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

6/3/15 N.Y. St. Reg. DOS-22-15-00017-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 22

June 03, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. DOS-22-15-00017-P

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 proposed 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 proposed rule:

Section 160.16 of Title 19 of the NYCRR is amended as follows:

160.16 Facilities: ancillary provisions.

In addition to any requirement of the State Uniform Code, State Sanitary Code, State Industrial Code or similar law or regulation, an owner shall provide:

(a) hot and cold running water;

(b) toilet facilities and wash basins for use by clients and employees;

(c) illumination for the safe provision of licensed services;

(d) covered containers for hair, paper and other waste material; [and]

(e) sufficient space or working area to ensure the safety and health for both the operator and client[.]; and

(f) ventilation that complies with mechanical ventilation standards for nail salons set forth in the 2010 Mechanical Code of New York State or a more restrictive local standard, if one applies. Additionally, an owner shall ensure that both manicure and pedicure stations are equipped with a source-capture system capable of exhausting not less than 50 cubic-feet-per-minute and with exhaust inlets located 12 inches horizontally and vertically from the point of chemical application. Mechanical ventilation standards at sections 401-403, pages 27-30, of the Mechanical Code of New York State (MCNYS), published August, 2010 by the International Code Council, Inc., are incorporated herein by reference. Copies of the 2010 MCNYS may be obtained from the publisher at:

International Code Council, Inc.

500 New Jersey Avenue, NW, 6th Floor

Washington, D.C. 20001.

Said incorporated sections and pages of the MCNYS may be viewed at:

New York State Department of State

99 Washington Avenue

Albany, NY 12231-0001.

(1) Subdivision (f) of this Section shall apply only to owners who permit the practice of nail specialty.

Text of 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, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

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 licensed nail specialists.

3. Needs and benefits:

The proposed rulemaking amends current requirements relating to appearance enhancement businesses which offer nail specialty services. Specifically, the rulemaking requires that all businesses subject to this rule comply with the 2010 Mechanical Code of New York State or a more restrictive local standard, if one applies. Businesses which obtained a license prior to recent applicable ventilation standards and have not been renovated since obtaining such license are not generally required to comply with more rigorous ventilation codes. This rule would require that all business make improvements to ensure minimum compliance with applicable code. Further, if such business also offers nail specialty services, this rule would require that all manicure and pedicure stations are equipped with a source-capture system capable of exhausting not less than 50 cubic-feet-per-minute and with exhaust inlets located 12 inches horizontally and vertically from the point of chemical application. The rule will afford better working conditions to practitioners whose current conditions may not be adequate. After consulting with the Departments of Health and Labor, as well as advocacy groups, this regulation is needed to help protect the safety and wellbeing of approximately 160,000 licensees who engage in the practice of nail specialty.

4. Costs:

a. Costs to regulated parties:

Any nail salon which newly adapts space for business and structures built or substantially renovated after the implementation of the 2010 Mechanical Code of New York State (Code) must meet the standards set forth therein. However, those businesses and structures which preexist such implementation date need not. It is our understanding that a substantial percentage of such entities are “grandfathered.” The majority of commercial building stock in some jurisdictions may be non-compliant. Thus, a substantial number of appearance enhancement business owners will be required to come into compliance with the ventilation requirements of the Code. Costs of compliance will differ 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 stand-alone 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 for a business located in a large, outdated commercial building. Assuming compliance with Code standards, the cost of a source capture system unit is estimated to range from $500 to $1500 per station.

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:

The rule does not impose any new paperwork requirement on licenses.

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.

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:

The rule will be effective upon publication of the Notice of Adoption in the State Register. The Department anticipates that upon publication of this Notice of Proposed Rulemaking, interested parties will be involved with the rulemaking process and will have sufficient opportunity to ensure that places of business which offer nail specialty services are in compliance with applicable code.

Regulatory Flexibility Analysis

1. Effect of rule:

The proposed rulemaking amends current requirements relating to places of business where appearance enhancement services are offered with additional requirements where such places also provide nail specialty services. Specifically, the rulemaking requires that all businesses subject to this rule comply with applicable mechanical ventilation standards. Businesses which obtained a license prior to recent applicable ventilation standards and have not been renovated since obtaining such license are not generally required to comply with more rigorous ventilation codes. This rule would require that all business make improvements to ensure that the business premises meet the ventilation standards set forth in the 2010 Mechanical Code of the State of New York. Further, if such business also offers nail specialty services, this rule would require that all manicure and pedicure stations are equipped with a source-capture system capable of exhausting not less than 50 cubic-feet-per-minute and with exhaust inlets located 12 inches horizontally and vertically from the point of chemical application.

This rule will improve the health and wellbeing of approximately 160,000 licensees who practice nail specialty.

The rule does not apply to local governments.

2. Compliance requirements:

Businesses which obtained a license pre-2010 and which have not renovated such place of business may be obligated to install new ventilation systems to code.

3. Professional services:

The Department does anticipate that businesses may have to retain design professionals which may include mechanical contractors, to ensure such business is compliant with applicable ventilation codes. In addition, if in the event such business is not compliant, the Department anticipates that engineers or contractors, may be required to bring the place of establishment into code.

4. Compliance costs:

Any nail salon which newly adapts space for business and structures built or substantially renovated after the implementation of the 2010 Mechanical Code of New York State (Code) must meet the standards set forth therein. However, those businesses and structures which preexist such implementation date need not. It is our understanding that a substantial percentage of such entities are “grandfathered.” The majority of commercial building stock in some jurisdictions may be non-compliant. Thus, a substantial number of appearance enhancement business owners will be required to come into compliance with the ventilation requirements of the Code. Costs of compliance will differ 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 stand-alone building, strip mall, enclosed shopping mall etc…). We estimate as little as $500 for a 1,000 square foot strip mall location to many thousands for a business located in a large, outdated commercial building. Assuming compliance with Code standards, the cost of a source capture system unit is estimated to range from $500 to $1500 per station.

5. Economic and technological feasibility:

Insomuch as the relevant mechanical codes and capture systems already exist the Department finds that it can be economically and technically feasible for those businesses which will be affected by this rule to comply.

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.

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 (“Task Force”) in the nail salon industry, has consulted with small business interests which may be affected by this rule. The Korean American Nail Salon Association of New York, which represents a significant number of nail salon owners, was consulted as part of the Task Force’s efforts. Although this particular proposal was not presented, the group was, generally, supportive and amenable to the changes discussed. The publication of the rule in the State Register will provide further notice of the proposed rulemaking to all interested parties. Additional comments will be received and entertained during the public comment period associated with this Notice of Proposed Rulemaking.

8. Compliance:

This rule will be effective upon adoption.

9. Cure period:

The Department is not providing for a cure period prior to enforcement of these regulations. The Department anticipates that upon Notice of Proposed Rulemaking that interested parties will be involved with the rulemaking process and will have sufficient opportunity to ensure that places of business which offer nail specialty services are in compliance with applicable code.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The 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 30,000 such businesses, many of which operate in rural areas. Licensed owners are responsible for complying with this rule. Businesses which do not comply with the applicable code will be required to come into compliance. Further, owners who permit the practice of nail services will be required to ensure that both manicure and pedicure stations are equipped with a source-capture system capable of exhausting not less than 50 cubic-feet-per-minute and with exhaust inlets located 12 inches horizontally and vertically from the point of chemical application.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

The Department does not anticipate any additional reporting or recordkeeping will be required to comply with this rule. The Department does anticipate that businesses in rural areas will have to retain code compliance specialists, to ensure such business is compliant with applicable ventilation codes. In addition, 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.

3. Costs:

Any nail salon which newly adapts space for business and structures built or substantially renovated after the implementation of the 2010 Mechanical Code of New York State (Code) must meet the standards set forth therein. However, those businesses and structures which preexist such implementation date need not. It is our understanding that a substantial percentage of such entities are “grandfathered.” The commercial building stock in some jurisdictions may range as high as 90% non-compliant. Thus, a substantial number of appearance enhancement business owners will be required to come into compliance with the ventilation requirements of the Code. Costs of compliance will differ 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 stand-alone building, strip mall, enclosed shopping mall etc…). We estimate as little as $500 for a 1,000 square foot strip mall location to many thousands for a business located in a large, outdated commercial building. Assuming compliance with Code standards, the cost of a source capture system unit is estimated to range from $500 to $1500 per station.

4. Minimizing adverse impact:

The proposed rulemaking will improve the health and wellbeing of approximately 160,000 licensees who practice nail specialty. The Department has consulted with Department of Labor, Department of Health as well as several advocacy groups, but did not identify any alternatives which would achieve the results of the proposed rules and at the same time be less restrictive and less burdensome in terms of compliance.

5. Rural area participation:

No significant comments have been received regarding the proposed rulemaking. Publication of the Notice in the State Register will provide notice of the proposed rulemaking to all interested parties, including those in rural areas. Additional comments will be received and entertained during the public comment period associated with this Notice of Proposed Rulemaking.

Job Impact Statement

1. Nature of impact:

The proposed rulemaking amends current requirements relating to places of business where appearance enhancement services are offered with additional requirements where such places also provide nail specialty services. Specifically, the rulemaking requires that all businesses subject to this rule comply with the 2010 Mechanical Code of New York State or a more restrictive local standard, if one applies. Businesses which obtained a license prior to recent applicable ventilation standards and have not been renovated since obtaining such license are not generally required to comply with more rigorous ventilation codes. This rule would require that all business make improvements to ensure minimum compliance with applicable code. Further, if such business also offers nail specialty services, this rule would require that all manicure and pedicure stations are equipped with a source-capture system capable of exhausting not less than 50 cubic-feet-per-minute and with exhaust inlets located 12 inches horizontally and vertically from the point of chemical application. The rule will afford better working conditions to practitioners whose current conditions may not be adequate.

2. Categories and numbers affected:

There are approximately 30,000 licensees which would potentially be subject to this rulemaking. That number should be reduced by the number of licensees who obtained a license after 2010 or who obtained a license pre-2010 but have since undergone a renovation which required such business to comply with the newer applicable code.

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 proposed rulemaking will improve the health and wellbeing of approximately 160,000 licensees who practice nail specialty. The Department has consulted with Department of Labor, Department of Health as well as several advocacy groups, but did not identify any alternatives which would achieve the results of the proposed rules and at the same time be less restrictive and less burdensome in terms of compliance.