PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Addition of Part 199 to Title 19 NYCRR.
Statutory authority:
General Business Law, sections 385 and 387; Executive Law, section 91
Subject:
Bedding.
Purpose:
To specify label requirements for new and used bedding and to specify sanitization requirements for used bedding.
Text of proposed rule:
A new Subchapter K is added to Chapter V of Title 19 of the NYCRR to read as follows:
Subchapter K Bedding
Part 199 Bedding
§ 199.1 Label Requirements for new and used bedding.
In addition to the requirements set forth in § 389-a and § 389-b of the General Business Law, each label for new or used bedding shall identify, as appropriate, the name of the seller of the used bedding, the name of the manufacturer of the new bedding, the name of the manufacturer of the used bedding, or the name of repairer, renovator or rebuilder of used bedding. Each label shall also indicate the method used to sanitize the used bedding.
§ 199.2 Sanitizing standards for used bedding.
Every seller of used bedding, manufacturer of used bedding and repairer, renovator or rebuilder of used bedding shall, prior to the sale or distribution of such bedding, perform at least one of the following sanitizing practices:
(1) Replacement with new materials
(a) Remove and discard the outer fabric and all soft filling materials such as the inner foam, pad and other bedding components and materials except the springs and, if a box spring, its frame; and
(b) Sanitize the springs and, if a box spring, its frame, with a detergent and bleach solution following product label directions; and
(c) Replace, with new material, the outer fabric and all soft filling materials and other bedding components except the springs and, if a box spring, its frame. Ensure springs and frame are thoroughly dry before replacing outer fabric, soft filling materials and other bedding components.
(2) Or, Sanitization, treatment and encasement
(a) Remove the outer fabric, inner foam, pad and other bedding components and materials. Inspect each item for soiling, malodor or pest infestation; and
(b) If any material or component appears soiled, malodorous or infested, sanitize with a detergent and bleach solution following the product label directions. Ensure that the material or component is thoroughly dry prior to repairing, renovating or rebuilding. If the item cannot be sanitized without causing damage, it may not be reused; and
(c) All other materials or components used in the process of manufacturing, repairing, renovating or rebuilding used bedding must be inspected for soiling, malodor or pest infestation. Soiled, malodorous or infested components may not be used unless sanitized with a detergent and bleach solution following the product label directions. Ensure that sanitized components are thoroughly dried prior to repairing, renovating or rebuilding; and
(d) Treat the article of bedding and its materials following product label directions, with a NYS registered pesticide product labeled for use on bedding or mattresses and shown to be an effective sanitization treatment to destroy pathogens and pest infestation on surfaces treated. Ensure the treated article is thoroughly dry prior to encasement; and
(e) Encase the bedding in a permanent, non-permeable covering intended to limit the migration of allergen-containing particles from the bedding. New material may be applied over the non-permeable covering. A label indicating the use of the non-permeable covering must be permanently affixed to the outer covering of the bedding. The non-permeable cover shall be of a type specifically manufactured for the intended use. Shipping bags or similar products shall not be used as the non-permeable cover.
(3) Or, Alternative method.
Use of an alternative method that has been approved by the Department of State, in consultation with the Department of Health. For an alternative method to be approved, the applicant must demonstrate to the satisfaction of the Department of State that the proposed alternative method will both sanitize the bedding and protect a consumer from pathogens, allergens and pest infestation that may be present inside bedding.
§ 199.3 Segregation of unsterilized articles of bedding or materials.
All bedding and other materials which have not been sanitized in accordance with this Part shall be separately stored and completely segregated from new or sanitized articles or materials.
Text of proposed rule and any required statements and analyses may be obtained from:
Whitney Clark, NYS Department of State, Division of Licensing Services, Alfred E Smith Office Building, 80 South Swan Street, Albany, NY 12231, (518) 473-2728, email: whitney.clark@dos.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
This action was not under consideration at the time this agency's regulatory agenda was submitted.
Regulatory Impact Statement
1. Statutory authority:
Chapters 309 of the laws of 1996 and 249 of the laws of 1999 established Article 25-A of the General Business Law to regulate the bedding industry, including used bedding. Sections 385 and 385-a of the General Business Law, authorize the Department of State, in consultation with the Department of Health, to adopt sanitizing standards for used bedding.
Section 387 of the General Business Law authorizes the Department of State to inspect for sanitization, and to seize and hold for further inspection, any bedding that the Secretary has reason to believe violates the provisions of the Article.
Finally, the Secretary is authorized, in administering and enforcing the provisions of the Article, to use the her authority in the Executive Law and in the provisions of Article 25-A. Section 388 gives the Secretary power to deny, suspend or revoke a used bedding registration for 1) violations of the article or the rules and regulations adopted; or 2) for the practice of fraud, deceit or misrepresentation; or 3) for the filing of a false statement in conjunction with the notice of registration. Section 389 makes it unlawful to sell bedding made, in whole or part, with used materials, unless it is properly labeled in accordance with section 389 and 389-a.
2. Legislative objectives:
The Legislature has directed the Department of State to adopt standards for sanitizing used bedding, require manufacturers, renovators and/or ultimately the sellers of used bedding to make sure bedding with used materials is labeled as such, and to inspect and where appropriate deny, suspend or revoke a registration to enforce the provisions of Article 25-A. Requiring the manufacturer, renovator and/or seller to make sure the consumer is aware that the bedding has used parts gives the consumer useful information, such as the seller, rebuilder/renovator, or manufacturer and the method of sanitizing used, in order to protect the consumer.
Further the public is protected from certain health risks associated with sale and use of used bedding by requiring that used bedding be sanitized in accordance with standards promulgated by the Department of State, after consultation with the Department of Health. This rule proposes standards to achieve that goal.
3. Needs and benefits:
To enforce the provisions of the bedding law, the Department of State must be able to identify the company who sells, manufactures, rebuilds or renovates used bedding. By requiring that the used bedding tag set forth the names of the seller, manufacturer, rebuilder or renovator, the Department of State will be able to identify the company responsible for sanitizing the used bedding.
According to the Department of Health, there does not appear to be a risk of acute communicable disease transmission associate with reused bedding. However, there may be a risk of illness of allergic reactions particularly among individuals with skin allergies, as well as those with asthma.
Numerous articles have been published showing that dust mites cause allergic reactions and that mattresses are a source of dust mite allergens. Plant, insect, fungal and bacterial parts can also be found in mattresses. These materials, in adequate concentrations, can act as sensitizing agents. As such they are able to produce allergic dermatitis in allergic individuals and may even cause skin irritation in non-allergic individuals. Dust mite allergen has also been associated with sensitization and asthma. Killing the organisms in the mattress does not reduce the allergen levels. However, exposure to allergens from used mattresses can be reduced by creating a barrier between the individual and the source. (See, Efficacy in Allergen Control and Air Permeability of Different Materials Used for Bed Encasement, Peroni, D.G., Ress M., Pigozzi, R., Miraglia del Guidice M., A. Bodini, and Piacentini G.L; Evaluation of Materials Used for Bedding Encasement: Effect of Pore Size in Blocking Cat and Dust Mite Allergen, Vaughan, John W, McLaughlin, Timothy E., Perzanowski, Matthew S, and Platts-Mills, Thomas A.E.; Laboratory Assessment of the Efficiency of Encasing Materials Against House Dust Mites and Their Allergens, Mahakittikun, V., Komoltri, C, Nochot, H., Angus, A.C, and Chew, F.T.).
Based on the recommendations of the Department of Health, the Department of State is proposing that used bedding be sanitized. Each method of sanitization will protect the public from certain health risks associated with the sale and use of used bedding. Each method will also insure that components of used bedding are thoroughly cleaned and that allergens and other health risks are either minimized or securely contained behind a non-permeable barrier. Other methods of sanitization may be used in conjunction with any of the approved methods.
The Department of State is also requiring that each article of used bedding contain a tag that sets forth the method of sterilization used. This will provide the public with basic health and safety information that will inform them prior to the purchase of an article of used bedding.
4. Costs:
The Department of State estimates the number of used mattresses sold in the State of New York to be approximately 200,000 per year.
The cost associated with printing the method used to sterilize the bedding and the name of the seller, manufacturer, rebuilder or renovator, as appropriate, on the tag is considered to be minimal. At the discretion of the seller, manufacturer, rebuilder or renovator the tag may also contain additional information such as the address or telephone number.
The Department of State was not able to determine the cost of the first two options which require either (a) replacement of the outer covering and soft filling materials or (b) sanitization with a detergent and bleach solution, treatment with a registered pesticide product and encasement in a permanent, non-permeable bed covering. It was determined that costs differ greatly from firm to firm depending on the condition of the bedding. However, it is noted that the costs are expected to be greater than the costs of topical applications currently used by some firms or the costs of covering used bedding without sanitizing prior to covering. Treatment with a pesticide and encasement in a non-permeable bed covering is estimated to be minimal.
The Department has determined that the labor costs associated with these two methods will be minimal. It is estimated that it will take a minimum wage employee one hour or less to complete the labor associated with either of the first two options for an estimated hourly labor cost per mattress of $6.55.
The cost for a non-permeable cover varies by manufacturer and size. Many retailers of such covers were identified. Prices varied from by vendor, material used and mattress size. For a single or twin, costs ranged from approximately $3.50 to $50 or more depending on the material, style and aesthetics, for a queen or king, $5.00 to $50 or more. Of note is that these prices, especially the high end quotes, come from retailers marketing to individual purchasers. It is anticipated that wholesale prices to manufacturers of bedding will be far lower. The cost of the most commonly used pesticide product is approximately $24 per gallon. The application per mattress is approximately 8 ounces. Accordingly, the cost per application is approximately $1.50 per mattress.
5. Local government mandates:
The proposal does not impose any mandates on local governments, school districts, fire districts or special districts.
6. Paperwork
The proposal does not impose any new paperwork requirements.
7. Duplication:
The proposal does not duplicate any other federal or State requirements.
8. Alternatives:
Prior to proposing the rule, the Department of State posted the proposed regulation on its web-site for public comment. No comments were received. Nonetheless, the Department considered several alternatives and will consider any additional alternatives that may be suggested during the formal public comment period.
The Department of State will require the tags to identify the name of the seller, manufacturer, rebuilder or renovator, as appropriate. However, the Department chose to remain flexible and will allow additional information such as telephone number and address to be printed upon the tag.
The Department of State remains flexible by offering several alternative approaches for compliance. By allowing two proposed options the industry does have alternatives. During the rule formation, the Department considered topical applications, vacuuming or steaming to eliminate allergen levels in used mattresses, but there was no supporting evidence that this alternative would be effective. One alternative considered was a topically applied agent known as Sterifab. This product is claimed to be effective in killing microorganisms. However, the application of this product does not in any way address the presence of dust mite detritus and other organic, dead matter which the Department of Health identifies as a significant allergen and health threat. The Department of State did not propose Sterifab application as an alternative because Sterifab does not alleviate the health concerns identified by the Department of Health. The Department of State has, however, proposed an option that will permit the use of Sterifab or another NYS registered pesticide product used in conjunction with a bedding cover. The use of this non-permeable cover will alleviate the health concerns identified by the Department of Health.
Recognizing that new products or technologies may become available in the future, the Department has been careful to provide a mechanism for their approval upon a showing of adequacy. Their approval could thus be expeditiously given, without needing to resort to additional rulemaking.
9. Federal standards:
There are no federal standards relating to the sanitation and sale of used bedding.
10. Compliance schedule:
Regulated parties shall comply with this rule within six months after it becomes effective.
Regulatory Flexibility Analysis
1. Effect of rule:
The Department of State estimates that there are approximately 688 sellers, manufacturers, rebuilders or renovators of used bedding sold in New York, each of whom will have to comply with the tagging and sanitization requirements of this proposal. The Department of State estimates that most of those businesses are small businesses.
This proposal will not affect local governments.
2. Compliance requirements:
Regulated parties will be required to have the name of their company on the used bedding tag.
Regulated parties will be required to sanitize used bedding by one of two proposed options or by such other method approved by the Department of State in consultation with the Department of Health.
3. Professional services:
Regulated parties will not require professional services in order to comply with this proposed rule.
4. Compliance costs:
There is no significant cost associated with printing the name of the seller, manufacturer, rebuilder or renovator, as appropriate, on the used bedding tag. A tag may contain such other information as the seller, manufacturer, rebuilder or renovator may wish to add. For example, address or telephone number.
Insofar as the costs will differ from firm to firm depending on the condition of the bedding, the Department of State was not able to determine the total cost of the first two options which require either (a) replacement of the outer covering and soft filling materials, or (b) sanitization with a detergent and bleach solution, treatment with a registered pesticide product and encasement in a permanent, non-permeable bed covering. The costs will, of course, be greater than the costs of topical applications currently used by some firms or the costs of covering used bedding without sanitizing prior to covering.
The Department has determined that the labor costs associated with these two methods will be minimal. It is estimated that it will take a minimum wage employee one hour or less to complete the labor associated with either of these options for an estimated hourly labor cost per mattress of $6.55.
The second option requires treatment with a pesticide and encasement in a non-permeable bed covering. These costs are estimated to be minimal. The cost for a non-permeable cover varies by manufacturer and size. Many retailers of such covers were identified. Prices varied from by vendor, material used and mattress size. For a single or twin, costs ranged from approximately $3.50 to $50 or more depending on the material, style and aesthetics, for a queen or king, $5.00 to $50 or more. Of note is that these prices, especially the high end quotes, come from retailers marketing to individual purchasers. It is anticipated that wholesale prices to manufacturers of bedding will be far lower. The cost of the most commonly used pesticide product is approximately $24 per gallon. The application per mattress is approximately 8 ounces. Accordingly, the cost per application is approximately $1.50 per mattress.
5. Economic and technological feasibility:
Because there is no significant cost associated with printing the name of the seller, manufacturer, rebuilder or renovator, as appropriate, on the used bedding tag, it will be economically and technically feasible for regulated parties to comply with the tagging portion of the proposal.
Because regulated parties can comply with the sanitization requirement by one of two proposed options, one of which is anticipated to be relatively inexpensive, it will be economically and technically feasible for regulated parties to comply with the sanitization portion of the proposal.
6. Minimizing adverse impact:
The proposed rule sets a uniform standard for all businesses. This proposal represents a sanitization standard having the least burden on regulated parties and, at the same time, setting the minimum standard that will protect the public health and safety as required by Article 25-A of the General Business Law. The proposed rule will have an adverse impact on those firms that do not sanitize used bedding in accordance with the proposed standards. However, the adverse impact has been minimized by proposing a sanitization standard that includes encasement in a non-permeable cover as a less costly, less burdensome alternative to disassembly, inspection and washing.
7. Small business and local government participation:
In February 1999, the Department sent a letter to 240 companies in the used bedding business asking for their comments on the Department's proposal, which at the time would require disassembly, inspection and washing. Of the comments received, some were favorable. Others objected that the proposal would too costly. Other objected that they did not have the ability to disassembly, inspect and wash. It is not believed that industry views have changed. In response to industry comments, the Department continued discussions with the Department of Health. The result of those discussions was the current proposal.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
The proposed rule will apply uniformly throughout the State. The Department of State estimates that there are approximately 688 sellers, manufacturers, rebuilders or renovators of used bedding sold in New York, some of which are located in rural areas.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
Regulated parties will be required to have the name of their company on the used bedding tag.
Regulated parties will be required to sanitize used bedding by using one of three options: (1) removal and replacement, (2) sanitization and encasement, or (3) treatment and encasement. Depending on the type of sanitization option elected, regulated parties will likely have to purchase new soft bedding materials, detergent and bleach solution, bedding-covers and/or a NYS registered pesticide product.
3. Costs:
There is no significant cost associated with printing the name of the seller, manufacturer, rebuilder or renovator, as appropriate, on the used bedding tag. A tag may contain such other information as the seller, manufacturer, rebuilder or renovator may wish to add, for example, address or telephone number.
Insofar as the costs will differ from firm to firm depending on the condition of the bedding, the Department of State was not able to determine the cost of the first two options which require either (a) replacement of the outer covering and soft filling materials, or (b) sanitization with a detergent and bleach solution and encasement in a permanent, non-permeable bed covering. The costs will, of course, be greater than the costs of topical applications currently used by some firms or the costs of covering used bedding without sanitizing prior to covering.
The cost of the third option, treatment with a pesticide and encasement in a non-permeable bed covering is estimated to be minimal. The cost for a non-permeable cover varies by manufacturer and size. Many retailers of such covers were identified. Prices varied from by vendor, material used and mattress size. For a single or twin, costs ranged from approximately $3.50 to $50 or more depending on the material, style and aesthetics, for a queen or king, $5.00 to $50 or more. Of note is that these prices, especially the high end quotes, come from retailers marketing to individual purchasers. It is anticipated that wholesale prices to manufacturers of bedding will be far lower. The cost of the most commonly used pesticide product is approximately $24 per gallon. The application per mattress is approximately 8 ounces. Accordingly, the cost per application is approximately $1.50 per mattress.
4. Minimizing adverse impact:
The proposed rule applies uniformly throughout the State and will not have any adverse impact unique to rural areas. This proposal represents a sanitization standard having the least burden on regulated parties and, at the same time, setting the minimum standard that will protect the public health and safety as required by Article 25-A of the General Business Law. The proposed rule will have an adverse impact on those firms that do not sanitize used bedding in accordance with the proposed standards. However, the adverse impact has been minimized by proposing sanitization standards that includes encasement in a non-permeable cover as a less costly, less burdensome alternative to removal and replacement of the outer fabric and soft filling materials.
5. Rural area participation:
In February 1999, the Department sent letters to 240 companies in the used bedding business asking for their comments on the Department's proposal, which at the time would require disassembly, inspection and washing. A number of those companies were located in rural areas. Of the comments received, some were favorable. Others objected that the proposal would too costly. Other objected that they did not have the ability to disassembly, inspect and wash. It is not believed that industry views have changed. In response to the comments received, the Department continued discussions with the Department of Health. The result of those discussions was the proposal to sanitize by one of the three proposed options, two of which include the less costly alternative of encasement in a non-permeable cover with treatment by either a detergent and bleach solution or a NYS registered pesticide product.
Job Impact Statement
The Department of State does not anticipate that the proposed rule will have a significant impact on jobs and employment opportunities for manufacturers and sellers of used bedding because companies will have the option of using inexpensive sanitization methods including the use of a bedding cover. The proposal may, in fact, create job opportunities in other industries by creating a market for the increased production of bedding covers and other sanitization methods permitted by the proposal.
In developing the proposal, the Department of State sought to balance the need for sanitization methods with the possible adverse impact of harming existing jobs for those licensees regulated under Article 25-A of the General Business Law. The Department of State has provided options for properly sanitizing used bedding, including the inexpensive alternative of using a non-permeable bedding cover.
The Department of State does not anticipate that the proposed rule will have a disproportionate adverse impact on jobs or employment opportunities in any region of the State. Similarly, the Department does not anticipate that the proposed rule will have any measurable impact on opportunities for self-employment.
