AAM-41-16-00004-E Sanitation in Retail Food Stores and Method of Sale, at Retail, of Certain Foods

10/12/16 N.Y. St. Reg. AAM-41-16-00004-E

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 41

October 12, 2016

RULE MAKING ACTIVITIES

DEPARTMENT OF AGRICULTURE AND MARKETS

EMERGENCY RULE MAKING

 

I.D No. AAM-41-16-00004-E

Filing No. 897

Filing Date. Sept. 23, 2016

Effective Date. Sept. 23, 2016

Sanitation in Retail Food Stores and Method of Sale, at Retail, of Certain Foods

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of Parts 271 and 272 to Title 1 NYCRR.

Statutory authority:

Agriculture and Markets Law, sections 16, 18, 96-s and 214-b

Finding of necessity for emergency rule:

Preservation of public health, public safety and general welfare.

Specific reasons underlying the finding of necessity:

This regulation re-adopts Parts 271 and 272 of 1 NYCRR. This is necessary due to a technical error affecting Parts 271 and 272 when there was no rule making proceeding involving these Parts. In re-adopting these rules, the Department is not amending them, but is curing a lapse in coverage due to this technical error.

Based on the facts and circumstances set forth above, the Department has determined that the immediate adoption of these rules is necessary for the preservation of the general welfare and that compliance with 202(1) of the State Administrative Procedure Act would be contrary to the public interest.

Subject:

Sanitation in retail food stores and method of sale, at retail, of certain foods.

Purpose:

To cause the republication of regulations governing retail food stores and the method of sale of certain foods at retail.

Substance of emergency rule:

Subpart 271-1. General Provisions.

This Subpart sets forth the purpose of Part 271 as protecting the public health (sec. 271-1.1).

This Subpart also contains a definition section (sec. 271-1.2).

Subpart 271-2. Food Supplies.

This Subpart generally sets forth the existing requirements governing the storage, handling, preparation, offering for sale and sale of food by retail food stores.

Subpart 271-3. Personnel.

This Subpart sets forth the existing requirements for management and personnel in food stores.

Subpart 271-4. Equipment and Utensils.

This Subpart sets forth the existing requirements for equipment and utensils, including design and condition.

Subpart 271-5. Cleaning, Sanitization and Storage of Equipment and Utensils.

This Subpart sets forth the existing requirements for maintenance of equipment and utensils, including cleaning, sanitizing and storage of same.

Subpart 271-6. Sanitary Facilities and Controls.

This Subpart sets forth the existing requirements for water, steam, sewage, plumbing, toilet rooms, handwash facilities, garbage and vermin control.

Subpart 271-7. Construction and Maintenance of Physical Facilities.

This Subpart sets forth the existing requirements for the physical structure and layout of the store, including the exterior of the establishment.

Subpart 271-8. Food Display and Service at Salad Bars.

This Subpart generally sets forth the existing requirements for maintaining food free of contamination and ensuring that food displays and salad bars are kept under sanitary conditions.

Subpart 271-9. Compliance and Enforcement.

This Subpart generally sets forth the existing required contents of a Hazard Analysis and Critical Control Point (HACCP) Plan as well as circumstances under which a HACCP Plan is required for processing certain high risk foods.

Subpart 272-1. Meat for Sale at Retail.

This Subpart sets forth existing requirements and conditions regarding labeling and advertising; exceptions to labeling and advertising requirements in certain cases; the use of the name of the meat on labeling; use of USDA grading terms; labeling of certain meat food products; and labeling of fabricated steak and frozen meat. There are also charts depicting beef, veal, lamb and pork carcasses. Finally, there is a prohibition against advertising meat for sale at retail unless there is a sufficient quantity of product available at each outlet listed in the advertisement to meet demand.

Subpart 272-2. Advertising and Marketing of Food for Sale at Retail.

This Subpart sets forth existing requirements concerning availability of advertised items; mispricing of advertised items; and general disclaimers.

Subpart 272-3. Sale of Small Quantities of Prepackaged Fresh Fruits and Vegetables.

This Subpart sets forth existing requirements which provide that small quantities of fresh fruits or vegetables shall be made available by opening a package of the commodity in stock, when the commodity in question is unavailable in unpackaged form. The Subpart also requires the posting of a sign which reads “Small Quantities of Prepackaged Fresh Fruits and Vegetables are Available upon Request.”

Subpart 272-4. Sale of Seafood, Fish, Meat and Poultry in Frozen State.

This Subpart sets forth existing requirements which prohibit the sale of seafood, food fish or shellfish, meat, meat by-product or meat food product, poultry or poultry product in a frozen state when it was previously offered for sale in an unfrozen state, unless the package or container with the product is labeled with the words “This product was previously offered for sale in an unfrozen state.” This Subpart has the same requirements regarding these products sold in bulk.

This notice is intended

to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires December 21, 2016.

Text of rule and any required statements and analyses may be obtained from:

Stephen D. Stich, NYS Department of Agriculture and Markets, 10B Airline Drive, Albany, NY 12235, [phone], email: [e-mail]

Regulatory Impact Statement

The proposed rule will have the effect of republishing Part 271, the retail food store sanitation regulations, and Part 272, the retail food sales regulations, in 1 NYCRR. As a result of a drafting error set forth in the express terms of a notice of adoption published in the New York State Register on June 22, 2016, all of Subchapter E of Chapter VI of 1 NYCRR was repealed (that Subchapter contained Part 270 [maple syrup regulations], Part 271, and Part 272); the Department intended, however, only to delete and move Part 270 from that Subchapter and place it in Subchapter D, not to repeal all of Subchapter E and Parts 271 and 272 therein.

This emergency rulemaking has been commenced to correct the error referred to above. The purported repeal of Subchapter E was, based upon the foregoing, without legal force and effect with respect to Parts 271 and 272 and this rulemaking ensures that the public will be on notice that Subchapter E, and Parts 271 and 272 therein, remain in full force and effect and were and are unaffected by the deletion of Part 270 from that Subchapter.

As such, this emergency rulemaking is a technical amendment and is therefore exempt from SAPA section 202-a.

Regulatory Flexibility Analysis

The proposed rule will have the effect of republishing Part 271, the retail food store sanitation regulations, and Part 272, the retail food sales regulations, in 1 NYCRR. As a result of a drafting error set forth in the express terms of a notice of adoption published in the New York State Register on June 22, 2016, all of Subchapter E of Chapter VI of 1 NYCRR was repealed (that Subchapter contained Part 270 [maple syrup regulations], Part 271, and Part 272); the Department intended, however, only to delete and move Part 270 from that Subchapter and place it in Subchapter D, not to repeal all of Subchapter E and Parts 271 and 272 therein.

This emergency rulemaking is technical in nature and has been commenced to correct the error referred to above. The purported repeal of Subchapter E was, based upon the foregoing, without legal force and effect with respect to Parts 271 and 272 and this technical rulemaking ensures that the public will be on notice that Subchapter E, and Parts 271 and 272 therein, remain in full force and effect and were and are unaffected by the deletion of Part 270 from that Subchapter.

As such, this rulemaking will have no impact on regulated parties, including small business and local governments.

Rural Area Flexibility Analysis

The proposed rule will have the effect of republishing Part 271, the retail food store sanitation regulations, and Part 272, the retail food sales regulations, in 1 NYCRR. As a result of a drafting error set forth in the express terms of a notice of adoption published in the New York State Register on June 22, 2016, all of Subchapter E of Chapter VI of 1 NYCRR was repealed (that Subchapter contained Part 270 [maple syrup regulations], Part 271, and Part 272); the Department intended, however, only to delete and move Part 270 from that Subchapter and place it in Subchapter D, not to repeal all of Subchapter E and Parts 271 and 272 therein.

This emergency rulemaking is technical in nature and has been commenced to correct the error referred to above. The purported repeal of Subchapter E was, based upon the foregoing, without legal force and effect with respect to Parts 271 and 272 and this technical rulemaking ensures that the public will be on notice that Subchapter E, and Parts 271 and 272 therein, remain in full force and effect and were and are unaffected by the deletion of Part 270 from that Subchapter.

As such, this emergency rulemaking will have no impact on regulated parties, including those in rural areas.

Job Impact Statement

The proposed rule will have the effect of republishing Part 271, the retail food store sanitation regulations, and Part 272, the retail food sales regulations, in 1 NYCRR. As a result of a drafting error set forth in the express terms of a notice of adoption published in the New York State Register on June 22, 2016, all of Subchapter E of Chapter VI of 1 NYCRR was repealed (that Subchapter contained Part 270 [maple syrup regulations], Part 271, and Part 272); the Department intended, however, only to delete and move Part 270 from that Subchapter and place it in Subchapter D, not to repeal all of Subchapter E and Parts 271 and 272 therein.

This emergency rulemaking is technical in nature and has been commenced to correct the error referred to above. The purported repeal of Subchapter E was, based upon the foregoing, without legal force and effect with respect to Parts 271 and 272 and this technical rulemaking ensures that the public will be on notice that Subchapter E, and Parts 271 and 272 therein, remain in full force and effect and were and are unaffected by the deletion of Part 270 from that Subchapter.

As such, this emergency rulemaking will have no adverse impact on jobs or employment opportunities in the State.