Fire & Emergency Services Administration

Chapter 9

Government Regulations, Laws, and the Courts

Fire & Emergency Services Administration

Government Regulations

• Regulations exist at the local, state and federal levels of government.

• Most regulations for the fire and emergency services are at the state level (this includes OSHA).

• It is typical for there not to be rigorous enforcement, but regulations become the standard of care for legal actions.

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Justification for Government Regulation

• Three major justifications– It is the rightful role of the government to

protect the consumer when the consumer lacks the ability to make an educated decision.

– A market failure may prevent a safety product or service from becoming available to the public.

– When a product or service becomes a monopoly, the consumer loses the ability to choose a product or its price.

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Is Government Justified in Regulating Fire and Emergency Services

Agencies?• Three questions

– Is the customer knowledgeable about the product or service?

– Is there a market failure for a public good?– Is there a monopoly?

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Federal Regulations

• Congressional authorizations often contain a process to adopt the rules that will be used to implement the new law.

• This is done for two practical reasons– Legislators normally lack expert knowledge

in the subject area.– Lawmakers do not like to place themselves

in the middle of controversial regulations that may end up “lose-lose” for them.

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OMB Circular A-119

• Directs federal agencies to use voluntary consensus standards in lieu of government unique standards.– Open process

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Supporting a Balance of Interest

• Maintaining due process

• Providing an appeals process

• Working toward consensus

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Democratic Accountability vs. Administrative Discretion

• We have a representative form of government.

• It is common for representatives to create laws mainly to ensure that appointed officials follow their guidance.

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Controversial Policy Decisions

• There are times when a policy decision has a lot of political baggage, such as when there are many potential winners and losers.

• The public administrator may be best qualified to judge the fairness and appropriateness of a rule and its effect on the public.

• The administrator becomes the primary advocate for the public in these cases.

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Administrative Rule Making

• Allows the administrator to function as a lawmaker.

• The administrator must remain cognizant of the possibility that special interest groups will want to advance their own agendas.

• An open process is used to gather the input of all concerned parties before the final decision.

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Politics of Administrative Choice

• Many controversial regulations are delegated to the administrative rule-making process and their administrators.

• In FES there is a slow and steady movement toward progress driven by national standards.

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NFPA Codes and Standards

• For more than 100 years, NFPA committees have created most of the fire protection and life safety requirements used in the design of structures.

• More recently, starting in 1974, NFPA committees have created standards for the fire services.

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The Federal Rule-Making Process

• Similar open comment process to NFPA except that NFPA uses a two-thirds vote of committee members for approval.

• In theory, the federal agency head issues the regulations under his signature, as compared with NFPA, which uses a committee approach.

• Because these agencies are part of the executive branch of the federal government, there may be pressure from the president or close aides on the outcome.

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Proposals and Comments

• Both the federal government and the NFPA are looking for consensus from stakeholders.

• The proposal is more likely to succeed if it is supported by hard data and backed by a well-thought-out line of reasoning.

• The proposal or comment submitter must be able to convince the regulator or committee members that the proposal has merit.

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State Regulations

• Almost all regulations in the fire and emergency services are actually state statutes.– The one major exception is 29 CFR

1910.120, Hazardous Waste Operations and Emergency Response

• Only a few states regulate fire operations such as requirements for fire-fighter certification.

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State and Local Building and Fire Codes

• Most state and local governments adopt building and fire codes.

• At the present time, there are two national organizations promulgating building and fire codes:– NFPA– ICC

• These codes have helped reduce life and property losses from fires and are typically updated as new hazards are identified.

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Local Regulations

• Many local regulations are adopted that specify building and fire code requirements.

• Policies can be implemented at the local level with or without formal legislation.

• Numerous policies that act like regulations are issued by local governments.

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Zoning Regulations

• Generally they are to prevent noncompatible uses, such as heavy commercial development in a residential neighborhood.

• However, some were created to control fire hazards, such as the following:– Masonry wall on each property line– Minimum width of streets

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Union Contracts

• Important part of political landscape.• Used to adopt standards and local

regulations.• Main goal of the union is to maximize benefits

and provide safety for members.• It is not unusual to find items that refer to

management rights in union contracts.

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Government Regulation Using Taxes and Fees

• To implement a public policy, governments can affect taxpayers’ decisions about a purchase or service.– These can either be positive or negative,

such as increased taxes or tax deductions.

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Fire Service Laws and Regulations

• Some states have mandatory fire-fighter training and certification.

• OSHA regulations– Confined space– Respiratory protection– Bloodborne pathogens– Hazardous waste– Fire brigades

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OSHA’s General Duty Clause

• Requires the employer to furnish a place of employment that is safe from hazards that are likely to cause injury, sickness, or death.

• Allows the use of safety standards that have not been officially adopted by OSHA.

• As a minimum, departments should consider complete compliance with NFPA 1500.

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NFPA Standards

• At the top of the list of NFPA standards that have a substantial effect on the fire services are NFPA 1500 and NFPA 1710.

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NFPA 1710

• Will probably have more impact on the FES than any other except NFPA 1500.

• Career refers to fire fighters who are on duty in the fire station and may include volunteers.

• Combination departments must be “substantially career” to use this standard.

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NFPA 1710 Response Times

• Once alerted, turnout must be one minute or less to 90% of the incidents.

• Once on the road, the standard is a maximum of four (4) minutes’ response time for the first-arriving engine or eight (8) minutes for the entire assignment to 90% of the incidents.

• The 90% level allows for companies who may be out of position or busy at another call.

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NFPA 1710 Staffing

• Three fire fighters and a officer are required for all companies.

• A company can staff both an engine and ambulance (or water tender) with four persons as long as they can meet the response times at the 90% level.

• Total initial response to a structural fire is 14 fire fighters.

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The National Highway Traffic Safety

Administration• Created in 1970 to carry out safety

programs aimed at reducing the number of vehicle crashes, injuries, and deaths

• Directly involved in the use of medivac helicopters to transport victims to shock trauma centers

• Responsible for training and certification of EMTs

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The Court System

• Three levels– District– Appellate– Supreme

• Federal law takes precedence over state law except for laws that fall under the protection of states’ rights in the 11th Amendment to the Constitution.

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Attorneys• Insist that the attorney provide historical legal

precedent from appeals court decisions or higher.• Ask the attorney to argue all sides of the issue.• “Beware of the attorney who wants to settle too

quickly at the fire department’s expense” (Edwards, 2000).

• Avoid getting advice from an attorney who may not have the appropriate background or best interests of the FES agency in mind.

• Educate them as you would any other person who must work closely with the department.

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Legal Aspects of the Fire and Emergency Services

• See checklists on pages 143 and 144.