File No. 34733

This rule was published in the May 15, 2011, issue (Vol. 2011, No. 10) of the Utah State Bulletin.


Health, Epidemiology and Laboratory Services, Environmental Services

Rule R392-510

Utah Indoor Clean Air Act

Notice of Proposed Rule

(Amendment)

DAR File No.: 34733
Filed: 04/28/2011 11:32:24 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The reason for the proposed change is to clarify the intent of the Utah Indoor Clean Air Act (UICAA) in regards to use of tobacco which is not under self-sustained combustion, but is heated.

Summary of the rule or change:

The proposed changes clarify the definition of "lighted tobacco" to include tobacco products that may be heated and smoked in places of public access. The proposed language places the use of heated tobacco under the same restrictions as the use of tobacco that is under self-sustained combustion in places of public access.

State statutory or constitutional authorization for this rule:

  • Title 26, Chapter 38
  • Subsection 26-1-30(2)
  • Section 26-15-1 et seq.

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the current state budget. State agencies have no direct enforcement responsibility for this rule, thus no cost is expected.

local governments:

There will be an increase in costs to local health departments (LHDs) which will have the responsibility of enforcement of the UICAA. As enforcement of the UICAA is done mainly on a "complaint" basis, the actual cost is not possible to determine as it is unclear how many complaints may be received by the LHDs. Based on input from LHDs, we are only aware at this time of a few places of public access where smoking using heated tobacco is occurring. Some counties have already passed regulations prohibiting the use of heated tobacco.

small businesses:

Businesses that allow the use of heated tobacco will be severely affected for that portion of their business based on the use of heated tobacco products. Businesses who provide other services, such as food preparation, will be impacted, but it is difficult to put an exact cost on this. As stated above, the number of facilities who will be impacted is small as some counties already have passed regulations prohibiting the use of heated tobacco products. Others have denied business permits to those businesses who would allow the use of heated tobacco products.

persons other than small businesses, businesses, or local governmental entities:

Businesses that allow the use of heated tobacco will be severely affected for that portion of their business based on the use of heated tobacco products. Businesses who provide other services, such as food preparation, will be impacted, but it is difficult to put an exact cost on this. As stated above, the number of facilities who will be impacted is small as some counties already have passed regulations prohibiting the use of heated tobacco products. Others have denied business permits to those businesses who would allow the use of heated tobacco products.

Compliance costs for affected persons:

The compliance costs for affected persons are difficult to determine. However, a facility which relies on revenue from providing a place to smoke heated tobacco will be severely impacted. The number of projected violations is not known, but is deemed to be low statewide, based on the estimated number of facilities. A cost would only be incurred if there were to be a dispute whether or not a product being smoked contained tobacco. Sample analyses could run a few hundred dollars per analysis.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no question that businesses that currently permit the use of heated tobacco products will have to change a portion of their business model, if this rule takes effect. Based on public and scientific input received to date, I am persuaded that the impact on the public's health by permitting the use of heated tobacco products in a public place, greatly outweighs any fiscal impact.

David Patton, PhD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Epidemiology and Laboratory Services, Environmental Services
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

  • Ronald Marsden at the above address, by phone at 801-538-6191, by FAX at 801-538-6564, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/14/2011

Interested persons may attend a public hearing regarding this rule:

  • 06/06/2011 03:00 PM, Cannon Health Building, 288 N 1460 W, Room 125, Salt Lake City, UT

This rule may become effective on:

06/21/2011

Authorized by:

David Patton, Executive Director

RULE TEXT

R392. Health, Epidemiology and Laboratory Services, Environmental Services.

R392-510. Utah Indoor Clean Air Act.

R392-510-2. Definitions.

The definitions in Section 26-38-2 apply to this rule in addition to the following:

(1) "Agent" means the person to whom a building owner has delegated the maintenance and care of the building.

(2) "Area" means a three dimensional space.

(3) "Building" means an entire free standing structure enclosed by exterior walls.

(4) "Building owner" means the person(s) who has an ownership interest in any public or private building.

(5) "Employer" means any individual, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees or who contracts with one or more persons, the essence of which is the personal labor of such person or persons.

(6) "Enclosed" means space between a floor and ceiling which is designed to be surrounded on all sides at any time by solid walls, screens, windows or similar structures (exclusive of doors and passageways) which extend from the floor to the ceiling.

(7) "Executive Director" means the Executive Director of the Utah Department of Health or his designee.

(8) "Facility" means any part of a building, or an entire building.

(9) "HVAC system" means the collective components of a heating, ventilation and air conditioning system.

(10) "Lighted Tobacco" means both tobacco that is under self sustained combustion and tobacco that is heated to a point of smoking or vaporizing.

(1[0]1) "Local Health Officer" means the director of the jurisdictional local health department as defined in Title 26A, Chapter 1, or his designee.

(1[1]2) "Nonsmoker" means a person who has not smoked a tobacco product in the preceding 30 days.

(1[2]3) "Operator" means a person who leases a place from a building owner or controls, operates or supervises a place.

(1[3]4) "Place" means any "place of public access", or "publicly owned building or office", as defined in Title 26, Chapter 38.

(15) "Smoking" means the possession of any lighted tobacco product in any form.

(1[4]6) "Workplace" means any enclosed space, including a vehicle, in which one or more individuals perform any type of service or labor for consideration of payment under any type of employment relationship. This includes such places wherein individuals gratuitously perform services for which individuals are ordinarily paid.

 

R392-510-5. Smoking Prohibited Entirely in Places of Public Access and Publicly Owned Buildings and Offices.

(1) Places listed in Section 26-38-2(1)(a) through (p) are places of public access and smoking is prohibited in them except as provided for in Section 26-38-3(2).

(2) It is the responsibility of the owner or operator to provide evidence to the local health department upon request that the facility is in compliance with this rule.

 

R392-510-12. Signs and Public Announcements.

Signs required in this section must be easily readable and must not be obscured in any way. The words "No Smoking" must be not less than 1.5 inches in height. If the international "No Smoking" symbol is used alone, it must be at least 4 inches in diameter.

(1) In a place where smoking is prohibited entirely, the building owner, agent, or operator must conspicuously post a sign using the words, "No smoking is permitted in this establishment" or a similar statement, which shall also include the international no-smoking symbol, on all entrances or in a position clearly visible on entry into the place.

(2) In a place where smoking is partially allowed, the building owner, agent, or operator must conspicuously post a sign using the words, "No smoking is permitted except in designated areas" or a similar statement, which shall also include the international no-smoking symbol, on all entrances or in a position clearly visible on entry into the place.

(3) In a place where smoking is allowed in its entirety, the building owner, agent, or operator must conspicuously post a sign using the words, "This establishment is a smoking area in its entirety" or similar statement.

(4) The building owner, agent, or operator must post a sign at all smoking-permitted areas provided for under Section 26-38-3(2)(a), (b), and (c). The sign must have the words, "smoking permitted" or similar wording and include the international smoking symbol.

(5) The building owner, agent, or operator must post a sign inside the exit of all smoking-permitted areas, if the exit leads to a smoking-prohibited area. The sign must have the words, "smoking not permitted beyond this point" or similar wording and include the international no-smoking symbol.

(6) In public lodging facilities that designate guest rooms as smoking allowed, the building owner, agent, or operator must conspicuously post a permanent sign on the smoking-allowed guest room door and meet the requirements of R392-510-6(1) and (2).

(7) In nursing homes, assisted living facilities, small health care facilities and hospitals with a certified swing-bed program that designate private residential sleeping rooms as "smoking allowed," the building owner, agent, or operator must conspicuously post a permanent sign on the door and meet the requirements of R392-510-6(1) and (2).

(8) The building owner, agent, or operator of an airport terminal, bus station, train station, or similar place must provide announcements on a public address system as often as necessary but not less than four times per hour during the hours that the place is open to the public, as follows:

(a) If smoking is not permitted, the announcements shall convey that the Utah Indoor Clean Air Act prohibits smoking in the place.

(b) If smoking is partially permitted, the announcements shall convey that the Utah Indoor Clean Air Act requires smokers to smoke only in those areas specifically designated for smoking.

(9) The building owner, agent, or operator of a sports arena, convention center, special events center, concert hall or other similar place must provide announcements on a public address system prior to the beginning of any event, at intermissions, at the conclusion of the event and any other break in the program or event, as follows:

(a) If smoking is not permitted, the announcements shall convey that the Utah Indoor Clean Air Act prohibits smoking in the place.

(b) If smoking is partially permitted, the announcements shall convey that the Utah Indoor Clean Air Act requires smokers to smoke only in those areas specifically designated for smoking.

(10) The building owner, agent, or operator of a large place, such as an airport, university, hotel or motel, or sports arena may, in writing, request the assistance of the local health officer to establish an effective signage and public announcements plan. The local health officer may cause the plan to be modified at any time to protect nonsmokers from being exposed to tobacco smoke.

(11) Buildings that are places of worship operated by a religious organization are not required to post signs.

(12) In a place of public access where the smoking of non-tobacco products is allowed and smoking of tobacco is prohibited, a sign shall be posted indicating that tobacco products may not be smoked.

 

KEY: public health, indoor air pollution, smoking, ventilation

Date of Enactment or Last Substantive Amendment: [October 31, 2007]2011

Notice of Continuation: April 23, 2007

Authorizing, and Implemented or Interpreted Law: 26-1-30(2); 26-15-1 et seq.; 26-38-1

 


Additional Information

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For questions regarding the content or application of this rule, please contact Ronald Marsden at the above address, by phone at 801-538-6191, by FAX at 801-538-6564, or by Internet E-mail at [email protected].