DAR File No. 31446

Health, Epidemiology and Laboratory Services, Environmental Services

R392-100-2

Incorporation by Reference

NOTICE OF PROPOSED RULE

DAR File No.: 31446
Filed: 05/15/2008, 04:09
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rulemaking is necessary to incorporate the most recent science on food safety as reflected in the 2005 Food and Drug Administration (FDA) model food code which was approved at the Conference for Food Protection. The current Utah rule is based on the FDA 1999 food code. FDA has updated the 1999 code, and the latest revision is the 2005 FDA Food Code. Large industry associations requested this rule to ensure statewide uniformity of food service regulations.

Summary of the rule or change:

Modifications to the rule address updates based on science found in the 2005 FDA model food code. The changes include a focus to reduce food borne illness by a tiered approach of requirements outlining when to remove infectious employees and restriction of infectious employees from the workplace. The changes also emphasize minimizing bare hand contact as is provided in the current rule, but allow bare hand contact under certain conditions. Increased hand washing is emphasized as an approach to further reduce food borne illnesses. The updated code reflects a change in hot holding requirements from 140 deg F to 135 deg F, which will improve quality of food held while continuing to keep it safe for consumption. The 2005 FDA Code also includes provisions on Reduced Oxygen Packaging requirements to extend shelf life of products produced under this process. The 2005 FDA Code reflects a change from the term Potentially Hazardous Food, to foods which require time and temperature control for safety (TCS). The 2005 FDA Code also extends the shelf life of TCS food products when time only is used as a control, from 4 hours to 6 hours, under certain conditions.

State statutory or constitutional authorization for this rule:

Section 26-15-2

This rule or change incorporates by reference the following material:

U.S. Public Health Service, Food and Drug Administration, Food Code 2005, Chapters 1 through 8, Annex 1, and Annex 2, Federal Food, Drug, and Cosmetic Act, 21, U.S.S. 342, Sec. 402

Anticipated cost or savings to:

the state budget:

The adoption of the new FDA model food code will not cause additional work to the state and, as such, will impose no additional costs to the state budget.

local governments:

Local health departments will need to train their inspectors on the new rule. It is estimated that it will take two hours of training to become familiar with the modifications. There are approximately 100 persons who would need to be trained. Two hundred training hours, multiplied by $30/hr, is $6,000.

small businesses and persons other than 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 basically are already complying with the 2005 FDA food code requirements, as indicated by industry representatives. This training can be included within existing staff training meetings already held at food service establishments. Industry representatives state that there will be no additional costs. Very few establishments use the time from preparation as a public health control to control food safety. The number of those that do is not known, and can change at any time. There will be some cost savings to those facilities who keep their food two hours longer than the current code allows. As stated previously, this number is difficult to determine because the number of establishments and type of food controlled is not currently tracked. There will be no additional costs to the public as food service establishments are already complying with the gloving/bare hand requirements. Costs to minimize bare hand contact were incurred with previous rule changes.

Compliance costs for affected persons:

Because the food service establishments have no additional costs, there are no 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:

Adopting the 2005 FDA food code appears to enjoy broad support among regulated industries and will have a possible positive fiscal impact. Giving local jurisdictions waiver authority in certain cases should mitigate any unforeseen impact and allow for local control without compromising public health. David N. Sundwall, 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
Epidemiology and Laboratory Services, 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:

07/01/2008

This rule may become effective on:

07/08/2008

Authorized by:

David N. Sundwall, Executive Director

R392. Health, Epidemiology and Laboratory Services, Environmental Services.

R392-100. Food Service Sanitation.

R392-100-2. Incorporation by Reference.

(1) The requirements as found in the U.S. Public Health Service, Food and Drug Administration, Food Code [1999]2005, Chapters 1 through 8, [and ]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 [3-201.17(A)(4),4-301.12(C)(5), 4-301.12(D) and (E), 4-501.115, 4-603.16(B)(1), 4-603.16(C), ]8-302.14(C)(2),(D) and (E), 8-805.40, and 8-809.20; and

(2) with the following additions or amendments:

[(a) Add definition 1-201.10(B)(8.5) to read:

"(8.5) "Certified Food Safety Manager" means the same as defined under subsection 26-15a-102(2) and R392-101 Food Safety Manager Certification rule."

(b) Add definition 1-201.10(B)(10.5) to read:

"(10.5) "Code" means R392-100 Utah Food Service Sanitation Rule and related rules."

(c) Amend definition 1-201.10(B)(23) to read:

"(23) "Employee" means the permit holder, person in charge, supervisor or manager, inventory person, or person with responsibilities to serve guests, cook or prepare food, wash utensils, or who has cleaning responsibilities."

(d) Add definition 1-201.10(B)(25.5) to read:

"(25.5) "FDA" means the U.S. Food and Drug Administration."

(e) Amend definition 1-201.10(B)(30) to read:

"(30) "Food employee" means the same as "food handler" under subsection 26-15-1(1)."

(f) Amend definition 1-201.10(B)(31)(a) to read:

"(a) For the purposes of this rule, "Food Establishment" shall mean "Food Service Establishment" and refers to any place where food is prepared and intended for individual portion service, and includes the site at which individual portions are provided. The term includes any such place regardless of whether consumption is on or off premises and regardless of whether there is a charge for the food."

(g) Amend definition 1-201.10(B)(31)(b) to read:

"(b) "Food Establishment" includes but is not limited to:

(i) bars, bed and breakfasts, breweries, cafeterias, camps, caterers, child care facilities, coffee shops, commissaries, day cares, fairs, group residences, hospitals, hotels, motels, nursing homes, penal institutions, private clubs, restaurants, satellite sites, schools, senior citizen centers, shelters, snack bars, taverns or similar food facilities;

(ii) an operation that is conducted in a mobile, stationary, temporary, or permanent facility or location;

(iii) the area of a bakery, convenience store, delicatessen, or grocery store where food is prepared and intended for individual portion service and includes areas used for storing food used in this portion of the food establishment, warewashing, utility and waste disposal facilities; and

(iv) except as exempted in subsection 1-201.10(B)(30)(c)(v), the premises of a church, temple, and synagogue where food is prepared for the public or may include both members and the public."

(h) Amend definition 1-201.10(B)(31)(c)(iv) to read:

"(iv) A private home where food is prepared or served for private family, religious, or charitable functions where the public is not invited;"

(i) Amend section 1-201.10(B)(31)(c)(v) to read:

"(v) The premises of a church, temple or synagogue where food is normally prepared or served only for private family, religious or charitable functions to which the public (other than members of the church, temple, or synagogue) is not invited;"

(j) Amend section 1-201.10(B)(31)(c)(vi) to read:

"(vi) The portion of a bakery, convenience store, delicatessen, or grocery store not covered under subsection 1-201.10(B)(30)(b)(iii); and food or water vending machines. Any portion of 1-201.10(B)(30)(c)(vi) may be amended by a Memorandum of Understanding between the local health department and the Utah Department of Agriculture and Food to allow for a more cost effective use of local and state inspection resources;"

(k) Add section 1-201.10(B)(31)(c)(viii) to read:

"(viii) A home used to provide adult or child care for four or fewer persons."

(l) Amend definition 1-201.10(B)(33) to read:

"(33) "Game Animal" means an animal, the product of which is food, that is not classified as cattle, sheep, swine, or goat in 9 CFR Subchapter A- Mandatory Meat Inspection, part 301, as poultry in 9 CFR Subchapter C - Mandatory Poultry Products Inspection, part 381, or as fish."

(m) Amend definition 1-201.10 (B)(41) to read:

"(41) "Imminent Health Hazard" means a significant threat or danger to health that is considered to exist when there is evidence sufficient to show that a product, practice, circumstance, or event creates a situation that requires immediate correction or cessation of operation to prevent injury or illness based on:

(i) the number of potential injuries or illnesses; and

(ii) the nature, severity, and duration of the anticipated injury or illness."

(n) Amend definition 1-201.10(B)(47) to read:

"(47) "Meat" means the flesh of animals used as food including the dressed flesh of cattle, swine, sheep, or goats and other edible animals, except fish, poultry, and wild game animals as specified under Subparagraph 3-201.17(A)(3)."

(o) Amend definition 1-201.10(B)(61)(c)(v) to read:

"(v) A food for which a variance granted by FDA or USDA is based upon laboratory evidence which demonstrates that the rapid and progressive growth of infectious or toxigenic microorganisms or the growth of S. Enteritidis in eggs or C. botulinum can not occur, such as a food that has an a_w and a pH that are above the levels specified under Subparagraphs (c)(ii) and (iii) of this definition and that may contain a preservative, other barrier to the growth of microorganisms, or a combination of barriers that inhibit the growth of microorganisms; or"

(p) Amend definition 1-201.10(B)(87) to read:

"(87) "Temporary food establishment" means:

(a) A food establishment that operates for a period of no more than 14 consecutive days in conjunction with a single event or celebration.

(b) "temporary food establishment" does not include:

(i) A food establishment that offers only commercially prepared and packaged foods that are not potentially hazardous and require no preparation or handling; or

(ii) A produce stand that offers only whole, uncut fresh fruit and vegetables."

(q) Amend the introduction to section 2-102.11 to read:

"Based on the risks of foodborne illness inherent to the food operation, during inspections and upon request the person in charge or the certified food safety manager shall demonstrate to the regulatory authority knowledge of foodborne disease prevention, application of the Hazard Analysis Critical Control Point principles, and the requirements of this code. The person in charge or the certified food safety manager shall demonstrate this knowledge by compliance with this code and by responding correctly to the inspector's questions as they relate to the specific food operation. The areas of knowledge include:"

(r) Adopt subsections 2-102.11(A) through (O) without changes.

(s) Add a new number/catchline and 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 safety permit."

(t) Amend section 2-301.12(A) to read:

"(A) Food employees shall clean their hands and exposed portions of their arms with a cleaning compound in a lavatory that is equipped as specified under section 5-202.12 by vigorously rubbing together the surfaces of their lathered hands and arms for at least 20 seconds and thoroughly rinsing with clean water. Employees shall pay particular attention to the areas underneath the fingernails and between the fingers."

(u) Amend section 2-301.15 to read:

"Food employees shall clean their hands in a handwashing lavatory or approved automatic handwashing facility and may not clean their hands in a sink used for food preparation, or a curbed cleaning facility used for the disposal of mop water and similar liquid waste."

(v) Amend section 2-401.11(B) to read:

"(B) A food employee may drink from a closed unbreakable beverage container if the container is handled to prevent contamination of:"

(w) Adopt subsections 2-401.11(B)(1) through (3) without changes.

(x) Amend section 2-403.11(B) to read:

"(B) Food employees with service animals may handle or care for their service animals and food employees may handle or care for fish in aquariums or molluscan shellfish or crustacea in display tanks if they wash their hands as specified under sections 2-301.12, 2-301.13, and section 2-301.14(C)."

(y) Add section 3-201.11(G) to read:

"(G) Except for food establishments that prepare fruit juices at point-of-sale, the use of unpasteurized fruit juices in food establishments is prohibited."

(z) Amend section 3-201.13 to read:

"Fluid milk and milk products shall be obtained from sources that comply with Grade A Pasteurized Standards as specified in law."

(aa) Amend section 3-201.16 to read:

"Wild mushroom species shall be obtained from an approved cultivated source under inspection by a regulatory authority."

(ab) Amend section 3-201.17(A)(1) to read:

"(1) Commercially raised for food and raised, slaughtered, and processed under a voluntary meat inspection program by the Utah Department of Agriculture and Food, Division of Animal Industry;"

(ac) Amend section 3-201.17(A)(2) to read:

"(2) Under a voluntary inspection program administered by the USDA for game animals such as exotic animals (reindeer, elk, deer, antelope, water buffalo, or bison) that are "inspected and approved" in accordance with 9 CFR 352, Voluntary Exotic Animal Program; or"

(ad) Amend the introduction to section 3-201.17(A)(3) and subsections (a) and (b) to read:

"(3) Raised, slaughtered, and processed under a routine inspection program conducted by the Utah Department of Agriculture and Food, Division of Regulatory Services. Game meat under this program shall be:

(a) Slaughtered in a facility approved by the Utah Department of Agriculture and Food and with consideration of an antemortem and postmortem examination done by a veterinarian or a trained veterinarian designee, or as approved by the regulatory authority, and

(b) Processed under a HACCP plan according to laws governing meat and poultry products; or"

(ae) Amend section 3-301.11(B) to read:

"(B) Except when washing fruits and vegetables as specified under section 3-302.15, food employees shall minimize contact with exposed, ready-to-eat food with their bare hands and shall use suitable utensils such as deli tissues, spatulas, tongs, single-use gloves, or dispensing equipment."

(af) Amend section 3-302.13 to read:

" 3-302.13 Pasteurized Eggs, Substitute for Raw Shell Eggs for Certain Recipes.*

(A) Pasteurized eggs or egg products shall be substituted for raw shell eggs in the preparation of foods such as Caesar salad, hollandaise or Bearnaise sauce, mayonnaise, eggnog, ice cream, and egg-fortified beverages that are not cooked as specified in Subparagraphs 3-401.11(A)(1) or (2).

(B) Four or more eggs may not be pooled for use as an ingredient unless they are combined and cooked immediately."

(ag) Add section 3-304.12.5 to read:

"Utensils used for dispensing frozen desserts shall be stored using methods specified in sections 3-304.12(A), or (D)."

(ah) Amend section 3-304.13 to read:

"Linens or napkins may be used in contact with dry foods, such as breads and rolls, if the linens or napkins are replaced each time the container is refilled for a new consumer."

(ai) Amend section 3-401.11(A)(3) to read:

"74 degrees C (165 degrees F) or above for 15 seconds for poultry, wild game animals as specified under Subparagraph 3-201.17(A)(3), stuffed fish, stuffed meat, stuffed pasta, stuffed poultry, stuffed ratites, or stuffing containing fish, meat, poultry, or ratites."

(aj) Add section 3-501.14 (E) to read:

"(E) Whenever the temperature of a cooling potentially hazardous food is found to be out of the temperature ranges specified in section 3-501.14 (A)-(D), it shall be the responsibility of the person in charge to demonstrate to the regulatory authority that the facility has cooling procedures which are effective in meeting those requirements and that the procedures are followed."

(ak) Amend section 3-501.16(A) to read:

"At 57 degrees C (135 degrees F) or above, except that roasts cooked to a temperature and for a time specified under section 3-401.11(B) or reheated as specified in section 3-403.11(E) may be held at a temperature of 54 degrees C (130 degrees F); or"

(al) Amend Section 3-501.16(C)(2)to read:

"(2) By October 15, 2004 the equipment is upgraded or replaced to maintain food at a temperature of 5 degrees C (41degrees F) or less."

(am) Add section 3-501.17(G) to read:

"(G) In a child care center, baby food, infant formula, and breast milk for infants that are brought from home for the individual child's use shall be:

(1) Marked with the name of the child and the date of bottling in the case of breast milk or opening of the container, such as a jar of baby food;

(2) Open containers of baby food, infant formula, and breast milk shall be refrigerated and stored for no more than 24 hours; and

(3) Infant formula shall be discarded after feeding or within two hours of initiating a feeding."

(an) Amend section 3-603.11 to read:

"3-603.11 Consumption of Animal Foods that are Raw, Undercooked, or Not Otherwise Processed to Eliminate Pathogens.*

(A) Except as specified in section 3-401.11(C) and subparagraph 3-401.11(D)(3), and under section 3-801.11(D), if an animal food such as beef, eggs, fish, lamb, milk, pork, poultry, or shellfish that is raw, undercooked, or not otherwise processed to eliminate pathogens is offered in a ready-to-eat form as a deli, menu, vended, or other item; or as a raw ingredient in another ready-to-eat food, the permit holder shall inform consumers by identifying on the menu the foods that have significantly increased risk associated with certain especially vulnerable consumers eating such foods in raw or undercooked form. There are two components to satisfactory compliance with the consumer advisory:

Disclosure is satisfied when:

Items are asterisked to a footnote that states that the items:

(a) Are served raw or undercooked, or

(b) Contain (or may contain) raw or undercooked ingredients.

Reminder is satisfied when the items requiring disclosure are asterisked to a footnote that states:

"Thoroughly cooking foods of animal origin such as beef, eggs, fish, lamb, pork, poultry, or shellfish reduces the risk of foodborne illness. Consult your physician or public health official for further information.""

(ao) Amend section 3-801.11(D) to read:

"(D) Except when a resident or legal guardian has been informed of the hazards of eating raw or undercooked animal food per section 3-603.11(B) and signed a waiver requesting raw or undercooked animal foods, the following foods may not be served or offered for sale in a ready-to-eat form:"

(ap) Adopt subsections 3-801.11(D)(1) through(3) without changes.

(aq) Add section 4-204.124 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."

(ar) Amend section 4-205.10 to read:

"4-205.10 Food Equipment, Certification and Classification.

Food equipment installed after the effective date of this rule must be certified or classified for sanitation by an American National Standards Institute (ANSI)-accredited certification program in order to comply with Parts 4-1 and 4-2 of this chapter."

(as) Amend section 4-301.12 (C) to read:

"(C) Alternative manual warewashing equipment may be used when there are special cleaning needs or constraints and its use is approved. Alternative manual warewashing equipment may include:

(1) High-pressure detergent sprayers;

(2) Low- or line-pressure spray detergent foamers;

(3) Other task-specific cleaning equipment;

(4) Brushes or other implements; or

(5) Receptacles that substitute for the compartments of a multi-compartment sink."

(at) Amend section 4-301.14 to read:

"4-301.14 Ventilation Hood Systems, Adequacy.

(A) Ventilation hood systems and devices shall be sufficient in number and capacity to prevent grease or condensation from collecting on walls and ceilings.

(B) A Type I or Type II hood shall be installed at or above all commercial heat-producing appliances according to the provisions of R156-56-701(d) International Mechanical Code, and amendments adopted under R156-56-708."

(au) Amend the introduction to section 5-101.11 to read:

"Drinking water shall be obtained from an approved water system as defined under R309-101 through R309-113 that is either:"

(av) Amend section 5-101.11(A) to read:

"(A) "Community water systems"

(aw) Amend section 5-101.11(B) to read:

"(B) "Non-transient, non-community water system; or""

(ax) Add section 5-101.11(C) to read:

"(C) "Non-community water system."

(ay) Amend section 5-101.12 to read:

"A drinking water system shall be flushed and disinfected before being placed in service after construction, repair, or modification and after an emergency situation, such as a flood, that may introduce contaminants to the system by:

(A) The pipe system shall be flushed with clean, potable water until dirty water does not appear at the point of outlet.

(B) The system shall be filled with a water/chlorine solution containing:

(1) At least 50 parts per million (50mg/L) of chlorine and the system shall be valved off and allowed to stand at least 24 hours; or

(2) The system shall be filled with a water/chlorine solution containing at least 200 parts per million (200 mg/L) of chlorine and allowed to stand for three hours.

(C) Following the required standing time, the system shall be flushed with clean potable water until the chlorine is purged from the system.

(D) The procedure shall be repeated where shown by bacteriological examination that contamination remains present in the system."

(az) Amend section 5-102.11(A) to read:

"(A) Water from a public water system shall meet 40 CFR 141 - National Primary Drinking Water Regulations; and"

(ba) Amend section 5-102.11(B) to read:

"(B) R309-101 through R309-113 Rules for Public Drinking Water Systems."

(bb) Amend section 5-102.13 to read:

"Water from a non-community water system, or a non-transient, non-community water system shall be sampled as required by R309-103 Drinking Water: Water Quality Maximum Contamination Levels (MCLs) and R309-104 Drinking Water: Monitoring, Reporting, and Public Notification and local drinking water quality regulations."

(bc) Amend section 5-102.14 to read:

"The most recent sample report of the non-community water system or non-transient, non-community water system shall be retained on file in the food establishment and the report shall be maintained as required by R309-104-8."

(bd) Amend section 5-103.11(B) to read:

"(B) Hot water generation and distribution systems shall be sufficient to meet the peak hot water demands throughout the food establishment, and"

(be) Add section 5-103.11(C) to read:

"(C) Hot and cold water shall be provided through tempered mixing faucets at all handwashing lavatories, food preparation sinks, warewashing sinks, service sinks, or curbed cleaning facilities."

(bf) Amend section 5-202.11(A) to read:

"(A) A plumbing system shall be designed, constructed, and installed as required by R156-56-701(c) International Plumbing Code and R156-56-707 amendments to the International Plumbing Code."

(bg) Amend section 5-202.12(A) to read:

"(A) A handwashing lavatory shall be equipped to provide water at a temperature of at least 95^oF within 30 seconds of opening the mixing valve."

(bh) Amend section 5-203.11(C) to read:

"(C) An adequate number of handwashing stations shall be provided for each temporary food establishment to include: a minimum of one handwashing station equipped with one enclosed container with a spigot, soap, water, paper towels, and a collection container for waste water."

(bi) Amend section 5-203.14 to read:

"Except for water heater drains and clothes washers a plumbing system shall be installed to preclude backflow of a solid, liquid, or gas contaminant into the water supply system at each point of use at the food establishment, including on a hose bibb if a hose is attached or on a hose bibb if a hose is not attached and backflow prevention is required by law, by:

(A) Providing an air gap as specified under section 5-202.13; or

(B) Installing an approved backflow prevention device as specified under section 5-202.14."

(bj) Amend section 5-203.15 to read:

"The water supply to carbonators shall be installed according to the requirements of R156-56-701(c) International Plumbing Code and R156-56-707 Amendments to the International Plumbing Code."

(bk) Amend section 5-205.13 to read:

"5-205.13 Scheduling Inspection and Service for a Water System Device.

(A) A device such as a water treatment devices shall be scheduled for inspection and service, in accordance with manufacturer's instructions and as necessary to prevent device failure based on local water conditions, and records demonstrating inspection and service shall be maintained by the person in charge.

(B) The premise owner or responsible person shall have the backflow prevention assembly tested by a certified backflow assembly tester at the time of installation, repair, or relocation and at least on an annual schedule or more often when required by the regulatory authority."

(bl) Amend section 6-201.14(A) to read:

"(A) A floor covering such as carpeting or similar material may not be installed as a floor covering in food preparation areas, walk-in refrigerator, warewashing areas, food storage, and toilet room areas where handwashing lavatories, toilets, and urinals are located, refuse storage rooms, or other areas subject to moisture, flushing, or spray cleaning methods."

(bm) Amend section 6-301.11 to read:

"6-301.11 Handwashing Cleaners and Hand Sanitizers, Availability.

(A) Each handwashing lavatory or group of 2 adjacent lavatories shall be provided with a supply of hand cleaning liquid, powder, bar soap; and

(B) When a hand sanitizer is used, each handwashing lavatory or group of 2 adjacent lavatories shall be provided with a hand sanitizer or a chemical hand sanitizing solution used as a hand dip.

(C) When a hand sanitizer is used, the dispenser for the hand sanitizer or the chemical hand sanitizing solution used as a hand dip shall be located at the handwashing lavatory and may not be located anywhere else."

(bn) Amend section 6-301.13 to read:

"Except for a combination sink approved by the regulatory authority, a sink used for food preparation or utensil washing, or curbed cleaning facility used for the disposal of mop water or similar wastes, may not be provided with the handwashing aids and devices required for a handwashing lavatory as specified in sections 6-301.11, 6-301.12, and section 5-501.16(C)."

(bo) Amend section 6-501.111 to read:

"The presence of insects, rodents, and other pests shall be controlled by:

(A) Routinely inspecting incoming shipments of food and supplies;

(B) Routinely inspecting the premises for evidence of pests;

(C) Using methods, if pests are found, such as trapping devices or other means of pest control as specified under sections 7-202.12, 7-206.12, and 7-206.13; and

(D) Eliminating harborage conditions."

(bp) Add section 7-203.12 number/catchline to read:

"7-203.12 Food Containers Prohibited from Storing Toxic Materials."

(bq) Add section 7-203.12 to read:

"A food container may not be used to store, transport, or dispense poisonous or toxic materials.

(br)](a) 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, [Bureau of Food Safety and Environmental 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.["]

[(bs)](b) 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.["]

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

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

(bu) Delete Sections 8-302.14 (D) and (E).]

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

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

(bx) Amend section 8-304.11(H) to read:

"(H) Upgrade or replace refrigeration equipment as specified under section 3-501.16(C), if the circumstances specified under Subparagraphs (G)(1)-(3) of this section do not occur first, and by no later than October 15, 2004;"]

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

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

[(bz)](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["].

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

(cb) Amend section 8-403.50 to read:

"Except as specified in section 8-202.10, the regulatory authority shall treat the inspection report as a public document and shall make it available for disclosure to a person who requests it as provided in law."]

[(cc)](i) Amend section 8-501.10(B) to read:

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

[(cd)](j) Add section 8-501.10(C) to read:

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

[(ce)](k) 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.["]

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

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

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

["]8-803.10 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.["]

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

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

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

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

[(ck)](q) Amend section 8-805.10(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.["]

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

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

[(cm)](s) Amend [the introduction to ]section 8-805.50(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:["]

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

[(co)](v) Amend subsection 8-805.50(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(C) or for matters as determined necessary by the regulatory authority.["]

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

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

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

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

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

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

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

[(ct)](z) Amend [the introduction to ]section 8-806.30(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 ["]

[(cu)](aa) Adopt subsections 8-806.30(B)(1) through (2) without changes.

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

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

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

[(cx)](ad) Amend section 8-811.10(B) to read:

["](B) Any person who violates any provision of this rule may be assessed a civil penalty not to exceed the sum of $5,000.00 or be punished for violation of a class B misdemeanor for the first violation. For any subsequent similar violation within two years, the person may be punished for violation of a class A misdemeanor as provided in section 26-23-6.["]

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

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

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

[(da)](ag) Add paragraph 8-813.10(D) to read:

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

 

KEY: public health, food services, sanitation

Date of Enactment or Last Substantive Amendment: [September 3, 2002]2008

Notice of Continuation: March 22, 2007

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