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Proposed Rules: Closed to Comments (View Public Comments Received:9)

Agency:
Comment By: 
Monday, July 9, 2018
Proposed Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Introduction

At its meeting on March 16, 2010, the Board of Health amended section 81.51 of the New York City Health Code and authorized the Department of Health and Mental Hygiene (DOHMH) to establish a letter grading program for restaurants. The Board determined that providing restaurant grading information will inform consumer choice and will improve restaurants’ compliance with the Health Code and promote high food safety standards. Rules implementing letter grading for restaurants were promulgated in Chapter 23 (Food Service Establishment Sanitary Inspection Procedures and Letter Grading) of the Department’s rules.

Since July 2010, the Department has been grading restaurants to provide New Yorkers with information about the results of sanitary inspections. A restaurant’s grade A, B or C depends on how well the restaurant follows food safety requirements.

Local Law 108 of 2017 requires the Department to extend the grading program to mobile food vending units. It requires the program to be consistent with the restaurant grading program where practicable. These proposed rules comply with those directives by amending Chapter 6 (Mobile Food Vending) of the Department’s rules.

Additional amendments are being proposed to Chapter 6 to update and clarify certain other provisions as described below.

Mobile Food Vending Unit Grading Program Amendments

Mobile Food Grading System

The proposed amendments create a program to grade mobile food vending units to indicate their degree of compliance with the New York City Health Code, New York State Sanitary Code, and these rules at the time of inspection. Section 17-325.3 of the Administrative Code, as added by Local Law 108, requires the Department to design and implement a program consistent with restaurant grading to the extent practicable. The restaurant grading program incentivized New York City restaurants to improve food safety practices and led to greater compliance with the New York City Health Code and New York State Sanitary Code, including a 41 percent drop in sanitary violations in fiscal 2017 from the peak in fiscal year 2012. As elaborated below, and as consistent with restaurant grading program as possible, the program incorporates a prescribed cycle of inspections that generate scores, a scoring system that determines the grade, and the process for posting grades at various points in the inspection cycle.

The scoring system that will determine the grade for mobile units is the same as for restaurants: a score of less than 14 points earns an “A” grade, a score between 14-27 points earns a “B,” and a score of more than 27 earns a grade of “C.”

The annual inspection cycle begins when a unit undergoes an initial inspection. If the unit receives an A grade, the Department will immediately post the A grade on the unit. If the unit fails to earn an “A,” no grade will be assigned and the Department must reinspect the unit seven or more days later. If, at the reinspection, the unit receives an A grade, the Department will immediately post the A grade on the unit. If the unit again fails to earn an “A,” a grade pending card will be posted on the unit by the Department while the unit appeals the grade to the Office of Administrative Trials and Hearings (OATH). (The unit’s operator may choose to post the grade of “B” or “C” earned at the reinspection instead of a grade pending card, in which case the unit must be brought to the Department for it to post the appropriate letter grade.[1]) A unit with a “grade pending” will be required to post its final grade following the opportunity for adjudication at OATH. This inspection scheme is the same for restaurants.

 

Locating Mobile Food Vending Units

Unlike restaurants, which exist at a fixed location, mobile units move and are not required to operate on a set schedule. If the Department cannot locate all of the mobile units that require grades, the grading program will fail; not every unit will be graded and the grades that are posted may not be current. The successful implementation of the mobile food vending grading program, and the ability to mirror restaurant grading as closely as possible, requires adhering to the prescribed inspection schedule and ensuring that accurate and current grades are posted and timely on all units. That necessitates the Department being able to find and inspect units across the City.  To accomplish this and to check for compliance with grade posting requirements, the Department requires each vending unit to be equipped with a location sharing device that will enable the Department to pinpoint the unit’s location when it is to be inspected.

The ability to locate a mobile food vending unit is necessary to implement the mobile food vending unit grading program.  If the Department cannot find a unit to conduct an initial inspection or a reinspection, that unit will not have a current grade. The Department’s historical data reveals that it currently is only able to locate and inspect approximately 80% of the units that have permits to vend food in the City. For about one of every five units, the Department has been unsuccessful at predicting where the unit can be found, based solely on information it has about each unit’s vending locations. The inability to locate units will undermine the purpose of a grading system if a significant number of units are not graded or are posting grades that are inaccurate or out of date, which could degrade the reliability of the mobile food grades and the public’s confidence in the program.  By requiring all units to install location sharing devices, the Department will be able to inspect and grade a sufficient number of units to ensure the integrity of the grading program.

Grading promotes high food safety standards by leveraging consumer purchasing power, which, in turn motivates vendors to comply with food safety rules and achieve A grades. That system -- harnessing consumer interest in A grades to motivate vendors to comply with food safety rules to promote high food safety practices to protect public health -- is only achieved if the grade are accurate and reliable. In order to conduct inspections and keep grades accurate and reliable, the Department must be able to locate the vending units.

Additional Mobile Food Vending Grading Amendments

Amendments related to grading include additional definitions in section 6-02 and new sections 6-16 to 6-21, using a scheme similar to the one in Chapter 23 of the Department’s rules for grading restaurants. New appendices 6-A and 6-B are being added to Chapter 6 to implement scoring of inspection results. Appendices 6-C, 6-C-2 and 6-C-3 set out penalties for civil violation summonses for mobile food vending violations that are adjudicated and sustained at OATH, using a schedule similar to that of Chapter 23 Appendix C (Food Service Establishment and Non Retail Food Service Establishment Penalty Schedule). These new appendices will replace the current penalty schedules for the same violations currently in OATH’s rules.

Other Proposed Amendments to Chapter 6

Amending paragraph (3) of subdivision (b) of section 6-04 to require all mobile food vending units to have a permit-decal space that is a flat, smooth metal surface, which is the best material for the permit decal adhesive.

Amending subdivision (f) of section 6-04 to clarify and extend the deadline for water tank upgrades, and include a new requirement for a mechanical or electronic device to allow vendors to monitor water levels.

Repealing paragraphs (1) and (2) of subdivision (a) of section 6-06 to remove expired provisions related to with the allowable sizes for units other than trucks.

Amending section 6-07(a) to remove the requirement that decals be placed on two sides of a green cart.

Amending section 6-07(b) to remove the requirement of a green cart umbrella.

Amending subdivisions (d) and (h) of section 6-11 to delete the references to reinspection.

Amending section 6-11(l) to allow for revocation or denial of a permit for failing to have or tampering with grade cards or location sharing devices.

Statutory Authority

Section 17-325.3 of the Administrative Code requires the Department to “establish and implement a system for grading and classifying inspection results for each vending vehicle or pushcart using letters to identify and represent a vending vehicle or pushcart’s degree of compliance with laws and rules that require such vending vehicle and pushcart to operate in a sanitary matter to protect public health.”  In addition, section 17-311 of the Administrative Code authorizes the Department to issues rules related to affixing permit plates and letter grades to mobile food carts, and section 17-324 provides authority for any rules necessary pursuant to the mobile food vending requirements in the Administrative Code.

 


[1] Unlike at a restaurant inspection, the Department is requiring operators that choose to post a “B” or “C” grade following a reinspection to bring the unit to the Department to post the grade because the vendor staffing a unit at the time of the reinspection may not be the permit holder with the authority to make the decision. Based on experiences in the preferences of restaurant owners, the Department proposes to immediately post the “grade pending” sign following a reinspection that does not result in an “A” grade as the default, and allow permit holders who would prefer a letter-grade to arrange for it to be posted on the unit by the Department. 

 
 
Subject: 

Proposal to adopt rules governing the grading of mobile food vending units as provided in section 17-325.3 of the Administrative Code of the City of New York. Additional amendments to update and clarify other provisions related to mobile food vending are also proposed.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101
Contact: 

Svetlana Burdeynik, (347) 396-6078, ResolutionComments@health.nyc.gov

Download Copy of Proposed Rule (.pdf):