including
PPE, is commensurate with the hazards in the zone the team member and
responder will be operating in, and that each team member and responder
appropriately uses the protective measures for that zone.
(4) On-scene safety and health measures. The WERE and the ESO
shall:
(i) Identify minimum staffing requirements needed to ensure
incidents are mitigated safely and effectively;
(ii) Ensure operations are limited to those that can be safely
performed by the team members and responders available on the scene;
(iii) Ensure that at least four team members or responders are
assembled before operations are initiated in an IDLH atmosphere in a
structure or enclosed area, unless upon arrival at an emergency scene,
the initial team member(s) or responder(s) find an imminent life-
threatening situation where immediate action could prevent the loss of
life or serious injury, in which case such action is permitted with
fewer than four team members or responders present;
(iv) Ensure at least two team members or responders enter the
structure or enclosed area with an IDLH atmosphere as a team and remain
in visual or voice contact with one another at all times, unless there
is insufficient space for more than one team member or responder, such
as for example, in a confined space or collapsed structure;
(v) Ensure that outside the structure or enclosed area with the
IDLH atmosphere, a minimum of two team members or responders are
present to provide assistance to, or rescue of, the team operating in
the IDLH atmosphere. One of the two team members or responders located
outside the IDLH atmosphere may be assigned to an additional role, such
as IC, so long as this team member or responder is able to perform
assistance or rescue activities without jeopardizing the safety or
health of other team members or responders operating at the incident;
(vi) Ensure each team member and responder in the IDLH atmosphere
uses positive-pressure SCBA or a supplied-air respirator in accordance
with the respiratory protection program specified in paragraph
(f)(1)(iii)(B) of this section;
(vii) Ensure each supplied-air respirator used in an IDLH
atmosphere is equipped with a NIOSH-certified emergency escape air
cylinder and pressure-demand facepiece; and
(viii) Ensure each team member and responder uses NIOSH-certified
respiratory protection during post-fire extinguishment activities, such
as overhaul and investigation.
(5) Communication. The WERE and the ESO shall:
(i) Ensure, to the extent feasible, adequate dispatch and
monitoring of on-scene radio transmissions by an emergency
communications and dispatch center;
(ii) Ensure effective communication capability between team members
or responders and the IC; and
(iii) Ensure that communications equipment allows mutual aid team
members and responders to communicate with the IC and other team
members and responders.
(6) The WERE and the ESO shall ensure the personnel accountability
system established in paragraph (q)(2)(vii) of this section is utilized
at each emergency incident.
(7) The WERE and the ESO shall implement a Rapid Intervention Crew
(RIC) at each structural fire incident where team members or responders
are operating in an IDLH atmosphere, in accordance with the SOP
established in paragraph (q)(2)(viii) of this section.
(8) The WERE and the ESO shall implement the medical monitoring and
rehabilitation procedures, as needed, in accordance with the SOP
established in paragraph (q)(2)(ix) of this section.
(9) The WERE and the ESO shall implement the traffic safety
procedures, as needed, in accordance with the SOP established in
paragraph (q)(2)(x) of this section.
(10) Use of skilled support workers (SSW). Prior to participation
by SSWs at an emergency incident, the WERE or the ESO shall ensure
that:
(i) Each SSW has and utilizes PPE appropriate to the task(s) to be
performed;
(ii) An initial briefing is provided to each SSW that includes, at
a minimum, what hazards are involved, what safety precautions are to be
taken, and what duties are to be performed by the SSW;
(iii) An effective means of communication between the IC and each
SSW is provided;
(iv) Where appropriate, a team member or responder is designated
and escorts the SSW at the emergency incident scene; and
(v) All other appropriate on-scene safety and health precautions
provided to team members and responders are used to ensure the safety
and health of each SSW.
(q) Standard Operating Procedures. (1) The WERE and the ESO shall
develop and implement SOPs for emergency events that the WERE or ESO is
reasonably likely to encounter, based on the type(s) and level(s) of
service(s) established in paragraphs (c) and (d) of this section, and
the community or facility vulnerability assessment developed in
accordance with paragraphs (c) and (d) of this section.
(2) The WERE and ESO shall establish SOPs that:
(i) Describe the actions to be taken by team members and responders
in situations involving unusual hazards, such as downed power lines,
natural gas or propane leaks, flammable liquid spills, and bomb
threats;
(ii) Address how team members and responders are to operate at
incidents that are beyond the capability of the WERT or ESO, as
specified in paragraphs (c) and (d) of this section;
(iii) Provide a systematic approach to team member and responder
protection from contaminants, and for decontamination of team members,
responders, PPE, and equipment, including at a minimum:
(A) Proper techniques for doffing (removing) contaminated PPE;
(B) On-scene gross decontamination, and decontamination at the
WERE's or ESO's facility, of PPE, equipment, and team members and
responders;
(C) Encouraging team members and responders to shower with soap and
water, as soon as reasonably practicable, and change into clean
clothing; and
(D) Protecting team members and responders from contaminated PPE
after an incident;
(iv) Meet the requirements for vehicle operation found in paragraph
(l)(2) of this section and include procedures for safely driving
vehicles during both non-emergency travel and emergency response;
criteria for actions to be taken at stop signs and signal lights;
vehicle speed; crossing intersections; driving on the opposite side of
the road with oncoming traffic; use of cross-over/turnaround areas on
divided highways; traversing railroad grade crossings; the use of
emergency warning devices; and the backing of vehicles. For backing
vehicles with obstructed views to the rear, the SOP shall require use
of at least one of the following: a spotter, a 360-degree walk-around
of the vehicle by the operator, or a back-up camera;
(v) Provide for the use of standard protocols and terminology for
radio communication at all types of incidents;
(vi) Establish procedures for operating at structures and locations
that are identified as, or determined to be vacant, structurally
unsound, or otherwise unsafe for entry by team members and responders;
[[Page 8022]]
(vii) Establish a system for maintaining personnel accountability
and coordinating evacuation of all team members and responders
operating at an incident that includes periodic accountability checks
and reports; procedures for orderly evacuation of team members and
responders; and procedures for rapid evacuation of team members and
responders from escalating situations, such as rapid growth of fire,
impending collapse, impending explosion; in case of PPE or equipment
failure; and acts of active violence against team members and
responders;
(viii) Establish procedures for Mayday situations, such as when a
team member or responder becomes lost, trapped, injured, or ill,
including the use of the radio's emergency alert button and
implementation of a RIC for immediate deployment to search and rescue
any missing, disoriented, injured, ill, lost, unaccounted-for, or
trapped team members or responders. The SOP shall specify the minimum
number of team members or responders needed for the RIC, based on the
size and complexity of potential incidents; and a standard list of
equipment to be assembled by the RIC, for foreseeable incidents; and
(ix) Establish a systematic approach to provide team members and
responders with medical monitoring and rehabilitation at emergency
incidents as needed, such as rest, medical treatment, rehydration
(fluid replacement), active warming or cooling, and protection from
extreme elements.
(3) The ESO shall establish SOPs that:
(i) Establish procedures for protecting responders from vehicular
traffic while operating at an emergency incident on, or adjacent to,
roadways and highways, including setting up a safe work zone beginning
with proper placement of the first arriving ESO vehicle and subsequent
ESO vehicles, a means of coordination with law enforcement and mutual
aid WERTs or ESOs, and use of safety vests that have high visibility
and are reflective;
(ii) Establish procedures for operating at incident scenes that are
primarily related to law enforcement, such as crime scenes, active
shooters, and civil disturbances; and
(iii) Establish procedures for incidents where responders are
called upon to conduct non-emergency services, including a requirement
for responders to present themselves in uniforms, PPE, vests, or other
apparel that clearly identifies them as fire/rescue/EMS responders and
a requirement that responders wear ballistic vests, if provided by the
ESO and appropriate for the type of incident.
(r) Post-Incident Analysis. (1) The WERE or ESO shall promptly
conduct a Post-Incident Analysis (PIA) to determine the effectiveness
of the WERT's or ESO's response to an incident after a significant
event such as a large-scale incident; a significant near-miss incident;
a team member, responder or SSW injury or illness requiring off-scene
treatment; or a team member, responder, or SSW fatality.
(2) The PIA shall include, but not be limited to, a review and
evaluation of the RMP, IMS, PIPs, SOPs, and IAPs for accuracy and
adequacy.
(3) The WERE or ESO shall promptly identify and implement changes
needed to the RMP, IMS, PIPs, IAPs, and SOPs based on the lessons
learned as a result of the PIA; or if the changes cannot be promptly
implemented, the WERE or ESO shall develop a written timeline for
implementation as soon as feasible.
(s) Program Evaluation. (1) The WERE and ESO shall evaluate the
adequacy and effectiveness of the ERP at least annually, and upon
discovering deficiencies, and document when the evaluation(s) are
conducted.
(2) Review of the ERP shall include determining whether the ERP was
implemented as designed and whether modifications are necessary to
correct deficiencies.
(3) The WERE and ESO shall identify and implement recommended
changes to the ERP, with written timelines for correcting identified
deficiencies as soon as feasible, based on the review of the program,
giving priority to recommendations that most significantly affect team
member or responder safety and health.
(t) Severability. Each section of this standard, and each provision
within those sections, is separate and severable from the other
sections and provisions. If any provision of this standard is held to
be invalid or unenforceable on its face, or as applied to any person,
entity, or circumstance, or is stayed or enjoined, that provision shall
be construed so as to continue to give the maximum effect to the
provision permitted by law, unless such holding shall be one of utter
invalidity or unenforceability, in which event the provision shall be
severable from this standard and shall not affect the remainder of the
standard.
0
13. Amend Sec. 1910.157 by:
0
a. Revising paragraph (c)(3);
0
b. Adding paragraph (d)(7); and
0
c. In paragraph (f):
0
i. Redesignating Table L-1 as table 1 to paragraph (f)(3);
0
ii. Removing the text ``Table L-1'' wherever it appears, and adding in
its place the text ``table 1 to paragraph (f)(3)''; and
0
iii. Revising newly redesignated table 1 to paragraph (f)(3).
The revisions and addition read as follows:
Sec. 1910.157 Portable fire extinguishers.
* * * * *
(c) * * *
(3) The employer shall not provide or make available in the
workplace portable fire extinguishers using carbon tetrachloride,
chlorobromomethane, or methyl bromide extinguishing agents.
* * * * *
(d) * * *
(7) The employer shall distribute portable fire extinguishers of
Class K extinguishing agent for use by employees so that the travel
distance from the Class K hazard area to any extinguisher is 30 feet
(9.15 m) or less.
* * * * *
(f) * * *
(3) * * *
Table 1 to Paragraph (f)(3)
------------------------------------------------------------------------
Test interval
Type of extinguisher (years)
------------------------------------------------------------------------
AFFF (aqueous film-forming foam)........................ 5
Carbon dioxide.......................................... 5
Dry chemical with stainless steel shells................ 5
FFFP (film-forming fluoroprotein foam................... 5
Wet chemical............................................ 5
Wetting agent........................................... 5
Stored-pressure water, water mist, loaded steam, and/or 5
antifreeze.............................................
Dry chemical, cartridge- or cylinder-operated, with mild 12
steel shells...........................................
Dry chemical, stored-pressure, with mild steel shells, 12
brazed brass shells, or aluminum shells................
Dry powder, stored-pressure, cartridge- or cylinder- 12
operated, with mild steel shells.......................
Halogenated agents...................................... 12
------------------------------------------------------------------------
* * * * *
0
14. Amend Sec. 1910.158 by adding paragraph (c)(2)(iii) to read as
follows:
Sec. 1910.158 Standpipe and hose systems.
* * * * *
(c) * * *
(2) * * *
(iii) The employer shall ensure that standpipe system inlet
connections and fittings are compatible with, or adapters are provided
for, the fire hose couplings used by the fire department(s) or
Workplace Emergency Response Team(s) that pump water into the
[[Page 8023]]
standpipe system through the connections or fittings.
* * * * *
0
9. Amend Sec. 1910.159 by adding paragraph (c)(12) to read as follows:
Sec. 1910.159 Automatic sprinkler systems.
* * * * *
(c) * * *
(12) Inlet connections. The employer shall ensure that sprinkler
system inlet connections and fittings are compatible with, or adapters
are provided for, the fire hose couplings used by the fire
department(s) or Workplace Emergency Response Team(s) that pump water
into the sprinkler system through the connections or fittings.
[FR Doc. 2023-28203 Filed 2-2-24; 8:45 am]
BILLING CODE 4510-26-P