Government Affairs Office 5537 SW Urish Road Topeka Kansas 66610 Office: 785.286.7599 Cell: 785.580.5070 NEII and NEII logo – Registered, U.S. Patent and Trademark Office NEII ® GOVERNMENT AFFAIRS COMMITTEE TELECONFERENCE October 6, 2015 9:00a – 10:30a central time 1. Call to Order – Meeting was called to order at approximately 9:00a (central time) 2. Record of Attendance. Name Company Kurt Stepaniak Divya Mehta KONE, Inc. KONE, Inc. Bob Busse Tom Sparno Tom Austin Fujitec Schindler Elevator Abell Elevator Betsy Ceriello Chris Moore Otis Elevator Otis Elevator Neil Beup Jesse Matuson Pete Salavantis UTC/Otis Elevator ThyssenKrupp Elevator Mitsubishi Elevator Amy Blankenbiller Kevin Brinkman NEII ® Government Affairs Director NEII ® Code and Safety Director 3. Announcements. None 4. Adoption of Agenda. Adopted 5. Approval of Minutes. August 21, 2015 teleconference minutes were adopted. 6. Status of Action Items from August 21st teleconference. Amy provided an update on the action items from the June 16 th teleconference as follows: 1. Amy will work with Otis/UTC, Tom Sparno and the CA Group to identify, recommend and secure an administrative law attorney to assist in the CA rulemaking. Complete 2. Amy will follow-up to identify, recommend and secure an economist to assist on the CA rulemaking. Complete 3. Amy will secure and provide additional clarification about hiring former employees under the new rules in Nevada. Complete
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NEII GOVERNMENT AFFAIRS COMMITTEE TELECONFERENCE October … · October 6, 2015 9:00a – 10:30a central time 1. Call to Order – Meeting was called to order at approximately 9:00a
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NEII and NEII logo – Registered, U.S. Patent and Trademark Office
NEII® GOVERNMENT AFFAIRS COMMITTEE TELECONFERENCE October 6, 2015
9:00a – 10:30a central time 1. Call to Order – Meeting was called to order at approximately 9:00a (central time) 2. Record of Attendance.
Name Company Kurt Stepaniak Divya Mehta
KONE, Inc. KONE, Inc.
Bob Busse Tom Sparno Tom Austin
Fujitec Schindler Elevator Abell Elevator
Betsy Ceriello Chris Moore
Otis Elevator Otis Elevator
Neil Beup Jesse Matuson Pete Salavantis
UTC/Otis Elevator ThyssenKrupp Elevator Mitsubishi Elevator
Amy Blankenbiller Kevin Brinkman
NEII® Government Affairs Director NEII® Code and Safety Director
3. Announcements. None
4. Adoption of Agenda. Adopted
5. Approval of Minutes. August 21, 2015 teleconference minutes were adopted. 6. Status of Action Items from August 21st teleconference. Amy provided an update on the
action items from the June 16th teleconference as follows: 1. Amy will work with Otis/UTC, Tom Sparno and the CA Group to identify, recommend
and secure an administrative law attorney to assist in the CA rulemaking. Complete 2. Amy will follow-up to identify, recommend and secure an economist to assist on the
CA rulemaking. Complete 3. Amy will secure and provide additional clarification about hiring former employees
under the new rules in Nevada. Complete
4. Betsy and Amy will follow-up on holding a meeting and/or conference call with the IUEC Local #1 on the NY State licensing bill. In Process
5. Amy will work with Ed Donoghue and the Communications Committee to secure a letter to Go-Pro. Complete
6. Amy will follow-up on the statistics issues. Complete 7. California Update. Amy reported on the meetings John Benton and Ed Persico (TKE) had
with Go-Biz, Standards Board and DIR. NEII will hold follow-up meetings October 22-23 with trade groups and industry consultants to brief them and discuss timing and next steps. In addition, NEII will meet with Andrew Chang, our economist to discuss the data needs and plan of action for undertaking the economic review of the draft group V code updates. It was recommended and approved that NEII move forward to retain Ann Grottveit to serve as the Administrative Attorney to assist with our analysis of the CA Administrative Procedures Act and DOSH compliance.
8. Navy MRL issue Update NEII continues its follow-up discussions with NAVFAC, as well as the Secretary of Defense’s
office on the interim guidance and development of official standards. In addition, we have reached out to the other services (Air Force, Army Corps and Coast guard) o discuss the issue and schedule a meeting/briefing on the issue.
9. Other State Reports.
(a) KONE States: Massachusetts – We continue to work on several issues including the backlog of
inspections, fines & penalties, code updates and ongoing industry discussions. In response to our efforts and the concerns we have raised to DPS, MA recently issued regulations related to the waiver of penalties. (Attachment 1).
Illinois – The IL Elevator Board has yet to meet since Joe Block (KONE) was appointed chair. We are pushing for a meeting and will keep the GAC informed.
Chicago – Still working on the code updates. No recent meetings. (b) Otis States: New York City – We will be developing a new/revised strategy to address the
outstanding year where penalty relief for late AOC filings is needed. New York State – Licensing bill failed, but we anticipate it will come back next year
for a variety of reasons. Betsy and Kathy Cudahy are working with the UTC lobbyist, local #1 and others to develop a consensus on the issues, proposals and plan of action. We will keep the GAC informed.
Washington – The “safety test reset” program outline should go into effect any day. This program was developed by NEII and L&I to provide a one-year stay on penalties for equipment with over inspections while the building owners and elevator companies work to bring all permits up to date.
(c) Schindler States
Michigan – We continue to work on the legislation related to revising the elevator inspection program and efforts to secure auto-adoption of the codes. In addition, it is important to note that the power to approve applicants and grant variances was taken away from the Elevator Safety Administrative Board, and given to the Department. Our lobbyist, Tabitha Zimny, is in contact with the Elevator Division and watching their approval process to identify any issues we need to address early in the new structure.
(d) TKE States – no report. (e) Other Florida – there are regulatory proposals that we will be commenting on. Amy will
work with The FL Working Group and Kevin B. as needed.
11. Old Business (a) GAC 2015 Budget (Attachment 2). Amy reported that the GAC will be exceeding its
budget but that both Ed Donoghue and the Board are aware of this and that the Board gave Ed D. the flexibility to manage the reallocation of funds as needed.
(b) GAC 2016 Budget request. The GAC increased its request to $700,000 for 2016 in order to have a contingency fund for CA or other state issues we have not anticipated.
12. New Business
(a) Report from September 29th Board Meeting. Divya and Amy provided a brief update on the Board meeting. (b) Walk-ons and Wrap-ups. None.
13. Review of Action Items from call.
1. Amy will continue her periodic CA Status Reports via email. 2. Amy and Betsy will follow-up on holding a meeting and/or conference call with the
IUEC Local #1 on the NY State licensing bill. 3. Amy (and Kevin) will develop a letter or comments for Florida.
14. Next Meeting Dates
(a) GAC/CCC meeting, November 12, 1:00p-5:00pm eastern time, Jupiter, FL NOTES: CCC meeting starts at 8:00a on November 11.
Lunch for GAC/CCC will be served at noon on November 12. Hotel information attached (Attachment 3)
15. Adjournment. The GAC call adjourned at approximately 10:15am.
MEMORANDUM
TO: Amy Blankenbiller, NEII FROM: Robert P. Rodophele and Michael D. Vhay, Esqs.
Ferriter Scobbo & Rodophele, PC DATE: October 2, 2015 RE: Waivers of Massachusetts Elevator Inspection Fines
The Massachusetts Department of Public Safety (“DPS”) has issued new regulations
that allow Massachusetts elevator owners that have been assessed fines for operating an
elevator with an expired inspection certificate (set at $100 per day) to seek a waiver of some or
all of the fines. See 520 C.M.R. 16.00. The regulation is retroactive to any fines assessed, or
any fine appealed, on or after January 1, 2013.
DPS has posted information about the waiver regulations at www.mass.gov/eopss/
consumer-prot-and-bus-lic/license-type/civil-fines/updated-expired-certificates.html. Below we
present five pieces of practical advice for those interested in obtaining a waiver. After
presenting the practical advice, we will examine the eight factors listed in 502 C.M.R. 16.03(5)
that DPS may consider in waiving some or all of the $100 per day fines.
Practical Issues
1. Timing. Any owner that
• filed an appeal of a fine under previous DPS regulations,
• paid a fine under previous DPS regulations and did not appeal the fine,
• was fined, but did not pay or appeal the fine, or
• received notice of a fine on or after July 25, 2014
may now apply for a waiver of the fine, but must do so by October 13, 2015.
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2. Special Form, One Per Elevator. An owner must use a special DPS appeal form to
request the waiver. The form is valid only until October 13, 2015. An owner must submit the
new form even if the owner or the owner’s representative previously has appealed the
fine. The owner must submit a separate form for each elevator that is the subject of a fine. The
form is available at www.mass.gov/eopss/docs/dps/civil-fines/elev-civil-fine-appeal-oct15.pdf.
3. Owner’s Signature. While the form allows an owner to authorize anyone (including
an operating or maintenance contractor) to act as the owner’s representative at any appeal
hearing, the owner must sign the form. It is thus essential for contractors who typically handle
DPS appeals for their owner-customers to request the owner’s cooperation in preparing the
form.
4. The Missing Boxes. DPS is allowed to consider eight grounds for waiving fines.
The DPS form is missing two of the grounds. Those grounds are “willfulness of the violation”
(520 CMR 16.03(5)(a)) and “previous violations resulting in the imposition of administrative
penalties” (520 CMR 16.03(5)(b)). We will examine each ground in greater detail below, but if
the owner wishes to argue “no willfulness” or “no prior violations,” the owner should write “NOT
WILLFUL” and/or ‘NO PRIOR VIOLATIONS” on the appeals form, next to “CLERICAL
ERRORS.”
5. Provide As Much Detail As Possible. DPS has told us that it intends to decide as
many waiver requests as possible using only the papers submitted by the owner or the owner’s
authorized representative. While an owner may request a hearing if DPS denies the owner’s
initial waiver request, it likely will be less expensive for owners and representatives if they
provide as much detail as possible with the initial appeals form. We will explore the types of
helpful details below. Extra pages are allowed, as are affidavits and any document that may
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help explain the owner’s case. An owner may send DPS additional information at any time prior
to the time DPS decides the waiver request.1
Grounds for Waiver of $100 Per Day Fine
520 C.M.R. 16.03(5) lists eight issues that DPS may consider in deciding whether to
waive some or all of a fine. Depending on the circumstances, more than one of the issues listed
below might be relevant to a waiver request. The owner or its representative should identify all
pertinent issues on the appeals form and provide the supporting details in writing.
A. Lack of a “willful” violation (16.03(5)(a)) This is the broadest ground for seeking a
waiver, but the devil is in the details.
An owner or representative hoping to claim lack of willfulness must investigate the
circumstances carefully. The owner or representative must determine (1) why an elevator
inspection was not sought prior to expiration of the elevator’s certificate and (2) whether the
failure was deliberate (or not). The investigation should include understanding what systems
are, or should have been, in place to timely alert the owner or its representative to the need for
applying for an inspection. The owner or representative must attach to the appeals form a full,
written explanation for why the failure occurred and why the failure was not deliberate. Helpful
details might include:
• Evidence of the owner or representative’s diligence in applying for an inspection of the disputed elevator
• The number of elevators for which the owner or its representative is responsible, at the site of the disputed elevator and more generally
• The owner or representative’s successful record of timely obtaining inspections for the disputed elevator and other elevators
• The sophistication of the system and/or personnel responsible for obtaining inspections
1 If DPS denies the owner’s initial waiver request, the owner has the right to appeal that decision to the DPS Commissioner. Any owner interested in taking this second appeal should review DPS’s initial decision carefully, and if the decision is based upon incomplete or inaccurate information, the owner or its representative should furnish DPS with additional information, even if the owner failed to include it in the original appeal. An owner also has the right to present witnesses at the second appeal.
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• Quality-assurance measures
Many owners delegate to an employee or outside contractor the owner’s ultimate legal
responsibility for timely obtaining elevator inspections. A recent DPS case suggests that an
owner cannot rely on delegation or outsourcing alone to prove that a failure to obtain a timely
inspection was not willful. Instead, the owner or its representative should explain with specific
facts (a) why assigning responsibility for obtaining the inspection was reasonable, (b) why the
employee or contractor failed to seek the inspection, and (c) why the employee or contractor’s
failure was not deliberate. Delegation or outsourcing cases require an understanding of the
employee or contractor’s systems for timely providing inspection alerts, and why those systems
did not work in connection with the violation that has resulted in the $100 per day fine.
B. Lack of previous violations resulting in administrative penalties (16.03(5)(b)).
Owners who have not been penalized for prior elevator violations should bring that fact to DPS’s
attention. If the owner has delegated or outsourced responsibility for obtaining inspections, the
owner should review the contractor’s penalty record before raising this argument.
C. Clerical errors (16.03(5)(c)). DPS’s regulations do not define “clerical error.” They
only give, as an example of a clerical error, “inadvertent errors on the application for annual
inspection.” Owners or their representatives should think of the regulation, however, as
extending to any error that involves an incorrect entry, whether it is on a paper form or into an
electronic system. Owners and representatives should identify not only those clerical errors
involving DPS forms or applications, but also those involving the owner or representative’s
record-keeping systems.
An owner or representative who attributes the late inspection application to a “paper”
clerical error should submit the erroneous document with the DPS appeal form. An owner or
representative who identifies an “electronic” clerical error should provide a screen shot or similar
proof of the mistake. The owner or representative also should claim “lack of willfulness” (see
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ground “A” above) in connection with any claim of clerical error, and give DPS a full account of
why the clerical error was not willful.
D. Inaccurate assessment (16.03(5)(d)). DPS’s regulations state that this ground for
seeking a waiver of a fine is “limited to evidence that a fine was issued in excess of statutory
authority [or] regulation or [is] based on inaccurate information.” An owner or representative
who believes that a fine is not allowed under Massachusetts statutes or DPS regulations should
review Massachusetts General Laws chapter 143, section 65 and 520 C.M.R. 16.00 carefully,
and provide the specific facts that show that a fine is illegal under those authorities. An owner
or representative who claims that the fine is based on inaccurate information should note in the
owner’s written submission accompanying the DPS appeal form (1) the specific information
claimed to be inaccurate and (2) the correct information.
E. De minimis risk of injury to the public (16.03(5)(e)). DPS’s regulations state that, in
order to provide “substantial evidence” of de minimis risk to the public, the owner or
representative must provide “proof that members of the public were incapable of accessing the
elevator for the entire period of operation without a valid certificate.” The key element is specific
proof of the lack of public access to the disputed elevator: that is, were all means of the public
reaching the elevator blocked or locked? It is not enough to show that the elevator did not work,
since under 520 C.M.R. 16.02(2), an elevator is deemed to be “operating” until the moment it
has been formally placed out of service or decommissioned in accordance with DPS
regulations.
F. Severe financial hardship to individual who owns elevator (16.03(5)(g)1.). As the
DPS appeal form notes, in order to invoke this ground, the owner must provide to DPS with the
appeals form a list of all assets and liabilities greater than $1,000, “including valuations for any
companies owned” by the individual, and an affidavit by the owner stating that payment of the
fine will cause “severe financial hardship.” 520 C.M.R. 16.03(5)(g)1. defines “severe financial
hardship” as “the inability to provide necessities of life including food, shelter and clothing for the
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owner or the owner’s dependents and/or the inability to meet mortgage obligations or any other
payment(s) necessary to retain ownership of all or part of the building.” The owner also may
include records supporting his claim of severe financial hardship, including tax or bankruptcy
records.
G. Severe financial hardship to entity owning an elevator (16.03(5)(g)2.). The DPS
appeal form notes that in order for an entity to claim severe financial hardship (defined in 520
C.M.R. 16.03(5)(g)2. as “the inability to meet financial obligations critical to survival [of the
entity] or to carry out essential organizational functions, missions or initiatives), the entity must
provide to DPS with the appeals form three things: (1) a current annual operating budget; (2) a
listing of all assets and liabilities greater than $1,000; and (3) an affidavit from the owner’s
representative “detailing why payment of the fine will cause severe financial hardship.” Tax or
bankruptcy records again may be helpful.
Q:\RPR\9.30.15 Memo RPR-MDV to NEII.docx
National Elevator Industry, Inc.2015 GAC Services Budget Report (1)
16-Jan-14 Jan Services $10,500.00 0% $0.0027-Feb-15 Feb Services $10,500.00 0% $0.0031-Mar-15 Mar Services $10,500.00 0% $0.0030-Apr-15 Apr Services $10,500.00 0% $0.0031-May-15 May Services $10,500.00 0% $0.0025-Jun-15 Jun Services $10,500.00 0% $0.0028-Jul-15 Jul Services $10,500.00 0% $0.0024-Aug-15 Aug Services $10,500.00 0% $0.0025-Sep-15 Sep Services $10,500.00 $31,500.00 0% $0.00
Elevator Safety Board DirectoryStateside Associates $8,000.00
31-Mar-15 Jan through Jun updates $4,000.00 0% $0.0025-Sep-15 Jul through Dec updates $4,000.00 $0.00 0% $0.00
TOTAL MONITORING $134,000.00 $102,500.00 $31,500.00 $0.00 $102,500.00
STATE ELEVATOR LAW COMPARISON DATABASEStateside Associates $10,000.00
31-Mar-15 Jan through Mar updates $2,500.00 0% $0.0025-Jun-15 Apr through Jun updates $2,500.00 0% $0.0025-Se0-15 Jul throught Sep Updates $2,500.00 $2,500.00 0% $0.00
TOTAL MEL DATABASE $10,000.00 $7,500.00 $2,500.00 $0.00 $7,500.00
6-Mar-15 Feb Services $2,000.00 65% $1,300.006-Apr-15 Mar Services $2,000.00 15% $300.0025-Jun-15 Apr Services $2,000.00 15% $300.0025-Jun-15 May Services $2,000.00 50% $1,000.006-Jul-15 Jun Services $2,000.00 0% $0.0025-Aug-15 Jul Services $2,000.00 20% $400.0024-Sep-15 Aug Services $2,000.00 $8,000.00 0% $0.00
NevadaDickinson Wright PLLC (3) $54,000.00
20-Feb-15 Jan Services $4,500.00 40% $1,800.009-Mar-15 Feb Services $4,500.00 50% $2,250.0014-Apr-15 Mar Services $4,500.00 83% $3,735.0019-May-15 Apr Services $4,500.00 90% $4,050.0016-Jun-15 May Services $4,500.00 25% $1,125.0010-Jul-15 May Services $4,500.00 70% $3,150.0011-Aug-15 Jul Services $4,500.00 0% $0.0022-Sep-15 Aug Services $4,500.00 $18,000.00 0% $0.00
New York CityConnelly McLaughlin & Woloz $60,000.00
30-Jan-15 Jan Services $5,000.00 0% $0.001-Mar-15 Feb Services $5,000.00 0% $0.001-Apr-14 Mar Services $5,000.00 0% $0.001-May-15 Apr Services $5,000.00 0% $0.001-Jun-15 May Services $5,000.00 0% $0.001-Jul-15 Jun Services $5,000.00 0% $0.001-Aug-15 Jul Services $5,000.00 $25,000.00 0% $0.00
WashingtonMcBride Public Affairs LLC $42,000.00
2-Feb-15 Jan Services $3,500.00 50% $1,750.003-Mar-15 Feb Services $3,500.00 60% $2,100.00
Private Car Tukwila, WA to/from Olympia, WA $60.95 60% $36.576-Apr-15 Mar Services $3,500.00 70% $2,450.00
Private Car Tukwila, WA to/from Olympia, WA $60.95 70% $42.674-May-15 Apr Services $3,500.00 75% $2,625.001-Jun-15 May Services $3,500.00 75% $2,625.00
Private Car Tukwila, WA to/from Olympia, WA $65.45 75% $49.096-Jul-15 Jun Services $3,500.00 60% $2,100.002-Aug-15 Jul Services $3,500.00 50% $1,750.002-Sep-15 Aug Services $3,500.00 50% $1,750.00
Private Car Tukwila, WA to/from Olympia, WA $72.45 50% $36.231-Oct-15 Sep Services $3,500.00 $10,500.00 30% $1,050.00
NOTES: (1) NEII 2015 GAC Services Budget $500,000.00. At 19-Jun-15 NEII BOD meeting budget was increased to $608,000.00(2) Contract extended for 3 additional months on 30-Mar-15(3) Contract extended for 6 additional months on 6-Jul-15(4) Contract extended for 2 additional months on 5-Sep-15
TOTAL MONITORING, MEL DATABASE, LOBBYING, MISC.
TOTAL REPORTABLE FEDERAL LOBBYING DISCOSURE ACT
Attachment 2 Page 3 of 3
From: Amy BlankenbillerTo: "Stepaniak Kurt"; "Mehta Divya"; "Ceriello, Elizabeth A BIS"; "[email protected]"; "Beup, Neil W UTCHQ"; "[email protected]"; "Matuson, Jesse
Subject: Hotel info for NOVEMBER CCC & GAC/CCC meetingsDate: Sunday, August 23, 2015 12:03:00 PM
The CCC is meeting 8a-5p on November 11 and 8a-noon on November 12. The GAC/CCC meeting starts with lunch at noon onNovember 12. The meetings will take place at the Palm Beach Gardens Marriott, hosted by Otis, so you will want to stay at thishotel or close by. Palm Beach Gardens Marriott Otis/NEII rate of 97.00 USD per nightRate is good 11/10/15 - 11/13/15Last day to book: 10/16/15http://www.marriott.com/meeting-event-hotels/group-corporate-travel/groupCorp.mi?resLinkData=Otis/NEII^PBIPG%60OTSOTSA%6097.00%60USD%60false%601%6011/10/15%6011/13/15%6010/16/15&app=resvlink&stop_mobi=yes*I’ve been having some trouble with this link, so you may have to copy and paste it into your internet browser There are three airports in the general area, but Palm Beach International is the closest to the hotel/meeting location. The hotel does notprovide shuttle service to any of the airports.Palm Beach International (PBI) is 12 miles from the hotel.Fort Lauderdale-Hollywood International (FLL) is 59 miles awayMiami International (MIA) is 89 miles away Please forward to your team members if I inadvertently left anyone off the distribution list. See you in Florida! Amy J. BlankenbillerGovernment Affairs DirectorNational Elevator Industry, Inc.(o) 785.286.7599(c) 785.580.5070