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Adopted Rules: Closed to Comments

Adopted Rules Content: 



Statement of Basis and Purpose


New York State is an Agreement State, meaning that New York State and the United States Nuclear

Regulatory Commission (NRC) have entered into an agreement under the Atomic Energy Act through which the NRC has delegated authority to the State to regulate radioactive material at non-reactor sites within its jurisdiction.1 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 Agreement and section 16.1 of the State Sanitary Code, the New York City Department of Health and Mental Hygiene, through its Office of Radiological Health (ORH), regulates radioactive material for medical, research and academic purposes within the five boroughs of New York City.


ORH regulations for radioactive material are contained in Article 175 of the Health Code. ORH licenses and inspects radioactive materials facilities for compliance with Article 175 for the protection of the health and safety of patients, radiation program employees and the general public. There are about 375 licensed sites in New York City possessing radioactive material for medical, academic and research purposes. ORH inspects these facilities once every 1, 2 or 3 years depending on the type of use.


Each Agreement State program is required to maintain compatibility with the NRC regulatory program. NRC Compatibility Categories specify the type of wording of proposed State program regulatory changes corresponding to relevant NRC regulations. The following are the NRC Compatibility Categories:


·         Compatibility A – Identical

·         Compatibility B – Essentially Identical

·         Compatibility C – Reflect the “essential objectives” of relevant NRC regulations

·         Compatibility D – Not required for compatibility

·         Compatibility H&S – Recommended for Health and Safety “best practices”


The majority of proposed changes in this Notice are Compatibility A and B. Some are compatibility C and H&S.


These proposed technical amendments to Article 175 are in response to NRC amendments of 10 CFR Part 20, concerning standards of protection for radiation, and 10 CFR § 19.13, regarding notification and reporting to individuals who are exposed to radiation as part of their employment, and are indicated in NRC Regulation Amendment Tracking Sheets (RATS) 1998-5, 1998-6 and 2008-1, available online at The provisions in Article 175 that require amendment are §§175.02 (Definitions), 175.03 (Standards for protection against radiation), 175.04 (Notices, instructions and reports to workers; inspections) and 175.104 (Waste disposal).



1 New York State’s agreement with NRC is available online at,



Effective Date: 
Sun, 10/20/2013

Proposed Rules: Closed to Comments

Comment By: 
Friday, August 9, 2013
Proposed Rules Content: 





Intentional hyperventilation and competitive, repetitive or prolonged underwater swimming or breath-holding can be dangerous. During these activities the levels of oxygen and carbon dioxide in the body can drop, delaying the breathing reflex. Coupled with the lack of oxygen to the brain, a swimmer can lose consciousness and drown.


The Department has identified four drowning incidents in New York City and 12 other incidents in New York State between 1988 and 2011 that were confirmed or suspected to have been caused by a loss of consciousness underwater due to lack of oxygen caused by intentional hyperventilation or by competitive, repetitive or prolonged underwater swimming or breath-holding. Four of the sixteen swimmers involved died in incidents associated with intentional hyperventilation. Yet, many swimmers are unaware of the risks associated with these activities.


The Department has also studied relevant policies, practices and guidance of multiple jurisdictions and organizations with respect to these specific swimming behaviors. Several jurisdictions require pool operators to post signs regarding the risks associated with prolonged breath-holding activities and extended underwater swimming. These signage requirements can be found in the rules of local governmental jurisdictions that regulate pool facilities and in the policies of large governmental entities and non-governmental organizations that own and operate pool facilities. Additionally, governmental agencies and safety awareness organizations have developed guidance and educational material that promotes swimming behavior rules and/or signage requirements to reduce the risks of the above activities.


Article 165 of the Health Code addresses bathing establishments, including swimming pools. The Department is proposing that this article be amended to require that the operators of bathing establishments discourage intentional hyperventilation and competitive, repetitive or prolonged underwater swimming or breath-holding, but if allowed, only under supervision in accordance with the pool’s approved pool safety plan. The amendments would also require all pool operators to post signage advising swimmers that these activities are dangerous.


The Department also proposes to require pool operators to update their safety plan when there are programing or operational changes at the facility and/or as directed by the Department.





The following changes to Article 165 are proposed:


       §165.19 - Pool Safety Plan – The proposed amendments would require a pool’s safety plan to be updated when there are changes to operations or conditions and/or as directed by the Department.


       §165.21 (l) - Facility Operating Policy – The proposed amendments would add a provision stating that intentional hyperventilation and competitive, repetitive or prolonged underwater swimming or breath-holding be discouraged, and permitted only when supervised in accordance with a pool safety plan approved pursuant to §165.19.


       §165.41(u)(2)(k) - Safety and Warning Signs – The proposed amendments would add a requirement to include a sign warning that intentional hyperventilation and competitive, repetitive or prolonged underwater swimming or breath-holding are dangerous and can be deadly. This rule will take effect 90 days after adoption by the Board of Health.




Opportunity to comment on the proposed amendment of Article 165 of the New York City Health Code, related to swimming pools.

New York City Department of Health and Mental Hygiene
42-09 28th Street 14th Floor, Room 14-44
Queens, NY 11101

Rena Bryant
New York City Department of Health and Mental Hygiene Board of Health
Secretary to the Board of Health
42-09 28th Street, CN31
Queens, NY 11101
(347) 396-6071

Download Copy of Proposed Rule (.pdf):