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Proposed Rules: Open to Comments

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Agency:
Comment By: 
Thursday, February 6, 2020
Proposed Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Background

            The Department of Health and Mental Hygiene (the Department) regulates New York City 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 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 (24 RCNY) implements such a system, and consists of rules and three appendices: 

  • Appendix 23-A (Food Service Establishment Inspection Worksheet) summarizes the subjects covered by a Department inspection and the points that can be assigned for each type of violation observed.
  • Appendix 23-B (Food Service Establishment Inspection Scoring Parameters-A Guide to Conditions) expands on the violation descriptions and provides examples of violations at different condition levels, from I (least serious) to V (most serious). 
  • Appendix 23-C (Food Service Establishments and Non Retail Food Service Establishments Penalty Schedule) sets forth the penalties to be imposed for both scored and unscored violations when the violations cited on Department inspections are sustained by hearing officers after a respondent appears to answer a summons or when the respondent fails to appear and is found in default.  

Reason for changes

At its March 10, 2015 meeting, the New York City Board of Health amended Health Code Article 81, reorganizing and renumbering several sections and adding some new provisions. Chapter 23’s Appendix 23-C was previously amended in rules effective August 8, 2015 to include most of the Health Code renumbering changes, so that penalties could be imposed following adjudications of the newly-numbered Health Code provisions, but the descriptions and condition levels assigned to violations in Appendices 23-A and 23-B were left unchanged.  In addition, effective December, 2018, a new scoring and grading scheme was established for mobile food vending unit inspections in accordance with amendments to Chapter 6 of the Department’s rules. Those amendments resulted from enactment of Local Law 108 of 2017. That local law added a new section 17-325.3 to the New York City Administrative Code (the “Administrative Code”), requiring the Department to establish a mobile food vending unit grading scheme consistent with Chapter 23’s scheme for grading non-mobile food service establishments.  

The Department is now proposing to amend all three appendices in Chapter 23 so that their descriptions of violations are consistent with the provisions of the Health Code and to promote consistency in enforcement and adjudications. The appendices in Chapter 23 are also being amended to match as much as possible the language, violation condition levels and penalties of Chapter 6’s newly amended appendices. Some distinctions will remain since mobile food vending unit operations and locations differ in facilities, functions and items vended compared with those of food service establishments located in permanent structures. For example, no toilets are required on mobile food vending units, and their operations do not include tobacco sales.  Appendices in Chapter 6 also reference specific mobile food vending violations of Chapter 6, Article 89 of the Health Code and Title 17 of the Administrative Code which are not applicable to non-mobile food service establishments. 

The Department proposes to add a scored violation for adulterating food with prohibited substances.  A recent amendment to the State Sanitary Code (14 NYCRR § 14-1.89) prohibits service of food and drink items with residual unevaporated carbon dioxide and liquid nitrogen, either of which can cause severe damage to skin and internal organs.  Other substances that are not approved under federal regulations as “generally recognized as safe” or “GRAS” food additives include activated charcoal, kava-kava, cannabidiol and marijuana.  See, https://www.fda.gov/food/generally-recognized-safe-gras/gras-notice-inventory

No changes proposed will reduce critical violation condition levels in Appendix 23-A and 23-B since these levels are based on determinations of public health risk by the Department and the US Food and Drug Administration’s Food Code.  As indicated in the listing below, a few violations are no longer being scored.    

Changes to the unscored violations listed in Appendix 23-C include new violations of  Department of Sanitation rules provisions related to composting which are enforced by the Department of Health at certain establishments.  Renumbered and additional violations and violation codes have been included for unscored tobacco-related violations to reflect changes in the Administrative Code and in the coding system used by Department inspectors.  

Changes proposed

Appendix 23-A and Appendix 23-B

The following is a list of violations and descriptions that are being amended to more accurately reflect the current provisions of Health Code Article 81, and to clarify terms.  Some condition levels and points are being amended, consistent with the Department’s assessment of  public health risk, adopting recommendations of the Food Service Establishment Advisory Board established in 2013 pursuant to section 17-1503 of the Administrative Code “to advise the Commissioner concerning matters related to the food service establishment sanitary inspection program … .”  Some of the Appendix 23-B examples of condition levels are also being amended to reflect conditions observed during inspections.  

As described below, the listed violation codes correspond to those in Appendices 23-A and 23-B, and the section (§) numbers to related Health Code provisions unless other law is cited.

 

Violation Code     

Health Code provision and description of change in Appendices 23-A and 23-B

 02A

§81.09(a) amends cooking temperatures and uses the term “TCS” (temperature control for safety) for “potentially hazardous foods” to characterize the foods to which the requirements apply

02C

§81.09 uses the term “cooled” instead of “refrigerated”

02F

§81.11 adds a reference to the new required written consumer advisory; condition level reduced from IV to I

02G

§81.09 specifies foods subject to temperature requirements

02H  

§81.09(e) clarifies that cooling starts upon removal from cooking or hot holding

02I

§81.09(e)(2) clarifies requirements for cooling food after removal from cold holding

02J

§81.12 adds requirements for reduced oxygen packaging (“ROP”)

03A     

§81.07(m) adds ‘on premises animals slaughtered’ to categories of foods from unapproved sources

03C

§81.07(c) clarifies prohibition on use of unpasteurized egg products

03D

§81.07(b) amends requirements for handling damaged hermetically sealed, canned foods and other food packaging

03E

§81.20(a) clarifies requirement for potable water supply

03I    

§81.04(e) adds provisions to prevent food borne illness from food establishment-packaged unpasteurized juices

04B

§81.13 adds spitting to food worker prohibited conduct

04D

§81.13(d) adds violations for failing to change gloves when required

04E

§81.23(d)(3) adds the term “pesticide”

04J      

§81.09(g) clarifies the violation for not using thermometers and decreases violation condition level from condition IV to condition I

04N

§81.23 adds “other nuisance pests” to categories of prohibited pests

04P

§71.05 prohibits adulteration of food and is being cited as a new scored violation; the category also includes the new Sanitary Code (10 NYCRR §14-1.89) prohibition on service of food with unevaporated liquid nitrogen and carbon dioxide 

05A

§81.20(b) adds requirement for a sewage disposal system

05C

§81.07(a)(1) adds requirement for a culinary sink or equivalent

05D     

§81.21(a) amends placement requirements for hand wash sinks

05F     

§81.18 adds requirement for outdoor refrigerators

05G    

§89.27(d) prohibits sidewalk, street use by a commissary for cleaning mobile food units

05H    

§81.46 adds requirements for reuse of refillable containers

06A    

§81.13 reflects additional worker hygiene requirements

06B    

§81.13(g) adds “e-cigarettes” to smoking prohibition for food workers

06J     

§89.27(b) requires record keeping at mobile vending commissaries

08A    

§81.23 not to be cited at condition III or IV for harborage or conditions conducive to pests unless pests or evidence of pests are also present; if pests are not present, “conditions conducive” alone such as defective walls and floors will be cited as category 10F non-food contact surface violations, at condition levels I through IV

08B    

§81.24 clarifies garbage handling requirements

08C    

§81.23(d)(4) prohibits use of unprotected unlocked bait stations

10G   

§81.29 deletes lower condition levels because if any step in utensil or ware washing is omitted, utensils and wares are not sanitized

10L & 10M

10L(requires covered receptacle in women’s toilet per State Sanitary Code §14-1.142) and 10M (§81.19 prohibiting unshielded light bulbs) are no longer enforced as scored violations and are therefore being deleted from Appendices 23-A and 23-B

99B   

General other. This category, originally intended to include unspecified Health Code violations, is being deleted from the lists of scored violations in Appendices A & B since any violations not included in appendices A and B are by definition unscored. Violations for unscored Health Code provisions cited on inspections are, however, subject to the minimum prescribed penalties of Health Code §3.11, and are included in the unscored violations penalties in Appendix 23-C.

 

            Appendix 23-C

            Appendix 23-C specifies civil penalties for food service establishment violations adjudicated at the Office of Administrative Trials and Hearings (“OATH”) Hearings Division. It also includes penalties for violations of other provisions of law enforced by the Department, including for lack of heating, and for illegal sales and use of tobacco, non-tobacco, electronic cigarettes, and other smoking products. 

Appendix 23-C is divided into penalties for scored violations specified in Appendices 23-A and 23-B, and for unscored food establishment and other violations enforced by the Department.  Because the codes for many of the unscored violation penalties were amended to be consistent with the codes in Department inspectors’ hand-held computers, the table of unscored penalties is being repealed and reenacted. 

Some of the penalty provisions of Appendix 23-C were previously amended in July, 2015 to reflect the 2015 Health Code Article 81 changes as well as earlier amendments to the Administrative Code related to sales of tobacco and non-tobacco smoking products and e-cigarette use.  Additional changes made to provisions of the Administrative Code –Smoke Free Air Act, Tobacco Product Regulation Act and Tobacco Sales Act –that are enforced by the Department are reflected in further amendments to Appendix 23-C’s unscored violation penalties.  The monetary penalties listed in Appendix 23-C for violations of City and State tobacco laws that are also enforced by the Department of Consumer Affairs (DCA) are consistent with DCA’s penalties. 

 

Scored Violations

Violation

Code

Citation and Amendments Proposed

02G

§81.12(d)(4) deletes the penalty for cold reduced oxygen packaged (ROP) food since there is a violation penalty for the same provision that includes all ROP foods.

03A

§81.07(m) new penalty for slaughtering animals in an FSE

03I

§81.04(e) new penalty for new Health Code provision requiring warning label for packaged unpasteurized juices

04B

§81.13 new penalty for spitting by food worker

04D

§81.13(d) new penalty for failing to change gloves when required

04N

§81.23 adds “other nuisance pests” to categories of prohibited pests

04P

§71.05 and State Sanitary Code §14-1.89 added when food is adulterated with non-GRAS substances

05F

§81.18 new penalty for improper outdoor refrigerator use, consistent with Health Code

05G

§89.27(d) new penalty for sidewalk, street use by commissary for cleaning mobile food units

05H

§81.46 new penalty if no approved written standard operating procedure when reusing customers’ refillable containers

06A

§81.13(f) new penalties reflect new Health Code worker hygiene requirements

06J

§89.27(b) new penalty for record keeping violations at mobile vending commissaries

08A

§89.23(b)(2) violation for not having pest exterminator contract is deleted from the scored violation penalties and added to the unscored penalties in category 18I

09C

§81.07(m) adds penalty for keeping edible live fish in insanitary tank

 

Unscored Violations

 

            As previously noted, this list of penalties is being repealed and re-enacted so that the referenced violation codes match those in Department inspectors’ hand-held computers.  A new column has been added for convenience to show the penalty to be imposed if the respondent fails to appear to answer a summons and is found in default since many of these penalties may not be doubled on default. 

New penalties have been added for violations of tobacco, smoking and related laws, Health Code sodium warning violations, additional calorie posting requirements consistent with federal law, dogs in certain outdoor seating areas of food service establishments, listing prohibited beverages on children’s menus, failing to post healthy eating messaging, and new organic recycling requirements.  Some previously scored violations that are being removed from the scored portion of Appendix 23-C have been added to the unscored portion of the Appendix. 


 Statutory Authority

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).

  
Subject: 

Proposal to amend Appendices 23-A, 23-B and 23-C of Chapter 23 (Food Service Establishment Sanitary Inspection Procedures and Letter Grading) of Title 24 of the Rules of the City of New York to reflect the most recent amendments to Article 81 of the New York City Health Code and the New York City Administrative Code.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 14th floor, Room 14-31
Queens, NY 11101
Contact: 

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

Download Copy of Proposed Rule (.pdf):