Statement of Basis and Purpose of Proposed Rule
The Fire Department proposes to adopt this rule to implement the provisions of Local Law No. 103 of 2019 regarding hurricane evacuation notices and to require apartment building owners to take certain actions to ensure compliance with the requirement of fire safety notices on dwelling unit doors.
The Fire Department is re-noticing this proposed rule for public comment on changes to the rule made in response to the public comments received on the rule as it was originally proposed.
Hurricane Evacuation Notices
Local Law 103 requires apartment building owners (Group R-2 buildings and occupancies) within a hurricane evacuation zone, as designated by Commissioner of the Office of Emergency Management (now New York City Emergency Management or NYCEM) to post a hurricane evacuation notice in a common area of the building. The notice is intended to inform building occupants of the current hurricane evacuation zone designation for the building and the means by which building residents can determine the closest hurricane evacuation centers, namely by calling 311 or viewing the online Hurricane Evacuation Zone finder operated by NYCEM. The law provides that “[s]uch notice shall be in such form as prescribed by the commissioner by rule and shall be posted within a common area of the building and such other locations as set forth in the rules.”
Fire Department rule 3 RCNY § 401-06 sets forth emergency preparedness requirements for apartment buildings. The proposed rule would amend Section 401-06 to require the posting of the hurricane evacuation notice in a conspicuous location in the building lobby at street level, either near the main building entrance, in the mailbox area or by the elevators or main stairwell.
The proposed rule prescribes that the notice take the form of the hurricane evacuation notice posted on NYCEM’s website and that it be affixed to the wall by adhesive or in a frame, displayed in an enclosed, locked bulletin board, or otherwise durably and securely posted.
Fire Safety Notices
Fire and emergency preparedness notices (entitled “Fire Safety Notices”) are required to be posted on the interior side of dwelling unit doors. The posting of this notice has been required for almost 20 years.
The Fire Department does not ordinarily inspect dwelling units and therefore does not have a means to enforce replacement of missing or damaged notices. When it has found missing or damaged notices, owners have maintained that the rule does not clearly require prompt replacement of the notices.
To address these issues, the Fire Department proposes to amend Section 401-06 to require building owners and cooperative or condominium association board of directors, or their representatives, to:
• inspect each dwelling unit at least once every three years to confirm the presence of the notice, and to replace missing or damaged notices whenever the owner or the owner’s managing agent or building staff become aware of a missing or damaged notice, or, in apartment buildings with a cooperative or condominium form of ownership, require the apartment owner to post the replacement notice provided by such board; and/or
• obtain written certification from the tenant or apartment owner that the notice has been posted by delivering to each dwelling unit a form for completion and return to the owner or board that includes a statement from the Fire Department regarding the importance of the notice.
Public Comment and Fire Department Response
Three major organizations representing residential building owners and managers submitted comments objecting to the inspection requirement that owners inspect apartments for compliance with the longstanding requirement that a fire safety notice be posted on the back of each dwelling unit door. Comments were also submitted with respect to the requirements for the hurricane evacuation notice.
• Hurricane Evacuation Notice
Comment: Tenants would be better informed if the fire and emergency preparedness guide for apartment buildings (which is entitled “NYC Apartment Building Emergency Preparedness Guide”) and evacuation/emergency preparedness checklist indicated that the hurricane evacuation zone could be found on a notice in the building lobby.
Response: The suggestion is a good one. Consideration will be given to revising the Guide and checklist for the next distribution cycle. In the interim, building owners are free to reference the hurricane evacuation notice in the “other information” section on the building-specific Building Information Section that accompanies the Guide and checklist.
Comment: We urge the Fire Department to consider the consolidation of apartment building notices with other notices required by the agency in an effort to reduce the “wallpapering” of common areas in apartment buildings. The reality for apartment building owners, particularly for less sophisticated, smaller owners, is that maintaining and keeping track of the extraordinary number of notices required by the City, and protecting those notices from vandalism, is an extremely burdensome task.
Response: We are sympathetic to this concern. We appreciate that other City agencies have signage requirements but we cannot adjust those requirements. This Fire Department rule requires three lobby postings: the Building Information Section that accompanies the Guide, a copy of the fire safety notice posted in the apartments, and now the hurricane evacuation notice. The Fire Department has no objection to a single posting consolidating these requirements, provided it is legible and understandable. Building owners and/or their associations should contact the Fire Department through the Fire Code public inquiry form on the Fire Department website to obtain appropriate guidance.
• Fire Safety Notice Inspection
Comment: Apartment shareholders/unit owners receive ample instruction regarding building emergency protocols from the distribution of the Guide and other emergency preparedness information.
Response: The implication of this comment is that the posting of a fire safety notice in each apartment is unnecessary. The Fire Department begs to differ. When faced with a fire in one’s building, with smoke filling the public hallway corridors, not everyone will have the presence of mind to remember the instructions provided in the Guide, or the time to search for documents with instructions. Apartment residents who complete the evacuation/emergency preparedness checklist and given thought in advance to what actions they will take will be better prepared, but there is no substitute to having evacuation/shelter in place instructions posted right on the apartment door.
Comment: The rule should clarify how building owners should maintain records of the apartment inspection and indicate how these requirements will be enforced.
Response: Agreed. Section 401-06(e)(6)(C)(1) of the proposed rule has been revised accordingly.
Comment: When the requirements for fire safety notices were first promulgated, it was acknowledged that shareholders and unit owners often have strong feelings about the decor in their homes, and therefore it was required that boards of housing cooperatives and condominiums simply distribute these notices to these resident owners, provide replacements when requested and post the notices on any rental units that were under the control of the cooperative or condominium. We know of neither problems nor complaints that have arisen with this practical system in the intervening decades.
Response: Preferences for apartment décor cannot supersede interests of public safety. There is reason to believe that there is a lack of compliance with the posting requirement and hence the reason for this amendment. However, the Fire Department has attempted to balance the burden of compliance by allowing certification of compliance by the shareholder/unit owner (see below).
Comment: The rule should not make the fire safety notice inspection requirement applicable to cooperatives and condominiums. The obligation to inspect should fall on the shareholder/unit-owner rather than the board. Shareholder/unit owners are better positioned than the Board or managing agent to conduct such an inspection. Other City laws require these individuals – rather than boards or managing agents – to conduct inspections.
Response: In light of the comments indicating that apartment residents (whether rental tenants or shareholder/unit owners) should be responsible for fire safety notice compliance, we have revised the proposed rule to allow certification by the tenant/shareholder. Apartment building owners and managers will be required to inspect an apartment unit only if such certification is not timely received. See Section 401-06(e)(6)(C).
Comment: With the COVID-19 crisis, this is not the time to impose a new mandate for intrusive inspections into individual apartment.
Response: We understand the concern associated with apartment inspections at this time. Accordingly, we have revised the rule to require the fire safety notice inspection once every three years and timed to coincide with the distribution of the Guide and related documents. Accordingly, the obligation to conduct inspections (for apartments that have not submitted certifications) would not arise until after April 2022.
New text is underlined. Text proposed to be deleted is [bracketed].
“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.
STATEMENT OF BASIS AND PURPOSE
The New York City Fire Department is responsible for approving the installation of fire alarm systems, including inspecting and witnessing an acceptance test of such systems. If, upon such inspection and testing, Fire Department personnel finds that the fire alarm installation is not in compliance with the New York City Building Code, New York City Fire Code, NFPA Standard 72 or other applicable laws, rules, regulations or approvals, a notice of defect (currently referred to as a “letter of defect”) is issued to the owner and applicant setting forth such defects.
In many cases, the defects are relatively minor and can be corrected by the applicable licensed professional – a fire alarm system installer or an electrician – without undue delay. Currently, however, there is no procedure for accepting certification of the correction of such defects by a licensed professional, as is done for Fire Code violations cited by FDNY Summonses (formerly known as Notices of Violation) returnable before the NYC Office of Administrative Trials and Hearings. Acceptance of the corrected defects – and issuance of a Letter of Approval for the fire alarm system – must await a re-inspection by the Fire Department.
New York City has been currently experiencing a construction boom and the number of requests for Fire Department inspections of fire alarm system installations is constantly increasing. The Fire Department has not been able to keep up with the demand for re-inspections and there are now substantial delays in scheduling them. This can result in significant delay costs for owners, as well as delaying payment to the companies that perform the work. The Coronavirus emergency compounded the problem and increased the backlogs.
To address these issues, the Fire Department proposes to establish a certification program by which licensed professionals may certify correction of certain fire alarm system defects. The certifications will be filed with and reviewed by the Fire Department, and if accepted, will eliminate the need for a re-inspection and expedite issuance of a Letter of Approval.
To ensure the integrity of this process, the proposed rule includes the following limitations and protections:
• Not all fire alarm system defects may be certified as corrected by licensed professionals. Defects considered to be more serious, and minor defects if too numerous, would remain subject to Fire Department re-inspection. The proposed rule lists the prerequisites for certification, including a list of defects excluded from the certification program.
• All certifications would have to be submitted by licensed professionals, namely, fire alarm installers, professional engineers and registered architects, who are licensed by New York State, and electricians, who are licensed by the NYC Department of Buildings.
• All of these licensed professionals would additionally have to hold a Fire Department Certificate of Fitness pursuant to Fire Code Section 113 and be a principal or employee of a company holding a Company Certificate pursuant to Fire Code Section 115. This would serve to ensure that if any licensed professional abuses their ability to certify correction of fire alarm system defects they are subject to Fire Department disciplinary action.
• At least two licensed professionals would be required to certify correction of the fire alarm system defects: the licensed professional(s) who corrected the defect (a fire alarm installer and/or an electrician, depending on the type of work that is required to correct the defects); and a licensed professional (professional engineer, registered architect, fire alarm installer or electrician) who verifies that the system is functioning properly based on an in-person functionality test. The proposed rule elaborates upon what the certification of correction of defects represents in terms of the work done and verification thereof. (There is one exception to the two-signature rule: when there are no defects in the design or installation of the fire alarm system, but as built plans and/or other forms or documentation required to correct and complete the application have not been filed. A single signature is required in this circumstance because the required documentation itself must be signed and sealed by licensed professionals.)
• All certifications are subject to audit. The Fire Department maintains an audit program that would professionally audit the certification program and determine whether any false or fraudulent certifications had been submitted. Any licensed professional who engages in such misconduct is subject to a wide range of penalties, including those applicable to Company Certificate holders and Certificate of Fitness holders, as set forth in Fire Department rules 3 RCNY 115-01(i) and 113-01(g).
The Fire Department proposes to adopt a $210 administrative fee for processing the certifications. This represents the time spent in reviewing the certification and administratively processing correction of the defects or, if the certification is not accepted, processing the response setting forth the grounds for denial.
The Fire Department additionally proposes to amend Section 115-01 of its rules to incorporate the company certificate for fire alarm installation, inspection, testing and servicing company certificate into the list of company certificates set forth in that section, including the special qualifications required for that company certificate.
The Department did not include this proposed rule in its FY2020 regulatory agenda because the need for such rule was not anticipated at the time.