RULES AND REGULATIONS
Title 7--AGRICULTURE
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 76]
Food Employe Certification
[29 Pa.B. 5069] The Department of Agriculture (Department) hereby adopts Chapter 76 (relating to food employe certification).
Authority
The Food Employe Certification Act, 3 Pa.C.S. §§ 6501--6510 (act), provides the legal authority for this rulemaking. Sections 6503(d) and 6505 of the act (relating to certification advisory board and programs; and rules and regulations), respectively: (1) require the Department to adopt food safety protection and training standards for the certification of supervisory employes who are responsible for the storage, preparation, display or serving of food to the public in establishments regulated by the Department or local health organizations; and (2) delegate to the Department the power to adopt regulations necessary for the proper enforcement and administration of the act.
Need for the Regulations
Section 6505 of the act requires this rulemaking.
In addition, section 6504(c) of the act (relating to organic certification) requires that food establishments come into compliance with the act by July 1, 2001. The rulemaking provides a detailed explanation of these requirements, and sets forth the standards and procedures under which these requirements are to be implemented. The act was the product of an industry-driven initiative to establish minimum food safety training requirements to be met by at least one supervisory employe in most food establishments in this Commonwealth. These requirements are specific to the category of food establishment involved. The promulgation of this rulemaking will allow affected food establishments almost 2 years within which to become familiar with the requirements of the regulations and arrange for the appropriate training and testing of supervisory employes to meet this July 1, 2001, compliance deadline.
In summary, the Department is satisfied there is a need for this rulemaking.
Comments
Notice of proposed rulemaking was published at 27 Pa.B. 2936 (June 21, 1997), and provided for a 30-day public comment period.
Comments were received from Representative Raymond Bunt, Jr., Chairperson of the House Committee for Agriculture and Rural Affairs (House Committee), the Independent Regulatory Review Commission (IRRC), Representative David J. Steil, Representative Matthew N. Wright, the Pennsylvania Food Merchants Association (PFMA), the Erie County Department of Health (ECDH), Health Regulation Compliance, Inc. (HRC), the Pennsylvania Restaurant Association (PRA), the Chester County Health Department (CCHD), the Allegheny County Health Department (ACHD), Radnor Township and Giant Food Stores, Inc. (Giant Foods).
Comment: Representative Steil offered a general comment in support of the proposed rulemaking and urged the Department to move forward expeditiously to promulgate the final-form regulations. Representative Wright also offered general support for the regulations.
Response: The Department is moving forward with the referenced final-form regulations.
Comment: The HRC suggested the final-form regulations be entitled ''Food Manager Certification'' or ''Supervisory Employe Certification.''
Response: The Department declines to implement this suggestion, to keep the final-form regulations consistent with the title of the act.
Comment: The HRC commented that the mandatory compliance period of July 1, 2001, in proposed § 76.1(a) (relating to compliance) is too far distant, and that compliance should be required sooner than that date. Representative Wright also raised this concern.
Response: The act prescribes this mandatory compliance date (in 3 Pa.C.S. § 6504(c)). Although the Department will encourage voluntary compliance in advance of that date, it cannot change this statutory deadline by regulations.
Comment: Section 76.1(d)(1) of the proposed rulemaking would have exempted food establishments where only commercially prepackaged food is handled and sold from having to comply with the regulations. IRRC, EDH and HRC asked whether this would allow a retail food store that offers only potentially hazardous prepackaged food to its customers to be exempt from the regulations. The HRC suggested the paragraph be revised to exempt food establishments that offer only ''prepackaged nonpotentially hazardous foods.''
Response: A retail food store that offers only commercially prepackaged food is exempt from the act and these regulations--regardless of whether some portion of the prepackaged food offered by the retail food store is potentially hazardous food. The referenced exemption is prescribed by section 6510(a) of the act (relating to exemptions). For this reason, the Department declines to implement the commentators' suggestion.
Comment: The CCHD offered general objections to the extensive list of terms and definitions in proposed § 76.2 (relating to definitions). The CCHD thought many of the terms were unnecessary, or would be more properly included in a separate State FDA Food Code. The CCHD also offered that many of the terms defined in this section are not defined in the FDA Food Code. The CCHD also offered that the list of defined terms in this section is incomplete.
Response: The Department does not intend § 76.2 of the final-form regulations to present an exhaustive list of every term related to food safety, or to override any provisions of the FDA Food Code. The Department seeks to provide clarification of the many terms it uses throughout the text of the final-form regulations. The definitions originate from the act, the FDA Food Code, technical texts and other food science information sources.
Comment: IRRC recommended deleting the qualifying phrase ''unless the context clearly indicates otherwise'' from the initial sentence of proposed § 76.2.
Response: The referenced qualifying phrase has been deleted from the final-form regulations.
Comment: IRRC and the PRA commented on the definition of ''foodborne disease outbreak'' in proposed § 76.2. That term includes ''a single case of illness such as one person ill from botulism or chemical poisoning.'' The PRA offered the opinion this phrase was not consistent with the 1997 FDA Food Code, and should be deleted. IRRC requested the Department review the 1997 FDA Food Code and make sure the text of this definition is consistent with the Federal definition.
Response: The Department reviewed the recently-released 1999 FDA Food Code and incorporated its definition of ''foodborne disease outbreak'' into the final-form regulations.
Comment: The PFMA suggested the Department define ''majority of a quorum of the advisory board'' in § 76.2 of the final-form regulations.
Response: The Department accepts this comment, but has inserted the suggested clarification in § 76.18 (relating to advisory board) of the final-form regulations.
Comment: The ECDH suggested that the definition of ''potentially hazardous food'' in proposed § 76.2 is incomplete, and should address eggs, cut or peeled fruit or vegetables, and garlic or oil mixtures that are not preserved.
Response: The ECDH is correct in that the FDA Food Code addresses the referenced foods under its definition of ''potentially hazardous food.'' The Department has not revised its definition of this term in the final-form regulations, though, since the definition is prescribed by section 6502 of the act. The first sentence of § 76.2 resolves any difference between a defined term set forth in that section and a defined term in the FDA Food Code in favor of the FDA Food Code. For this reason, although the act prescribes a particular definition of ''potentially hazardous food,'' the expanded FDA Food Code definition may be applied.
Comment: The ECDH requested clarification of the definition of a ''supervisory employe'' in proposed § 76.2. Specifically, the ECDH expressed concern that a person might hire himself out to a number of different food establishments as a ''certified supervisory employe'' for purposes of the act. The ECDH also asked for clarification of the phrase ''designated by the business owner.''
Response: The commentator's point is well taken. The definition of ''supervisory employe'' is prescribed by section 6502 of the act. However, the act also clarifies in section 6503(d) of the act (relating to certification advisory board and programs) that the certified supervisory employe must be ''. . . responsible for the storage, preparation, display or serving of foods to the public . . .'', and must also have ''supervisory authority'' in section 6504(a) of the act. The Department has added this statutory clarification to the definition.
The Department believes the phrase ''designated by the business owner'' is self-explanatory.
Comment: IRRC recommended the definition of ''temperature danger zone'' in proposed § 76.2 be revised to reflect temperatures in both degrees Celsius and degrees Fahrenheit. Radnor Township asked whether the temperatures set forth in the proposed rulemaking would be revised in the final-form regulations to conform to the FDA Food Code.
Response: The Department has revised the definition of this term in the final-form regulations by deleting references to specific temperatures. This revision was prompted by both the comments and the Department's expectation that the FDA Food Code will ultimately prescribe temperatures different from those originally proposed by the Department.
Comment: The CCHD suggested proposed § 76.3(a)(2) (relating to requirements for food establishments) be revised to reflect the industry-specific category of food establishment described in that paragraph be a food service that prepares or serves, or both, potentially hazardous foods to the consumer.
Response: The Department has implemented this suggestion in the final-form regulations.
Comment: The CCHD and ACHD expressed concern over the industry-specific categories of food establishments in proposed § 76.3(a)(1)--(5). The ACHD raised questions as to the relevance of having different industry-specific categories, and made the point that a person with a good grasp of the causes of foodborne illness should be able to apply that knowledge in more than one segment of the food industry without having to take a separate training course. The CCHD also questioned the relevance of these separate categories, and asked which certification programs and hours would be acceptable for each of these industry-specific categories.
Response: Section 6503(d) of the act requires the completion of ''industry-specific training programs'' by supervisory employes seeking certification under that statute. This language leaves the Department to define--by regulation--the appropriate industry-specific categories. The ACHD is correct in that the basic science of food safety and procedures for the prevention of foodborne illness apply from one industry-specific category of food establishment to the next. The act requires the Department fine-tune this training to the extent possible, though. The Department believes the categories listed in § 76.3(a)(1)--(5) of the final-form regulations are reasonable. The Department will remain receptive to suggested revisions as it implements this regulation. If experience proves another set of categories would be more workable, the Department will revise this regulation to adopt these categories.
In response to the CCHD's question, the final-form regulations do not identify the specific certification training programs that are appropriate for each industry-specific category of food establishment. The final-form regulations allow persons to apply for and obtain approval of certification training programs. It is quite likely that the Department will approve some certification training programs as adequate for most--if not all--of the industry-specific categories of food establishments. In other words, it is possible a single certification training program may be approved by the Department as adequate for all five industry-specific categories of food establishments. In response to the CCHD's comment, § 76.5(d)(3) (relating to certification training programs: obtaining the Department's approval) of the final-form regulations has been revised to reflect that an application for certification training program approval may seek approval under more than one of the industry-specific categories of food establishments.
Comment: The CCHD offered the suggestion that a new industry-specific category of food establishment--for mobile or temporary, or both, food facilities--be added in § 76.3(a). The CCHD feels these operations often ''pose considerable public health-communicable disease concerns.''
Response: The Department declines to implement this suggestion in the final-form regulations. A mobile or temporary food facility would fit within one of the five industry-specific categories in § 76.3(a) of the final-form regulations. If subsequent experience shows there would be some advantage to creating the suggested category, the Department will revisit this regulation.
Comment: IRRC and Radnor Township noted that a single food establishment might fall into more than one of the industry-specific categories in § 76.3(a), and that § 76.3(b) requires a food establishment to have at least one certified supervisory employe who is certified with respect to the industry-specific category of the food establishment. The logical question: If a grocery store also contains a bakery that produces potentially hazardous food and has a counter where food is prepared and served, would it be necessary for the grocery store to have a supervisory employe, or supervisory employes, with certifications in each of the industry-specific categories applicable to the store? IRRC stated ''the Department needs to clarify the requirements for food establishments that could qualify under more than one industry-specific category.''
Response: The answer to the question posed is ''yes.'' If a single store falls within multiple industry-specific categories, it shall have a certified supervisory employe who is certified with respect to each of those industry-specific categories. This requirement is not expected to be unduly burdensome or onerous, though, in light of the fact that a single certification training program may be approved as acceptable training for certification in more than one industry-specific category of food establishment.
In response to the comment, § 76.3(b) of the final-form regulations has been revised to clarify the issues raised by the commentators.
Comment: The PFMA suggested proposed § 76.3(b) be revised to clarify that a certified supervisory employe be responsible for implementing company policies, procedures and standards for the prevention of foodborne illness.
Response: Although the Department has not implemented the exact suggestion offered by the commentator, it has revised the definition of ''supervisory employe'' in § 76.2 of the final-form regulations to incorporate references to the ''supervisory authority'' of an employe and the general responsibilities of an employe in sections 6504(a) and 6503(d) of the act, respectively.
Comment: The CCHD offered the opinion that the phrase ''or designate'' in proposed § 76.3(b) would create a ''loophole'' by which a person who is not an employe or on full-time status could be a food establishment's ''certified supervisory employe.''
Response: Section 76.3(b) of the final-form regulations includes the phrase ''or designate'' because that phrase is contained in the definition of ''supervisory employe'' in section 6502 of the act.
Comment: Radnor Township asked whether a certified supervisory employe, as described in proposed § 76.3(b), would have to be present at a food establishment for every shift of that food establishment.
Response: A food establishment's certified supervisory employe need not be present at a food establishment for every shift.
Comment: IRRC suggested proposed § 76.3(c) and (d) be revised by replacing the phrase ''shall bring itself into compliance'' with ''shall comply.''
Response: The Department accepts this suggestion, and has implemented it in the final-form regulations.
Comment: IRRC noted that proposed § 76.3(c) would require a new food establishment to comply with the act within 90 days, while proposed § 76.3(d) would require an existing food establishment that loses its certified supervisory employe (through employe turnover or other circumstances) to comply with the act within 3 months of the loss. IRRC suggested the Department use one term consistently--either 3 months or 90 days. The ACHD offered a similar comment.
Response: The 3-month period referenced in § 76.3(d) is prescribed by section 6504(d) of the act. The 90 day period referenced in § 76.3(c) derives from the provision in section 6503(d) of the act, which affords a supervisory employe that period from his date of employment within which to pass the required certification test. The Department believes it reasonable to use this same 90-day time period in calculating the time within which a new food establishment shall bring itself into compliance. For this reason, the Department declines to implement the suggested revision in the final-form regulations.
Comment: IRRC recommended proposed § 76.3(e) be rewritten for greater clarity, and offered recommended language in this regard.
Response: The Department agrees that IRRC's recommended language is more clear and straightforward than that of proposed § 76.3(e), and has revised § 76.3(e) of the final-form regulations to adopt IRRC's suggested language.
Comment: Proposed § 76.3(e)(2) and (6) would require a food establishment to retain certain records for 1 year. IRRC offered the observation that this 1-year record retention period was not necessary, and recommended the Department consider establishing a shorter record retention period in the final-form regulations.
Response: The Department accepts this recommendation, and has revised § 76.3 of the final-form regulation to establish a 4-month record retention period.
Comment: Giant Foods and the PFMA noted that proposed § 76.3(e) requires specific records be maintained at the food establishment site, and suggested the final-form regulation be revised to afford food establishments the option to retain these records at the food establishment's corporate office. The PFMA also suggested that this revision would make recordkeeping and retrieval easier for both food establishments and the Department.
Response: The Department declines to implement this recommendation. A Department employe who conducts an inspection of a food establishment should be able to determine with certainty, during the course of that inspection, whether the food establishment is in compliance with the act and its attendant regulations. This would not be possible if necessary paperwork is retained at some distant corporate office and is not immediately available at the time of inspection. The Department believes that the recordkeeping requirements in § 76.3(e) are not unduly burdensome, and represent the minimum information the Department needs to check compliance with the act and its attendant regulations.
Comment: Proposed § 76.3(f) requires that records be available during ''reasonable hours.'' IRRC suggests changing the phrase to ''normal business hours of the food establishment.'' IRRC believes that this phrase will clarify when records are expected to be made available.
Response: The Department accepts this recommendation, and has implemented it in the final-form regulations.
Comment: Giant Foods and the PFMA offered the comment that proposed § 76.3(g)--which requires posting of the original certificate of a food establishment's certified supervisory employe in public view in the food establishment--should be revised to specify the exact location where the certificate should be posted. PFMA suggested this location be ''in the entranceway, in the customer service area or at the cash register for establishments having no customer area.''
Response: The Department is reluctant to implement this suggestion, given the variety of layouts of food establishments. The Department believes the general requirement the certificate be posted ''in public view'' is adequate. A food establishment meets this posting requirement as long as the certificate is visible and readable from some location in the establishment that is accessible to the public.
The Department revised § 76.3(h) to reflect that a food establishment should return a certificate to the person to whom it is issued upon termination of employment or when the employe is no longer a certified supervisory employe with respect to that food establishment.
Comment: Proposed § 76.4 (relating to eligibility to apply for certification) would require a person to have received a score of at least 70% on an approved certification examination to be eligible to apply to the Department for certification. Several commentators questioned this 70% standard, and recommended alternative approaches to determining eligibility. The PRA suggested the final-form regulation recognize examinations developed to various National standards. CCHD took the position that any specified passing score is too restrictive. It noted that some courses only give pass/fail results. The CCHD also recommended the final-form regulation reflect that any examination shall meet ''current psychometric standards.'' IRRC considered these comments, reviewed the proposed 70% standard and the requirement that an examination consist of at least 80 questions (prescribed in § 76.8 (relating to format of a certification examination)), and recommended the Department consider whether these standards and requirements might exclude some courses that would otherwise qualify. ACHD indicated that there is a current food safety training course which administers a test that has only 60 questions.
Response: The Department firmly believes that a supervisory employe should demonstrate a mastery of the subject matter of an approved certification examination in order to be eligible for certification, and that the 70% standard is a reasonable demonstrator of the test-taker's mastery of that subject matter. The public has a basic understanding that a person who scores less than 70% on an examination has not mastered the subject matter addressed in that test. The Department did not set out to establish lowest-common-denominator standards that could be met by every food safety program. If the Department's 70% standard--or any other requisite for the Department's approval of a certification training program--works to exclude some food safety courses from being approved, the Department views this as acceptable.
One of the most widely-used food safety training programs is the ''ServSafe'' program developed by the Education Foundation of the National Restaurant Association. Under that program, the minimum passing score is 75% and the certification examination consists of at least 80 multiple-choice questions.
If there is a food safety course that awards its students a pass/fail grade, this would not, per se, prevent the Department from approving the course. If the pass/fail determination is based upon a test which meets the criteria of the final-form regulation and the test scores can be conveyed to the Department, the course may be approved. If a person ''passes'' the course with an examination score of less than 70%, though, the Department would not certify that person.
The Department does not consider the 80-question minimum requirement for an approved certification examination to be unreasonable, particularly in light of the volume of required subjects set forth in § 76.7 (relating to certification training programs: food safety protection and training standards) of the final-form regulations.
Comment: The CCDH expressed concern that proposed § 76.4 requires any person seeking certification from the Department to first complete an approved certification program. The CCDH would prefer there be some mechanism by which persons experienced in food safety procedures could be grandfathered-in for certification, rather than requiring these persons to attend a course of instruction in an area with respect to which they are already familiar. The CCDH recommended there be a challenge test (a test without the pretest training) or some other approach that would spare food safety experts the time and expense of attending certification training programs.
Response: The Department declines to implement this recommendation. Section 6503(d) of the act requires certification be granted ''following the completion of industry-specific training programs recommended by the advisory board and approved by the department.'' In addition, the training and continuing education requirements set forth in the final-form regulations will help keep a certified supervisory employe's food safety knowledge current. The Department also notes that the act and the final-form regulations afford a person until July 1, 2001, within which to obtain the required training and certification.
Comment: IRRC noted that proposed § 76.5 (relating to certification training programs: obtaining the Department's approval) would provide guidelines for approval of certification training programs, but would not prescribe minimum hours of instruction. IRRC suggested that a minimum hour requirement is a core element of a certification training program, and recommended the Department prescribe the specific minimum hours of instruction that will be required. Similarly, the PFMA and CCHD requested the Department revise § 76.7 of the final-form regulations to specify the total number of training hours necessary for a program to become an approved certification training program.
Response: The Department agrees with IRRC and all the other commentators in this regard, and has revised § 76.7 of the final-form regulations to prescribe a minimum of 15 hours of instruction in an approved certification training program. This 15-hour minimum instruction requirement is further explained in § 76.7(a)(1)--(7) of the final-form regulations, which divides this 15-hour period among seven basic course topics.
Comment: The ACHD suggested that proposed § 76.5(a) is too strict if it would require the Department's approval of any changes to previously-approved certification training programs.
Response: The Department agrees with the commentator, and has revised § 76.5(a) in the final-form regulations to reflect that it is not necessary for the Department to approve nonsubstantive changes to a previously-approved certification training program. As a means of monitoring whether the program changes are, in fact, nonsubstantive, the Department has also added language to require these changes be reported to the Department.
Comment: The PRA, ACHD and ECHD asked whether a single certification training program could be approved with respect to all 5 of the industry-specific categories of food establishment in § 76.3(a)(1)--(5) of the final-form regulations. As an example, the PRA referenced its ''ServSafe'' certification training program and noted it had been approved in other states as acceptable training for food service employes in ''restaurants, congregate feeding sites, contract feeders, institutional feeding, grocery stores, convenience stores, etc. . .''
Response: The answer to this question is ''yes.'' A certification training program's content might be adequate to address any combination of the five industry-specific categories of food establishment. In response to this comment, the Department has revised § 76.5(b) of the final-form regulations to reflect the possibility that a single approved certification training program might cover multiple industry-specific categories of food establishments.
Comment: The ECHD expressed concern that proposed § 76.5 does not prescribe any minimum training, experience or educational requirements for those persons who will teach approved certification training programs. CCHD took the opposite view, and stated that it was not necessary, in proposed § 76.5(d), to describe the contents of a complete application.
Response: The Department is satisfied that the information and materials required under the application process described in § 76.5(d)(1)--(9) of the final-form regulations will provide the Department and the Food Employe Certification Advisory Board (Advisory Board) adequate information as to whether a certification training program should be approved. For this reason, the Department has not made any revision to the final-form regulations in response to these comments.
Comment: Proposed § 76.5(d)(4) would require an application for certification training program approval to contain a copy of any examination to be administered as part of the program, plus the answer key. IRRC and the PRA expressed apprehension that this proprietary product might be distributed beyond the Department or the Advisory Board. IRRC also expressed apprehension that examinations might find their way to prospective examinees.
Response: The Department will consider exams and answer keys submitted to it under § 76.5(d)(4) of the final-form regulations confidential and the proprietary documents of the entity submitting them, and will make no further distribution beyond the Department and the Advisory Board. Advisory Board members will also be apprised that these documents are to be considered proprietary information. In response to the comment, the Department has revised § 76.5(g) of the final-form regulations to clarify that certain materials it receives in the application process will be considered confidential and proprietary. The Department has also made a similar revision to § 76.13(d) (relating to obtaining departmental approval of a continuing education course) of the final-form regulations.
Comment: This comment is similar to the preceding comment. Proposed § 76.5(d)(5) would require an application for certification training program approval to include a copy of all teacher materials for the program. Giant Foods expressed concern over this provision, and suggested the final-form regulation be revised to afford an applicant the option to submit a listing of teacher materials instead of the materials, themselves.
Response: The Department believes it is important to review the teacher materials for any certification program with respect to which approval is sought, and declines to implement the suggested revision in the final-form regulations. To the extent the commentator's concerns may be driven by a desire to protect proprietary information or otherwise keep their work product from being used by other entities, the Department will consider teacher materials confidential and the proprietary information of the entity submitting them, and will make no further distribution beyond the Department and the Advisory Board. Advisory Board members will also be apprised that teacher materials are to be considered proprietary information. As stated in the preceding response, the Department has revised §§ 76.5(g) and 76.13(d) of the final-form regulations to clarify that certain materials it receives in the application process will be considered confidential and proprietary.
Comment: The ECDH asked if--in the context of reviewing an application for approval of a home study certification training program--the materials the applicant would be required to submit under proposed § 76.5(d)(6) would be the course materials the home study course proposes to forward to its students.
Response: The answer to this question is ''yes.''
Comment: The ECDH reviewed proposed § 76.5(f) and asked whether an approved certification training program must be reapproved at least 90 days before it is conducted. ECDH also suggested requiring course re-approval only if changes are made to the curriculum.
Response: Once a certification program is approved, it need not be reapproved each time it is offered. For example, if a certification program is approved in 1999 and is offered to students in 1999, it need not be reapproved if it is offered again in 2000. The 90-day deadline in § 76.5(f) of the final-form regulations provides the Department and the Advisory Board a reasonable period following receipt of a complete application within which to evaluate the application and communicate a decision on the application to the applicant, and affords the applicant a reasonable prospect that--barring complications with the application--the program could be approved in advance of the planned date on which the applicant wishes to conduct the program for the first time.
Comment: Giant Foods suggested the 90-day deadline in proposed § 76.5(f) be reduced to 45 days.
Response: The Department declines to implement the suggested revision in the final-form regulations. The Department believes the 90-day period in § 76.5(f) of the final-form regulations is necessary, to afford adequate time to schedule and convene a meeting of the Advisory Board to consider the application. This deadline also serves to decrease the number of times the Advisory Board shall meet each year.
Comment: Giant Foods requested the Department define the phrase ''a majority of the Advisory Board'' in proposed § 76.5(g).
Response: The Department has added language to § 76.18(d) (relating to Advisory Board) of the final-form regulations to reflect that a quorum of that body is a simple majority of its members, and a simple majority of a quorum is necessary for approval of any motion before that body.
Comment: The ACDH suggested that the audit permitted under § 76.6 (relating to certification training programs: audit by Department) should also address ''control of the tests, proctoring, cheating, teaching to the test, etc. . .''
Response: The Department believes that the broad language of § 76.6 of the final-form regulations provides the Department adequate authority to monitor approved certification training programs. The Department is reluctant to attempt to list all of the factors it might consider in the course of its audit of such a program, since it would be difficult to make such a listing all-inclusive.
Comment: The House Committee reviewed proposed § 76.7 and noted that the section did not make reference to the ''industry-specific training programs'' prescribed by section 6503(d) of the act. The House Committee noted appropriate references to industry-specific categories of food establishments throughout the proposed regulation, and questioned the absence of this subject in proposed § 76.7--the section prescribing appropriate food safety protection and training standards.
Response: The Department agrees that § 76.7 of the final-form regulations should contain language requiring a more precise link between the subject matter of a certification program and the industry-specific category of food establishment with respect to which certification program approval is sought. In response to this comment, § 76.7 of the final-form regulations has been revised to make repeated references to the requirement that instruction in a training program be relevant to the industry-specific category of food establishment addressed in the certification training program.
Comment: The House Committee took note of the use of the term ''training program'' in proposed § 76.7(a), and asked whether it is the same thing as a ''certification program'' and whether the term ''certification training program'' would be more accurate.
Response: The Department agrees that the term ''certification training program'' is the most descriptive term for the programs described in the final-form regulations, and has revised the final-form regulations throughout to make consistent use of this term.
Comment: The CCHD offered the general comment that the material in proposed § 76.7(b)--(h) was too detailed, and would not allow for new food safety information to be added to certification training programs.
Response: The referenced sections do not prevent future certification training programs from addressing advancements in food safety science and procedures.
Comment: The HRC suggested proposed § 76.7 require a certification training program to address Hepatitis A vaccine, the availability of this vaccine and the availability of other vaccinations that relate to foodborne disease as they become available.
Response: Section 76.7(d)(1)(iii) of the final-form regulations requires that a certification training program address ''Hepatitis A infection.'' If experience demonstrates more emphasis should be placed on the topics described by the commentator, the Department will revisit the regulation.
Comment: IRRC suggested the Department delete the phrase ''or hazardous analysis critical control point'' from§ 76.7(e)(1)(v) of the final-form regulations, since ''HACCP'' is defined in § 76.2.
Response: IRRC's suggestion has been implemented in the final-form regulations.
Comment: IRRC noted the use of the acronym ''MSDS'' in proposed § 76.7(f)(2), and suggested the acronym be spelled-out and defined in § 76.2 of the final-form regulations.
Response: IRRC's suggestion has been implemented in the final-form regulations.
Comment: Proposed § 76.7(g)(6) and (7) would require that a portion of training address facilities and equipment layout and, in particular, plumbing and management of solid and liquid waste. The ECHD asked whether these paragraphs cover the information that should be given regarding sewage disposal.
Response: The Department believes the phrase ''plumbing design'' and ''management of solid and liquid waste'' in § 76.7(g)(6) and (7) of the final-form regulations fairly include sewage disposal.
Comment: The ACHD notes that all of the food certification program training areas should be in compliance with the recommendations set forth at the 1996 Food Protection Conference.
Response: The Department's main reference in developing the final-form regulations has been the recently-issued 1999 FDA Food Code, rather than the 1996 Food Protection Conference.
Comment: Proposed § 76.8 (relating to format of a certification examination) would restrict food certification examinations to multiple choice or true or false formats. Both IRRC and the PRA offered the opinion that there is no need to restrict the test format because there are other testing formats available. The ACHD also questioned the Department's acceptance of true-or-false questions, since someone with no food safety knowledge could answer half of these questions correctly.
Response: The Department agrees with the commentators and has revised § 76.8 of the final-form regulations to delete any requirement the examination be in a multiple choice or true-or-false format. The Department will not prohibit the use of true-or-false questions, but understands that the typical examination uses a multiple-choice format. If subsequent experience demonstrates a need to prohibit true-or-false examinations altogether, the Department will revisit this regulation.
Comment: IRRC recommended the Department revise § 76.9 of the final-form regulations (relating to reporting results of certification examination) to specify whether the 20-day time period referenced in that section pertains to ''business days'' or ''calendar days.'' The PRA recommended that this period refer to ''business days.'' The HRC recommended this period be lengthened to 45 days.
Response: The Department has revised this section to clarify that the referenced period refers to calendar days. This will be an easier standard to enforce. In recognition of the concern raised by the PRA and HRC, though, the 20-day period has been changed to a 30-calendar-day period in the final-form regulations.
Comment: Radnor Township asked who would be responsible to grade certification examinations (which are referenced in proposed § 76.9).
Response: The person who reports the examination score to the Department under § 76.9 of the final-form regulations is ultimately responsible for the accuracy of the scoring of the examination, and is free to delegate examination scoring responsibilities.
Comment: Proposed § 76.10 (relating to applying for certification) would require a person to apply to the Department for certification. Both the PFMA and Giant Foods suggested requiring either that a person or a corporate representative of that individual apply to the Department for certification. Giant and the PFMA believe that a corporate office may be able to process a supervisory employe's application for certification more quickly than the supervisory employe.
Response: The Department believes the language of § 76.10 of the final-form regulations would allow the process the commentators describe. If, for example, Giant Foods arranges for a supervisory employe to attend and complete a certification training program, it may obtain and submit a certification application on its employe's behalf. If certification is granted, though, the certificate will be issued to the certified supervisory employe, rather than Giant Foods.
Comment: In the context of its review of proposed § 76.10, the CCHD requested clarification of whether a person who conducts a certification training program or proctors a certification examination could distribute applications for certification forms to persons taking the training. Similarly, Giant Foods asked whether a corporation could obtain application forms for its supervisory employes.
Response: The Department will provide application forms to any person who requests them--regardless of whether they are requested by a prospective applicant, a prospective applicant's employer, the person conducting the certification training program attended by the prospective applicant, or any other person. Section 76.10(b) of the final-form regulations has been revised to clarify that anyone may obtain a certification application form from the Department. An instructor or examination proctor is free to obtain and distribute these forms.
Comment: The ECHD reviewed proposed § 76.10(b)(2), which requires an applicant for certification to submit the date and location of the approved certification training program as part of the application, and questioned whether this information would be adequate to constitute ''official proof'' that the applicant had completed required training.
Response: The Department will verify whether an applicant has successfully completed required training by referring to the confirmation required of the person who proctors the certification examination. Section 76.9 of the final-form regulations requires the proctor to provide the Department a copy of the examination score, the date and location of the examination and the industry-specific category of food establishment addressed in the certification training course. The Department will use this information to cross-check the representations a person makes on an application for certification.
Comment: IRRC and the PFMA suggested proposed § 76.11 (relating to certificate) be revised to allow for the replacement of lost, stolen or damaged certificates.
Response: The Department accepts this comment, and has added § 76.11(d) to the final-form regulations to establish a procedure for replacing lost, stolen or damaged certificates.
Comment: The HRC commented that the certificate described in proposed § 76.11 should be valid for the industry-wide average of 2 years rather than 5 years.
Response: The 5-year effective life of a certificate, as set forth in § 76.11(a)(4) of the final-form regulations, is prescribed by section 6504(f) of the act, and cannot be altered by regulation.
Comment: The ACHD and ECHD reviewed proposed § 76.12 (relating to renewal of certification) and suggested that the final-form regulations require that a certificateholder take a written examination every 5 years to ensure that continuing education efforts have been successful.
Response: Although the Department agrees that periodic retesting of certificateholders might work to benefit the long-term credibility and effectiveness of food safety promotion efforts, it is constrained to follow the provisions of the act which provide in section 6504(f) of the act, that although continuing education courses are required, the courses may not include a written examination.
Comment: Giant Foods requested the 7.5-hour course requirement for continuing education courses, in proposed § 76.12(a), be reduced to 4 hours.
Response: The Department believes the 7.5 hour minimum requirement in § 76.12(a) of the final-form regulations is a reasonable minimum standard for a continuing education course, and for this reason declines to implement the requested revision.
Comment: Giant Foods and the PFMA requested that proposed § 76.12(a)--(c) be revised to allow a corporate representative to renew a certified supervisory employe's certification.
Response: As is the case with initial applications for certification (§ 76.10), the Department will provide application for renewal of certification forms to any person who requests them regardless of whether they are requested by a prospective applicant, a prospective applicant's employer, or any other person. Section 76.12(b) of the final-form regulations has been revised to clarify that anyone may obtain an application for renewal of certification form from the Department. This revision is similar to a revision appearing in § 76.10(b) of the final-form regulations.
Comment: The CCHD noted that proposed § 76.13(c)(2) (relating to obtaining Departmental approval of a continuing education course) would require a course to address changes, updates or advances in food safety. The commentator makes the point that after 5 years from initial certification a certificateholder would benefit from a general review of the material that was presented in the initial certification training course.
Response: The Commentator's point is well taken. The Department has revised § 76.13(c)(2) of the final-form regulations to allow a continuing education course to consist of a general review of food safety considerations and procedures.
Comment: The CCHD offered the observation that proposed § 76.13 would not prescribe curriculum guidelines for continuing education courses, and requested the Department consider adding the curriculum guidelines in the final-form regulations.
Response: The Department is satisfied with the general continuing education course subject matter parameters in § 76.13(c) of the final-form regulations, and intends to allow a measure of flexibility and innovation within these parameters. If subsequent experience reveals a need to establish more specific requirements, the Department will revisit this regulation.
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