W. Va. Code R. § 64-17-3 - Incorporation by Reference of Federal Model Food Code

3.1. The Federal Food Code, also known as the 2013 Recommendations of the United States Public Health Service, Food and Drug Administration, (hereinafter referred to as the "Food Code") published by the U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, is incorporated by reference with the following exceptions:
3.1.a. Chapter 1, the definition of "food establishment" in paragraph 1-201.10(B) shall not be used for the purposes of this rule. In lieu thereof, the term "food establishment" is defined in section 4 of this rule;
3.1.b. The following shall be added to paragraph 2-102.12(A), "within one (1) year of the effective date of this rule.";
3.1.c. Chapter 2, paragraph 2-102.12(B) may not be used for the purposes of this rule. The following applies: "This section does not apply to:
(1) retail food facilities where only commercially prepackaged food is handled and sold, and
(2) temporary food establishments.";
3.1.d. The following shall be added to Chapter 3, paragraph 3-501.16(A)(2) "Within five years of the effective date of this rule, the refrigeration equipment in a retail food store used to hold cut leafy greens shall be repaired, upgraded, or replaced to maintain the cut leafy greens at a temperature of 5 C, (41 F) or less, if not already capable of maintaining the required temperature.";
3.1.e. Chapter 3, paragraph 3-501.1G(B) may not be used for the purposes of this rule. The following applies: "Eggs that have not been treated to destroy all viable Salmonellae shall be stored in refrigerated equipment that maintains an ambient air temperature of 5 C (41 F) or less.";
3.1.f. In Chapter 3, paragraph 3-603.11(A), the word "milk" shall be deleted;
3.1.g. In Chapter 3, subparagraph 3-603.11(C)(3) the following applies: "Consuming raw or under cooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness, especially for children, elderly, immuno compromised individuals, and persons with certain medical conditions.";
3.1.h. Chapter 6, section 6-501.115 is not applicable if the following conditions are met:
3.1.h.1. The dog is prohibited from entering any areas where food is being prepared;
3.1.h.2. An exterior play area is available for the dog;
3.1.h.3. The dog owner shall certify that his or her dog has a current rabies vaccination;
3.1.h.4. The dog owner will be asked to leave, if a dog creates a nuisance;
3.1.h.5. The establishment is licensed as a private club, brew pub, or micro distillery;
3.1.h.6. The establishment has liability insurance for dog-related incidents;
3.1.h.7. Dog accidents are cleaned and sanitized. Dog waste stations are available. A written procedure shall be established and posted concerning dog accident cleanup;
3.1.h.8. Signage is present indicating that the establishment is dog friendly; and
3.1.h.9. Dog rules are provided to customers upon entrance.
3.1.i. Chapter 8, section 8-102.10 and section 8-304.10 shall not apply;
3.1.j. Chapter 8, section 8-201.11 shall include the following sentence after subsection C: "All required plans shall be submitted at least 45 days prior to the start of construction, conversion, or remodeling.";
3.1.k. Chapter 8, section 8-405.11 shall be deleted in its entirety and in lieu thereof the following language shall be inserted:

8-405.11 Timely Correction.

(A) Except as specified in ¶ (B) of this section, a PERMIT HOLDER shall at the time of inspection correct a violation of a PRIORITY ITEM or PRIORITY FOUNDATION ITEM of this Code and implement corrective actions for a HACCP PLAN provision that is not in compliance with its CRITICAL LIMIT.
(B) Considering the nature of the potential HAZARD involved and the complexity of the corrective action needed, the REGULATORY AUTHORITY shall agree to or specify a time frame, not to exceed:
(1) 72 hours after the inspection, for the PERMIT HOLDER to correct violations of a PRIORITY ITEM; or
(2) 10 calendar days after the inspection, for the PERMIT HOLDER to correct violations of a PRIORITY FOUNDATION ITEM or HACCP PLAN deviations.
3.1.l. Chapter 8, part 8-6, and subparts 8-905 through 8-913 of Annex 1 shall not apply; and
3.1.m. Annex 1, section 8-904.10, shall include the following additional provision:

The commissioner may also summarily suspend a permit to operate a food establishment if:

3.1.m.1. The food establishment has three or more immediately uncorrectable priority items in violation at the time of inspection; or
3.1.m.2. The permit holder has been determined by the commissioner to have obstructed or hindered the commissioner in the proper discharge of his or her duties; and
3.1.m.3. Enforcement shall be in accordance with W. Va. Code § 16-1-1 etseq. and § 16-6-1, etseq.
3.2. The commissioner shall use Annexes 2 through 7 of the Food Code in the interpretation and application of this rule.
3.3. The Food Code is available on the internet at: http://www.fda.gov or as posted by the United

States Food and Drug Administration.


W. Va. Code R. § 64-17-3

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