DOS-02-08-00001-A Installation of Pool Alarms in Residential and Commercial Swimming Pools  

  • 7/16/08 N.Y. St. Reg. DOS-02-08-00001-A
    NEW YORK STATE REGISTER
    VOLUME XXX, ISSUE 29
    July 16, 2008
    RULE MAKING ACTIVITIES
    DEPARTMENT OF STATE
    NOTICE OF ADOPTION
     
    I.D No. DOS-02-08-00001-A
    Filing No. 630
    Filing Date. Jun. 27, 2008
    Effective Date. Jul. 16, 2008
    Installation of Pool Alarms in Residential and Commercial Swimming Pools
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
    Action taken:
    Addition of Part 1228 to Title 19 NYCRR.
    Statutory authority:
    Executive Law, sections 377 and 378
    Subject:
    Installation of pool alarms in residential and commercial swimming pools.
    Purpose:
    To implement Executive Law section 378(14)(b)–(c).
    Text of final rule:
    Title 19 NYCRR is amended by adding a new Part 1228 to read as follows:
    Part 1228. Additional Uniform Code Provisions.
    Section 1228.1. Additional Uniform Code Provisions.
    The provisions set forth in this Part 1228 are part of the New York State Fire Prevention and Building Code (the Uniform Code). The provisions set forth in this Part 1228 are in addition to, and not in limitation of, the provisions set forth in Parts 1219, 1220, 1221, 1222, 1223, 1224, 1225, 1226, and 1227 of this Title and in the publications referred to in Parts 1220, 1221, 1222, 1223, 1224, 1225, 1226, and 1227 of this Title.
    Section 1228.2. Swimming pool alarms.
    (a) Purpose. This section is intended to implement the provisions of Executive Law section 378(14)(b), as added by Chapter 450 of the Laws of 2006, and Executive Law section 378(14)(c), as added by Chapter 75 of the Laws of 2007.
    (b) Definitions. For the purposes of this section, the following words and terms shall have the following meanings:
    (1) The word approved means approved by the code enforcement official responsible for enforcement and administration of the Uniform Code as complying with and satisfying the purposes of this section.
    (2) The term commercial swimming pool means any swimming pool (as defined in paragraph (4) of this subdivision) that is not a residential swimming pool (as defined in paragraph (3) of this subdivision).
    (3) The term residential swimming pool means a swimming pool (as defined in paragraph (4) of this subdivision) which is situated on the premises of a detached one- or two-family dwelling not more than three stories in height with separate means of egress; a multiple single-family dwelling (townhouse) not more than three stories in height with separate means of egress; a one-family dwelling converted to a bed and breakfast; a community residence for 14 or fewer mentally disabled persons, operated by or subject to licensure by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities; a one-or two-family dwelling operated for the purpose of providing care to more than two but not more than eight hospice patients, created pursuant to Article 40 of the Public Health Law, and defined as a hospice residence in section 4002 of said Law; a manufactured home; a mobile home; or a factory manufactured dwelling unit.
    (4) The term swimming pool means any structure, basin, chamber or tank which is intended for swimming, diving, recreational bathing or wading and which contains, is designed to contain, or is capable of containing water more 24 inches (610 mm) deep at any point. This includes in-ground, above-ground and on-ground pools; indoor pools; hot tubs; spas; and fixed-in-place wading pools.
    (5) The term substantial damage means damage of any origin sustained by a swimming pool whereby the cost of restoring the swimming pool to its before damaged condition would equal or exceed 50 percent of the market value of the swimming pool before the damage occurred.
    (6) The term substantial modification means any repair reconstruction, rehabilitation, addition, or improvement of a swimming pool, the cost of which equals or exceeds 50 percent of the market value of the swimming pool before the repair, rehabilitation, addition, or improvement is started. If a swimming pool has sustained substantial damage, any repairs are considered to be a substantial modification regardless of the actual repair work performed.
    (c) Pool alarms. Except as otherwise provided in subdivision (e) of this section, each residential swimming pool installed, constructed or substantially modified after December 14, 2006 and each commercial swimming pool installed, constructed or substantially modified after December 14, 2006 shall be equipped with an approved pool alarm which:
    (1) is capable of detecting a child entering the water and giving an audible alarm when it detects a child entering the water;
    (2) is audible poolside and at another location on the premises where the swimming pool is located;
    (3) is installed, used and maintained in accordance with the manufacturer s instructions;
    (4) is classified by Underwriters Laboratory, Inc. (or other approved independent testing laboratory) to:
    (i) reference standard ASTM F2208, entitled Standard Specification for Pool Alarms, as adopted in 2002 and editorially corrected in June 2005, published by ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428, or
    (ii) reference standard ASTM F2208, entitled Standard Specification for Pool Alarms, as adopted in 2007, published by ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428; and
    (5) is not an alarm device which is located on person(s) or which is dependent on device(s) located on person(s) for its proper operation.
    (d) Multiple pool alarms. A pool alarm installed pursuant to subdivision (c) of this section must be capable of detecting entry into the water at any point on the surface of the swimming pool. If necessary to provide detection capability at every point on the surface of the swimming pool, more than one pool alarm shall be installed.
    (e) Exemptions.
    (1) A hot tub or spa equipped with a safety cover classified by Underwriters Laboratory, Inc. (or other approved independent testing laboratory) to reference standard ASTM F1346 (2003), entitled Standard Performance Specification for Safety Covers and Labeling Requirements for All Covers for Swimming Pools, Spas and Hot Tubs, published by ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428, shall be exempt from the requirements of subdivisions (c) and (d) of this section.
    (2) Any swimming pool (other than a hot tub or spa) equipped with an automatic power safety cover classified by Underwriters Laboratory, Inc. (or other approved independent testing laboratory) to reference standard ASTM F1346 (2003), entitled Standard Performance Specification for Safety Covers and Labeling Requirements for All Covers for Swimming Pools, Spas and Hot Tubs, published by ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428, shall be exempt from the requirements of subdivisions (c) and (d) of this section.
    Section 1228.3. Carbon monoxide alarms.
    Section 1228.3. Carbon monoxide alarms.
    Former section 1228.3 was repealed by its own terms on January 1, 2008. The provisions relating to carbon monoxide alarms contained in Parts 1220 to 1227, and in the publications incorporated by reference in Parts 1220 to 1227, are effective on and after January 1, 2008.
    Final rule as compared with last published rule:
    Nonsubstantive changes were made in sections 1228.1, 1228.2(a) and 1228.3.
    Text of rule and any required statements and analyses may be obtained from:
    Joseph Ball, Department of State, 99 Washington Ave., Albany, NY 12231-0001, (518) 474-6740, e-mail: joseph.ball@dos.state.ny.us
    Revised Regulatory Impact Statement
    1. STATUTORY AUTHORITY.
    Subdivision 1 of Executive Law section 377 authorizes the State Fire Prevention and Building Code Council to periodically amend the provisions of the New York State Uniform Fire Prevention and Building Code (“Uniform Code”).
    Subdivision 1 of Executive Law section 378 directs that the Uniform Code shall address standards for safety and sanitary conditions.
    Paragraph (b) of subdivision (14) of Executive Law section 378 directs that the Uniform Code shall provide that residential and commercial swimming pools constructed or substantially modified after December 14, 2006 shall be equipped with an acceptable pool alarm capable of detecting a child entering the water and of giving an audible alarm. This rule making adds provisions that require the installation of pool alarms.
    Paragraph (c) of subdivision (14) of Executive Law section 378 provides that hot tubs and spas equipped with safety covers and other pools equipped with automatic power safety covers shall not be required to be equipped with pool alarms. This rule provides for this exception.
    NOTE: This rule was originally proposed by Notice of Emergency Adoption and Proposed Rule Making filed on December 19, 2007, and published in the State Register on January 9, 2008. Since the date of filing of that Notice, (1) a separate rule making which amended the State Uniform Fire Prevention and Building Code (the Uniform Code) in its entirety became effective, and (2) provisions in this proposed rule making relating to carbon monoxide alarms expired by their own terms, and were replaced by corresponding provisions in the separate rule making which amended the Uniform Code in its entirety. As a result, the following non-substantial changes were made to this proposed rule making: (1) transitional provisions which related to the period that expired when the separate rule making that amended the Uniform Code in its entirety were removed from this proposed rule making, because the transition period had expired and the transitional provisions were no longer necessary, and (2) the provisions relating to carbon monoxide alarms were removed from this proposed rule making, because they had expired by their own terms and had been replace by the corresponding provisions in the separate rule making that amended the Uniform Code in its entirety.
    2. LEGISLATIVE OBJECTIVES.
    The memorandum accompanying the bill which added paragraph (b) to subdivision (14) of Executive Law section 378 included the following justification:
    “According to the National Center for Injury and Control (NCIPC), drowning is the second leading cause of unintentional injury-related deaths in children between the ages of one and fourteen nation wide, and the third leading cause of injury-related deaths of children in New York. NCIPC data also shows [sic] that twenty-six infants and children under fourteen drowned in New York State, in 2002 alone. Local laws often require barriers for residential pools, but technological advances have produced several different types of pool alarms designed to sound a warning if a child falls into the water. When used in conjunction with access barriers, these alarms provide greater protection against accidental pool drownings.”
    The Legislative objective sought to be achieved by pool alarm provisions added by this rule is a reduction in the number of accidental drownings in swimming pools in this State.
    3. NEEDS AND BENEFITS.
    This rule making amends the Uniform Code by adding new provisions that require residential and commercial swimming pools installed, constructed or substantially modified after December 14, 2006 be equipped with approved pool alarms. By requiring the use of a device that provides rapid and automatic detection of an unintentional, unsupervised or accidental entry of a child into a pool, this rule should provide the benefit intended by the Legislature: a reduction in the number of accidental drownings. This rule provides that the required pool alarms must be capable of detecting a child entering the water; must be capable of giving an audible alarm; must be audible poolside and at another location on the premises where the swimming pool is located; must be installed, used and maintained in accordance with the manufacturer's instructions; and must be classified by Underwriter's Laboratory, Inc. (or other approved independent testing laboratory) to reference standard ASTM F2208, entitled “Standard Specification for Pool Alarms.”
    A hot tub or spa that is equipped with a safety cover that complies with ASTM F1346 (2003), entitled “Standard Performance Specification for Safety Covers and Labeling Requirements for All Covers for Swimming Pools, Spas and Hot Tubs,” published by ASTM International, will not be required to be equipped with a pool alarm. A swimming pool (other than a hot tub or spa) equipped with an automatic power safety cover that complies with ASTM F1346 will not be required to be equipped with a pool alarm. Section 1.1 of ASTM F1346 (2003) provides that “This specification establishes requirements for safety covers for swimming pools, spas, hot tubs, and wading pools (hereinafter referred to as pools, unless otherwise specified). When correctly installed and used in accordance with the manufacturer's instructions, this specification is intended to reduce the risk of drowning by inhibiting the access of children under five years of age to the water.” Therefore, these exceptions to the pool alarm requirement, which reflect the provisions of new paragraph (c) of Executive Law section 378(14), allow, in the stated applications, the use of a cover designed to inhibit access to the water in lieu of an alarm designed to detect actual entry into the water.
    4. COSTS.
    The initial capital costs of complying with the pool alarm provisions added by this rule will include the cost of purchasing and installing the pool alarm. The cost of a typical surface wave sensor or subsurface disturbance sensor pool alarm suitable for most swimming pools (i.e., for regularly shaped pools up to 16′ × 32′) is estimated to be $150 to $200. Larger pools or irregularly shaped pools may require more than one such alarm. In the case of a large, complex shaped pool, a more sophisticated system may be required. A member of a hospitality and tourism association has reported that it cost $4,000 to install a pool alarm in a 20′ × 40′ rectangular pool. It is estimated that a self-setting pool alarm system using invisible sonar technology and capable of protecting a large, complex shaped swimming pool would cost between $5,000 and $8,000. A pool alarm system for an Olympic-size pool may cost between $35,000 and $40,000. The annual costs of complying with the rule will include the costs of operating and maintaining the alarm, which are anticipated to be modest.
    In the case of a hot tub or spa, the initial capital costs of complying with the rule will include the cost of purchasing and installing the safety cover. The Department of State estimates that the cost of a safety cover for a typical hot tub or spa is approximately $450. The annual costs of complying with the rule will include the costs of operating and maintaining the safety cover, which are anticipated to be modest.
    While this rule provides that a pool (other than a hot tub or spa) equipped with an automatic power safety cover need not be equipped with a pool alarm, this rule does not require the installation of an automatic power safety cover: the owner of a pool (other than a hot tub or spa) may comply with this rule by installing either a pool alarm or an automatic power safety cover. There are no costs to the Department of State for the implementation of this rule. The Department is not required to develop any additional regulations or develop any programs to implement this rule.
    There are no costs to the State of New York or to local governments for the implementation of this rule, except as follows:
    First, if the State or any local government constructs, installs or substantially modifies a swimming pool, the State of such local government, as the case may be, will be required to install a pool alarm.
    Second, since this rule adds provisions to the Uniform Code, the authorities responsible for administering and enforcing the Uniform Code will have additional items to verify in the process of reviewing building permit applications, conducting construction inspections, and (where applicable) conducting periodic fire safety and property maintenance inspections. However, the need to verify the installation of required pool alarms will not have a significant impact on the permitting process or inspection process.
    5. PAPERWORK.
    This rule will not impose any new reporting requirements. No new forms or other paperwork will be required as a result of this rule.
    6. LOCAL GOVERNMENT MANDATES.
    This rule will not impose any new program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district, except as follows:
    First, any county, city, town, village, school district, fire district or other special district that owns or operates a swimming pool that is installed, constructed or substantially modified after December 14, 2006 will be required to comply with the pool alarm provisions added by this rule.
    Second, cities, towns and villages (and sometimes counties) are charged by Executive Law section 381 with the responsibility of administering and enforcing the Uniform Code; since this rule adds provisions to the Uniform Code, the aforementioned local governments will be responsible for administering and enforcing the requirements of the rule along with all other provisions of the Uniform Code.
    The rule does not otherwise impose any new program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district.
    7. DUPLICATION.
    The rule does not duplicate any existing Federal or State requirement.
    8. ALTERNATIVES.
    New paragraph (b) of subdivision (14) of section 378 of the Executive Law requires that the Uniform Code provide that any residential or commercial swimming pool constructed or substantially modified after December 14, 2006 (the effective date of said paragraph) shall be equipped with an acceptable pool alarm capable of detecting a child entering the water and of giving an audible alarm.
    While the use of personal immersion alarms may provide supplemental protection in certain situations, such devices would not protect a child who was not wearing the device when he or she entered the water. Therefore, this rule provides that an alarm device which is located on person(s) or which is dependent on device(s) located on person(s) for its proper operation will not satisfy the requirements of the new provisions.
    No other significant alternatives to the pool alarm provisions to be added by this rule were considered, since it appears that no such alternative would satisfy the specific directive of the Legislature as set forth in Executive Law section 378(14)(b)–(c).
    9. FEDERAL STANDARDS.
    There are no standards of the Federal Government which address the subject matter of the rule.
    10. COMPLIANCE SCHEDULE.
    Regulated persons will be able to achieve compliance with the pool alarm provisions added by this rule in the normal course of operations, either as part of the installation or construction of a new swimming pool or the substantial modification of an existing swimming pool.
    Revised Regulatory Flexibility Analysis
    1. EFFECT OF RULE:
    This rule was originally proposed by Notice of Emergency Adoption and Proposed Rule Making filed on December 19, 2007, and published in the State Register on January 9, 2008. Since the date of filing of that Notice, (1) a separate rule making which amended the State Uniform Fire Prevention and Building Code (the Uniform Code) in its entirety became effective, and (2) provisions in this proposed rule making relating to carbon monoxide alarms expired by their own terms, and were replaced by corresponding provisions in the separate rule making which amended the Uniform Code in its entirety. As a result, the following non-substantial changes were made to this proposed rule making: (1) transitional provisions which related to the period that expired when the separate rule making that amended the Uniform Code in its entirety were removed from this proposed rule making, because the transition period had expired and the transitional provisions were no longer necessary, and (2) the provisions relating to carbon monoxide alarms were removed from this proposed rule making, because they had expired by their own terms and had been replace by the corresponding provisions in the separate rule making that amended the Uniform Code in its entirety.
    The new section 1228.2 which is added to Title 19 NYCRR by this rule will apply to any small business and any local government that owns or operates a swimming pool that is installed, constructed or substantially modified after December 14, 2006. The Department of State has not been able to estimate the number of small businesses and local governments that own or operate swimming pools, but it is believed that a majority of the non-residential swimming pools in this State are owned or operated by small businesses or local governments. Small businesses that install construct or modify swimming pools and small businesses that sell swimming pool alarms will also be affected by this rule.
    Since this rule adds provisions to the Uniform Fire Prevention and Building Code (the “Uniform Code”), each local government that is responsible for administering and enforcing the Uniform Code will be affected by this rule. The Department of State estimate that approximately 1,604 local governments (mostly cities, towns and villages, as well as several counties) are responsible for administering and enforcing the Uniform Code.
    2. COMPLIANCE REQUIREMENTS:
    No reporting or recordkeeping requirements are imposed upon regulated parties by the rule. Small businesses and local governments subject to the rule will be required to install, use and maintain swimming pool alarms and carbon monoxide alarms in accordance with the rule's provisions. In cases where the installation, construction or substantial modification of a swimming pool involves the issuance of a building permit, the local government responsible for administering and enforcing the Uniform Code will be required to consider the pool alarm requirements of this rule when reviewing plans and inspecting work.
    3. PROFESSIONAL SERVICES:
    No professional services will be required to comply with the rule.
    4. COMPLIANCE COSTS:
    The initial capital costs of complying with the rule will include the cost of purchasing and installing the pool alarm. The cost of a typical surface wave sensor or subsurface disturbance sensor pool alarm suitable for most swimming pools (i.e., for regularly shaped pools up to 16′ × 32′) is estimated to be $150 to $200.
    Larger pools or irregularly shaped pools may require more than one such alarm. In the case of large, complex shaped pools, a more sophisticated system may be required. A member of a hospitality and tourism association has reported that it cost $4,000 to install a pool alarm in a 20′ × 40′ rectangular pool. It is estimated that a self-setting pool alarm system using invisible sonar technology and capable of protecting a large, complex shaped swimming pool would cost between $5,000 and $8,000. A pool alarm system for an Olympic-size pool may cost between $35,000 and $40,000. The annual costs of complying with the rule will include the costs of operating and maintaining the alarm, which are anticipated to be modest.
    In the case of a hot tub or spa, the initial capital costs of complying with the rule will include the cost of purchasing and installing the safety cover. The Department of State estimates the cost of a safety cover for a typical hot tub or spa is approximately $450. The annual costs of complying with the rule will include the costs of maintaining the safety cover, which are anticipated to be modest.
    Any variations in the initial capital cost of complying with the rule or in the annual cost of complying with the rule are likely to be attributable to variations in the size and configuration of the swimming pools to be protected, and not to the type or size of the small businesses and local governments that own the pools. To the extent that larger businesses and larger local governments may tend to own larger swimming pools, or more than one swimming pool, the total costs of compliance would be higher for larger entities and larger local governments.
    5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
    It is economically and technologically feasible for regulated parties to comply with the rule. Except in the case of very large or complex shaped swimming pools, which may require a more sophisticated alarm system, this rule imposes no substantial capital expenditures. No new technology need be developed for compliance with this rule.
    6. MINIMIZING ADVERSE IMPACT:
    The rule minimizes any potential adverse economic impact on regulated parties (including small businesses or local governments) by allowing several types of pool alarms on the market to be used. In the case of hot tubs and spas that fall within the Uniform Code's definition of “swimming pool,” the rule minimizes any potential adverse impact by providing that a hot tub or spa that is equipped with a safety cover need not be equipped with a pool alarm. Further, the rule provides that other swimming pools equipped with automatic power safety covers need not be equipped with a pool alarm.
    The applicable statute (Executive Law section 378(14)(b)–(c)) requires that this rule apply to all swimming pools constructed or substantially modified after December 14, 2006 (except for hot tubs and spas equipped with safety covers and other pools equipped with automatic power safety covers). The statute does not authorize the establishment of differing compliance requirements or timetables with respect to swimming pools owned or operated by small businesses or local governments. Hot tubs and spas equipped with safety covers and other pools equipped with automatic power safety covers are exempt from this rule, as required by Executive Law section 378(14)(c); providing other exemptions from coverage by the rule was not considered because such exemptions are not authorized by Executive Law section 378(14)(b)–(c) and would endanger public safety.
    7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:
    The Department of State notified interested parties throughout the State of the adoption of the previous emergency rules that were similar to this rule by means of notices posted on the Department's website and notices published in Building New York, a monthly electronic news bulletin covering topics related to the Uniform Code and the construction industry which is prepared by the Department of State and which is currently distributed to approximately 5,500 subscribers, including local governments, design professionals and others involved in all aspects of the construction industry. The Department of State will publish a notice of the adoption of this rule in a future edition of Building New York. In addition, the Department of State will post a notice of the adoption of this rule, and the full text of this rule, on the Department's website.
    Revised Rural Area Flexibility Analysis
    1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS.
    This rule was originally proposed by Notice of Emergency Adoption and Proposed Rule Making filed on December 19, 2007, and published in the State Register on January 9, 2008. Since the date of filing of that Notice, (1) a separate rule making which amended the State Uniform Fire Prevention and Building Code (the Uniform Code) in its entirety became effective, and (2) provisions in this proposed rule making relating to carbon monoxide alarms expired by their own terms, and were replaced by corresponding provisions in the separate rule making which amended the Uniform Code in its entirety. As a result, the following non-substantial changes were made to this proposed rule making: (1) transitional provisions which related to the period that expired when the separate rule making that amended the Uniform Code in its entirety were removed from this proposed rule making, because the transition period had expired and the transitional provisions were no longer necessary, and (2) the provisions relating to carbon monoxide alarms were removed from this proposed rule making, because they had expired by their own terms and had been replace by the corresponding provisions in the separate rule making that amended the Uniform Code in its entirety.
    This rule implements the provisions of paragraphs (b) and (c) of subdivision (14) of section 378 of the Executive Law, as added by Chapter 450 of the Laws of 2006 and Chapter 75 of the Laws of 2007, respectively, by adding provisions to the Uniform Fire Prevention and Building Code (“Uniform Code”) requiring that a pool alarm be installed in any residential or commercial swimming pool (other than a hot tub or spa equipped with a safety cover or other pool equipped with an automatic power safety cover) that is installed, constructed or substantially modified after December 14, 2006. Since the Uniform Code applies in all areas of the State (other than New York City), this rule will apply in all rural areas of the State.
    2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS.
    The rule will not impose any reporting or recordkeeping requirements. The rule will impose the following compliance requirements:
    All residential and all commercial swimming pools that are installed, constructed or substantially modified after December 14, 2006 will be required to be equipped with an acceptable pool alarm that is capable of detecting a child entering the water and of giving an audible alarm, and such alarms will be required to be installed, used and maintained in accordance with the manufacturer's instructions. (Hot tubs and spas equipped with safety covers and other pools equipped with automatic power safety covers will not be required to be equipped with pool alarms.) No professional services are likely to be needed in a rural area in order to comply with such requirements.
    3. COMPLIANCE COSTS.
    The initial capital costs of complying with the rule will include the cost of purchasing and installing the pool alarm. The cost of a typical surface wave sensor or subsurface disturbance sensor pool alarm suitable for most swimming pools (i.e., for regularly shaped pools up to 16′ × 32′) is estimated to be $150 to $200.
    Larger pools or irregularly shaped pools may require more than one such alarm. In the case of a large, complex shaped pool, a more sophisticated system may be required. A member of a hospitality and tourism association has reported that it cost $4,000 to install a pool alarm in a 20′ × 40′ rectangular pool. It is estimated that a self-setting pool alarm system using invisible sonar technology and capable of protecting a large, complex shaped swimming pool would cost between $5,000 and $8,000. A pool alarm system for an Olympic-size pool may cost between $35,000 and $40,000. The annual costs of complying with the rule will include the costs of operating and maintaining the alarm, which are anticipated to be modest.
    A swimming pool (other than a hot tub or spa) equipped with an automatic power safety cover will not be required to be equipped with a pool alarm. However, this rule does not require the installation of an automatic power safety cover.
    In the case of a hot tub or spa, the initial capital costs of complying with the rule will include the cost of purchasing and installing a safety cover. The Department of State estimates that the cost of a safety cover for a typical hot tub or spa is approximately $450. The annual costs of complying with the rule will include the costs of maintaining the safety cover, which are anticipated to be modest.
    Any variation in initial capital costs of complying and/or annual costs of complying with this rule for different types of public and private entities in rural areas will be attributable to the size and configuration of the swimming pools owned or operated by such entities, and not to nature or type of such entities or to the location of such entities in rural areas.
    4. MINIMIZING ADVERSE IMPACT.
    Executive Law section 378(14)(b) makes no distinction between swimming pools located in rural areas and swimming pools located in non-rural areas. However, the economic impact of this rule in rural areas will be no greater than the economic impact of this rule in non rural areas, and the ability of individuals or public or private entities located in rural areas to comply with the requirements of this rule should be no less than the ability of individuals or public or private entities located in non-rural areas. Executive Law section 378(14)(b)–(c) requires that this rule apply to all swimming pools (other than hot tubs and spas equipped with safety covers and other pools equipped with automatic power safety covers) constructed or substantially modified after the effective date of section 378(14)(b), which is December 14, 2006. The statute does not authorize the establishment of differing compliance requirements or timetables in rural areas. Providing exemptions from coverage by the rule was not considered because such exemptions are not authorized by Executive Law section 378(14)(b)–(c) and would endanger public safety.
    5. RURAL AREA PARTICIPATION.
    The Department of State notified interested parties throughout the State of the adoption of the previous emergency rules that were similar to this rule by means of notices posted on the Department's website and notices published in Building New York, a monthly electronic news bulletin covering topics related to the Uniform Code and the construction industry which is prepared by the Department of State and which is currently distributed to approximately 5,500 subscribers, including local governments, design professionals and others involved in all aspects of the construction industry. The Department of State will publish a notice of the adoption of this rule in a future edition of Building New York. In addition, the Department of State will post a notice of the adoption of this rule, and the full text of this rule, on the Department's website.
    Job Impact Statement
    The Department of State has concluded after reviewing the nature and purpose of the rule that it will not have a “substantial adverse impact on jobs and employment opportunities” (as that term is defined in section 201-a of the State Administrative Procedures Act) in New York.
    This rule was originally proposed by Notice of Emergency Adoption and Proposed Rule Making filed on December 19, 2007, and published in the State Register on January 9, 2008. Since the date of filing of that Notice, (1) a separate rule making which amended the State Uniform Fire Prevention and Building Code (the Uniform Code) in its entirety became effective, and (2) provisions in this proposed rule making relating to carbon monoxide alarms expired by their own terms, and were replaced by corresponding provisions in the separate rule making which amended the Uniform Code in its entirety. As a result, the following non-substantial changes were made to this proposed rule making: (1) transitional provisions which related to the period that expired when the separate rule making that amended the Uniform Code in its entirety were removed from this proposed rule making, because the transition period had expired and the transitional provisions were no longer necessary, and (2) the provisions relating to carbon monoxide alarms were removed from this proposed rule making, because they had expired by their own terms and had been replace by the corresponding provisions in the separate rule making that amended the Uniform Code in its entirety.
    The rule adds a new Part 1228 to Title 19 NYCRR. Part 1228 adds provisions to the Uniform Fire Prevention and Building Code (“Uniform Code”) which require that residential and commercial swimming pools installed, constructed or substantially modified after December 14, 2006 be equipped with a pool alarm that is capable of detecting a child entering the water and giving an audible alarm. The pool alarms must be installed, used and maintained in conformance with the manufacturer's instructions. These provisions are added to satisfy the requirements of paragraphs (b) and (c) of subdivision (14) of section 378 of the Executive Law.
    Pool alarms that satisfy the requirements of this rule are currently available. The cost of a typical surface wave sensor or subsurface disturbance sensor pool alarm suitable for most swimming pools (i.e., for regularly shaped pools up to 16′ × 32′) is estimated to be $150 to $200. Larger pools or irregularly shaped pools may require more than one such alarm. The cost of providing the appropriate surface wave sensor or subsurface disturbance sensor pool alarm(s) is considered to be modest, particularly when considered in relation to the cost of the typical swimming pool. It is anticipated that requiring pool alarms will have no significant adverse impact on jobs or employment opportunities in businesses that manufacture, install or construct the types of swimming pools that can be protected by such surface wave sensor or subsurface disturbance sensor pool alarm(s). It is also anticipated that requiring pool alarms may have a positive impact on employment opportunities in businesses that sell, install and service pool alarms.
    In the case of a large, complex shaped swimming pool, a more sophisticated system may be required. A member of a hospitality and tourism association has reported that it cost $4,000 to install a pool alarm in a 20′ × 40′ rectangular pool. At least one manufacturer produces a pool alarm system, using sonar technology, which is claimed to be suitable for pools of virtually any size or shape. The cost of such a system is estimated to be between $5,000 and $8,000. A sonar-based pool alarm system for an Olympic-size pool may cost between $35,000 and $40,000. In these cases, the cost of providing the appropriate pool alarm system may add between 5% and 10% to the cost of the pool to be protected. This may have some negative impact on the segment of the swimming pool industry that constructs large, complex shaped swimming pools that require the more expensive sonar pool alarm systems. However, based on information provided on the International Aquatic Foundation website (http://www.iafh2o.org/IAF_Statistics.asp), of the estimated 8,349,000 swimming pools in the United States, only 270,000, or less than 3.25%, are “commercial” swimming pools. Based on this information, it is estimated that less than 3.25% of swimming pools that will be installed, constructed or substantially modified after December 14, 2006 will be “commercial” swimming pools. It is also anticipated that many such “commercial” swimming pools will be of a size and shape that can be protected by the less expensive surface wave sensor or subsurface disturbance sensor pool alarms mentioned above and, accordingly, it is estimated that the percentage of new swimming pools that will require the more expensive sonar pool alarm systems will be much less than 3.25%. Therefore, it is anticipated that this rule will not have a substantial adverse impact on jobs and employment opportunities.
    Hot tubs and spas equipped with safety covers and other pools equipped with automatic power safety covers are exempted from the pool alarm requirement by this rule.
    Assessment of Public Comment
    The period for submission of comments regarding this proposed rule making expired on March 18, 2008. The Department of State received three written submissions, which contained a total of seven comments. A public hearing was held on February 26, 2008. The representative of one party that made a written submission appeared at the public hearing, and summarized that written submission. No other comments were received at the public hearing.
    Comment 1: “Confusion arises regarding situations for many of the pools around the state when an owner of a poll attempts to comply with the regulation as currently written. For example, in many hotels the pool is in its own room with a locked door. The door may be unlocked only by the key cards issued to guests of the hotel. These pools are often closed to guests for certain hours. Therefore, is a pool alarm required when other circumstances are such that the pool access is restricted in this way?”
    Response to Comment 1: No change was made in response to this comment. Executive Law section 378(14)(b) provides that the Uniform Code must include provisions requiring pool alarms in all residential and commercial swimming pools installed or substantially modified after December 14, 2006. The statute does not provide for exceptions for pools with restricted access. Indeed, the Legislative history indicates that the pool alarms are intended to provide a level of protection in addition to that provided by pool barriers. See, for example, the memorandum accompanying the bill which added paragraph (b) to subdivision (14) of Executive Law section 378, which included the following justification: “According to the National Center for Injury and Control (NCIPC), drowning is the second leading cause of unintentional injury-related deaths in children between the ages of one and fourteen nation wide, and the third leading cause of injury-related deaths of children in New York. NCIPC data also shows [sic] that twenty-six infants and children under fourteen drowned in New York State, in 2002 alone. Local laws often require barriers for residential pools, but technological advances have produced several different types of pool alarms designed to sound a warning if a child falls into the water. When used in conjunction with access barriers, these alarms provide greater protection against accidental pool drownings.”
    Comment 2: “The pool alarms go off when someone enters a pool. Normal use of a pool involves people entering the pool. Therefore, when people are using the pool, is the alarm meant to be turned off?”
    Response to Comment 2: No change was made in response to this comment. The rule provides that pools alarms are to be “installed, used and maintained in accordance with the manufacturer's instructions.” Manufacturer s instructions will typically indicate that the alarm is to be turned off, or switched to a “standby” mode, or otherwise set not to sound an alarm, when the pool is actually in use.
    Comment 3: “The regulations cite outside standards for the alarms. However, the average pool owner, even the sophisticated pool owner, is not necessarily fully attentive to the nuances of the standards of the organization that the State has relied upon. Code enforcement officers are versed in construction guidelines and fire codes, yet pools are a new jurisdiction for them. Pool installers are in a position to have expertise, yet may also benefit from lack of expertise in their customers. We are left with uncertainty as to the appropriate expert to rely upon in these matters.”
    Response to Comment 3: No change was made in response to this comment. The rule requires use of a pool alarm which is classified by Underwriters Laboratory, Inc. (or other approved independent testing laboratory) to reference standard ASTM F2208, entitled “Standard Specification for Pool Alarms” (either the 2002 edition or the 2007 edition). A pool owner, pool installer, or code enforcement officer is not required to know the details of the ASTM F2208 reference standard, or to test the pool alarm for compliance with ASTM F2208. A pool owner, pool installer or code enforcement officer may rely upon the certification of Underwriters Laboratory, Inc., or of any other approved independent testing laboratory, that the alarm complies with ASTM F2208.
    Comment 4: “(P)ool owners are accustomed to working with the Department of Health on the regulation of their pools. It is the Department of Health that has promulgated numerous regulations affecting swimming pools such as safety requirements and chemical regimens. Therefore, the Department of Health has developed an expertise in this area over the years. As such, it is confusing to … have a new agency regulating one aspect of pool safety.”
    Response to Comment 4: No change was made in response to this comment. Executive Law section 387(14) provides that the Uniform Code must include a number of provisions relating to swimming pools, including, but not limited to, the provisions requiring the use of pool alarms. The Uniform Code is promulgated by the State Fire Prevention and Building Code Council, and not by the Department of Health. The Department of State has taken steps to inform the public about the pool-related provisions in the Uniform Code. See, for example, the publication entitled “New York State Department of State Swimming Pool Rules and Regulations found in the Uniform Fire Prevention and Building Code” which is posted on the Department of State's website at http://www.dos.state.ny.us/code/pools.htm.
    Comment 5: Comment was received indicating that the expected costs of installing a pool alarm, as published in the Regulatory Impact Statement and other documents filed with the emergency rule makings, “have proven inaccurate for our membership.” The comment referred to the materials in the New York State Register which quote the cost of pool alarms to be an estimated $150 to $200 for “regularly shaped pools up to 16 feet by 32 feet.” The comment indicates that “(o)ne of our members in particular owns a pool that is 20 feet by 40 feet, rectangular. This pool is just 25% larger than the pool cited as having a pool alarm cost of $150 to $200. However, the pool alarm for this pool cost 2000% more than the Department's estimation; the pool alarm cost $4000. This is an increase of $100 for every single square foot a pool is larger than the Department's ‘regular size pool’, and this is when the pool is a regular rectangle. This vast increase is not one that would be predicted from review of the published materials provided with the emergency regulation in the Register … Therefore, it is of our opinion that the Department may want to consider additional research for either average pool sizes throughout the state, or of actual pool alarm costs throughout the state.”
    Response to Comment 5: No change to the rule was made in response to this comment. The Regulatory Impact Statement and other documents filed in connection with prior emergency rule makings and with this proposed rule making indicate that the estimated cost of pool alarms “for regularly shaped pools up to 16 feet by 32 feet” is $150 to $200; however, those documents also included the following information: “Larger pools or irregularly shaped pools may require more than one such alarm. In the case of a large, complex shaped pool, a more sophisticated system may be required. It is estimated that a self-setting pool alarm system using invisible sonar technology and capable of protecting a large, complex shaped swimming pool would cost between $5,000 and $8,000. A pool alarm system for an Olympic-size pool may cost between $35,000 and $40,000.” The Department of State has been advised that the pool alarm referred to in this comment uses the sonar technology, and includes a number of optional features. In addition, a review of manufacturers' and retailers' websites accessed by the Department of State on April 10, 2008 confirms that at least three manufacturers of pool alarms in the $150 to $200 price range state that their products work in pools up to 16′ × 32′, and at least one of those manufacturers states that its product works in pools up to 20′ × 40′.
    While no change to the rule is made in response to this comment, the Regulatory Impact Statement and other documents to be filed in connection with this rule making will be revised to reflect the information provided in this comment.
    Comment 6: Comment was received expressing concern with the requirement, in section 1228.2(c)(2), that the pool alarm be audible poolside and at another location on the premises where the swimming pool is located, indicating that “ … on commercial pools larger than 800 square feet, we are aware of only one alarm that meets the regulatory standard for remote audible sound capability, appearing to make this section of the regulation proprietary.”
    Response to Comment 6: No change was made in response to this comment. Based on a follow up telephone call to the party submitting this comment, it appears that only one manufacturer produces an alarm suitable for use on pools 800 square feet and larger. This was confirmed in a telephone conversation with that manufacturer. Therefore, it does not appear that there are multiple manufactures that make alarms suitable for use in the larger pools, and that only one of those manufacturers produces an alarm that is audible at a remote location; rather, it appears that the alarm produced by the one and only manufacturer that produces an alarm suitable for use in larger pools is audible poolside and at a remote location. Further, the performance standards set forth in the reference standard cited in the rule (ASTM F2208, “Standard Specification for Pool Alarms”) provide that a pool alarm must sound both at poolside and inside any adjacent residence or building of occupancy via a remote receiver. It is likely that any manufacturer that begins to produce alarms suitable for use in larger pools in the future will include a remote sounding capability, and it is unlikely that adding such capability to any new alarm model will add significantly to the price of such a model (which, as noted above, is likely to be on the order of several thousand dollars).
    Comment 7: Comment was received indicating that in the case of a commercial swimming pool, the only time a pool alarm can be used is “when the pool is NOT in operation, and usually closed.” The comment also indicated that typically, when a commercial swimming pool is closed, especially during non-business hours, there may not be anyone on the premises to hear the alarm. The party submitting this comment suggests that the requirement that the alarm be audible at another location on the premises where the swimming pool is located be limited to residential pools only.
    Response to Comment 7: No change was made in response to this comment. While it is true that an intruder may enter a pool at a time when the property where a pool is located is otherwise vacant, it is also true that an intruder could enter a pool at a time when no one else is located at or near the pool, but someone is present elsewhere on the property. Requiring the alarm to be audible poolside and at another location increases the chance that someone will hear the alarm, and is consistent with the provisions of ASTM F2208 (“Standard Specification for Pool Alarms”).

Document Information

Effective Date:
7/16/2008
Publish Date:
07/16/2008