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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): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

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].

 

Effective Date: 
Sat, 08/08/2015

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

Agency:
Comment By: 
Thursday, January 29, 2015
Proposed Rules Content: 

 

 

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 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.

 

 

Subject: 

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.

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

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 Click here (.pdf) for the complete text of the adopted rule.

Effective Date: 
Fri, 01/20/2012