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Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Smoking is banned in certain indoor and outdoor locations both by the City’s Smoke-Free Air Act (SFAA) and by New York State’s Clean Indoor Air Act (CIAA).  These laws are enforced in New York City by the Department.  Pursuant to New York State Public Health Law §1399-u, the Department has the discretion to waive in a specific instance any provision of the CIAA if satisfied that its application will cause undue hardship or that there are other factors that make compliance with the provision unreasonable.

The Department enacted section 24 RCNY §10-15 in 2004 setting forth how the Department would consider requests for such waivers.  The rule allows any entity where smoking is permitted by the CIAA, but allowed by the SFAA, to request a waiver.  Requests based on financial hardship must include financial records and demonstrate financial losses attributable to the State restriction.  If claiming that compliance with the State provision is otherwise unreasonable, an applicant must clearly demonstrate the existence of factors that make this so.  The rule also imposes a fee for an application and limits the term of a waiver to two years.   

The stated basis and purpose of §10-15 was to provide a mechanism for harmonizing enforcement of the CIAA, which had just taken effect, with the restrictions on smoking that were already in place in New York City under the SFAA.[1]  In fact, the CIAA and SFAA are largely harmonious and there are no waivers currently in place.  While one was granted to a tobacco company operating a product testing room in 2005, and renewed thereafter until 2012, no other entity has even requested a waiver.  The Department does not foresee any situation in the future where it would waive a provision of the CIAA and thus is proposing to repeal §10-15 as unnecessary.

Working with the City’s rulemaking agencies, the Law Department, and OMB, the Office of Operations conducted a retrospective rules review of the City’s existing rules, identifying those rules that will be repealed or modified to reduce regulatory burdens, increase equity, support small businesses, and simplify and update content to help support public understanding and compliance. This proposed rule repeal was identified as one that should be repealed through this initiative.

 


[1] City Record, March 24, 2004.  RCNY Volume 8, Statements of Basis and Purpose at page 492.   

Effective Date: 
Mon, 08/21/2017

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose

 

Statutory authority

 

These amendments to Title 24 of the Rules of the City of New York are issued pursuant to §§ 556 and 1043 of the New York City Charter (“Charter”), and §§ 17-503, 17-504, 17-505, 17-506,   17-513, 17-513.3 and 17-513.4 of the Administrative Code of the City of New York (“Administrative Code”).

 

Pursuant to § 556 of the Charter, the Department of Health and Mental Hygiene (the “Department” or “DOHMH”) has jurisdiction to regulate all matters affecting health in the City of New York.  Section 1043 of the Charter empowers the Department to adopt rules necessary to carry out the powers and duties delegated to it.  Chapter 5 of Title 17 of the Administrative Code authorizes the Department to make rules with regard to smoking and electronic cigarette use.

 

Basis and purpose of the rule

 

On December 30, 2013, Local Law 152 was enacted.  It amended §§17-502, 17-503, 17-504, 17-505, 17-506, 17-507, 17-508, 17-510, 17-512 and 17-513.2 of Chapter 5 of Title 17 of the New York City Administrative Code (“Smoke-Free Air Act”).  It also added §§17-513.3 (Retail Tobacco Store and Retail Electronic Cigarette Store Registration), and 17-513.4 (Retail Tobacco Store and Retail Electronic Cigarette Store Verification) to Chapter 5.  Effective April 29, 2014, the local law prohibits the use of electronic cigarettes in all locations where smoking is currently prohibited, and effective October 26, 2014, requires establishments to post signage informing customers of these new restrictions.  Local Law 152 also requires both retail tobacco stores and retail electronic cigarette stores to register with the Department of Health and Mental Hygiene (“DOHMH”), and grants the Department authority to establish a system for verifying the total annual gross sales of retail tobacco stores and retail electronic cigarette stores to determine their eligibility for certain smoking and electronic cigarette use exemptions.

The Department is amending Chapter 10 of Title 24 of the Rules of the City of New York (RCNY) to reflect amendments to the Smoke-Free Air Act made by Local Law 152, and repeal provisions of Chapter 10 that are no longer applicable due to these amendments to the Smoke-Free Air Act. The amendments also clarify certain provisions in Chapter 10 to facilitate compliance with, and enforcement of, the Smoke-Free Air Act.  These amendments, together with the provisions of Chapter 5 of Title 17 of the Administrative Code, affect the use of electronic cigarettes in enclosed areas in public places and in places of employment in New York City.

The rule:

  • Specifies the locations where electronic cigarette use is prohibited;

 

  • Specifies the content of the signage required in locations where electronic cigarette use is prohibited;

 

  • Describes the registration requirements for retail tobacco stores and retail electronic cigarette stores; and

 

  • Repeals obsolete provisions of the Department’s Rules related to separate smoking rooms in bars and owner operated bars that have been repealed in the Smoke-Free Air Act.

 

Comments and changes to the proposal

 

                 An owner of a local electronic cigarette store requested that e-liquid and electronic cigarette accessories be specifically referenced in § 10-17, so that their sales are considered when determining whether a store is a retail electronic cigarette store that must register with the Department.  This change is unnecessary.  The definition of electronic cigarette in § 17-502(qq) of the Smoke- Free Air Act as amended by Local Law 152 includes “any refill, cartridge, and any other component of an electronic cigarette,” and that same definition is being adopted here.  Thus, sales of e-liquid and accessories are already included in “electronic cigarette sales” in § 10-17.

 

An electronic cigarette trade association requested that the rule exempt adult venues such as bars and nightclubs, certain privately owned businesses, and outdoor locations such as parks and beaches, from the prohibition on electronic cigarette use in locations where smoking is prohibited.  However, the Smoke-Free Air Act does not exempt any of these locations. 

 

One change has been made to these amendments to Chapter 10.  The annual registration requirement for retail tobacco stores and retail electronic cigarette stores has been eliminated in §§ 10-16 and 10-17 to simplify the registration process for both retailers and the Department to a one-time registration. 

 

Effective Date: 
Mon, 03/16/2015

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, September 15, 2014
Proposed Rules Content: 

 

 

 

Statement of Basis and Purpose

 

 

On December 30, 2013, Local Law 152 was enacted.  It amended sections 17-502, 17-503, 17-504, 17-505, 17-506, 17-507, 17-508, 17-510, 17-512 and 17-513.2 of Chapter 5 of Title 17 of the New York City Administrative Code (Smoke-Free Air Act).  It also added sections 17-513.3 (Retail Tobacco Store and Retail Electronic Cigarette Store Registration), and 17-513.4 (Retail Tobacco Store and Retail Electronic Cigarette Store Verification) to Chapter 5. These changes to the Smoke-Free Air Act took effect on April 29, 2014.  The local law prohibits the use of electronic cigarettes in all locations where smoking is currently prohibited and requires establishments to post signage informing customers of these new restrictions.  Local Law 152 also requires both retail tobacco stores and retail electronic cigarette stores to register with the Department of Health and Mental Hygiene (“DOHMH”), and grants the Department authority to establish a system for verifying the total annual gross sales of retail tobacco stores and retail electronic cigarette stores to determine their eligibility for certain smoking and electronic cigarette use exemptions.

 

The Department is proposing to amend Chapter 10 of Title 24 of the Rules of the City of New York (RCNY) to reflect the amendments to the Smoke-Free Air Act in Local Law 152, and repeal provisions of Chapter 10 that are no longer applicable due to these amendments to the Smoke-Free Air Act.  The amendments proposed here will also clarify certain provisions in Chapter 10 to facilitate compliance with, and enforcement of, the Smoke-Free Air Act.  These proposed amendments, together with the provisions of Chapter 5 of Title 17 of the Administrative Code, affect the use of electronic cigarettes in enclosed areas in public places and in places of employment in New York City.

 

The proposed amendments:

·          Specify the locations where electronic cigarette use is prohibited;

·          Specify the content of the  signage required in locations where electronic cigarette use is prohibited;

·          Describe the registration requirements for retail tobacco stores and retail electronic cigarette stores; and

·          Repeal obsolete provisions of the Department’s Rules related to separate smoking rooms in bars and owner operated bars that have been repealed in the Smoke-Free Air Act.

 

DOHMH’s authority to promulgate these rules is found in section 1043 of the New York City Charter and sections 17-503, 17-504, 17-505, 17-506(a), 17-513, 17-513.3 and 17-513.4 of the New York City Administrative Code.

 

 

 

Subject: 

Proposed resolution to amend Chapter 10 (Smoking Under the New York City Clean Indoor Air Act) of Title 24 of the Rules of the City of New York to: (1) reflect amendments to the Smoke-Free Air Act made by Local Law 152 of 2013 prohibiting the use of electronic cigarettes in certain places; (2) facilitate enforcement of the Smoke-Free Air Act; and (3) repeal provisions that are out of date.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street 14th Floor, Room 14-43
Queens, NY 11101-4132
Contact: 
Download Copy of Proposed Rule (.pdf):