24273685, 5KER21-1 - Florida Administrative Rules, Law, Code, Register

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Notice: 24273685

Notice of Emergency Rule

Department:

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division:

Division of Food Safety

Overview

RULE:

5KER21-1

Training and Certification

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE:

Rule 5K-4.002, F.A.C., adopts provisions of the 2017 version of the FDA Food Code as the nationwide standard for food safety and mitigation of foodborne illness in public food establishment settings. Section 2-102 of the code addresses the knowledge demonstration requirements for certain employees of organizations based on the risk associated with the food operation. Section 2-102.11, of the code requires, in part, that a person in charge of a food establishment “demonstrate knowledge of foodborne disease prevention, application of the hazard analysis and critical control point principles, and the requirements of this code. the person in charge shall demonstrate this knowledge by: (a) complying with this code by having no violations of priority items during the current inspection; or (b) being a certified food protection manager who has shown proficiency of required information through passing a test that is part of an accredited program or (c) responding correctly to the inspector's questions as they relate to the specific food operation.” additionally, the department has adopted language consistent with the requirements of Section 2-102.12 of the 2017 Food Code, in Rule 5K-4.021, F.A.C., requiring that “All Retail Food Establishments shall have a certified food protection manager that is certified by a food protection manager certification program that is evaluated and listed by a Conference for food Protection-recognized accrediting agency as conforming to the Conference for food Protection Standards for Accreditation of food Protection Manager Certification Programs except for the following: (a) Food Establishments that are not required to obtain a food permit in accordance with Sections 500.12(1)(a)1.-4., F.S.; (b) Food Establishments that store, and/or sell only pre-packaged, non-potentially hazardous foods that arrive at the Food Establishment in a pre-packaged state and that are not opened or otherwise further processed by the Food Establishment; (c) Tomato packing houses. (d) Limited poultry and egg farm operation.”
Finally, Section 2-102.20 of the 2017 Food Code provides that “(a) a person in charge who demonstrates knowledge by being a food protection manager that is certified by a food protection manager certification program that is evaluated and listed by a conference for food protection-recognized accrediting agency as conforming to the conference for food protection standards for accreditation of food protection Manager Certification Programs is deemed to comply with s. 2-102.11(B).” and “(b) A food establishment that has a person in charge that is certified by a food protection manager certification program that is evaluated and listed by a Conference for Food Protection-recognized accrediting agency as conforming to the Conference for Food Protection Standards for Accreditation of Food Protection Manager Certification Programs is deemed to comply with s. 2-102.12.”  
In order to provide maximum social distancing efforts to combat the transmission of SARS-CoV-2 in Florida and to be responsive to industry’s inability to attend in-person training for food protection managers to achieve the required certification, the department has suspend, by emergency order, the requirement for certification as required in Rule 5K-4.021, F.A.C. Increases in food establishment patronage with both warmer seasonal weather and the risk of “COVID fatigue” give rise to the increased threat of exposure to foodborne illness causing pathogens. Food Establishments using or continuing to use untrained and uncertified food protection managers to manage medium and high food operations further increases the potential for foodborne illness causing pathogens to be present and transmitted to unsuspecting patrons. Given the current availability of virtual food protection manager certification training at this time and the 2017 Food Code requirements as adopted which pertain directly to mitigation of food borne disease, an emergency rule providing a path to certification instead of a blanket waiver by emergency order is in the best interests of the health, welfare and public safety of the citizens of Florida.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES:

As a result of the COVID-19 pandemic, the ability to acquire or maintain training as a certified food protection manager in Florida, as required by Rule 5K-4.021, F.A.C., was greatly inhibited. At the onset of the pandemic, training classes were only offered by in-person training and proctored examinations for successful completion of the course were required. Due to the social distancing requirements necessary to mitigate transmission of SARS-CoV-2, in-person training programs were discontinued or otherwise temporarily unavailable. As a result of the unavailability, certified food protection training manager programs that complied with the Conference for Food Protection Standards, the department by Emergency Order 2020-012, and subsequent extensions, set aside requirements in Rule 5K-4.021, F.A.C., requiring recertification and completion of the course. Virtual training programs that comply with the Conference for Food Protection Standards for Accreditation of Food Protection Managers have now become widely available to retail food establishments with the costs of programs very similar to in-person offerings. Given the availability of virtual certification programs at costs similar to in-person programs available before the pandemic, the department is providing an established timeframe for affected food establishments to recertify former food protection managers or certify new food protection managers without fear of regulatory action for non-compliance.

SUMMARY:

This emergency rule provides required retail food establishments 30-days to designate and enroll food protection managers in a certified food protection management course that is compliant with Conference for Food Protection Standards for Accreditation of Food Protection Manager Certification Programs. Enrollees in the food protection management course will then have 60-days after enrollment to complete the course and obtain subsequent certification.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS:

Chris Hilliard, Chief, Bureau of Food Inspection, 3125 Conner Blvd., MS C-18, Tallahassee, FL 32399, (850) 245-5541.

PRINT PUBLISH DATE:

3/5/2021 Vol. 47/44

OVERSIGHT COMMITTEE:

Joint Administrative Procedures Committee
Florida Administrative Law Central Online Network (F.A.L.C.O.N.)

RELATED COURT CASES:

Division of Administrative Hearings

FEDERAL eRULEMAKING
WEB PORTAL:

Regulations.gov

HOW TO LINK TO
THIS NOTICE:

http://flrules.org/gateway/ruleno.asp?id=5KER21-1&PDate=3/5/2021&Section=4

REFERENCE MATERIALS:

No reference(s).

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