DAR File No. 40254

Health, Disease Control and Prevention, Environmental Services

Rule R392-100

Food Service Sanitation

Notice of Proposed Rule

(Amendment)

DAR File No.: 40254
Filed: 03/10/2016 10:04:52 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This change incorporates the most recent science on food safety, as reflected in the 2013 Food and Drug Administration (FDA) model food code which has been adopted by FDA and was approved by academia, regulatory, and industry representatives at the Conference for Food Protection. The conference meets every two years to consider changes to the model food code and sends recommendations to FDA to consider in its update of the code which occurs every four years. The current Utah rule is based on the "2009 FDA Model Food Code". Multiple formatting changes are made. Citations to authorizing statutes are updated.

Summary of the rule or change:

Citations to authorizing statutes now include Sections 26-1-5 and 26-1-30. These amendments update the incorporated references to the 2013 version of the FDA Model Food Code, add amendments to the incorporated reference, and introduce many formatting and grammar fixes.

State statutory or constitutional authorization for this rule:

• Section 26-15-2
• Section 26-1-5
• Section 26-1-30

This rule or change incorporates by reference the following material:

• Updates 2013 version of the Federal Food , Drug and Cosmetic Act, 21 U.S.C. 342, published by U.S. Department of Health and Human Services, 11/13/2013

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings at the state level. Any costs or savings will come out of existing budgets.

local governments:

Costs or savings for local health departments are not anticipated. Any costs or savings will come out of existing budgets. There are no anticipated costs or savings for existing facilities currently in compliance with this rule.

small businesses:

There are no anticipated additional costs for existing facilities either in or out of compliance with the amendments due to no new or additional equipment or construction required.

persons other than small businesses, businesses, or local governmental entities:

There are no anticipated additional costs for existing facilities either in or out of compliance with the amendments due to no new or additional equipment or construction required.

Compliance costs for affected persons:

Costs or savings singular to any one person are not anticipated as the amendments will not apply to any one person.

Comments by the department head on the fiscal impact the rule may have on businesses:

The proposal incorporates by reference the "2013 FDA Model Food Code" with a several changes, but only a few are substantives: 1) no wild mushrooms picked from the wild are allowed; 2) date and time marking must be consistent; and 3) those places using reduced oxygen packaging (ROP), like cook/chill, can refrigerate product at normal refrigeration temperatures for 7 days, whereas this used to require a much lower refrigeration temperature and if held for less than 48 hours the establishment is exempt from needing an HACCP plan. There is no fiscal impact on business because compliance with the amendments are a minimal expense due to no new or additional equipment or construction required.

Joseph Miner, MD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Disease Control and Prevention, Environmental Services
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY, UT 84116-3231

Direct questions regarding this rule to:

• Chris Nelson at the above address, by phone at 801-538-6739, by FAX at , or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/02/2016

This rule may become effective on:

05/09/2016

Authorized by:

Joseph Miner, Executive Director

R392. Health, Disease Control and Prevention, Environmental Services.

R392-100. Food Service Sanitation.

R392-100-1. Authority and Purpose.

(1) This rule is authorized by [Subs]Sections 26-1-5, 26-1-30[(2)], and 26-15-2.

(2) This rule establishes definitions; sets standards for management and personnel, food operations, and equipment and facilities; and provides for food establishment plan review, permit issuance, inspection, employee restriction, and permit suspension to safeguard public health and provide consumers food that is safe, unadulterated, and honestly presented.

 

R392-100-2. Incorporation by Reference.

(1) [The requirements as found in the U.S. Public Health Service, Food and Drug Administration, Food Code 2009, Chapters 1 through 8, Annex 1, and Annex 2, Federal Food, Drug, and Cosmetic Act, 21, U.S.S. 342, Sec. 402 are adopted and incorporated by reference, with the exclusion of Sections 8-302.14(C)(1) and (2),(D) and (E), 8-905.40, and 8-909.20; and]The Department incorporates by reference the following:

(a) Section 402 of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. 342.

(b) The 2013 version of the U.S. Public Health Service, Food and Drug Administration, Model Food Code ("Model Code"), Chapters 1 through 8, Annex 1 Parts 8-6 through 8-9, with the stated exceptions and amendments set out below.

(2) [with the following additions or amendments]Exceptions to Incorporation. The following subsections of the Model Code are not incorporated into this rule:

(a) Subsection 5-203.15(B);

(b) Subsections 5-402.11(B), (C) and (D);

(c) Subsections 8-302.14(D) and (E);

(d) Subsection 8-304.11(K);

(e) Annex 1, Section 8-905.40;

(f) Annex 1, Subparagraphs 8-905.90(A)(1) and (2);

(g) Annex 1, Section 8-909-20;

(h) Annex 1, Subparagraphs 8-911.10(B)(1) and (2).

(3) The following amendments and additions to the Model Code shall be made. All other incorporated provisions remain the same.

(a) In section 1-201.10 (B), Terms Defined, [insert a new paragraph after paragraph (2) under Core Item to read: "(3) 'Core Item' will also be referred to as 'non-critical' in the state rule."]a specified definition is added or the definitions or its specific subsections set out in the definition are amended as follows:

(i) Core Item(1) is amended to read:

"(1) "Core Item" also referred to as "non-critical" means a provision in the Model Code that is not designated as a Priority Item or a Priority Foundation Item."

(ii) Food Establishment(2) is amended to add paragraph (C) to read:

"(2)(c) Catering operation which is a business entity that operates from a permitted food establishment that contracts with a client for food service to be provided to a client, the client's guests and/or customers at a different location. A catering operation may cook or perform final preparation of food at the service location. A catering operation does not include routine services offered at the same location, or meal that are individually purchased with the exception of cash bars."

(iii) A definition of Potentially Hazardous Food is added to read:

"Potentially Hazardous Food means the same as Time/Temperature Control for Safety Food."

(iv) Priority Item(1) is amended to read:

"(1) "Priority Item" also referred to as "critical 1" means a provision in the Model Code whose application contributes directly to the elimination, prevention or reduction to an acceptable level, hazards associated with food borne illness or injury and there is no provision that more directly controls the hazard."

(v) Priority Foundation Item(1) is amended to read:

"(1) "Priority Foundation Item" also referred to as "critical 2" means a provision in the Model Code whose application supports, facilitates or enables one or more Priority Items."

[(b) In section 1-201.10 under Priority Item, replace the semicolon and the word "and" at the end of paragraph (2) with a period; replace the period at the end of paragraph (3) with "; and"; and insert a new paragraph after paragraph (3) to read: "(4) 'Priority Item' will also be referred to as 'critical 1' in the state rule."

(c) In section 1-201.10 under Priority Foundation Item, replace the semicolon and the word "and" at the end of paragraph (2) with a period; replace the period at the end of paragraph (3) with,"; and"; and add a new paragraph after paragraph (3) to read: "(4) 'Priority foundation item' will also be referred to as 'critical 2' in the state rule."]

([d]b) After section [2-102.11 paragraph (17)]2-102.12, [add a new section]a new section is added to read: "[2-102-12]2-102.13 Food Employee Training. Food managers shall be trained and certified as required under Chapter 26-15a , UCA and R392-101. Food employees shall be trained in food safety as required under Section 26-15-5 and shall hold a valid food handler's card issued by a local health department."

(c) Paragraph 3-201.16(A) is amended to read:

"(A) Except as specified in paragraph (B) of this section, mushroom species picked in the wild shall not be offered for sale or service by a food establishment."

(d) Section 3-501.17 is amended to include additional paragraph (H):

"(H) A date marking system that meets the criteria stated in paragraph (A) of this section shall use one of two types of date marks, and that date mark must be used consistently throughout the food establishment. The date mark will either be of the date:

(1) before which food must be used as specified in paragraph (A) or this section; or

(2) be the date of Day 1."

(e) Subparagraph 3-501.19(B)(2) is amended to read:

"(2) Only one time marking scheme may be used, and it must be used consistently throughout the food establishment. The food shall be marked with either:

(a) the time food is removed from temperature control; or

(b) the time before which the food shall be cooked and served at any temperature if ready-to-eat, or discarded."

([e]f) After [s]Section 4-204-123 [paragraph (B), add ]a new section is added to read:["]

"4-204.124 Restraint of Pressurized Containers.

Carbon dioxide, helium or other similar pressurized containers must be restrained or secured to prevent the tanks from falling over."

([f]g) [At the end of s]Section 5-101.12, shall be amended to add: "The process shall be in accordance with the American Water Works Association (AWWA) C651-2005 for disinfection and testing."

([g]h) [At the end of s]Section 5-202.13[, add] is deleted and replaced to read:["Where the distance to the adjacent wall is closer than three pipe diameters, the air gap shall not be less than 1-1/2 inch."]

"(A) Where the horizontal distance from the water supply inlet to an adjacent single wall or obstruction is greater than three times the diameter of the inlet, or greater than four times for intersecting walls, an air gap between the water supply inlet and the flood level rim of the plumbing fixture, equipment, or nonfood equipment shall be at least twice the diameter of the water supply inlet and may not be less than 25 millimeters ( 1 inch).

(B) Where the horizontal distance from the water supply inlet to an adjacent single wall or obstruction is less than three times the diameter of the inlet, or less than four times for intersecting walls, and air gap between the water supply inlet and the flood level rim of the plumbing fixture, equipment, or nonfood equipment shall be at least three times the diameter of the water supply inlet and may not be less than 38 millimeters (1.5 inches)."

([h]i) [After the the reference to the section number "5-202.13" in section 5-203.15 paragraph (A), delete the article "a" and insert: "an American Society of Safety Engineers (ASSE) 1022".]Paragraph 5-203.15(A) is amended to read:

"(A) If not provided with an air gap as specified under Section 5-202.13, an American Society of Safety Engineers (ASSE) 1022 dual check valve with an intermediate vent shall be installed upstream from a carbonating device and downstream from any copper in the water supply."

([i]j) [After the reference to paragraph (B) in section]Paragraph 5-402.11 (A)[paragraph (A), delete the coma; insert the word "and"; and delete the text, ", and (D)" that follows the reference to paragraph (C).] is amended to read:

"(A) A direct connection may not exist between the sewage system and a drain originating from equipment in which food, portable equipment, or utensils are placed."

[(j) Delete paragraph (D) from section 5-402.11.]

(k) [Amend s]Section 8-103.10 Modifications and Waivers is amended to read:

["8-103.10 Modifications and Waivers.]

"(A) The regulatory authority may grant a variance by modifying or waiving the requirements of this Code if in the opinion of the regulatory authority a health hazard or nuisance will not result from the variance. If a variance is granted, the regulatory authority shall retain the information specified under section 8-103.11 in its records for the food establishment.

(B) A copy of the variance or waiver issued by the regulatory authority and the documentation required in section 8-103.11 [must be copied]shall be provided to the Utah Department of Health, Office of Epidemiology, Environmental Sanitation Program within 5 working days of issuance.

(C) A variance or waiver intended for a food establishment which is of a chain with stores in more than one local health jurisdiction in the State must be approved by the Utah Department of Health prior to issuance."

(l) [Amend s]Section 8-103.11 [to add]is amended to add paragraph (D) to read:

"(D) In addition, a variance from section 3-301.11 may be issued only when:

(1) the variance is limited to a specific task or work station;

(2) the applicant has demonstrated good cause why section 3-301.11 cannot be met;

(3) suitable utensils are used to the fullest extent possible with ready-to-eat foods in the rest of the establishment; and

(4) the applicant can demonstrate active [management]managerial control of this risk factor at all times."

(m) [Amend Section]Paragraph 8-302.14(C) is amended to read:

"A statement specifying whether the food establishment is mobile or stationary and temporary or permanent."

[(n) Amend section 8-302.14 to renumber (F) to (D), (G) to (E), and (H) to (F).]

([o]n) [Amend section]Paragraph 8-304.10 (A) is amended[paragraph (A)] to read:

"(A) Upon request, the regulatory authority shall provide a copy of the food service sanitation rule according to the policy of the local regulatory agency."

([p]o) [Amend section]Paragraph 8-401.10 (A) is amended [paragraph(A) ]to read:

"(A) Except as specified in paragraphs (B) and (C) of this section, the regulatory authority shall inspect a food establishment at least once every 6 months and twice in a season for seasonal operations."

([q]p) [Amend section]Subparagraph 8-401.10 (B)(2) is amended [paragraph (B) subparagraph (2) ]to read:

" (2) The food establishment is assigned a less [frequesnt]frequent inspection frequency based on a written risk-based inspection schedule that is being uniformly applied throughout the jurisdiction; or"

([r]q) [Amend s]Section 8-501.10 is amended [paragraph (B) ]to read:

"(B) Requiring appropriate medical examinations, including collection of specimens for laboratory analysis, of a suspected food employee or conditional employee; and["]

[(s) Add a paragraph after 8-501.10 paragraph (B) to read:]

["](C) Meeting reporting requirements under Communicable Disease Rule R386-702 and Injury Reporting Rule R386-703."

([t]r) [Amend s]Annex 1, Section 8-601.10 is amended to read:

"Due process and equal protection shall be afforded as required by law in all enforcement and regulatory actions."

([u]s) [Amend s]Annex 1, Section 8-801.30 is amended to read:

"Service is effective at the time the notice is served or when service is made as specified in [section]Paragraph 8-801-20[paragraph ](B)."

([v]t) [Amend s]Annex 1, Section 8-903.10 is amended to read:

"8-903.10 Impoundment of Adulterated Food Products Authorized.

(A) The impoundment of adulterated food is authorized under Section 26-15-9, UCA.

(B) The regulatory authority may impound, by use of a hold order, any food product found in places where food or drink is handled, sold, or served to the public, but is found or is suspected of being adulterated and unfit for human consumption.

(C) Upon five days notice and a reasonable opportunity for a hearing to the interested parties, to condemn and destroy the same if deemed necessary for the protection of the public health.

(D) If the regulatory authority has reasonable cause to believe that the hold order will be violated, or finds that the order is violated, the regulatory authority may remove the food that is subject to the hold order to a place of safekeeping.["]

(E) Within the limits set in paragraphs (B), (C), and (D) of this section, the regulatory authority may impound, by use of a hold order, molluscan shellfish that are not tagged or labeled according to Paragraph 3-202.18(A) of this code. Other actions may be taken in accordance with Paragraph 3-202.18(B) of this code."

([w]u) [Amend s]Annex 1, Section 8-903.60 is amended to read:

"The regulatory authority may examine, sample, and test food in order to determine its compliance with this Code in section 8-402.11."

([x]v) [Amend s]Annex 1, Section 8-903.90 is amended to read:

"The regulatory authority shall issue a notice of release from a hold order and shall physically remove the hold tags, labels, or other identification from the food if the hold order is vacated."

([y]w) [Amend s]Annex 1 Section 8-904.30[number/catchline] heading is amended to read:

"8-904.30 Contents of the Summary Suspension Notice."

([z]x) [Amend section]Annex 1, Paragraph 8-905.10[paragraph](A) is amended to read:

"(A) A person who receives a notice of hearing shall file a response within 10 calendar days from the date of service. Failure to respond may result in license suspension, license revocation, or other administrative penalties."

([aa]y) [Amend s]Annex 1, Section 8-905.20 is amended to read:

"A response to a hearing notice or a request for a hearing as specified in section 8-905.10 shall be in written form and contain the following:

(A) Response to a notice of hearing must include:

(1) An admission or denial of each allegation of fact;

(2) A statement as to whether the respondent waives the right to a hearing;

(3) A statement of defense, mitigation, or explanation concerning all claims; and

(4) A statement as to whether the respondent wishes to settle some or all of the claims made by the regulatory authority.

(B) A request for hearing must include:

(1) A statement of the issues of fact specified in section 8-905.30 paragraph (B) for which a hearing is requested; and

(2) A statement of defense, mitigation, denial, or explanation concerning each allegation of fact.

(C) Witnesses - In addition to the above requirements, if witnesses are requested, the response to a notice of hearing and a request for hearing must include the name, address, telephone number, and a brief statement of the expected testimony for each witness.

(D) Legal Representation - Legal counsel is allowed, but not required. All documents filed by the respondent must include the name, address, and telephone number of the respondent's legal counsel, if any."

([ab]z) [Amend section]Annex 1, Subparagraph 8-905.50[paragraph ](A)(1) is amended to read:

"(1) Except as provided in paragraph (B) of this section, within 5 calendar days after receiving a written request for an appeal hearing from:"

[(ac) Adopt subsections 8-905.50 paragraphs(A)(1)(a) through (c) without changes.]

([ad]aa) [Amend subsection]Annex 1, Subparagraph 8-905.50[paragraph](A)(2) is amended to read:

"(2) Within 30 calendar days after the service of a hearing notice to consider administrative remedies for other matters as specified in section 8-905.10(C) or for matters as determined necessary by the regulatory authority."

([ae]ab) [Amend s]Annex 1, Section 8-905.60 [number/catchline]heading is amended to read:

"8-905.60 Notice of Hearing Contents."

([af]ac) [Amend s]Annex 1, Section 8-905.80 [number/catchline]heading is amended to read:

"8-905.80 Expeditious and Impartial Hearing."

([ag]ad) [Amend s]Annex 1, Section 8-905.90 [number/catchline]heading is amended to read:

"8-905.90 [Confidentially]Confidentiality of Hearing and Proceedings."

(ae) Annex 1, Paragraph 8-905.90(A) is amended to read:

[(ah) Amend section 8-905.90 paragraph (A) to read:]

"(A) Hearings will be open to the public unless compelling circumstances, such as the need to discuss a person's medical or mental health condition, a food establishment's trade secrets, or any other matter private or protected under federal or state law."

[(ai) Delete section 8-905.90 subparagraphs (A)(1) and (2).]

([aj]af) Amend section 8-906.30 paragraph (B) to read:

"(B) Unless a party appeals to the head of the regulatory authority within 10 calendar days of the hearing or a lesser number of days specified by the hearing officer:"

[(ak) Adopt subsection 8-906.30 paragraphs (B)(1) through (2) without changes.]

([al]ag) [Amend s]Annex 1, Section 8-907.60 is amended to read:

"Documentary evidence may be received in the form of a copy or excerpt if provided to the hearing officer and opposing party prior to the hearing as ordered by the hearing officer."

([am]ah) [Amend s]Annex 1, Section 8-908.20 is amended to read:

"Respondents accepting a consent agreement waive their rights to a hearing on the matter, including judicial review."

([an]ai) [Amend section]Annex 1, Subparagraphs(B)(1) and (2) are deleted and Paragraph 8-911.10[paragraph ](B) is amended to read:

"(B) Any person who violates any provision of this rule may be assessed a civil penalty as provided in section 26-23-6, UCA."

[(ao) Delete subparagraphs (B)(1) and (2) of section 8-911.10.]

([ap]aj) [Amend s]Annex 1, Section 8-913.10 [number/catchline]headline is amended to read:

"8-913.10 Petitions, Penalties, Contempt, and Continuing Violations."

([aq]ak) [Amend section]Annex 1, Paragraph 8-913.10[paragraph ](B) is amended to read:[to replace the phrase "(designate amount)" with the phrase, "$5,000".]

"In addition to any criminal fines and sentences imposed as specified in Paragraph 8-911.10, or to being enjoined as specified in Paragraph 8-912.10, a person who violates a provision of this code, any rule or regulation adopted in accordance with law related to food establishments within the scope of this code, or to any term, condition, or limitation of a permit issued as specified in Paragraphs 8-303.10 and 8-303.20 is subject to a civil penalty not exceeding $5,000."

([ar]al) [Add paragraph]Annex 1, Section 8-913.10[(D)]is amended to add the paragraph (D) to read:

"(D) The adjudicative body, upon proper findings, shall assess violators a fee for each day the violation remains in contempt of its order."

[(3) All parts of the food establishment shall be designed, constructed, maintained, and operated to meet the standards of the state construction code adopted by the Utah Legislature. A copy of the construction code is available at the office of the local building inspector.]

 

R392-100-3. Construction Standards.

(1) All parts of the food establishment shall be designed, constructed, maintained, and operated to meet the requirements of Title 15A, State Construction and Fire Codes Act.

 

KEY: public health, food services, sanitation

Date of Enactment or Last Substantive Amendment: [September 10, 2012]2016

Notice of Continuation: January 20, 2012

Authorizing, and Implemented or Interpreted Law: 26-1-30(2); 26-15-2