Article 1. Applicability of Chapter
12VAC5-421-3510. Public health protection.
A. The department shall apply this chapter to promote its underlying purpose, as specified in 12VAC5-421-30, of safeguarding public health and ensuring that food is safe , unadulterated and honestly presented when offered to the consumer.
B. In enforcing the provisions of this regulation, the department shall assess existing facilities or equipment that were in use before June 10, 2021, based on the following considerations:
1. Whether the facilities or equipment are in good repair and capable of being maintained in a sanitary condition;
2. Whether food-contact surfaces comply with 12VAC5-421-960 through 12VAC5-421-1060; and
3. Whether the capacities of cooling, heating, and holding equipment are sufficient to comply with 12VAC5-421-1450.
Statutory Authority
§§ 35.1-11 and 35.1-14 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 37, Issue 18, eff. June 10, 2021.
12VAC5-421-3520. Preventing health hazards, provision for conditions not addressed.
A. If necessary to protect against public health hazards or nuisances, the department may impose specific requirements in addition to the requirements contained in this regulation that are authorized by law.
B. The department shall document the conditions that necessitate the imposition of additional requirements and the underlying public health rationale. The documentation shall be provided to the permit applicant or permit holder and a copy shall be maintained in the department's file for the food establishment.
Statutory Authority
§§ 35.1-11 and 35.1-14 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.
12VAC5-421-3530. Application of Administrative Process Act.
The provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) shall govern the procedures for rendering all case decisions, as defined in § 2.2-4001, and for issuing all orders and regulations promulgated pursuant to the authority of Title 35.1.
Statutory Authority
§§ 35.1-11 and 35.1-14 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002.
12VAC5-421-3540. [Reserved]. (Reserved)
12VAC5-421-3550. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; repealed, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.
12VAC5-421-3560. (Repealed.)
Historical Notes
Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 35, Issue 1, eff. October 3, 2018; repealed, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.
12VAC5-421-3570. Variances.
A. The commissioner or his designee may grant a variance to this chapter by following the appropriate procedures set forth in this section and 12VAC5-421-3580.
B. The commissioner or the commissioner's designee may grant a variance if he finds that the hardship imposed, which may be economic, outweighs the benefits that may be received by the public and that granting such a variance does not subject the public to unreasonable health risks or environmental pollution.
C. Any owner or permit holder who seeks a variance shall apply in writing . The request shall be sent to the local health department. The application shall include:
1. A citation to the regulation from which a variance is requested;
2. The nature and duration of the variance requested;
3. Any relevant analytical results including result of relevant tests conducted pursuant to the requirements of these regulations;
4. Statements or evidence which establishes that the public health, welfare and environment would not be adversely affected if the variance were granted;
5. Suggested conditions that might be imposed on the granting of a variance that would limit the detrimental impact on the public health and welfare;
6. A HACCP plan if required as specified under 12VAC5-421-3620 A that includes the information specified under 12VAC5-421-3630 as it is relevant to the variance requested.
7. Other information believed pertinent by the applicant; and
8. Such other information as the district or local health department or commissioner may require.
Statutory Authority
§§ 35.1-11 and 35.1-14 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 37, Issue 18, eff. June 10, 2021.
12VAC5-421-3580. Evaluation of a variance application.
A. The commissioner shall act on any variance request submitted pursuant to 12VAC5-421-3570 C within 60 days of receipt of the request.
B. In evaluating a variance application, the commissioner shall consider such factors as the following:
1. The effect that such a variance would have on the operation of the food establishment.
2. The cost and other economic considerations imposed by this requirement;
3. The effect that such a variance would have on protection of the public health, safety, welfare and the environment;
4. Such other factors as the commissioner, deputy commissioner, or director of the office of environmental health services may deem appropriate.
Statutory Authority
§§ 35.1-11 and 35.1-14 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 37, Issue 18, eff. June 10, 2021.
12VAC5-421-3590. Disposition of a variance request.
A. If the commissioner proposes to deny the variance he shall provide the owner an opportunity to an informal fact-finding conference as provided in § 2.2-4019 of the Code of Virginia. Following this opportunity for an informal fact-finding conference the commissioner may reject any application for a variance by sending a rejection notice to the applicant. The rejection notice shall be in writing and shall state the reasons for the rejection.
B. If the commissioner proposes to grant a variance request submitted pursuant to this part, the applicant shall be notified in writing of this decision. Such notice shall identify the variance, the food establishment involved, and shall specify the period of time for which the variance will be effective. Such notice shall provide that the variance will be terminated when the food establishment comes into compliance with the applicable regulation and may be terminated upon a finding by the commissioner that the food establishment has failed to comply with any requirements or schedules issued in conjunction with the variance. The effective date of the variance shall be as noted in the variance letter.
C. All variances granted to any food establishment may not be transferable unless otherwise stated. Each variance shall be attached to the permit to operate and posted prominently in a conspicuous place for public view.
D. No owner or permit holder may challenge the terms or conditions of a variance after 30 calendar days have elapsed from the receipt of the variance.
E. Each variance is revoked when the permit to operate is revoked, suspended, or expired.
Statutory Authority
§§ 35.1-11 and 35.1-14 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 18, Issue 10, eff. March 1, 2002; amended, Virginia Register Volume 24, Issue 2, eff. October 16, 2007; Volume 32, Issue 22, eff. July 12, 2016.
12VAC5-421-3595. Conformance with approved procedures.
If the commissioner or the commissioner's designee grants a variance as specified in 12VAC5-421-3570, or a HACCP plan is otherwise required as specified under 12VAC5-421-3620, the permit holder shall:
1. Comply with the HACCP plans and procedures that are submitted as specified under 12VAC5-421-3630 and approved as a basis for the variance;P and
2. Maintain and provide to the department, upon request, records specified under subdivisions 4 and 5 c of 12VAC5-421-3630 that demonstrate that the following are routinely employed:
a. Procedures for monitoring the critical control points;PF
b. Monitoring of the critical control points;PF
c. Verification of the effectiveness of the operation or process;PF and
d. Necessary corrective actions if there is failure at the critical control point. PF
Statutory Authority
§§ 35.1-11 and 35.1-14 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.
12VAC5-421-3595. Conformance with approved procedures.
If the commissioner or the commissioner's designee grants a variance as specified in 12VAC5-421-3570, or a HACCP plan is otherwise required as specified under 12VAC5-421-3620, the permit holder shall:
1. Comply with the HACCP plans and procedures that are submitted as specified under 12VAC5-421-3630 and approved as a basis for the variance;P and
2. Maintain and provide to the department, upon request, records specified under subdivisions 4 and 5 c of 12VAC5-421-3630 that demonstrate that the following are routinely employed:
a. Procedures for monitoring the critical control points;PF
b. Monitoring of the critical control points;PF
c. Verification of the effectiveness of the operation or process;PF and
d. Necessary corrective actions if there is failure at the critical control point. PF
Statutory Authority
§§ 35.1-11 and 35.1-14 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.
12VAC5-421-3595. Conformance with approved procedures.
If the commissioner or the commissioner's designee grants a variance as specified in 12VAC5-421-3570, or a HACCP plan is otherwise required as specified under 12VAC5-421-3620, the permit holder shall:
1. Comply with the HACCP plans and procedures that are submitted as specified under 12VAC5-421-3630 and approved as a basis for the variance;P and
2. Maintain and provide to the department, upon request, records specified under subdivisions 4 and 5 c of 12VAC5-421-3630 that demonstrate that the following are routinely employed:
a. Procedures for monitoring the critical control points;PF
b. Monitoring of the critical control points;PF
c. Verification of the effectiveness of the operation or process;PF and
d. Necessary corrective actions if there is failure at the critical control point. PF
Statutory Authority
§§ 35.1-11 and 35.1-14 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 37, Issue 18, eff. June 10, 2021.