DAR File No. 40958

Health, Disease Control and Prevention, Environmental Services

Rule R392-100

Food Service Sanitation

Five-Year Notice of Review and Statement of Continuation

DAR File No.: 40958
Filed: 11/07/2016 10:43:15 AM

NOTICE OF REVIEW AND STATEMENT OF CONTINUATION

Concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule:

Rule R392-100 is authorized under Sections 26-1-5, 26-1-30, and 26-15-2. Section 26-1-5 gives the department rulemaking authority to carry out the provisions of Title 26, and Subsection 26-1-30(4) charges the department to create rules to protect the public health or to prevent disease and illness. Subsection 26-1-30(23)(f) specifically charges the department with creating rules for minimum sanitary standards for the operation and maintenance of restaurants and all other places where food is handled for commercial purposes, sold, or served to the public. This requirement is mirrored in Subsection 26-15-2(1).

Summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule:

Two commenters submitted written comments outside of discussions within advisory committees. This rule was recently amended to adopt the 2013 FDA Food Code by reference. The first comment was from Utah State University concerning the requirement in the 2013 FDA Food Code stating that "at least one employee�shall be a certified food protection manager�through passing a test that is part of an accredited program". An accredited program, as defined in the 2013 FDA Food Code, is an agency which conforms to national standards. The commenter was worried that those food safety manager certification providers in Utah approved by UDOH (Rule R392-101) would no longer be valid if UDOH was not an approved provider. The second commenter was Davis County Health Department (DCHD), which submitted two comments. DCHD was concerned over "non-debitable" items in the 2013 FDA Food Code being adopted. DCHD was concerned over the requirement for all food establishments to have a pre-opening inspection before beginning operations, which would include all temporary events. This could become overly burdensome to regulators and operators alike.

Reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any:

Continuation of Rule R392-302 is recommended as it is required by statute and creates a uniform standard for sanitation at swimming pools statewide. To USU: UDOH has statutory authority to be the accrediting agency for food safety manager certification programs in Utah, as per Title 26, Chapter 15a, and Rule R392-101. A clarification will be added to Rule R392-100 to clarify this when adopting the next iteration of the FDA Food Code. Those currently approved by UDOH to provide food safety manager certifications will continue to be approved. To DCHD: Concerning the "non-debitable" items in the FDA Food Code, these items refer to requirements outside of actual food inspections. The term "non-debitable" only applies to items most often making requirements of inspectors or the regulatory agency, which would be inappropriately addressed on an inspection form. Concerning the pre-operational inspection requirement for temporary events, this is a requirement in previous and current versions of Rule R392-100. This concern is being taken under advisement and will be discussed in advisory committees and with the local health departments.

The full text of this rule may be inspected, during regular business hours, at the Office 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 chrisnelson@utah.gov

Effective:

11/07/2016

Authorized by:

Joseph Miner, Executive Director