Health, Disease Control and Prevention, Environmental Services

Rule R392-100

Food Service Sanitation

Notice of Proposed Rule

(Amendment)

DAR File No.: 35445
Filed: 11/15/2011 11:26:29 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is necessary to incorporate the most recent science on food safety as reflected in the 2009 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 send recommendations to FDA to consider in their update of the code which occurs every four years. The current Utah rule is based on the 2005 FDA Model Food Code.

Summary of the rule or change:

The proposed rule will adopt the FDA 2009 model food code by reference, with minor amendments including a reference to clarify the requirement of food handlers to hold a permit issued by the local health department and a safety requirement for food service facilities to secure carbon dioxide tanks from falling over. These two amendments were previously in the Utah rule and are currently being enforced through local and occupational safety and health regulation, and have been added back into state food service rule. There are four plumbing amendments which update the FDA reference to the latest International Plumbing code which is in effect in Utah. The FDA model code outlines three risk categories of violations: Core, Priority, and Priority Foundation. To avoid confusion with industry, the Utah code will continue to use the current terms of critical and non critical. Core will be referred to as Non Critical, Priority will be Critical 1, and Priority Foundation will be Critical 2. The amendments noted in chapter 8 are made to keep the enforcement of the code the same as is now enforced in rule. Some changes in the FDA 2009 model code are incorporated as a result of the findings of recent food-borne illness investigations which will help to prevent future outbreaks. The changes include cut leafy greens to now be categorized as a food which requires time or temperature control for safety (TCS) and meats that are mechanically tenderized to now be heated to 155 for 15 seconds before serving. Additional changes include outlining the requirements for noncontinuous cooking, modifying the requirements for the storage of raw and ready to eat foods, not allowing the sale of undercooked meat from a children's menu, clarifying that a variance is required when operating a molluscan shellfish life support system display tank, clarifying the variance requirements for Reduced Oxygen Packaging methods, requiring a Hazardous Analysis Critical Control Point Plan for cook-chill and sous vide cooking methods, and enhancing or clarifying requirements related to the effective cleaning and sanitizing of equipment and surfaces.

State statutory or constitutional authorization for this rule:

• Section 26-15-2

This rule or change incorporates by reference the following material:

• Updates FDA 2009 model food code, published by United States Public Health Services, United States Food and Drug Administration, 11/10/2009

Anticipated cost or savings to:

the state budget:

The adoption of the new amendment will not cause additional work to the state, and will not impose additional costs to the state budget.

local governments:

Local health departments will need to train their inspectors on the new requirements. There will be some costs to train employees to the new version of the food code, however, it will be minimal. The training can be included within existing staff training meetings already held on a continuing basis.

small businesses:

Almost all food service establishments employ less than 50 persons. There will be some costs to train employees to the new version of the food code, however, it will be minimal as food establishments already are required by the current food code to train employees on a continuing basis. The training can be included within existing staff training meetings already held at food service establishments.

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

There will be some costs to train employees to the new version of the food code, however, it will be minimal as food establishments already are required by the current food code to train employees on a continuing basis. The training can be included within existing staff training meetings already held at food service establishments.

Compliance costs for affected persons:

Because the food service establishments have no additional costs, there are not expected additional costs for an individual person or any individual entities.

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

Prior to recommending that the food code be updated to adopt the 2009 FDA model food code, Department of Health personnel met with local health departments, the Utah Department of Agriculture and Food, and a standing advisory committee which includes representatives from the Utah Restaurant Association, Associated Foods, Kroger Foods, McDonalds, and Harmons. Public input to date supports the cost analysis as being neutral and that adoption of the 2009 code is beneficial to business, with the Utah modifications reflected in the rule. This will be carefully evaluated again after the public comment period.

David Patton, PhD, 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:

• Ronald Marsden at the above address, by phone at 801-538-6191, by FAX at 801-538-6564, or by Internet E-mail at rmarsden@utah.gov

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:

01/03/2012

This rule may become effective on:

01/10/2012

Authorized by:

David Patton, 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 Subsections 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 200[5]9, 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)(2),(D) and (E), 8-[8]905.40, and 8-[8]909.20; and

(2) with the following additions or amendments:

(a) In section 1-201.10, 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."

(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) After section 2-102.11 paragraph (17), add a new section to read: "2-102-12 Food Employee Training.

Food employees shall be trained in food safety as required under 26-15-5 and shall hold a valid food handler's permit issued by a local health department."

(e) After section 4-204-123 paragraph (B), add a section 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. Food managers shall be trained and certified as required under 26-15a and R392-101."

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

(g) At the end of section 5-202.13, add: "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."

(h) 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".

(i) After the reference to paragraph (B) in section 5-402.11 paragraph (A), delete the coma; insert the word "and"; and delete the text, ", and (D)" that follows the reference to paragraph (C).

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

([a]k) Amend section 8-103.10 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 variance or waiver issued by the regulatory authority and the documentation required in section 8-103.11 must be copied 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. "

([b]l) Amend section 8-103.11 to add:

"(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 control of this risk factor at all times. "

([c]m) Amend Section 8-302.14 (C) to read:

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

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

] ([e]n) Amend section 8-304.10 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. "

[ (f) Amend section 8-304.11(J) to read:

Accept notices issued and served by the REGULATORY AUTHORITY according to LAW:

(g) Amend section 8-304.11(K) to read:

Be subject to the administrative, civil, injunctive, and criminal remedies authorized in law for failure to comply with this Code or a directive of the regulatory authority, including time frames for corrective actions specified in inspection reports, notices, orders, warnings, and other directives; and.

] ([h]o) Amend section 8-401.10 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. "

([i]p) Amend section 8-501.10 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 "

([j]q) Add [section]a paragraph after 8-501.10 paragraph ([C]B) to read:

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

([k]r) Amend section 8-601.10 to read:

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

([l]s) Amend section [8-701.30]8-801.30 to read:

"Service is effective at the time the notice is served or when service is made as specified in section [8-701.20]8-801-20 paragraph (B). "

([m]t) Amend section [8-803.10]8-903.10 to read:

"[8-803.10]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 and

(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. "

([n]u) Amend section [8-803.60]8-903.60 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. "

([o]v) Amend section [8-803.90]8-903.90 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. "

([p]w) Amend section [8-804.30]8-904.30 number/catchline to read:

"[8-804.30]8-904.30 Contents of the Summary Suspension Notice. "

([q]x) Amend section [8-805.10]8-905.10 paragraph (A) 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. "

([r]y) Amend section [8-805.20]8-905.20 to read:

"A response to a hearing notice or a request for a hearing as specified in section [8-805.10]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 [8-805.30]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. "

([s]z) Amend section [8-805.50]8-905.50 paragraph (A)(1) 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:

([t]aa) Adopt subsections [8-805.50]8-905.50 paragraphs(A)(1)(a) through (c) without changes.

([v]ab) Amend subsection [8-805.50]8-905.50 paragraph(A)(2) 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 [8-805.10]8-905.10(C) or for matters as determined necessary by the regulatory authority. "

([v]ac) Amend section [8-805.60]8-905.60 number/catchline to read:

"[8-805.60]8-905.60 Notice of Hearing Contents. "

([w]ad) Amend section [8-805.80]8-905.80 number/catchline to read:

"[8-805.80]8-905.80 Expeditious and Impartial Hearing. "

([x]ae) Amend section [8-805.90]8-905.90 number/catchline to read:

"[8-805.90]8-905.90 Confidentially of Hearing and Proceedings. "

([y]af) Amend section [8-805.90]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. "

(ag) Delete section 8-905.90 subparagraphs (A)(1) and (2).

([z]ah) Amend section [8-806.30]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 :"

([aa]ai) Adopt subsection[s] [8-806.30]8-906.30 paragraphs (B)(1) through (2) without changes.

([ab]aj) Amend section [8-807.60]8-907.60 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. "

([ac]ak) Amend section [8-808.20]8-908.20 to read:

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

([ad]al) Amend section [8-811.10]8-911.10 paragraph (B) 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. "

([ae]am) Amend section [8-813.10]8-913.10 number/catchline to read:

"[8-813.10]8-913.10 Petitions, Penalties, Contempt, and Continuing Violations. "

([af]an) Amend section [8-813.10]8-913.10 paragraph (B) to replace the phrase "(designate amount) " with the phrase , "$5,000 ".

([ag]ao) Add paragraph [8-813.10]8-913.10(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) [The requirements of the Utah Uniform Building Standards Act Rules as found in Sections R156-56-701(1)(c), and R156-56-803 are adopted and incorporated by reference]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 under. A copy of the construction code is available at the office of the local building inspector.

 

KEY: public health, food services, sanitation

Date of Enactment or Last Substantive Amendment: [March 15, 2010]2012

Notice of Continuation: March 22, 2007

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