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Rule for Retail Food Establishments DPHHS
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37 110 201 INTRODUCTION 3,37 110 238 LICENSES 3,37 110 239 INSPECTIONS 6. 37 110 243 MINIMUM PERFORMANCE REQUIREMENTS FOR LOCAL HEALTH AUTHORITIES 6. 37 110 251 SEPARABILITY 7,37 110 260 INCORPORATION BY REFERENCE 7. 37 110 261 CHAPTER 1 PURPOSE AND DEFINITIONS 8,37 110 262 CHAPTER 2 MANAGEMENT AND PERSONNEL 11. 37 110 265 CHAPTER 3 FOOD 12, 37 110 266 CHAPTER 4 EQUIPMENT UTENSILS AND LINENS 12. 37 110 267 CHAPTER 5 WATER PLUMBING AND WASTE 12,37 110 268 CHAPTER 6 PHYSICAL FACILITIES 17.
37 110 269 CHAPTER 7 POISONOUS OR TOXIC MATERIALS 17. 37 110 272 CHAPTER 8 COMPLIANCE AND ENFORCEMENT 17. 37 110 201 INTRODUCTION, 1 This is a subchapter regulating retail food establishments that serve food to the public as provided in. Title 50 chapter 50 MCA, 2 All retail food establishments must comply with all appropriate building construction standards as set. forth by 50 60 101 MCA and all applicable administrative rules as adopted by the Department of Labor. and Industry in ARM Title 24, History 50 50 103 MCA IMP 50 50 103 MCA NEW 1979 MAR p 677 Eff 7 13 79 TRANS AMD. 2000 MAR p 3201 Eff 11 23 00 AMD 2014 MAR p 2957 Eff 1 1 15. 37 110 238 LICENSES, 1 No person may operate a food establishment who does not have a valid license issued by the. department Only a person who complies with the requirements of this subchapter will be entitled to. receive or retain such a license A valid license must be posted in every retail food establishment. 2 Any person desiring to operate a retail food establishment must make written application for a. license on forms provided by the department, 3 Prior to approval of an application for a license the regulatory authority must inspect the proposed.
retail food establishment to determine compliance with the requirements of this subchapter. 4 The department will issue a license to the applicant if an inspection by the regulatory authority. reveals that the proposed retail food establishment complies with all applicable requirements of this. subchapter, 5 The department may after providing opportunity for hearing cancel a license for serious or. repeated violations of any of the requirements of this subchapter or for interference with the. department or other authorized persons in the performance of duty. 6 Prior to cancellation the department will notify in writing the licensee of the specific reason s for. which the license is to be cancelled The notice will further provide for the licensee the opportunity to. request an administrative hearing in front of the department within ten business days after the receipt. of the notice If no request for hearing is filed within the ten day period the cancellation of the license. becomes final, 7 The licensee may submit to the department an acceptable plan of correction within ten business. days after receiving the department s notice of cancellation Such an acceptable plan of correction will. be a bar to canceling the license, 8 A notice provided for in this rule is properly served when it is delivered to the holder of the license. or the person in charge or when it is sent by registered or certified mail return receipt requested to. the last known address of the holder of the license A copy of the notice will be filed in the records of. the department, 9 The hearing provided for in this rule will be conducted by the department pursuant to Title 2 chapter. 4 subchapter 6 MCA of the Montana Administrative Procedure Act regarding contested cases and. ARM 37 5 117 The department will make a final finding based upon the complete hearing record and. will sustain modify or rescind any notice or order considered in the hearing The department will. furnish a written report of the hearing decision to the licensee. 10 Whenever a cancellation of a license has become final the holder of the cancelled license may. make written application for a new license, 11 Obtaining the license referred to in 1 does not relieve the applicant from satisfying applicable.
requirements from other federal state or local agencies These may include. a building code permits and inspections,b fire and life safety inspections. c private or public water supply system or sewage treatment systems permits or inspections. d occupational health and safety requirements, 12 The regulatory authority will assign a food establishment to a license type and subtype by assessing. food processing procedures food service and utilizing the definitions in these rules. 13 At the time of initial licensing and updated as needed but no less than each licensing year the. regulatory authority will correctly assign a food establishment to one of four categories by evaluating. the food processing and service procedures of the food establishment based on the criteria specified in. Table 1 Food Establishment Complexity Categories,Category Establishment Complexity. 1 i only heat commercially processed time temperature control for safety foods. TCS potentially hazardous foods for hot holding,ii process only non TCS foods. iii no cooling TCS foods, iv establishments otherwise grouped in Category 2 but have shown through.
documentation to have achieved managerial control of foodborne illness risk factors. v examples include convenience stores hot dog carts coffee shops and. establishments that serve or sell only prepackaged non TCS foods. 2 i establishment has a limited menu, ii processed foods are immediately served or made to order. iii food operations may involve hot and cold holding of TCS foods after processing. or cooking, iv limited processing of TCS foods that require cooking cooling reheating and the. limited service of a few TCS foods, v establishments that would otherwise be grouped in Category 3 but have shown. through historical documentation to have achieved managerial control of foodborne. illness risk factors, vi newly licensed establishments that would otherwise be grouped in Category 1 are. categorized here until a history of managerial control of foodborne illness risk factors. is documented, vii examples include retail food stores schools not serving a highly susceptible.
population and quick service operations, 3 i establishment has extensive menu and handling of raw ingredients. ii complex preparation including cooking cooling and reheating for hot holding. involving many TCS foods, iii variety of processes require hot and cold holding of TCS food. iv establishments that would otherwise be grouped in Category 4 but have shown. through historical documentation to have achieved managerial control of foodborne. illness risk factors, v newly licensed establishments that would otherwise be grouped in Category 2 are. categorized here until a history of managerial control of foodborne illness risk factors. is documented,vi examples include full service restaurant. 4 i establishments serving a highly susceptible population. ii engage in specialized processes such as smoking curing reduced oxygen. packaging etc, iii examples include preschools hospitals nursing homes and special processing.
requiring a variance, History 50 50 103 MCA IMP 50 50 103 50 50 201 50 50 204 50 50 205 50 50 206 50 50 207 50. 50 208 50 50 209 50 50 210 50 50 211 50 50 212 50 50 213 50 50 214 50 50 215 MCA NEW. 1979 MAR p 677 Eff 7 13 79 AMD 1985 MAR p 928 Eff 7 12 85 TRANS AMD 2000 MAR p. 3201 Eff 11 23 00 AMD 2014 MAR p 2957 Eff 1 1 15,37 110 239 INSPECTIONS. 1 The local health officer registered sanitarian or sanitarian in training employed by or contracted. with the local board of health shall perform an inspection of each retail food establishment within the. jurisdiction of the local board of health at least once every 12 months Additional inspections of the food. service establishment must be performed as often as necessary for the enforcement of this subchapter. History 50 50 103 MCA IMP 50 50 103 50 50 104 50 50 203 50 50 205 50 50 206 50 50 301 50. 50 302 50 50 305 MCA NEW 1979 MAR p 677 Eff 7 13 79 AMD 1994 MAR p 2941 Eff. 11 11 94 TRANS AMD 2000 MAR p 3201 Eff 11 23 00 AMD 2014 MAR p 2957 Eff 1 1 15. 37 110 243 MINIMUM PERFORMANCE REQUIREMENTS FOR LOCAL. HEALTH AUTHORITIES, 1 To qualify for reimbursement under 50 50 305 MCA a local board of health will perform inspections. as specified in this subchapter or enter into a written signed cooperative agreement with the. department that establishes the duties and responsibilities of the local board of health and the. department consistent with this subchapter, 3 All local boards of health must meet the following criteria. a At least one sanitarian working with or for the local board of health must receive training. from the department in standardized food inspections The department is responsible for. making training and standardization available on a periodic basis. b Reporting of inspection dates must be documented in a manner and frequency approved by. the department, c All documentation of enforcement of this subchapter including inspection reports consumer.
complaints illness investigations plans of correction and enforcement actions is retained for. five years and copies of the documentation are submitted or otherwise made available to the. department upon request, 4 A failure by the local board of health to meet all of its responsibilities under 3 a b and c may. result in the withholding of funds from the local board reimbursement fund in an amount to be. determined by the department, History 50 50 103 MCA IMP 50 50 104 50 50 208 50 50 214 50 50 215 50 50 301 50 50 305. MCA NEW 1994 MAR p 2941 Eff 11 11 94 TRANS AMD 2000 MAR p 3201 Eff 11 23 00 AMD. 2014 MAR p 2957 Eff 1 1 15,37 110 251 SEPARABILITY. 1 If any provision of this subchapter is held invalid all other valid provisions remain in effect. History Sec 50 50 103 MCA IMP Sec 50 50 103 MCA NEW 1979 MAR p 677 Eff. 7 13 79 TRANS AMD 2000 MAR p 3201 Eff 11 23 00,37 110 260 INCORPORATION BY REFERENCE. 1 The Department of Public Health and Human Services department except as otherwise provided in. this chapter adopts and incorporates by reference the following publication Food Code 2013. Recommendations of the United States Public Health Service Food and Drug Administration published. by National Technical Information Service Publication PB2013 110462 ISBN 978 1 935239 02 4. November 3 2013 This publication may be reviewed online. at http www fda gov Food GuidanceRegulation RetailFoodProtection FoodCode ucm374275 htm or. by contacting DPHHS FCSS 1400 Broadway Street Helena MT 59620 This publication is being adopted. with modifications and additions as described in ARM37 110 260 through 37 110 272. a Chapter 1 Purpose and Definitions Additions and modifications have been made to this. chapter as described in ARM 37 110 261, b Chapter 2 Management and Personnel Additions have been made to this chapter as.
described in ARM 37 110 262, c Chapter 3 Food Modifications have been made to this chapter as described in. ARM 37 110 265, d Chapter 4 Chapter 4 Equipment Utensils and Linens An addition has been made to this. chapter as described in ARM 37 110 266, e Chapter 5 Water Plumbing and Waste Additions have been made to this chapter as. described in ARM 37 110 267, f Chapter 6 Physical Facilities An addition has been made to this chapter as described in. ARM 37 110 268, g Chapter 7 Poisonous or Toxic Materials This chapter has been adopted with no.
modifications, h Chapter 8 Compliance and Enforcement Additions and modifications have been made to. this chapter as described in ARM 37 110 272, i Annexes 1 through 7 of the Food Code 2013 Recommendations of the United States Public. Health Service Food and Drug Administration are excluded These sections have not been. adopted but may be used as reference information for public health purposes. 2 The department except as otherwise provided in this chapter adopts and incorporates by reference. the following publication Food and Consumer Safety FCS Circular 1 2012 for nonpublic water. systems serving food establishments including temporary food establishments A copy of FCS Circular 1. 2012 may be obtained from the Department of Public Health and Human Services Food Consumer. Safety Section P O Box 202951 Helena MT 59620 2951 The FCS Circular 1 2012 is also available on. the department s web site at www fcss mt gov, History 50 50 103 MCA IMP 50 50 102 50 50 103 50 50 105 50 50 107 50 50 201 50 50 301 50. 50 302 50 50 304 MCA NEW 2014 MAR p 2957 Eff 1 1 15. 37 110 261 CHAPTER 1 PURPOSE AND DEFINITIONS, The terms defined in this section are modifications or additions to the definitions described in this. chapter of the 2013 Food Code, 1 Adulterated means the same as determined in 50 31 202 MCA instead of the Adulterated.
definition in section 1 201 10 of the November 3 2013 model document of food regulations. promulgated by the United States Food and Drug Administration Food Code. 2 Bakery means processing or packaging of baked goods described in 50 50 102 1 MCA for sales or. service directly to consumers, 3 Catering kitchen means the activity of providing food wholly or in part owned by the caterer for a. specific event at a location other than the food establishment as defined in 50 50 102 4 a MCA on a. contractual prearranged basis to a specific subset of the public such as invited guests to a wedding or. similar celebration or to participants in an organized group or activity A catering kitchen is not the. same activity as a contract cook, 4 Certified Food Protection Manager CFPM means an individual who operates a food establishment. or manages a food establishment who has successfully completed a test through an accredited program. required under section 2 102 12 A of the Food Code. 5 Department means the Montana Department of Public Health and Human Services. 6 Food Code means the November 3 2013 model document of food regulations promulgated by the. United States Food and Drug Administration,7 Food establishment means the following. a includes in section 1 201 10 B of the Food Code any and all licensable establishments stated. in Title 50 chapter 50 MCA, b does not include in section 1 201 10 B of the Food Code any and all food provider. exclusions stated in Title 50 chapter 50 MCA, c in section 1 201 10 B of the Food Code the term small family day care provider actually.
means a day care provider not required to be licensed by the department as a day care center. under 52 2 721 1 a MCA and, d in section 1 201 10 B of the Food Code a bed and breakfast operation actually means a. bed and breakfast establishment that meets the definition in 50 51 102 1 MCA Bed and. breakfast establishments must meet food safety rules required in. ARM 37 111 312 through 37 111 334, 8 Food manufacturing means the same as 50 50 102 19 MCA but for the purposes of license. subtypes should be on site food processing for sales or service to the public which includes drinking. water vending machines and beverage ice production packaging or both. 9 Food service means the same as 50 50 102 7 MCA but for the purposes of license subtypes. should only be the sales or service of food to the public that is not processed on site. 10 Legal licensee means the same as permit holder,11 License means the same as permit. 12 License subtype means one or more of the following food establishments bakery catering. kitchen food service food manufacturing meat shop mobile food establishment perishable food. dealer produce school tavern or water hauler, 13 License type means a food establishment at a fixed nonmobile or permanent location mobile. food establishment or temporary food establishment. 14 Meat market means the same as 50 50 102 10 MCA but is the processing or packaging of meat. or poultry for sales or service to the public,15 Mobile food establishment means.
a A food establishment where food is served or sold from a motor vehicle nonmotorized cart. movable vehicle such as a push cart trailer or boat that periodically or continuously changes. location and requires a servicing area to accommodate the unit for cleaning inspection and. maintenance as specified in sections 5 402 14 6 101 11 and 6 202 18. b Mobile food establishment does not include a motor vehicle used solely to transport or. deliver food by a motorized carrier regulated by the state or federal government or a concession. stand designed to operate as a temporary food establishment. 16 Perishable food means foods that require time temperature control for safety formerly known as. potentially hazardous foods, 17 Perishable food dealer means the same as 50 50 102 12 MCA which is an operation that is in. the business of purchasing and selling foods that require time temperature control for safety formerly. known as potentially hazardous foods, 18 Potentially hazardous food means time temperature control for safety food. 19 Processing means the same as preparation of food through one or more methods including. assembling baking bottling brewing canning coating cooking cutting dicing distilling drying. extracting fermenting freezing grinding heating infusing mixing packaging reheating repackaging. pickling slicing smoking stuffing or other food treatment or food preservation method. 20 Produce means fruits vegetables or grains sold directly to consumers in their natural or. unprocessed states, 21 Regulatory authority means the department the local board of health the local health officer or. the local sanitarian instead of the regulatory authority definition in section 1 201 10 of the Food. 22 School means a building or structure or portion thereof occupied or used at least 180 days per. year for the teaching of individuals the curriculum of which satisfies the basic instructional program. approved by the board of public education for pupils in any combination of kindergarten through grade. 12 This term does not include home schools For purposes of this licensing subtype in general a school. is also a learning institution that participates in the federal National School Lunch Program under 7 CFR. 210 of the Code of Federal Regulations, 23 Tavern bar brewery winery distillery or saloon means the sale or service of alcoholic beverages. with or without beverage ice This licensing subtype does not include on site food manufacturing or. food service as defined in this section of the rules. 24 Temporary food establishment means a food establishment that operates at a fixed location for a. period of no more than 21 days in a licensing year in conjunction with a single event or celebration. instead of the Temporary food establishment definition in section 1 201 10 of the Food Code. 25 Water hauler means the same as 50 50 102 20 MCA. History 50 50 103 MCA IMP 20 5 102 50 50 102 50 50 103 50 50 104 50 50 201 MCA NEW. 2014 MAR p 2957 Eff 1 1 15,37 110 262 CHAPTER 2 MANAGEMENT AND PERSONNEL.
1 The following additions have been made to section 2 102 12 of Chapter 2. a A one year phase in period will apply to affected establishments to have a Certified Food. Protection Manager and the one year period will begin from the date new rules are adopted. b After the one year phase in period new legal licensees required to have a Certified Food. Protection Manager must have a Certified Food Protection Manager within 90 days of issuance. of a new license, c After the one year phase in period existing legal licensees required to have a Certified Food. Protection Manager must have a Certified Food Protection Manager within 45 days of losing. their Certified Food Protection Manager, 2 The following additions have been made to 2 102 12 B of Chapter 2. a Temporary food establishments engaged in the following activities are exempt from having a. certified food protection manager, i serving non TCS time temperature controlled for safety foods. ii serving nonalcoholic or alcoholic beverages with or without beverage ice. iii serving commercially pre cooked pre packaged ready to eat TCS foods such as hot. dogs sausages FDA and United States Department of Agriculture USDA registered. canned food products frozen pizzas, 3 The regulatory authority may require or exempt additional food safety training for temporary food. establishments under the authority granted in 8 102 10 of Chapter 8. 4 The following additions have been made to subpart 2 201 Responsibilities of Permit Holder Person. in Charge Food Employees and Conditional Employees of Chapter 2. 5 Specific communicable disease control measures outlined in the Food Code should be followed. unless more stringent rules are provided in ARM 37 114 501. History 50 50 103 MCA IMP 50 50 103 MCA NEW 2014 MAR p 2957 Eff 1 1 15. 37 110 265 CHAPTER 3 FOOD, 1 This chapter has been adopted with the following modifications.
a section 3 201 17 A2 will not be adopted,b section 3 201 17 A3 will not be adopted. c section 3 201 17 A4 will not be adopted and, d section 3 201 17 A1cii will be replaced with the requirements of 81 9 230 87 4 702. and 87 6 106 1 MCA, History 50 50 103 MCA IMP 50 50 102 50 50 103 50 50 301 50 50 302 50 50 303 50 50 304. MCA NEW 2014 MAR p 2957 Eff 1 1 15, 37 110 266 CHAPTER 4 EQUIPMENT UTENSILS AND LINENS. 1 This chapter has been adopted with the addition of the following paragraph 4 301 12 F A food. preparation sink must be provided if food is placed into a sink or sink compartment for the purposes of. thawing or cleaning A food preparation sink must meet the requirements specified in Sections 4 205 10. 5 202 13 and 5 402 11 of the Food Code, History 50 50 103 MCA IMP 50 50 102 50 50 103 50 50 301 50 50 302 MCA NEW 2014 MAR p.
2957 Eff 1 1 15,37 110 267 CHAPTER 5 WATER PLUMBING AND WASTE. 1 Additions have been made to section 5 101 11 B of this chapter for nonpublic water systems. 2 A nonpublic water supply system must meet the requirements of Food and Consumer Safety FCS. Circular 1 2012 when, a the water supply is constructed after the effective date of this rule. b significant modifications are made to the water system or. c the local regulatory authority determines compliance with FCS Circular 1 2012 is necessary to. meet the requirements of this subchapter, 3 An establishment using a nonpublic water supply system must have drinking water samples analyzed. for coliform bacteria as follows, a Sampling for coliform bacteria must be done before initial licensing and at least in two. separate months of each calendar year that the establishment operates. b The sampling schedule must include collection when the water source is most likely to be. contaminated such as during April through June September through October during high. ground water season or as directed by the local regulatory authority. c The local regulatory authority may require the establishment to sample i monthly. ii in months the establishment operates or, iii if an inspection sampling results or an event indicates the water source is at high.
risk of contamination, d The local regulatory authority may return the establishment to the sampling frequency. stated in 3 a if an examination of the drinking water system by the local regulatory authority. indicates the system is no longer at high risk of contamination. 4 An establishment using a nonpublic water supply system must have a water sample analyzed for. total nitrates before initial licensing and at least every three years the establishment is operating. 5 After shock disinfection of the system a sample for coliform bacteria must be collected for analysis. three to five days after the disinfectant is no longer detected in the system. 6 Water samples must be analyzed by a laboratory licensed and certified for drinking water analysis by. the state of Montana, 7 The establishment must report water sampling test results to the local regulatory authority in a. format acceptable to the local regulatory authority within five days of receiving the results except as. required in 9 c and 11 d, 8 The establishment must keep test results readily available for inspection purposes on the premises of. the licensed establishment for at least five years. 9 If coliform bacteria are detected in a nonpublic water system routine sample the establishment. a collect at least four additional or repeat samples within 24 hours of notification of the. contamination at the following system locations, i site of the original contaminated routine sample. ii upstream from the contaminated routine sample, iii downstream from the contaminated routine sample and.
iv at the source of the drinking water supply system before the distribution plumbing. v as directed by the local regulatory authority, b collect at least five samples during the month following a detection of coliform bacteria in. any routine sample and, c notify the local regulatory authority of the test results within 48 hours of receiving them. 10 If coliform bacteria are detected in a repeat sample the establishment must. a take appropriate corrective action to eliminate the condition causing the positive test results. b post an advisory sign or placard regarding the test results in a conspicuous place for public. viewing at each point of entry or as directed by the local regulatory authority. 11 If fecal coliform bacteria Escherichia coli or both are detected in a routine sample or repeat. sample the establishment must,a immediately stop using the water source. b provide a temporary source of safe water in accordance with 17. c implement appropriate corrective actions and, d notify the local regulatory authority of the test results within 24 hours of receiving them. 12 If an establishment with a public or nonpublic water supply fails to take the required samples. following the detection of coliform bacteria or the laboratory fails to test for fecal coliform bacteria or. Escherichia coli in coliform positive samples the establishment must follow corrective actions as. specified in 13, 13 For nonpublic water systems appropriate corrective actions must be implemented in a timely.
manner to eliminate the condition or conditions that resulted in the positive test result s which may. include shock disinfection of the entire water system and replacement or repair of the water system by. a date set by the local regulatory authority when, a a water sample exceeds a maximum contaminant level as specified in ARM Title 17 chapter. 38 subchapter 2, b the water system does not have the capacity to provide the quantity needed for drinking. food processing personal hygiene or cleaning, c after examination of the water system the local regulatory authority provides a written. report to the operator or person in charge that the water system is at high risk of. contamination, d a pathogenic microorganism is detected in a sample or. e a confirmed disease outbreak is linked with the water system. 14 When a water system is replaced or repaired the water system must be shock disinfected before. the system is placed into service, 15 The local regulatory authority will issue a restricted use order to an establishment using a nonpublic.
water supply when, a fecal coliform or Escherichia coli is detected in a nonpublic water system sample. b total nitrate level is greater than 10 milligrams per liter in a nonpublic water system sample. c maximum contaminant levels exceed parameters specified in ARM Title 17 chapter 38. subchapter 2,d a pathogenic microorganism is detected or. e a confirmed disease outbreak is linked with the water system. 16 An establishment with a public or nonpublic water supply subject to a restricted use order must. provide and use a temporary source of potable water as described in 17 for consumers and staff for. drinking food processing personal hygiene and cleaning or immediately discontinue operations. 17 With approval from the local regulatory authority an establishment with a public or nonpublic. water supply may provide potable water on a temporary basis using one or more of the following. a bottled or packaged potable water from a department licensed wholesale or retail food. establishment if the water is dispensed directly from the original container. b water from a Department of Environmental Quality DEQ approved public water supply that. meets the requirements of ARM Title 17 chapter 38 subchapters 1 2 3 and 5 stored in a. clean sanitized and covered potable water container or holding tank. c water delivered by a department licensed potable water hauler. d if the water is contaminated with fecal coliform bacteria or Escherichia coli water that has. been boiled for at least one minute and stored and served from a clean sanitized and covered.


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