wv-wv-18525: 64-17 — FOOD ESTABLISHMENTS

6/25/2026 11:34:32 AM Office of West Virginia Secretary Of State NOTICE OF PUBLIC COMMENT PERIOD AGENCY: Health TITLE-SERIES: 64-17 RULE TYPE: Legislative Amendment to Existing Rule: Yes Repeal of existing rule:No RULE NAME: FOOD ESTABLISHMENTS CITE STATUTORY AUTHORITY: W. Va. Code §16-1-4 and §16-6-2 COMMENTS LIMITED TO: Written DATE OF PUBLIC HEARING: LOCATION OF PUBLIC HEARING: DATE WRITTEN COMMENT PERIOD ENDS: 07/25/2026 5:00 PM COMMENTS MAY BE MAILED OR EMAILED TO: NAME: Virginia M Payne 321 Capitol Street ADDRESS: Charleston, WV 25301 EMAIL: virginia.m.payne@wv.gov PLEASE INDICATE IF THIS FILING INCLUDES: No RELEVANT FEDERAL STATUTES OR REGULATIONS: (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) INCORPORATED BY REFERENCE: No (IF YES, PLEASE UPLOAD IN THE SUPPORTING DOCUMENTS FIELD) PROVIDE A BRIEF SUMMARY OF THE CONTENT OF THE RULE: This legislative rule establishes the minimum requirements for the design, construction, management, and operation of food establishments. SUMMARIZE IN A CLEAR AND CONCISE MANNER CONTENTS OF CHANGES IN THE RULE AND A STATEMENT OF CIRCUMSTANCES REQUIRING THE RULE: Amendments to the rule include technical cleanup and other amendments aligning the rule with the 2022 FDA Model Food Code. SUMMARIZE IN A CLEAR AND CONCISE MANNER THE OVERALL ECONOMIC IMPACT OF THE PROPOSED RULE: A. ECONOMIC IMPACT ON REVENUES OF STATE GOVERNMENT: None B. ECONOMIC IMPACT ON SPECIAL REVENUE ACCOUNTS: None C. ECONOMIC IMPACT OF THE RULE ON THE STATE OR ITS RESIDENTS: None D. FISCAL NOTE DETAIL: Effect of Proposal Fiscal Year 2026 2027 Fiscal Year (Upon Increase/Decrease Increase/Decrease Full (use "-") (use "-") Implementation) 1. Estimated Total Cost 0 0 0 Personal Services 0 0 0 Current Expenses 0 0 0 Repairs and Alterations 0 0 0 Assets 0 0 0 Other 0 0 0 2. Estimated Total 0 0 0 Revenues E EXPLANATION OF ABOVE ESTIMATES (INCLUDING LONG-RANGE EFFECT): N/A BY CHOOSING 'YES', I ATTEST THAT THE PREVIOUS STATEMENT IS TRUE AND CORRECT. Yes Virginia M Payne-By my signature, I certify that I am the person authorized to file legislative rules, in accordance with West Virginia Code §29A-3-11 and §39A-3-2. 64CSR17 TITLE 64 LEGISLATIVE RULE DEPARTMENT OF HEALTH AND HUMAN RESOURCES BUREAU FOR PUBLIC HEALTH SERIES 17 FOOD ESTABLISHMENTS §64‐17‐1. General. 1.1. Scope. ‐‐ This legislative rule establishes the minimu requirements for the design, construction, management, and operation of food establishments. 1.2. Authority. ‐‐ W. Va. Code §16‐1‐4 and §16‐6‐2. 1.3. Filing Date. ‐‐ March 30, 2023. 1.4. Effective Date. ‐‐ April 1, 2023. 1.5. Sunset Provision. ‐‐ This rule shall terminate and have no further force or effect on August 1, 2028 2032. 1.6. Applicability. ‐‐ This rule applies to the owners and operators of food establishments. 1.7. Enforcement. ‐‐ This rule is enforced by the Commissioner of the Bureau for Public Health. §64‐17‐2. Definitions. 2.1. Commissioner. ‐‐ Commissioner of the Bureau for Public Health or his or her lawful designee. 2.2. Family Child Care Facility. ‐‐ Any facility that is used to provide nonresidential child care services for compensation for seven to 12 children, including children who are living in the household, who are under six years of age. No more than four of the total number of children may be under 24 months of age. A facility may be in a provider’s residence or a separate building. 2.3. Family Child Care Home. ‐‐ A facility that is used to provide nonresidential child care services for compensation in a provider’s residence. The provider may care for four to six children at one time including children who are living in the household, who are under six years of age. No more than two of the total number of children may be under 24 months of age. 2.4 Retail Food Store ‐ Any place, structure, premise, vehice l , or any part thereof in which food is sold retail, offered for retail sale, or served not to be consumed on the premises. The term "retail food store" does not include establishments that handle only prepacked, non‐potentially hazardous foods; roadside markets that offer only fresh fruits or fresh vegetables; or the delicatessen operation of a retail food store. §64‐17‐3. Incorporation by Reference of Federal Model Food Code. 3.1. The Federal Food Code, also known as the 2013 2022 Recommendations of the United States Public Health Service, Food and Drug Administration, (hereinafter referred to as the “Food Code”) 1 64CSR17 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. 3.1.1. 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. 3.1.2. 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. 3.1.3. 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, (2) food facilities that prepare and serve only foods that do not require time/temperature control for safety (TCS), (3) food facilities that prepare and serve TCS foods; provided, that preparation of TCS foods is limited to reheating of commercially processed foods for immediate service in response to an individual consumer order and there is no hot holding or cooling of hot TCS foods, and (2) (4) temporary food establishments, and (5) public schools, provided that the nutritionist for the school district possesses a current Certified Food Protection Manager (CFPM) certification and is able perform the duties of a CFPM for each school in his or her district.”; 3.1.d. 3.1.4. 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.” Chapter 3, paragraph 3‐201.11(B) may not be used for the purposes of this rule. The following applies: “Food prepared in a private home or in a facility that is otherwise exempted from permitting and inspection requirements may not be used in the preparation of food or otherwise offered for human consumption in a food establishment.”; 3.1.e. 3.1.5. Chapter 3, paragraph 3‐501.16(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. 3.1.6. In Chapter 3, paragraph 3‐603.11(A), the word “milk” shall be deleted; 3.1.g. 3.1.7. In Chapter 3, subparagraph 3‐603.11(C)(3) the following applies: “Consuming raw or undercooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness, especially for children, elderly, immunocompromised individuals, and persons with certain medical conditions.”; 3.1.h. 3.1.8. Chapter 6, section 6‐501.115 is not applicable if the following conditions are met: 3.1.h.1. 3.1.8.a. The dog is prohibited from entering any areas where food is being prepared; 3.1.h.2. 3.1.8.b. The dog owner will be asked to leave, if a dog creates a nuisance; 3.1.h.3. 3.1.8.c. The establishment is licensed as a private club, restaurant, coffee shop, brew pub, or micro distillery; 2 64CSR17 3.1.h.4. 3.1.8.d. The establishment has liability insurance for dog‐related incidents; 3.1.h.5. 3.1.8.e. Dog accidents are cleaned and sanitized. Dog waste stations are available. A written procedure shall be established and posted concerning dog accident cleanup; and 3.1.h.6. 3.1.8.f. Signage is present indicating that the establishment is dog friendly. 3.1.i. 3.1.9. Chapter 8, section 8‐102.10 and section 8‐304.10 shall not apply; 3.1.j. 3.1.10. 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. 3.1.11. 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. 3.1.12. Chapter 8, part 8‐6, and subparts Subparts 8‐905 through 8‐913 of Annex 1 shall not apply; and 3.1.m. 3.1.13. 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. 3.1.13.a. The food establishment has three or more immediately uncorrectable priority items in violation at the time of inspection; or 3.1.m.2. 3.1.13.b. 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. 3.1.13.c. Enforcement shall be in accordance with W. Va. Code §16‐1‐1 et seq. and §16‐6‐1, et seq. 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. §64‐17‐4. West Virginia Definition of Food Establishment. 4.1. Food establishment ‐‐ An operation that stores, prepae rs, packages, serves, vends, or otherwise provides food for human consumption: 4.1.a. 4.1.1. Such as a restaurant; satellite or catered feeding location; catering operation if the 3 64CSR17 operation provides food directly to a consumer or to a conveyance used to transport people; market; vending location; conveyance used to transport people; institution; or food bank; and 4.1.b. 4.1.2. That relinquishes possession of food to a consumer directly, or indirectly through a delivery service such as home delivery of grocery orders or restaurant takeout orders, or delivery service that is provided by common carriers; 4.2 Food establishment includes: 4.2.a. 4.2.1. An element of an operation such as a transpa otriton vehicle or a central preparation facility that supplies a vending location or satellite feeding location unless the vending or feeding location obtains a permit to operate in accordance with part 8‐3 of the Food Code; 4.2.b. 4.2.2. An operation that is conducted in a mobile, stationary, temporary, or permanent facility or location, where consumption is on or off the premises, and regardless of whether there is a charge for the food; and 4.2.c. 4.2.3. An operation that offers cooking demonstrations or instruction, with or without student participation, and the food is then consumed on or off premises. 4.3. Food establishment does not include: 4.3.a. 4.3.1. An establishment that offers only prepackaged foods that are not time/temperature control for safety TCS food and does not provide reusable tableware to the consumer; 4.3.b. 4.3.2. A produce stand that only offers whole, uncut fresh fruits and vegetables; 4.3.c. 4.3.3. A food processing plant including those located on the premises of a food establishment; 4.3.d. 4.3.4. A kitchen in a private home if: 4.3.d.1. 4.3.4.a. The food is prepared in a kitchen in a private home for sale or service at a function such as a religious or charitable organization’s bake sale that is not time/temperature control for safety food (formerly “potentially hazardous food”(PHF)); and for a temporary food sale, not exceeding two weeks in length, by a religious, educational, charitable or nonprofit organization and the consumer is informed by a clearly visible placard at the sales or service location that the food is prepared in a kitchen that is not subject to regulation and inspection by the commissioner; or 4.3.d.2. 4.3.4.b. If the consumer is informed by a clearly visible placard at the sales or service location that the food is prepared in a kitchen that is not subject to regulation and inspection by the commissioner; The food is a cottage food as specified in W. Va. Code §19‐40‐1; 4.3.e. An area where food that is prepared as specified in subdivision 4.3.d. of this subsection is sold or offered for human consumption; 4.3.f. 4.3.5. A kitchen in a family child care home; or 4.3.g. 4.3.6. A private home that receives catered or home‐delivered food. 4 64CSR17 §64‐17‐5. Modified Requirements for Specific Types of Food Establishments. 5.1. A domestic‐type kitchen with residential‐style equipment is acceptable in the following types of food establishments: 5.1.a. 5.1.1. A family child care facility; 5.1.b. 5.1.2. A boarding house or a residential care facility, such as a personal care home, a residential board and care facility, a group home, a halfway house, or a work release center, with a maximum capacity of 12 occupants; and 5.1.c. 5.1.3. A bed and breakfast inn that provides sleeping accommodations of six or fewer rooms, or that provides sleeping accommodations of more than six rooms if the entire inn or those rooms numbering above six are used on an aggregate of two weeks or less per year. 5.2. The food establishments identified in subdivisions 5.1.a. 5.1.1., 5.1.b. 5.1.2., and 5.1.c. 5.1.3. of this section shall provide a sink in the kitchen with at least two compartments. Any mechanical warewashing machine used shall be capable of sanitizing. A separate lavatory located in the kitchen for hand washing is not required. §64‐17‐6. Implementation. 6.1. Food establishments in operation at the time this rule becomes effective, and meeting all prior applicable rules, are considered eligible for a permit to operate provided that any construction done after the effective date of this rule is in compliance with this rule. 6.2. New or extensively remodeled food establishments whose plans and specifications received written approval from the commissioner prior to the effective date of this rule are eligible for a permit to operate provided that the construction or remodeling is in compliance with the approved plans. 6.3. Upon implementing this rule, the commissioner shall provide training for local health department personnel. §64‐17‐7. Food Establishment Advisory Board. 7.1. The commissioner will maintain an advisory board and will serve as chairman. 7.2. The advisory board members shall include, but are not limited to, representatives of the Bureau for Public Health, local health departments, the retail food industry, restaurants, institutional food service providers, senior programs, convenience stores, and school lunch programs. 7.3. The duties of the board shall include, but are not limited to, developing recommendations on: 7.3.a. 7.3.1. Training; 7.3.b. 7.3.2. Standardization of local health department personnel and programs; 7.3.c. 7.3.3. Interpretations of the provisions of this rule; 5 64CSR17 7.3.d. 7.3.4. Requests for waivers and variances; 7.3.e. 7.3.5. Responding to complaints; and 7.3.f. 7.3.6. Revisions of the rule. 7.4. The board shall use Annexes 2 through 7 of the Food Code as guidelines in for the performance of its duties. §64‐17‐8. Fees. All the fees established in the Bureau for Public Health rules, “Fees for Permits,” 64 CSR 30 and “Fees for Service,” 64 CSR 51, for a food service establishment , mobile food unit, a temporary food establishment, a retail food store, a vending machine, and others are applicable to establishments governed by this rule. §64‐17‐9 §64‐17‐8. Hearings and Administrative Due Process. 9.1. 8.1. A permit applicant, a permit holder, an employee or other person may petition the commissioner in writing, as prescribed in the rule, “Rules of Procedure for Contested Case Hearings and Declaratory Rulings,” 64 CSR 1 and the Administrative Procedures Act, W. Va. Code §29A‐5‐1, et seq , for a contested case hearing when the Commissioner has: 9.1.a. 8.1.1. Denied his or her an application for a permit to operate; 9.1.b. 8.1.2. Suspended or revoked his or her a permit to operate; 9.1.c. 8.1.3. Denied his or her a request for a variance; 9.1.d. 8.1.4. Issued a hold order; 9.1.e. 8.1.5. Issued an employee restriction or exclusion order; or 9.1.f. 8.1.6. Otherwise adversely affected the rights, duties, interests or privileges of the petitioner. 9.2. Within 10 days after receipt of the written petition, th e commissioner shall grant or deny a hearing on the matter in accordance with the rule, “Rules of Procedure for Contested Case Hearings and Declaratory Rulings,” 64 CSR 1. 9.3. 8.2. The filing of a petition for a hearing shall not automatically stay or suspend the execution of the notice or order issued by the commissioner. §64‐17‐10. §64‐17‐9. Penalty for Violating Provisions of Rule. 9.1. Violation of the provisions of this rule is a misdemeanor. The commissioner may take enforcement actions for violation in accordance with W. Va. Code §16‐1‐18, and §16‐6‐23, and §16‐6‐ 24. 6