DOS-22-15-00017-RP Facility Requirements for Businesses Which Offer Appearance Enhancement Services  

  • 6/22/16 N.Y. St. Reg. DOS-22-15-00017-RP
    NEW YORK STATE REGISTER
    VOLUME XXXVIII, ISSUE 25
    June 22, 2016
    RULE MAKING ACTIVITIES
    DEPARTMENT OF STATE
    REVISED RULE MAKING
    NO HEARING(S) SCHEDULED
     
    I.D No. DOS-22-15-00017-RP
    Facility Requirements for Businesses Which Offer Appearance Enhancement Services
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
    Proposed Action:
    Amendment of section 160.16 of Title 19 NYCRR.
    Statutory authority:
    Executive Law, section 91; General Business Law, sections 402(5) and 404
    Subject:
    Facility requirements for businesses which offer appearance enhancement services.
    Purpose:
    Increase ventilation standards for businesses which offer appearance enhancement services.
    Text of revised rule:
    Section 160.16 of Part 160 of Title 19 of the New York Codes, Rules and Regulations is amended to read as follows:
    Section 160.16. Facilities: ancillary provisions.
    (a) For the purposes of this section, the following terms shall have the following meanings:
    (1) “appearance enhancement business” means the business of providing any or all of the services licensed pursuant to Article 27 of the New York General Business law at a fixed location.
    (2) “nail salon” means each building, or portion of a building, in which nail specialty services are offered or provided.
    (3) “nail specialty service” means providing services for a fee or any consideration or exchange to cut, shape or to enhance the appearance of the nails of the hands or feet. Nail specialty shall include the application and removal of sculptured or artificial nails.
    (4) “nail station” means a table or work area where any nail specialty service is performed. In the case of a table or work area where more than one nail specialty service can be performed at any one time, each portion of such table or work area where a nail specialty service can be performed shall be deemed to be a separate nail station.
    (5) “owner” means a person who or which owns, controls or operates, whether as a partner shareholder, officer, independent contractor (including area renter) or proprietor an appearance enhancement business.
    (6) “registered design professional” means an individual who is a registered architect (RA) in accordance with Article 147 of the New York State Education Law or a licensed professional engineer (PE) in accordance with Article 145 of the New York State Education Law.
    (b) In addition to [any requirement] complying with all applicable requirements of the State Uniform Fire Prevention and Building Code, New York City Construction Code or other building code applicable to the building in which appearance enhancement activities are performed, and with all applicable requirements of the State Sanitary Code, State Industrial Code, [or similar law or regulation] and other laws and regulations applicable to appearance enhancement activities and/or to buildings, including environmental standards, in which such activities are performed, an owner shall provide, in each appearance enhancement business each of the following:
    [(a)] (1) hot and cold running water;
    [(b)] (2) toilet facilities and wash basins for use by clients and employees;
    [(c)] (3) illumination for the safe provision of licensed services;
    [(d)] (4) covered containers for hair, paper and other waste material; [and]
    [(e)] (5) sufficient space or working area to ensure the safety and health for both the operator and client[.]; and
    (6) in the case of a nail salon, a mechanical ventilation system which complies with the “2015 International Mechanical Code” (Publication Date: May 30, 2014, Third Printing), published by the International Code Council, Inc., and as amended by the NYS Building Standards and Codes 2016 Uniform Code Supplement (hereinafter referred to as the “2015 IMC”) such that it:
    (i) has the capacity to supply outdoor airflow at a rate of not less than the greater of (a) the ventilation standards for nail salons as set forth at Sections 401 and 403 of the 2015 IMC or (b) 50 cubic feet per minute for each nail station in the nail salon;
    (ii) includes a mechanical exhaust system that:
    (a) is designed and constructed to capture all chemical vapors, fumes, dust and other air contaminants at their source and to exhaust such contaminants to the outdoor atmosphere;
    (b) has at least one exhaust inlet for each nail station (each such exhaust inlet to be factory-installed by the manufacturer of the nail station or field-installed at a location that is not more than 12 inches horizontally and not more than 12 inches vertically from the point of chemical application or where the customer’s nails are placed when a nail specialty service is being performed);
    (c) has the capacity to exhaust from the nail salon at a rate of not less than the greater of (1) the ventilation standards for nail salons as set forth at Sections 401 and 403 of the 2015 IMC or (2) 50 cubic feet per minute for each nail station in the nail salon;
    (d) exhausts all exhaust air from the nail salon (including but not limited to all chemical vapors and fumes, dust, and other air contaminants and odors generated by or resulting from nail specialty services) to the outdoor atmosphere, with each exhaust discharge located at a point where it will not cause a nuisance to others and where the exhausted air (including but not limited to the exhausted chemical vapors and fumes, dust, and other air contaminants and odors) cannot be readily drawn in by the outdoor air intake components of the ventilation system; and
    (e) exhausts all exhaust air from the nail salon (including but not limited to all chemical vapors and fumes, dust, and other air contaminants and odors generated by or resulting from nail specialty services) in a manner that assures that no part of such exhaust air shall be recirculated into the nail salon or into any other space in the building, or transferred to any other space in the building;
    (iii) is balanced in a manner to supply outdoor air at a rate equal to the rate of the exhaust; and
    (iv) operates at or above the minimum supply outdoor airflow rate specified in subparagraph (i) of this paragraph and at or above the minimum exhaust rate specified in clause (c) of subparagraph (ii) of this paragraph at all times when the nail salon is occupied by any person or persons.
    (c) No standard or requirement set forth in paragraph (6) of subdivision (b) of this section shall be construed as superseding, amending or otherwise affecting any higher or more restrictive standard or requirement applicable to appearance enhancement activities and/or to buildings. Failure to comply with any such higher or more restrictive standard or requirement may be a violation of the other applicable law or regulation, including, as the case may be, the State Uniform Fire Prevention and Building Code, New York City Construction Code, other building code, State Sanitary Code, State Industrial Code or environmental standards.
    (d) Beginning on October 3, 2016 any nail salon which obtains a new appearance enhancement business license shall attain compliance with the minimum ventilation rate specifications set forth paragraph (6) of subdivision (b) of this section. A signed certification by the ventilation system installer, manufacturer or a registered design professional that the ventilation system meets such ventilation rate specifications shall be maintained on the business premises and be available for inspection by the Department. A nail salon licensed before October 3, 2016 shall have until October 3, 2021 to comply with the requirements of this subdivision.
    (e) For the purpose of compliance with this Part the 2015 IMC is incorporated herein by reference. Copies of the 2015 IMC may be obtained from the publisher at the following address:
    International Code Council, Inc.
    500 New Jersey Avenue, NW, 6th Floor
    Washington, DC 20001
    The 2015 IMC is also available for public inspection and copying at:
    New York State Department of State
    One Commerce Plaza, 99 Washington Avenue
    Albany, NY 12231-0001
    Revised rule compared with proposed rule:
    Substantial revisions were made in section 160.16.
    Text of revised proposed rule and any required statements and analyses may be obtained from
    David A. Mossberg, Esq., NYS Dept. of State, 123 William Street, 20th FL., New York, NY 10038, (212) 417-2063, email: david.mossberg@dos.ny.gov
    Data, views or arguments may be submitted to:
    Same as above.
    Public comment will be received until:
    30 days after publication of this notice.
    Revised Regulatory Impact Statement
    1. Statutory authority:
    New York Executive Law § 91 and New York General Business Law (“GBL”) §§ 402(5); 404. Section 91 of the Executive Law authorizes the Secretary of State to: “adopt and promulgate such rules which shall regulate and control the exercise of the powers of the department of state.”
    In addition, Sections 402(5) and 404 of the GBL authorize the Secretary of State to promulgate rules specifically relating to the appearance enhancement industry.
    2. Legislative objectives:
    Article 27 of the GBL was enacted, inter alia, to provide a system of licensure of appearance enhancement businesses and operators that would both allow for the greatest possible flexibility in the establishment of regulated services and implement measures to protect those inextricably entwined in the industry. Consistent with this legislative intent of Article 27, the Department is empowered to issue regulations which protect the general welfare of the public, including those who practice in the nail specialty field.
    3. Needs and benefits:
    The revised rulemaking is needed to improve working conditions and air quality standards in places of business which offer nail specialty services. To protect workers, patrons and the public at large, this revised rulemaking would amend current regulations to require that all appearance enhancement businesses which offer nail specialty services meet certain ventilation standards by no later than October 3, 2021. After the original rule was proposed in June 2015, the standards set forth in this rulemaking were incorporated into the New York State Mechanical Code, and were made effective October 3, 2016, such that all new businesses that open after October 3, 2016, will be required to satisfy the same requirements provided for in this rule. Accordingly, this rule would ensure that existing business established before October 3, 2016, will all, within the following five years, meet the same standards that new businesses will be required to meet. By requiring every licensed business to meet these specific ventilation standards, regardless of when such business started operation, workers and patrons would benefit significantly from a reduction in offensive chemical vapors, fumes, dust, and other air contaminants.
    4. Costs:
    a. Costs to regulated parties:
    The revised rulemaking requires every licensed business which offers nail specialty services to meet new ventilation standards, regardless of when such business first became licensed. The Department believes that a substantial number of appearance enhancement business owners will be required to come into compliance with the stricter ventilation requirements imposed by this regulation. Costs of compliance will differ significantly depending on many factors, including but not limited to: age of the business, geographic location, and type of structure (i.e., whether the business operates in a standalone building, strip mall, enclosed shopping mall etc…). The Department estimates as little as $500 for a 1,000 square foot strip mall location to many thousands of dollars for a business located in a large, outdated commercial building. Assuming a business is already in compliance with the airflow rates proposed by this revised rulemaking, the cost of a source capture system unit is estimated to range from $500 to $1500 per station. Additionally, businesses will have to retain ventilation system installers, manufacturers or registered design professionals to certify that the ventilation systems in place comply with the standards set forth in the rule. The Department also anticipates that businesses will have to expend costs, which will vary significantly, for necessary materials to meet these standards, which may include costs for: system designs, local hoods, ductwork, exhaust fans, electrical connections, testing.
    b. Costs to the Department of State, the State, and Local Governments:
    The Department does not anticipate any additional costs to implement the rule.
    5. Local government mandates:
    The rule does not impose any program, service, duty or responsibility upon any county, city, town, village, school district or other special district.
    6. Paperwork:
    Businesses subject to this rule must maintain a certification from a design professional confirming that the business complies with the ventilation standards set forth in this rulemaking.
    7. Duplication:
    This rule does not duplicate, overlap or conflict with any other state or federal requirement.
    8. Alternatives:
    The Department considered not proposing the instant rulemaking. It was determined, however, this rule is needed to protect the health and safety of a significant population of practitioners who are often subject to substandard workplace conditions. This rule will also benefit the thousands of customers who visit nail salons throughout the state. Additionally, the Department found that this rule was needed to ensure that all businesses adhere to the same health and safety standards as these standards are now required by reason of incorporation into the New York State Mechanical Code effective October 3, 2016.
    9. Federal standards:
    The proposed amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.
    10. Compliance schedule:
    To ensure that current licensees have sufficient time to comply with these improved standards, if a business subject to this proposal is licensed before October 3, 2016 such business will have 5 years to make necessary updates. The Department has also considered that there may be newer businesses entering this industry, and so to provide sufficient time for those newer businesses to get into compliance, the Department is making this proposal effective October 3, 2016, the same date the New York State Mechanical Code will take effect.
    Revised Regulatory Flexibility Analysis
    1. Effect of rule:
    The revised rulemaking requires all businesses that offer nail specialty services to meet the same ventilation standards by October 3, 2021. After the original rule was proposed in June 2015, the standards set forth in this rulemaking were incorporated into the New York State Mechanical Code, and were made effective October 3, 2016, such that all new businesses that open after October 3, 2016, will be required to satisfy the same requirements provided for in this rule. Accordingly, this rule would ensure that existing business established before October 3, 2016, will all, within the following five years, meet the same standards that new businesses will be required to meet. A requirement that every licensed business eventually meet these specific ventilation standards, regardless of when such businesses started operation, would allow all workers and patrons to benefit from the improved ventilation standards that will result in a reduction in offensive chemical vapors, fumes, dust, and other air contaminants.
    The rule does not apply to local governments.
    2. Compliance requirements:
    Businesses which offer nail specialty services, regardless of when they started operation, will have to ensure air quality standards which comply with this rulemaking. To meet these new standards, many businesses will have to install new ventilation systems to ensure sufficient air flow rates as well as purchase and install mechanical source point capture systems. Existing business will have 5 years to comply with these requirements. New businesses established after October 3, 2016 will have to comply immediately.
    3. Professional services:
    The Department anticipates that businesses will have to retain design professionals which may include mechanical contractors, to ensure such business is compliant with ventilation standards imposed by this revised regulation. In addition, if in the event such businesses is not compliant, the Department anticipates that engineers or contractors may be required to bring the place of establishment into compliance. Further, to ensure compliance with these standards during inspections, businesses will be required to have a certification on the premises from a ventilation system installer, manufacturer or registered design professional confirming compliance.
    4. Compliance costs:
    The revised rulemaking requires every licensed business which offers nail specialty services to meet new ventilation standards, regardless of when such business first became licensed. The Department believes that a substantial number of appearance enhancement business owners will be required to come into compliance with the stricter ventilation requirements imposed by this regulation. Costs of compliance will differ significantly depending on many factors, including but not limited to: age of the business, geographic location, and type of structure (i.e., whether the business operates in a standalone building, strip mall, enclosed shopping mall etc…). The Department estimates as little as $500 for a 1,000 square foot strip mall location to thousands of dollars for a business located in a large, outdated commercial building. Assuming a business is already in compliance with the airflow rates proposed by this revised rulemaking, the cost of a source capture system unit is estimated to range from $500 to $1500 per station. Additionally, businesses will have to retain ventilation system installers, manufacturers or registered design professionals to certify that the ventilation systems in place comply with the standards set forth in the rule. The Department also anticipates that businesses will have to expend costs, which will vary significantly, for necessary materials to meet these standards, which may include costs for: system designs, local hoods, ductwork, exhaust fans, electrical connections, and testing.
    5. Economic and technological feasibility:
    The Department finds that it is both economically and technically feasible for those businesses which will be affected by this rule to comply. The Department notes, in part, that during the initial comment period under the original proposal there were no objections to this rule citing to an inability to comply. Further, other jurisdictions such as Washington, Oregon, and Massachusetts have similar ventilation standards already in effect. It must also be noted, that as a result of the recent adoption of the 2015 Mechanical Code, newer businesses will be expected to comply with the same standards notwithstanding this proposed rule. Accordingly, it is economically and technically feasible to comply with this rule.
    6. Minimizing adverse impact:
    The Department did not identify any alternatives which would achieve the results of the proposed rule and at the same time be less restrictive and less burdensome in terms of compliance. The Department has consulted with Department of Labor, Department of Health, as well as several advocacy groups and finds this rule is necessary for the wellbeing of those who engage in the practice of nail specialty. In addition, during the initial publication of this proposed rule, the Department received multiple comments which supported this rulemaking as a necessary measure to protect the wellbeing of those who work and patronize nail salons.
    7. Small business and local government participation:
    The Department, in conjunction with the Governor’s Task Force to Stop Wage Theft, Unsafe Working Conditions and Unlicensed Businesses in the nail salon industry, has consulted with small business interests which may be affected by this rule. In addition, during the initial publication of this proposed rule, the Department received multiple comments which supported this rulemaking as a necessary measure to protect the wellbeing of those who work and patronize nail salons. Additional comments will be received and entertained during the public comment period associated with this Revised Notice of Proposed Rulemaking.
    8. Compliance:
    This rule will be effective October 3, 2016. Businesses which are licensed before October 3, 2016 will have 5 years to ensure that the ventilation requirements imposed by this rule are satisfied. Newer businesses which are licensed after October 3?, 2016 will have to ensure compliance immediately.
    9. Cure period:
    The Department is not providing for a cure period prior to enforcement of these regulations. The Department finds that a cure period is not necessary. It is anticipated that businesses which are established after October 3, 2016 will already be in compliance with the standards imposed by this rule. Further, businesses which are licensed before October 3, 2016 will have 5 years to come into compliance. Accordingly, the Department finds that interested parties will have sufficient time to comply with this rule thereby eliminating the need for a cure period.
    Revised Rural Area Flexibility Analysis
    1. Types and estimated numbers of rural areas:
    The revised rule will apply to appearance enhancement businesses that are licensed pursuant to Article 27 of the General Business Law. The Department of State (the “Department”) currently licenses approximately 34,000 such businesses, many of which operate in rural areas. Licensed owners are responsible for complying with this rule. Businesses which do not currently meet the ventilation standards set forth by this revised rulemaking will be required to come into compliance. This rule applies the same standards to all businesses, including those operating in rural areas.
    2. Reporting, recordkeeping and other compliance requirements; and professional services:
    The Department does anticipate that businesses in rural areas will have to retain code compliance specialists or registered design professionals which may include mechanical contractors, to ensure such business meet the ventilation standards imposed by this revised rulemaking. If in the event such business is not compliant, the Department anticipates professional engineering services will be required to bring the place of establishment into code. In addition, businesses subject to this rule will be required to have available a certification signed by a ventilation system installer, manufacturer or registered design professional, that the ventilation system meets the specifications set forth by this rule; such certification is required to be maintained on the business premises and be available for inspection by the Department.
    3. Costs:
    The revised rulemaking requires every licensed business which offers nail specialty services to meet new ventilation standards, regardless of when such business first became licensed, by October 3, 2021. The Department believes that a substantial number of appearance enhancement business owners will be required to come into compliance with the updated ventilation requirements imposed by this regulation. Costs of compliance will differ significantly depending on many factors, including but not limited to: age of the business, geographic location, and type of structure (i.e., whether the business operates in a standalone building, strip mall, enclosed shopping mall etc…). The Department estimates as little as $500 for a 1,000 square foot strip mall location to many thousands of dollars for a business located in a large, outdated commercial building. Assuming a business is already in compliance with the airflow rates proposed by this revised rulemaking, the cost of a source capture system unit is estimated to range from $500 to $1500 per station. Additionally, businesses will have to retain ventilation system installers, manufacturers or registered design professionals to certify that the ventilation systems in place comply with the standards set forth in the rule. The Department also anticipates that businesses will have to expend costs, which will vary significantly, for necessary materials to meet these standards, which may include costs for: system designs, local hoods, ductwork, exhaust fans, electrical connections, testing.
    4. Minimizing adverse impact:
    The Department did not identify any alternatives which would achieve the results of the proposed rule and at the same time be less restrictive and less burdensome in terms of compliance. The Department has consulted with Department of Labor, Department of Health, as well as several advocacy groups and finds this rule is necessary for the wellbeing of those who engage in the practice of nail specialty. In addition, during the initial publication of this proposed rule, the Department received multiple comments which supported this rulemaking as a necessary measure to protect the wellbeing of those who work and patron nail salons.
    5. Rural area participation:
    The original text of the proposed rule was published both on the Department’s website as well as in the June 3, 2015, register; however no significant comments from rural areas have been received. Additional comments will be received and entertained during the public comment period associated with this Revised Notice of Proposed Rulemaking.
    Revised Job Impact Statement
    1. Nature of impact:
    The revised rulemaking requires all businesses that offer nail specialty services to meet the same ventilation standards by October 3, 2021. After the original rule was proposed in June 2015, the standards set forth in this rulemaking were incorporated into the New York State Mechanical Code, and were made effective October 3, 2016, such that all new businesses that open after October 3, 2016, will be required to satisfy the same requirements provided for in this rule. Accordingly, this rule would ensure that existing business established before October 3, 2016, will all, within the following five years, meet the same standards that new businesses will be required to meet. A requirement that every licensed business eventually meet these specific ventilation standards, regardless of when such businesses started operation, would allow all workers and patrons to benefit from the improved ventilation standards that will result in a reduction in offensive chemical vapors, fumes, dust, and other air contaminants.
    2. Categories and numbers affected:
    There are approximately 34,000 licensees which would potentially be subject to this rulemaking. That number should be reduced by the number of licensees who do not offer nail specialty services and by the number of businesses who have already upgraded their ventilation systems.
    3. Regions of adverse impact:
    The proposed rulemaking will not have any disproportionate regional adverse impact on jobs or employment opportunities.
    4. Minimizing adverse impact:
    The Department did not identify any alternatives which would achieve the results of the proposed rule and at the same time be less restrictive and less burdensome in terms of compliance. The Department has consulted with Department of Labor, Department of Health, as well as several advocacy groups and finds this rule is necessary for the wellbeing of those who engage in the practice of nail specialty. In addition, during the initial publication of this proposed rule, the Department received multiple comments which supported this rulemaking as a necessary measure to protect the wellbeing of those who work and patron nail salons.
    Assessment of Public Comment
    The Department of State (the “Department”) received several comments following publication of the proposed rule which was published in the June 3, 2015 Register.
    Summary and analysis of issues raised and significant alternatives suggested by comments, reasons why any significant alternatives were not incorporated into the rule, and description of changes made in the rule as a result of such comments are described below:
    COMMENT 1:
    Consideration should be given to requiring that certain chemicals be banned from use in salons.
    RESPONSE 1:
    The Department finds that additional studies are necessary before considering such a proposal. In addition, as noted by one of the commentators to the original rule, banning chemicals may only lead to replacement by other more dangerous chemicals and imposing stricter ventilation standards is believed to be an effective measure to reduce exposure to harmful/offensive chemicals. Accordingly, this suggestion has not been incorporated into the revised rulemaking.
    COMMENT 2:
    The rule should: “[i]mplement a training and education program where employers and workers receive information on the importance of choosing safer products, thereby reducing exposures through eliminating hazards at the source.”
    RESPONSE 2:
    The Department supports increasing awareness among the regulated community, however as indicated in Response 1, attempting to reduce exposures by eliminating known hazards (through mandatory education or other means) may have unintended collateral consequences and may not be as effective in reducing harmful exposure as imposing stricter ventilation standards. In addition, mandating training through regulation may not allow enough flexibility for the Department to address future products and is therefore not advisable to incorporate into a specific rule.
    COMMENT 3:
    The rule should: “[r]equire a specific health and safety curriculum for licensed nail salon owners and technicians that includes a focus on the use of safer products and practices.”
    RESPONSE 3:
    The Department, in conjunction with the State Appearance Enhancement Advisory Board and the New York State Education Department, already has regulations in place focusing on health and safety. Specifically, under current regulations those practicing nail specialty are required to take a total of 250 hours of training with at least 38 hours devoted to health and safety related subject matters. Cosmetologists who may also practice nail specialty are required to take a total of 1000 hours of training with at least 26 hours devoted to health and safety, and 40 hours on nail care procedures. The Department is also developing similar curriculum for the new created class of Nail Trainees. See also Response 2.
    COMMENT 4:
    The rule should: “[r]equire industry to formulate nail salon products that contain less toxic and volatile chemicals, particularly organic solvents, and include ingredients on professional product labels.”
    RESPONSE 4:
    See Response 1.
    COMMENT 5:
    The rule should: “be clarified to ensure that dusts created when removing nails as well as chemical applications are targets for source capture systems.”
    RESPONSE 5:
    The Department agrees and has amended the proposed rule to provide, in part, that the ventilation standards shall be required to be in operation whenever the salon is in use and occupied by any person. In addition, the revised rule provides that the required system must capture: “all chemical vapors and fumes, dust, and other air contaminants and odors generated by or resulting from nail specialty services at their source.”
    COMMENT 6:
    The Department should: “[c]onduct an in-depth study of ventilation needs and approaches for healthier nail salons” to ensure that the proposed regulation is effective in improving air quality in salons.
    RESPONSE 6:
    Prior to publication of the original rule and the current revised proposed rulemaking, the Division of Licensing Services consulted with the Division of Building Standards and Codes, the Department of Labor and the Department of Health and believes that this rule is effective and will improve the air quality of salons. Further, based on available information as well as practices in other jurisdictions, the Department finds that the revised proposed rulemaking will have a significant impact on improving air quality in salons. Finally, the Department notes that these standards have recently been incorporated into the New York State Mechanical Code and therefore finds these standards will be effective in improving air quality.
    COMMENT 7:
    The Department should: “[i]mplement programs to ensure proper installation and maintenance of ventilation equipment and systems.”
    RESPONSE 7:
    The Department agrees that proper installation and maintenance is critical to improving air quality. To help ensure that the system requirements set forth by this rulemaking are satisfied, businesses subject to the rule will be required to maintain appropriate certifications indicating compliance.
    COMMENT 8:
    The Department should allow for: “a grace period of time for salon owners to obtain and install systems.”
    RESPONSE 8:
    The Department agrees and has amended the proposed rule to provide a reasonable period of time for owners to comply.
    COMMENT 9:
    The Department should: “[c]reate a purchasing pool for equipment and systems for salon owners to access to reduce costs.”
    RESPONSE 9:
    As part of the economic and feasibility analysis already conducted by the Department, the Department believes this is neither necessary nor appropriate to incorporate into a specific amendment to the rule text. The Department is however exploring funding options for small business owners, should that be necessary, with the Department of Labor.
    COMMENT 10:
    The Department should work with licensees and building owners to provide educational information regarding how to implement the new ventilation standards being imposed by this regulation.
    RESPONSE 10:
    The Department agrees and will continue to work with the Nail Salon Task force and other advocacy/interest groups in explaining how to comply with this regulation.
    COMMENT 11:
    The fume capture nozzle should be placed max. of 6" above the work area, and at an angle of 45°.
    RESPONSE 11:
    In developing this rule, the Division of Licensing Services consulted with the Division of Building Standards and Codes, the Department of Labor and the Department of Health and believes that this rule is effective and will improve the air quality of salons. At the proposed distance, it is anticipated that the capture system will provide a sufficient exhaust rate to remove contaminants at the rate specified by the revised rule. It is noted that the current proposal is based, in part, on the 2015 International Mechanical Code, which has been incorporated into the New York Mechanical Code. These standards provide: “Manicure and pedicure stations shall be provided with an exhaust system in accordance with Table 403.3.1.1, Note h. Manicure tables and pedicure stations not provided with factory-installed exhaust inlets shall be provided with exhaust inlets located not more than 12 inches (305 mm) horizontally and vertically from the point of chemical application.” 2015 ICC § 502.20. Absent a specific scientific or authoritative finding to the contrary that the current proposal is not sufficient, the Department finds that further changes to this rule are not warranted.
    COMMENT 12:
    The ventilation system should contain a filtration system with automatic alarm signal to alert the user to change filter.
    RESPONSE 12:
    The Department finds that this specific requirement is not necessary. It is expected that owners will maintain their equipment in good working order and that contaminates will be processed pursuant to the standards set forth in this rulemaking. Provided that the system produces sufficient airflow according to this rule, an alarm may not provide an additional benefit to persons within a salon.
    COMMENT 13:
    The ventilation system required by this proposal should: (a) be vented to the outside, if practical, provided it is first filtered by a high efficiency particle filter, such as a HEPA type filter to remove the nail dust and other particles, as well as an activated carbon filter to remove the gaseous fumes; or (b) recirculated into the salon, provided a filtration system to filter the dust and other particles followed by an activated carbon filter with a min of 0.1 sec treatment time or dwell time.
    RESPONSE 13:
    The revised proposal now includes that the exhaust system shall exhaust “from the nail salon … in a manner that assures that no part of such exhaust air shall be recirculated into the nail salon or into any other space in the building, or transferred to any other space in the building.” The revised rule further provides that: “each exhaust discharge [be] located at a point where it will not cause a nuisance to others and where the exhausted air (including but not limited to the exhausted chemical vapors and fumes, dust, and other air contaminants and odors) cannot be readily drawn in by the outdoor air intake components of the ventilation system”. Additionally, the revised rule requires that all exhaust adhere to applicable codes, including environmental. As such, to the extent any contaminants are being exhausted outdoors, such exhaust must be within established air quality standards. Accordingly, the concerns raised by this comment are adequately addressed by the revised rule.
    COMMENT 14:
    The original proposal could be interpreted as 50 cfm per system and not per work station. If this were total system ventilation rate, the ventilation system would be ineffective if there were 2 or more work stations. Therefore specific wording should clearly state the minimum flow rate as 50 cfm for each vent opening.
    RESPONSE 14:
    The revised proposal requires that the system: “has the capacity to exhaust from the nail salon at a rate of not less than the greater of (I) 0.625 cubic feet per minute for each square foot of floor space in the nail salon or (II) 50 cubic feet per minute for each nail station in the nail salon.” The Department believes that this change clarifies the appropriate standards for both the salon as well as each nail station.
    COMMENT 15:
    To help avoid public controversy, venting to the outside would need to explicitly comply with federal, state and city environmental standards for industrial emissions. The exhaust would need to be filtered with both organic vapor filters and particulate filters to ensure compliance with environmental standards before being released outdoors. Since the filters become saturated and ineffective with weeks or months of use, some means of determining when the filter is saturated and enforcing the replacement of the filters would need to be put in the regulation.
    RESPONSE 15:
    The revised rule now provides, in part, that nothing in this rule shall affect any “standard or requirement that may be imposed by the State Uniform Fire Prevention and Building Code, New York City Construction Code or other building code applicable to the building in which appearance enhancement activities are performed, or by the State Sanitary Code, State Industrial Code, or any other law or regulation applicable to such activities or to the building in which activities are performed, or any applicable environmental protection law or regulation.” Accordingly, any outside exhaust must comply with applicable air quality standards, which may require the use of appropriate filters.
    COMMENT 16:
    Since respirators are not an effective exposure control method for organic vapor toxicants in this type of work setting, we recommend that the following statement be added to ensure that respirators are not used as a substitute for exhaust ventilation, “The required exhaust ventilation shall be installed and used regardless of the use of respirators.”
    RESPONSE 16:
    The Department believes that this is not necessary as the revised text provides that the system must be in operation whenever the salon is occupied by one or more persons.
    COMMENT 17:
    The rule should prohibit recirculation of exhaust air from nail salons back into the salon or into other spaces in the building.
    RESPONSE 17:
    See Response 13.

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