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Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, May 16, 2016
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

 

 

The Office of Administrative Trials and Hearings’ Environmental Control Board (OATH ECB) is centralizing and streamlining its hearings to make it more efficient for the public to have their cases heard.  As part of this process, OATH ECB is proposing to amend 48 RCNY §3-100, which instructs Hearing Officers to impose penalties set forth in OATH ECB’s rules, to instruct Hearing Officers to impose penalties set forth in the current or future rules of enforcement agencies.

In addition, OATH ECB is repealing its Air Code Penalty Schedule.  This schedule is found in 48 RCNY §3-102, and contains penalties for summonses issued by the New York City Department of Environmental Protection (DEP) for violations of the Air Code. At the same time, DEP will also enact a penalty schedule within its own rules at 15 RCNY Chapter 43. In the future, OATH ECB will repeal all penalty schedules in its rules at Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York (RCNY) so that they, like the Air Code Penalty Schedule, can be relocated to the rules of the agencies with primary rulemaking and policymaking jurisdiction over the laws underlying the violations. 

Although OATH ECB is empowered to impose penalties under the New York City Charter and has until now promulgated penalty schedules, the enforcement agencies have the expertise to recommend appropriate penalties based on the severity of each violation and its effect on City residents. Moving the penalty schedule 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 gone through the City Administrative Procedure Act (“CAPA”) rulemaking process.  The public will still have the opportunity to comment on proposed penalties during this process.

Subject: 

Amendment of 48 RCNY 3-100 of ECB Rules of Procedure and Repeal of ECB Air Code Penalty Schedule.

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

Elizabeth Nolan, OATH ECB, 66 John Street, 10th Floor, New York, NY 10038, (212) 436-0708.

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, March 30, 2016
Proposed Rules Content: 

Statement of Basis and Purpose

The New York City Environmental Control Board (ECB) is proposing to modify the ECB Department of Buildings (DOB) Penalty Schedule found in Section 3-103 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York to encourage swift and decisive compliance with safety-related orders and other regulations at construction sites.

This proposed modification to the penalty schedule will add two new infractions and amend three existing infractions. The new infractions will enable DOB to effectively enforce Commissioner’s Orders relating to the safe operation of construction equipment and other matters that ensure public safety. The amendments increase the penalties for inadequate safety measures during crane, derrick or other hoisting operations and for failure to safeguard all persons and property affected by construction operations, promoting DOB’s zero tolerance policy for abuses of public safety regulations.

 

Subject: 

Amendment of Buildings Penalty Schedule (Operation of Construction Equipment)

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

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Background

             The Department of Health and Mental Hygiene (the Department) regulates food service establishments, which include a broad range of businesses and not-for-profit operations that provide food in individual portion sizes for consumption by members of the public, and enforces Article 81 (Food Preparation and Food Establishments) of the New York City Health Code (the Health Code).  Health Code §81.51 authorizes the Commissioner of the Department to promulgate rules for establishing a system for grading and classifying inspection results. Chapter 23 (Food Service Establishment Sanitary Inspection Procedures and Letter Grading) of Title 24 of the Rules of the City of New York implements such a system, and consists of rules as well as three appendices:  Appendix 23-A (Food Service Establishment Inspection Worksheet); Appendix 23-B (Food Service Establishment Inspection Scoring Parameters-A Guide to Conditions) and Appendix 23-C (Food Service Establishments and Non Retail Food Service Establishments Penalty Schedule).

Reason for making changes

At its March 10, 2015 meeting, the New York City Board of Health amended Article 81, reorganizing and renumbering several sections. Renumbering the Health Code sections means that certain violations listed and described in Appendix 23-C must also be renumbered, and in a few cases the brief descriptions of violations updated to accurately reflect these amendments to the Health Code.  

Changes made   

All references are to the Health Code or, where indicated, to the State Sanitary Code (SSC), except as described below.  

The following is the list of the scored violations where the violation number and/or description must be changed:

 

Violation   Current                 Renumbered Citation

Code          Citation                   and/or Amended Description    

02A      81.09(a)(1) or (5)         81.09(c)(1) and 81.09(c )(5) – separates the violations for poultry and

poultry stuffings from those for stuffed and tenderized meats and meat stuffings      

02A      81.09(a)(2)                  81.09(c)(2) – pork heating temperature changed from 155 degrees F to 150 degrees F

02A      81.09(a)(3)                  81.09(c)(3)

02A      81.09(a)(4)                  81.09(c)(4)

02A      81.09(a)(6)                  81.09(c)(6)

02A      81.09(a)                      81.09(c) – other food heating temperature changed from 145 degrees F to 140 degrees F

02C     81.09(a)(7)                   81.09(d)

02D      81.09(a)(10)               81.09(d)(2)

02E       81.09(g)(5)                 81.09(f)(5)

02F       81.09(d)                     81.11

02G      81.09(c)                      81.09(a)(3)

02G      81.09(b)                     81.09(a)(2)

02I        81.09(f)                      81.09(e)(2)

03B      81.04(c)                       same – adds term “required” to describe shellfish tags

03C     81.04(c)                       same – deletes violation for “source of eggs”

03E      SSC14-1.121               NYCHC 141.13  

03E      81.20(d)                      81.20(c) – spelling error “impropse” corrected to “improper”

03F      81.07(K)                      81.07(k) – lower case subdivision referenced

03G      81.07 (a)(5)                81.07(a)(4)

04C     81.07(J)                       81.07 (j) – lower case subdivision referenced

04E       81.23(d)(3)                same  – deletes pesticides not properly “stored” and moves to 4E below;

04E       SSC14-1.60              deleted; duplicates a general violation 08C  

04H     81.07(a)(3)                  81.07 (a)(2)

04J      81.09(h)                       81.09(g) – deletes “used”)

05A      81.09(b) and (c)          81.09 (b)

05H     81.29(a)                       81.29

06B      81.13(g)                       same – adds “e-cigarettes” to smoking prohibition for food workers

06D     81.27(c)                       81.27(b)

06F      81.27(d)                       81.27(c) 

08B      81.24(a)(1)                  81.24(a)

08B      81.24(b)                      81.24(c)

08C     SSC14-1.60 (e)             81.23(d)(4)

08C     81.23(e)                       81.17(g)

09B      81.09(g)                       81.09(f)

10B      81.20(c)                      81.20(b) – term “maintain” corrected to read “maintained”

10E      SSC14-1.44                81.18(a)

10H     81.29(a)(1)                  81.29(a)

10H     81.29(a)(2)                  81.29(a)

10H     81.29(a)(3)                  81.29(b)(1)

10H     81.29(a)(4)                  81.29(b)(2)

10H     81.29(a)(2)                  81.29(a) – test kit for manual/chemical sanitizing

10H     81.29(a)(4)                  81.29(b)(2) – test kit for mechanical/chemical sanitizing

10I       SSC 14-1.110(e)         81.07(o)

In the list of unscored violations, a new violation code 22G containing a penalty for violations of Administrative Code §16-329 (c) which prohibits use of expanded polystyrene single service articles, is being added.   

One person commented on the brief descriptions of the violations during the comment period for this Rule, but no changes have been made to the penalties originally published or to the violations as described.  

In addition, the original publication of Appendix 23-C in June 2014 indicated, in the Statement of Basis and Purpose, that 

Eventually the Department will be proposing rules fixing penalties for all violations that are adjudicated at the Health Tribunal. Chapter 23 is being amended first to add a new Appendix C fixing penalties for any violation that can be cited against a food service establishment on  inspection because the majority of notices of violation heard at the Health Tribunal are against food service establishments. There are violations listed in Appendix C, however, that are cited more broadly than just against food service establishments.  Examples include failing to prevent a nuisance in violation of Health Code §§3.07 or 3.09, or obstructing an inspection in violation of Health Code §3.15(a).  The penalties proscribed for these violations … will apply in all notices of violation adjudicated at the Health Tribunal and not just when the respondent is a food service establishment. 

(emphasis added) 

However, a statement of this intent was not explicitly included in the published tables at that time. To  further clarify that penalties listed for violations of Article 3 of the Health Code must be applied to all sustained violations that are adjudicated at the OATH Health Tribunal, not just those cited and issued to food service establishments, a note to this effect is now being added to Appendix 23-C. 

The amendments are as follows.

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this Department, unless otherwise specified or unless the context clearly indicates otherwise.

Deleted material is in [brackets]; new text is underlined.

 

 

Effective Date: 
Sat, 08/08/2015

Proposed Rules: Closed to Comments (View Public Comments Received:1)

Agency:
Comment By: 
Friday, May 15, 2015
Proposed Rules Content: 


Statement of Basis and Purpose of Proposed Rule

 Background

             The Department of Health and Mental Hygiene (the Department) regulates food service establishments, which include a broad range of businesses and not-for-profit operations that provide food in individual portion sizes for consumption by members of the public, and enforces Article 81 (Food Preparation and Food Establishments) of the New York City Health Code (the Health Code).  Health Code §81.51 authorizes the Commissioner of the Department to promulgate rules for establishing a system for grading and classifying inspection results. Chapter 23 (Food Service Establishment Sanitary Inspection Procedures and Letter Grading) of Title 24 of the Rules of the City of New York implements such a system, and consists of rules as well as three appendices:  Appendix 23-A (Food Service Establishment Inspection Worksheet); Appendix 23-B (Food Service Establishment Inspection Scoring Parameters-A Guide to Conditions) and Appendix 23-C (Food Service Establishments and Non Retail Food Service Establishments Penalty Schedule)

Reason for making changes

At its March 10, 2015 meeting, the New York City Board of Health amended Article 81, reorganizing and renumbering several sections. Renumbering the Health Code sections means that certain violations listed and described in Appendix C must also be renumbered, and in a few cases the brief descriptions of violations updated to accurately reflect these amendments to the Health Code.

Changes proposed   

All references are to the Health Code or, where indicated, to the State Sanitary Code (SSC), except as described below.  

The following is the list of the scored violations where the violation number and/or description must be changed:

Violation   Current                 Renumbered Citation

Code          Citation               and/or Amended Description    

02A      81.09(a)(1) or (5)         81.09 (c)(1) and 81.09 (c)(5) – separates the violations for poultry and

poultry stuffings from those for stuffed and tenderized meats and meat stuffings      

02A      81.09(a)(2)                  81.09(c)(2) – pork heating temperature changed from 155 degrees F to 150 degrees F

02A      81.09(a)(3)                  81.09(c)(3)

02A      81.09(a)(4)                  81.09(c)(4)

02A      81.09(a)(6)                  81.09(c)(6)

02A      81.09(a)                      81.09(c) – other food heating temperature changed from 145 degrees F to 140 degrees F

02C     81.09(a)(7)                   81.09(d)

02D      81.09(a)(10)                81.09(d)(2)

02E       81.09(g)(5)                 81.09(f)(5)

02F       81.09(d)                     81.11

02G      81.09(c)                      81.09(a)(3)

02G      81.09(b)                      81.09(a)(2)

02I        81.09(f)                      81.09(e)(2)

03B      81.04(c)                      same – adds term “required” to describe shellfish tags

03C     81.04(c)                       same – deletes violation for “source of eggs”

03E      SSC14-1.121               NYCHC 141.13   

03E      81.20(d)                      81.20(c) – spelling error “impropse” corrected to “improper”

03F      81.07(K)                      81.07(k) – lower case subdivision referenced

03G      81.07(a)(5)                  81.07(a)(4)

04C      81.07(J)                       81.07(j) – lower case subdivision referenced

04E      81.23(d)(3)                  same  – deletes pesticides not properly “stored” and moves to 4E below;

04E      SSC14-1.60                 deleted; duplicates a general violation 08C  

04H     81.07(a)(3)                   81.07(a)(2)

04J      81.09(h)                       81.09(g) – deletes “used”)

05A     81.09(b) and (c)            81.09(b)

05H     81.29 (a)                      81.29

06B      81.13(g)                      same – adds “e-cigarettes” to smoking prohibition for food workers

06D     81.27(c)                       81.27(b)

06F      81.27(d)                      81.27(c) 

08B      81.24(a)(1)                  81.24(a)

08B      81.24(b)                      81.24(c)

08C     SSC14-1.60 (e)            81.23(d)(4)

08C     81.23(e)                       81.17(g)

09B      81.09(g)                      81.09(f)

10B      81.20(c)                      81.20(b) – term “maintain” corrected to read “maintained”

10E      SSC14-1.44                81.18(a)

10H     81.29(a)(1)                  81.29(a)

10H     81.29(a)(2)                  81.29(a)

10H     81.29(a)(3)                  81.29(b)(1)

10H     81.29(a)(4)                  81.29(b)(2)

10H     81.29(a)(2)                  81.29(a) – test kit for manual/chemical sanitizing

10H     81.29(a)(4)                  81.29(b)(2) – test kit for mechanical/chemical sanitizing

10I       SSC 14-1.110(e)         81.07(o)

 In the list of unscored violations, the only change is the addition of new violation code 22G containing a penalty for violations of Administrative Code §16-329 (c) which prohibits use of expanded polystyrene single service articles.

 

The authority for these rules is found in §556 of the New York City Charter and §81.51 of the New York City Health Code (the Health Code).

 

 

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

Statement of Basis and Purpose of Final Rule

 

 

The intercity bus industry has grown significantly over the last fifteen years. While intercity buses provide a useful service, their on-street operations can cause serious disruption to the local traffic network and risks to public safety. In certain communities within the City, the proliferation of these buses has led to an increase in traffic and sidewalk congestion; a higher concentration of on-street bus parking, double parking or blocking of travel lanes; and the creation of traffic and safety concerns for drivers, travelers, pedestrians and residents.

 

In an effort to help address these concerns, New York State adopted Vehicle and Traffic Law (VTL) Section 1642-a, which authorized the City to establish an intercity bus permit system inclusive of a schedule of fines or civil penalties for violations of rules related to the system.

 

Section 1642-a provides that notices of violation issued pursuant to the Department of Transportation (DOT) intercity bus permit system rules are returnable to the Environmental Control Board (ECB).  In addition, the Parking Violations Bureau (PVB), a part of the Department of Finance (DOF), is authorized to adjudicate violations of the DOT intercity bus permit system rules pursuant to Section 1642-a and Article 2-B of the VTL. 

 

On April 10, 2013, the Mayor issued a letter designating the DOT to promulgate rules to implement and enforce the intercity bus permit system, and DOT has subsequently promulgated such rules (the “DOT intercity bus permit system rules”), found at 34 RCNY §§ 4-01 and 4-10. The Mayor also designated the DOF and the ECB to promulgate rules setting forth fines or civil penalties for violations of the DOT intercity bus permit system rules.

 

In coordination with the DOT and the New York City Police Department (NYPD), both ECB and DOF established penalty schedules for violations of the DOT intercity bus permit system rules as part of a coordinated enforcement scheme.  In a separate rulemaking, DOF added civil penalties for the DOT intercity bus permit system rules returnable to the PVB.

 

In this rulemaking, ECB is amending its DOT penalty schedule to add new penalties for violations of the DOT intercity bus permit system rules adjudicated at ECB.  In accordance with VTL Section 1642-a, the amendments provide that a first offense will result in a civil penalty of $500. Each subsequent offense of the same violation occurring within two years after the first offense will result in a civil penalty of $2500.  Prior offenses include violations of both the ECB and DOF enforcement codes.

 

The ECB held a Public Hearing on October 16, 2013 on the proposed amendments to its DOT Penalty Schedule relating to the DOT intercity bus permit system rules.  In response to comments received regarding conformity with the DOF enforcement codes, the ECB is changing the default penalty for a first offense from $1000, as stated in the proposed rule, to $500 in this final rule.

 

 

Violations of the DOT Intercity Bus Permit System Rules

 

The amendments to the DOT penalty schedule for offenses adjudicated at ECB involve the following violations of the DOT intercity bus permit system rules:

 

-        Unauthorized passenger pickup or discharge in violation of 34 RCNY § 4-10(c)(1)

The intent of implementing an intercity bus permit system is to ensure that intercity bus operators utilizing the City’s curb space inform the DOT of their intended operations, and, once approved for such operations, adhere to permit requirements. In applying for a permit, bus operators will provide DOT with important information related to overall bus operations within the City necessary for administration of the program.

 

-        Failure of an intercity bus permit holder to prominently display a copy of an intercity bus permit in violation of 34 RCNY § 4-10(d)(7)(ii)

The prominent display of a copy of the intercity bus permit is necessary to assure that enforcement officers are easily able to identify buses with valid authorization to utilize the City’s curb space.

 

-        Failure of an intercity bus permit holder to properly display the operator’s name, address and telephone number in violation of 34 RCNY § 4-10(d)(7)(iii)

The operator’s name, address, and telephone number must be affixed in characters at least five inches high on both sides of the vehicle, with such display being in a color contrasting with that of the vehicle and placed approximately midway vertically on doors or side panels. The operator’s name, address, and telephone number are necessary to ensure that enforcement officers are easily able to identify buses with valid authorization to utilize the City’s curb space.

 

-        Unlawful stopping or standing in an assigned on-street bus stop location except when actively engaged in the pick-up or discharge of passengers by an intercity bus permit holder in violation of 34 RCNY § 4-10(d)(7)(v)

Intercity bus permits are for the temporary utilization of curb space by approved bus operators in order to expeditiously pick up or discharge passengers. This code is necessary to ensure that permittees do not park or stand their vehicles in curb space and thereby create layover spaces in bus stops not intended for longer-term stops.

 

-        Altering an intercity bus permit in violation of 34 RCNY § 4-10(d)(7)(vi)

Prohibiting the alteration of an intercity bus permit is necessary to ensure that enforcement officers have the ability to easily determine whether permittees are adhering to permit requirements. 

 

 

Effective Date: 
Sun, 12/15/2013

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

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