PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of sections 160.11 and 160.20 of Title 19 NYCRR.
Statutory authority:
Executive Law, section 91; General Business Law, sections 402(5) and 404
Finding of necessity for emergency rule:
Preservation of public health, public safety and general welfare.
Specific reasons underlying the finding of necessity:
The Department of State (“Department”) is charged, inter alia, with the enforcement of New York General Business Law (“NY GBL”) Article 27, which relates to the appearance enhancement industry. A principal purpose behind the enactment of Article 27 was 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 who practice in the industry. Consistent with the legislative intent of Article 27, the Department is empowered to issue regulations which protect the general welfare of the public, including those who provide nail care services. New information regarding the practice of nail specialty indicates that many practitioners are at risk for preventable disease and injury because of the lack of readily available protective gear.
To help ensure that workers are better protected, the Department is re-adopting these emergency health and safety regulations. The enhancement of public safety, health and general welfare necessitates the promulgation of these regulations on an emergency basis. The Department finds that imposing new requirements and clarifying existing regulations will protect the approximately 162,000 licensed cosmetologists and nail specialists in New York.
The original emergency rule on this matter, filed on May 18, 2015, was superseded by a similar but different emergency rulemaking on June 10, 2015,the text of which first appeared in the July 1, 2015 edition of the State Register. The current emergency rulemaking is the first re-adoption of the emergency rule that has been in effect since June 10th.
Subject:
Personal protective equipment.
Purpose:
To require the provision of personal protective equipment.
Text of emergency/proposed rule:
Section 160.11 of Title 19 of the NYCRR is amended as follows:
Section 160.11. Owner responsibilities
(a) An owner [, an area renter or both] shall be responsible for the proper conduct of the licensed business and for the proper provision of appearance enhancement services to the public by its employees or operators.
(b) An owner [, an area renter or both] shall be responsible for compliance with all applicable health and sanitary codes, and all statutory and regulatory requirements with respect to the practices of the occupation and business prescribed by this Part.
(c) An owner shall be responsible for maintaining the following equipment at each workstation, to be made available, upon request and without cost, to each person providing nail care services who uses such workstation:
(1) A properly fitting N-95 or N-100 respirator, approved by the National Institute for Occupational Safety and Health (“NIOSH”), for each individual who uses such workstation, to reduce inhalation of dust and particulate matter;
(2) Protective gloves made of nitrile, or other similar non-permeable material for workers with a sensitivity to nitrile gloves, in quantities sufficient to allow each individual providing nail care services to have a new pair of gloves for each customer served; and
(3) Eye protection sufficient to protect from splashes when pouring or transferring potentially hazardous chemicals from bulk containers or when preparing potentially hazardous chemicals for use in nail care services.
(d) The requirements of Subdivisions (a) and (b) were in effect prior to the filing of this emergency regulation, and remain in continuous full force and effect. Subdivision (c) of this Section shall take effect on June 15, 2015.
Section 160.20 of Title 19 of the NYCRR is amended as follows:
160.20 Hygienic practices.
(a) Cotton applicators may be used and must be stored in a closed container or sealed bag.
(b) A clean sheet of paper or a clean towel not previously used for any purpose shall be placed on the table or headrest before any client reclines on a table or chair.
(c) Cloth towels may be used once then bagged, machine washed and dried.
(d) A paper strip or clean towel shall be placed completely around the neck of each client before an apron or any other protective device is fastened around the neck.
(e) All practitioners and nail care clients must wash hands with soap and water before each client service.
(f) All sharp or pointed equipment shall be stored when not in use so as not to be accessible to consumers.
(g) All fluids, semifluids and powders must be dispensed with a shaker, dispenser pump or spray type container. All creams, lotions and other cosmetics used for clients must be kept in closed containers and dispensed with disposable applicators. When only a portion of a preparation is to be used on a client, it shall be removed from the container in such a way as not to contaminate the remaining portion.
(h) All practitioners shall have access to and may use a properly fitted N-95 or N-100 respirator, provided by the owner and approved by the National Institute for Occupational Safety and Health (“NIOSH”), in accordance with manufacturer’s specifications when buffing or filing artificial nails or using acrylic powder.
(i) All practitioners shall have access to and may wear gloves, provided by the owner, when handling potentially hazardous chemicals or waste and during cleanup, or when performing any procedure that has a risk of breaking a customer’s skin.
(j) All practitioners shall have access to and may wear eye protection, provided by the owner, when pouring or transferring potentially hazardous chemicals from bulk containers and when preparing potentially hazardous chemicals for use in nail care services.
(k) The requirements of Subdivisions (a) through (g) were in effect prior to the filing of this emergency regulation, and remain in continuous full force and effect. Subdivisions (h), (i), and (j) of this Section shall take effect on June 15, 2015.
This notice is intended:
to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire November 2, 2015.
Text of rule and any required statements and analyses may be obtained from:
David Mossberg, Esq., NYS Dept. of State, 123 William Street, 20th Fl., New York, NY 10038, (212) 417-2063, email: david.mossberg@dos.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
1. Statutory Authority:
New York Executive Law § 91 and New York General Business Law (“GBL”) §§ 402(5); 404; 404(b) and 405(2). 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 405(1) and 404 of the GBL authorize the Secretary of State to promulgate rules specifically relating to the appearance enhancement industry. Specifically, 404-b requires all owners and operators of appearance enhancement businesses that practice nail specialty to make available, upon request, gloves and facemasks for nail specialty licensees who work in such businesses.
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 allow for the greatest possible flexibility in the establishment of regulated services, while establishing protective measures. Consistent with this legislative intent, the Department is empowered to issue regulations that accomplish these purposes.
3. Needs and Benefits:
This rule is needed to implement provisions of the GBL, specifically sections 404 and 404-b. The Department finds that these regulations, which clarify existing requirements relating to availability of personal protective equipment will further the legislative intent of Section 404-b of the GBL.
4. Costs:
a. Costs to regulated parties:
Businesses which offer nail care services will be required pursuant to this rule to have available gloves, respirators and sufficient eye protection for individuals who practice nail specialty services. The Department estimates the following costs to businesses: 1) a box of 100 disposable nitrile gloves will cost approximately $15.00; 2) a box of 20 approved respirators will cost approximately $15.00; and 3) sufficient eye protection will cost approximately $3.00 per employee.
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:
This rule does not impose any new paperwork requirement.
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, that this rule is needed to protect the general welfare of approximately 162,000 individuals who practice nail specialty services.
9. Federal Standards:
The proposed rulemaking is necessary to implement the provisions of existing law and standards.
10. Compliance Schedule:
As this rule was previously adopted on an emergency basis and currently in effect, the Department is not providing for a compliance period and this second emergency adoption is to take effect immediately.
Regulatory Flexibility Analysis
1. Effect of rule:
This rule requires the provision of personal protective equipment. Businesses that offer nail care services will be required to provide such equipment as provided for by this rule to individuals who practice nail specialty services without cost. There are approximately 30,000 owners that are potentially subject to this rule.
2. Compliance requirements:
The rule implements statutory requirements established under Section 404-b of Article 27 of the General Business Law. Owners subject to this rule will be required to provide gloves, respirators and sufficient eye protection to individuals who practice nail specialty services. The rule does not impose reporting or recordkeeping on owners.
3. Professional services:
The Department does not anticipate the need for professional services.
4. Compliance costs:
The Department estimates the following costs to businesses: 1) a box of 100 disposable nitrile gloves will cost approximately $15.00; 2) a box of 20 approved respirators will cost approximately $15.00; and 3) sufficient eye protection will cost approximately $3.00 per employee.
5. Economic and technological feasibility:
This proposal is economically and technically feasible. Based on the Department’s cost estimates and that the personal protective equipment provided for by this rule is readily available in retail stores and through online purchasing, businesses should have no difficulty complying with this rule.
6. Minimizing adverse economic impact:
The Department did not identify any feasible alternatives that would achieve the results of the proposed rule and also be less restrictive and less burdensome in terms of compliance. The Department has consulted with Department of Labor, Department of Health, and several advocacy and business groups and finds this rule is necessary to implement existing law relating to the provision and availability of personal protective equipment.
7. Small business and local government participation:
The Department, in conjunction with other state agencies, has consulted with small business interests that may be affected by this rule. In addition, the Department has conducted significant outreach to inform the public regarding this rule, including posting this rule on the Department’s website and participating in a multiple public forums detailing, inter alia, the purpose of this rule and compliance requirements. 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 rulemaking.
8. Compliance:
Owners subject to this rule are required to comply immediately.
9. Cure period:
As this rule was previously adopted on an emergency basis and currently in effect, the Department is not providing for a compliance period and this second emergency adoption is to take effect immediately.
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. There are approximately 30,000 owners across New York State that may be subject to this rule. Licensed owners throughout the state, including those in rural areas, are responsible for complying with this rule.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
The rule implements statutory requirements established under Section 404-b of Article 27 of the General Business Law. The rule does not impose reporting or recordkeeping on owners. Further, there are no additional professional services required as a result of this regulation. No different or additional requirements are applicable exclusively to rural areas of the state.
3. Costs:
The Department estimates the following costs to businesses: 1) a box of 100 disposable nitrile gloves will cost approximately $15.00; 2) a box of 20 approved respirators will cost approximately $15.00; and 3) sufficient eye protection will cost approximately $3.00 per employee.
4. Minimizing adverse impact:
The proposed rulemaking will implement existing law relating to provision and use of personal protective equipment for nail care providers throughout the state, including rural areas. The Department has consulted with Department of Labor, Department of Health as well as several advocacy groups, but did not identify any feasible alternatives that would achieve the results of the proposed rules and also be less restrictive and less burdensome in terms of compliance.
5. Rural area participation:
No significant comments have been received regarding this rulemaking. Publication of the Notice in the State Register will provide notice to all interested parties, including those in rural areas. Additional comments received on this rulemaking will be considered and assessed during imminent Proposed Rule Making process on this matter.
Job Impact Statement
1. Nature of impact:
This rulemaking applies to all appearance enhancement owners and individuals who offer nail specialty services. Pursuant to this rule, owners are required to provide at no cost, gloves, respirators and eye protection while offering certain services. Though the rule is intended to implement existing law, the Department finds that it will also improve the wellbeing of those working in the nail care industry, and as such the rule will have a positive impact on jobs and employment opportunities.
2. Categories and numbers affected:
There are approximately 30,000 owners which would potentially be subject to this rulemaking. Further, there are approximately 162,000 licensees who offer services specified by this rule.
3. Regions of adverse impact:
The proposed rulemaking will not have any disproportionate regional adverse impact on jobs or lawful employment opportunities.
4. Minimizing adverse impact:
The Department considered not proposing the instant rulemaking. It was determined, however, that this rule is immediately needed to implement existing law through rules regarding availability and use of personal protective equipment. The Department has consulted with Department of Labor, Department of Health and several advocacy groups, but did not identify any alternatives that would achieve the results of the proposed rules and at the same time be less restrictive and less burdensome in terms of compliance.
