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Adopted Rules: Closed to Comments

Adopted Rules Content: 
 

Statement of Basis and Purpose

 

Local Law 71 of 2018 added a new Section 18-148 to Chapter 1 of Title 18 of the New York City Administrative Code to require that, within 24 hours of the City spraying a pesticide near a playground operated by or under the jurisdiction of the New York City Department of Parks and Recreation (“Parks Department”), the Parks Department clean the playground equipment located in that playground.  Local Law 71 requires the New York City Department of Health and Mental Hygiene (“Department”) to prescribe by rule the distance between the spraying and the playground equipment that will trigger the cleaning requirement.

 

Citywide policy and Chapter 12 of Title 17 of the Administrative Code, as added by Local Law 37 of 2005, promote the reduction of pesticide use by City agencies.  Utilizing an integrated pest management (“IPM”) approach at all times, City agencies implement a variety of strategies to control pests, and when pesticides are necessary to protect public health, use the least toxic products in the smallest amounts possible. As agencies rely on IPM techniques, the Department is aware of few circumstances when City agencies spray pesticides that have even the possibility of depositing on Parks Department playground equipment. Those circumstances include, for example, spraying to control mosquitoes to protect the public from West Nile virus and other mosquito-borne disease; to control stinging insects, such as wasps and hornets; and, starting in 2019, to assess approaches to control ticks. In addition, the Parks Department uses a variety of techniques to control weeds such as poison ivy. For example, when poison ivy is growing inside or within the area immediately outside of a playground, the Parks Department either manually removes the poison ivy or cuts the vine at the base and then paints the cut stem with herbicide.  Spray is only used to control poison ivy in areas outside a playground.

 

The Department is not aware of any standard or guidance addressing whether and when to clean playground equipment in order to protect health following the spraying of pesticide. Two types of standards, however, may be relevant and provide guidance for this. First, the U.S. Environmental Protection Agency (EPA) uses the “No-Observed-Adverse-Effect-Level” (“NOAEL”) as a benchmark for risk classification and assessment of pesticides. The NOAEL is based on research demonstrating that there are pesticide exposure amounts that do not result in an observed harmful effect. Where a pesticide is applied in an amount that could not reasonably exceed the NOAEL, there is no public health basis to clean playground equipment.  Applying the NOAEL to the circumstances here, the Department is requiring that the Parks Department not be required to clean playground equipment where the pesticide is sprayed in an amount that could not reasonably exceed the NOAEL.

 

Second, EPA pesticide labeling requirements and U.S. Fish and Wildlife Service guidance set out buffer zones, which are areas within which pesticides must not or should not be sprayed in order to avoid pesticide drift into waterways, agricultural fields, and other areas that could result in exposures that could be toxic to living organisms. Buffer zones of 30 feet—or 80 feet for ultra-low volume application—have been established in a context that could be considered analogous to this one.[1] In the absence of specific standards or guidance regarding cleaning of playground equipment following pesticide spraying, the Department is applying these analogous standards regarding buffer zones for these rules.

 

The Department is adopting a new Chapter 14 to Title 24 of the Rules of the City of New York to implement the provisions of Section 18-148 of Chapter 1 of Title 18 of the Administrative Code, as added by Local Law 71 of 2018.




[1] See, e.g.¸US EPA (2008). Updated spray drift language for pyrethroid agricultural use products U.S. Environmental Protection Agency, Washington, DC. See, https://www.epa.gov/sites/production/files/2015-08/documents/epapyrethroidletter.pdf ; US EPA (2014). Final Registration of Enlist DuoTM Herbicide. Washington, DC. EPA docket, EPA-HQ-OPP-2014-0195. See, https://www.regulations.gov/contentStreamer?documentId=EPA-HQ-OPP-2014-0195-0010&contentType=pdf;  White, J.A. 2004. Recommended Protection Measures for Pesticide Applications in Region 2 of the U.S. Fish and Wildlife Service, U.S. Fish and Wildlife Service, Region 2, Environmental Contaminants Program. 203p. See: https://www.fws.gov/southwest/es/arizona/documents/ecreports/rpmpa_2007.pdf.

 
Effective Date: 
Sat, 07/27/2019

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose of Rule

On average, the Correction and Amendments unit within Vital Records receives 50,000 requests annually for changes to birth certificates. Each request requires a corrections application delineating the specific changes requested. Section 207.05 of the Health Code currently allows the Department to seal a birth certificate and file a new one with corrected information only in certain instances. Court orders are required for some parentage amendments and other amendments not specifically delineated in the health code and require extensive analysis of fact pattern.  Approximately 12,000 of these amendments must be done through court order each year.

Recent city council legislation resulted in a local law, pursuant to Intro 1308, that amends the administrative code of the city of New York to require redaction from birth certificates, upon request, of the names of physicians whose licenses have been surrendered or revoked.  In order to implement this law, the Department of Health and Mental Hygiene proposed an amendment to Article 207 of the Health Code to allow a mechanism for this type of redaction that does not require a court order.  This amendment requires the filing of a new certificate without the name of the attending physician and the sealing of the original certificate.  The new certificate will not contain an attendant field and will not indicate correction history. 

Statutory Authority

These amendments to the Health Code are promulgated pursuant to Sections 558 and 1043 of the New York City Charter.  Section 558 empowers the Board to amend the Health Code and to include in the Health Code all matters to which the authority of the Department extends. Section 1043 grants the Department rulemaking authority. 

 

 

 

Effective Date: 
Fri, 07/19/2019

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose

    I.    The Dangers of Lead Exposure

Children exposed to any level of lead may face serious, irreversible harm that has consequences throughout their lifetimes. Children under the age of six are at greatest risk for exposure because they explore the world through hand-to-mouth activity and because their bodies are rapidly growing and can more readily absorb lead.  Elevated blood lead levels in children can result in behavioral changes, reduced educational attainment and hearing and speech delays. In 2012, the Centers for Disease Control and Prevention (CDC) explained that there is no safe blood lead level (BLL) for children, announced that 98.5% of children nationally had a BLL below 5 micrograms per deciliter (mcg/dL), and recommended public health action at this defined “reference level.”  In adults, lead exposure can increase risk of hypertension, peripheral neuropathy, renal dysfunction, and adverse reproductive outcomes. Pregnant women present a unique concern because lead exposure can affect the health of both the woman and the fetus. Since symptoms of elevated BLLs are often not immediately observable and many adverse health effects are irreversible, preventing exposure before it occurs and reducing future exposures are the only effective ways to protect children and adults from lead’s deleterious effects.

  II.    Lead in Paint

Lead in paint remains the most common source of lead exposure for New York City children.  As the older layers of lead-based paint from previous decades remain on interior surfaces, such layers peel, crack, chip, or flake. Very young children – especially those under the age of three – are most at risk as this peeling or chipped lead-based paint and dust easily end up on a crawling baby or toddler’s hands and toys and then into their digestive systems due to developmentally appropriate hand-to-mouth activity.  At critical stages of physical development, these very young children absorb lead at higher rates than older children and adults, putting them at the greatest risk of all when exposed to lead. 

New York City has long been at the vanguard of efforts nationally to reduce BLLs in children, beginning in 1960 when the Board of Health made New York City one of the first jurisdictions in the country to prohibit the use of lead paint in residential settings, 18 years before it was banned by the federal government. Because of strong laws, regulations, policies and procedures—including the requirements of the Health Code—New York City has seen close to a 90 percent decline since 2005 in the number of children under age six with a BLL at or above 5 mcg/dL.

The New York City Childhood Lead Poisoning Prevention Act (“Local Law 1”), enacted in 2004, required the Department to investigate the potential sources of lead in the home and elsewhere when it receives a report of children under 18 years old with a BLL level at or above 15 mcg/dL.[1]  Complementing Local Law 1, the Health Code was amended to define “lead-based paint” as paint with a lead content of 1.0 milligrams per centimeter squared (mg/cm2).  It also has required that:

  • Health care providers and clinical laboratories notify the Department of BLL test results of 10 mcg/dL or greater within 24 hours (Health Code section 11.03) and all BLL test results within five business days (Health Code section 11.09);
  • DOHMH conduct investigations of children under 18 years old with BLLs at or above 15 mcg/dL to identify sources of lead and order abatement as needed (Health Code section 173.13(d)(2));
  • If lead-based paint hazards are identified based on a report of a child with a BLL of 15 mcg/dL, a Commissioner’s Order to correct the hazard be issued, requiring the owner to correct the violation within five days (Health Code section 173.13(d)(2)); and 
  • The maximum content of lead dust permitted for re-occupancy of a unit is 40 mcg/ft2 for floors, 250 mcg/ft2 for window sills, and 400 mcg/ft2 for window wells (Health Code section 173.14(e)(1)(I)(iv)).

               Based on changes in federal guidelines and evolving scientific evidence, the Department has been conducting investigations for children at BLLs lower than Health Code mandates, including at 8 mcg/dL and above for children under 16 months old, and 10 mcg/dL and above for children under six years old. These environmental investigations include a comprehensive risk assessment and environmental sampling of the child’s residence and any supplemental addresses. The environmental sampling includes testing peeling paint and dust for lead content. The Department has been taking public health action for children with a BLL of 5 mcg/dL and above since 2009, by notifying parents and health care providers about the blood lead test results and providing recommendations for follow-up testing and interventions.  Beginning in 2018, the Department began conducting environmental investigations for all children under 18 years old with a BLL of 5 mcg/dL or greater.

                In light of such changes in guidelines and scientific evidence, and to align with recent amendments to local law, the Board has adopted updates to relevant Health Code provisions related to childhood lead paint exposure interventions as described below.  Among the updates is redefining “lead-based paint” from a lead concentration threshold of 1.0 mg/cm2 to 0.5 mg/cm2 and from paint with a metallic lead content of 0.5% or greater to 0.25% or greater once the New York City Department of Housing Preservation and Development (HPD) confirms via rulemaking that there is at least one Performance Characteristic Sheet (PCS) published by the United States Department of Housing and Urban Development or other sufficient written technical guidance approving a commercially available x-ray fluorescence (XRF) analyzer tested at the level of 0.5 mg/cm2.  In addition, since the Department’s review of XRF readings taken from residences of children with BLLs of 8 mcg/dL and above show that paint with lead content below current Health Code levels presents a risk to children, the Board is adopting this more protective standard to order abatement of non-intact paint where an XRF reading is 0.5 mg/cm2 and there is a child with under 18 years old with a BLL of 5 mcg/dL or greater. In this manner, property owners are on clear notice that the Department will take enforcement action when needed if these lower lead levels in non-intact paint are present in the home of a child with a BLL of 5 mcg/dL or higher.

     III.         Consumer Products as a Source of Lead Exposures

While lead-based paint remains the primary source of lead exposure for New York City children, consumer products—such as certain supplements or remedies, cosmetics, religious powders, jewelry, and spices—are also often identified as potential lead sources associated with elevated BLLs. This poses a special challenge in New York City, where many residents come from a broad spectrum of ethnic, cultural, and religious backgrounds and use imported goods that may contain lead or other heavy metals at unsafe levels not permitted in goods produced in the United States.

To address this challenge, the Department has a comprehensive approach to identifying and reducing exposure to lead in consumer products that includes surveying stores to find potentially hazardous products, conducting enforcement actions to remove the products from sale and use, and providing risk communication and public education to prevent future use of the products. The Department has tested thousands of consumer products for lead and other heavy metals since 2011, of which hundreds of product samples have been found to contain elevated lead or other heavy metals. From September 2014 through 2018, the Department surveyed more than 700 New York City stores to determine the availability of hazardous consumer products and embargoed more than 19,000 hazardous consumer products. 

Multiple federal laws regulate non-paint sources of lead, including the Consumer Product Safety Act, the Federal Hazardous Substances Act, the Food, Drug and Cosmetic Act, and their attendant regulations, guidelines, and other publications.  These federal laws, regulations and guidelines provide baselines for permissible levels of lead in consumer products and other substances nationwide.  Combined, these laws and regulations provide a continuously evolving set of complex standards by which products and substances are regulated to protect the public health.  Some states and localities have taken steps to augment the federal standards.  In New York State, Education Law § 6818 bans the sale of cosmetics containing poisonous or deleterious substances. In New York City, Administrative Code § 17-189 prohibits the sale of lead-containing candy and litargirio.  California and Minnesota have made lead levels for adult jewelry closer to that required federally for children’s jewelry.[2] [3] Many states have also adopted the federal standards for lead content in children’s toys.

While the Health Code previously incorporated federal standards for lead content in consumer products, food, drugs, and cosmetics, these provisions were not specific about items with dangerous levels of lead.  The Board has therefore adopted amendments to clarify criteria for specific products that are banned for sale, use, and transfer in the City due to their lead content.  The Board has also adopted specific Health Code provision to authorize the Department to seize, embargo, or condemn products and substances with dangerous levels of lead.  And finally, the Board has adopted a provision for a safe products awareness training program as a requirement for individuals and entities who offer for sale or otherwise distribute hazardous lead-containing products or materials. Such a program will assist small businesses and others in identifying products they are not supposed to sell in the future and thereby expand the positive impact of Department enforcement action.

       IV.     Summary of Proposed Health Code Amendments

The following is a summary of the adopted amendments to the Health Code:

  1. All BLL test results of 5 mcg/dL or greater must be reported to the Department within 24 hours and removing “lead poisoning” from the reportable condition of “poisoning by drugs or other toxic agents” (Section 11.03(a));
  2. BLL test results below 5 mcg/dL must also be reported to the Department (Section 11.09(a));
  3. The BLLs of children under 18 years of age has been lowered from 15 mcg/dL to 5 mcg/dL when the Department is required to issue abatement orders if a lead-based paint hazard is identified in a dwelling where children reside (Section 173.13(d)(2));
  4. A trigger to redefine “lead-based paint” from a lead concentration threshold of 1.0 mg/cm2 to 0.5 mg/cm2 and from paint with a metallic lead content of 0.5% or greater to 0.25% or greater once the conditions of NYC Administrative Code section 27-2056.2(7)(b) have been met to redefine the term citywide (Section 173.14(b));
  5. Definition of “unsafe lead paint condition” to mean non-intact paint with a concentration of lead equal to or greater than 0.5 but not greater than 0.9 milligrams per square centimeter or with a metallic lead content of 0.25% or greater regardless of whether a PCS has been issued for an XRF at these levels (Section 173.14(b));
  6. The clearance level for dust wipes for floors and window wells and sills has been lowered (Section 173.14(e)(1)(I)(iv));
  7. Clarification that cosmetics containing lead that could cause harm to users is not permitted, and specifying that kohl, kajal, al-Kahal, surma, tiro, tozali, kwalli, and litargirio, among other substances, are banned from sale (Section 71.05(g)(1));
  8. Addition of a new parapgraph to the definition of per se hazardous substances to specify the danger of lead exposure, and banning the sale of certain ceramic ware not suitable for use with foods and any jewelry that does not meet the federal standards for children’s jewelry (Section 173.01(i)(5));
  9. Conspicuous warnings are required on ceramic ware not suitable for use with food (Section 173.05(e)); and
  10. The sale, use, and transfer of hazardous or toxic substances or products is not permitted, and the Department has the authority to seize, embargo, or condemn any such items, and that violators may be required to take a safe products awareness training program (Section 173.21).

 

Statutory Authority

These amendments to the Health Code are promulgated pursuant to Sections 558 and 1043 of the New York City Charter.  Section 558 empowers the Board to amend the Health Code and to include in the Health Code all matters to which the authority of the Department extends. Section 1043 grants the Department rulemaking authority. 




[1] NYC Administrative Code § 27-2056.14.

[2] California Health and Safety Code Article 10.1.1.

[3] 2018 Minnesota Statutes § 325E.389.

 
 
Effective Date: 
Fri, 07/19/2019

Proposed Rules: Open to Comments (View Public Comments Received:1)

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Agency:
Comment By: 
Monday, July 22, 2019
Proposed Rules Content: 
 
 

Statement of Basis and Purpose

The Department’s Division of Disease Control conducts disease surveillance and control activities for most of the diseases listed in Article 11 (Reportable Diseases and Conditions) of the Health Code. The Division of Disease Control also enforces Article 13 (Clinical Laboratories) of the Health Code, which regulates the performance of laboratory tests and the reporting of test results. In addition, the Department must comply with various provisions of Part 2 of the New York State Sanitary Code, found in Title 10 of the New York Codes, Rules and Regulations (NYCRR), with respect to the control of communicable diseases.

To conduct more effective, timely, and complete disease surveillance and control, the Department is proposing that the Board amend Health Code Articles 11 and 13 as follows:

Tuberculosis Infection Reporting

The Department is requesting that the Board amend Health Code Sections 11.03(a) and 13.03(b)(1) to require laboratories to report all test results for tuberculosis (TB) infection, including negative results. Currently the Health Code requires reporting only of test results and other information attendant to active TB disease, and tests positive for TB infection and related information for children under five years old.

TB is a disease caused by the bacterium Mycobacterium tuberculosis, which is spread person-to-person through the air. Most commonly, TB disease affects the lungs, but it can also affect other parts of the body. Individuals who have a positive test for TB infection but do not have symptoms or other test results consistent with active TB disease are diagnosed with latent TB infection (LTBI). Persons with LTBI are asymptomatic and cannot transmit the infection to others. It is estimated that approximately 10 percent of individuals with LTBI will develop active TB disease at some point in their life. Treating LTBI is the only way to significantly reduce the risk of developing active disease and thus is a vital component of TB prevention efforts.

There is no reliable data on the prevalence of LTBI in the United States or New York City. National estimates from the National Health and Nutrition Examination Survey study, when combined with New York City population data, result in an estimate of approximately 700,000 people with LTBI in the City. However, data from the Department’s TB clinics suggests there could be as many as 1.8 million people in New York City with LTBI. Based on these estimates, there is a large reservoir of TB infection in New York City, some of which will result in future cases of active TB disease.

While the Department has made major strides in reducing the number of active TB cases in New York City – from 3,755 at the height of the TB epidemic in 1992 to 559 in 2018 – the number of TB cases has largely plateaued in the last 10 years. The Department is working to expand its efforts to identify and treat people with LTBI to further reduce the burden of TB in New York City, and reporting of test results for TB infection would help focus that effort.

Reporting of tests for TB infection would give the Department a better understanding of the prevalence of TB infection so as to better direct public health resources. Also, the data collected would provide information about testing practices, which would help inform provider outreach. Reports of laboratory tests negative for TB infection would provide the Department with a more complete picture of testing practices and allow for better estimates of testing prevalence to inform the Department’s programming.

In addition, the Department proposes minor related language changes to Health Code § 11.21(a) for consistency.

Syphilis Amendment Proposal

The Department is requesting that the Board add a new Section 11.33 to the Health Code to require healthcare providers to test pregnant persons for syphilis at 28 weeks of pregnancy, or as soon thereafter as reasonably possible no later than at 32 weeks of pregnancy, and that test results and a treatment plan be documented.

Syphilis is a sexually transmitted infection caused by the bacterium Treponema pallidum. Untreated syphilis during pregnancy can result in devastating health outcomes, including stillbirth.  Infants with congenital syphilis may manifest abnormalities of the central nervous system, bones and joints, teeth, eyes, and skin. In New York City, the number of congenital syphilis cases increased 186% between 2017 (7 cases) and 2018 (20 cases) (preliminary data). Twenty is the largest number of congenital syphilis cases reported in the city in over ten years and included one syphilitic stillbirth at 31 weeks. In general, New York City has much higher rates of primary, secondary, and early latent syphilis as compared to the U.S. population. In 2017, the rate of syphilis at all stages was 95.33 per 100,000 in NYC vs. 31.4 cases per 100,000 nationally. Syphilis is increasing among New York City women; from 2017 to 2018 (preliminary data), the number of primary, secondary, and early latent syphilis cases among NYC women increased 44%, from 219 to 315 cases.

Congenital syphilis can be prevented by timely treatment of maternal syphilis. However, symptoms of maternal syphilis during pregnancy may not be apparent, so serologic screening during pregnancy is critical. New York State mandates syphilis screening at the first prenatal care examination (NYS Public Health Law § 2308) and at delivery (10 NYCRR § 69-2.2). Increasingly, the Department has documented congenital cases resulting from maternal syphilis infections acquired subsequent to screening negative earlier during pregnancy; this accounted for 11 cases (55%) of congenital syphilis cases in 2018. As many as half of these cases may have been averted by screening women at 28 weeks of pregnancy.

The Department proposes requiring an additional syphilis test at 28 to 32 weeks of pregnancy to identify pregnant people who become infected subsequent to initial mandatory screening, which will enable treatment, improve the health of the pregnant person, and prevent potentially grave health outcomes attendant to vertical transmission. Requiring documentation of test results and a treatment plan will help ensure appropriate follow-up care. Twenty-eight weeks is the most appropriate time for third trimester re-screening because other screening tests are routinely performed at 28 weeks, and because screening at this time would allow sufficient time to treat pregnant people who have syphilis prior to delivery. This proposal is aligned with laws in several other states that require third trimester syphilis testing of all pregnant persons. 

Exclusion of Cases and Carriers of Enteric Pathogens

The Department is requesting that the Board amend Health Code § 11.15(a) to provide the Department with the discretion to end “exclusion” of people infected with enteric pathogens when doing so is appropriate under the circumstances.

Under the Health Code, individuals infected with or carrying certain enteric pathogens must be excluded from certain settings where there is an elevated risk of disease transmission. Thus, cases and carriers who are food handlers or health care workers must be excluded from their place of work, and staff and attendees of schools, child care programs, camps, and other facilities attended by children under five years of age must be excluded from those facilities. The Health Code further provides that exclusion can end only when the excluded person no longer has symptoms and the Department has received two or three (depending on the pathogen) successive negative stool specimens demonstrating that transmission is no longer likely and that the excluded person’s illness is no longer a public health concern.

The enteric diseases addressed in Health Code § 11.15 –Campylobacteriosis, Cholera, Escherichia (E.) coli 0157:H7 and other Shiga toxin-producing E. coli (STEC) infections, Salmonellosis (other than typhoid), Shigellosis, Yersiniosis, Amebiasis, Cryptosporidiosis, and Giardiasis – are transmitted via the fecal-oral route. People infected with or carrying enteric pathogens who are food handlers, health care workers providing oral care or feeding, child care workers, or child care attendees can shed the organism in their stool and transmit the infection to others if they have poor hand hygiene practices. Under current requirements, exclusion can last from days to months.

The number of people identified requiring exclusion has increased significantly in recent years. In 2018, there were 187 exclusions ranging in duration from 1 to 135 days, with a mean length of 22 days, as compared to 69 exclusions in 2015. The increase in exclusions is due to improved surveillance practices and increased use of culture-independent diagnostic tests (CIDT), a testing method that is more sensitive than other types of traditional tests, leading to more positive test results. Stool samples can be positive by a CIDT but negative by traditional tests, such as bacterial culture, indicating that although the organism’s DNA is detectible, it may not be alive and capable of being transmitted. However, under the current Health Code provision, individuals must be excluded based on the positive CIDT result while awaiting follow-up culture results. Also, some individuals shed the organism in the stool for many weeks or months even after symptoms have ended, and experience suggests that the risk of transmission in that circumstance is low. As there are no clear national guidelines on exclusion, jurisdictions’ exclusion requirements vary. Many jurisdictions, including New York State, are less strict than New York City without any measured increase in disease transmission.

For these reasons the Department proposes a more flexible approach that takes into consideration the circumstances of a particular case, including the type of infection, the type of test used to detect the pathogen, the presence or absence of symptoms, the individual’s treatment with antimicrobial drugs, the individual’s job responsibilities, and the likelihood of infectiousness based on the length of time since symptom onset. The Department would still be able to exclude people with enteric pathogens until consecutive negative test results are received if, in the view of Department experts, there remains a public health threat. However, the Department would have the discretion to allow people to return to work or school sooner if their illness no longer poses a risk to others.

In addition, the Department proposes minor language changes for consistency and clarity, and to correct typographical errors.

Campylobacter Testing and Reporting

The Department is requesting that the Board amend Health Code § 13.03(b) to no longer require laboratories to perform culture testing on all specimens found to be positive for Campylobacter by CIDT. Culture testing involves a laboratory using a specimen to grow the pathogen; a sample of the pathogen grown by culture is termed an “isolate”.

In January 2017, the Health Code was amended to require follow-up culture tests on six enteric pathogens: Campylobacter, Listeria monocytogenes, Salmonella, Shigella, Vibrio, and Yersinia. The laboratory must report the results of the culture and submit any resulting isolates to the Department. The Department proposed the amendment to enable it to obtain information about the pathogens not available from CIDT and used to assist in outbreak detection and response.

Campylobacter bacteria can be transmitted to people through contaminated food and liquid or contact with certain animal feces. It causes diarrhea, fever, and abdominal cramps and, in rare cases, more serious illness. Compared to other enteric pathogens, Campylobacter is difficult to isolate and found relatively frequently, particularly given an increase in positive test results stemming from more expansive use of CIDT. Further, other enteric pathogens that are required to be cultured per the Health Code, including Salmonella and Shiga toxin-producing Escherichia coli, have more significant public health consequences than Campylobacter, including that they are more likely to be part of local and multi-state disease outbreaks.

The Department has determined that appropriate monitoring of Campylobacter can occur without routine culture testing and isolate submission. Given the high number of Campylobacter reports (approximately 2500 cases in New York City in 2018), the Department generally has been able to investigate only clusters, as opposed to isolated cases. Accordingly, the Department does not make use of most of the isolates received from laboratories. The Department can request additional testing and isolates from laboratories in the event of a suspected cluster or outbreak, rather than requiring laboratories to perform the additional testing as a matter of course. The Department believes this approach would better balance laboratory burden and public health needs.

In addition, in order to address questions raised by reporting laboratories, the Department proposes minor language changes to clarify that reports must be sent to the Department.

Statutory Authority

The Department’s authority to promulgate these proposed amendments is found in Sections 556, 558, and 1043 of the Charter. Sections 558(b) and (c) of the Charter empower the Board to amend and add to the Health Code, including with respect to all matters to which the Department’s authority extends. Section 556 of the Charter provides the Department with jurisdiction to protect and promote the health of all persons in the City of New York. Section 1043 grants the Department rule-making authority.

 
 
Subject: 

Proposed resolution to amend Article 11 (Reportable Diseases and Conditions) and Article 13 (Laboratories) of the New York City Health Code regarding various diseases and conditions.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 14th floor, Room 14-44
Queens, NY 11101
Contact: 

Svetlana Burdeynik at (347) 396-6078, ResolutionComments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, July 15, 2019
Proposed Rules Content: 
 
 

Statement of Basis and Purpose

 

In 2018, Chapter 7 of Title 24 of the Rules of the City of New York (“RCNY”) was repealed and re-promulgated to, among other things, provide a list of monetary penalties associated with violations of the New York City Health Code and other applicable law or regulations.

This proposed rule change would amend the Chapter 7 penalty associated with failure to remove canine waste by aligning it with the maximum penalty prescribed in state law.  With certain exceptions, New York State Public Health Law § 1310 (“PHL § 1310”) requires a dog owner or person having possession, control or custody of a dog to remove any feces left by such dog from any public area.  PHL § 1310 provides that a violation of that duty is punishable by a fine of not more than $250.  Currently, Appendix 7-A of Chapter 7 of 24 RCNY sets the initial penalty for failure to remove canine waste at $100 with a default penalty of $200. The Department proposes to amend the penalty for both an initial and default violation to match the $250 penalty provided in PHL § 1310.

 Statutory Authority

This proposed amendment is authorized by PHL § 1310; New York City Charter §§ 555(b)(2), 556, 558(b) and (e) and 1043; and § 3.11 of the Health Code.

      • PHL § 1310 provides that a failure to remove canine waste from a public space is punishable by a fine not exceeding $250.
      • Section 555(b)(2) of the Charter authorizes the Commissioner of Health and Mental Hygiene to assess penalties for health-related regulations.
      • Section 556 of the Charter authorizes the Department to regulate all matters affecting health in the City of New York. 
      • Section 558 of the Charter authorizes the Board of Health to set civil penalties for the enforcement of the Health Code.
      • Section 1043 of the Charter gives the Department rulemaking powers.
      • Section 3.11 of the Health Code provides the penalty range for violations of the Health Code or applicable law or regulation.

 

 
 
Subject: 

Proposal to amend Chapter 7 of Title 24 of the Rules of the City of New York to change the fine for failure to remove canine waste from a public area.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 20th floor, Room 20-29
Queens, NY 11101
Contact: 

Svetlana Burdeynik at 347-396-6078 or ResolutionComments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose

 

Section 274 of the federal Atomic Energy Act of 1954 [42 USC §2021 et seq.] (“Atomic Energy Act”) authorizes “Agreement States” to regulate byproduct material, source material and special nuclear material in quantities not sufficient to form a critical mass.  New York State is an “Agreement State” within the meaning of the Atomic Energy Act, and the New York City Department of Health and Mental Hygiene (“Department” or “DOHMH”) operates a component of the New York State Agreement.  Under this Agreement State structure, the DOHMH, through its Office of Radiological Health (“ORH”), regulates radioactive material for medical, research and academic purposes within the five boroughs of New York City.

The New York State (NYS) Public Health Law §§225(5)(p) and (q) allows the NYS Commissioner of Health and the NYS Public Health and Planning Council to establish regulations with respect to ionizing radiation and nonionizing electromagnetic radiation and to authorize appropriate officers or agencies to register radiation installations, issue licenses for the transfer, receipt, possession and use of radioactive materials, other than special nuclear materials in quantities sufficient to form a critical mass, and render such inspection and other radiation protection services as may be necessary in the interest of public health, safety and welfare. The NYS regulations are set out in Part 16 of the NYS Sanitary Code.

The Sanitary Code, in 10 NYCRR §16.1(b)(3), allows New York City to establish its own radiation licensure requirements in place of State regulations, so long as the local requirements are consistent with Sanitary Code requirements. 

The New York City Charter (“Charter”) Section 556(c)(11) authorizes the Department to supervise and regulate the public health aspects of ionizing radiation, the handling and disposal of radioactive wastes, and the activities within the city affecting radioactive material.   

Background

Article 175 of the New York City Health Code (“Health Code”) applies to all radiation-producing equipment and radioactive material within NYC.  The Article contains general provisions applicable to both radiation equipment registrants and radioactive materials licensees, and specific requirements for such equipment and materials. The purpose of Article 175 is to protect the public, as well as workers in radiation installation facilities, from the potential hazards of ionizing radiation.  The Article’s requirements for radiation control reflects the coordination of radiation control activities among the U.S. Nuclear Regulatory Commission (“NRC”), the U.S. Food and Drug Administration, the NYS Department of Health and the NYS Department of Environmental Conservation, and other relevant city, state and federal agencies.  

This reenacted Article 175 of the Health Code incorporates federal requirements contained in Title 10 of the Code of Federal Regulations (“CFR”) and reflects and is consistent with state regulations contained in the NYS Sanitary Code [10 NYCRR Part 16], and sets forth ORH-specific best practices requirements.   By law, the City must maintain compatibility with applicable federal requirements, as well as consistency with applicable state regulations.  The Health Code may, and Article 175 does, in certain instances, mandate more stringent requirements as to health and safety radiation control measures than those required by federal and state authorities, for example, requiring greater documentation of radioactive materials licensees’ quality assurance activities.

In NYC, there are about 6500 registered facilities with radiation-producing machines and 375 licensed sites with radioactive material for medical, academic and research purposes. Of the registered facilities, approximately 6440 are diagnostic X-ray facilities and 60 are therapeutic X-ray facilities. ORH inspects these facilities at varying frequencies depending on the type of usage.  Current inspection fees are unchanged under the adopted Article.

Radiation equipment

Prior to this rulemaking, Article 175 of the Health Code had not been significantly revised, particularly as to its radiation equipment requirements, since it was last reenacted in 1994.  Similar to that last reenactment, the Board has based much of this reenacted text on the model code maintained by the Conference of Radiation Control Program Directors (CRCPD). The CRCPD is a 501(c)(3) nonprofit professional organization whose primary membership is made up of radiation professionals in state and local government that regulate the use of radiation sources in their jurisdictions.  CRCPD's mission is "to promote consistency in addressing and resolving radiation protection issues, to encourage high standards of quality in radiation protection programs, and to provide leadership in radiation safety and education".[1]  Since the reenactment of Article 175 in 1994, improved best practices have been developed and implemented for radiation control measures.  Many of these measures are reflected in the current CRCPD model code, which has provided the basis for much of the text related to radiation equipment in the adopted Article 175.

Radioactive materials

As noted above, Article 175 of the Health Code incorporates federal requirements from Title 10 of the CFR.  New York State is an Agreement State with the U.S. NRC which means that the NRC has delegated authority to NYS to regulate radioactive material at non-reactor sites within its jurisdiction.  The New York State Agreement is comprised of the regulatory programs of three agencies:

1. the New York State Department of Health,

2. the New York State Department of Environmental Conservation, and

3. the New York City Department of Health and Mental Hygiene.

 

Under the NYS Agreement and § 16.1 of the State Sanitary Code, the Department, through its Office of Radiological Health (ORH), regulates radioactive material for medical, research and academic purposes within the five boroughs of New York City.  Each Agreement State program is required to maintain compatibility with the NRC regulatory program. The NRC regulatory program utilizes Compatibility Categories to specify the type of wording to be used in the corresponding State program regulations.[2]

As noted above, the last significant revision of Article 175 requirements occurred over 20 years ago.  Since then, NRC has made numerous updates of its requirements contained in Title 10 of the CFR.  In order for the Department to maintain its compatibility status with the NRC regulatory program, each time the NRC has updated its regulations in Title 10 of the CFR, the Board has had to make corresponding updates to Article 175, which has been an inefficient and time–consuming process.  In many instances, and because of the compatibility designations, the Board updated Article 175 by reproducing the actual CFR text directly into its requirements. The Board believes that continuing to update the Health Code rules this way is redundant and unnecessary and that it makes more sense to incorporate by reference the relevant CFR regulations, which will still provide the same legal force and effect as if the Board had actually reproduced such requirements in their entirety directly into Article 175.  This incorporation by reference process avoids duplication and provides uniform, accurate guidance to the regulated community, as well as making makes Article 175 more manageable and user-friendly Article.

Accordingly, the Board has repealed and reenacted Article 175 primarily to:

  • update the quality assurance requirements to reflect industry-wide best practices for the installation, operation and maintenance of  both diagnostic and therapeutic radiation equipment required to be registered with the Department, and which is used for medical, academic and research purposes, and
  • more efficiently adopt and enforce NRC requirements for the possession and use of radioactive materials required to be licensed by the Department by incorporating by reference applicable federal regulations contained in Title 10 of the CFR.

 

Statutory Authority

This repeal and reenactment of Article 175 of the Health Code is promulgated pursuant to Charter Section 558.  Sections 558(b) and (c) of the Charter empower the Board of Health to amend the Health Code and to include in the Health Code all matters to which the Department’s authority extends.  Section 1043 of the Charter grants rule-making powers to the Department.




[1] See, http://c.ymcdn.com/sites/www.crcpd.org/resource/collection/665D6792-2EB4-4AF6-8134-1173A394FE28/Constitution10-25-04.pdf (describing the goals of the CRCPD to, among other things, promote radiological health in all aspects and phases and to promote and foster uniformity of radiation control laws and regulations).

[2] See, https://scp.nrc.gov/procedures/sa200.pdf  (providing NRC compatibility categories and health and safety components assigned for determining whether an agreement state is maintaining a compatible radiation safety control program with NRC).

 
Effective Date: 
Fri, 05/24/2019

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Thursday, May 23, 2019
Proposed Rules Content: 
 
 

Statement of Basis and Purpose

  1. I.          The Dangers of Lead Exposure

Children exposed to any level of lead may face serious, irreversible harm that has consequences throughout their lifetimes. Children under the age of six are at greatest risk for exposure because they explore the world through hand-to-mouth activity and because their bodies are rapidly growing and can more readily absorb lead.  Elevated blood lead levels in children can result in behavioral changes, reduced educational attainment and hearing and speech delays. In 2012, the Centers for Disease Control and Prevention (CDC) explained that there is no safe blood lead level (BLL) for children, announced that 98.5% of children nationally had a BLL below five micrograms per deciliter (mcg/dL), and recommended public health action at this defined “reference level.”  In adults, lead exposure can increase risk of hypertension, peripheral neuropathy, renal dysfunction, and adverse reproductive outcomes. Pregnant women present a unique concern because lead exposure can affect the health of both the woman and the fetus. Since symptoms of elevated BLLs are often not immediately observable and many adverse health effects are irreversible, preventing exposure before it occurs and reducing future exposures are the only effective ways to protect children and adults from lead’s deleterious effects.

  1. II.          Lead in Paint

Lead in paint remains the most common source of lead exposure for New York City children.  As the older layers of lead-based paint from previous decades remain on interior surfaces, such layers peel, crack, chip, or flake. Very young children – especially those under the age of three – are most at risk as this peeling or chipped lead-based paint and dust easily end up on a crawling baby or toddler’s hands and toys and then into their digestive systems due to developmentally appropriate hand-to-mouth activity.  At critical stages of physical development, these very young children absorb lead at higher rates than older children and adults, putting them at the greatest risk of all when exposed to lead. 

New York City has long been at the vanguard of efforts nationally to reduce BLLs in children, beginning in 1960 when the Board of Health made New York City one of the first jurisdictions in the country to prohibit the use of lead paint in residential settings, 18 years before it was banned by the federal government. Because of strong laws, regulations, policies and procedures—including the requirements of the Health Code—New York City has seen close to a 90 percent decline since 2005 in the number of children under age six with a BLL at or above five mcg/dL.

The New York City Childhood Lead Poisoning Prevention Act (“Local Law 1”), enacted in 2004, required the Department to investigate the potential sources of lead in the home and elsewhere when it receives a report of children under 18 years old with a BLL level at or above 15 mcg/dL.[1]  Complementing Local Law 1, the Health Code currently defines “lead-based paint” as paint with a lead content of 1.0 milligrams per centimeter squared (mg/cm2).  It also requires that:

  • Health care providers and clinical laboratories notify the Department of BLL test results of 10 mcg/dL or greater within 24 hours (Health Code section 11.03) and all BLL test results within five business days (Health Code section 11.09);
  • DOHMH conduct investigations of children under 18 years old with BLLs at or above 15 mcg/dL to identify sources of lead and order abatement as needed (Health Code section 173.13(d)(2));
  • If lead-based paint hazards are identified based on a report of a child with a BLL of 15 mcg/dL, a Commissioner’s Order to correct the hazard be issued, requiring the owner to correct the violation within five days (Health Code section 173.13(d)(2)); and 
  • The maximum content of lead dust permitted for re-occupancy of a unit is 40 mcg/ft2 for floors, 250 mcg/ft2 for window sills, and 400 mcg/ft2 for window wells (Health Code section 173.14(e)(1)(I)(iv)).

            Based on changes in federal guidelines and evolving scientific evidence, the Department has been conducting investigations for children at BLLs lower than Health Code mandates, including at eight mcg/dL and above for children under 16 months old, and 10 mcg/dL and above for children under six years old. These environmental investigations include a comprehensive risk assessment and environmental sampling of the child’s residence and any supplemental addresses. The environmental sampling includes testing peeling paint and dust for lead content. The Department has been taking public health action for children with a BLL of five mcg/dL and above since 2009, by notifying parents and health care providers about the blood lead test results and providing recommendations for follow-up testing and interventions.  Beginning in 2018, the Department began conducting environmental investigations for all children under 18 years old with a BLL of five mcg/dL.

            In light of such changes in guidelines and scientific evidence, and to align with recent amendments to local law, the Department seeks to update relevant Health Code provisions related to childhood lead paint exposure interventions as described below.  Among the changes proposed is redefining “lead-based paint” from a lead concentration threshold of 1.0 mg/cm2 to 0.5 mg/cm2 and from paint with a metallic lead content of 0.5% or greater to 0.25% or greater once the New York City Department of Housing Preservation and Development (HPD) confirms via rulemaking that there is at least one Performance Characteristic Sheet (PCS) published by the United States Department of Housing and Urban Development or other sufficient written technical guidance approving a commercially available x-ray fluorescence (XRF) analyzer tested at the level of 0.5 mg/cm2.  In addition, since the Department’s review of XRF readings taken from residences of children with BLLs of eight mcg/dL and above show that paint with lead content below current Health Code levels presents a risk to children, the Department is proposing to immediately adopt this more protective standard and order abatement of non-intact paint where an XRF reading is 0.5 mg/cm2 and there is a child with under 18 years old with a BLL of five mcg/dL. In this manner, property owners are on clear notice that the Department will take enforcement action when needed if these lower lead levels in non-intact paint are present in the home of a child with a BLL of five mcg/dL or higher.

  1. III.          Consumer Products as a Source of Lead Exposures

While lead-based paint remains the primary source of lead exposure for New York City children, consumer products—such as certain supplements or remedies, cosmetics, religious powders, jewelry, and spices—are also often identified as potential lead sources associated with elevated BLLs. This poses a special challenge in New York City, where many residents come from a broad spectrum of ethnic, cultural, and religious backgrounds and use imported goods that may contain lead or other heavy metals at unsafe levels not permitted in goods produced in the United States.

To address this challenge, the Department has a comprehensive approach to identifying and reducing exposure to lead in consumer products that includes surveying stores to find potentially hazardous products, conducting enforcement actions to remove the products from sale and use, and providing risk communication and public education to prevent future use of the products. The Department has tested thousands of consumer products for lead and other heavy metals since 2011, of which hundreds of product samples have been found to contain elevated lead or other heavy metals. From September 2014 through 2018, the Department surveyed more than 700 New York City stores to determine the availability of hazardous consumer products and embargoed more than 19,000 hazardous consumer products. 

Multiple federal laws regulate non-paint sources of lead, including the Consumer Product Safety Act, the Federal Hazardous Substances Act, the Food, Drug and Cosmetic Act, and their attendant regulations, guidelines, and other publications.  These federal laws, regulations and guidelines provide baselines for permissible levels of lead in consumer products and other substances nationwide.  Combined, these laws and regulations provide a continuously evolving set of complex standards by which products and substances are regulated to protect the public health.  Some states and localities have taken steps to augment the federal standards.  In New York State, Education Law § 6818 bans the sale of cosmetics containing poisonous or deleterious substances. In New York City, Administrative Code § 17-189 prohibits the sale of lead-containing candy and litargirio.  California and Minnesota have made lead levels for adult jewelry closer to that required federally for children’s jewelry.[2] [3] Many states have also adopted the federal standards for lead content in children’s toys.

While the Health Code currently incorporates federal standards for lead content in consumer products, food, drugs, and cosmetics, these provisions can be confusing regarding specific items with dangerous levels of lead and regarding the Department’s enforcement authority.  The Department is therefore proposing to clarify specific products that are banned for sale, use, and transfer in the City due to their lead content.  The Department is also proposing to adopt specific Health Code authorization allowing it to seize, embargo, and/or condemn products and substances with dangerous levels of lead.  And finally, the Department is proposing to include a safe products awareness training program as a requirement for individuals and entities who offer for sale or otherwise distribute hazardous lead-containing products or materials; such a program will assist small businesses and others in identifying products they are not supposed to sell in the future and thereby expand the positive impact of Department enforcement action.

  1. IV.          Summary of Proposed Health Code Amendments

The Department is proposing the following amendments to the Health Code:

  1. Requiring all BLL test results of five mcg/dL or greater be reported to the Department within 24 hours and removing “lead poisoning” from the reportable condition of “poisoning by drugs or other toxic agents” (Section 11.03(a));
  2. Requiring that BLL test results below five mcg/dL are also reported to the Department (Section 11.09(a));
  3. Lowering  the BLLs of children under 18 years of age from 15 mcg/dL to five mcg/dL when the Department is required to issue abatement orders if a lead-based paint hazard is identified in a dwelling where children reside (Section 173.13(d)(2));
  4. Creating a trigger to redefine “lead-based paint” from a lead concentration threshold of 1.0 mg/cm2 to 0.5 mg/cm2 and from paint with a metallic lead content of 0.5% or greater to 0.25% or greater once the conditions of NYC Administrative Code Section 27-2056.2(7)(b) have been met to redefine the term citywide (Section 173.14(b));
  5. Defining “unsafe lead paint condition” to mean non-intact paint with a concentration of lead equal to or greater than 0.5 but not greater than 0.9 milligrams per square centimeter or with a metallic lead content of 0.25% or greater regardless of whether a PCS has been issued for an XRF at these levels (Section 173.14(b));
  6. Reducing the clearance level for dust wipes for floors and window wells and sills (Section 173.14(e)(1)(I)(iv));
  7. Clarifying that cosmetics containing lead that could cause harm to users is not permitted, and specifying that kohl, kajal, al-Kahal, surma, tiro, tozali, kwalli, and litargirio, among other substances, are banned from sale (Section 71.05(g)(1);
  8. Adding a new subsection to the definition of per se hazardous substances to specify the danger of lead exposure, and banning the sale of certain ceramic ware not suitable for use with foods and any jewelry that does not meet the federal standards for children’s jewelry (Section 173.01(i)(5));
  9. Requiring conspicuous warnings on ceramic ware not suitable for use with food (Section 173.05(e)); and
  10. Specifying that the sale, use, and transfer of hazardous or toxic substances or products is not permitted, that the Department has the power to seize, embargo, or condemn any such items, and that violators may be required to take a safe products awareness training program (Section 173.21).

                                                                                      Statutory Authority

These amendments to the Health Code are promulgated pursuant to Sections 558 and 1043 of the New York City Charter.  Section 558 empowers the Board to amend the Health Code and to include in the Health Code all matters to which the authority of the Department extends. Section 1043 grants the Department rulemaking authority. 




[1] NYC Administrative Code § 27-2056.14.

[2] California Health and Safety Code Article 10.1.1.

[3] 2018 Minnesota Statutes § 325E.389.

 
Subject: 

Proposed resolution to amend Article 11 (Reportable Diseases and Conditions), Article 71 (Food, Drugs and Cosmetics) and Article 173 (Hazardous Substances) of the New York City Health Code regarding lead in paint.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street 14th Floor, Room 14-43
Queens, NY 11101
Contact: 

Phone: (347) 396-6078/6116 or E-mail: resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, May 28, 2019
Proposed Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

On average, the Correction and Amendments unit within Vital Records receives 50,000 requests annually for changes to birth certificates. Each request requires a corrections application delineating the specific changes requested. Section 207.05 of the Health Code currently allows the Department to seal a birth certificate and file a new one with corrected information only in certain instances. Court orders are required for some parentage amendments and other amendments not specifically delineated in the health code and require extensive analysis of fact pattern.  Approximately 12,000 of these amendments must be done through court order each year.

Recent city council legislation resulted in a local law, pursuant to Intro 1308, that amends the administrative code of the city of New York to require redaction from birth certificates, upon request, of the names of physicians whose licenses have been surrendered or revoked.  In order to implement this law, the Department proposes an amendment to Article 207 of the Health Code to allow a mechanism for this type of redaction that does not require a court order.  This amendment would require the filing of a new certificate without the name of the attending physician and the sealing of the original certificate.  The new certificate would not contain an attendant field and would not indicate correction history. 

 
Subject: 

Proposed resolution to amend Section 207.05 of the Article 207 (General Vital Statistics Provisions) of the New York City Health Code regarding birth records.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 8th Floor, Room 8-25
Queens, NY 11101
Contact: 

Phone #: (347) 396-6078/6116, E-mail: resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, May 29, 2019
Proposed Rules Content: 


                                                                       Statement of Basis and Purpose

 

Background

Local Law 71 of 2018 added a new Section 18-148 to Chapter 1 of Title 18 of the Administrative Code to require that, within 24 hours of the City spraying a pesticide near a playground operated by or under the jurisdiction of the New York City Department of Parks and Recreation (“Parks Department”), the Parks Department clean the playground equipment located in that playground.  Local Law 71 requires the Department of Health and Mental Hygiene (the “Department”) to prescribe by rule the distance between the spraying and the playground equipment that will trigger the cleaning requirement.

Citywide policy and Chapter 12 of Title 17 of the Administrative Code, as added by Local Law 37 of 2005, promote the reduction of pesticide use by City agencies.  Utilizing an integrated pest management (“IPM”) approach at all times, City agencies implement a variety of strategies to control pests, and when pesticides are necessary to protect public health, use the least toxic products in the smallest amounts possible. As agencies rely on IPM techniques, the Department is aware of few circumstances when City agencies spray pesticides that have even the possibility of depositing on Parks Department playground equipment. Those circumstances include, for example, spraying to control mosquitoes to protect the public from West Nile virus and other mosquito-borne disease; to control stinging insects, such as wasps and hornets; and, starting in 2019, to assess approaches to control ticks. In addition, the Parks Department uses a variety of techniques to control weeds such as poison ivy. For example, when poison ivy is growing inside or within the area immediately outside of a playground, the Parks Department either manually removes the poison ivy or cuts the vine at the base and then paints the cut stem with herbicide.  Spray is only used to control poison ivy in areas outside a playground. 

The Department is not aware of any standard or guidance addressing whether and when to clean playground equipment in order to protect health following the spraying of pesticide. Two types of standards, however, are relevant and provide guidance for this proposed rule. First, the U.S. Environmental Protection Agency (EPA) uses the “no-observed-adverse-effect level” (“NOAEL”) as a benchmark for risk classification and assessment of pesticides. The NOAEL is set based on research demonstrating that there are pesticide exposure amounts that do not result in an observed harmful effect. Where a pesticide is applied in an amount that could not reasonably exceed the NOAEL, there is no public health basis to clean playground equipment.  Applying the NOAEL to the circumstances here, the Department is proposing that the Parks Department not be required to clean playground equipment where the pesticide is sprayed in an amount that could not reasonably exceed the NOAEL.

Second, EPA pesticide labeling requirements and U.S. Fish and Wildlife Service (“FWS”) guidance set out buffer zones, which are areas within which pesticides must not or should not be sprayed in order to avoid pesticide drift into waterways, agricultural fields, and other areas that could result in exposures that could be toxic to living organisms. Buffer zones of 30 feet—or 80 feet for ultra-low volume application—have been established in a context that could be considered analogous to this one.[1] In the absence of specific standards or guidance regarding cleaning of playground equipment following pesticide spraying, the Department is proposing to apply these analogous standards regarding buffer zones.

The Proposed Amendment

The Department is proposing to add a new Chapter 14 to Title 24 of the Rules of the City of New York to implement the provisions of Section 18-148 of Chapter 1 of Title 18 of the Administrative Code, as added by Local Law 71 of 2018.

 

 




[1] See, e.g.¸US EPA (2008). Updated spray drift language for pyrethroid agricultural use products U.S. Environmental Protection Agency, Washington, DC. See, https://www.epa.gov/sites/production/files/2015-08/documents/epapyrethroidletter.pdf ; US EPA (2014). Final Registration of Enlist DuoTM Herbicide. Washington, DC. EPA docket, EPA-HQ-OPP-2014-0195. See, https://www.regulations.gov/contentStreamer?documentId=EPA-HQ-OPP-2014-0195-0010&contentType=pdf;  White, J.A. 2004. Recommended Protection Measures for Pesticide Applications in Region 2 of the U.S. Fish and Wildlife Service, U.S. Fish and Wildlife Service, Region 2, Environmental Contaminants Program. 203p. See: https://www.fws.gov/southwest/es/arizona/documents/ecreports/rpmpa_2007.pdf.

Subject: 

Proposal to add a new Chapter 14 (Cleaning Park Playground Equipment) to Title 24 of the Rules of the City of New York.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street,14th Floor, Room 14-31
Queens, NY 11101
Contact: 

(347) 396-6078/6116, resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

                                                      Statement of Basis and Purpose

New York State Public Health Law (“PHL”) section 3502 was amended by Chapter 313 of the 2018 Laws of New York on October 2, 2018, to add subdivision (6) permitting the use of body scanners by the NYC Department of Correction (DOC) and requiring the Department to adopt rules governing such use that meet at least the minimum requirements in PHL section 3502(6)(c).  The rules being adopted by the Department meet those requirements and incorporate by reference certain definitions and portions of New York City Health Code Article 175, which governs the use of radiation producing equipment.  The rules also incorporate relevant definitions, processes, and requirements established by the American National Standards Institute (“ANSI”) for such equipment.  The federal National Institute for Standards and Technology, part of the U.S. Department of Commerce, has officially recognized ANSI’s role as the country’s representative on international standards setting bodies. By incorporating ANSI standards into these rules, the Department seeks to promote maximum protection, for both DOC personnel and detainees, from radiation exposure and reduce the risk associated with the operation of body scanners.

Two commenters noted that the phantom described in section 5.4, et seq. of ANSI Standard 42.47 is not generally commercially available. In response to these comments, the Department has added text to section 33-04(d)(1) allowing the use of other devices to perform imaging tests provided that they are approved by the Department.  In response to a comment that the definition of “qualified physicist” was too broad and potentially allowed professionals without the requisite experience to serve in the role, the Department has added additional requirements to the definition.  In response to a concern about the privacy of the records of individuals scanned, the Department has added section 33-07(g) to provide additional safeguards. Paragraph 33-08(a)(4) has been revised to clarify the requirements regarding signs advising pregnant and potentially pregnant detainees that they should not be scanned.  Finally, minor corrections have been made throughout the rule to correct nomenclature and standardize capitalization.

 “Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this Department, unless otherwise specified or unless the context clearly indicates otherwise.

 
Effective Date: 
Fri, 02/15/2019

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