A 360 on Chapter 360: The New Bail Out Rope Law and What it Means for New York’s Fire Service

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Recently, Governor Andrew Cuomo signed a bill into law impacting the fire service (each new law is called a chapter). The question is, "So what?" What does the new law mean, is it any different, and what do we do now?

If we take a look at the old law first, it required ALL firefighters to have bail out ropes and that bail out rope systems and training had to be based on NFPA 1983. The first problem is, not ALL firefighters are interior firefighters. The second is, NFPA tells us how strong ropes and items that are attached to ropes need to be based on their use. It doesn’t tell you how to make the components work together, nor does it tell you how to use any of the equipment it lists.

As an analogy, it’s like having a standard that tells you how to make all the parts for a 1975 Buick Regal, but doesn’t tell you how to put the parts together and certainly doesn’t tell you how to drive the car! The problem is there are very few, if any, useful standards to point to, and although NFPA is considering a standard, it’s still a few years out.

When the New York State Association of Fire Chiefs (NYSAFC) and Association of Fire Districts of the State of New York (AFDSNY) sued the state of New York several years ago over this law and regulation it was based on the fact that the Department of Labor (DOL) didn’t have a standard and that the new law and regulation were unachievable. However, the court said that since no person or fire department had been cited or harmed yet, it couldn’t make a decision.

So NYSAFC, along with its partners from AFDSNY and the Firemen’s Association of the State of New York (FASNY), worked with Senator Mark Grisanti and Assemblyman Dennis Gabryszak as well as the governor’s staff to craft new language. Chapter 360 is the final product of several years of negotiations. Here’s what it does, and why it matters.

Recognizing Reality:

1. NYS DOL never needed a law. We live in a general duty clause state. This means that if the OSHA/PESH standard is silent on an issue, but our industry recognizes a need for certain safety measures, then we as employers have a "general duty" to provide that safety. Under the general duty clause, DOL could have required that we address this issue as an industry several years ago.

2. We also must recognize that there are departments that do place their personnel in positions where bail out ropes are likely the only solution, particularly in communities where truck operations are run without the protection of a handlines.

3. Almost none of our personal protective equipment (PPE) or safety equipment uses a single national standard. NFPA, ANSI, and ASTM are frequently used for the same pieces of equipment. A law or regulation using a single standard reference was unachievable, and given that NFPA’s standard only addresses manufacturing, NOT use, state associations can (and will) join together to make their own industry standard.

Better Than the Original:

Our experience when it comes to other safety equipment is that DOL recognizes that not all departments need the same type or style of equipment. As an example, DOL enforces head protection, but it doesn’t tell us the type of helmets to buy. And we as employers help determine if and when our employees need to wear them. The same concept can and now will apply to escape safety.

The law expands the reference standards beyond just NFPA 1983, giving DOL much more latitude in crafting a solution. It also allows our fire service to work together and come up with a realistic, safe solution. Many departments have discovered that even when done properly, escape system training can cause injury. When compared to the statistical chance of actually bailing out, this often may be an unnecessary training injury.

The law is also changed so that the employer makes the determination if escape systems are necessary. That decision will be guided by standards that the DOL commissioner will create, but it makes it much more similar to how we treat all other safety equipment.

The new law also recognizes that there are levels of hazard and that not all "firefighters" are exposed to the same levels. With the help of the new standards created by the commissioner, we should be able to take an honest look at exposure levels and provide a different solution (some based on ropes, some not) based on the reality faced in each community.

The law also broadens the definition of "emergency escape system." Now it means not just ropes, but also other "systems" that are approved by the commissioner based on standards and not limited to NFPA. Systems do not, based on negotiations had with all parties, always have to be a rope or similar device.

We as an industry need to sit down and have an HONEST discussion about what works and doesn’t work. We believe the DOL is already prepared for non-bail out rope solutions. The associations will continue to work together on solutions and suggestions.

So, What’s Next?

The new law is just that, the law, but it’s not a law for us, it’s a law for the Department of Labor. It tells DOL to take action through regulation. NYSAFC and others are working closely with DOL staff and will keep our members informed of what needs to occur. As the regulations are developed that will tell us how to move forward we will need to ensure that each of you reaches out in the regulatory process.

The current regulation remains in effect and has for several years. This means you should have already done assessment, purchased additional equipment where appropriate, and be training on that equipment. Recognize that the life span of a lot of NFPA 1983 equipment is five years. This means that unlike a lot of other equipment, it will soon be time for your department to change out all the material you just recently purchased.

Getting the process back to how we treat all safety equipment is terribly important not just for this issue, but also for all safety equipment. The process of assessment of safety needs based on job functions followed by equipment purchasing and training is never perfect, but it has served us well for over 25 years.