Title of Regulation: 12VAC5-421. Food Regulations (amending 12VAC5-421-330).

Statutory Authority: §§ 35.1-11 and 35.1-14 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 2, 2019.

Effective Date: October 17, 2019.

Agency Contact: Julie Henderson, Director of Food and General Environmental Services, Virginia Department of Health, 109 Governor Street, Richmond, VA 23219, telephone (804) 864-7455, FAX (804) 864-7475, TTY (800) 828-1120, or email julie.henderson@vdh.virginia.gov.

Basis: Sections 35.1-11 and 35.1-14 of the Code of Virginia authorize the State Board of Health to make, adopt, promulgate, and enforce regulations governing food establishments in accordance with the provisions of Title 35.1 of the Code of Virginia.

Purpose: Chapter 674 of the 2018 Acts of Assembly mandates the board to promulgate regulations to allow food establishments to receive for sale or service commercially slaughtered or processed rabbits that have not undergone voluntary inspection by the state agency that has animal health jurisdiction or through a voluntary inspection program administered by the U.S. Department of Agriculture (USDA). The Food Regulations prohibit the receipt by food establishments for the sale or service of rabbits that are not under a voluntary inspection program or inspected by the state agency that has animal health jurisdiction or the USDA. The proposed regulatory change is required to conform regulation to statute. This regulation has no significant impact on the health and safety of the public; however, general public welfare is benefited when the agency and the licensees are in compliance with the prevailing laws of the Commonwealth and when all parties are well informed of the applicable laws.

Rational for Using the Fast-Track Rulemaking Process: The proposed regulatory change is best suited for the fast-track rulemaking process for several reasons: (i) the amendment is simple, easy to understand, and affects the requirement regarding allowance of rabbits for sale or service in food establishments without inspection; (ii) the proposed change is necessary to conform the regulation to the underlying statutory change (§ 3.2-5121 H of the Code of Virginia); and (iii) the rulemaking is not expected to be controversial.

Substance: The amendment allows food establishments to accept for sale or service rabbits that have not been subject to a voluntary inspection by the state agency that has animal health jurisdiction or to a voluntary inspection program administered by the USDA.

Issues: The primary advantage for the public is consistency between law and regulation. A secondary advantage of the proposed regulatory change may include a reduction of costs to small businesses that commercially slaughter or process rabbits as costly inspections are no longer required. In addition, the proposed amendment to the Food Regulations provides clarity to the food industry and the general public regarding approved food source. There are no known advantages or disadvantages to the agency. There are no known disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 674 of the 2018 Acts of Assembly, the State Board of Health (Board) proposes to amend the Food Regulations to allow food establishments within the Commonwealth to receive for sale or service, commercially slaughtered or processed rabbits not under a voluntary inspection.

Result of Analysis. There is insufficient data to accurately compare the magnitude of the benefits versus the costs. Analysis of the benefits and costs can be found in the next section.

Estimated Economic Impact. Under the current regulation, rabbits that are received for sale or service must be commercially raised for food and raised, slaughtered, and processed under a voluntary inspection program that is conducted by the state agency that has animal health jurisdiction or under a voluntary inspection program administered by the USDA. In the Virginia Department of Agriculture and Consumer Services' (VDACS) Voluntary Inspection Program, the processor is inspected every time they slaughter, which can be many times a year. Chapter 674 of the 2018 Acts of Assembly amended Virginia Code § 3.2-5121 to state that no regulation may require that commercially slaughtered or processed rabbits that are offered for sale or service be slaughtered or processed under (i) the voluntary inspection program that is conducted by the state agency that has animal health jurisdiction or (ii) a voluntary inspection program that is administered by the U.S. Department of Agriculture. Thus, the current regulation conflicts with the current statute. In order to remove the conflict, the Board proposes to amend the regulation to no longer require that rabbits that are received for sale or service be processed under a voluntary inspection program.

After Chapter 674 of the 2018 Acts of Assembly was enacted, VDACS initiated the Virginia Rabbit Program. It allows those who wish to slaughter rabbits for sale in the Commonwealth to do so without being inspected every time rabbits are slaughtered, as is done with the Voluntary Inspection Program. Processors that slaughter rabbits in Virginia now have the option of complying with the requirements of the Virginia Rabbit Program, conducted in accordance with the Virginia Food Laws, or to continue with the Voluntary Inspection Program. In the Virginia Rabbit Program, inspections are conducted prior to initial operations of the processor, and randomly thereafter, no less than annually. The same staff at VDACS conduct the inspections under both the Voluntary Inspection Program and the Virginia Rabbit Program.

Under the Voluntary Inspection Program, VDACS charges the processor $28.06 per hour of inspection and travel time between the processor site and the applicable regional health department office. VDACS has provided an example where they spent 1.25 hours inspecting at a processor, and their travel time was three hours. Thus, they charged the processor $119.26² for that day of inspecting. For every day of slaughter, there would be such an inspection charge. Under the Virginia Rabbit Program, after initiating operations rabbit processors are only inspected once a year (though possibly slightly more) and charged just $40 a year regardless of how often they are inspected. Clearly, being inspected under the Virginia Rabbit Program rather than the Voluntary Inspection Program reduces financial outlay for rabbit processors. Since there are far fewer inspections under the Virginia Rabbit Program there may be greater risk to health and safety. Information is currently unavailable as to whether the increase of risk is large, negligible, or somewhere in between. Without this information, an accurate comparison of whether or not the benefits of the reduced burden to processors outweigh the potential increase in risk to health and safety cannot be made.

There are currently four rabbit meat processors in the Commonwealth. According to the Virginia Department of Health, three out of the four have chosen to continue with the voluntary inspection program, while one has chosen to be inspected under the Virginia Rabbit Program. The three processors that have chosen to continue with the voluntary inspection program have likely made that choice due to other states and jurisdictions not accepting rabbit meat that has not been inspected under a federally approved voluntary inspection program.

Businesses and Entities Affected. The proposed amendment potentially affects the four rabbit meat processors in the Commonwealth, as well as permitted food establishments. As of October 10, 2018, there were 29,200 permitted food establishments in Virginia; it is unknown how many are selling or serving rabbit.³

Localities Particularly Affected. The proposed amendment does not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendment is unlikely to significantly affect total employment.

Effects on the Use and Value of Private Property. The proposed amendment reduces costs for rabbit meat processors who choose to take advantage of the new inspection option. The reduced cost would commensurately increase the value of the business.

Real Estate Development Costs. The proposed amendment does not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendment reduces costs for small rabbit meat processors who choose to take advantage of the new inspection option.

Alternative Method that Minimizes Adverse Impact. The proposed amendment does not adversely affect small businesses.

Adverse Impacts:

Businesses: There proposed amendment does not adversely affect businesses.

Localities: The proposed amendment does not adversely affect localities.

Other Entities: The proposed amendment does not adversely affect other entities.

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¹Adverse impact is indicated if there is any increase in cost for any entity, even if the benefits exceed the costs.

²1.25 + 3 = 4.25; $28.06 X 4.25 = $119.26

³Data source: Virginia Department of Health

Agency Response to Economic Impact Analysis: The Virginia Department of Health concurs with the Department of Planning and Budget's economic impact analysis.

Summary:

Pursuant to Chapter 674 of the 2018 Acts of Assembly, the amendment removes the requirement that rabbits must be slaughtered or processed under a voluntary inspection program prior to introduction into commerce.

12VAC5-421-330. Game animals.

A. If game animals are received for sale or service they shall be:

1. Commercially raised for food and raised, slaughtered, and processed under a voluntary inspection program that is conducted by the state agency that has animal health jurisdiction or under a voluntary inspection program administered by the USDA for game animals such as exotic animals (reindeer, elk, deer, antelope, water buffalo, or bison) that are "inspected and approved" in accordance with 9 CFR Part 352 or rabbits that are "inspected and certified" in accordance with 9 CFR Part 354;

2. As allowed by law, wild game animals that are live-caught:

a. Under a routine inspection program conducted by a regulatory agency such as the agency that has animal health jurisdiction;^P

b. Slaughtered and processed according to:

(1) Laws governing meat and poultry as determined by the agency that has animal health jurisdiction and the agency that conducts the inspection program;^P and

(2) Requirements that are developed by the agency that has animal health jurisdiction and the agency that conducts the inspection program with consideration of factors such as the need for antemortem and postmortem examination by an approved veterinarian or veterinarian's designee;^P or

3. As allowed by law for field-dressed wild game animals under a routine inspection program that ensures the animals:

a. Receive a postmortem examination by an approved veterinarian or veterinarian's designee; or

b. Are field-dressed and transported according to requirements specified by the agency that has animal health jurisdiction and the agency that conducts the inspection program;^P and

c. Are processed according to laws governing meat and poultry as determined by the agency that has animal health jurisdiction and the agency that conducts the inspection program.^P

B. A game animal shall not be received for sale or service if it is a species of wildlife that is listed in 50 CFR Part 17.

C. The requirements of subsection A of this section shall not apply to commercially slaughtered or processed rabbits that are offered for sale or service.