genenpet
05-18-2004, 01:45 PM
This morning I had the chance to observe a pre-rulemaking non-hearing on the proposed fine structure for AB 850, the legislation authorizing DOSH (Department of Occupational Safety and Health) to regulate permanent amusement rides (as distinguished from mobile ones which already fell under their jurisdiction).
At the meeting were representatives from DOSH as well as a who's who of theme park reps - Dland, WDC, SFMM, SFMW, Boomers, and a sundry collection of waterparks, individual attraction operators, and even the San Diego Zoo (which operates exactly one ride which falls under DOSH's new rules - some kind of train apparently...). Also in attendance were Fackler (saferparks.org) and a gentleman I didn't catch the name of, head of some sort of association of California amusement park operators...
The "proposed" fine structure is the third part of the rulemaking process required by AB850. Administrative and technical regulations were adopted in 2001 and 2003 respectively.
The fine structure is very simple and, at least in design and explanation, designed to be as non-punitive as possible for most violations. All normal violations (non serious or non-regulatory in nature) will be treated as trouble-tickets, fix it within the alotted time and you don't get fined. However, serious (resulting in injury or judged to have high likelyhood of serious injury), willfull (intentional) and repeat (within 3 years) have significantly higher fines associated with them.
Fines range from 1k to 70k, with basic violations capping at 1k. Two modifiers may decrease the size of the fine. Size of organization, a graded scale of number of employees on payroll up to 500, results in fines that go down as much as 70%. In addition, "good faith" - a judgment on the overall quality of the operator's safety program, may reduce the fine by 10-20%.
Two areas received detailed discussion:
1. Size of organization as a determiner. Two non-profits expressed serious concerns over the fine structure being based on employees on payroll. San Diego Zoo argued that with only a half dozen employees running one ride, they should not be looked at as a 500+ person organization. The rep from the Tilden Steam Trains argued that full time employees should be counted instead of part timers, since many small nonprofits operate with dozens of parttimers, but only adding up to perhaps a half dozen FT employees. Even Universal got into the act, arguing that despite employing 2k people, only 300 or so actually worked on rides - and that this should be factored into the calculations. DOSH rightly pointed out that the point of the org size factor is to make sure the fines are felt by the offending organization (though 1k fines aren't really going to be felt at places like DlR).
2. Ride height requirements. This discussion happened after the fine discussion and concerned what types of approval should be required when an operator wishes to lower a ride height requirement. Apparently, the design-basis approval for rider height is usually just a sign off from the ride manufacturer's spec - they said 42 inches, that's what we do. Sometimes, after operating experience is acquired, the manufacturer will reduce the height requirements somewhat. Feckler observed that this should be looked at carefully by DOSH, though exactly how that would be done was open to debate. One DOSH regulator was very much in support of the idea that DOSH should be provided with a full evaluation of the steps that the ride manufacturer went through to arrive at the new height requirements, even though these steps aren't required to be followed in the inital permitting of the ride. It seems highly likely that rider height will become a far more formalized aspect of ride regulation in the near future in any event.
The rep from the association of california amuseument operators, paid special attention throughout the meeting to the subject of reporting violations to the public - clearly the concern of places like Disneyland and Universal, where public perception is far more important then these tiny fines. Specifically, watch for these organizations to lobby hard for trouble ticket violations not to be reported in the same way as "citations" and for DOSH to be asked to clearly remove from public record any finding which is later overturned on appeal. Unfortunately, since places like DIsneyland and Universal will want to make sure as few violations make it into public record as possible, I think they will be creating a serious legal morass for themselves moving forward, where most findings will be challenged by the parks in an attempt to prevent them from becoming part of the public safety record.
A final area not discussed but which I found fascinating was proposed language that allows "serious violation" status to be a applied to any incident which causes harm which the operator knew was a safety issue, even if it met all existing laws and regulations. This type of flexibility in giving serious violation status is going to be very dangerous to the organizations in questions - look for them (if they're smart) to destroy this language if they can. This will center on the definition of when an operator "knows" about a safety hazard. As someone who studies accidents and regulatory violations for a living, one conclusion you come to is that there is almost always someone in the organization who saw the accident coming - this doesn't mean that the ORGANIZATION knew it was coming. It is something like the Sept 11 investigation in this way - obviously parts of the fed governement "knew" but that doesn't necessarily mean "The Federal Goverment" knew....
BTW, there is a special clause I immediately named the "Mark Twain Fine" which adds additional penalties to anyone changing the accident scene in any way until the investigation begins...
Don't know if this is interesting to anyone, but I think it will be very interesting to see what happens with the reporting requirements and the fines going forward. In the industries I have experience in, it's not unusual to rack up 300-500 violations a year for various "out of compliance" operations - in fact, it's what I would expect from an operation as large and diverse as Disneyland - but reporting of numbers like those won't be tolerated by TDA - how this will play out will be very very interesting... The DOSH people clearly want to create a non-legalistic, helpful climate - but what will happen as these programs become formalized... especially after the first year's inspections... Very very interesting time to be an amusement operator in CA.
At the meeting were representatives from DOSH as well as a who's who of theme park reps - Dland, WDC, SFMM, SFMW, Boomers, and a sundry collection of waterparks, individual attraction operators, and even the San Diego Zoo (which operates exactly one ride which falls under DOSH's new rules - some kind of train apparently...). Also in attendance were Fackler (saferparks.org) and a gentleman I didn't catch the name of, head of some sort of association of California amusement park operators...
The "proposed" fine structure is the third part of the rulemaking process required by AB850. Administrative and technical regulations were adopted in 2001 and 2003 respectively.
The fine structure is very simple and, at least in design and explanation, designed to be as non-punitive as possible for most violations. All normal violations (non serious or non-regulatory in nature) will be treated as trouble-tickets, fix it within the alotted time and you don't get fined. However, serious (resulting in injury or judged to have high likelyhood of serious injury), willfull (intentional) and repeat (within 3 years) have significantly higher fines associated with them.
Fines range from 1k to 70k, with basic violations capping at 1k. Two modifiers may decrease the size of the fine. Size of organization, a graded scale of number of employees on payroll up to 500, results in fines that go down as much as 70%. In addition, "good faith" - a judgment on the overall quality of the operator's safety program, may reduce the fine by 10-20%.
Two areas received detailed discussion:
1. Size of organization as a determiner. Two non-profits expressed serious concerns over the fine structure being based on employees on payroll. San Diego Zoo argued that with only a half dozen employees running one ride, they should not be looked at as a 500+ person organization. The rep from the Tilden Steam Trains argued that full time employees should be counted instead of part timers, since many small nonprofits operate with dozens of parttimers, but only adding up to perhaps a half dozen FT employees. Even Universal got into the act, arguing that despite employing 2k people, only 300 or so actually worked on rides - and that this should be factored into the calculations. DOSH rightly pointed out that the point of the org size factor is to make sure the fines are felt by the offending organization (though 1k fines aren't really going to be felt at places like DlR).
2. Ride height requirements. This discussion happened after the fine discussion and concerned what types of approval should be required when an operator wishes to lower a ride height requirement. Apparently, the design-basis approval for rider height is usually just a sign off from the ride manufacturer's spec - they said 42 inches, that's what we do. Sometimes, after operating experience is acquired, the manufacturer will reduce the height requirements somewhat. Feckler observed that this should be looked at carefully by DOSH, though exactly how that would be done was open to debate. One DOSH regulator was very much in support of the idea that DOSH should be provided with a full evaluation of the steps that the ride manufacturer went through to arrive at the new height requirements, even though these steps aren't required to be followed in the inital permitting of the ride. It seems highly likely that rider height will become a far more formalized aspect of ride regulation in the near future in any event.
The rep from the association of california amuseument operators, paid special attention throughout the meeting to the subject of reporting violations to the public - clearly the concern of places like Disneyland and Universal, where public perception is far more important then these tiny fines. Specifically, watch for these organizations to lobby hard for trouble ticket violations not to be reported in the same way as "citations" and for DOSH to be asked to clearly remove from public record any finding which is later overturned on appeal. Unfortunately, since places like DIsneyland and Universal will want to make sure as few violations make it into public record as possible, I think they will be creating a serious legal morass for themselves moving forward, where most findings will be challenged by the parks in an attempt to prevent them from becoming part of the public safety record.
A final area not discussed but which I found fascinating was proposed language that allows "serious violation" status to be a applied to any incident which causes harm which the operator knew was a safety issue, even if it met all existing laws and regulations. This type of flexibility in giving serious violation status is going to be very dangerous to the organizations in questions - look for them (if they're smart) to destroy this language if they can. This will center on the definition of when an operator "knows" about a safety hazard. As someone who studies accidents and regulatory violations for a living, one conclusion you come to is that there is almost always someone in the organization who saw the accident coming - this doesn't mean that the ORGANIZATION knew it was coming. It is something like the Sept 11 investigation in this way - obviously parts of the fed governement "knew" but that doesn't necessarily mean "The Federal Goverment" knew....
BTW, there is a special clause I immediately named the "Mark Twain Fine" which adds additional penalties to anyone changing the accident scene in any way until the investigation begins...
Don't know if this is interesting to anyone, but I think it will be very interesting to see what happens with the reporting requirements and the fines going forward. In the industries I have experience in, it's not unusual to rack up 300-500 violations a year for various "out of compliance" operations - in fact, it's what I would expect from an operation as large and diverse as Disneyland - but reporting of numbers like those won't be tolerated by TDA - how this will play out will be very very interesting... The DOSH people clearly want to create a non-legalistic, helpful climate - but what will happen as these programs become formalized... especially after the first year's inspections... Very very interesting time to be an amusement operator in CA.