Part LL of Chapter 58 of the Laws of 2018 adds subdivisions sixteen and seventeen to section 378 of the Executive Law, effective January 1, 2019. Part LL of Chapter 58 of the Laws of 2018 provides that the addition, amendment, and/or repeal of any rules or regulations by the Secretary of State and/or by the State Fire Prevention and Building Code Council (the Code Council) necessary for the implementation of said subdivisions sixteen and seventeen on the January 1, 2019 effective date are authorized and directed to be made and completed on or before such effective date.

This rule amends the New York State Uniform Fire Prevention and Building Code (the Uniform Code) to include provisions addressing subdivisions sixteen and seventeen of section 378 of the Executive Law.

Section 378 (15) of the Executive Law provides that, except as otherwise provided by statute, no change to the Uniform Code shall become effective until at least 90 days after the date on which notice of such change has been published in the State Register, unless the Code Council finds that an earlier effective date is necessary to protect health, safety, and security.

This Notice of Adoption will be published prior to January 1, 2019. However, January 1, 2019 will be less than 90 days after the date of publication of this Notice of Adoption.

When the Code Council adopted this rule, the Code Council found, pursuant to section 378 (15) of the Executive Law, that making the changes to the Uniform Code made by this rule effective on January 1, 2019, rather than 90 days after publication of the Notice of Adoption of this rule, is necessary to protect health, safety, and security. (Note: Effective January 1, 2019, section 378 [15] of the Executive Law will be renumbered as section 378 [18] of the Executive Law).

Therefore, this rule will become effective on January 1, 2019.

2. APPROVAL BY SECRETARY OF STATE

Pursuant to section 377 (1) of the Executive Law, the Secretary of State has reviewed the amendments to the New York State Uniform Fire Prevention and Building Code (the Uniform Code) made by this rule to insure that such amendments effectuate the purposes of Article 18 of the Executive Law; the Secretary of State is satisfied that the amendments to the Uniform Code made by this rule will effectuate such purposes; and the Secretary of State has approved the amendments to the Uniform Code made by this rule.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2021, which is no later than the 3rd year after the year in which this rule is being adopted.

This rule amends the New York State Uniform Fire Prevention and Building Code (the Uniform Code) by adding new provisions requiring the installation of diaper changing stations in (1) all newly constructed buildings that have one or more areas classified as Assembly Group A occupancies or Mercantile Group M occupancies and (2) all existing buildings that have one or more areas classified as Assembly Group A occupancies or Mercantile Group M occupancies and undergo a substantial renovation.

The Notice of Proposed Rule Making was published in the State Register on September 5, 2018. A public hearing was held on November 8, 2018. The public comment period ended on November 13, 2018. The Department of State (DOS) received the comments described below. The following assessment contains a summary of the comments submitted and an analysis of any issues raised by such comments.

No changes to the proposed rule have been made because of the public comments described below.

COMMENT 1: The commenter notes that this rule will (1) define the type of “substantial renovation” that will trigger the requirement to install changing stations in an existing building, and (2) require changing stations to comply with ICC A117.1-09. The commenter asks if the rule’s requirements will “correlate with the accessibility provisions and exceptions” in the International Existing Building Code (the IEBC).

The commenter suggests that the requirements for providing diaper changing stations in existing buildings should be “relative to the requirements for providing handicap accessible toilet and bathing facilities, in accordance with the IEBC. . . .”

The commenter also asks if the a “substantial renovation” as defined in the rule will be an Alteration – Level 3 under the IEBC, and “how will this work with the Prescriptive and Performance Compliance Methods?”

RESPONSE TO COMMENT 1: This rule will implement the provisions of subdivisions sixteen and seventeen of section 378 of the Executive Law, as added by Chapter 58 of the Laws of 2018. The requirements imposed by this rule are in addition to the requirements of the IEBC, and the requirements imposed by the IEBC are in addition to the requirements imposed by this rule. The requirements imposed by this rule are not required to “correlate with” the accessibility provisions and exceptions in the IEBC.

This rule defines “substantial renovation” as work to an existing building that falls in any one or more of the following five categories:

(1) construction or installation of a new public family or assisted-use toilet room or a new unisex public toilet room;

(2) construction or installation of a new male public toilet room and a new female public toilet room on the same floor level;

(3) a level 2 alteration of an existing public family or assisted-use toilet room, an existing unisex public toilet room, or an existing male public toilet room and an existing female public toilet room that are both on the same floor level;

(4) a level 3 alteration of an existing building where the work area includes an existing public family or assisted-use toilet room, an existing unisex public toilet room, or an existing male public toilet room and an existing female public toilet room that are both on the same floor level; and

(5) any other work that is a level 2 or level 3 alteration of an existing building and has a work area that includes at least 50 percent of the area of an Assembly Group A occupancy or Mercantile Group M occupancy.

This rule provides that an existing building that undergoes any such substantial renovation must be provided with safe, sanitary, and convenient diaper changing station(s). While this rule does provide that diaper changing stations installed pursuant to this rule must comply with the accessibility requirements specified in ICC A117.1, the fact that certain work may be subject to an exception to the IEBC’s accessibility requirements does not mean that the same work will be exempt from the requirements imposed by this rule. An existing building that undergoes a substantial renovation must be provided with diaper changing stations without regard to whether the substantial renovation is or is not subject to the IEBC’s provisions relating to the provision of handicap accessible toilet and bathing facilities, and without regard to whether the substantial renovation is or is not subject to any exception to the IEBC’s provisions relating the provision of handicap accessible toilet and bathing facilities.

DOS does not agree that this rule’s requirements for providing diaper changing stations in existing buildings should be “relative to the requirements for providing handicap accessible toilet and bathing facilities, in accordance with the IEBC.”

However, this rule does have a feature that is similar to the “technically feasible” provisions of IEBC Section 705. Specifically, in the case of a substantial renovation that falls in work in category “(5)” above, diaper changing stations must be provided only where the Assembly Group A occupancy or Mercantile Group M occupancy is served by existing public toilet room(s), and a diaper changing station can be provided in such existing public toilet room(s) without having to reconfigure the space therein or increase the floor area thereof.

In response to the commenter’s final question, the term “substantial renovation” as defined in this rule includes the five categories of work described above, not all of which will be an “Alteration – Level 3” under the IEBC.

COMMENT 2: The commenter expresses support of this rule. Specifically, the commenter states support of requiring the installation of diaper changing stations, requiring signage to indicate the location of the diaper changing station, and requiring equal availability for both male and female occupants. The commenter also suggests adding provisions regarding the frequency with which diaper changing station should be cleaned.

RESPONSE TO COMMENT 2: DOS appreciates the support expressed for this rule. Regarding the suggestion that the rule specify the frequency with which stations must be cleaned, DOS points out that this rule provides, in new Section 1229-2.7 (Maintenance), that diaper changing stations installed in any building must be “maintained in a safe, sanitary, and working condition.” DOS believes that this provision, which will require changing stations be maintained in a sanitary condition, is more practicable than a provision specifying the frequency with which the changing stations must be cleaned.

COMMENT 3: The commenter states that during an inspection of a previously installed diaper changing station, he observed that the changing station was left in the lowered position, which could cause an impediment to access to the rear grab rail. The commenter states that he understood that changing stations could be provided with “loaded hinges” to allow them to return to the wall, but that he was concerned that in the future there will be more and more situations in which the tables are left in the lowered position. The commenter asks if a building owner would be in violation of the “clear access” requirement if a changing station were left in the lowered position, or if the ability to move the table to the closed position would mean that there was no violation. The commenter also expresses concern that placing a changing station at the maximum height permitted by the applicable accessibility provisions (34 inches) may interfere with rear grab bars, which must be located at a height of 33 to 36 inches.

RESPONSE TO COMMENT 3: Regarding the commenter’s statement about the placement of the diaper changing station in conflict with other accessible features, DOS notes that building owners and local code enforcement officers work together to make buildings accessible. Nothing currently in the Uniform Code or this rule prohibits diaper changing stations from being in accessible locations if the clearances and areas required by the Uniform Code can be satisfied.

Regarding the commenter’s question about situations in which the tables are left in the lowered position, DOS points out that this rule provides, in new Section 1229-2.7 (Maintenance), that diaper changing stations installed in any building must be “maintained in a safe, sanitary, and working condition.” This includes the operable parts of a diaper changing station. Therefore, a diaper changing station that is designed to fold out of the clear access area would need to be fully operational at all times. As long as the diaper changing station is maintained in a correctly functioning condition, a building owner is not responsible if a user fails to return a diaper changing station to its closed position.

COMMENT 4: DOS received a written comment from a town code enforcement officer. The commenter points out that a new convenience store in a service station will be required by the 2015 IBC to have restrooms for employees and/or customers, and the commenter expresses concern that the extra space that will be required in the restrooms to accommodate diaper changing stations will decrease sales space and will have a negative impact on small businesses in New York State. The commenter also expresses concern that owners of existing buildings who wish to perform a “substantial renovation” may simply fail to apply for a permit to avoid the need to install the changing stations that would be required by this rule. The commenter suggests adding exceptions to this rule. The commenter argues that “at the very least” the rule should set a minimum floor area that a service station retail store must exceed before it would be required to install changing stations.

RESPONSE TO COMMENT 4: The legislation to be implemented by this rule provides that the Uniform Code must include provisions requiring diaper changing stations available for use by both male and female occupants in all newly constructed buildings in the state that have one or more areas classified as Assembly Group A occupancies or mercantile group M occupancies. DOS believes that providing exceptions for any newly constructed building would not satisfy this statutory mandate.

The legislation to be implemented by this rule also provides that the Uniform Code must include provisions requiring diaper changing stations available for use by both male and female occupants in all existing buildings in the state that have one or more areas classified as Assembly Group A occupancies or Mercantile Group M occupancies and that undergo a substantial renovation. The legislation provides that the rule shall prescribe the type of renovation that constitutes a “substantial renovation” for the purpose of triggering the requirement in existing buildings. As discussed above in the Response to Comment 1, this rule does define the term “substantial renovation.” That definition includes five categories of work, the first four of which involve the construction or installation of new public toilet rooms or a “level 2” alteration of existing public toilet rooms. The fifth category does not involve the construction or installation or a new public toilet room or a level 2 alteration of an existing public toilet room, but does require a “level 3” alteration of the existing building and, even then, does not require installation of changing stations unless they can be installed in existing public toilet room(s) without having to reconfigure the space therein or increase the floor area thereof. DOS believes that the definition of “substantial renovation” in this rule will minimize the impact this rule will have on existing buildings, while still achieving the Legislative purpose of providing diaper changing stations that can be used by both male and female occupants.