No. 36404 (Amendment): Rule R392-100. Food Service Sanitation

(Amendment)

DAR File No.: 36404
Filed: 06/21/2012 07:31:15 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule change is in response to minor errors (duplication, section placement, punctuation, and extraneous word) noted in the previous amended rule. Also, it deletes the phone call requirement for local health departments.

Summary of the rule or change:

Subsection R392-100-2(1): 8-302.14(1) text had been moved up to a previous subsection, but was not deleted in the original subsection. The division is now deleting this to avoid duplication. This does not modify any requirements. In Subsections R392-100-2(d) and (e), inserts food manager requirement under correct section, and deletes the same statement from incorrect section. Also modifies food handler "permit" to food handler "card". No requirement changes. In Subsection R392-100-2(2)(m), corrects a subsection numbering error. In Subsection R392-100-2(2)(q), removes a requirement for local health departments to contact lowest risk food establishments every six months by phone in favor of a uniform risk-based schedule. There are additional subsection renumbering corrections, and punctuation corrections, and deletion of extraneous meaningless words inadvertently left in text. In Subsection R392-100-2(2)(ao), for clarity, the division is ensuring that two subsections B(1) and (2) are deleted which were intended to be deleted in the previous amendment by deleting section "B" (delete subsections B(1) and (2)). There may be some confusion that subsections 1 and 2 were not deleted.

State statutory or constitutional authorization for this rule:

• Section 26-15-2

This rule or change incorporates by reference the following material:

• Adds FDA 2009 Model Food Code, published by United States Public Health Service Food and Drug Administration, 09/19/2000

Anticipated cost or savings to:

the state budget:

The adoption of these minor modifications to the rule will not cause additional work to the state, and will not impose additional costs or savings to the state budget.

local governments:

The proposed changes will not result in a cost savings or increase as workload requirements are not modified.

small businesses:

There will be no cost savings or additional costs as the proposed changes do not modify requirements for businesses, large or small.

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

There will be no cost savings or additional costs as the proposed changes do not modify requirements for businesses, large or small.

Compliance costs for affected persons:

Because there are no aggregate costs or savings incurred, there are no expected additional costs or savings for an individual person or any individual entities.

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

Minor, technical changes to rule that are not expected to impose any regulatory burden or fiscal impact on business.

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 [e-mail]

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:

08/14/2012

This rule may become effective on:

08/21/2012

Authorized by:

David Patton, Executive Director

RULE TEXT

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 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

(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 managers shall be trained and certified as required under 26-15a and R392-101.

Food employees shall be trained in food safety as required under 26-15-5 and shall hold a valid food handler's [permit]card 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.

(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."

(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."

(m) Amend Section 8-302.14 (C) 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).

([n]o) 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."

([o]p) 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."

(q) Amend section 8-401.10 paragraph (B) subparagraph (2) to read:

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

([p]r) 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"

([q]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."

([r]t) 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."

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

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

([t]v) Amend section 8-903.10 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[ 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."

([u]w) Amend section 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."

([v]x) Amend section 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."

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

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

([x]z) Amend section 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."

([y]aa) Amend section 8-905.20 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."

([z]ab) Amend section 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:

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

([ab]ad) Amend subsection 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 8-905.10(C) or for matters as determined necessary by the regulatory authority."

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

"8-905.60 Notice of Hearing Contents."

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

"8-905.80 Expeditious and Impartial Hearing."

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

"8-905.90 Confidentially of Hearing and Proceedings."

([af]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."

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

([ah]aj) 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:"

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

([aj]al) Amend section 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."

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

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

([al]an) Amend section 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."

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

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

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

([an]aq) Amend section 8-913.10 paragraph (B) to replace the phrase "(designate amount)" with the phrase,

"$5,000".

([ao]ar) Add paragraph 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) 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: [January 26,] 2012

Notice of Continuation: January 20, 2012

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

 

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