PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of Subpart 72-1 to Title 10 NYCRR.
Statutory authority:
Public Health Law, section 35-A
Subject:
Tanning Facilities.
Purpose:
To establish standards for the safe and sanitary operation of Tanning Facilities.
Substance of proposed rule (Full text is posted at the following State website: www.health.state.ny.us):
The proposed Subpart contains the following provisions:
The term ‘tanning facility’ is defined and operators are required to obtain a biennial permit to operate from the permit issuing official (PIO) having jurisdiction in the county where the tanning facility is located. Inspection of facilities and enforcement of the Subpart by the PIO is established by this proposed regulation, as well as specifying operation standards for tanning facilities. The standards include age restrictions for use of ultraviolet radiation devices, requirements for patron identification, warning and consent requirements, operation and maintenance of physical facilities and equipment, use of protective eyewear during tanning and general operator responsibilities.
Text of proposed rule and any required statements and analyses may be obtained from:
Katherine Ceroalo, DOH, Bureau of House Counsel, Regulatory Affairs Unit, Room 2438, ESP, Tower Building, Albany, NY 12237, (518) 473-7488, email: regsqna@health.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Summary of Regulatory Impact Statement
Statutory Authority:
The Commissioner is authorized by Public Health Law (PHL) Article 35-A Sections 3551 and 3554 to promulgate rules and regulations necessary to effectuate the provisions of the Article.
Needs and Benefits:
In July 1990, Article 35-A of the Public Health Law (PHL) was enacted giving the Department of Health the authority and responsibility to license and inspect ultraviolet radiation devices in tanning facilities, effective July 1991. The legislation established a program that includes biennial licensure and inspection of all commercial non-medical tanning operations. The purpose of this program is to license and inspect commercial tanning facilities with the intent of increasing consumer knowledge of the hazards of ultraviolet tanning and minimizing user injuries.
On August 14, 2006, Chapter 573 of Laws of 2006 amended Article 35-A to prohibit children under 14 years old from using tanning facilities and requiring that children between the ages of 14 and 18 have a parent or legal guardian sign a consent form before the child can use the tanning equipment. Adults must sign a similar statement indicating that they have read the Department's warning materials. The amendments to Article 35-A became effective November 14, 2006. The enacting legislation authorized the Commissioner to promulgate regulations to implement the amendments to the law.
Regulated Parties:
There are approximately 1,800 tanning facilities in New York State. Five counties in New York State have established or are in the process of establishing local regulations which provide performance standards and enable them to permit and inspect tanning facilities. The remaining counties and New York City have not enacted local regulations or established programs to regulate and permit tanning facilities as required by PHL Article 35-A.
Costs to Regulated Parties:
The proposed regulation creates no significant cost to tanning facility operators aside from biennial permit and inspection fees established within Article 35-A. Minimal expenses may also be incurred by operators who currently do not provide protective eyewear "free of charge" as required by PHL Article 35-A. In these cases, operators will likely provide inexpensive single use disposable eyewear, which most operators currently sell to patrons for about $1.00 per set of eyewear. This disposable eyewear is readily available through wholesale, retail and internet sales and can be purchased for less than $0.20 per pair.
Some operators may have equipment that requires retrofitting to achieve compliance with the requirements within this regulation for ultraviolet device timer access controls. Research indicates that even the most expensive remote timer systems would cost less than $300 per unit to retrofit ultraviolet radiation devices to meet the requirements of this regulation. A less costly option exists, adding a patron lockout to the existing device timer. Estimates obtained indicate that this option would cost less than $50 per device to achieve compliance with the regulation for those operators whose equipment does not already meet the requirement.
Government:
The printing and distribution of the new regulation and the corresponding program inspection report, warning sign, information sheet, consent and acknowledgement forms will be a minimal State Health Department expense. There will be additional costs for staff time and travel expenses to train and to provide technical guidance to local health department (LHD) staff. Costs will be offset by additional revenue generated from permit and inspection fees. It is expected that PIOs will use existing staff to manage the workload because of the relatively low number of tanning facilities in any particular jurisdiction. Reimbursement to PIOs will be at the current State Aid rate of 36% for core public health programs.
Alternatives Considered:
No alternatives were considered as compliance is mandated by Public Health Law. The proposed regulation meets the minimum requirements established by PHL Article 35-A and would effectuate the provisions of the article as intended.
Compliance Schedule:
The proposed regulation will be effective upon publication of a notice of adoption in the State Register.
Regulatory Flexibility Analysis
Effect on small business and local government:
There are approximately 1,800 tanning facilities in New York State, most of which are not currently under regulation. It is believed that most of these tanning facilities may be considered small businesses.
Compliance requirements:
Reporting and Recordkeeping:
Tanning facility operators will be required to report certain patron injuries and illnesses within 24 hours of occurrence, and to maintain written records of such events for a period of two years. Operators must document the age of patrons and obtain a signed acknowledgement form from every adult patron. Operators must obtain parental consent forms for every minor patron between the ages of 14 and 18 years. These forms expire 12 months from the date of signing. Operators will also be required to test the accuracy of tanning device timers annually, and keep records of this activity. They shall also be required to keep equipment maintenance logs and to keep entries in these logs for a period of two years.
Other affirmative acts:
Tanning facility operators are required to obtain a biennial permit to operate from the permit issuing official (PIO) having jurisdiction in the county that the facility is located. Operators must check the identification of every prospective patron, ensuring that it meets the criteria set forth in PHL 35-A. Operators must also ensure that every patron has in their possession a set of adequate protective eyewear for use with ultraviolet radiation devices. For patrons without such eyewear, the operator must provide a set at no additional charge to the patron. Operators must also ensure that all ultraviolet radiation devices are adequately labeled, operated and maintained.
Compliance costs:
The proposed regulation creates no significant cost to most tanning facility operators aside from biennial permit and inspection fees established within Article 35-A. A facility permit fee of $30 and an inspection fee of $50 per ultraviolet radiation device will be assessed biennially.
Some operators may have equipment that requires retrofitting to achieve compliance with the requirements within this regulation for ultraviolet device timer access controls. Research indicates that even the most expensive remote timer systems would cost less than $300 per unit to retrofit ultraviolet radiation devices with a remote access system to meet the requirements of this regulation. Costs depend largely on prevailing rates charged by electrical contractors. A less costly option exists, adding a patron lockout to the existing device timer. Estimates obtained indicate that this option would cost less than $50 per device to achieve compliance with the regulation for those operators whose equipment does not already meet the requirement.
Minimal additional expenses may also be incurred by operators who are not currently providing protective eyewear "free of charge" as required by PHL Article 35-A. In these cases, operators will likely provide inexpensive single use disposable eyewear, which most operators currently sell to patrons for about $1.00 per set of eyewear. This disposable eyewear is readily available through wholesale, retail and internet sales and can be purchased for less than $0.20 per pair.
Operators may incur a minimal expense to obtain and post warning signs as required by the proposed regulations.
Professional services:
These regulations do not impose any additional burden for professional services.
Economic and technological feasibility:
The proposal is technologically feasible because it requires the use of existing technology. The overall economic impact to comply with the requirements of this regulation is expected to be minimal.
Minimizing adverse economic impact:
The proposed regulation establishes standards for operating ultraviolet radiation devices within tanning facilities in such a way as to minimize risk to the public health. Should this regulation have a substantial adverse impact on a particular facility, a waiver of one or more requirements other than those required by Article 35-A of Public Health Law will be considered, so long as alternative arrangements protect public health and safety.
Alternatively, a variance, allowing additional time to comply with one or more requirements, can be granted if the health and safety of the public is not prejudiced by the variance.
Small business participation:
During the development of this regulation, Department staff met with representatives of the Indoor Tanning Association, which represents approximately 23 NYS tanning operators, and several small business owners on several occasions and also had numerous telephone conversations to develop a better understanding of tanning facility operations. This information obtained during these outreach activities was incorporated into the proposed regulation. Furthermore, Department staff were invited to observe several small tanning business operations in person, and knowledge gleaned during these on-site observations was critical in the development of the proposed regulations. Small business participation included six operators in Saratoga County and two in Dutchess County.
Rural Area Flexibility Analysis
Types and estimated number of rural areas:
There are approximately 1800 tanning facilities in New York State. Approximately forty percent are located in rural areas throughout the state, as determined by a survey of all local health departments in November 2006.
Reporting and recordkeeping and other compliance requirements:
Reporting and Recordkeeping:
Tanning facility operators will be required to report certain patron injuries and illnesses within 24 hours of occurrence, and to maintain written records of such events for a period of two years. Operators must document the age of patrons and obtain a signed acknowledgement form from every adult patron. Operators must obtain parental consent forms for every minor patron between the ages of 14 and 18 years. These forms expire 12 months from the date of signing. Operators will also be required to test the accuracy of tanning device timers annually, and keep records of this activity. They shall also be required to keep equipment maintenance logs and to keep entries in these logs for a period of two years.
Other affirmative acts:
Tanning facility operators are required to obtain a biennial permit to operate from the permit issuing official (PIO) having jurisdiction in the county that the facility is located. Operators must check the identification of every prospective patron, ensuring that it meets the criteria set forth in PHL 35-A. Operators must also ensure that every patron has in their possession a set of protective eyewear that meets United States Food and Drug Administration standards for use with ultraviolet radiation devices. For patrons without such eyewear, the operator must provide a set at no additional charge to the patron. Operators must also ensure that all ultraviolet radiation devices are adequately labeled, operated and maintained.
Compliance costs:
The proposed regulation creates no significant cost to most tanning facility operators aside from biennial permit and inspection fees established within Article 35-A. A facility permit fee of $30 and an inspection fee of $50 per ultraviolet radiation device will be assessed biennially.
Some operators may have equipment that requires retrofitting to achieve compliance with the requirements within this regulation for ultraviolet device timer access controls. Research indicates that even the most expensive remote timer systems would cost less than $300 per unit to retrofit ultraviolet radiation devices with a remote access system to meet the requirements of this regulation. Costs depend largely on prevailing rates charged by electrical contractors. A less costly option exists, adding a patron lockout to the existing device timer. Estimates obtained indicate that this option would cost less than $50 per device to achieve compliance with the regulation for those operators whose equipment does not already meet the requirement.
Minimal additional expenses may also be incurred by operators who are not currently providing protective eyewear "free of charge" as required by PHL Article 35-A. In these cases, operators will likely provide inexpensive single use disposable eyewear, which most operators currently sell to patrons for about $1.00 per set of eyewear. This disposable eyewear is readily available through wholesale, retail and internet sales and can be purchased for less than $0.20 per pair.
Operators may incur a minimal expense to obtain and post warning signs as required by the proposed regulations.
Professional services:
These regulations do not impose any additional burden for professional services.
Minimizing adverse economic impact on rural areas:
The proposed regulation establishes standards for tanning facilities to minimize risk to the public health. Should this regulation have a substantial adverse impact on a particular facility, a waiver of one or more requirements other than those required by Article 35-A of Public Health Law will be considered, so long as alternative arrangements protect public health and safety. Alternatively, a variance, allowing additional time to comply with one or more requirements, can be granted if the health and safety of the public is not prejudiced by the variance.
Rural area participation:
During the development of this regulation, the Department met with industry representatives on several occasions and had numerous telephone conversations to develop a better understanding of tanning facility operation and incorporated the information obtained during these outreach activities into the proposed regulation. Furthermore, Department staff were invited to observe several small tanning business operations in person. Some of these facilities were in rural areas. Knowledge gleaned during these on-site observations was critical in the development of the proposed regulations.
Job Impact Statement
No Job Impact Statement is required pursuant to Section 201-a(2)(a) of the State Administrative Procedure Act. It is apparent from the nature of the proposed amendment that it will not have substantial adverse impact on jobs and employment opportunities.
