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

Adopted Rules: Closed to Comments

Agency:
Effective Date: 
Saturday, August 8, 2015
Download Copy of Adopted 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.  

Background 

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 Board of Health is amending 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.   

The following changes are being made: 

§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.  This section has been clarified since its proposal.  In accordance with the 2013 Food Code, tags are not required to be kept for shucked abductor muscle of the scallops. Tags are required solely when scallops are sold live in their shells or when they are shucked and still have their roe attached.

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.  In response to a comment, paragraph (1) has been changed to add a definition of “packaged” to clarify when labels are required. A reference to Health Code §71.05(d) provisions on misbranding has also been added. 

§81.05 Permit requirements; technical review and pre-permitting inspections for food service establishments and non-retail food processing establishments.   

The name of this section is being amended to indicate that a permit is required to operate a food service establishment.  The first sentence of former subdivision (c), which stated 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 former 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. This language was inadvertently omitted from the last revision of Article 81. 

§ 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.  In response to comments, the provision has been clarified to require that handles be of sufficient length to avoid bare hand contact with ready to eat potentially hazardous food.

Subdivision (o), formerly 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 responds 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 (time and temperature control for safety) foods.

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 are being updated in accordance with the 2013 Food Code recommendations.  The language in subdivision (a)(1) was corrected from the proposal, to add the words “cooked and refrigerated” to the term “cooked and refrigerated food,” from they were inadvertently omitted.    

Subdivision (b) is being amended to 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. Proposed requirements for recordkeeping have been deleted from this subdivision in response to comments. .

Paragraph 5 of subdivision (c) has been amended since the proposal to decrease the cooking temperature of mechanically tenderized and injected meats to 155 degrees Fahrenheit (68 degrees Celsius).     

§81.10 Time as a public health control; exception to required holding temperatures of potentially hazardous (temperature control for safety) foods. 

Several provisions of the section are being clarified, but 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) is being 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: serving raw or undercooked foods.  

This section is new.  Section 81.09 formerly required 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 enacted 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 being made 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 formerly appeared 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.  

An error in this section is being corrected to require that thermometers and other temperature measuring devices be calibrated to be accurate to (+) or (-) 2 degrees, rather than the former (+) 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 the 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.

The former requirement in subdivision (b) that waste receptacles be foot operated and covered is being deleted.

§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 former requirement that garbage and wastes be either removed from the food establishment daily or placed in a separate pest-proof room is being deleted.  Garbage and waste stored for removal now 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 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.  Provisions referring to sanitizing in accordance with manufacturers’ instructions for use of various chemical solutions and equipment are being deleted. This section now 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 are being 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.  In response to comments, the provision has been revised to allow establishments that do not want to wash and sanitize containers returned by patrons to obtain Department approval for a written standard operating procedure that demonstrates that the procedures being used prevent contamination.  

§81.53 Maximum Beverage Size.

This section is being repealed.

The resolution is as follows.

“Shall” and “must” denote mandatory requirements and may be used interchangeably. 

New text is underlined; deleted material is in [brackets].