Food Preparation and Food Establishments (Article 81) - Operation of restaurants and other food service establishments

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

Comment By: 
Thursday, January 29, 2015
Download Copy of Proposed Rule (.pdf): 



Statement of Basis and Purpose



Statutory Authority


These amendments to the New York City Health Code (the Health Code) are promulgated pursuant to §§558 and 1043 of the New York City Charter (the Charter).  Sections 558(b) and (c) of the Charter empower the Board of Health (the Board) to amend the Health Code and to include in the Health Code all matters to which the authority of the New York City Department of Health and Mental Hygiene (the Department) extends.  Section 556 of the Charter authorizes the Department to supervise and regulate the City’s food supply.  Section 1043 grants the Department rule-making authority. 




The Commissioner of the Department of Health and Mental Hygiene is the “permit issuing official” designated in the State Sanitary Code (10 NYCRR Chapter 1) Subpart 14-1 to enforce provisions of the Sanitary Code applicable to the operation of food service establishments in the City of New York (the City).  In the City, food service establishments are also subject to provisions of the New York City Health Code and Chapter 23 of Title 24 of the Rules of the City of New York, and mobile food vendors are also subject to subchapter 2 of chapter 3 of title 17 of the New York City Administrative Code.  The Department’s Division of Environmental Health enforces the provisions of the Administrative, Sanitary and Health Codes and the Department’s rules applicable to such establishments.  


The Department is proposing that the Board of Health amend Article 81 of the Health Code to update certain requirements to reflect changes in food science recommendations found in the 2013 US FDA Model Food Code (“2013 Food Code”) and to c­­­­­larify various provisions to help  establishment operators comply with the requirements.


Proposed Changes


The following changes are proposed:


§81.03 Definitions.


Amends the definition of sanitization in subdivision (ii) to add submersion in a quaternary ammonium solution as an approved method of chemically sanitizing tableware, utensils and equipment.  The method is included in the 2013 Food Code and will give operators another option for sanitization.


§81.04 Approved sources of food.  


Amends subdivision (c) to add scallops sold with their roe (eggs) to the list of shellfish for which identification tags must be retained. 

Subdivision (d) is being added to require that exotic game meats served in food service establishments be inspected and acquired from commercially regulated sources, such as those described in regulations of the State Department of Agriculture and Markets found at 1 NYCRR §271-2.2, and will be made consistent with the 2013 Food Code.

Subdivision (e) is being added to address the fact that many food service establishments are producing their own packaged juice products, and will require that juice produced in retail establishments (including food service establishments) bear warnings stating that the juice has not been produced in a manner that prevents, reduces or eliminates the presence of pathogens. 


§81.05 Technical review and pre-permitting inspections for food service establishments and non-retail food processing establishments.  


The Department is proposing that the name of this section be amended to indicate that a permit is required to operate a food service establishment.  The first sentence of current subdivision (c), which states that a permit is needed to operate a food service or non-retail food processing establishment, has been re-lettered as subdivision (a) and the entire section has been re-lettered accordingly.  Certain language in current subdivision (c), re-lettered here as subdivision (d), is being added to conform this provision with State Sanitary Code §14-1.190, and make clear that an establishment may not begin operating for 21-days after it applies for an initial permit, unless the Department has inspected it.


§ 81.06 Prevention of imminent or public health hazards.


Subdivision (c) is being amended to clarify that the Department’s approval of a food service establishment’s Hazard Analysis and Critical Control Point (HACCP) plan is not required when food is controlled according to the time and temperature requirements of §81.09.


§81.07 Food; sanitary preparation, protection against contamination.


Paragraph (2) of subdivision (a) is being deleted because it is duplicative of §81.17(d).

Subdivision (c) is being amended to prohibit establishments from keeping, as well as using, non-pasteurized liquid, frozen or dry eggs.

Subdivision (d) is being amended to delete the sentence that begins with the phrase “Food removed from original containers or packages…” which is unnecessary because subdivision (a) of this section already mandates that all food, regardless of packaging, be protected from contamination. 

Subdivision (h) is being amended to add an additional method of storing utensils that is recommended in the 2013 Food Code §4-602.11.  Establishments would be able to place them in water maintained at or above 135 degrees Fahrenheit.  This subdivision is also being amended to clarify that utensils used for dispensing ready to eat foods must have handles to prevent food contamination. 

Subdivision (o), currently entitled “Drinking straws,” is being retitled “Single service articles” and amended to require that these items, which include paper coffee cups and plastic cutlery, also be dispensed in ways that prevent possible contamination.  This rule change is being proposed in response to a petition to the Board to commence rulemaking about preventing contamination of single service articles.

  Several other amendments are being made to this section to clarify its provisions.


§81.09 Potentially hazardous foods; temperature control for safety.


This section is being repealed and replaced with one that is better organized and specifies the temperatures required for various processes.

Temperatures for cooking meats have been updated in accordance with the 2013 Food Code recommendations.

Subdivision (b) will require freezing of fish to destroy parasites before serving such fish raw, raw-marinated (e.g. ceviche) or undercooked. Parasites (in the larval stage) consumed in uncooked or undercooked fish present a risk or food borne illness. Among parasites, nematodes or roundworms (Anisakis spp.), cestodes or tapeworms (Diphyllobothrium spp.) and trematodes or flukes are of most concern.  The FDA Food Code recommends that fish that is not going to be adequately cooked be frozen to destroy parasites before service because visual inspection techniques cannot adequately detect the presence of parasites.  The effectiveness of freezing fish to kill parasites depends on several factors, including the temperature at which and length of time the fish is frozen, as well as the type of parasite. Establishments will be required to maintain and follow standard operating procedures for freezing all fish;  if they buy fish frozen, the establishment must obtain statements from the supplier that the fish was frozen.  


§81.10 Time as a public health control.


The Department is proposing amendments to clarify several provisions of the section, but it will otherwise remain substantively unchanged.

The section title is being amended to indicate that time can be used as a control as an alternative to maintaining the time and temperature requirements of §81.09.

Subdivision (b) is being amended to add the date as an element that must be noted on labels when food is being held out of temperature.  Additional amendments are being made to subdivisions (b) and (c) to clarify their provisions.

Paragraph (2) of subdivision (d) has been amended to clarify that, if food previously held under §81.10 is returned to temperature control, it is considered contaminated and in violation of §81.07.

Table 1 is being amended to reflect the changes made to this section.


§81.11 Consumer advisory. 


This section is new.  Section 81.09 currently requires that an establishment tell consumers about the dangers of food borne illness when potentially hazardous/time and temperature control for safety foods are being served raw or undercooked.  The 2013 Food Code recommends a written advisory, which has been adopted and included in this new section, effective January 1, 2016.  Until that time, establishments may continue to verbally warn consumers of the risk posed by eating raw or undercooked foods.


§81.12 Reduced oxygen packaging; cook chill and sous vide processing.


            The heading of subdivision (c) is being retitled to more accurately reflect its content.


§81.13 Food workers; health; hygienic practices. 


This section is being amended to clarify the activities during which workers must wear hair coverings. Also, consistent with recent amendments to the Smoke-Free Air Act made by Local Law 152 of 2013, the use of electronic cigarettes will also be prohibited.  Provisions on the use of gloves have been moved from subdivision (d) of this section to §81.07(j).


§81.17 General requirements: design, construction, materials and maintenance. 


Minor changes are proposed to clarify some provisions and reorganize this section.  In addition, a new subdivision (g) is being added to include the provisions on handling toxic and hazardous substances that are currently in §81.23.  Provisions governing single service articles are being deleted to reflect their inclusion in the new §81.07(o).


§81.18 Cold and hot storage and holding facilities. 


The proposed amendment would correct an error to require that thermometers and other temperature measuring devices be calibrated to be accurate to (+) or (-) 2 degrees, rather than the current (+) or (-) 3 degrees.


§81.20 Plumbing and water supply


Subdivision (a) is being amended to add a requirement that an establishment have adequate supplies of potable water at all times.

Subdivisions (b) and (c) are being combined and provisions related to condensation, clarified, and the remainder of the section re-lettered appropriately.


§81.21 Hand wash sinks.


Subdivision (a) is being amended to require that hand sinks be supplied with potable running water.

Subdivision (b) is being amended to delete the requirement that waste receptacles be foot operated and covered.


§81.22 Employee and patron toilets.


This section is being amended to clarify its provisions but remains substantively unchanged.


§81.23 Integrated pest management.


Subdivision (d) is being amended to clarify the provisions of paragraph (3) and add a new paragraph (4) prohibiting use of unprotected bait stations, consistent with State Sanitary Code §14-1.60(e).

Subdivision (e), relating to toxic materials, is being moved to §81.17. 


§81.24 Garbage and waste disposal.


The proposal deletes the current requirement that garbage and wastes be either removed from the food establishment daily or placed in a separate pest-proof room.  Garbage and waste stored for removal would need to be kept in pest-proof containers but need not be in a pest proof room.  The provisions of this section are also being reorganized.


§81.27 Cleaning of premises, equipment and utensils.  


This section is being amended to clarify its requirements. The cleaning of food contact surfaces is vital in preventing bacterial growth and contamination.  The proposed amendments clarify that cleaning requirements apply to all food contact surfaces.


§81.29 Dishwashing and ware washing.  


This section is being repealed and restated to clarify its provisions.  It deletes provisions referring to sanitizing in accordance with manufacturers’ instructions for use of various chemical solutions and equipment, and requires that when items are chemically sanitized, chemicals registered as anti-microbial pesticides with the US Environmental Protection Agency for food service be used..  


§81.31 Outdoor cooking, food and beverage preparation facilities.  


No substantive changes have been made to this section, but its provisions are being clarified to facilitate compliance.


§81.46 Refillable, returnable containers.  


This section is new.  It sets out procedures for establishments that allow consumers to re-use their own beverage containers or that provide food/beverage containers to consumers that may be refilled at the establishment, as an environmental conservation measure.  Re-using food containers exposes food workers and consumers to increased public health risks and food to potential contamination and this section establishes procedures to reduce those risks. These provisions are consistent with 2013 Food Code §3-304.17.


§81.53 Maximum Beverage Size.


This section is being repealed.



Public Hearing

Proposed resolution to amend Food Preparation and Food Establishments of the New York City Health Code (Article 81) deleting, amending and clarifying certain requirements for operation of restaurants and other food service establishments.

Public Hearing Date: 
Thursday, January 29, 2015 - 2:00pm

Svetlana Burdeynik at (347) 396-6078 or

New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101-4132