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Proposed Rules: Open to Comments

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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

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): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

Statement of Basis and Purpose of Final Rule

 

The Environmental Control Board held a Public Hearing on October 16, 2103 on three (3) Proposed Rules concerning amendments to its Rules of Procedure, Department of Transportation (“DOT”) Penalty Schedule, Food Vendor Administrative Code Penalty Schedule and the Health Code and Miscellaneous Food Vendor Violations Penalty Schedule. As a result of the October 16, 2013 Public Hearing, ECB is amending two (2) penalty schedules--the Food Vendor Administrative Code Penalty Schedule (“Food Vendor Penalty Schedule”) found in Section 3-107 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York (“Food Vendor Penalty Schedule”) and the Health Code and Miscellaneous Food Vendor Violations Penalty Schedule (“Health Penalty Schedule”) found in Section 3-110 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York. One member of the public attended the Public Hearing and two (2) representatives  of  DOT and two (2) representatives  of  the Department of Health and Mental Hygiene (“DOHMH”) attended the public hearing;  the member of the public testified at the public hearing on this proposed rule. No written comments were received. The Board has considered the testimony from the member of the public concerning the Proposed Rule.

 

The Department of Health and Mental Hygiene (DOHMH) extensively amended Title 24 RCNY Chapter 6 (Mobile Food Vending), effective April 11, 2013. Chapter 6 expands on general provisions in Health Code Articles 81 and 89. This has resulted in the need for changes in the current ECB Penalty Schedules including the addition of new penalties for Chapter 6 violations.

 

The most significant changes to Chapter 6 include a new §6-03 (Classification scheme for mobile food vending units).  This section classifies units from “A” to “E” according to the kinds of operations (processing or non-processing), the kinds of food served (potentially hazardous requiring temperature control for safety or non-potentially hazardous) and whether or not foods are pre-packaged.   The classifications determine the kind of equipment that will be required by the mobile food vendors.  Provisions in §6-04 specify materials, construction and design and also require equipment to be properly maintained during use. These violations will be identified in the field while units are in operation and notices of violation will be issued. 

 

Health Code and Chapter 6 penalties to be repealed or amended

The following penalties in §3-110 are being repealed or amended: 

  • Health Code §81.19 (b) – requires light bulbs to be shielded; replaced by 24 RCNY §6-04 (c), which requires adequate lighting as well as shielded bulbs
  • Health Code §81.21 – relating to handwash sinks, and Health Code §89.23 (f), which requires handwash sinks to be provided in accordance with Chapter 6, replaced by specific violations in 24 RCNY §6-04 (d), (f) and (i).
  • Health Code §81.31 – as recently amended now relates to outdoor cooking at establishments other than mobile food vending units and is being repealed.
  • Health Code §89.05 (d) – not needed; this section authorizes the DOHMH to deny permits to ice cream trucks not equipped with beepers and signage; no penalty needed, since without equipment, permits are not issued
  • Health Code §89.23(d) – relates to equipment placement in a mobile food vending unit and is not needed as an operational violation, since improperly-placed equipment would preclude issuance of a permit

 

Effective Date: 
Sun, 12/15/2013

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, October 16, 2013
Proposed Rules Content: 

  

Statement of Basis and Purpose

 In accordance with the authority vested in the Environmental Control Board (ECB) by Sections 1049-a and 1043 of the New York City Charter, ECB is amending two (2) penalty schedules--the  Food Vendor Administrative Code Penalty Schedule (“Food Vendor Penalty Schedule”) found in Section 3-107 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York (“Food Vendor Penalty Schedule”) and the Health Code and Miscellaneous Food Vendor Violations Penalty Schedule (“Health Penalty Schedule”) found in Section 3-110 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York.

The Department of Health and Mental Hygiene (DOHMH) extensively amended Title 24 RCNY Chapter 6 (Mobile Food Vending), effective April 11, 2013. Chapter 6 expands on general provisions in Health Code Articles 81 and 89. This has resulted in the need for changes in the current ECB Penalty Schedules including the addition of new penalties for Chapter 6 violations.

The most significant changes to Chapter 6 include a new §6-03 (Classification scheme for mobile food vending units). This section classifies units from “A” to “E” according to the kinds of operations (processing or non-processing), the kinds of food served (potentially hazardous requiring temperature control for safety or non-potentially hazardous) and whether or not foods are pre-packaged. The classifications determine the kind of equipment that will be required by the mobile food vendors. Provisions in §6-04 specify materials, construction and design and also require equipment to be properly maintained during use. These violations will be identified in the field while units are in operation and notices of violation will be issued.

Health Code and Chapter 6 penalties to be repealed or amended

The following penalties in §3-110 are being repealed or amended: 

  • Health Code §81.19 (b) – requires light bulbs to be shielded; replaced by 24 RCNY §6-04 (c), which requires adequate lighting as well as shielded bulbs
  • Health Code §81.21 – relating to handwash sinks, and Health Code §89.23 (f), which requires handwash sinks to be provided in accordance with Chapter 6, replaced by specific violations in 24 RCNY §6-04 (d), (f) and (i).
  • Health Code §81.31 – as recently amended now relates to outdoor cooking at establishments other than mobile food vending units and is being repealed. Health Code §89.05 (d) – not needed; this section authorizes the DOHMH to deny permits to ice cream trucks not equipped with beepers and signage; no penalty needed, since without equipment, permits are not issued
  • Health Code §89.23(d) – relates to equipment placement in a mobile food vending unit and is not needed as an operational violation, since improperly-placed equipment would preclude issuance of a permit

 

 

Subject: 

Opportunity to comment on Proposed Rule regarding penalties for offenses adjudicated by the Environmental Control Board (ECB).

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

James Macron
Counsel to the Board
ECB
66 John Street
10th Floor
New York, N.Y. 10038
(212) 436-0594

Download Copy of Proposed Rule (.pdf):