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Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, August 7, 2018
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

The Office of Administrative Trials and Hearings’ Environmental Control Board (OATH ECB) is proposing to repeal its Food Vendor Penalty Schedule, Health Code and Miscellaneous Food Vendor Violations Penalty Schedule, Health Code Lead Abatement Penalty Schedule, and Public Health Law Penalty Schedule rules. These schedules are found in Sections 3-107, 3-110, 3-112, and 3-117 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York (RCNY), and contain penalties for violations of provisions in Title 17 of the NYC Administrative Code, New York State Public Health Law, the NYC Health Code, and Chapter 6 of Title 24 of the Rules of the City of New York. At the same time, DOHMH is proposing two companion rules adding to its rules a Mobile Food Vending Unit Penalty Schedule and a penalty schedule for the remaining violations issued by DOHMH.

The context for this proposed repeal is that OATH ECB is in the process of repealing all penalty schedules in its rules codified at Subchapter G of Chapter 3 of Title 48 of the RCNY so that they can be incorporated into the rules of the agencies having rulemaking and policymaking jurisdiction over the laws underlying these penalties.

Although OATH ECB is empowered to impose penalties under the New York City Charter and has until now promulgated penalty schedules, the regulatory and enforcement agencies have the necessary expertise to determine appropriate penalties for violation of the rules and laws within their jurisdiction based on the severity of each violation and its effect on City residents. Moving the penalty schedule to the enforcement agency’s rules will also make it easier for the public to find the penalties, which will be located within the same chapter as the rules supporting the violations alleged in the summonses. Finally, the proposed rule repeal will speed up the rulemaking process by eliminating the need for OATH ECB approval of proposed or amended penalties for agency rules that have already been established by the legislature and/or that have already undergone the City Administrative Procedure Act (CAPA) process by the enforcement agency. The public will still have the opportunity to comment on proposed penalties during that process.

Working with the City’s rulemaking agencies, the Law Department, the Mayor’s Office of Management and Budget, and the Mayor’s Office of Operations conducted a retrospective rules review of the City’s existing rules, identifying those rules that could 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 meeting the criteria for this initiative.

Section 1. The Food Vendor Penalty Schedule rule, found in Section 3-107 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Section 2. The Health Code and Miscellaneous Food Vendor Violations Penalty Schedule rule, found in Section 3-110 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Section 3. The Health Code Lead Abatement Penalty Schedule rule, found in Section 3-112 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Section 4. The Public Health Law Penalty Schedule rule, found in Section 3-117 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Subject: 

.OATH ECB Proposed Repeal of the Food Vendor Penalty Schedule, Health Code and Miscellaneous Food Vendor Violations Penalty Schedule, Health Code Lead Abatement Penalty Schedule, and Public Health Law Penalty Schedule rules

Location: 
10th Floor Conference Room
66 John Street 10th Floor
New York, NY 10038
Contact: 

OATH Rules (212) 436-0708

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

 

Statement of Basis and Purpose of the Amendment

 

The authority for this amendment is found in §§556 and 558 of the New York City Charter.   Sections 558(b) and (c) of the Charter empower the Board of Health to amend the Health Code and to include in the New York City Health Code (the “Health Code”) all matters to which the Department’s authority extends. Section 1043 grants the Department rule-making authority. 

 

    The Charter provides the New York City Department of Health and Mental Hygiene (the “Department” or “DOHMH”) with jurisdiction to protect and promote the health of all New Yorkers.

The Bureau of Child Care, in the Department’s Division of Environmental Health, enforces Article 47 (Child Care Services) of the Health Code, which regulates all public and private group day care services providing care for children under six years of age. Health and safety standards for school-based programs for children ages three through five are established in Article 43 of the Health Code.     

At its meeting on December 10, 2013, the Board of Health amended Articles 43 and 47 to add a new requirement that children between 6 and 59 months of age attending school based programs and child care services receive annual influenza vaccinations.  The resolution as adopted contained a drafting error in §47.25(a)(2)(C), which used the term “school” instead of “permittee,” to refer to the entity holding a child care service permit.   

The Board of Health is amending Article 47 to correct the error and substitute the term “permittee” for “school” in this provision.

 

Effective Date: 
Mon, 07/21/2014

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, April 21, 2014
Proposed Rules Content: 

Statement of Basis and Purpose of the Proposed Amendment

 

The authority for these amendments is found in §§556 and 558 of the New York City Charter.   Sections 558(b) and (c) of the Charter empower the Board of Health to amend the Health Code and to include in the New York City Health Code (the “Health Code”) all matters to which the Department’s authority extends. Section 1043 grants the Department rule-making authority. 

 

    The Charter provides the New York City Department of Health and Mental Hygiene (the “Department” or “DOHMH”) with jurisdiction to protect and promote the health of all New Yorkers.

The Bureau of Child Care, in the Department’s Division of Environmental Health, enforces Article 47 (Child Care Services) of the Health Code, which regulates all public and private group day care services providing care for children under six years of age. Health and safety standards for school-based programs for children ages three through five are established in Article 43 of the Health Code.     

At its meeting on December 10, 2013, the Board of Health amended Articles 43 and 47 to add a new requirement that children between 6 and 59 months of age attending school based programs and child care services receive annual influenza vaccinations.  The resolution as adopted contained a drafting error in §47.25(a)(2)(C), which used the term “school” instead of “permittee,” to refer to the entity holding a child care service permit.   

The Department is requesting that the Board amend Article 47 to correct the error and substitute the term “permittee” for “school” in this provision.

 

Subject: 
Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose of Rule

 

Statutory Authority

This amendment to the New York City Health Code (“Health Code”) is made pursuant to Sections 556, 558 and 1043 of the New York City Charter (“Charter”).  Section 556 of the Charter grants the New York City Department of Health and Mental Hygiene (“Department”) jurisdiction to regulate all matters affecting health in the City of New York.  Specifically, Section 556 (c)(11) of the Charter authorizes the Department to regulate all aspects of ionizing radiation within the five boroughs of New York City. Sections 558 (b) and (c) of the Charter empower the Board of Health to amend the Health Code and to include in the Health Code all matters to which the Department’s authority extends.  Section 1043 of the Charter grants rule-making powers to the Department.

 

Section 228 of the New York State Public Health Law provides that local enactments like section 175.07 of the Health Code must be consistent with the requirements of the New York State Sanitary Code, as codified at Chapter I of Title 10 of the Codes, Regulations and Rules of New York State.  In order to be consistent with recent State Sanitary Code amendments involving updated quality assurance requirements for external beam and brachytherapy radiation treatment, the Board of Health is effecting commensurate changes to the corresponding requirements in the Health Code. 

 

Background

The Department, 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 radiation machines and radioactive materials are contained in Article 175 of the Health Code.  ORH registers and inspects radiation machines, and 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 6500 registered facilities possessing radiation machines and 375 licensed sites in New York City possessing radioactive material for medical, academic and research purposes. Of the registered facilities, approximately 6440 are registered diagnostic X-ray facilities and 60 are therapeutic X-ray facilities possessing certified registrations.

The State Sanitary Code was recently amended to reflect updated quality assurance requirements for external beam and brachytherapy radiation treatment (see, 10 NYCRR §16.24(a)). In order to maintain consistency, the Board of Health is making commensurate changes to the corresponding requirements in §175.07(c) of Article 175 of the Health Code.

 

Rule Elements and Goals

The Board of Health is repealing current subdivision (c) of §175.07 and replacing it with a new subdivision (c) that includes updated quality assurance standards for radiation materials licensees or radiation equipment registrants who are authorized to administer external beam therapy or brachytherapy to humans.  The new subdivision includes quality standards appropriate for newer, more complex radiation therapy treatment systems and also requires additional verification of radiation set-up equipment and treatment plans prior to administering radiation treatments to patients.  New subdivision (c) also requires quality assurance programs to cover data communication/transfer between component systems of planning and treatment delivery systems to ensure complete, uncorrupted data transfer.  Additionally, the new subdivision requires licensees and registrants to credential individuals involved in quality assurance testing, treatment planning, and radiation treatment of patients.  Finally, new subdivision (c) requires licensees and registrants to be accredited in radiation oncology by the American College of Radiology or the American College of Radiation Oncology, or another equivalent accrediting organization, within 18 months of the publication of this rule.

 

Effective Date: 
Mon, 04/21/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

 

Statement of Basis and Purpose of Rule

 

Background of Rule Amendments

 

On November 2, 2010, New York City voters approved a number of Charter revisions including an amendment authorizing the Mayor, by executive order, to consolidate City administrative tribunals into the Office of Administrative Trials and Hearings (“OATH”). In addition, they required the establishment of a committee whose mandate was to recommend which tribunals or types of cases should be transferred to OATH. The Mayor's Committee on Consolidation of Administrative Tribunals issued its "Report and Recommendations," dated June 7, 2011, containing an Appendix with recommended modifications to rules of the various tribunals ("Report" and "Appendix"). The set of rules contained in the Appendix that were designated as OATH rules, referred to below as "interim rules," would be continued until OATH conducted rulemaking governing the procedures of the tribunals to be under its jurisdiction.

 

As further authorized by the Charter amendments, on June 8, 2011, the Mayor issued E.O. 148, which, among other things, transferred to OATH the administrative tribunals then located within the Department of Health and Mental Hygiene (“DOHMH”) and the Taxi and Limousine Commission, effective July 3, 2011.

 

With respect to the Health Tribunal, E.O. 148, by approving the Report and adopting its Appendix, provided that the rules and procedures governing adjudication at the DOHMH Administrative Tribunal would generally be continued with some modifications as interim rules of OATH applicable to the Health Tribunal within OATH. These rules and procedures were contained in Article 7 of the Health Code. This set of interim rules would be continued until such time as OATH completed rulemaking in accordance with the Charter. See E.O. 148, § 1(b) and (c).

 

As further background, two sets of rules containing provisions that are being amended by this rule are included as an endnote to this publication: (1) the interim rules applicable to the Health Tribunal that were contained in the Appendix to the Report, and (2) Article 7 (Administrative Tribunal) of the Health Code as it existed prior to the promulgation of E.O. 148.

 

Moreover, the Board of Health has proposed repealing the remaining provisions of

Article 7 of the Health Code within its jurisdiction and making certain other conforming changes to the Health Code, including adding a new § 3.12 concerning the operations of the Health Tribunal at OATH. The rulemaking actions of DOHMH, the Board of Health, and OATH are being coordinated so that the amendments enacted by each entity will take effect on the same date.

 

Health Code provisions, as described in this proposal, are set forth in a separate portion of Title 24 of the Rules of the City of New York. Unless otherwise specified, references to the Health Code that are included here refer to provisions modified in accordance with E.O. 148.

 

Summary of Rule Amendments

 

OATH will codify these interim rules by incorporating them, with some further modifications reflecting OATH practice, into a new Chapter 6 in Title 48 of Rules of the City of New York. The interim rules will now be renumbered and further modified, and they cover the following areas:

 

·         Replacing all references to the existence and jurisdiction of the DOHMH Tribunal with references to OATH;

 

·         Modifying various hearing procedures relating to adjournments, notifications, defaults, appeals, and other matters in order to reduce the burden on OATH and respondents, as well as to improve record-keeping;

 

·         Providing language assistance services to respondents when needed; and

 

·         Where appropriate, making these procedural rules consistent with OATH's practices generally and with respect to other tribunals.

 

Specific Amendments to be Enacted

 

Section 6-01(“Definitions Specific to this Chapter”) sets forth the meanings of terms specifically applicable to the Health Tribunal.

 

Section 6-02 (“Jurisdiction, powers and duties of the Health Tribunal”) closely tracks the interim rule (Health Code § 7.03) that transferred the jurisdiction from DOHMH to OATH.

 

Health Code § 7.05 (“Director/Chief Administrative Law Judge”) is repealed and not re- enacted because the position “Director of the Administrative Tribunal” would no longer exist and therefore there would no longer be references to such position in the OATH rules.

 

 

Section 6-03 (“Proceedings before the Health Tribunal”) continues, with technical changes, interim rule Health Code § 7.07, which retained the existing DOHMH rule while reflecting the transfer to OATH. The new rule reflects the transfer by specifying that the reference to the “Department” refers to the Health Tribunal at OATH.

 

 

Section 6-04 (“Appearances”) continues, with several changes, interim rule Health Code

§ 7.09, which retained the former DOHMH rule (except for subdivision (e) governing DOHMH’s settlement authority, which will remain with DOHMH with the added requirement that DOHMH notify OATH of all notices of violation that are withdrawn once DOHMH receives payment from respondents). The new rule makes several substantive changes to the interim rule, described below:

 

·         It moves the provision in subdivision (a) for adjourning telephone or electronic hearings for live hearings to Section 6-05 (h). This section addresses procedures for hearings by phone or other electronic media. It also provides that DOHMH, in addition to the respondent and respondent’s authorized representative, may request an adjournment of a scheduled hearing.

 

·         It removes requirements from former § 7.09(e) for certain findings by the hearing examiner before a default judgment is issued, to make them consistent with procedures currently in place at the Environmental Control Board.

 

·         It replaces the requirement for notice of default judgments by certified mail with notice by regular mail. OATH has found that requiring default decisions to be sent by certified mail is an administrative and financial burden on the Tribunal and, in addition, has downsides for respondents, who often do not follow the extra procedures necessary to claim certified mail. The new rule is consistent with procedures currently in place at the Environmental Control Board.

 

·         Finally, it changes the requirement for when motions for vacating default judgments must be received. The original rule requires receipt within 60 days of the Tribunal's mailing of the judgment to the respondent; the new rule requires receipt within 60 days of the date of the decision, resulting in improved record keeping at the Tribunal.

 

 

Section 6-05 (“Hearings and Adjudications by mail, telephone or other electronic media”) continues, with several changes, interim rule Health Code § 7.11, which retained the existing DOHMH rule as a rule of OATH. The new subdivision (f) provides that if a motion is made at a hearing for the presence of the inspector who issued the violation in question, the hearing examiner must only grant the motion if he or she determines that the inspector’s presence would contribute to a full and fair hearing. This change will result in more efficient hearings and reduce unnecessary delay. The new rule is consistent with procedures currently in place at the Environmental Control Board.

 

As a result of a comment received in connection with the published proposal, subdivision (g) has been revised to correct an inadvertent omission relating to the right of any party (not only the respondent) to request the record of a hearing.

 

Subdivision (j) of § 6-05 provides that OATH will provide appropriate language assistance services to respondents when needed. This subdivision describes how the hearing examiner may make such a determination. The new rule is consistent with procedures currently in place at the Environmental Control Board.

 

Section 6-06 (“Subpoenas”) continues, with changes, interim rule Health Code § 7.13, which retained the existing DOHMH rule. To be consistent with OATH authority, the new rule broadens subpoena power by removing the limitation which restricts the issuance of subpoenas to records and witnesses solely within the control of DOHMH.

Section 6-07 (“Disqualification of hearing examiners”) continues, with changes, interim rule Health Code § 7.15, which retained the existing DOHMH rule as a rule of OATH. The new rule makes several substantive changes to the interim rule, described below:

 

·         It modifies the procedure for making a motion for disqualification by eliminating the need to submit supporting affidavits.

 

·         It shortens the time frame for the hearing examiner’s reply to the motion.

 

·         It allows for a brief adjournment for the purpose of prompt appeal to the Chief Administrative Law Judge or his/her designee in the event that a hearing officer denies the motion for disqualification.

 

·         It provides that a party may raise a denial of a motion for disqualification on appeal.

 

·         The new rule is consistent with procedures currently in place at the Environmental

§  Control Board.

 

Section 6-08 (“Appeals”) continues, with changes, interim rule Health Code § 7.17, which superseded the DOHMH provisions for appeals by a “Review Board” and established an Appeals Unit within the Health Tribunal. Having appeals decided by an Appeals Unit within the Health Tribunal rather than the DOHMH Review Board promotes more independent decisionmaking. Additionally, interim rule Health Code § 7.17 granted DOHMH the right to appeal adverse decisions. In addition to those changes, the new rule now does the following:

 

·         It re-orders some of provisions and adjusts some of the technical requirements for notice and filing in subdivision (c).

 

·         It provides that all appeals be decided on written submissions and the record of the hearing.

 

·         It no longer contains a provision of the prior rule that had allowed parties to make requests to appear before the Appeals Unit (in order to be consistent with the changes above).

 

·         In subdivision (d) of the new rule, it states that a respondent may apply for a waiver of prepayment of fines prior to appealing a decision, thereby making the appeals process more accessible to all respondents regardless of their ability to pay the fines.

 

·         Consistent with its experience with appeals at the ECB Tribunal, OATH anticipates that these changes will increase efficiency and mitigate scheduling difficulties and backlogs without an impact on due process.

 

Former Health Code §7.19 (“Disqualification of member of Review Board”) was superseded in the interim rule and is no longer in effect.

 

Section 6-09 (“Registration and disqualification of certain authorized representatives”) continues and makes technical conforming changes to interim rule Health Code § 7.21, which retained the DOHMH rule as a rule of OATH. The prior changes are contained in Article 7 of the Health Code and Chapter 7 of Title 24 of the Rules of the City of New York.

 

Section 6-10 (“Computation of time”) continues, with modification, interim rule Health Code § 7.23, which retained the existing DOHMH rule as a rule of OATH. Under the interim rule and the former DOHMH rule, when a party had the right or requirement to do an act within a period of time from the date of service of a document, and if service of the document was by mail, five days were added to the period of time. In the new Chapter 6 in Title 48 of RCNY, all such time periods, with the exception of a non-appealing party’s time to respond to an appeal, start from the date of a Tribunal decision instead of the date of service of the document. Accordingly, subdivision (b) of this section is modified to provide that if a Tribunal decision is mailed to a party, seven days will be added to period of time within which the party has the right or requirement to act. This change is made to account for the extra time it is expected to take the Health Tribunal to process and mail the decision.

 

 

Effective Date: 
Fri, 07/20/2012