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Proposed Rules: Open to Comments

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Agency:
Comment By: 
Wednesday, April 19, 2017
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

The New York City Department of Sanitation (“DSNY”) is proposing to create a new chapter that will include certain provisions of its existing penalty schedule, which is currently found in Title 48 of the Rules of the City of New York, by moving those provisions into Title 16 of the Rules of the City of New York. DSNY also proposes to establish penalties for repeat violations of certain provisions as described in Local Law 75 of 2016.

Currently the penalties for violations of §16-118 of the New York City Administrative Code (“Administrative Code”) that pertain to certain types of littering infractions, are found in 48 RCNY § 3-122. The Office of Administrative Trials and Hearings, Environmental Control Board (“OATH ECB”), is in the process of repealing all penalty schedules in its rules so they can be relocated to the rules of the enforcement agencies with primary rulemaking and policymaking jurisdiction over the laws that underlie these penalties. In conjunction with this rule, OATH ECB will remove the penalties for violations of §16-118 that pertain to littering from its rule.

In 2003, a civil penalty of $100 was established for violations of subdivisions (2), (3), (4), (6) and (7) of §16-118. Additionally in 2003, penalties for violations of subdivisions (3), (4) and (6) were set at $250 for a second offense and $350 for a third and subsequent offense within a 12 month period. Defaults for violations of these provisions are set at the maximum penalty that can be assessed. All penalties are within the monetary ranges specified in §16-118.

Local Law 75 of 2016 amended §16-118(1) to establish a new violation for spitting. In addition, Local Law 75 also establishes a specific penalty for public urination. Local Law 75 was passed as part of the Criminal Justice Reform Act, a package of bills passed by the City Council that aims to build stronger and safer neighborhoods by reducing arrests and incarceration. Local Law 75 imposes a fixed penalty of $75 for first time violations of §16-118(1) and 16-118(6), and provides for a range of penalties for subsequent offenses of those provisions. The penalties for subsequent offenses of those provisions are fixed at the minimum amounts authorized by Local Law 75. Additionally, the default penalties for all violations found in §16-118(1) and for public urination under §16-118(6) have been set at 150 percent of the penalty imposed, not to exceed $400.

Working with the City’s rulemaking agencies, the Law Department, OMB, and the Office of Operations conducted a retrospective rules review of the City’s existing rules, identifying those rules that will 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 meets the criteria for this initiative.

DSNY’s authority for these rules is found in sections 753 and 1043 of the New York City Charter, and section 16-118 of the New York City Administrative Code.

Subject: 

DSNY Proposed Rule Relating to Penalties for Littering Offenses

Location: 
DSNY Headquarters
125 Worth Street Room 819
New York, NY 10013
Contact: 

Madelynn Liguori mliguori@dsny.nyc.gov

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, October 25, 2016
Proposed Rules Content: 
 

Statement of Basis and Purpose

 

            The Department published in the City Record on June 16, 2016 a notice of intention to repeal, among other sections of the New York City Health Code (“Health Code”), §153.01 (Littering prohibited) of Article 153 (Littering and Disposal of Refuse) of the Health Code.  The Statement of Basis and Purpose for that proposal noted that §153.01 duplicates provisions in Title 16 of the New York City Administrative Code  (“Administrative Code”), which are currently enforced by the NYC Department of Sanitation (“DSNY”). The Department now is proposing that the Board of Health repeal all of the remaining sections of Article 153 since they also are redundant and no longer needed nor enforced.  Since the proposal to repeal §153.01 is pending separately before the Board, that section is not included in this proposal. 

        Throughout the City’s history, regardless of the City’s form of government, safe, efficient and effective garbage and waste disposal has presented legal and practical difficulties and is considered an important aspect of public health.  Most of Article 153 was adapted from earlier provisions of the City’s Sanitary Code, the precursor of the Health Code, and reflect even earlier colonial ordinances predating the formation of the City, the Health Department and the Board of Health.  For example, a 1657 New Amsterdam ordinance is generally credited as the first attempt to prohibit the 1,000 or so inhabitants of that colony from throwing garbage and refuse into the streets.[1]  The City’s various councils and temporary boards of health regulated and enforced waste disposal regulations as a public health matter, even after formation of the City Department of Street Cleaning, the predecessor of DSNY, in the 1890’s.  

    However, current day-to-day management and regulation of these matters are the responsibility of State and other City agencies. As noted above, DSNY is responsible for enforcement of street cleanliness, littering and dumping laws in accordance with Title 16 of the NYC Administrative Code and Title 16 of the Rules of the City of New York.  The NYS Department of Environmental Conservation and City Department of Environmental Protection monitor and maintain the cleanliness of the navigable waters surrounding the city and, in compliance with the federal Clean Waters Act and the NYS Environmental Conservation Law, limit and treat sewage contaminants that may find their way into the city’s waters.  The NYC Department of Buildings enforces the Building Code and its rules concerning management of dust and debris at building construction sites.[2]

    While the Department is proposing that the Board of Health repeal the remaining portions of Article 153, which has not been enforced for many years, the Department continues to take very seriously its responsibilities under the NYC Charter which authorizes the Department to “supervise and regulate the public health aspects of sewage disposal and water pollution.”[3]   The Board of Health and the Commissioner supervise and regulate these areas by using their authority under Title 17 of the NYC Administrative Code to order abatement and remediation of any nuisances that might contaminate the City’s navigable waters and streets and that endanger the health of any person or the public health.   

     Following are brief descriptions of the current provisions of Article 153 and the reasons for their repeal:

  • §153.03-Exposure or agitation of certain materials prohibited

This section is essentially the same as NYC Administrative Code §16-118 (3), enforced by DSNY.

  • §153.05-Precautions during construction or demolition work

Chapter 33 of the NYC Building Code (Safeguards during construction or demolition) comprehensively regulates all matters related to debris and dust created as part of construction or demolition, rendering this provision no longer necessary.

  • §153.07-Exposure of rags, barrels, boxes and other materials prohibited.

This is a very archaic provision that essentially duplicates prohibitions on littering.

  • §153.09-Throwing or dropping offensive matter into streets, public places, rivers and other places prohibited.

This provision duplicates provisions of Administrative Code §§16-118 (4) and 16-119 (a).

  • §153.11- Spilling or scattering from vehicles prohibited

This provision duplicates NYC Administrative Code §16-118(4) and NYS Vehicle and Traffic Law §380-a (1).

  • §153.13- Interference with Department of Sanitation employees prohibited

This provision is identical to NYC Administrative Code §16-118 (7) and subdivision (8) of this section provides for criminal penalties for violations.

  • §153.15- Interference with refuse placed for collection prohibited

This provision is similarly incorporated in NYC Administrative Code §16-118 (7).

  • §153.19- Duties of owners or persons in charge of premises.  

Duties of owners are specified in NYC Administrative Code §16-118 (2).

  • §153.21- Removal of dead or diseased animals and offensive materials regulated; use and condition of vehicles.

DSNY is charged with removal of dead animals and other offensive material, e.g., “night soil.”  See, e.g., NYC Administrative Code §16-113.

  • §153.23- Filling of land; use of materials.

DSNY regulations (16 RCNY Chapter 3 – Lands, land under water and landfills) provide for management of landfills in detail.

  • §153.25- Interference with the use of docks, piers and bulkheads for the disposal of offensive materials prohibited

Matters relating to use of docks, piers and bulkheads surrounding the city are the responsibility of the City’s Department of Small Business Services. See NYC Charter §1301(2).

                                                                                     Statutory Authority

            These amendments to the Health Code are promulgated pursuant to Sections 558 and 1043 of the New York City Charter (“Charter”).  Section 558 of the Charter empowers the Board of Health (“Board”) to amend the Health Code and to include in the Health Code all matters to which the authority of the New York City Department of Health and Mental Hygiene (“Department”) extends. Section 1043 grants the Department rulemaking authority. 




[1]  There are many descriptions of the City’s history of struggles with waste disposal.  See, e.g., Edwin G. Burrows and Mike Wallace, Gotham: A History of New York City to 1898, Oxford University Press, 1999; John Duffy, A History of Public Health in New York City 1625-1866, Russell Sage Foundation, 1968; and Robin Nagle, Picking Up, On the Streets and Behind the Trucks with the Sanitation Workers of New York City, Farrar, Straus and Giroux, 2013.  Professor Nagle is anthropologist in residence at the City Department of Sanitation.

[2]  It should be noted that the NYC Department of Health & Mental Hygiene continues to enforce Health Code §173.14 mandating safe work practices in renovations that may disturb lead-based paint.

[3]  NYC Charter §556 (c)(7).

 

 

Subject: 

There is no public hearing scheduled for this rule.

Contact: 

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 

Statement of Basis and Purpose

Background

            The Board of Health is repealing as redundant, no longer needed, or no longer enforced, the following provisions of the New York City Health Code (“Health Code”): sections 139.05 (Littering prohibited) and 139.07 (Smoking prohibited) of Article 139; sections 153.01 (Littering prohibited) of Article 153; and section 181.03 (Spitting prohibited) of Article 181, all of Title 24 of the Rules of the City of New York.

Repeal sections 139.05 (Littering prohibited) and 153.01 (Littering prohibited)

Section 139.05 of the Health Code prohibits littering or the creation of an unsanitary condition in or on a public transportation facility.  The New York City Administrative Code (“Administrative Code”) prohibits littering in the City generally. Specifically, Administrative Code § 16-118(1) prohibits littering in public spaces. Originally, when promulgated in 1991, Health Code § 139.05 was intended to encompass littering in “any public transportation facility which may not be a ‘public place’ within the meaning of the local law” to distinguish it from the more general Administrative Code § 16-118(1).  However, Health Code § 139.05 is redundant as it is duplicative of Administrative Code § 16-118(1) inasmuch as a public transportation facility can be considered a “public space” within the meaning of Administrative Code § 16-118(1). 

            Similarly, Health Code § 153.01 prohibiting littering by a person or an employee is duplicative of Administrative Code § 16-118(1) which also prohibits littering by persons or their employees “upon any street or public place, vacant lot, air shaft, areaway, backyard court or alley.”

Repeal section 139.07 (Smoking prohibited)

            Health Code § 139.07(a) prohibiting smoking or the carrying of “an open flame or a lighted match, cigar, cigarette or pipe in or on a public transportation facility” is duplicative of Administrative Code § 17-503 of the City’s Smoke-Free Air Act which prohibits smoking in public transportation facilities. In addition, New York City Fire Code (“Fire Code”) § 308(3) makes it unlawful to “place or discard, or cause to be placed or discarded, an open flame, lighted match…where it can cause the ignition of combustible material or combustible waste…”  The plain meaning of Fire Code § 308(3) would cover public transportation facilities.

Similarly, Health Code § 139.07(b) allowing owners or persons in charge of public transportation facilities to designate areas where smoking is permitted is not necessary as Administrative Code § 17-503 and the New York State Public Health Law § 1399-o prohibit smoking in all areas of public transportation facilities.

Repeal section 181.03 (Spitting prohibited)

            Health Code § 181.03(a) and (b) prohibiting spitting in common public areas or in any public transportation facility and requiring the posting of signs prohibiting spitting at public transportation facilities is no longer enforced and no longer needed as there are rules prohibiting spitting in public transportation facilities and conveyances servicing the city such as Metropolitan Transportation Authority conveyances and facilities (21 NYCRR § 1050.7(a)), Staten Island Rapid Transportation Authority facilities (21 NYCRR § 1040.7(a)), Metro-North facilities and trains (21 NYCRR § 1085.7(a)), and Long Island Railroad terminals, stations, and trains (21 NYCRR § 1097.7(a)).  In addition, it is expected that the City Council will amend Administrative Code § 16-118 to prohibit spitting in common areas of private and public buildings and in public transportation facilities.

Statutory Authority

            These amendments to the Health Code are promulgated pursuant to Sections 558 and 1043 of the New York City Charter (“the Charter”).  Section 558 of the Charter empowers the Board of Health (“the Board”) to amend the Health Code and to include in the Health Code all matters to which the authority of the New York City Department of Health and Mental Hygiene (“the Department”) extends. Section 1043 grants the Department rulemaking authority. 

 

 

Effective Date: 
Fri, 10/21/2016