RULES AND REGULATIONS
Title 7--AGRICULTURE
DEPARTMENT OF AGRICULTURE
[7 PA. CODE CH. 76]
Food Employee Certification
[34 Pa.B. 4139] The Department of Agriculture (Department) amends Chapter 76 (relating to food employee certification) to read as set forth in Annex A.
Statutory Authority
Chapter 65 of 3 Pa.C.S. (relating to the Food Employee Certification Act) (act) provides the legal authority for this final-form 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 employees 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.
The act also requires that regulations be promulgated with the approval of the Food Employee Certification Advisory Board (Board). The Board approved the proposed rulemaking at its October 6, 2003, meeting. Although that document was subsequently revised in response to comments received from the public and the Independent Regulatory Review Commission (IRRC), the revisions were nonsubstantive and did not require further review by the Board.
Purpose
Chapter 76 took effect in October 1999. The act was subsequently amended by the act of December 20, 2000 (P. L. 934, No. 124) (Act 124) and then by the act of December 9, 2002 (P. L. 1495, No. 190) (Act 190). The purpose of the final-form rulemaking is to implement the statutory changes of Act 124 and Act 190.
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 employee in most food establishments in this Commonwealth.
Act 124 revised the act by: (1) deleting the requirement that food safety training requirements be ''industry-specific''; (2) extending the date by which food establishments must come into compliance with the act by 2 years (from July 1, 2001, to July 1, 2003); (3) exempting certain food establishments operated by charitable and nonprofit organizations from the requirements of the act; and (4) requiring the Department to develop a food safety training program for those organizations that, although exempt from the requirements of the act, elect to voluntarily seek certification under the act.
Act 190 revised the act by: (1) extending the date by which food establishments must come into compliance with the act by another year (from July 1, 2003, to July 1, 2004); (2) expanding the membership of the Board; and (3) requiring the Department to promulgate regulations (approved by the Board) by July 1, 2004, establishing training programs consistent with the revised act.
The act requires that the Department consider a number of factors in writing the final-form rulemaking, including: (1) the existence and operation of Department-approved employee training programs on safe food handling; (2) the fact that some food establishments engage in only the limited handling of potentially hazardous food; (3) the number of hours necessary to train food establishment employees to handle food safely, with consideration of the ''scope'' of the food establishment's business; and (4) the demonstration necessary for the Department to be satisfied that a particular supervisory employee is proficient in the safe handling of food. The Department has given consideration to all of these factors in the drafting of the final-form rulemaking.
Need for the Final-Form Rulemaking
The final-form rulemaking is needed to implement the changes to the act under Act 124 and Act 190.
Comments
Notice of proposed rulemaking was published at 34 Pa.B. 831 (February 14, 2004) and provided for a 30-day public comment period.
Comments were received from IRRC, the Director of Outdoor Education and Group Rentals for the South Mountain YMCA--Camp Conrad Weiser Outdoor Center (South Mountain YMCA), Goodtime Amusements (through Irvin L. Good, Jr.), the Chester County Health Department (CCHD), the Allegheny County Health Department (ACHD), the Pennsylvania Food Safety Alliance (PAFSA), with members who represent Commonwealth agencies abstaining from the comment process, and the Pennsylvania Food Merchants Association (PFMA). The Department's response to these comments follows:
Comment 1: The South Mountain YMCA acknowledged that the act specifically exempts certain tax-exempt and nonprofit organizations from having to comply with the certification requirements in the act, and questioned whether this serves the overall cause of food safety. Although the act allows otherwise-exempt organizations to voluntarily comply, the commentator believes compliance should be mandatory.
Response: The Department understands the commentator's concerns, but is constrained by the clear language of the act in this regard. The final-form rulemaking cannot undo the specific exemptions in the act. Section 6510 of the act (relating to exemptions) exempts certain food establishments from compliance and this exemption cannot be undone by regulation.
Comment 2: The CCHD noted that the proposed rulemaking did not prescribe duties and responsibilities for a person who becomes a certified supervisory employee. The commentator described the responsibilities it imposes on a ''certified food manager'' within its jurisdiction, and suggested the final-form rulemaking should impose similar requirements.
Response: The Department looks to the act for guidance as to the duties of a certified supervisory employee. The act does not impose any specific responsibilities upon a certified supervisory employee (other than to maintain certification), and the Department will not impose these duties through this final-form rulemaking. In addition, the basic duties the commentator imposes on its ''certified food managers'' are consistent with duties imposed under Chapter 46 (relating to food code).
Comment 3: IRRC reviewed proposed § 76.2 (relating to definitions), and noted that several defined terms that were proposed for deletion were used elsewhere in the proposed rulemaking, and suggested these definitions be retained unless the Department could explain why they are not needed. The defined terms involved are ''food contact surface,'' ''HACCP,'' ''retail food store'' and ''water activity.''
Response: The Department has elected to retain the referenced defined terms in the final-form rulemaking.
Comment 4: IRRC suggested the defined term ''food code'' be deleted from § 76.2 in the final-form rulemaking, since it is not used in the body of the regulation.
Response: The Department has implemented this suggestion in the final-form rulemaking.
Comment 5: The PAFSA and the ACHD considered the definition of the phrase ''limited handling of potentially hazardous foods'' in proposed § 76.2, and recommended the definition be limited to the handling of a single potentially hazardous food. The commentator also suggested that ''limited handling'' should only include foods that are heated for immediate consumption (and exclude food that are heated and then held hot).
Response: The Department believes the proposed definition is adequate, and does not perceive a need to limit the term to only a single type of food. The Department believes it is the limited handling of the potentially hazardous food handled by a food establishment that determines the relative risk of that activity, rather than the number of different types of potentially hazardous food handled. With respect to the suggestion that the definition exclude foods that are heated and then held hot (as opposed to being immediately consumed), the Department declines to implement this suggestion.
Comment 6: IRRC recommended proposed § 76.3(b) (relating to requirements for food establishments) be revised by replacing the phrase ''unless one of the following is accurate'' with ''unless one of the following applies.''
Response: The recommendation has been implemented in the final-form rulemaking.
Comment 7: The CCHD noted that the proposed rulemaking allows for a certified supervisory employee to be certified in a number of categories, depending upon the type of food establishment and food activity involved. These categories are the general, process-specific, modified and nonprofit certification categories, and are referenced throughout the proposed rulemaking, beginning with proposed § 76.3(b). The CCHD references its long-standing and well-regarded food safety program, and objects to the proposed rulemaking allowing for certification in anything but the ''general'' certification category. The commentator believes that all of the regulated community should have the same level of food safety training. It also believes that the Department will have difficulty tracking compliance with the requirements of the proposed rulemaking, as food employees change jobs or food establishments change their operations so that another certification category is applicable to that operation.
Response: The Department appreciates this well-reasoned comment. The Department believes that the most recent amendments to the act make clear the intention of the General Assembly that nonprofit food establishments and food establishments involving only the limited handling of potentially hazardous food be given special consideration in preparing the final-form rulemaking, and that they be subject to standards that are somewhat less-strict than those imposed upon other food establishments. The Department agrees that having four different certification categories will present a more formidable paperwork and enforcement task, but believes it can handle this and, moreover, believes it is constrained by the current language of the act to establish and regulate different certification categories.
Comment 8: Goodtime Amusements noted that proposed § 76.3(c) would allow a new food establishment to remain open for up to 90 days before it would have to have a certified supervisory employee, and suggested this grace period be deleted.
Response: The Department declines to implement this suggestion. The Department maintains that the referenced regulatory provision is justified under the language of the act. Section 6503(d) of the act provides that a supervisory employee has up to 90 days within which to pass the test requisite to becoming a certified supervisory employee. Section 6504(d) of the act (relating to certification of employees) also provides that food establishments that are not in compliance with the act because of employee turnover have a grace period of 3 months from the date of loss of a certified supervisory employee to come back into compliance with the act. Against this backdrop, the Department believes it is reasonable and consistent with the act for the referenced subsection to allow a new food establishment 90 days within which to come into compliance with the requirements of the act.
Comment 9: Goodtime Amusements reviewed proposed § 76.3(d) and recommended the subsection be revised to allow a food establishment 45 days, rather than 3 months, within which to replace a certified supervisory employee lost through employee turnover.
Response: The Department cannot implement this recommendation, since the referenced 3-month period is prescribed by section 6504(d) of the act.
Comment 10: In the context of its review of proposed § 76.4 (relating to eligibility to apply for certification), the PFMA recommended that persons be allowed to take ''challenge examinations'' to demonstrate their food safety knowledge without having to first complete an approved certification training course.
Response: Section 6504(b) of the act provides that ''No certificate shall be issued unless the applicant has successfully completed a training course and passed an examination recommended by the advisory board and approved by the department.'' Although a training course must precede the examination, an organization would be free to develop a brief training course that that would only be offered to persons with specific credentials or experience in the area of food safety. That course could be comparatively shorter than other certified training courses. For this reason, although the Department is not free to adopt the commentator's recommendation, the desired objective might be reached through the development and approval of a training course.
Comment 11: IRRC requested that the phrase ''are accurate'' in proposed § 76.5(b)(2)(iii) (relating to certification training programs: obtaining the Department's approval) be replaced with ''apply.''
Response: The requested change has been made in the final-form rulemaking.
Comment 12: IRRC reviewed proposed § 76.5(b)(2)(iv)(B), which describes the standards under which the Department would approve a certification training program in the nonprofit certification category. The commentator suggested that, with respect to a program developed and administered by an entity other than the Department, the proposed requirement that the program ''meet the requirements referenced in clause (A)'' was too expansive, given that clause (A) contains a reference to section 6504(g)(2) of the act that is only applicable to the Department. IRRC suggested that the Department might have intended this requirement to be only that the course meet the course requirements in § 76.7(b) (relating to certification training programs: food safety protection and training standards).
Response: The commentator is correct, and the Department has revised the referenced provision in the final-form rulemaking to reflect that nonprofit certification category training programs must meet the course content requirements in § 76.7(b).
Comment 13: The PAFSA and the ACHD noted that proposed § 76.5(d)(4) would allow for certification training course examinations other than examinations that have been accredited by the Conference for Food Protection (CFP). The commentator recommended that, with respect to the general certification category, the final-form rulemaking only allow CFP-accredited examinations, and offered that this is the only way to ''assure that the exams are valid and legally defensible.''
Response: The Department declines to implement this recommendation for several reasons. Initially, the Department notes that the language with respect to which the comment is offered is part of the current regulation, rather than language in the final-form rulemaking. The Department notes that the act does not prescribe CFP-accredited examinations, but defers to the Department, in consultation with the Board, to develop adequate training programs. The Department intends the final-form rulemaking to afford persons a measure of flexibility in developing and administering examinations. Proposed certification program examination will be carefully reviewed by the Department and the Board. An examination that is approved by the Department and the Board, in accordance with the act, will be valid and legally defensible.
Comment 14: The PAFSA and the ACHD reviewed proposed § 76.5(d)(7) and, as in the preceding comment, recommended that only CFP-accredited examinations be allowed in home study courses in the general certification category.
Response: The Department references its response to Comment 13.
Comment 15: IRRC reviewed proposed § 76.7, and offered its opinion that the act requires the Department to establish, through regulation, the appropriate minimum number of hours of instruction necessary ''. . . to prepare employees for safe food handling due to the food establishment's scope of business.'' IRRC noted that the proposed rulemaking would delete the specific minimum hour of instruction requirements in the current regulation, and asked how the regulation will be in compliance with the act if this is done.
Response: The Department does not read the act as rigidly requiring that the final-form rulemaking specify a minimum number of hours of instruction to be given on various topics as part of an approved certification training program. The General Assembly has given the Department the authority and responsibility to adopt a regulation that provides for the consideration of whether a minimum number of hours is necessary, but does not require that the regulation ultimately adopted under that authority establish a minimum-hour standard. The Department believes that the course syllabus and the written examination requirements are, in combination, entirely adequate to ensure that persons who take a certification training course and pass the written examination at the conclusion of that class possess adequate food safety knowledge with respect to the certification category of the course (whether the certification training category is general, process-specific, modified or nonprofit). To the extent that the proposed rulemaking might not have adequately reflected that the Department had considered the minimum number of hours necessary for this training, though, the Department has added a sentence to § 76.5 that more clearly constitutes a provision considering the number of hours necessary for certification.
Comment 16: The PAFSA and the ACHD offered comments with respect to proposed § 76.8 (relating to certification examination requirements). The commentators believe that an examination administered in the ''modified'' certification category should be multiple choice, and that language should be added to specify that the subject matter of the examination questions should relate specifically to the course content.
Response: The Department does not perceive a need to limit the referenced examination to a multiple-choice format. The Department will keep these comments in mind, though, as it administers the final-form rulemaking, and will revisit this question if it appears there is some problem that could be remedied by requiring the examination to be in multiple-choice format. As far as the comment regarding the examination subject matter is concerned, the Department believes the introductory paragraph in § 76.8 adequately links the examination content of the particular category of certification training course involved. That section provides that ''The examination shall adequately test food protection knowledge with respect to the certification category of the approved certification training course.''
Comment 17: The ACHD noted that proposed § 76.10(a) (relating to applying for certification) would allow a person who has taken an approved certification training course in the past to apply to the Department for certification as long as the certification examination was administered within 5 years preceding the application date. Given that 3 Pa.C.S. § 6504(f) provides that certification last for 5 years, the commentator offered that a person could go nearly 10 years without having to take another training course.
Response: The commentator is correct. The Department offers two considerations in response. First, it should be noted that the referenced 5-year window is offered as new regulatory language, and that the current regulation places no time limit whatsoever on the maximum allowable interval between the date of completion of a certification training course and the date of application for certification. The proposed 5-year limit, therefore, is a move in the direction espoused by the commentator. Second, it is significant to consider that once a person passes an approved certification training course and is certified by the Department, the only continuing education requirement is that the certified supervisory employee attend an approved continuing education course and submit an application for renewal of certification to the Department at intervals of no greater than 5 years. Section 6504(f) of the act states that there is to be no written examination required for this recertification. Given that, once certification is granted, the requirements for continuing education are mere attendance at a continuing education course without being tested on a mastery of the course material, the Department believes the referenced 5-year application window is justifiable.
Comment 18: Goodtime Amusements asked whether the Department will publish a list of the other states with respect to which it enters into the reciprocal agreement described in proposed § 76.14 (relating to reciprocity with other states).
Response: The Department will publish a list of states in the Pennsylvania Bulletin and provide a link to this list on its website: www.agriculture.state.pa.us. In addition, it will disseminate this list among groups representing the various segments of the food and restaurant industries in this Commonwealth.
Comment 19: Goodtime Amusements reviewed proposed § 76.19 (relating to civil penalties) and opined that the penalties prescribed by that section are too harsh. The commentator also offered that a ''. . . $300 fine for a hair net missing would be harsh.''
Response: Since the referenced civil penalty range is prescribed by section 6508 of the act (relating to civil penalties), the Department cannot change it through regulation. With respect to the comment regarding a $300 civil penalty for a missing hair net, the Department offers that the referenced civil penalties can only be imposed with respect to violations of the provisions of the act or its attendant regulations. Although the act requires food establishments to have certified supervisory employees under certain circumstances, it does not require that these certified supervisory employees implement specific food safety or food sanitation practices. For this reason, the ''missing hair net'' referenced by the commentator could never be the basis for a civil penalty under the act or the regulation (although the conduct might constitute a violation of Chapter 46 (relating to food code)).
Fiscal Impact
Commonwealth: The final-form rulemaking will impose some costs upon the Commonwealth. The Department estimates its costs in administering the certification requirements imposed by the act at $15,000 per year until July 1, 2004 (the date beyond which compliance with the certification requirements becomes mandatory) and $30,000 per year starting July 1, 2004.
Political Subdivisions: The final-form rulemaking will impose no costs and have no fiscal impact upon political subdivisions.
Private Sector: The final-form rulemaking will impose no costs and have no fiscal impact upon the private sector. The amendments to the act by Act 124 and Act 190 relieve food establishments operated by certain exempt charitable and nonprofit organizations from the cost of training and certification a supervisory employee. These cost savings cannot be readily quantified, and are the product of the referenced legislation, rather than the proposed rulemaking. The overall cost of compliance with the certification requirements imposed by the act is estimated at $2 million (approximately 100,000 affected food establishments, multiplied by the minimum $20 fee prescribed by the act). This figure excludes the costs of obtaining the training required as a prerequisite to certification.
General Public: The final-form rulemaking will impose no costs and have no fiscal impact upon the general public. Although food establishments may incur some costs in obtaining certification for a supervisory employee, these costs are expected to be modest. Additionally, since the act has been amended to exempt more types of food establishments from its requirements, these exempt food establishments shall no longer be required to bear the costs of compliance.
Paperwork Requirements
The final-form rulemaking is not expected to have an appreciable impact upon the Department's paperwork volume.
Sunset Date
There is no sunset date for the final-form rulemaking. The Department will review the efficacy of these regulations on an ongoing basis.
Contact Person
Further information is available by contacting the Department of Agriculture, Bureau of Food Safety and Laboratory Services, 2301 North Cameron Street, Harrisburg, PA 17110-9408, Attention: Martha M. Melton, (717) 787-4315.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 4, 2004, the Department submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 831, to IRRC and the Chairpersons of the House and Senate Standing Committees on Agriculture and Rural Affairs for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on July 14, 2004, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on July 15, 2004, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of intention to adopt the amendments adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments received were considered.
(3) The modifications that were made to this final-form rulemaking in response to comments received do not enlarge the purpose of the proposed rulemaking published at 34 Pa.B. 831.
(4) The adoption of the final-form rulemaking in the manner provided in this order is necessary and appropriate for the administration of the act.
Order
The Department, acting under authority of the act, orders that:
(a) The regulations of the Department, 7 Pa. Code Chapter 76, are amended by amending §§ 76.1, 76.4, 76.7, 76.8, 76.10--76.13, 76.16, 76.17 and 76.19 and by deleting § 76.18 to read as set forth at 34 Pa.B. 831 and by amending §§ 76.2, 76.3, 76.5 and 76.9 to read as set forth in Annex A.
(b) The Secretary shall submit this order, 34 Pa.B. 831 and Annex A to the Office of General Counsel and to the Office of Attorney General for approval as required by law.
(c) The Secretary shall certify this order, 34 Pa.B. 831 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
DENNIS C WOLFF,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 34 Pa.B. 4082 (July 31, 2004).)
Fiscal Note: Fiscal Note 2-145 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 7. AGRICULTURE
PART III. BUREAU OF FOOD SAFETY AND LABORATORY SERVICES
Subpart C. MISCELLANEOUS PROVISIONS
CHAPTER 76. FOOD EMPLOYEE CERTIFICATION § 76.2. Definitions.
The following words and terms, when used in this chapter, have the following meanings unless otherwise defined in Chapter 46 (relating to food code):
Act--3 Pa.C.S. Chapter 65 (relating to the Food Employee Certification Act).
Advisory Board or Board--The Food Employee Certification Advisory Board.
Bacteria--Single cell microorganisms.
CFP or Conference for Food Protection--An independent, National voluntary nonprofit organization to promote food safety and consumer protection.
(i) Objectives of the organization include identifying and addressing food safety problems and promoting uniformity of regulations in food protection.
(ii) Participants include Federal, State and local regulatory agencies, several universities, test providers, certifying organizations, consumer groups, food service and retail store trade associations and operators.
Certificateholder--A person holding a valid certificate.
Certification category--A designation of one of the four types of Department-approved certification training programs, indicating the depth of food safety training received by a person who successfully completes such a program. The four certification categories are as follows:
(i) General certification category.
(ii) Process-specific certification category.
(iii) Modified certification category.
(iv) Nonprofit certification category.
Certified supervisory employee--A supervisory employee holding a valid certificate.
Cleaning--The process by which dirt or other foreign matter is removed from an article.
Department--The Department of Agriculture of the Commonwealth.
Food--
(i) A raw, cooked or processed edible substance, ice, beverage or ingredient used or intended for use or for sale in whole or in part for human consumption, or chewing gum.
(ii) The term does not include medicines and drugs.
Food Act--The Food Act (31 P. S. §§ 20.1--20.18).
Food contact surface--One of the following:
(i) A surface of equipment or a utensil with which food normally comes into contact.
(ii) A surface of equipment or a utensil from which food may drain, drip or splash into a food or onto a surface normally in contact with food.
Food establishment--
(i) A room, building, place or portion thereof or vehicle maintained, used or operated for the purpose of selling to the public, commercially storing, packaging, making, cooking, mixing, processing, bottling, baking, canning, freezing, packing or otherwise preparing, transporting or handling food.
(ii) The term includes retail food stores and public eating and drinking licensees, except those portions of establishments operating exclusively under milk or milk products permits and those portions of establishments operating exclusively under United States Department of Agriculture inspection.
(iii) The term does not include dining cars operated by a railroad company in interstate commerce or a bed and breakfast, homestead or inn as defined in the Public Eating and Drinking Place Law.
Frozen dessert manufacturer--A food establishment that is located in this Commonwealth and that is required to be licensed under authority of the Frozen Dessert Law (31 P. S. §§ 417-1--417.14).
HACCP--Hazard Analysis Critical Control Point--A system that identifies and monitors specific foodborne hazards (biological, chemical or physical properties) that can adversely affect the safety of the food product.
Limited handling of potentially hazardous foods--
(i) Food handling activities that are limited to the placement of a potentially hazardous food on or into a warming, heating or cooking unit.
(ii) The term includes activities such as placing a hot dog on a roller, placing a pizza in a cooking/warming unit or warming a premade sandwich in a microwave oven.
Person--A corporation, partnership, limited liability company, business trust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person.
Potentially hazardous food--
(i) A food which consists in whole or in part of milk or milk products, eggs, meats, poultry, fish, shellfish, edible crustaceans or other ingredients, including synthetic ingredients, and which is in a form capable of supporting rapid and progressive growth of infectious or toxigenic microorganisms.
(ii) The term does not include foods that have a pH level of 4.6 or below or a water activity of 0.85 or less under standard conditions or food products in hermetically sealed containers processed to maintain commercial sterility.
Public eating and drinking place--
(i) A place within this Commonwealth where food or drink is served to or provided for the public, with or without charge, or a place which otherwise conforms to the definition in section 1 of the Public Eating and Drinking Place Law (35 P. S. § 655.1).
(ii) The term does not include dining cars operated by a railroad company in interstate commerce or a bed and breakfast homestead or inn.
Public Eating and Drinking Place Law--The act of May 23, 1945 (P. L. 926, No. 369) (35 P. S.§ § 655.1--655.13).
Retail food store--A food establishment or a section of a food establishment where food and food products are offered to the consumer and intended for off-premises consumption.
Sanitizing--The application of cumulative heat or chemicals on cleaned food contact surfaces that, when evaluated for efficacy, yield a reduction of 5 logs, which is equal to a 99.999% reduction, of representative disease microorganisms of public health importance.
Secretary--The Secretary of the Department.
Supervisory employee--An owner or a person employed by or designated by the business owner to fulfill the requirements of the act, and who has supervisory authority and is responsible for the storage, preparation, display or serving of foods to the public in establishments regulated by the Department or local health organizations.
Time and temperature--Important factors in controlling the growth of pathogenic organisms in potentially hazardous foods.
Water activity--A measure of the free moisture in a food. The term is the quotient of the water vapor pressure of the substance divided by the vapor pressure of pure water at the same temperature, and is indicated by the symbol AWw.
§ 76.3. Requirements for food establishments.
(a) General requirement. A food establishment that is not exempt from compliance under § 76.1(d) (relating to compliance) shall comply with the act and this chapter.
(b) Certified supervisory employee. A food establishment shall employ or designate at least one certified supervisory employee who holds a valid certificate issued by the Department under authority of the act and this chapter. The certificate shall be in the general certification category unless one of the following applies:
(1) The food establishment engages only in one or more specific, identified food processing activities (such as making cider or preparing frozen desserts), in which case a certificate in the process-specific certification category, pertinent to the processing conducted at the food establishment, shall suffice.
(2) The food establishment's personnel engage only in the limited handling of potentially hazardous foods (such as persons who handle food products that do not require any preparation by the food establishment other than to place the food on or in a cooking or warming unit), in which case a certificate in the modified certification category, pertinent to the food handling conducted at the food establishment, shall suffice.
(3) The food establishment is a nonprofit entity that, although otherwise exempt from compliance under § 76.1(d) voluntarily seeks certification under section 4(c)(2) of the act, regarding certification of employees, in which case a certificate in the nonprofit certification category shall suffice.
(c) New food establishment. A new food establishment shall comply with subsection (b) within 90 days of the date it commences operation.
(d) Employee turnover. If a food establishment loses its only certified supervisory employee through employee turnover or for any other reason, the food establishment shall comply with subsection (b) within 3 months of the date it lost its previous certified supervisory employee.
(e) Certification records. A food establishment shall maintain, at the food establishment site, a list of certified supervisory employees under its employment during the last 4 months including: name, certificate number, certification category, issuance date, expiration date, date employment began and date employment terminated.
(f) Availability of records. Upon request by the Department, a food establishment shall make the records described in subsection (e) available for inspection by the Department during normal business hours of the food establishment.
(g) Posting of certificate. A food establishment shall post the original certificate of its certified supervisory employee in public view at its business location.
(h) Return of certificate. A certificate is the property of the Department and is issued to the individual person identified on its face. A food establishment shall promptly deliver the certificate to a certified supervisory employee who leaves the employ of the food establishment or who otherwise ceases to be a certified supervisory employee with respect to that establishment.
§ 76.5. Certification training programs: Obtaining the Department's approval.
(a) Approval required. A person shall obtain the Department's approval of a training program before the certification training program will be considered an approved certification training program for purposes of the act and this chapter. Substantive revisions or changes to a previously-approved certification training program shall also be approved by the Department. Although nonsubstantive revisions to a previously-approved certification training program do not require approval of the Department, notice of these nonsubstantive revisions shall be communicated in writing to the Department, at the address in § 76.16 (relating to contacting the Department), before being implemented. Approval under this section authorizes a person to develop and approve certification examinations, conduct certification examinations and certify the results of certification examinations to the Department in accordance with this chapter.
(b) General requirements for approval.
(1) Approval of program. The Department will approve a certification training program if it meets the food safety protection and training standards described in § 76.7 (relating to certification training programs: Food safety protection and training standards), fits within one of the certification categories described in paragraph (2) and has been recommended for approval by the Advisory Board. The Department's approval of a certification training program will not be contingent upon any minimum number of hours of instruction, in light of the other requirements for certification training program approval described in this section.
(2) Certification categories. The Department may approve a certification training program in one of four certification categories. These categories, and the requisites for inclusion of a certification training program within each, are as follows:
(i) General certification category. The Department will approve a certification training program in the general certification category if one of the following applies:
(A) The training program addresses the topics set forth in § 76.7(a).
(B) The training program is a Federally-mandated HACCP training program for juice, seafood, meat or poultry.
(ii) Process-specific certification category. The Department will approve a certification training program in the process-specific certification category if both of the following apply:
(A) The subject matter of the training program relates to one or more specific, identified food processing activities (such as making cider or preparing frozen desserts).
(B) The training program addresses the topics in § 76.7(a) in a manner specifically directed to the food processing activities that are the identified subject matter of the training program.
(iii) Modified certification category. The Department will approve a certification training program in the modified certification category if both of the following apply:
(A) The subject matter of the training program is addressed to persons who handle potentially hazardous food on only a limited basis (such as persons who handle food products that do not require any preparation by the food establishment other than to place the food on or in a cooking or warming unit).
(B) The training program addresses the topics in § 76.7(a) in a manner specifically directed toward persons who handle potentially hazardous food on only a limited basis, and in a less-comprehensive manner than a certification training program in the general certification category.
(iv) Nonprofit certification category. The Department will approve a certification training program in the nonprofit certification category if either of the following apply:
(A) The training program is developed and administered by the Department under authority of section 4(g)(2) of the act regarding relating to certification of employees, and meets the course content requirements in § 76.7(b).
(B) The training program is developed and administered by an entity other than the Department, and meets the course content requirements in § 76.7(b).
(c) Obtaining an application form. The Department will provide an application form for certification training program approval, or an application form for approval of revisions or changes to a previously-approved certification training program, upon request. Requests for these forms shall be directed to the Department at the address in § 76.16.
(d) Contents: application for certification training program approval. The application form for certification training program approval shall require the following information:
(1) The applicant's name, address and telephone number.
(2) A course syllabus demonstrating that the program would meet the course content requirements in § 76.7.
(3) A designation of the certification category (whether general, process-specific, modified or nonprofit), as described in subsection (b)(2), with respect to which approval of the training program is sought.
(4) One of the following:
(i) A copy of the examination to be administered at the conclusion of the certification training program, together with an answer key for that examination, if these documents are available.
(ii) The name of the CFP-accredited examination to be administered at the conclusion of the certification training program.
(5) A copy of all teacher materials for the certification training program, unless the certification training program is a home-study program.
(6) A copy of all materials to be distributed to persons taking the program.
(7) If the certification program is a home study program, the proposed site and date the approved certification examination is to be administered, if available.
(8) Other information the Department might reasonably require in evaluating the certification training program.
(e) Contents: application for approval of changes or revisions to a previously-approved certification training program. The application form for approval of changes or revisions to a previously-approved certification training program shall require the applicant's name, address and telephone number and only the information listed in subsection (d) that is relevant to the change or revision with respect to which approval is sought.
(f) Deadline for filing the application. An application for certification training program approval or for approval of changes or revisions to a previously-approved certification training program shall be delivered to the Department, at the address in § 76.16, at least 90 days in advance of the proposed date upon which the program is to be conducted.
(g) Departmental and Advisory Board action on application. The Department and the Advisory Board will consider application materials submitted to them under subsection (d)(4)--(6) confidential and the proprietary documents of the applicant, and will make no distribution of these materials. The Advisory Board will consider whether to recommend Departmental approval of a certification training program. If a simple majority of a quorum of the Advisory Board recommends Departmental approval of a certification training program, the Department will grant its approval, if the other criteria in subsection (b) are met. The Department will mail the applicant its written approval of the certification training program, its denial of approval or a request for additional clarification or documentation.
§ 76.9. Reporting results of a certification examination.
(a) Reporting results to the program participant. A person who proctors a certification examination shall, within 30 calendar days of proctoring the examination, mail or deliver written confirmation of the following to any person who took the examination:
(1) The person's examination score, expressed as the percentage of correct answers.
(2) The date and location of the examination.
(3) The name of the course instructor.
(4) If the approved certification training program preceding the examination required a specific level of food-safety-related education or experience as a prerequisite to participating in the training program, confirmation that this requirement was met.
(b) Reporting results to the Department. Within the 30-day time period described in subsection (a), the proctor shall mail the same information to the Department at the address in § 76.16 (relating to contacting the Department), using either a form provided by the Department upon request, or a copy of the written confirmation the proctor provided the person who took the examination.
[Pa.B. Doc. No. 04-1438. Filed for public inspection August 6, 2004, 9:00 a.m.]
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