ARC 4731C

ARC 4731C

INSPECTIONS AND APPEALS DEPARTMENT[481]

Adopted and Filed

Rule making related to food and consumer safety and food establishment

and food processing plant inspections

The Inspections and Appeals Department hereby amends Chapter 30, "Food and Consumer Safety," and Chapter 31, "Food Establishment and Food Processing Plant Inspections," Iowa Administrative Code.

Legal Authority for Rule Making

This rule making is adopted under the authority provided in Iowa Code sections 10A.104 and 137F.2.

State or Federal Law Implemented

This rule making implements, in whole or in part, Iowa Code sections 10A.104 and 137F.2 and 2019 Iowa Acts, Senate File 265.

Purpose and Summary

The amendments correct the date in the reference to the Food and Drug Administration Food Code with Supplement in rule 481—30.2(10A,137C,137D,137F). The 2013 Food Code was adopted by the Department effective January 1, 2018 (rule 481—31.1(137F), ARC 3188C, IAB 7/5/17).

The amendments also reinstate several provisions related to double licenses in rule 481—30.7(137F) that were removed in 2018, which resulted in unintended consequences to licensees.

The amendments add a confidentiality provision related to complainants who file a complaint with the Department's Food and Consumer Safety Bureau.

The amendments implement changes made to Iowa Code chapter 137F resulting from the enactment of 2019 Iowa Acts, Senate File 265. The legislation requires the Department to adopt rules for the sale at a farmers market of culinary mushrooms commonly referred to as a variety of wild oyster.

Finally, the amendments adopt a definition of "wild-harvested mushroom" and amend the requirements related to the wild-harvested mushroom identification course to obtain certification as a wild-harvested mushroom identification expert.

Public Comment and Changes to Rule Making

Notice of Intended Action for this rule making was published in the Iowa Administrative Bulletin on August 14, 2019, as ARC 4589C. Two sets of questions were received by the Department. One individual requested clarification regarding whether the double license provisions affected the licensing required for the individual's operations. Another individual requested information regarding the purpose and effect of the confidentiality provision. No other comments were received. No changes from the Notice have been made.

Adoption of Rule Making

This rule making was adopted by the Department on October 4, 2019.

Fiscal Impact

This rule making has no fiscal impact to the State of Iowa.

Jobs Impact

After analysis and review of this rule making, no impact on jobs has been found.

Waivers

Any person who believes that the application of the discretionary provisions of this rule making would result in hardship or injustice to that person may petition the Department for a waiver of the discretionary provisions, if any, pursuant to 481—Chapter 6.

Review by Administrative Rules Review Committee

The Administrative Rules Review Committee, a bipartisan legislative committee which oversees rule making by executive branch agencies, may, on its own motion or on written request by any individual or group, review this rule making at its regular monthly meeting or at a special meeting. The Committee's meetings are open to the public, and interested persons may be heard as provided in Iowa Code section 17A.8(6).

Effective Date

This rule making will become effective on November 27, 2019.

The following rule-making actions are adopted:

Item 1. Amend rule 481—30.2(10A,137C,137D,137F), introductory paragraph, as follows:

481—30.2(10A,137C,137D,137F) Definitions. If both the 2009 2013 Food and Drug Administration Food Code with Supplement and rule 481—30.2(10A,137C,137D,137F) define a term, the definition in rule 481—30.2(10A,137C,137D,137F) shall apply.

Item 2. Adopt the following new definition of "Wild-harvested mushroom" in rule 481—30.2(10A,137C,137D,137F):

"Wild-harvested mushroom" means a fresh mushroom that has been picked in the wild and has not been processed (e.g., dried or frozen). "Wild-harvested mushroom" does not include cultivated mushrooms or mushrooms that have been packaged in an approved food processing plant.

Item 3. Amend rule 481—30.7(137F) as follows:

481—30.7(137F) Double licenses.

30.7(1) Any establishment that holds a food service establishment license and has gross sales over $20,000 annually in packaged food items intended for consumption off the premises shall also be required to obtain a retail food establishment license. The license holder shall keep a record of these food sales and make it available to the department upon request.

30.7(2) Licensed retail food establishments serving only coffee, soft drinks, popcorn, prepackaged sandwiches or other food items manufactured and packaged by a licensed establishment need only obtain a retail food establishment license.

30.7(3) A food establishment that holds both a food service establishment license and a retail food establishment license shall pay a license fee based on the annual gross sales for the dominant form of business plus $150.

Example: A food establishment holds a food service establishment license and a retail food establishment license. It has annual gross sales of more than $750,000 for its retail food establishment and $120,000 for its food service establishment. The food establishment pays a license fee of $400 for its retail food establishment license (paragraph 30.4(1)"c") and $150 for its food service establishment license (rule 481—30.7(137F)).

30.7(4) The dominant form of business shall determine the type of license for establishments which engage in operations covered under both the definition of a food establishment and of a food processing plant. The dominant form of business shall be deemed to be the business with higher annual gross sales. Food establishments that also process low-acid food in hermetically sealed containers or process acidified foods are required to have a food processing plant license in addition to the food establishment license. Regardless of the type of license, food processing plants shall be inspected pursuant to food processing inspection standards and food establishments shall be inspected pursuant to the Food Code.

This rule is intended to implement Iowa Code sections 10A.104 and 137F.6.

Item 4. Amend subrule 30.9(2) as follows:

30.9(2) Confidential records. The following are examples of confidential records:

a. Trade secrets and proprietary information including items such as formulations, processes, policies and procedures, and customer lists;

b. Health information related to foodborne illness complaints and outbreaks; and

c. The name or any identifying information of a person who files a complaint with the department; and

c. d.Other state or federal agencies' records.

For records of other federal or state agencies, the department shall refer the requester of such information to the appropriate agency.

Item 5. Amend subrule 31.1(4) as follows:

31.1(4) Morel mushrooms and oyster mushrooms (Pleurotus ostreatus, Pleurotus populinus, or Pleurotus pulmonarious). Section 3-201.16, paragraph (A), is amended by adding the following:

"A food establishment or farmers market time/temperature control for safety food licensee may serve or sell morel mushrooms or oyster mushrooms (a variety classified as Pleurotus ostreatus, Pleurotus populinus, or Pleurotus pulmonarious) if procured from an individual who has completed a morel wild-harvested mushroom identification expert course. Every morel mushroom or oyster mushroom shall be identified and found to be safe by a certified morel wild-harvested mushroom identification expert whose competence has been verified and approved by the department through the expert's successful completion of a morel wild-harvested mushroom identification expert course provided by either an accredited college or university or a mycological society. The course may address identification of morel mushrooms, oyster mushrooms, or both. The certified morel wild-harvested mushroom identification expert shall personally inspect each mushroom and determine it to be a morel mushroom or an oyster mushroom. A morel wild-harvested mushroom identification expert course shall be at least three two hours in length and include a visual identification exercise for each wild-harvested mushroom species that the individual will be certified to identify at the completion of the course. The individual's certification of successful completion of the course must clearly indicate whether the certified wild-harvested mushroom identification expert is certified to identify morel mushrooms, oyster mushrooms, or both.

To"To maintain status as a morel wild-harvested mushroom identification expert, the individual shall have successfully completed a morel wild-harvested mushroom identification expert course described above within the past three years. A person who wishes to offer a morel wild-harvested mushroom identification expert course must submit the course curriculum to the department for review and approval. Food establishments or farmers market time/temperature control for safety food licensees offering morel mushrooms or oyster mushrooms shall maintain the following information for a period of 90 days from the date the morel mushrooms or oyster mushrooms were obtained:

"1. The name, address, and telephone number of the morel wild-harvested mushroom identification expert;

"2. A copy of the morel wild-harvested mushroom identification expert's certificate of successful completion of the course, containing the date of completion; and

"3. The quantity of morel mushrooms or oyster mushrooms purchased and the date(s) purchased.

"Furthermore, a consumer advisory shall inform consumers by brochures, deli case or menu advisories, label statements, table tents, placards, or other effective written means that wild wild-harvested mushrooms should be thoroughly cooked and may cause allergic reactions or other effects."

[Filed 10/4/19, effective 11/27/19]

[Published 10/23/19]

Editor's Note: For replacement pages for IAC, see IAC Supplement 10/23/19.