DOHMH

Statement of Basis and Purpose

    I.    The Dangers of Lead Exposure

Children exposed to any level of lead may face serious, irreversible harm that has consequences throughout their lifetimes. Children under the age of six are at greatest risk for exposure because they explore the world through hand-to-mouth activity and because their bodies are rapidly growing and can more readily absorb lead.  Elevated blood lead levels in children can result in behavioral changes, reduced educational attainment and hearing and speech delays. In 2012, the Centers for Disease Control and Prevention (CDC) explained that there is no safe blood lead level (BLL) for children, announced that 98.5% of children nationally had a BLL below 5 micrograms per deciliter (mcg/dL), and recommended public health action at this defined “reference level.”  In adults, lead exposure can increase risk of hypertension, peripheral neuropathy, renal dysfunction, and adverse reproductive outcomes. Pregnant women present a unique concern because lead exposure can affect the health of both the woman and the fetus. Since symptoms of elevated BLLs are often not immediately observable and many adverse health effects are irreversible, preventing exposure before it occurs and reducing future exposures are the only effective ways to protect children and adults from lead’s deleterious effects.

  II.    Lead in Paint

Lead in paint remains the most common source of lead exposure for New York City children.  As the older layers of lead-based paint from previous decades remain on interior surfaces, such layers peel, crack, chip, or flake. Very young children – especially those under the age of three – are most at risk as this peeling or chipped lead-based paint and dust easily end up on a crawling baby or toddler’s hands and toys and then into their digestive systems due to developmentally appropriate hand-to-mouth activity.  At critical stages of physical development, these very young children absorb lead at higher rates than older children and adults, putting them at the greatest risk of all when exposed to lead. 

New York City has long been at the vanguard of efforts nationally to reduce BLLs in children, beginning in 1960 when the Board of Health made New York City one of the first jurisdictions in the country to prohibit the use of lead paint in residential settings, 18 years before it was banned by the federal government. Because of strong laws, regulations, policies and procedures—including the requirements of the Health Code—New York City has seen close to a 90 percent decline since 2005 in the number of children under age six with a BLL at or above 5 mcg/dL.

The New York City Childhood Lead Poisoning Prevention Act (“Local Law 1”), enacted in 2004, required the Department to investigate the potential sources of lead in the home and elsewhere when it receives a report of children under 18 years old with a BLL level at or above 15 mcg/dL.[1]  Complementing Local Law 1, the Health Code was amended to define “lead-based paint” as paint with a lead content of 1.0 milligrams per centimeter squared (mg/cm²).  It also has required that:

• Health care providers and clinical laboratories notify the Department of BLL test results of 10 mcg/dL or greater within 24 hours (Health Code section 11.03) and all BLL test results within five business days (Health Code section 11.09);
• DOHMH conduct investigations of children under 18 years old with BLLs at or above 15 mcg/dL to identify sources of lead and order abatement as needed (Health Code section 173.13(d)(2));
• If lead-based paint hazards are identified based on a report of a child with a BLL of 15 mcg/dL, a Commissioner’s Order to correct the hazard be issued, requiring the owner to correct the violation within five days (Health Code section 173.13(d)(2)); and 
• The maximum content of lead dust permitted for re-occupancy of a unit is 40 mcg/ft² for floors, 250 mcg/ft² for window sills, and 400 mcg/ft² for window wells (Health Code section 173.14(e)(1)(I)(iv)).

               Based on changes in federal guidelines and evolving scientific evidence, the Department has been conducting investigations for children at BLLs lower than Health Code mandates, including at 8 mcg/dL and above for children under 16 months old, and 10 mcg/dL and above for children under six years old. These environmental investigations include a comprehensive risk assessment and environmental sampling of the child’s residence and any supplemental addresses. The environmental sampling includes testing peeling paint and dust for lead content. The Department has been taking public health action for children with a BLL of 5 mcg/dL and above since 2009, by notifying parents and health care providers about the blood lead test results and providing recommendations for follow-up testing and interventions.  Beginning in 2018, the Department began conducting environmental investigations for all children under 18 years old with a BLL of 5 mcg/dL or greater.

                In light of such changes in guidelines and scientific evidence, and to align with recent amendments to local law, the Board has adopted updates to relevant Health Code provisions related to childhood lead paint exposure interventions as described below.  Among the updates is redefining “lead-based paint” from a lead concentration threshold of 1.0 mg/cm² to 0.5 mg/cm² and from paint with a metallic lead content of 0.5% or greater to 0.25% or greater once the New York City Department of Housing Preservation and Development (HPD) confirms via rulemaking that there is at least one Performance Characteristic Sheet (PCS) published by the United States Department of Housing and Urban Development or other sufficient written technical guidance approving a commercially available x-ray fluorescence (XRF) analyzer tested at the level of 0.5 mg/cm².  In addition, since the Department’s review of XRF readings taken from residences of children with BLLs of 8 mcg/dL and above show that paint with lead content below current Health Code levels presents a risk to children, the Board is adopting this more protective standard to order abatement of non-intact paint where an XRF reading is 0.5 mg/cm² and there is a child with under 18 years old with a BLL of 5 mcg/dL or greater. In this manner, property owners are on clear notice that the Department will take enforcement action when needed if these lower lead levels in non-intact paint are present in the home of a child with a BLL of 5 mcg/dL or higher.

     III.         Consumer Products as a Source of Lead Exposures

While lead-based paint remains the primary source of lead exposure for New York City children, consumer products—such as certain supplements or remedies, cosmetics, religious powders, jewelry, and spices—are also often identified as potential lead sources associated with elevated BLLs. This poses a special challenge in New York City, where many residents come from a broad spectrum of ethnic, cultural, and religious backgrounds and use imported goods that may contain lead or other heavy metals at unsafe levels not permitted in goods produced in the United States.

To address this challenge, the Department has a comprehensive approach to identifying and reducing exposure to lead in consumer products that includes surveying stores to find potentially hazardous products, conducting enforcement actions to remove the products from sale and use, and providing risk communication and public education to prevent future use of the products. The Department has tested thousands of consumer products for lead and other heavy metals since 2011, of which hundreds of product samples have been found to contain elevated lead or other heavy metals. From September 2014 through 2018, the Department surveyed more than 700 New York City stores to determine the availability of hazardous consumer products and embargoed more than 19,000 hazardous consumer products. 

Multiple federal laws regulate non-paint sources of lead, including the Consumer Product Safety Act, the Federal Hazardous Substances Act, the Food, Drug and Cosmetic Act, and their attendant regulations, guidelines, and other publications.  These federal laws, regulations and guidelines provide baselines for permissible levels of lead in consumer products and other substances nationwide.  Combined, these laws and regulations provide a continuously evolving set of complex standards by which products and substances are regulated to protect the public health.  Some states and localities have taken steps to augment the federal standards.  In New York State, Education Law § 6818 bans the sale of cosmetics containing poisonous or deleterious substances. In New York City, Administrative Code § 17-189 prohibits the sale of lead-containing candy and litargirio.  California and Minnesota have made lead levels for adult jewelry closer to that required federally for children’s jewelry.[2] [3] Many states have also adopted the federal standards for lead content in children’s toys.

While the Health Code previously incorporated federal standards for lead content in consumer products, food, drugs, and cosmetics, these provisions were not specific about items with dangerous levels of lead.  The Board has therefore adopted amendments to clarify criteria for specific products that are banned for sale, use, and transfer in the City due to their lead content.  The Board has also adopted specific Health Code provision to authorize the Department to seize, embargo, or condemn products and substances with dangerous levels of lead.  And finally, the Board has adopted a provision for a safe products awareness training program as a requirement for individuals and entities who offer for sale or otherwise distribute hazardous lead-containing products or materials. Such a program will assist small businesses and others in identifying products they are not supposed to sell in the future and thereby expand the positive impact of Department enforcement action.

       IV.     Summary of Proposed Health Code Amendments

The following is a summary of the adopted amendments to the Health Code:

1. All BLL test results of 5 mcg/dL or greater must be reported to the Department within 24 hours and removing “lead poisoning” from the reportable condition of “poisoning by drugs or other toxic agents” (Section 11.03(a));
2. BLL test results below 5 mcg/dL must also be reported to the Department (Section 11.09(a));
3. The BLLs of children under 18 years of age has been lowered from 15 mcg/dL to 5 mcg/dL when the Department is required to issue abatement orders if a lead-based paint hazard is identified in a dwelling where children reside (Section 173.13(d)(2));
4. A trigger to redefine “lead-based paint” from a lead concentration threshold of 1.0 mg/cm² to 0.5 mg/cm² and from paint with a metallic lead content of 0.5% or greater to 0.25% or greater once the conditions of NYC Administrative Code section 27-2056.2(7)(b) have been met to redefine the term citywide (Section 173.14(b));
5. Definition of “unsafe lead paint condition” to mean non-intact paint with a concentration of lead equal to or greater than 0.5 but not greater than 0.9 milligrams per square centimeter or with a metallic lead content of 0.25% or greater regardless of whether a PCS has been issued for an XRF at these levels (Section 173.14(b));
6. The clearance level for dust wipes for floors and window wells and sills has been lowered (Section 173.14(e)(1)(I)(iv));
7. Clarification that cosmetics containing lead that could cause harm to users is not permitted, and specifying that kohl, kajal, al-Kahal, surma, tiro, tozali, kwalli, and litargirio, among other substances, are banned from sale (Section 71.05(g)(1));
8. Addition of a new parapgraph to the definition of per se hazardous substances to specify the danger of lead exposure, and banning the sale of certain ceramic ware not suitable for use with foods and any jewelry that does not meet the federal standards for children’s jewelry (Section 173.01(i)(5));
9. Conspicuous warnings are required on ceramic ware not suitable for use with food (Section 173.05(e)); and
10. The sale, use, and transfer of hazardous or toxic substances or products is not permitted, and the Department has the authority to seize, embargo, or condemn any such items, and that violators may be required to take a safe products awareness training program (Section 173.21).

Statutory Authority

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

Statement of Basis and Purpose

Section 274 of the federal Atomic Energy Act of 1954 [42 USC §2021 et seq.] (“Atomic Energy Act”) authorizes “Agreement States” to regulate byproduct material, source material and special nuclear material in quantities not sufficient to form a critical mass.  New York State is an “Agreement State” within the meaning of the Atomic Energy Act, and the New York City Department of Health and Mental Hygiene (“Department” or “DOHMH”) operates a component of the New York State Agreement.  Under this Agreement State structure, the DOHMH, through its Office of Radiological Health (“ORH”), regulates radioactive material for medical, research and academic purposes within the five boroughs of New York City.

The New York State (NYS) Public Health Law §§225(5)(p) and (q) allows the NYS Commissioner of Health and the NYS Public Health and Planning Council to establish regulations with respect to ionizing radiation and nonionizing electromagnetic radiation and to authorize appropriate officers or agencies to register radiation installations, issue licenses for the transfer, receipt, possession and use of radioactive materials, other than special nuclear materials in quantities sufficient to form a critical mass, and render such inspection and other radiation protection services as may be necessary in the interest of public health, safety and welfare. The NYS regulations are set out in Part 16 of the NYS Sanitary Code.

The Sanitary Code, in 10 NYCRR §16.1(b)(3), allows New York City to establish its own radiation licensure requirements in place of State regulations, so long as the local requirements are consistent with Sanitary Code requirements. 

The New York City Charter (“Charter”) Section 556(c)(11) authorizes the Department to supervise and regulate the public health aspects of ionizing radiation, the handling and disposal of radioactive wastes, and the activities within the city affecting radioactive material.   

Background

Article 175 of the New York City Health Code (“Health Code”) applies to all radiation-producing equipment and radioactive material within NYC.  The Article contains general provisions applicable to both radiation equipment registrants and radioactive materials licensees, and specific requirements for such equipment and materials. The purpose of Article 175 is to protect the public, as well as workers in radiation installation facilities, from the potential hazards of ionizing radiation.  The Article’s requirements for radiation control reflects the coordination of radiation control activities among the U.S. Nuclear Regulatory Commission (“NRC”), the U.S. Food and Drug Administration, the NYS Department of Health and the NYS Department of Environmental Conservation, and other relevant city, state and federal agencies.  

This reenacted Article 175 of the Health Code incorporates federal requirements contained in Title 10 of the Code of Federal Regulations (“CFR”) and reflects and is consistent with state regulations contained in the NYS Sanitary Code [10 NYCRR Part 16], and sets forth ORH-specific best practices requirements.   By law, the City must maintain compatibility with applicable federal requirements, as well as consistency with applicable state regulations.  The Health Code may, and Article 175 does, in certain instances, mandate more stringent requirements as to health and safety radiation control measures than those required by federal and state authorities, for example, requiring greater documentation of radioactive materials licensees’ quality assurance activities.

In NYC, there are about 6500 registered facilities with radiation-producing machines and 375 licensed sites with radioactive material for medical, academic and research purposes. Of the registered facilities, approximately 6440 are diagnostic X-ray facilities and 60 are therapeutic X-ray facilities. ORH inspects these facilities at varying frequencies depending on the type of usage.  Current inspection fees are unchanged under the adopted Article.

Radiation equipment

Prior to this rulemaking, Article 175 of the Health Code had not been significantly revised, particularly as to its radiation equipment requirements, since it was last reenacted in 1994.  Similar to that last reenactment, the Board has based much of this reenacted text on the model code maintained by the Conference of Radiation Control Program Directors (CRCPD). The CRCPD is a 501(c)(3) nonprofit professional organization whose primary membership is made up of radiation professionals in state and local government that regulate the use of radiation sources in their jurisdictions.  CRCPD's mission is "to promote consistency in addressing and resolving radiation protection issues, to encourage high standards of quality in radiation protection programs, and to provide leadership in radiation safety and education".^[1]  Since the reenactment of Article 175 in 1994, improved best practices have been developed and implemented for radiation control measures.  Many of these measures are reflected in the current CRCPD model code, which has provided the basis for much of the text related to radiation equipment in the adopted Article 175.

Radioactive materials

As noted above, Article 175 of the Health Code incorporates federal requirements from Title 10 of the CFR.  New York State is an Agreement State with the U.S. NRC which means that the NRC has delegated authority to NYS to regulate radioactive material at non-reactor sites within its jurisdiction.  The New York State Agreement is comprised of the regulatory programs of three agencies:

1. the New York State Department of Health,

2. the New York State Department of Environmental Conservation, and

3. the New York City Department of Health and Mental Hygiene.

Under the NYS Agreement and § 16.1 of the State Sanitary Code, the Department, through its Office of Radiological Health (ORH), regulates radioactive material for medical, research and academic purposes within the five boroughs of New York City.  Each Agreement State program is required to maintain compatibility with the NRC regulatory program. The NRC regulatory program utilizes Compatibility Categories to specify the type of wording to be used in the corresponding State program regulations.^[2]

As noted above, the last significant revision of Article 175 requirements occurred over 20 years ago.  Since then, NRC has made numerous updates of its requirements contained in Title 10 of the CFR.  In order for the Department to maintain its compatibility status with the NRC regulatory program, each time the NRC has updated its regulations in Title 10 of the CFR, the Board has had to make corresponding updates to Article 175, which has been an inefficient and time–consuming process.  In many instances, and because of the compatibility designations, the Board updated Article 175 by reproducing the actual CFR text directly into its requirements. The Board believes that continuing to update the Health Code rules this way is redundant and unnecessary and that it makes more sense to incorporate by reference the relevant CFR regulations, which will still provide the same legal force and effect as if the Board had actually reproduced such requirements in their entirety directly into Article 175.  This incorporation by reference process avoids duplication and provides uniform, accurate guidance to the regulated community, as well as making makes Article 175 more manageable and user-friendly Article.

Accordingly, the Board has repealed and reenacted Article 175 primarily to:

• update the quality assurance requirements to reflect industry-wide best practices for the installation, operation and maintenance of  both diagnostic and therapeutic radiation equipment required to be registered with the Department, and which is used for medical, academic and research purposes, and

• more efficiently adopt and enforce NRC requirements for the possession and use of radioactive materials required to be licensed by the Department by incorporating by reference applicable federal regulations contained in Title 10 of the CFR.

Statutory Authority

This repeal and reenactment of Article 175 of the Health Code is promulgated pursuant to Charter Section 558.  Sections 558(b) and (c) of the Charter empower the Board of Health to amend the Health Code and to include in the Health Code all matters to which the Department’s authority extends.  Section 1043 of the Charter grants rule-making powers to the Department.

                                                      Statement of Basis and Purpose

New York State Public Health Law (“PHL”) section 3502 was amended by Chapter 313 of the 2018 Laws of New York on October 2, 2018, to add subdivision (6) permitting the use of body scanners by the NYC Department of Correction (DOC) and requiring the Department to adopt rules governing such use that meet at least the minimum requirements in PHL section 3502(6)(c).  The rules being adopted by the Department meet those requirements and incorporate by reference certain definitions and portions of New York City Health Code Article 175, which governs the use of radiation producing equipment.  The rules also incorporate relevant definitions, processes, and requirements established by the American National Standards Institute (“ANSI”) for such equipment.  The federal National Institute for Standards and Technology, part of the U.S. Department of Commerce, has officially recognized ANSI’s role as the country’s representative on international standards setting bodies. By incorporating ANSI standards into these rules, the Department seeks to promote maximum protection, for both DOC personnel and detainees, from radiation exposure and reduce the risk associated with the operation of body scanners.

Two commenters noted that the phantom described in section 5.4, et seq. of ANSI Standard 42.47 is not generally commercially available. In response to these comments, the Department has added text to section 33-04(d)(1) allowing the use of other devices to perform imaging tests provided that they are approved by the Department.  In response to a comment that the definition of “qualified physicist” was too broad and potentially allowed professionals without the requisite experience to serve in the role, the Department has added additional requirements to the definition.  In response to a concern about the privacy of the records of individuals scanned, the Department has added section 33-07(g) to provide additional safeguards. Paragraph 33-08(a)(4) has been revised to clarify the requirements regarding signs advising pregnant and potentially pregnant detainees that they should not be scanned.  Finally, minor corrections have been made throughout the rule to correct nomenclature and standardize capitalization.

 “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.

Statement of Basis and Purpose

Statutory Authority

Section 17-325.3 of the Administrative Code, as added by Local Law 108 of 2017, 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.” That section also requires that the system be consistent with the letter grading system established for restaurants in section 81.51 of the New York City Health Code where practicable. Moreover, section 17-324 of the Administrative Code provides authority for the Department to promulgate any rules deemed necessary for the proper implementation and enforcement pursuant to Subchapter 2 of Chapter 2 of Title 17 of the Administrative Code (Food Vendors).

Background

Since July 2010, pursuant to the mandate of section 81.51 of the New York City Health Code, the Department has been grading restaurants to provide information about how well the restaurants follow food safety requirements, as reflected by a grade of “A,” “B,” or “C” depending on the results of sanitary inspections. Inspections are conducted in prescribed cycles with a process in place for when a grade is to be posted based on the outcome of the inspection. This rule implements a substantially similar grading program for mobile food vendors, with certain exceptions as described below.

Mobile Food Vending Unit Grading Program Amendments

Amendments made to the mobile food vending grading program by this rule comprise of additional and revised definitions in section 6-02, new sections 6-16 to 6-21, and new appendices, which are described below.

§6-02 Definitions.

This section is amended to add or revise definitions of certain terms to be consistent with those used in the restaurant grading program (Chapter 23 of the Department’s rules) and the Health Code.

§6-16 Scoring mobile food vending unit inspections.

This section is new. It requires the Department 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. It also provides for assessment of points for certain violations for the purposes of grading. 

§6-17 Letter grading.

This section is new. It provides for a system of assigning letter grades of either “A,” “B” or “C” to mobile food vending units. This system is the same as is used 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.”

§6-18 Intervals between inspection cycles.

This section is new. It describes the time intervals in various phases in an inspection cycle applicable to mobile food vending units. Notably:

• Initial inspection commencing a new cycle will be conducted after about a year from the previous initial inspection if in that previous initial inspection the unit earned 0-13 points.
• Initial inspection commencing a new cycle will be conducted 150-210 days from the reinspection in the previous cycle if at any inspection during that previous cycle the unit earned between 14 and 27 points, and did not earn more than 27 points at any inspection in the same cycle.
• Initial inspection commencing a new cycle will be conducted 90-150 days from the final inspection in the previous cycle if at any inspection during the previous inspection cycle the unit earned a score of more than 27 points.

This section also describes the inspection cycles under certain other circumstances, such as after closure of a unit or where the operation of the unit poses an increased risk to public health.

§6-19 Posting letter grades.

This section is new and prescribes a system for posting letter grades. Notably:

• If a unit receives an “A” at the initial inspection (0-13 points), the Department will post the A grade on the unit at the inspection.
• If a unit scores 14 or more points and thus does not earn an “A” at the initial inspection, no grade will be posted and the Department will reinspect the unit seven or more days later.
• If, at the reinspection, a unit receives an “A” (0-13 points), the Department will post the “A” on the unit at the reinspection.
• If a unit scores 14 or more points at the reinspection, the Department will post a “grade pending” card on the unit until the summons is adjudicated at OATH. Alternatively, the unit’s operator may choose to bring the unit to the Department and have the grade of “B” or “C” earned at the reinspection posted on the unit instead of a “grade pending” card.[1] A unit with a “grade pending” will be required to post its final grade after a final decision by OATH.

§6-20 Position of grade cards on mobile food vending units; tampering prohibited.

This section is new. It requires the Department to post letter grades or “grade pending” cards on top of the permit decal and prohibits the removal, obstruction, or defacing of a decal or letter grade once it has been posted on the unit.

§6-21 Location sharing.

This section is new. It authorizes the Department to install a location sharing device on each mobile food vending unit for the purposes of inspection and grading.

The Department took special care in its design of the location sharing component of the grading program to protect the privacy of individuals who work as mobile food vendors. The rule includes protective features and mandates to protect location information against unwarranted use or disclosure. Specifically, section 6-21  prohibits the Department from continuously tracking a unit’s location and limits the use of the location tracking device to enforcement of directly related laws and rules; requires that all location data be deleted within 24 hours and be protected during transmission and storage; ensures that the location sharing device identification number be different from the associated unit’s permit, decal or license number; and specifies limits on the data’s use and disclosure. With these protections, the Department believes that location sharing will not risk the privacy of mobile food vendors.

Appendices 6-A, 6-B, 6-C, 6-C-2 and 6-C-3.

These appendices are new.  Appendices 6-A and 6-B implement scoring of inspection results. Appendices 6-C, 6-C-2 and 6-C-3 are 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) in the Department’s rules.

These new appendices replace the current penalty schedules for the same violations currently in OATH’s rules.

Other Amendments to Chapter 6

§6-03 Mobile food vending unit classifications.

This section is amended to re-letter and re-number the paragraphs with no substantive changes to the text.

§6-04 Mobile food vending units: pre-permit construction and equipment requirements for all classes of mobile food vending units.

This section is amended to delete “pre-permit” from the title and to add “and grade card” to the title of paragraph (3).

Paragraph (3) of subdivision (b) is also amended 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.

Subdivision (f) is amended 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.

§6-05 Mobile food vending units: supplies and equipment required for different classes of mobile food vending units. 

The section is amended to add a reference to the location sharing device that must be installed on each unit.

§6-06 Size and placement of mobile food vending units.

Paragraphs (1) and (2) of subdivision (a) of this section are amended to remove expired provisions related to the allowable sizes of units other than trucks.

§6-07 Green carts.

Paragraph (a) is amended to remove the requirement that decals be placed on two sides of a green cart and carves out an exception to the ban on decal removal to authorize the Department to remove them from mobile food vending units. Paragraph (b) is also amended to eliminate the requirement of a green cart umbrella.

§6-11 Inspections; permit issuance and renewal.

Subdivisions (d) and (h) are amended to delete the references to reinspection.

Subdivision (l) is also amended to allow for revocation or denial of a permit for failing to have or tampering with grade cards or location sharing devices.

Statement of Basis and Purpose

Statutory Authority

The repeal and restatement of Chapter 7 of Title 24 of the Rules of the City of New York and repeal of   Title 25 of the Rules of the City of New York is authorized by §§555(b)(2), 556, 558(b) and (e), and 1043 of the New York City Charter (the “Charter”) and §3.11 of the New York City Health Code.

• Section 556 of the Charter authorizes the Department of Health and Mental Hygiene (the “Department”) to regulate all matters affecting health in the City of New York. 

• Section 555(b)(2) of the Charter authorizes the Commissioner of Health and Mental Hygiene to assess penalties for health-related regulations.

• Section 558 of the Charter authorizes the Board of Health to set civil penalties for the enforcement of the Health Code.

• Section 1043 of the Charter gives the Department rulemaking powers.

Background

1. Repeal and restate Chapter 7 of Title 24 of the Rules of the City of New York

Historically, civil violations of the Health Code were adjudicated at a tribunal established by the Board of Health pursuant to §558(e) of the New York City Charter.  On November 2, 2010, however, New York City voters approved an amendment to the Charter authorizing the Mayor to consolidate certain administrative tribunals into the Office of Administrative Trials and Hearings (OATH) by Executive Order.

On July 3, 2011, the Department’s Administrative Tribunal established by the Board of Health was transferred to OATH by Executive Order No. 148 (June 8, 2011) (the “Executive Order”) and renamed the Health Tribunal at OATH. Subsequently, in 2015, the Tribunal became part of the OATH Hearings Division, which now hears and adjudicates violations issued by other City agencies as well as the Department.   

After the Department’s Administrative Tribunal was transferred into OATH, on December 13, 2011 the Board of Health repealed Article 7 (“Administrative Tribunal”) of the Health Code, which contained provisions for conduct of the Administrative Tribunal.  OATH has its own rules of procedure for the Health Tribunal at OATH, which are found in Chapter 6 of Title 48 of the Rules of the City of New York. Subdivision (b) of Health Code §3.12 (“Administrative Tribunal and Environmental Control Board proceedings”) now confers jurisdiction on the Health Tribunal at OATH  and the Environmental Control Board (“ECB”) to hear all violations of the Health Code or any other State or local law or regulation that the Department enforces by seeking fines and monetary penalties. The same subdivision also provides that any such proceeding will be adjudicated in accordance with applicable procedures of the Health Tribunal at OATH or ECB. 

Chapter 7 of the Department’s rules pre-dates the transfer of the Administrative Tribunal to OATH and the Board of Health’s repeal of Article 7 of the Health Code.  Accordingly, Chapter 7 referred to the Department’s former Administrative Tribunal and required amendment to accurately reflect that OATH’s Hearings Division now adjudicates all cases where the Department is seeking monetary penalties for violations of the Health Code.  

Chapter 7 also authorizes the Commissioner to delegate authority to OATH to hear cases and make findings of fact and recommendations in due process or “show cause” hearings.  These adjudications request reports and recommendations to the Commissioner of Health regarding such matters as permit and license revocations and employee misconduct and discipline and will continue to be held at the OATH Trials Division, and thus this authorization will remain in the restated Chapter 7.  

Because the changes to Chapter 7 are so extensive, the Chapter was repealed and restated. 

2. Codify violation penalties

Section 6-02 of OATH’s rules requires that it impose fines and other penalties in accordance with applicable law. Penalties for the violations adjudicated in ECB have been established in ECB’s (and now OATH’s) rules for many years. 

The Health Code establishes penalty ranges for violations adjudicated in the OATH Hearings Division.  OATH hearing officers continue to exercise discretion in deciding penalty amounts to be imposed for violations they sustain, provided the amounts are within the range prescribed by the Health Code.

OATH, however, is requesting that all City agencies establish by rule fixed penalties for the violations they are adjudicating in its Hearings Division.  OATH has also indicated that it will be repealing the penalty schedules in its rules for ECB cases and that agencies should also adopt by rule penalties for violations being adjudicated in that tribunal.

In 2014, the Department amended Chapter 23 of Title 24 to establish penalties for violations issued to food service establishments.  The Department has amended Chapter 7 to set penalties for other violations of the Health Code, Department rules and other applicable law enforced by various Department programs. The new fixed penalties include those for violations currently adjudicated at the OATH Hearings Division.  Food service establishment penalties will remain in Chapter 23. Mobile food vending penalties are not included in this Chapter, but the Department expects to incorporate them in a new appendix to Chapter 6 of these rules.

To further promote compliance and prompt correction of hazardous conditions, the Department’s penalties are heightened for some repeat offenses, considered continuous for others and, in the case of standing water violations, reflect the magnitude of the violation.  These terms are defined in the rules and specified in the violation descriptions.  Sustained repeat violations citing rats, rat signs, rat harborage and conditions conducive to rats carry minimum, maximum and accelerated penalties in accordance with §17-133.1 of the Administrative Code of the City of New York. 

Penalties for violations of repealed Health Code and other provisions of law contained in current ECB rules have been excluded from the penalty table, including those for violations of Article 153 and §§139.05, 139.07 and 181.03. Also excluded are penalties for violations that are already specified in a provision of the Health Code or Administrative Code, or in a particular Department rule or other applicable law.

3. Repeal Title 25 of the Rules of the City of New York

In the November 2001 general election, New York City voters approved an amendment of the Charter to establish a “Department of Public Health” (later changed to the “Department of Health and Mental Hygiene”) combining the former Departments of Health (DOH) and Mental Health, Mental Retardation, and Alcoholism Services (DMHMRAS). All employees of both agencies became employees of the combined DOHMH.  The only existing provision in Title 25 of the Rules of the City of New York of the former DMHMRAS is §1-01 (Conduct of Adjudicatory Hearings) of Chapter 1 (Adjudications), relating to employee fitness and disciplinary hearings. Title 25 is no longer necessary because of the merger of the two agencies, and the Department has now repealed it.