Emergency Response Standard

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.

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:

meilinger.francis2@dol.gov.

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:

hagemann.mark@dol.gov.

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

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

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.

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.”

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

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,

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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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.

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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).

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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).

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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).

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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

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

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

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

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

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 (FEV

1

) levels decreased (but non-significantly) after wildland firefighting shifts and that cross-shift FEV

1

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

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

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

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

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 § 1910.6 with updated

Federal Register

requirements.

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

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

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

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

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

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

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

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

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

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

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