TITLE 1. ADMINISTRATION

COMMISSION ON LOCAL GOVERNMENT

Proposed Regulation

Title of Regulation: 1VAC50-20. Organization and Regulations of Procedure (amending 1VAC50-20-40, 1VAC50-20-142 through 1VAC50-20-382, 1VAC50-20-390 through 1VAC50-20-612, 1VAC50-20-616 through 1VAC50-20-650).

Statutory Authority: § 15.2-2903 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: February 28, 2025.

Agency Contact: LeGrand Northcutt, Senior Policy Analyst, Department of Housing and Community Development, Main Street Center, 600 East Main Street, Richmond, VA 23219, telephone (804) 310-7151, FAX (804) 371-7090, or email legrand.northcutt@dhcd.virginia.gov.

Basis: The Commission on Local Government is authorized by § 15.2-2903 of the Code of Virginia to promulgate regulations regarding the commission's proceedings.

Purpose: While this regulatory change is not essential to protect the health, safety, or welfare of the citizens of the Commonwealth, the regulation is essential to the functioning of the commission. The commission has noticed that filings and notices for cases before it are filled with information that is not relevant to its review, and that its regulations require many filings that are not required by Virginia law. This places a cost and time burden on the local governments preparing these documents. Therefore, the primary goals of this regulatory change are to reduce the cost and time spent by local governments preparing filings for cases before the commission and reduce the cost and time spent by citizens, localities, and other parties reading the documents and preparing responses.

Substance: The proposed amendments specifically focus on reducing (i) the amount of information that must be provided in a filing before the commission, (ii) the number of parties that must be notified of a filing before the commission, (iii) the length and timing of notifications to the commission and other parties, and (iv) the process for requesting filings and other documents from the commission. Other substantive changes to existing sections are related to how the commission interacts with the public, including updates to special meeting and closed meeting policies, clarifying that records for all cases can be requested through commission staff, and updating requirements that pertain to Freedom of Information Act (FOIA) to reflect current practices.

Issues: The primary advantage to the public and the Commonwealth is that these changes will reduce the amount of information needed in a filing and the length of notifications to other parties, which will result in cost and time savings for local governments and other private parties. The current regulation may cause disadvantages to the Commonwealth or the public in instances where the regulation requires a party to be notified of a filing, but statute does not; the amendments eliminate this. The primary disadvantage to the agency is that the changes explicitly encourage members of the public and other parties who receive notices to contact the commission's staff for documents and additional information instead of requesting such information from the local government that filed the notice or requiring the local government to send the information to other parties. However, this is no more onerous than current FOIA requirements, and it may lead to no change in work for the commission, as members of the public already regularly ask the commission for documents.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Commission on Local Government (commission) proposes regulatory changes with the aim of reducing the administrative burden imposed by the filing required to be submitted in the cases it hears by reducing notification and filing requirements.

Background. The commission, which is housed within the Department of Housing and Community Development, was created to help the Commonwealth ensure that all of its localities are maintained as viable communities in which citizens can live (§ 15.2-2900 et seq. of the Code of Virginia). One of the commission's chief duties is to provide technical assistance to localities and state agencies on the boundary changes between localities, including annexation, and governmental transition processes.² This regulation establishes a procedure for meetings and hearings, and the administrative rules for notice and content of the related filings. The commission states that most of the cases before it are prompted by development. For example, in a recent case, a developer wanted to build houses on the county side of the border of a county and a town, and the localities had different rules for the development: in the town, the development would be on sewer and a maximum of 250 homes with a commercial parcel could be built, whereas in the county the development would be on septic and only 200 homes were allowed with no commercial space. The developer, the town, and the county reached an agreement on the size and scope of the development and brought it before the commission for the town to annex the part of the development on the county side. Pursuant to Executive Directive 1 (2022) and Executive Order 19 (2022), the commission investigated ways to reduce regulatory requirements and determined that the filings and notices for cases before it contain information that are required by commission regulations but that are not relevant to its review. Moreover, its regulations require filings that are not required by Virginia law, but that impose costs and time burden on the local governments preparing these documents. Consequently, the commission seeks to reduce administrative burdens on localities and third parties. More specifically, the proposal would: (i) no longer require a fax number to be included in the notice of a proposed action to the commission; (ii) reduce, and in most cases eliminate, the discretionary requirements for notification of other local governments in certain types of cases and rely on statutory notification requirements throughout the regulation; (iii) reduce the amount of material that must be included in notifications to the commission and other parties; and (iv) eliminate the current process for requesting filings and other documents from the other parties or the commission that is allowed under commission discretion and instead utilize the process under the Freedom of Information Act (FOIA).

Estimated Benefits and Costs: With the proposed changes, affected towns, counties, other political subdivisions, and third parties are expected to save costs because of the following: a reduction in some required information (e.g., fax number), a reduction in required notifications, a reduced volume of filings (e.g., savings in paper, printing, postage), and the elimination of the requirement to follow a separate process other than FOIA for information requests. The commission estimates a reduction of approximately $500 (from $2,000 to $1,500) in administrative costs for each party per case on average. Over the past four years, between one and two cases have been filed with the commission each calendar year; this equates to an annual overall savings of $500 to $1,000. Furthermore, the commission believes these proposed changes would not adversely affect its ability to discharge its powers and duties regarding ensuring due process in the cases before it. Additionally, the commission notes the possibility of a small increase in its administrative costs because the changes explicitly encourage members of the public and other parties that receive notices to contact commission staff for documents and additional information, instead of requesting it from the local government that filed the notice or requiring the local government to send the information to other parties. However, the commission also notes the proposed changes are no more onerous than what is already required under FOIA, and they may lead to no change in work for the commission because members of the public already ask the commission for documents with some regularity. The remaining proposed changes are clarifications of the existing language and current practices and are not expected to generate any other significant economic impact.

Businesses and Other Entities Affected. This regulation applies to all localities. However, most of commission cases involve counties and towns and law firms representing them. Rarely, specific citizens with discrete property interests would be involved in proceedings before the commission. Over the past four years, between one and two cases have been filed with the commission each calendar year. No entity appears to be disproportionately affected. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.³ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁴ The proposal would provide administrative cost savings to the localities and third parties involved in cases before the commission. Thus, no adverse impact is indicated.

Small Businesses⁵ Affected.⁶ The proposed amendments do not appear to adversely affect small businesses.

Localities⁷ Affected.⁸ The proposed amendments apply to all localities. Over the past four years, between one and two cases have been filed with the commission each calendar year. The proposal does not introduce costs for local governments. No locality appears to be disproportionately affected.

Projected Impact on Employment. The proposed amendments do not appear to significantly affect employment.

Effects on the Use and Value of Private Property. No significant effect on the use and value of private property is expected. The proposed changes, however, may produce cost savings (i.e., $500 per party per case) for development projects involved in cases within the purview of the commission.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://law.lis.virginia.gov/vacode/title15.2/chapter29/section15.2-2903/.

³ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁴ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁵ Pursuant to § 2.2-4007.04, 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."

⁶ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁷ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁸ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Commission on Local Government staff concurs with the analysis and findings in the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

In response to Executive Directive One (2022) and Executive Order 19 (2022), the proposed amendments (i) remove the requirement that a fax number be included in the notice of a proposed action to the commission; (ii) reduce, and in most cases eliminate, the discretionary requirements for notification of other local governments in certain types of cases and instead rely on statutory notification requirements throughout the regulation; (iii) reduce the amount of material that must be included in notifications to the commission and other parties; and (iv) eliminate the current process for requesting filings and other documents from the other parties or the commission that is allowed under commission discretion and instead utilize the process described under the Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia).

1VAC50-20-40. Officers.

The commission shall elect from its membership at the end of its regular January November meeting, or as soon thereafter as possible, a chair and a vice chair, who shall serve terms of one year, or until their successors are elected. In the event of a vacancy occurring in the office of chair or vice chair, for any cause, the commission shall fill the same vacancy by election for the unexpired term. The chair shall preside at all meetings, presentations, and public hearings held by the commission unless absent. In the absence of the chair, the vice chair shall preside at any meeting or other assembly of the commission and shall exercise all powers and duties of the chair. In the event that the chair and vice chair are absent for a meeting or other assembly of the commission, the remaining members of the commission shall elect a temporary chair who shall exercise all powers and duties of the chair for the duration of the meeting or assembly.

1VAC50-20-142. Special meetings.

Special meetings of the commission may be called by any member on such occasions as may be reasonably necessary to carry out the duties of the commission. Except in instances where a special meeting is scheduled at a regular meeting, the chair shall cause to be mailed - including by electronic means - send by electronic means to all members, at least five days in advance of a special meeting, a written notice specifying the time, place, and purpose of the special meeting. Notice of special meetings shall be announced appropriately on the Virginia Regulatory Town Hall and on a calendar maintained by the Commonwealth.

1VAC50-20-150. Minutes of meetings and hearings.

Minutes shall be recorded for each public meeting held by the commission. The minutes shall include a brief summary of comments on major issues under consideration and concise and specific statements of all action taken by the commission. The minutes shall be provided to each commission member for reading and editing prior to approval at a subsequent commission meeting. There need be no actual reading of the minutes at the meeting, but a vote shall be taken for the formal approval of the minutes as written or amended. Copies of the minutes of public meetings shall be made available to any interested party at a price sufficient to cover the expense incurred or on the Virginia Regulatory Town Hall and the commission's Internet webpage in accordance with the Department of Housing and Community Development's Virginia Freedom of Information Act policies.

1VAC50-20-160. Executive sessions or meetings Closed statutorily mandated proceedings exempt from the Virginia Freedom of Information Act.

A. The commission, along with its panels, or its committees, subcommittees, members, and staff, may hold and conduct executive sessions or meetings closed statutorily mandated proceedings as may be necessary for mediation and negotiations, for deliberations, for meeting with local governing bodies or members thereof, or for other lawful and appropriate purposes allowed by § 15.2-2907 D of the Code of Virginia. Closed statutorily mandated proceedings shall be exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia) in accordance with § 15.2-2907 D of the Code of Virginia.

B. The following rules shall apply to closed statutorily mandated proceedings:

1. Closed statutorily mandated proceedings may be called with notice given by the chair at the chair's discretion and held in any location, in person or virtually.

2. A quorum of commissioners must be present to conduct a closed statutorily mandated proceeding.

3. No action of the commission taken during a closed statutorily mandated proceeding that would be considered at a regular meeting or would otherwise require a public vote shall be binding unless the commission takes a vote on such action at a subsequent regular meeting of the commission.

4. The commission may permit a nonmember to attend a closed statutorily mandated proceeding if such person is deemed necessary by the commission, if the person's presence will reasonably aid the commission in its consideration of a topic that is a subject of the proceeding, or as required by law.

5. Minutes and recordings may be taken during a closed statutorily mandated proceeding but shall not be required. Pursuant to 1VAC50-20-170 and other applicable laws, such minutes and recordings shall be confidential.

C. The commission reserves the right to meet in a closed meeting as allowed by §§ 2.2-3711 and 2.2-3712 of the Code of Virginia.

1VAC50-20-170. Confidentiality of proceedings and submissions.

All testimony, statements, exhibits, documents, or other evidence submitted to the commission by the parties in conjunction with its the commission's legally prescribed public meetings, presentations, or hearings shall be subject to disclosure by the commission under the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq. of the Code of Virginia). All other materials, including the testimony, statements, exhibits, documents, or other evidence submitted to the commission pursuant to executive during closed statutorily mandated proceedings allowed under 1VAC50-20-160, along with other deliberations, negotiations, or mediation which that the commission is authorized by law to conduct, under § 15.2-2907 D of the Code of Virginia shall be treated as confidential and shall not neither be subject to disclosure by the commission nor by the parties involved in executive proceedings closed statutorily mandated proceedings, except by agreement of the commission and all parties to the proceedings.

1VAC50-20-180. Notice to commission of proposed action as required by § 15.2-2907 of the Code of Virginia.

A. Notice of a proposed action to the commission as required by § 15.2-2907 of the Code of Virginia to the commission shall be accompanied by resolution of the governing body of the locality providing the notice evidencing its support of such action. Notice to the commission shall indicate the name, title, address, phone telephone number, and, where available, fax number and email address of the individual who shall serve as designated contact with the commission regarding the issue presented. All notices required to be given the commission under the provisions of § 15.2-2907 of the Code of Virginia shall also indicate the other local governments given notice of the proposed action pursuant to subsection C of this section.

1. Notice of a proposed annexation initiated by voters or property owners shall be accompanied by the original or certified petition signed by 51% of the voters of any territory adjacent to any municipality or 51% of the owners of real estate in number and land area in a designated area. Notice to the commission shall indicate the name, title, address, and phone telephone number, and, where available, fax number and email address of the individual who shall serve as designated contact with the commission regarding the issue presented. All notices required to be given to the commission under the provisions of § 15.2-2907 of the Code of Virginia shall also indicate the other local governments given notice of the proposed action pursuant to subsection C of this section.

2. Notice of a petition for the proposed transition of a city to town status that has been referred to the commission pursuant to § 15.2-4102 of the Code of Virginia shall indicate the name, title, address, phone telephone number, and, where available, fax number and email address of the individual who shall serve as designated contact with the commission regarding the issue referred. All notices required to be given the commission under the provisions of § 15.2-2907 of the Code of Virginia shall also indicate the other local governments given notice of the proposed action pursuant to subsection C of this section.

3. Notice to the commission by a committee of citizens that has been appointed by the circuit court to act for and in lieu of a governing body to perfect a consolidation agreement pursuant to § 15.2-3531 of the Code of Virginia shall indicate the name, title, address, phone telephone number, and, where available, fax number and email address of the individual who shall serve as designated contact with the commission regarding the proposed consolidation. All notices required to be given to the commission under the provisions of § 15.2-2907 of the Code of Virginia shall also indicate the other local governments given notice of the proposed action pursuant to subsection C of this section.

B. Any party giving notice to the commission of a proposed action pursuant to § 15.2-2907 of the Code of Virginia may submit with the notice as much data, exhibits, documents, or other supporting materials as it deems appropriate; however, the submissions should be fully responsive to all relevant elements of the applicable section of Part IV (1VAC50-20-540 et seq.) of this chapter.

C. Any party giving notice to the commission of a proposed action as required by § 15.2-2907 of the Code of Virginia shall also give notice to each Virginia local government located within or contiguous to, or sharing functions, revenue, or tax sources with the local government proposing the action. All notices to the local governments shall include an annotated listing of all documents, exhibits, and other material submitted to the commission in support of the proposed action contact information for the commission's staff with instructions to contact the commission or the locality's Freedom of Information Act (FOIA) officer, as applicable, for copies of additional documents and exhibits submitted to the commission.

1. Any voters or property owners giving notice to the commission of a proposed annexation as required by § 15.2-2907 of the Code of Virginia shall also give notice to each Virginia local government located within or contiguous to, or sharing functions, revenue, or tax sources with the municipality to which annexation is sought. All notices to the immediately affected local governments shall include contact information for the commission's staff with instructions to contact the commission for copies of all additional documents, and exhibits, and other material submitted to the commission in support of the proposed action, and notice to other localities may include, in lieu of copies of the submissions, an annotated listing of the material.

2. Any voters whose petition for the proposed transition of a city to town status that has been referred to the commission pursuant to § 15.2-4102 of the Code of Virginia shall also give notice to each Virginia local government located within or contiguous to, or sharing functions, revenue, or tax sources with the city proposed for town status. All notices to the immediately affected local governments shall include contact information for the commission's staff with instructions to contact the commission for copies of all additional documents, and exhibits, and other material submitted to the commission in support of the proposed action, and notice to other localities may include, in lieu of copies of the submissions, an annotated listing of the material.

3. A committee of citizens that has been appointed by the circuit court to act for and in lieu of a governing body to perfect a consolidation agreement pursuant to § 15.2-3531 of the Code of Virginia shall also give notice to each Virginia local government located within or contiguous to, or sharing functions, revenue, or tax sources with the local governments that are proposed to be consolidated. All notices to the immediately affected local governments shall include contact information for the commission's staff with instructions to contact the commission for copies of all additional documents, and exhibits, and other material submitted to the commission in support of the proposed action, and notice to other localities may include, in lieu of copies of the submissions, an annotated listing of the material.

D. Any local government receiving notice pursuant to subsection C of this section or any other affected party may submit data, exhibits, documents, or other material for commission review and consideration as it deems appropriate. The submissions should, however, be responsive to all relevant elements of the applicable section of Part IV (1VAC50-20-540 et seq.) of this chapter. Any party submitting material to the commission for review pursuant to this section shall also designate an individual as principal contact for the commission and shall furnish the individual's name, title, address, phone telephone number, and, where available, fax number and email address. An annotated listing of all documents, exhibits, or other material submitted to the commission pursuant to this section The submitting party shall be provided to notify the party initiating the proceeding before the commission. Such notification shall include contact information for the commission's staff with instructions to contact the commission for copies of the documents submitted to the commission. The commission may establish a time by which all submissions by respondent parties must be received.

E. Upon its receipt of notice of a proposed action pursuant to subsection A of this section, the commission shall, subsequent to discussion with representatives of the party submitting the notice and other appropriate parties, schedule a review of the proposed action. The commission shall also concurrently extend the services of its office to the parties in an endeavor to promote a negotiated settlement of the issue and, further, may designate, with the agreement of the parties, an independent mediator to assist in the negotiations.

The commission's review of a notice of a proposed annexation as required by § 15.2-2907 of the Code of Virginia filed by voters or property owners shall be terminated upon receipt of an ordinance, duly adopted by a majority of the elected members of the governing body of the affected city or town, rejecting the annexation proposed by the notice.

1VAC50-20-230. Referral to commission of proposed voluntary settlement agreements.

A. Referral of a proposed voluntary settlement agreement to the commission under the provisions of § 15.2-3400 of the Code of Virginia shall be accompanied by resolutions, joint or separate, of the governing bodies of the localities that are parties to the proposed agreement requesting the commission to review the agreement. The resolutions shall also state the intention of the governing bodies to adopt the agreement subsequent to the commission's review and shall indicate the name, title, address, phone telephone number, and, where available, fax number and email address of the individual who shall serve as each locality's principal contact with the commission during the period of its the commission's review. Referrals to the commission pursuant to § 15.2-3400 of the Code of Virginia shall also be accompanied by a listing of local governments receiving notice of the referral under subsection C of this section.

B. Any party referring a proposed voluntary settlement agreement to the commission for review pursuant to § 15.2-3400 of the Code of Virginia may submit with the proposed agreement as much data, exhibits, documents, or other supporting materials as deemed appropriate; however, the submissions should be fully responsive to all relevant elements of 1VAC50-20-610.

C. Whenever a proposed voluntary settlement agreement is referred to the commission for review pursuant to subsection A of this section, the parties to the proposed agreement shall concurrently give notice of the referral to each Virginia local government with which any of the parties is contiguous, or with which any of the parties shares any function, revenue, or tax source. All such notices of referral shall be accompanied by a copy of the proposed voluntary settlement agreement, or a descriptive summary thereof, and an annotated listing of all contact information for the commission's staff with instructions to contact the commission for copies of the documents, exhibits, and other materials submitted to the commission in support of the proposed agreement.

D. Any local government receiving notice of referral pursuant to subsection C of this section, or any other party, may submit data, exhibits, documents, or other supporting materials relevant to the commission's review as it deems appropriate; however, the submissions should be responsive to all relevant elements of 1VAC50-20-610. Any party submitting materials to the commission pursuant to this chapter shall also designate an individual who shall serve as principal contact with the commission during the period of its the commission's review and shall furnish the individual's name, title, address, phone telephone number, and, where available, fax number and email address. The commission may establish a time by which all submissions by respondent parties must be received. Any party submitting materials to the commission pursuant to this chapter shall also provide an annotated listing of the material to the parties to the proposed voluntary settlement agreement notify the parties to the voluntary settlement agreement of the submission. Such notification shall include contact information for the commission's staff with instructions to contact the commission for copies of the documents submitted to the commission.

1VAC50-20-270. Referral to commission of proposed town-county agreement defining annexation rights.

A. Referral to the commission of a proposed town-county agreement defining annexation rights pursuant to § 15.2-3231 of the Code of Virginia shall be accompanied by resolutions, joint or separate, of the governing bodies of the town and county requesting the commission to review the agreement. The resolutions shall also state the intention of the governing bodies to adopt the agreement subsequent to the commission's review and shall indicate the name, title, address, phone telephone number, and, where available, fax number and email address of the individual who shall serve as each locality's principal contact with the commission during the period of its review. Referrals to the commission pursuant to § 15.2-3231 of the Code of Virginia shall also be accompanied by a listing of local governments receiving notice of such referral under subsection C of this section.

B. Any affidavit made pursuant to § 15.2-3232 B of the Code of Virginia shall be filed with the commission within five business days of execution.

C. Any notice given under § 15.2-3232 B of the Code of Virginia shall include contact information for the commission's staff with instructions to contact the commission for copies of the documents submitted to the commission.

D. Any party referring a proposed agreement to the commission for review pursuant to § 15.2-3231 of the Code of Virginia may submit with the proposed agreement as much data, exhibits, documents, or other supporting materials as deemed appropriate; however, submissions should be fully responsive to all relevant elements of 1VAC50-20-560.

C. Whenever a proposed agreement is referred to the commission for review pursuant to subsection A of this section, the parties to the proposed agreement shall concurrently give notice of the referral to each Virginia local government with which either party is contiguous or with which either party shares any function, revenue, or tax source. All notices of referral shall be accompanied by a copy of the proposed agreement, or a descriptive summary thereof, and an annotated listing of all documents, exhibits, and other materials submitted to the commission in support of the proposed agreement.

D. E. Any person or local government receiving notice of referral pursuant to subsection C of this section, or any other party, may submit data, exhibits, documents, or other supporting materials relevant to the commission's review as they deem the person or local government deems appropriate; however, the submissions should be responsive to all relevant elements of 1VAC50-20-560. Any party submitting materials to the commission pursuant to this chapter shall also designate an individual who shall serve as principal contact with the commission during the period of its the commission's review and shall furnish the individual's name, title, address, phone telephone number, and, where available, fax number and email address. The commission may establish a time by which all submissions by respondent parties must be received. Any party submitting materials to the commission pursuant to this chapter shall also provide an annotated listing of the material to the parties to the proposed agreement notify the parties to the agreement defining annexation rights of the submission. Such notification shall include contact information for the commission's staff with instructions to contact the commission for copies of the documents submitted to the commission.

1VAC50-20-310. Referral to commission of town petition for order establishing annexation rights.

A. Any town unable to reach an agreement with its county as to future annexation rights may, pursuant to § 15.2-3234 of the Code of Virginia, adopt an ordinance petitioning the commission for an order establishing its rights to annex territory in such county. The petition to the commission shall include the terms of a proposed order establishing the town's annexation rights and shall indicate the name, title, address, phone telephone number, and, where available, fax number and email address of the individual who shall serve as the town's principal contact with the commission. Petitions to the commission pursuant to § 15.2-3234 of the Code of Virginia shall also be accompanied by a copy of the ordinance and by a listing of all local governments being served or receiving notice of the town's petition pursuant to subsection C of this section.

B. Any town petitioning the commission under the authority of § 15.2-3234 of the Code of Virginia may submit with the petition as much data, exhibits, documents, or other supporting materials as deemed appropriate; however, the submissions should be fully responsive to all relevant elements of 1VAC50-20-616.

C. Any town petitioning for an order establishing its annexation rights under the authority of § 15.2-3234 of the Code of Virginia shall serve a copy of the petition and ordinance on the Commonwealth's attorney, or the county attorney if there be is one, and on the chairman chair of the board of supervisors of the county whose territory would be affected by the town's proposed annexation order. The town shall also give notice of its petition to all other towns located within the affected county and to each Virginia local government adjoining such county. The service in the county and the notice to other localities shall be accompanied by an annotated listing of all materials must include contact information for the commission's staff with instructions to contact the commission for copies of additional documents and exhibits submitted to the commission pursuant to subsection B of this section.

D. A county served with a copy of a town's petition pursuant to subsection C of this section shall file its response to such petition with the commission within 60 days after receipt of the service. Any other party receiving notice pursuant to subsection C of this section, with an interest in the proceedings may also submit materials to the commission for consideration with respect to the town's petition within 60 days of their receipt of the notice. The commission may establish a time by which all submissions by respondent parties must be received, so long as the time is no earlier than the county's response date. Responses and submissions to the commission pursuant to this chapter may include data, exhibits, documents, or other materials as the submitting party deems appropriate; however, such responses and submissions should be responsive to all relevant elements of 1VAC50-20-616. Any party submitting materials to the commission for review pursuant to this chapter shall also designate an individual who shall serve as principal contact with the commission and shall furnish the individual's name, title, address, phone telephone number, and, where available, fax number and email address. Any party submitting materials to the commission pursuant to this chapter shall also provide an annotated listing of the material to the town petitioning the commission notify the town that they have submitted materials to the commission.

1VAC50-20-350. Referral to commission of boundary line adjustment.

A. Whenever a court refers a proposed boundary line adjustment to the commission pursuant to § 15.2-3109 of the Code of Virginia, the localities proposing the boundary line adjustment shall, upon receipt of notification of the referral, provide the commission with a copy of their the petition to the court and shall designate an individual for each locality who shall serve as principal contact with the commission and shall furnish the individual's name, title, address, phone telephone number, and, where available, fax number and email address. Referrals to the commission pursuant to § 15.2-3109 of the Code of Virginia shall also be accompanied by a listing of local governments receiving notice of the referral under subsection C of this section.

B. The two localities proposing a boundary line adjustment pursuant to § 15.2-3109 of the Code of Virginia may, jointly or independently, submit to the commission with their the petition as much data, exhibits, documents, or other supporting materials as they the localities deem appropriate; however, such submissions should be fully responsive to all relevant elements of 1VAC50-20-600.

C. Whenever a proposed boundary line adjustment is referred to the commission for review pursuant to § 15.2-3109 of the Code of Virginia, the localities proposing the adjustment shall concurrently give notice of the proposed adjustment as well as notice of the referral of the issue to the commission to each Virginia local government with which either party is contiguous and to any other Virginia local government deemed by the localities proposing the adjustment to be potentially affected by the proposed adjustment. The notice shall include a copy of the petition requesting the boundary line adjustment, or an informative summary thereof, and an annotated listing of all documents, exhibits, and other materials submitted to the commission for review pursuant to subsection B of this section.

D. C. Any person or local government receiving notice of a proposed boundary line adjustment pursuant to subsection C of this section, or any other party, may submit data, exhibits, documents, or other supporting materials relevant to the commission's review as they deem the person or local government deems appropriate; however, such submissions should be responsive to all relevant elements of 1VAC50-20-600. Any party submitting materials to the commission pursuant to this chapter shall also designate an individual who shall serve as principal contact with the commission during the period of its the commission's review and shall furnish the individual's name, title, address, phone telephone number, and, where available, fax number and email address. The commission may establish a time by which all submissions by respondent parties must be received. Any party submitting materials to the commission pursuant to this chapter shall also provide an annotated listing of the materials to the localities proposing the boundary line adjustment notify the localities proposing the boundary line adjustment that the party has submitted evidence to the commission.

1VAC50-20-382. Referral to commission of proposed economic growth-sharing agreements.

A. Referral of a proposed economic growth-sharing agreement to the commission under the provisions of § 15.2-1301 of the Code of Virginia shall be accompanied by resolution, joint or separate, of the governing bodies of the localities that are parties to the proposed agreement requesting the commission to review the agreement. The resolutions shall also state the intention of the governing bodies to adopt the agreement subsequent to the commission's review and shall indicate the name, title, address, phone telephone number, and, where available, fax number and email address of the individual who shall serve as each locality's principal contact with the commission during the period of its the commission's review. Referrals to the commission pursuant to § 15.2-1301 of the Code of Virginia shall also be accompanied by a listing of local governments receiving notice of the referral under subsection C of this section.

B. Any party referring a proposed economic growth-sharing agreement to the commission for review pursuant to § 15.2-1301 of the Code of Virginia may submit with the proposed agreement as much data, exhibits, documents, or other supporting materials as deemed appropriate; however, the submissions should be fully responsive to all relevant elements of 1VAC50-20-612.

C. Whenever a proposed economic growth-sharing agreement is referred to the commission for review pursuant to subsection A of this section, the parties to the proposed agreement shall concurrently give notice of the referral to each Virginia local government with which any of the parties is contiguous, or with which any of the parties shares any function, revenue, or tax source. All notices of referral shall be accompanied by a copy of the proposed agreement, or a descriptive summary thereof, and an annotated listing of all documents, exhibits, and other materials submitted to the commission in support of the proposed agreement include contact information for the commission's staff with instructions to contact the commission for copies of the additional documents and exhibits submitted to the commission.

D. Any local government receiving notice of referral pursuant to subsection C of this section, or any other party, may submit data, exhibits, documents, or other supporting materials relevant to the commission's review as it deems appropriate; however, the submissions should be responsive to all relevant elements of 1VAC50-20-612. Any party submitting materials to the commission pursuant to this chapter shall also designate an individual who shall serve as principal contact with the commission during the period of its the commission's review, and shall furnish the individual's name, title, address, phone telephone number, and, where available, fax number and email address. Any party submitting materials to the commission pursuant to this chapter shall also provide an annotated listing of the material to the parties to the proposed agreement notify the parties to the economic growth-sharing agreement that they have submitted materials to the commission. The commission may establish a time by which all submissions by respondent parties must be received.

1VAC50-20-390. General provisions applicable to mandatory commission reviews.

A. Any local government or other party appearing before the commission relative to any mandatory review may be represented by counsel.

B. The commission shall generally schedule for consideration issues in the order in which received; however, the commission reserves the right to consider issues in other sequence where it deems appropriate. Where notices are received of related or competitive actions affecting the same localities, the commission may, where appropriate, consider the issues and render the reports or a consolidated report concurrently.

C. Subsequent to its receipt of an issue for a mandatory review, the commission or the commission's staff shall meet, or otherwise converse, with representatives of the principally affected parties for purposes of establishing a schedule for its review of the issue. The schedule shall include dates for (i) for the submission of responsive materials from affected jurisdictions, (ii) for tours of affected areas and oral presentations if any are desired by the commission, (iii) for a public hearing, and (iv) for the issuance of the commission's report, as well as other dates the commission deems appropriate.

D. The commission may continue or defer its proceedings with respect to an issue at any time it deems appropriate; however, no continuance or deferral shall result in an extension of the commission's reporting deadline beyond any time limit imposed by law, except by agreement of the parties or in accordance with other statutory procedures. The commission shall also accept requests for continuances or deferrals from any party at any time during its proceedings but shall not grant or deny any such requests until all parties have had an opportunity to comment on the requests. In any instance where the commission grants a continuance or a deferral, the continuance or deferral may be conditioned upon an appropriate extension of the commission's reporting deadline with respect to the issue under review.

E. The commission may confront the necessity of continuing or deferring its proceedings as a result of statutory requirement or court order. In such instances, the commission shall reschedule its proceedings, upon consultation with the parties, in a manner that permits an expeditious conclusion of its review. The parties should anticipate, however, that the duration of the continuance or stay shall result in a commensurate delay in the issuance of the commission's report.

F. In addition to any meeting, presentation, public hearing, or other gathering of the parties specified by this chapter, the commission may, where it deems necessary for an analysis of material or for a discussion or clarification of the issues before it, schedule other meetings of appropriate parties.

G. No party to a proceeding before the commission for mandatory review shall communicate in any manner with any member of the commission with respect to the merits of the issue under review except as is authorized by this chapter, or as may be otherwise authorized by the commission or its chair.

H. In addition to the submissions authorized by 1VAC50-20-180 through 1VAC50-20-384, the commission may allow supplemental submissions deemed necessary or appropriate by the commission for the provision of current and complete data. Where supplemental submissions are authorized pursuant to this subsection, copies of all submissions shall be provided by the submitting party to all principal parties. The commission shall endeavor to establish dates for the filing of all supplemental submissions which that will allow an opportunity for their review and critical analysis by other affected parties. However, the commission may accept supplemental submissions filed after any established dates if, in the commission's judgment, the submissions assist the commission in the discharge of its statutory responsibilities.

I. Any material submitted to the commission by the parties in conjunction with or relative to any notice filed pursuant to any mandatory review covered by 1VAC50-20-180 through 1VAC50-20-384, except materials presented in the context of negotiations or mediation of a confidential nature as authorized by law, shall be considered public documents and made available by the submitting party commission for review by any other interested party or by the public. Any interested party or member of the public may request copies of any such material which shall be provided promptly by the party submitting the material to the commission at a price sufficient to cover the expense incurred from the commission or its staff in accordance with the Department of Housing and Community Development's Freedom of Information Act policies. In addition, the commission will post all public documents, as defined in this subsection, on its website.

J. Each document, exhibit, or other material submitted to the commission shall bear a title, the date of preparation, a detailed citation of the sources from which all data are obtained, and the name of the entity which that submitted the document, exhibit, or other material. All material submitted to the commission by a local government shall be, as nearly as practicable, in the same form as the material would subsequently be submitted to the courts. The commission may refuse to accept for review and consideration any exhibit, document, or other material unless the person preparing it, or a representative of the entity responsible for its submission, shall be is willing to appear before the commission for purposes of answering questions concerning the material.

K. Unless otherwise requested, wherever the regulations of the commission call for the projection of data, the projections should be made for a 10-year period. In each instance where projections are given, the method and bases of the projections should be indicated.

L. All data, exhibits, documents, or other material submitted to the commission on the initiative of a party or pursuant to a request from the commission shall be certified by the submitting party as to (i) as to source and (ii) as to the fact that the material is correct within the knowledge of the submitting party.

M. Any party filing notice or making submissions to the commission shall provide at least eight copies of all submissions, unless the commission agrees that a lesser number would be sufficient for its review and analysis. The commission may make provisions for the electronic filing of submissions, including facsimile.

N. At any time during the course of the commission's review of any issue, the commission's staff may solicit additional data, documents, records, or other materials from the parties as is deemed necessary for proper analysis of any issue. Where such materials are solicited from a party, the commission's staff, where practicable, shall make the request in writing, with copies of the request being provided to other principal parties. Copies of all materials submitted to the commission pursuant to this chapter shall concurrently be provided to each principal party or shall be made available to the parties in a manner acceptable to the commission. The commission shall be given written notification by the submitting party of each principal party provided a copy of the material or of arrangements proposed for making the material available to the principal parties.

O. The commission shall not be limited in its analysis of any issue to the materials submitted by the parties but shall undertake independent research as it deems appropriate in order to assure ensure a full and complete investigation of each issue.

P. The commission shall request all parties to cooperate fully in the development and timely sharing of data relative to the issue under review. The commission considers the cooperation among parties vital to the discharge of its responsibilities.

Q. The commission may allow the parties to correct the data, exhibits, documents, or other material submitted to the commission prior to the date established for the closing of the record pursuant to 1VAC50-20-640 B. Where corrections are authorized pursuant to this chapter, copies of all corrections shall be provided by the submitting party to all principal parties. If, in the commission's judgment, the corrections are of a substantive nature as to significantly alter the scope or character of the issue under review, the commission may delay its proceedings for an appropriate amount of time to provide an opportunity for other parties to respond to the corrected data, exhibits, documents, or other material.

R. Following the receipt of a notice, the commission may request the party initiating the proposed action to prepare and file testimony in support of the proposed action. The testimony of the party initiating the proposed action may refer to all data, exhibits, documents, or other material previously submitted to the commission or filed with the testimony. In all proceedings in which the initiating party files testimony, the affected party shall be permitted and may be requested by the commission to file, on or before a date established by the commission, testimony in response to the proposed action. The testimony of the affected party may refer to all data, exhibits, documents, or other material previously submitted to the commission or filed with the testimony. Any affected party who that chooses not to file testimony by the date established by the commission may not thereafter present testimony except by permission of the commission, but may otherwise fully participate in the proceeding and engage only in cross-examination of the testimony of other parties. Failure to comply with the directions of the commission, without good cause shown, may result in rejection of the testimony by the commission. The commission may permit the parties to correct or supplement any prepared testimony before or during the oral presentations as called for in 1VAC50-20-620. Eight copies of prepared testimony shall be filed unless otherwise specified by the commission.

1VAC50-20-540. Annexation.

In developing its findings of fact and recommendations with respect to a proposed annexation, the commission shall consider the relevant information, data, and factors listed in this section. Any city or town filing notice with the commission that it proposes to annex territory shall submit with the notice data and other evidence responsive to each element listed in this section that it the city or town deems relevant to the proposed annexation. Any voters or property owners filing notice pursuant to § 15.2-2907 of the Code of Virginia with the commission seeking annexation to a municipality shall submit with the notice data and other evidence responsive to each element listed in this section that they those parties deem relevant to the proposed annexation, except that subdivision 1 of this section is required to be included in the notice filed with the commission.

1. A written metes and bounds description of the boundaries of the area proposed for annexation having, as a minimum, sufficient certainty to enable a layman layperson to identify the proposed new boundary. The description may make reference to readily identifiable monuments, such as public roads, rivers, streams, railroad rights of way, and similar discernible physical features.

2. A map showing (i) the boundaries of the area proposed for annexation and their geographic relationship to existing political boundaries; (ii) identifiable unincorporated communities; (iii) major streets, highways, schools, and other major public facilities; (iv) significant geographic features, including mountains and bodies of water; (v) existing uses of the land, including residential, commercial, industrial, and agricultural; and (vi) information deemed relevant as to the possible future use of the property within the area sought for annexation.

3. A land-use table showing both the acreage and percentage of land currently devoted to the various categories of land use in the municipality, the county, and the area proposed for annexation.

4. The past, the estimated current, and the projected population of the municipality, the county affected by the proposed annexation, and the area of the county proposed for annexation.

5. The past, the estimated current, and the projected future number of public school students enrolled in the public schools and the number of school-age children living in the municipality, the county affected by the proposed annexation, and the area of the county proposed for annexation.

6. The assessed property values, by major classification, and if appropriate, the ratios of assessed values to true values for real property, personal property, machinery and tools, merchants' capital, and public service corporation property for the current year and the preceding 10 years for the municipality and the county affected by the proposed annexation, and similar data for the current year for the area of the county proposed for annexation.

7. The current local property and nonproperty tax rates and the tax rates for the preceding 10 years, applicable within the municipality, the county affected by the proposed annexation, and the area of the county proposed for annexation.

8. The estimated current local revenue collections and intergovernmental aid, the collections and aid for the previous 10 years, and projections of the collections and aid (including tax receipts from real property, personal property, machinery and tools, merchants' capital, business and professional license, consumer utility, and sales taxes) within the municipality, and the county affected by the proposed annexation, and similar data for the past year for the area of the county proposed for annexation.

9. The amount of long-term indebtedness and the purposes for which all long-term debt has been incurred by the municipality and the county affected by the proposed annexation.

10. The need in the area proposed for annexation for urban services, including those listed in this subdivision, the level of services provided by the municipality and by the county affected by the proposed annexation, and the ability of the municipality and the county to provide the services in the area proposed for annexation:

a. Sewage treatment;

b. Water;

c. Solid waste collection and disposal;

d. Public planning;

e. Subdivision regulation and zoning;

f. Crime prevention and detection;

g. Fire prevention and protection;

h. Public recreational facilities;

i. Library facilities;

j. Curbs, gutters, and sidewalks;

k. Storm drains;

l. Street lighting;

m. Snow removal;

n. Street maintenance;

o. Schools;

p. Housing; and

q. Public transportation.

11. Efforts made by the municipality and the county affected by the proposed annexation to comply with applicable state policies with respect to environmental protection, public planning, education, public transportation, housing, and other state service policies promulgated by the General Assembly.

12. The community of interest which that may exist (i) may exist between the municipality and the area proposed for annexation and its citizens and or (ii) may exist between that area and its citizens and the rest of the county; the. The term "community of interest" may include consideration of natural neighborhoods, natural and manmade boundaries, the similarity of service needs, and economic and social bonds.

13. Any arbitrary prior refusal to cooperate by the governing body of the municipality or of the county affected by the proposed annexation, if such has occurred, to enter into cooperative agreements providing for joint activities that would have benefited citizens of both localities.

14. The need for the municipality to expand its tax resources, including its real estate and personal property tax base.

15. The need of the municipality to obtain land for industrial, commercial, and residential development.

16. The adverse effect on the county affected by the proposed annexation resulting from the loss of areas suitable and developable for industrial, commercial, or residential use.

17. The adverse effect on the county of the loss of tax resources and public facilities necessary to provide services to those persons in the remaining areas of the county after the proposed annexation.

18. The adverse impact of the proposed annexation on agricultural operations located in the area proposed for annexation.

19. The terms and conditions upon which the municipality proposes to annex, its plans for the improvement of the annexed territory during the 10-year period following annexation, including the extension of public utilities and other services, and the means by which the municipality shall finance the improvements and extension of services.

20. Data pertinent to a determination of the appropriate financial settlement between the municipality and the affected county as required by § 15.2-3211 of the Code of Virginia and other applicable provisions of the Code of Virginia.

21. The commission's staff shall endeavor to assist parties contemplating or involved in annexation proceedings by identifying additional data elements considered by the commission to be relevant in the disposition of annexation issues.

1VAC50-20-550. Partial county immunity.

In developing its findings of fact and recommendations with respect to a proposed petition for partial immunity, the commission shall consider the relevant information, data, and factors listed in this section. Any county filing notice with the commission that it proposes to seek immunity for a portion of its territory shall submit with the notice data and other evidence responsive to each element listed in this section that it the county deems relevant to the proposed petition for partial immunity.

1. A written metes and bounds description of the area for which immunity is sought having, as a minimum, sufficient certainty to enable a layman layperson to identify the proposed immunity areas. The description may make reference to readily identifiable monuments, such as public roads, rivers, streams, railroad rights of way, and similar discernible physical features.

2. A map or maps showing: (i) the boundaries of the area proposed for immunity and their geographic relationship to existing political boundaries; (ii) identifiable unincorporated communities; (iii) major streets, highways, schools, and other major public facilities; (iv) significant geographic features, including mountains and bodies of water; (v) existing uses of the land, including residential, commercial, industrial, and agricultural; and (vi) information deemed relevant as to the possible future use of the property within the area for which immunity is sought.

3. A land-use table showing both the acreage and percentage of land currently devoted to the various categories of land use in the county, the affected city, and the area proposed for immunity.

4. The estimated current and projected population and population density of the areas for which immunity is sought.

5. The urban services, including but not limited to those listed below in this subdivision, provided in the area for which immunity is sought and the type and level of services in relation to those furnished by the city from which immunity is sought:

a. Sewage treatment;

b. Water;

c. Solid waste collection and disposal;

d. Public planning;

e. Subdivision regulation and zoning;

f. Crime prevention and detection;

g. Fire prevention and protection;

h. Public recreational facilities;

i. Library facilities;

j. Curbs, gutters, sidewalks;

k. Storm drains;

l. Street lighting;

m. Snow removal;

n. Street maintenance;

o. Schools;

p. Housing; and

q. Public transportation.

6. Efforts made by the county to comply with applicable state policies with respect to environmental protection, public planning, education, public transportation, housing, and other state service policies promulgated by the General Assembly.

7. The community of interest that: (i) may exist between the area for which immunity is sought and the remainder of the county; (ii) the community of interest which that may exist between that area and the city from which immunity is sought; and (iii) the relative strength of the community of interests.

8. Any instance in which either the county or the affected city has arbitrarily refused to cooperate in the joint provision of services.

9. Whether the proposed grant of immunity would substantially foreclose a city of 100,000 population or less from expanding its boundaries by annexation.

10. The commission's staff shall endeavor to assist localities contemplating or involved in partial immunity proceedings by identifying the additional data elements considered by the commission to be relevant in the disposition of partial immunity issues.

1VAC50-20-560. Town-county agreements defining annexation rights.

In developing its findings of fact and recommendations with respect to a proposed town-county annexation agreement, the commission shall consider the relevant information, data, and factors listed in this section. Any town or county presenting proposed annexation agreements to the commission under the provisions of § 15.2-3231 of the Code of Virginia shall submit with the proposed agreement data and other evidence responsive to each element listed in this section that it the town or county deems relevant.

1. A written metes and bounds description of those areas of the county made eligible for annexation under the proposed agreement having as a minimum, sufficient certainty to enable a layman layperson to identify those areas. The description may make reference to readily identifiable monuments such as public roads, rivers, streams, railroad rights of way, and similar discernible physical features.

2. A map showing (i) the boundaries of the various areas eligible for annexation under the proposed agreement and their relationship to existing political boundaries; (ii) identifiable unincorporated communities; (iii) major streets, highways, schools, and other major public facilities; (iv) significant geographic features, including mountains and bodies of water; (v) existing uses of the land, including residential, commercial, industrial, and agricultural; and (vi) information deemed relevant as to the possible future use of the property in the areas affected by the proposed agreement.

3. A land-use table showing both the acreage and percentage of land currently devoted to the various categories of land use in the town, the county, and the areas of the county affected by the agreement.

4. The past, the estimated current, and the projected population of the town, the county, and those areas of the county affected by the proposed agreement.

5. The past, the estimated current, and the projected number of public school students enrolled in the public schools and the number of school-age children living in the town, the county, and those areas of the county affected by the proposed agreement.

6. The assessed property values, by major classification and, if appropriate, the ratios of assessed values to true values for real property, personal property, machinery and tools, merchants' capital, and public service corporation property for the current and preceding 10 years for the town, and the county, and similar data for the current year in those areas of the county affected by the proposed agreement.

7. The need of the municipality to expand its tax resources, including its real estate and personal property tax base.

8. The need of the municipality to obtain land for industrial, commercial, and residential development.

9. The current and prospective need for additional urban services in the areas of its county subject to annexation under the agreement.

10. Plans for the immediate and future improvement of areas annexed under the terms of the agreement, including the extension of public utilities and other services.

11. The commission's staff shall endeavor to assist localities contemplating or involved in town-county agreements defining annexation rights by identifying additional data elements considered by the commission to be relevant in the disposition of the issues.

1VAC50-20-570. Town incorporation.

In developing its findings of fact and recommendations with respect to a proposed town incorporation, the commission shall consider the relevant information, data, and factors listed in this section. Parties Any party filing notice with the commission that they propose the party proposes to have a community incorporated as a town, or whose petition for incorporation has been referred to the commission by the court pursuant to § 15.2-3601 of the Code of Virginia, shall submit with such notice or subsequent to the court referral data and other evidence responsive to each element listed in this section that they deem the party deems relevant to the proposed incorporation.

1. A petition signed by not fewer than 100 duly qualified voters residing within the boundaries of the proposed town supporting the proposed incorporation.

2. A written metes and bounds description of the area proposed for incorporation as a town having, as a minimum, sufficient certainty to enable a layman layperson to identify the proposed town boundary. The description may make reference to readily identifiable monuments, such as public roads, rivers, streams, railroad rights of way, and similar discernible physical features.

3. A map showing (i) the boundaries of the proposed town and their relationship to existing political boundaries; (ii) identifiable unincorporated communities; (iii) major streets, highways, schools, and other major public facilities; (iv) significant geographic features, including mountains and bodies of water; and (v) existing uses of the land, including residential, commercial, industrial, and agricultural.

4. A land-use table showing both the acreage and percentage of land currently devoted to the various categories of land use in the area proposed for incorporation.

5. The past, the estimated current, and the projected population of the area proposed for incorporation and the county within which the town would be situated.

6. Information indicating (i) why the proposed incorporation is desired and in the interest of the inhabitants; (ii) how the general good of the community is served by the incorporation; and (iii) why the services needed within the proposed town cannot be provided by the establishment of a sanitary district, through the extension of existing county services, or by other arrangements provided by law.

7. The commission shall endeavor to assist communities contemplating or involved in proposed town incorporations by identifying additional data elements considered by the commission to be relevant in the disposition of incorporation issues.

1VAC50-20-580. Town-city transitions.

In developing its findings of fact and recommendations with respect to a proposed town to city transition, the commission shall consider the relevant information, data, and factors listed in this section. Any town filing notice with the commission that it proposes to become a city shall submit with the notice data and other evidence responsive to each element listed in this section that it the town deems relevant to the proposed transition.

1. A written metes and bounds description of the boundaries of the proposed city having, as a minimum, sufficient certainty to enable a layman layperson to identify the proposed city boundary. The description may make reference to readily identifiable monuments, such as public roads, rivers, streams, railroad rights of way, and similar discernible physical features.

2. A map or maps showing: (i) the boundaries of the proposed city and their geographic relationship to existing political boundaries; (ii) identifiable unincorporated communities; (iii) major streets, highways, schools, and other major public facilities; (iv) significant geographic features, including mountains and bodies of water; (v) existing uses of the land, including residential, commercial, industrial, and agricultural; and (vi) information deemed relevant as to the possible future use of the property within the proposed city.

3. A land-use table showing both the acreage and percentage of land currently devoted to the various categories of land use in the proposed city.

4. The past, the estimated current, and the projected population of the proposed city and the county affected by the proposed transition.

5. The past, the estimated current, and the projected future number of public school students enrolled in the public schools and the number of school-age children living in the proposed city and the county affected by the proposed transition.

6. The assessed values, by major classification and, if appropriate, the ratios of assessed values to true values for real property, personal property, machinery and tools, merchants' capital, and public service corporation property for the current year and the preceding 10 years for the county and within the proposed city.

7. The current local property and nonproperty tax rates, and the tax rates for the preceding 10 years, applicable within the county and the proposed city.

8. The estimated current local revenue collections and intergovernmental aid, the collections and aid for the previous 10 years, and projections of the collections and aid, including tax receipts from real property, personal property, machinery and tools, merchants' capital, business and professional license, consumer utility, and sales taxes, within the county and the proposed city.

9. The amount of long-term indebtedness and the purposes for which that long-term debt has been incurred by the municipality and the county affected by the proposed transition.

10. The current type and level of urban services provided by the town, the additional services to be provided and the additional costs to be borne by the proposed city, and the means by which the proposed city shall finance the additional services and costs.

11. The fiscal capacity of the town to function as an independent city and to provide appropriate urban services.

12. The effect and impact of the proposed transition on the ability of the county to meet the service needs of its remaining population and the means by which any substantial impairment of the county's ability to meet those needs shall be offset.

13. The effect of the proposed transition on compliance with and the promotion of applicable state policies with respect to environmental protection, public planning, education, public transportation, housing, and other state service policies declared by the General Assembly.

14. Data pertinent to a determination of the appropriate financial settlement as required by § 15.2-3829 and other applicable provisions of the Code of Virginia.

15. The commission's staff shall endeavor to assist localities contemplating or involved in town-city transition proceedings by identifying additional data elements considered by the commission to be relevant in disposition of town to city transition issues.

1VAC50-20-590. County-city transitions.

In developing its findings of fact and recommendations with respect to a proposed county to city transition, the commission shall consider the relevant information, data, and factors listed in this section. Any county filing notice with the commission that it proposes to become a city shall submit with the notice data and other evidence responsive to each element listed in this section that it the county deems relevant to the proposed transition.

1. A map showing (i) the location of all towns situated within the county; (ii) all adjoining and adjacent localities; (iii) identifiable unincorporated communities within the county; (iv) the population density of the various areas of the county; (v) the areas of the county served by urban services; (vi) major streets, highways, schools, and other major public facilities; (vii) significant geographic features, including mountains and bodies of water; (viii) existing uses of the land, including residential, commercial, industrial, and agricultural; and (ix) information deemed relevant as to the possible future use of the property within the county.

2. A land-use table showing both the acreage and percentage of land currently devoted to the various categories of land use in the county.

3. The past, the estimated current, and the projected future population of the county, each town within the county, and of the major densely populated unincorporated communities within the county.

4. The past, the estimated current, and the projected future number of public school students enrolled in the public schools and the number of school-age children living in the county and in each town within the county.

5. The assessed values, by major classification and, if appropriate, the ratios of assessed values to true values for real property, personal property, machinery and tools, merchants' capital, and public service corporation property for the current year and the preceding 10 years for the county and each town within the county.

6. The current local property and nonproperty tax rates, and the tax rates for the preceding 10 years, within the county and all towns within the county.

7. The estimated current local revenue collections and intergovernmental aid, the collections and aid for the previous 10 years, and projections of the collections and aid (including tax receipts from real property, personal property, machinery and tools, merchants' capital, business and professional license, consumer utility, and sales taxes) within the county and within each town within the county.

8. The amount of long-term indebtedness of the county and each town within the county and the amount and purpose for which that debt has been incurred.

9. Data regarding (i) the urban-type services presently provided by the county; (ii) the level of those services; (iii) the areas of the county served by those services; (iv) the additional services to be provided and the additional cost to be borne by the proposed city; and (v) the means by which the proposed city shall finance the additional services and costs.

10. The fiscal capacity of the county to function as an independent city and to provide appropriate services.

11. The impact of the proposed transition on compliance with and the promotion of applicable state policies with respect to environmental protection, public planning, education, public transportation, housing, and other state service policies declared by the General Assembly.

12. The commission's staff shall endeavor to assist localities contemplating or involved in proposed county-city transitions by identifying additional data elements considered by the commission to be relevant in the disposition of county to city transition issues.

1VAC50-20-600. Boundary line adjustment.

In developing its findings of fact and recommendations with respect to a proposed boundary line adjustment, the commission shall consider the relevant information, data, and factors listed in this section. The localities petitioning for a boundary line adjustment under the provisions of § 15.2-3109 of the Code of Virginia shall, separately or jointly, at the time they the localities initiate such petition to the court, submit to the commission data and other evidence responsive to each element listed in this section that is relevant to the boundary line adjustment.

1. A written metes and bounds description of the precise segment of the boundary for which an adjustment is sought having, as a minimum, sufficient certainty to enable a layman layperson to identify the boundary segment in question. The description may make reference to readily identifiable monuments, such as public roads, rivers, streams, railroad rights of way, and similar discernible physical features.

2. A map or maps showing: (i) the precise segment of the boundary that the parties agree should be adjusted; (ii) identifiable unincorporated communities; (iii) major streets, highways, schools, and other major public facilities; (iv) significant geographic features, including mountains and bodies of water; (v) existing uses of the land, including residential, commercial, industrial, and agricultural; and (vi) information deemed relevant as to the possible future use of the land.

3. The estimated past, the estimated current, and the projected future population and population density of all areas adjacent to the segment of the boundary proposed for adjustment and of other areas possibly affected by the proposed boundary line adjustment.

4. A land-use table showing both the acreage and percentage of land currently devoted to the various categories of land use in all areas adjacent to the segment of the boundary proposed for adjustment and in other areas possibly affected by the proposed boundary line adjustment.

5. The past, the estimated current, and the projected future number of public school students enrolled in the public schools and the number of school-age children living in all areas adjacent to the segment of the boundary proposed for adjustment and in other areas possibly affected by the proposed boundary line adjustment.

6. The assessed and true real property values, by major classification of those areas adjacent to the segment of the boundary proposed for adjustment and of any other area possibly affected by the proposed adjustment and other fiscal data relative to the issue.

7. Maps indicating the principal alternative boundary line adjustments which that have been considered by the parties and a brief statement as to how each alternative adjustment would promote the effective and efficient provision of public services.

8. Information as to why the proposed boundary line adjustment is sought by the parties.

9. The commission's staff shall endeavor to assist localities contemplating or involved in proposed boundary line adjustments by identifying additional data elements considered by the commission to be relevant in the disposition of boundary line adjustment issues.

1VAC50-20-601. City-town transitions.

In developing its findings of fact and recommendations with respect to a proposed transition of a city to town status, the commission shall consider the relevant information, data, and factors listed in this section. Any city filing notice with the commission that it proposes to become a town or any petition for the transition of a city to town status that has been referred to the commission by the court pursuant to § 15.2-4104 of the Code of Virginia should be accompanied by data and other evidence responsive to each element listed in this section that is relevant to the proposed transition.

1. Map or maps A map showing (i) the boundaries of the city proposed for transition and their geographic relationship to other political boundaries; (ii) identifiable unincorporated communities; (iii) major streets, highways, schools, and other major public facilities; (iv) significant geographic features, including mountains and bodies of water; (v) existing uses of the land within the city, including residential, commercial, industrial, and agricultural; and (vi) information deemed relevant as to the possible future use of the land within the city.

2. The past, the estimated current, and the projected future population and population of the city and the county affected by the proposed transition, and the estimated density of the city and the affected county.

3. A land-use table showing both the acreage and percentage of land currently devoted to the various categories of land use in the city and the county affected by the proposed transition.

4. The past, the estimated current, and a five-year projection of the future number of public school students enrolled in the public schools and the number of school-age children living in the city and the county affected by the proposed transition.

5. The assessed values, by major classification for real property, personal property, machinery and tools, merchants' capital, and public service corporation property for the current year and the preceding 10 years for the city and for the county affected by the proposed transition.

6. The current local property and nonproperty tax rates, and the rates for the preceding 10 years, applicable within the city and the county affected by the proposed transition.

7. The estimated current local revenue collections (including receipts from real property, personal property, machinery and tools, consumer utility, sales taxes, etc., and receipts from nontax sources) and intergovernmental aid, and the collections and aid for the preceding 10 years, for the city and the county affected by the proposed transition.

8. The identification of those services performed by the city that are proposed for assumption by the county as a result of the proposed transition, the number of customers or recipients of each service within the city that would be served by the county subsequent to the transition, and the aggregate annual cost to the county for the provision of services within the city.

9. The identification of those services that would be provided by the town subsequent to the proposed reversion, the number of recipients of each service within the municipality, and the aggregate annual cost to the proposed town for the provision of services.

10. The identification of those city-owned facilities that are proposed for transfer to the county, the identification of those that would be retained by the proposed town, and the current fair market value and the outstanding city debt attributable to each facility.

11. The current outstanding debt of the city, the applicable portion of debt stated as a percentage of the city's constitutional debt limit, and the current schedule for the retirement of all municipal debt.

12. The identification of that portion of the city's indebtedness that is proposed for transfer to the county and the purposes for which the debt has been incurred.

13. Estimates of the annual amount of tax and nontax revenues to be collected by the county within the municipality subsequent to the proposed transition.

14. Estimates of the annual additional amount of intergovernmental aid to be received by the county as a result of the proposed transition.

15. An estimate of the net aggregate fiscal impact of the proposed transition on the county during the initial year subsequent to the transition and during each of the ensuing five years.

16. An estimate of the adjustment required in the county's real property tax rate, assuming that the net aggregate fiscal impact on the county resulting from the transition is addressed solely by an adjustment in the rate.

17. An estimate of the net aggregate fiscal impact of the proposed transition on the city during the initial year subsequent to the transition and during each of the ensuing five years.

18. An estimate of the adjustment required in the municipality's real property tax rate, assuming that the net aggregate fiscal impact on the city resulting from the transition is addressed solely by an adjustment in the rate.

19. The effect of the proposed transition on compliance with and the promotion of applicable state policies with respect to environmental protection, public planning, education, public transportation, housing, and other state service policies declared by the General Assembly.

20. Specification of the terms and conditions that should be established by the court to balance the equities between the city and the county; protect the best interests of the affected localities, their residents, and the Commonwealth; and ensure an orderly transition of the city to town status.

21. The commission's staff shall endeavor to assist the parties involved in proceedings for the transition of a city to town status by identifying additional data elements considered by the commission to be relevant in the disposition of city to town transition issues.

1VAC50-20-605. County-city consolidations.

In developing its findings of fact and recommendations with respect to a proposed consolidation of a county and a city that would establish an independent city, the commission shall consider the relevant information, data, and factors listed in this section. Local governments Any local government filing notice proposing the consolidation of a city and a county to establish an independent city, or any committee of citizens that has been appointed by the circuit court to act for and in lieu of a governing body to perfect a consolidation agreement pursuant to § 15.2-3531 of the Code of Virginia shall, separately or jointly, submit to the commission data and other evidence responsive to each element listed in this section that they deem the local government or committee deems relevant to the proposed consolidation.

1. Copy of the consolidation agreement.

2. A map showing (i) the location of all municipalities situated within the proposed consolidated city; (ii) all adjoining and adjacent localities; (iii) identifiable unincorporated communities within the proposed consolidated city; (iv) major streets, highways, schools, and other major public facilities; (v) significant geographic features, including mountains and bodies of water; (vi) existing uses of the land, including residential, commercial, industrial, and agricultural; and (vii) information deemed relevant as to the possible future use of the property within the proposed consolidated city and as to its future viability.

3. The past, the estimated current, and the projected population of each locality proposing to consolidate.

4. The population density of the proposed consolidated city based on the most recent United States decennial census or as estimated by the Weldon Cooper Center for Public Service at the University of Virginia.

5. A land-use table showing both the acreage and percentage of land currently devoted to the various categories of land use in the proposed consolidated city.

6. The estimated current and a five-year projection of the future number of public school students enrolled in the public schools in each locality proposing to consolidate and the number of school-age children living in the proposed consolidated city.

7. The assessed values, by major classification for real property, personal property, machinery and tools, merchants' capital, and public service corporation property for the current year and the preceding 10 years for the county and the city proposing to consolidate and the proposed consolidated city.

8. The estimated local property and nonproperty tax rates that will be applicable within the proposed consolidated city.

9. The estimated local revenue collections, including tax receipts from real property, personal property, machinery and tools, merchants' capital, business and professional license, consumer utility, and sales taxes and intergovernmental aid, such collections and aid for the preceding 10 years, and projections of the collections and aid within each of the localities proposing to consolidate.

10. The amount of long-term indebtedness of each of the localities proposing to consolidate and the amount and purpose for which that debt has been incurred.

11. Data regarding (i) the urban-type services presently provided by each of the localities proposing to consolidate, (ii) the level of those services to be provided in the proposed consolidated city, (iii) the additional services to be provided and the additional cost to be borne by the proposed consolidated city, and (iv) the means by which the proposed consolidated city shall finance the additional services and costs.

12. The fiscal capacity of the proposed consolidated city to function as an independent city and to provide appropriate services.

13. The impact of the proposed consolidation on compliance with and the promotion of applicable state policies with respect to environmental protection, public planning, education, public transportation, housing, and other state service policies declared by the General Assembly.

14. The impact of the proposed consolidation on the interest of the Commonwealth in promoting strong and viable units of government in the area.

15. The commission's staff shall endeavor to assist the parties involved in proceedings for the consolidation of a county and a city that would establish an independent city by identifying additional data elements considered by the commission to be relevant in the disposition of city-county consolidation issues.

1VAC50-20-610. Voluntary settlement agreements.

In developing its findings of fact and recommendations with respect to a proposed agreement developed under the authority of § 15.2-3400 of the Code of Virginia, the commission shall consider the relevant information, data, and factors listed in this section. Local governments submitting a proposed agreement for review shall, separately or jointly, submit to the commission data and other evidence responsive to each element listed in this section that they the local governments deem relevant to the proposed voluntary settlement agreement.

1. If the agreement proposes a municipal boundary expansion, submissions should include data and evidence responsive to the relevant provisions of 1VAC50-20-540.

2. If the agreement proposes the immunization of areas of a county from annexation or the incorporation of new cities, submissions should include data and evidence responsive to the relevant provisions of 1VAC50-20-550.

3. If the agreement proposes the incorporation of a town, submissions should include data and evidence responsive to the relevant provisions of 1VAC50-20-570.

4. If the agreement proposes the transition of a town to city status, submissions should include data and evidence responsive to the relevant provisions of 1VAC50-20-580.

5. If the agreement proposes the transition of a county to city status, submissions should include data and evidence responsive to the relevant provisions of 1VAC50-20-590.

6. If the agreement proposes the transition of a city to town status, submissions should include data and evidence responsive to the relevant provisions of 1VAC50-20-601.

7. If the agreement proposes a revenue-sharing plan or similar arrangement by which jurisdictions will share the tax or revenue sources of an area, submissions should include:

a. A description of the plan;

b. Calculations indicating for each locality the projected future contributions to the plan for the next five-year period;

c. Each locality's projected net annual receipts or net annual contributions to the plan for the next five-year period;

d. Each locality's annual expenditures for the past five years and its projected annual expenditures for the next five years by general operating, school, and debt service categories;

e. Each locality's real estate and public service corporation property assessed values for the past five years and projected for the next five-year period;

f. Each locality's annual revenue for the past five years and projected for the next five-year period (exclusive of receipts from or payments to the economic growth sharing plan) by source and type;

g. Each locality's anticipated major capital needs for the next five-year period; and

h. Other information indicating the general equity of the proposed plan for each participating locality.

8. The commission's staff shall endeavor to assist localities contemplating or involved in the development of voluntary settlement agreements under the authority of § 15.2-3400 of the Code of Virginia by identifying additional data elements considered by the commission to be relevant to the commission's review of such agreements.

1VAC50-20-612. Voluntary economic growth-sharing agreements.

In developing its findings of fact and recommendations with respect to a proposed voluntary economic growth-sharing agreement developed under the authority of § 15.2-1301 of the Code of Virginia, the commission shall consider the relevant information, data, and factors listed in this section. Local governments submitting such a proposed agreement for review shall, separately or jointly, submit to the commission data and other evidence responsive to each element listed in this section that they the local governments deem relevant to the proposed agreement.

1. A copy of the proposed agreement and a description of the economic growth-sharing plan.

2. A description of the financial investment or other contributions which that each participating locality will make to the project(s) project envisaged under the agreement.

3. Projections of each participating locality's net annual receipts or net annual contributions to the project(s) project specified in the agreement for the next 10-year period, or for a lesser or greater period as deemed appropriate.

4. A description of any dedication or restriction on the use of funds generated by the project(s) project specified in the agreement for the participating localities.

5. Calculations indicating the estimated impact of the project(s) project proposed in the agreement on the annual operating expenditures of each participating jurisdiction for the next 10-year period, or for a lesser or greater period as deemed appropriate.

6. Calculations indicating the estimated impact of the project(s) project proposed in the agreement on the current and prospective capital expenditures of each participating jurisdiction over the course of the next 10-year period, or over a lesser or greater period as deemed appropriate.

7. Calculations indicating the estimated impact of the project(s) project proposed in the agreement on the debt and annual debt service of each participating jurisdiction over the course of the next ten 10-year period, or over the course of a lesser or greater period as deemed appropriate.

8. Information indicating the general equity of the proposed plan for each participating locality.

9. Other information which that would assist the commission in analyzing the "probable effect on the people" in the participating jurisdictions of the proposed agreement.

10. The commission's staff shall endeavor to assist localities contemplating or involved in the development of voluntary economic growth-sharing agreements under the authority of § 15.2-1301 of the Code of Virginia by identifying additional data elements considered by the commission to be relevant to the commission's review of such agreements.

1VAC50-20-616. Order defining a town's future annexation rights.

In developing its order defining the future annexation rights of a town pursuant to § 15.2-3234 of the Code of Virginia, the commission shall consider the relevant information, data, and factors listed in this section. Any petition referred to the commission requesting an order establishing a town's future annexation rights should be accompanied by data and other evidence responsive to each element listed in this section that the town deems relevant to the issue.

1. Information regarding the inability of the town and the county to reach a voluntary agreement as to the future annexation rights of the town.

2. Terms and conditions of a proposed order establishing the town's future annexation rights.

3. Data and evidence responsive to the relevant provisions of 1VAC50-20-540.

4. The commission's staff shall endeavor to assist localities involved in proceedings concerning an order defining a town's future annexation rights by identifying additional data elements considered by the commission to be relevant in the disposition of such issues.

1VAC50-20-620. Oral presentations by parties.

A. In the course of its analysis of any issue, the commission may schedule oral presentations for purposes of permitting the parties to amplify their submissions, to critique and to offer comment upon the submissions and evidence offered by other parties, and to respond to questions relative to the issue from the commission. The presentations, if scheduled, shall extend for a period of time as the commission may deem appropriate.

B. If oral presentations are scheduled by the commission, the chair shall select, subsequent to the receipt of recommendations from the parties, an appropriate site for the presentations. Recommendations by the parties regarding the sites should be based upon the adequacy of space for the display and movement of exhibits; the adequacy of seating arrangements for the commission, its the commission's staff, representatives of the parties, a court reporter, and the public; the adequacy of security at the site to permit materials to be left unattended during recesses; and the adequacy of the acoustical acoustic characteristics of the site to facilitate communications or the availability of a public address system.

C. Local governments or other parties desiring to present exhibits or data requiring special equipment should be prepared to provide such special equipment.

D. The commission may, where it deems appropriate, consolidate two or more interlocal issues before it for purpose of oral presentations.

E. The commission shall, within the requirements of law, conduct the oral presentations in the manner it considers best suited for reaching a decision in the best interest of the parties and in the best interest of the Commonwealth.

F. The chair, or other member the commission designated to preside during any oral presentations, may allocate time to the various parties as the chair or presiding member deems appropriate. The allocation of time shall be based upon the needs of the commission to review data, to examine witnesses, and to obtain an understanding of the relevant factors affecting the issue under review.

G. The sequence in which testimony will be received by the commission during any oral presentations shall be established by the chair or presiding member, but shall generally be as follows:

1. A brief opening statement by each party, if desired;

2. Presentation by the party initiating the issue before the commission;

3. Presentations by the local governments immediately affected by the action proposed by the initiating party, in an order established by the chair or presiding member;

4. Presentations by other parties, in an order established by the chair or presiding member;

5. Rebuttal where requested by a party and agreed to by the chair or presiding member.

H. The chair or presiding member may, to the extent the chair or presiding member deems appropriate, permit parties to question witnesses regarding submissions, their testimony, or other facts relevant to the issues before the commission. Where a party is represented by counsel, such questioning may be conducted by counsel.

Where the parties have prefiled testimony at the commission's request pursuant to 1VAC50-20-390 R, the questioning of individuals whose testimony has been prefiled shall be limited to a cross-examination of such testimony. The commission may accept additional oral testimony from individuals whose testimony has been prefiled during the presentations where good cause is shown. Where additional oral testimony is accepted by the commission, the commission shall provide an opportunity for other parties to respond to the testimony and to cross-examine the individual offering such testimony.

I. The chair or presiding member may, during or at the conclusion of the oral presentations, permit or request oral argument on the issues before the commission.

J. The commission, and its staff, may question any witness or representative of any party during the oral presentations regarding any submission, testimony, or other fact which that the commission considers relevant to the issues before it. The chair or presiding member shall endeavor to call for commission questioning in a manner designed to expedite the presentations.

K. The commission may accept depositions from persons unable to attend an oral presentation. Depositions shall only be accepted under conditions deemed acceptable by the commission, including conditions assuring ensuring an opportunity for all affected local governments to be present and to examine adequately examine the witness during the taking of depositions.

L. The parties or their counsel shall be expected to confer in advance of the time and date set for presentations in order to inform one another of their prospective witnesses and the order of their the anticipated appearance of the witnesses. All material, data, or exhibits proposed for presentation to the commission during the oral presentations and not previously will be made available to the other parties shall be exchanged or made available to the parties prior to presentation to the commission, subject to the qualifications in subsection M of this section and the public and on the commission's website whenever possible.

M. The commission requires that all materials, data, and exhibits be presented to it and made available to other parties in advance of the commencement of the onsite component of the commission's review. The commission may accept additional materials, data, and exhibits during the onsite component of its review upon unanimous consent of the members present. Where late submissions are accepted by the commission, the commission shall provide an opportunity for other parties to respond to the filings.

N. The commission may record by mechanical device, unless other recording arrangements are made by the parties, all testimony given during the oral presentations, but shall prepare a transcript of the recording only when deemed appropriate. The commission shall provide, upon request, any party a duplicate copy of the transcript or recording, if made, at a price sufficient to cover the expense incurred in accordance with the Department of Housing and Community Development's Freedom of Information Act policies. In lieu of recording by the commission, the parties may arrange to provide a court reporter at their the expense of the parties. Where a court reporter is utilized, the commission shall receive one copy of the transcript.

1VAC50-20-630. Public hearing.

A. In all cases where a public hearing is required by law, the commission shall conduct the public hearing at which any interested person or party may testify. The commission shall generally schedule the public hearing in conjunction with the oral presentations held, if any, with respect to the issue; however, public hearings regarding proposed town incorporations required pursuant to § 15.2-3601 of the Code of Virginia shall be held no sooner than 30 days after receipt of the court request for commission review.

B. Prior to holding the public hearing, the commission shall publish notice of the pending hearing as required by law.

In addition to the notice of public hearing required by this subsection, a town that is a party to an agreement defining annexation rights negotiated pursuant to § 15.2-3231 of the Code of Virginia shall give written notice of the commission's hearing at least 10 days before the hearing to the owners owner or their the owner's agent of each parcel of land included in the area proposed for annexation under the terms of the agreement. One notice sent by first-class mail to the last known address of the owners owner or their the owner's agent as shown on the current county real estate tax assessment books or current county real estate tax assessment records shall be deemed adequate compliance with this requirement, provided that the clerk of the town shall make an affidavit that the mailings have been made and file the affidavit with the commission.

C. The commission shall request the party initiating the issue before it and the other principally affected parties to place on public display in or adjacent to the office of the chief administrative officer of each principally affected local government copies of all materials which that are available to them the party and which that have been submitted to the commission for consideration with respect to the issue. The material should be made conveniently available to the public during normal working hours. The commission also encourages the parties to make available to the public other copies of the material at libraries, educational facilities, or available on their websites or at other public places in order that the public might have ample opportunity to study the material prior to the public hearing. The commission's advertisements published under subsection B of this section shall announce the availability of the material at the offices of the administrators and at other facilities as may be selected by the parties for display purposes.

D. The commission shall request the chief administrative officer (or other official) of each jurisdiction principally affected by the issue before the commission to make suitable arrangements in or adjacent to their offices the official's office for the registration of speakers at the public hearing. The commission shall furnish appropriate registration forms for that purpose. The commission's advertisements under subsection B of this section shall advise the public that registration to speak at the public hearing may be accomplished at the offices of the local administrators or, alternatively, through the offices of the commission in Richmond. The commission may also permit speakers to register at the site and at the time of the public hearing and shall request the assistance of the local administrative officers in making suitable arrangements for such registration.

E. The chair or other member of the commission designated to preside over the proceedings shall select the site for the public hearing subsequent to the receipt of recommendations from the parties. Recommendations from the parties should be based upon a site's accessibility to residents of the areas and jurisdictions principally affected, its seating capacity, the adequacy of parking facilities, the availability of a public address system, and seating arrangements permitting the commission to have proper visual contact with the public.

F. The commission shall request the parties to cooperate in the preparation of the site for the public hearing and shall request that a minimum number of maps and exhibits be placed on display at the site in order that persons any person testifying may identify their that person's residences, property, businesses, or other concerns in relation to the proposed issue.

G. The commission shall request the local jurisdiction within which the site for the public hearing is situated to make appropriate arrangements in order to assure ensure the security and the orderliness of the proceedings.

H. The chair or the presiding member shall determine the sequence of speakers at a public hearing, but the sequence shall ordinarily conform to the sequence of their the registration of speakers. The chair or presiding member may, however, vary the sequence of speakers in order that persons from all affected jurisdictions and areas, and those representing different perspectives, might have equal opportunity for the timely presentation of their comments.

I. The commission shall endeavor to allow any person or party wishing to speak at a public hearing an opportunity to do so. The chair or presiding member may establish time limits for the presentation of testimony as the chair or presiding member deems appropriate. The chair or presiding member may also rule testimony irrelevant, immaterial, or unduly repetitious. Proponents and opponents of a proposed action are encouraged to designate a chief spokesman for economy of time and for the avoidance of repetitious comment.

J. Any person or party testifying before the commission at the public hearing may extend their remarks in written form for subsequent submission. During the course of the public hearing, the commission shall establish a date by which the extended written comment must be received for consideration.

K. The commission may record by mechanical device, unless other arrangements are made, all testimony given during the public hearing but shall prepare a transcript of the recording only when it deems appropriate. The commission shall provide any person or party with a copy of the transcript or recording, if made, at a price sufficient to cover the expense incurred in accordance with the Department of Housing and Community Development's Freedom of Information Act policies. The parties may arrange to provide a court reporter, at their expense. Where a court reporter is utilized, the commission shall receive one copy of the transcript.

L. The commission may, where it deems appropriate, consolidate two or more interlocal issues for purposes of a public hearing.

1VAC50-20-640. Conclusion of mandatory reviews.

A. The commission may request or authorize the parties to an issue to submit, at a time established by the commission, a written concluding argument with proposed findings and recommendations.

B. The commission shall not accept for consideration or for inclusion in the record of a case any document, exhibit, or other material submitted after the date established by it for the close of the record. This regulation shall not preclude the commission's acceptance of data or information from any party at any time which that has been solicited by the commission or its staff.

C. The commission shall prepare an official record of all proceedings before it of such a nature and in such a manner as it deems appropriate.

D. C. The commission shall submit a written report on the issues presented to it in the manner and at such time as provided by law. The reports shall set forth findings of fact and recommendations on both the merits of a proposed action and, where appropriate and feasible, the financial aspects thereof. Copies of reports shall be made available to the parties and to members of the public requesting such that request a copy. The commission may charge a fee for copies of its reports in an amount sufficient to cover the cost of duplication, shipping, and handling accordance with the Department of Housing and Community Development's Freedom of Information Act policies and applicable law.

E. D. Subsequent to its review of a petition submitted by a town under the authority of § 15.2-3234 of the Code of Virginia, and based upon the applicable statutory standards, the commission shall enter an order granting annexation rights to the town. The order may grant the town annexation rights upon the terms proposed by the town in its petition or upon some other basis as the commission deems appropriate and consistent with law. The order shall in no event grant the town the right to annex county territory by ordinance more frequently than once every five years.

1VAC50-20-650. Statutorily invoked mediation in annexation immunity issues.

A. For purposes of this section, as the requirements in this section pertain to § 15.2-2907 E of the Code of Virginia, the following definitions shall apply:

"Initial notice" means the notice sent to the commission by a locality proposing an action pursuant to § 15.2-2907 A of the Code of Virginia.

"Annexation or partial immunity suit" or "suit" means a court proceeding intended to resolve an annexation or partial immunity dispute that is filed after the commission has issued its advisory report pursuant to § 15.2-2907 of the Code of Virginia.

B. When any county, city, or town seeks to negotiate an agreement with one or more localities relative to annexation or partial immunity under the authority granted by § 15.2-2907 E of the Code of Virginia, it shall notify the commission, and copies of the notice shall be served on all adjacent localities. The notice to the commission shall be accompanied by satisfactory evidence that the governing body of the locality giving notice supports the negotiation. Local governments negotiating under the above referenced provision of law § 15.2-2907 E of the Code of Virginia shall keep the commission advised of progress in the negotiations. If, after a hearing, the commission finds that none of the parties is willing to continue to negotiate, or if it finds, based on progress reports and with or without a hearing, that three months have elapsed with no substantial progress, it shall declare the negotiations to be terminated. Unless the parties agree otherwise, negotiations shall in any event terminate 12 months from the date the initial notice was first given to the commission of the desire to negotiate. Once the commission has declared negotiations terminated, or upon the expiration of the 12 month negotiating term or any agreed extension thereof 12 months after the commission's receipt of the initial notice, or upon any extension of the 12-month deadline agreed to by both parties, whichever comes first, no new notice to negotiate shall be filed by any party. Upon the request of the local governments negotiating under the authority of § 15.2-2907 E of the Code of Virginia, the commission, or its designee, may be requested to serve as mediator, and, in addition, the commission's staff and resources shall be available to assist the negotiating local governments. All expenses incurred by the commission and its staff in assisting with negotiations shall be borne by the parties initiating the negotiations unless otherwise agreed.

C. The commission will neither accept a notice filed under the authority granted by § 15.2-2907 E of the Code of Virginia before the initial notice is filed nor accept a notice after 12 months has passed since receipt of the initial notice, unless both parties agree to an extension.

TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Fast-Track Regulation

Title of Regulation: 2VAC5-510. Rules and Regulations Governing the Production, Processing, and Sale of Ice Cream, Frozen Desserts, and Similar Products (amending 2VAC5-510-10, 2VAC5-510-20, 2VAC5-510-30, 2VAC5-510-90, 2VAC5-510-110, 2VAC5-510-210 through 2VAC5-510-350, 2VAC5-510-390, 2VAC5-510-420 through 2VAC5-510-470, 2VAC5-510-490, 2VAC5-510-500, 2VAC5-510-510, 2VAC5-510-520, 2VAC5-510-540 through 2VAC5-510-570, 2VAC5-510-600 through 2VAC5-510-630, 2VAC5-510-650; adding 2VAC5-510-415, 2VAC5-510-505; repealing 2VAC5-510-40, 2VAC5-510-50, 2VAC5-510-130 through 2VAC5-510-190, 2VAC5-510-370, 2VAC5-510-380, 2VAC5-510-530, 2VAC5-510-640, 2VAC5-510-660).

Statutory Authority: §§ 3.2-5201 and 3.2-5212 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: January 29, 2025.

Effective Date: February 13, 2025.

Agency Contact: Pamela Miles, Program Manager, Office of Dairy and Foods, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-8899, FAX (804) 371-7792, TDD (800) 828-1120, or email pamela.miles@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board with the authority to adopt regulations in accordance with the provisions of Title 3.2 of the Code of Virginia. Section 3.2-5212 of the Code of Virginia authorizes the board to establish definitions and standards of quality and identity and to adopt and enforce regulations dealing with the issuance of permits, labeling, and sanitary standards for ice cream, ice milk, frozen custards, sherbets, water ices, related foods, other similar products, and products manufactured or sold in semblance to or as substitutes for those products.

Purpose: The proposed amendments are essential to the protection of the public health and welfare because they set the necessary standards of operation for the production of Virginia-made frozen desserts to (i) provide a system of prevention and overlapping safeguards designed to minimize foodborne illness; (ii) ensure that employees are healthy, food is safe, equipment used is easily cleaned and kept in a sanitary condition, and acceptable levels of sanitation are maintained in manufacturing facilities; and (iii) promote Virginia's dairy and frozen dessert industry. The amendments are necessary to ensure that appropriate measures are in place to address emerging and ongoing food safety concerns that exist within an evolving food industry.

Rationale for Using Fast-Track Rulemaking Process: The board expects the proposed amendments to be noncontroversial because the changes (i) include the elimination of the requirement that out-of-state importers of frozen desserts obtain a permit to operate a frozen dessert plant from the Commissioner of Agriculture and Consumer Services and add provisions for use of a less costly electronic recordkeeping methods and (ii) do not create new requirements for existing permit holders.

Substance: The proposed amendments include (i) removing standards of identity that have a counterpart in the Code of Federal Regulations (CFR) and instead incorporating the CFR standards of identity by reference; (ii) removing the requirement that out-of-state importers obtain a permit from the Commissioner of Agriculture and Consumer Services to operate a frozen dessert plant; (iii) adding a requirement for recall plans, which aligns the regulation with requirements set forth in other dairy-related regulations; (iv) clarifying language regarding whether frozen desserts must be repasteurized at a receiving plant prior to further sale or distribution, which allows the department the flexibility to evaluate, on a case-by-case basis, manufacturer processing steps and practices to ensure that finished products are safe to consume while relaxing the requirement to repasteurize certain products; and (v) making several sections more easily readable and understood by all relevant stakeholders.

Issues: The primary advantage to the public is the reduction of the risk of foodborne illnesses within frozen dessert establishments, which protects consumers and industry from potentially devastating health consequences and financial losses. The proposed amendments will also result in additional flexibility in determining required processing steps and the removal of duplicative permitting and inspection requirements. The primary advantage to the agency is the alignment of the regulations with current food science and the clarification of ambiguous areas relating to enforcement and inspection standards. There are no known disadvantages to the public or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services (board) seeks to update the regulation to align with the United States Department of Agriculture's (USDA) current General Specifications for Dairy Plants Approved for USDA Inspection and Grading Service (USDA Specifications). The proposed changes would (i) condense the text of the regulation by replacing the current text for standards of identities for frozen dessert products with references to the standards of identities promulgated in the Code of Federal Regulations (21 CFR Part 135); (ii) remove a requirement for out-of-state importers to obtain a permit to operate a frozen dessert plant from the Commissioner; (iii) provide flexibility in determining the required processing steps to ensure consumer safety; (iv) remove all references to retail sale; (v) allow the use of electronic recordkeeping systems; (vi) align requirements in the regulation with other existing dairy-related regulations; (vii) enhance recordkeeping procedures to further protect public health through lot traceability; and (viii) update the referenced version of documents incorporated by reference.

Background. This regulatory action would update the existing Rules and Regulations Governing the Production, Processing, and Sale of Ice Cream, Frozen Desserts, and Similar Products (regulation), which are based on federal USDA Specifications. The regulation currently includes requirements pertaining to the safe and sanitary maintenance, storage, operation, and use of equipment; the safe handling, protection, and preservation of frozen dessert products; the proper pasteurization techniques used to ensure dairy ingredients in frozen desserts are safe for consumers; proper lighting and ventilation; proper equipment design and cleanability; proper facility construction; and personal hygiene for employees. The board reports that the proposed amendments are necessary to remain current with federal laws and reflect current practice, which are based on the latest scientific knowledge and technological advancements, and thus to protect public health.

The most substantive changes are summarized below:

The definition of "frozen dessert retail establishment" would be struck from 2VAC5-510-10 (Definitions) and all references to retail establishments would be removed throughout the regulation, as requirements that are specific to retail establishments are already included in the board's retail food establishment regulation (2VAC5-585).²

2VAC5-510-30, 2VAC5-510-40, and 2VAC5-510-50 currently contain the definitions or standards of identity (SOI) for ice cream; ice cream mix; and frozen custard, french ice cream, french custard ice cream, respectively. These sections would be combined to mirror the structure of the federal regulation. The state-specific SOIs would be replaced with references to SOIs in the CFR because the existing state-specific SOIs are nearly identical to those in the CFR.

Similarly, 2VAC5-510-90 and 2VAC5-510-130, which currently pertain to fruit sherbet and non-fruit sherbet, would be consolidated into 2VAC5-510-90, which would be renamed "Sherbets." 2VAC5-510-110 and 2VAC5-510-150, which pertain to water ice and nonfruit water ice, would also be consolidated. Again, the state-specific SOIs would be replaced with references to SOIs in the CFR.

2VAC5-510-170 pertains to artificially sweetened ice cream or frozen dietary dairy dessert. This section would be repealed in its entirety as these desserts are included under "ice cream" and covered in 2VAC5-510-30.

2VAC5-510-415 (Recall Plans) would be added, requiring recall plans to be included in applications for permits. According to Virginia Department of Agriculture and Consumer Services (VDACS) staff, this amendment would codify an existing practice as all plants already do this, as required by 21 CFR Part 117.³ The recall plan requirements are identical to those in the regulation governing milk for manufacturing (2VAC5-531).⁴

2VAC5-510-420 (Issuing, suspension, and revocation of permits) currently requires manufacturers as well as importers (from out-of-state) to obtain a permit. VDACS reports that it is impractical and unrealistic for the agency to permit and track the numerous frozen dessert products coming into Virginia and that manufacturers in other states are already permitted and inspected in their own state. Thus, the permit requirement for importers would be repealed.

2VAC5-510-550 (Pasteurization of frozen dessert mix) would be amended to clarify that frozen dessert mixes must be repasteurized at the receiving plant before being offered for sale, unless VDACS grants permission for the frozen dairy dessert mix to be sold without repasteurization. VDACS explained that the current language has caused confusion in the past and that the proposed language is intended to ensure that VDACS has "the flexibility to evaluate, on a case-by-case basis, manufacturer processing steps and practices to ensure that finished products are safe to consume, while relaxing the requirement to re-pasteurize certain products."⁵

2VAC5-510-620 (Health) currently requires employees to undergo a medical and physical examination before beginning employment; this requirement would be struck. VDACS reports that the primary purpose of this section is to prevent employees sick with communicable diseases from coming into work and that the other requirements in this section address this concern. Additionally, VDACS expressed concern that the requirement to receive a medical exam before beginning work could create an unnecessary barrier to employment.

Additional amendments would align the structure and content of the regulation with other Virginia dairy regulations. For example, language outlining the actions that would warrant the cancellation, suspension, or denial of a permit would be added to 2VAC5-510-420⁶ and the requirement that employee facilities include "conveniently located sanitary drinking water" would be removed from Section 500.⁷

Estimated Benefits and Costs. The proposed amendments would benefit current and prospective manufacturers of ice cream and frozen desserts by providing clear, concise, and updated requirements that conform to current USDA specifications. VDACS reports that the proposed amendments reflect current federal requirements and current practice, and that manufacturers of ice cream and frozen desserts are not expected to incur any new costs as a result. The proposed amendments would benefit consumers of ice cream and frozen desserts manufactured in Virginia by ensuring that these products continue to be produced in a manner that makes them safe for consumption.

Businesses and Other Entities Affected. VDACS reports that there are currently 41 manufacturers in Virginia, some of which may also have retail establishments on their premises. VDACS also reports that there are 20 permitted importers who would no longer be required to renew or maintain this permit; however, this is likely an undercount of all the businesses importing ice cream and frozen desserts from other states.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁸ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁹ Since the proposed amendments largely serve to clarify the requirements and conform the regulation to federal regulations, there is not anticipated to be an increase in net costs or decrease in net benefits for any entity. For example, although recall policies would be newly added in the regulation, they are already required by federal regulation. Further, some manufacturers may benefit from increased flexibility with respect to repasteurization or hiring workers without requiring an initial health and physical examination. However, to the extent that these provisions have already been implemented in practice, any associated benefits have likely already accrued. Thus, an adverse impact is not indicated.

Small Businesses¹⁰ Affected.¹¹ Manufacturers of ice cream or frozen desserts that are small businesses would not be expected to face any new costs.

Localities¹² Affected.¹³ The proposed amendments do not appear to disproportionally affect any locality in particular or affect costs for local governments.

Projected Impact on Employment. The proposed amendments would not be expected to affect employment by manufacturers of ice cream or frozen desserts.

Effects on the Use and Value of Private Property. The proposed amendments are not expected to affect the value of private businesses that manufacture ice cream or frozen desserts. The proposed amendments do not affect real estate development costs.

_____________________________

¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://law.lis.virginia.gov/admincode/title2/agency5/chapter585/.

³ See https://www.ecfr.gov/current/title-21/section-117.139. See also the Agency Background Document (ABD), page 4: https://townhall.virginia.gov/L/GetFile.cfm?File=48\6530\10418\AgencyStatement_VDACS_10418_v1.pdf.

⁴ See item K: https://law.lis.virginia.gov/admincode/title2/agency5/chapter531/section50/.

⁵ ABD, page 4.

⁶ This would align the regulation with Chapters 490 and 531. ABD, page 15.

⁷ VDACS staff explained that this requirement is not present in the other dairy regulations. VDACS staff also confirmed with the Department of Labor and Industry that the Occupational Safety and Health Administration's Sanitation Standard for General Industry (29 CFR 1910.121(b)(1)), which requires employers to provide potable drinking water, would apply to frozen dessert manufacturing facilities. 16VAC25-60-120 incorporates 29 CFR 1910.

⁸ Pursuant to § 2.2-4007.04 D of the Code of Virginia: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance.

⁹ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

¹⁰ 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."

¹¹ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹² "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹³ Section 2.2-4007.04 of the Code of Virginia defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Agriculture and Consumer Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The amendments update Rules and Regulations Governing the Production, Processing, and Sale of Ice Cream, Frozen Desserts, and Similar Products (2VAC5-510), which is based on the U.S. Department of Agriculture's (USDA) General Specifications for Dairy Plants Approved for USDA Inspection and Grading Service. The amendments (i) replace the current text for standards of identities for frozen dessert products with references to the standards of identities provided in 21 CFR Part 135; (ii) remove the requirement for out-of-state importers to obtain a permit to operate a frozen dessert plant from the Commissioner of Agriculture and Consumer Services; (iii) provide flexibility in determining required processing steps to ensure consumer safety; (iv) remove all references to retail sale; (v) allow the use of electronic recordkeeping systems; (vi) align requirements with other existing dairy-related regulations; (vii) enhance recordkeeping procedures to further protect public health through lot traceability; and (viii) update documents incorporated by reference.

Chapter 510

Rules and Regulations Governing the Production, Processing, and Sale of Ice Cream, Frozen Desserts, and Similar Products

2VAC5-510-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"3-A Accepted Practices" means the accepted practices published by 3-A Sanitary Standards, Incorporated and indexed in the 3-A Sanitary Standards and 3-A Accepted Practices, effective March 1, 2024.

"3-A Sanitary Standards" means the standards for dairy equipment published by 3-A Sanitary Standards, Incorporated and indexed in the 3-A Sanitary Standards and 3-A Accepted Practices, effective March 1, 2024.

"Adulterated milk, milk products, and frozen desserts" means any milk, milk products, other frozen dessert ingredient, frozen desserts, or frozen desserts mix which:

1. Bears or contains any poisonous or deleterious substance in a quantity which may render it injurious to health;

2. Bears or contains any added poisonous or deleterious substance for which no safe tolerance has been established by state or federal regulation, or in excess of such tolerance if one has been established;

3. Consists, in whole or in part, of any substance unfit for human consumption;

4. Has been produced, processed, prepared, packed, or held under insanitary conditions;

5. Container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or

6. Any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength, or make it appear better or of greater value than it is that meets one or more of the conditions specified in 21 USC § 342.

"Commissary or depot" means any place, premise, or establishment in which pasteurized mix, ingredients, containers, or supplies are prepared or stored for the servicing of one or more mobile units, and where facilities are provided for cleaning the vehicle and the cleaning and bactericidal treatment of equipment and utensils.

"Frozen desserts manufacturer" means any person who manufactures, processes, converts, partially freezes, or freezes any mix or frozen desserts for distribution or sale.

"Cleaned in place" or "CIP" means the procedure by which equipment is mechanically cleaned in place by circulation of wash, rinse, and sanitizer solutions.

"Frozen dessert" means any of the following: ice cream, frozen custard, french ice cream, french custard ice cream, ice milk, fruit sherbet, water ice, nonfruit sherbet, nonfruit water ice, artificially sweetened ice cream or frozen dietary dairy dessert, artificially sweetened ice milk, frozen yogurt, quiescently frozen confection, quiescently frozen dairy confection, mellorine, parevine, lowfat parevine, freezer made milk shake, freezer made shake, those products manufactured or sold in semblance to or as substitutes for the foregoing frozen desserts, and any mix used in the freezing of the foregoing frozen desserts.

"Frozen desserts plant" means any place or premises where frozen desserts or mix are manufactured, processed, pasteurized, or frozen for distribution or sale at wholesale.

"Frozen desserts retail establishment" means any place or premises including retail stores, stands, hotels, restaurants, and vehicles or mobile units where frozen desserts are frozen or partially frozen or dispensed for sale at retail.

"Harmless" means that a food or substance is generally recognized as safe, as prescribed in 21 CFR Parts 181 through 186.

"Misbranded" means a milk, milk products product, other frozen desserts ingredients dessert ingredient, frozen desserts and dessert, or frozen desserts dessert mix are misbranded when that:

1. Their containers bear Bears on its container or accompany is accompanied by any false or misleading written, printed, or graphic matter;

2. Such milk and products do Does not conform to their definitions as contained the product's definition established in this chapter; and or

3. Such products are Is not labeled in accordance with Part VI (2VAC5-510-430 et seq.) of this chapter 2VAC5-510-430.

"Mobile unit" means any vehicle or temporary establishment that shall travel from place to place in which a frozen desserts processor freezes, partially freezes, or dispenses frozen desserts for sale.

"Official methods" means Official Methods of Analysis of the Association of Official Analytical Chemists AOAC International, a publication of the Association of Official Analytical Chemists Collaboration International. A modified Roese-Gottlieb test, such as the Mojonnier' or Dietert, may be used in making official determination of the butterfat and total solids content of frozen dairy food products.

"Pasteurization" or "pasteurized" means the process of heating, in approved and properly operated equipment, every particle of mix to any one of the following temperatures and holding at the temperature for the specified time:

1. Vat Pasteurization: 155°F (68.3°C) and holding at such temperature for at least 30 minutes.

2. HTST (high-temperature short-time) Pasteurization: 175°F (79.4°C) and holding at such temperature for at least 25 seconds.

Nothing contained in this definition shall be construed as barring any other method of process, or combination of times and temperatures, as may be demonstrated to be equally efficient.

"Permit" means authority issued under the Act by the regulatory agency the document issued by the Commissioner of Agriculture and Consumer Services pursuant to § 3.2-5214 of the Code of Virginia that authorizes a person to operate a frozen desserts plant.

"Permit holder" means the entity that is legally responsible for the operation of the frozen desserts plant, such as the owner, the owner's agent, or other person, and that possesses a valid permit to operate a frozen desserts plant.

"Person" means any individual, partnership, corporation, company, firm, trustee, or association.

"Plant" means any place, premise, or establishment where milk or dairy products are received or handled for processing or manufacturing the products defined herein in this chapter.

"Powder" or "dry frozen desserts mix" means a frozen desserts mix in a dry form.

"Standard methods" means Standard Methods for the Examination of Dairy Products, a publication of the American Public Health Association.

"3-A Sanitary standards and accepted practices" means the standards for dairy equipment and accepted practices formulated by the 3-A Sanitary Standards Committees representing the International Association for Food Protection, the United States Public Health Service, and the Dairy Industry Committee, Published by the 3-A Sanitary Standards, Incorporated.

"State Regulatory Agency" means the Commissioner of Agriculture and Consumer Services or the commissioner's agent or the State Health Commissioner or the commissioner's agent when such person is carrying out any duty assigned to such commissioner in the Milk, Milk Products, and Dairies Law (§ 3.2-5200 et seq. of the Code of Virginia).

"Summarily suspend" means the immediate suspension of a permit issued by the State Regulatory Agency without the opportunity for the permit holder to contest the suspension prior to the effective date and time of the suspension.

"VDACS" means the Virginia Department of Agriculture and Consumer Services.

2VAC5-510-20. Uniformity of enforcement.

A. The Virginia Board of Agriculture and Consumer Services hereby finds and declares that a uniform regulation is needed to govern the production, processing, labeling, and distribution of ice cream and similar products within the Commonwealth of Virginia. This chapter relating to ice cream and similar products shall be applicable throughout the Commonwealth of Virginia and shall be enforced on a statewide basis. Products produced, processed, or manufactured under the provisions of this chapter may can be sold in all counties, cities, and towns in this state. They The products shall not be subject to regulations by ordinance or otherwise to supervision, or to inspection by any political subdivision.

B. No regulation shall be construed to prohibit the sale of any imported dairy product within this state, the Commonwealth if the laws and regulations of the exporting state or political subdivision thereof are substantially the same as this chapter, and if they the laws and regulations are enforced with equal effectiveness as determined by Virginia Department of Agriculture and Consumer Services VDACS or State Health the Virginia Department of Health.

C. Unless otherwise provided by state law or by regulation of the Virginia Board of Agriculture and Consumer Services, this chapter shall be interpreted and enforced where applicable with administrative procedures and recommended regulations of the United States U.S. Department of Health and Human Resources and the United States U.S. Department of Agriculture.

Part III

Standards of Identity Standardized Frozen Desserts and Related Products

2VAC5-510-30. Ice cream; identity; label statement of optional ingredients Ice cream and frozen custard.

A. Ice cream is the food prepared by freezing, while stirring, a pasteurized mix composed of one or more of the optional ingredients specified in subsection C of this section, sweetened with one or more of the optional sweetening ingredients specified in subsection D of this section. One or more of the optional characterizing ingredients specified in subsection B of this section and one or more of the optional ingredients specified in subdivisions 5 to 10 of subsection D may be used to characterize the ice cream. One or more of the optional caseinates specified in subsection E and one or more of the optional ingredients specified in subsection F of this section may be used, subject to the conditions hereinafter set forth. The mix may be seasoned with salt, and may be homogenized. The kind and quantity of optional dairy ingredients used, as specified in subsection C of this section, and the content of milk fat and nonfat milk solids therein, are such that the weights of milkfat and total milk solids are not less than 10% and 20%, respectively, of the weight of the finished ice cream; but in no case shall the content of milk solids not fat be less than 6.0%, except that when one or more of the bulky optional ingredients as specified in subdivisions 3 to 8 of subsection B, inclusive, of this section, are used, the weights of milkfat and total milk solids (exclusive of such fat and solids in any malted milk used) are not less than 10% and 20%, respectively, of the remainder obtained by subtracting the weight of such optional ingredients, modified as prescribed in this subsection, from the weight of the finished ice cream; but in no case is the weight of milkfat or total milk solids less than 8.0% and 16%, respectively, of the weight of the finished ice cream. The optional caseinates specified in subsection E of this section are not deemed to be milk solids. In calculating the reduction of milkfat and total milk solids from the use of bulky optional ingredients, chocolate and cocoa solids used shall be considered the bulky ingredients of subdivision 3 of subsection B of this section. In order to make allowance for additional sweetening ingredients needed when bulky ingredients are used, the weight of chocolate or cocoa solids may be multiplied by 2.5; the weight of fruit or nuts used may be multiplied by 1.4; and the weight of partially or wholly dried fruits or fruit juices may be multiplied by appropriate factors to obtain the original weights before drying and this weight multiplied by 1.4. The finished ice cream contains not less than 1.6 pounds of total solids to the gallon and weighs not less than 4.5 pounds to the gallon; except that when the optional ingredient microcrystalline cellulose specified in subdivision 6 of subsection F of this section is used, the finished ice cream contains not less than 1.6 pounds of total solids to the gallon and weighs not less than 4.5 pounds to the gallon exclusive, in both cases, of the weight of the microcrystalline cellulose. Artificial flavoring in any chocolate, cocoa, confectionary, or other ingredient used is an optional ingredient of the finished ice cream. Coloring, including artificial coloring, may be added.

B. The optional characterizing ingredients referred to in subsection A. of this section are:

1. Ground spice, ground vanilla beans, infusion of coffee or tea, or any natural food flavoring.

2. Artificial food flavoring.

3. Chocolate or cocoa, which may be added as such or as a suspension in sirup, and which may contain disodium phosphate or sodium citrate in such quantity that the finished ice cream contains not more than 0.2% by weight of disodium phosphate or sodium citrate. For the purposes of this section, the term "cocoa" means one or any combination of two or more of the following: Cocoa, breakfast cocoa, lowfat cocoa, and the unpulverized residual material prepared by removing part of the fat from ground cacao nibs.

4. Mature fruit or the juice of mature fruit, either of which may be fresh, frozen, canned, concentrated, or partially or wholly dried. The fruit may be whole, shredded, or comminuted; it may be sweetened, thickened with pectin or with one or more of the ingredients named in subdivision 2 of subsection F of this section, subject to the restriction on the total quantity of such substances in ice cream prescribed in that subdivision, and it may be acidulated with citric acid, ascorbic acid, or phosphoric acid. The fruit is prepared by the removal of pits, seeds, skins, and cores, where such removal is used in preparing that kind of fruit for consumption as fresh fruit. In the case of fruit or fruit juice from which part of the water is removed, the substances contributing flavor volatilized during water removal may be condensed and reincorporated in the concentrated fruit or fruit juice. In the case of the citrus fruits the whole fruit, including the peel but excluding the seeds, may be used, and in the case of citrus juice or concentrated citrus juice, cold-pressed citrus oil may be added in an amount not exceeding that which would have been obtained if the peel from the whole fruit had been used. For the purposes of this section the flesh of the coconut shall be considered a fruit.

5. Nut meats, which may be roasted, cooked in an edible fat or oil, or preserved in sirup, and which may be salted.

6. Malted milk.

7. Confectionary. For the purposes of this section, the term "confectionery" means candy, cakes, cookies, and glaced fruits.

8. Properly prepared and cooked cereal.

9. Distilled alcoholic beverage, including liqueurs or wine, in an amount not to exceed that required for flavoring the ice cream.

C. The optional dairy ingredients referred to in subsection A of this section are: cream, dried cream, plastic cream (sometimes known as concentrated milkfat), butter, butter oil, milk, concentrated milk, evaporated skim milk, condensed skim milk, superheated condensed skim milk, sweetened condensed skim milk, sweetened condensed part skim milk, nonfat dry milk, sweet cream buttermilk, condensed sweet cream buttermilk, dried sweet cream buttermilk, skim milk that has been concentrated and from which part of the lactose has been removed by crystallization, skim milk in concentrated or dried form which has been modified by treating the concentrated skim milk with calcium hydroxide and disodium phosphate, concentrated cheese whey, and dried cheese whey. Water may be added, or water may be evaporated from the mix. The sweet cream buttermilk and the concentrated sweet cream buttermilk or dried sweet cream buttermilk, when adjusted with water to a total solids content of 8.5%, has a titratable acidity of not more than 0.17%, calculated as lactic acid. The term "milk" as used in this section means cow's milk. Any concentrated cheese whey and dried cheese whey used contribute not more than 25% by weight of the total nonfat milk solids content of the finished food. Dried cheese whey is uniformly light in color, free from brown and black scorched particles, and has an alkalinity of ash, not more than 225 milliliters 0.1N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and, as adjusted with water to a total solids content of 6.5%, a titratable acidity of not more than 0.16%, calculated as lactic acid. Concentrated cheese whey has an alkalinity of ash, not more than 115 milliliters 0.1N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and as adjusted with water to a total solids content of 6.5%, calculated as lactic acid. The modified skim milk, when adjusted with water to a total solids content of 9%, is substantially free of lactic acid as determined by titration with 0.1N NaOH and it has a pH value in the range of 8.0 to 8.3.

D. The optional sweetening ingredients referred to in subsection A of this section are:

1. Sugar (sucrose) or sugar sirup.

2. Dextrose.

3. Invert sugar (in paste or sirup form).

4. Corn sirup, dried corn sirup, glucose sirup, dried glucose sirup.

5. Maple sirup, maple sugar.

6. Honey.

7. Brown sugar.

8. Malt sirup, maltose sirup, malt extract.

9. Dried malt sirup, dried maltose sirup, dried malt extract.

10. Refiner's sirup.

11. Molasses (other than black strap).

12. Lactose.

13. Fructose.

E. The optional caseinates referred to in subsection A of this section which may be added to ice cream mix containing not less than 20% total milk solids are: casein prepared by precipitation with gums, ammonium caseinate, calcium caseinate, potassium caseinate, and sodium caseinate. Caseinates may be added in liquid or dry form, but must be free of excess alkali.

F. Other optional ingredients referred to in subsection A of this section are:

1. Liquid eggs, frozen eggs, dried eggs, egg yolks, frozen egg yolks, and dried egg yolks. Any egg ingredient used is added to the mix before it is pasteurized. The total weight of egg yolk solids in the finished ice cream from one or a combination of two or more such ingredients is less than the minimum prescribed for frozen custard by 2VAC5-510-50 (1.4%).

2. Agar-agar, algin (sodium alginate), calcium sulfate, gelatin, gum acacia, guar seed gum, gum karaya, locust bean gum, oat gum, gum tragacanth, carrageenan, salts of carrageenan, furcelleran, salts of furcelleran, lecithin, psyllium seed husk, sodium carboxymethylcellulose. The total weight of the solids of any such ingredient used singly or of any combination of two of more such ingredients used (including any such ingredient and pectin added separately to the fruit ingredient) is not more than 0.5% of the weight of the finished ice cream. Such ingredients may be added in admixture with dextrin, propylene glycol, or glycerin.

3. Monoglycerides or diglycerides or both of fat-forming fatty acids. The total weight of such ingredients is not more than 0.2% of the weight of the finished ice cream. If the preparation used is one having a high proportion of monoglycerides (over 90%), it may be preblended with edible fat, but the amount of such fat does not exceed 20% by weight of the blend, and the total amount of the blend used does not exceed 0.2% of the weight of the finished ice cream.

4. Polysorabate 65, polysorbate 80, or both may be used, with a limit on either, used separately or both used in combination, of not more than 0.1% by weight of the finished frozen dessert.

5. Propylene glycol alginate limit of not more than 0.5% by weight of the finished frozen dessert.

6. Microcrystalline cellulose, in a quantity not to exceed 1.5% by weight of the finished frozen dessert.

7. When one or more of the optional thickening ingredients in subdivision 2 or 5 of this subsection are used, dioctyl sodium sulfosuccinate may be used in a quantity not in excess of 0.5% by weight of such ingredients.

8. a. Sodium citrate, disodium phosphate, tetrasodium pyrophosphate, sodium hexametaphosphate, or any combination of two or more of these; but the total quantity of the solids of such ingredients (exclusive of any disodium phosphate or sodium citrate present in chocolate or cocoa, as permitted by subdivision 3 of subsection B of this section) is not more than 0.2% by weight of the finished ice cream.

b. Calcium oxide, magnesium oxide, calcium hydroxide, magnesium hydroxide, calcium carbonate, magnesium carbonate, or any combination of two or more of these; but the total quantity of the solids of such ingredients is not more than 0.04% of the weight of the finished ice cream.

G. 1. The name of the food is "ice cream."

2. a. If the food contains no artificial flavor, the name on the principal display panel or panels of the label shall be accompanied by the common or usual name of the characterizing flavor, e.g., "vanilla," in letters not less than one-half the height of the letters used in the words "ice cream."

b. If the food contains both a natural characterizing flavor and an artificial flavor simulating it, and if the natural flavor predominates, the name on the principal display panel or panels of the label shall be accompanied by the common name of the characterizing flavor, in letters not less than one-half the height of the letters used in the words "ice cream," followed by the word "flavored," in letters not less than one-half the height of the letters in the name of the characterizing flavor, e.g., "VANILLA flavored," or "PEACH flavored," or "VANILLA flavored STRAWBERRY flavored."

c. If the food contains both a natural characterizing flavor and an artificial flavor simulating it, and if the artificial flavor predominates, or if artificial flavor is used alone, the name on the principal display panel or panels of the label shall be accompanied by the common name of the characterizing flavor, in letters not less than one-half the height of the letters used in the words "ice cream," preceded by "artificial" or "artificially flavored," in letters not less than one-half the height of the letters in the name of the characterizing flavor, e.g., "artificial VANILLA," or "artificially flavored STRAWBERRY" or "artificially flavored VANILLA and artificially flavored STRAWBERRY."

3. a. If the food is subject to the requirements of subdivision 2 b of this subsection or if it contains any artificial flavor not simulating the characterizing flavor, the label also shall bear the words "artificial flavor added" or "artificial ______ flavor added," the blank being filled with the common name of the flavor simulated by the artificial flavor in letters of the same size and prominence as the words that precede and follow it.

b. When the optional ingredient microcrystalline cellulose specified in subdivision 6 of subsection F of this section is used, the label shall bear the statement "microcrystalline cellulose added" or "with microcrystalline cellulose."

c. When two or more of the optional ingredients specified in subdivision 2 of subsection B and subdivision 6 of subsection F of this section are used, such words may be combined; for example, "microcrystalline cellulose and artificial flavor added."

d. Wherever the name of the characterizing flavor appears on the label so conspicuously as to be easily seen under customary conditions of purchase, the words prescribed by this subparagraph shall immediately and conspicuously precede or follow such name, in a size reasonably related to the prominence of the name of the characterizing flavor and in any event the size of the type is not less than 6-point on packages containing less than one pint, not less than 8-point on packages containing at least one pint but less than one-half gallon, but less than one gallon, and not less than 12-point on packages containing one gallon or over; however, that where the characterizing flavor and a trademark or brand are presented together, other written, printed, or graphic matter that is a part of or is associated with the trademark or brand, may intervene if the required words are in such relationship with the trademark or brand as to be clearly related to the characterizing flavor: And provided further, that if the finished product contains more than one flavor of ice cream subject to the requirements of this subparagraph, the statements required by this subparagraph need appear only once in each statement of characterizing flavors present in such ice cream, e.g., "VANILLA flavored, CHOCOLATE and STRAWBERRY flavored, artificial flavors added."

4. If the food contains both a natural characterizing flavor and an artificial flavor simulating the characterizing flavor, any reference to the natural characterizing flavor, except as otherwise authorized by this subsection, shall be accompanied by a reference to the artificial flavor, displayed with substantially equal prominence, e.g., "strawberry and artificial strawberry flavor."

5. An artificial flavor simulating the characterizing flavor shall be deemed to predominate:

a. In the case of vanilla beans or vanilla extract used in combination with vanillin if the amount of vanillin used is greater than one ounce per unit of vanilla constituent.

b. In the case of fruit or fruit juice used in combination with artificial fruit flavor, if the quantity of the fruit or fruit juice used is such that, in relation to the weight of the finished ice cream, the weight of the fruit or fruit juice, as the case may be (including water necessary to reconstitute partially or wholly dried fruits or fruit juices to their original moisture content) is less than 2.0% in the case of citrus ice cream, 6.0% in the case of berry or cherry ice cream, 10% in the case of ice cream prepared with other fruits.

c. In the case of nut meats used in combination with artificial nut flavor, if the quantity of nut meats used is such that, in relation to the finished ice cream, the weight of the nut meats is less than 2.0%.

d. In the case of two or more fruit or fruit juices, or nut meats, or both, used in combination with artificial flavors simulating the natural flavors and dispersed throughout the food, if the quantity of any fruit or fruit juice or nut meat is less than one-half the applicable percentage specified in subparagraphs b or c of this paragraph. For example, if a combination ice cream contains less than 5.0% of bananas and less than 1.0% of almonds it would be "Artificially flavored banana-almond ice cream." However, if it contains more than 5.0% of bananas and more than 1.0% of almonds it would be "Banana-almond flavored ice cream."

6. If two or more flavors of ice cream are distinctively combined in one package, e.g., "Neapolitan" ice cream, the applicable provisions of this subsection shall govern each flavor of ice cream comprising the combination.

H. Optional ingredients other than those included in subsections B, C, D and F may be used when permitted for use in ice cream by the Federal Food and Drug Administration.

A. Ice cream or frozen custard is the food prepared from the same ingredients and in the same manner, including labeling, as prescribed in 21 CFR 135.110 or 21 CFR 135.115.

B. Ice cream mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, produces a product conforming to the description of "ice cream" in 21 CFR 135.110 or "goat's milk ice cream" in 21 CFR 135.115.

C. Frozen custard mix, french ice cream mix, or french custard ice cream mix is the pasteurized unfrozen combination of ingredients that, when frozen while stirring, produces products conforming to the description of "frozen custard," "french ice cream," or "french custard ice cream" in 21 CFR 135.110 or "goat's milk frozen custard," "goat's milk french ice cream," or "goat's milk french custard ice cream" in 21 CFR 135.115.

2VAC5-510-40. Ice cream mix. (Repealed.)

Ice cream mix is the pasteurized unfrozen combination of ingredients which when frozen while stirring will produce a product conforming to the definition of ice cream.

2VAC5-510-50. Frozen custard, french ice cream, french custard ice cream; identity; label statement of optional ingredients; frozen custard mix, french ice cream mix, and french custard ice cream mix. (Repealed.)

A. Frozen custard, french ice cream, french custard ice cream conforms to the definition and standard of identity, and is subject to the requirements for label statement of optional ingredients, prescribed for ice cream by 2VAC5-510-30, except that one or more of the optional egg ingredients permitted by 2VAC5-510-30 F 1 are used in such quantity that the total weight of egg yolk solids therein is not less than 1.4% of the weight of the finished frozen custard; Provided, however, that when the ingredients named in subdivisions 3 through 8 of 2VAC5-510-30 B, inclusive, are used the content of egg yolk solids may be reduced in proportion to the bulky ingredient or ingredients added, under the conditions prescribed by 2VAC5-510-30 A for reduction in milkfat and total milk solids; but in no case is the content of egg yolk solids less than 1.12%.

B. Frozen custard mix, french ice cream mix, and french custard ice cream mix are the pasteurized unfrozen combinations of ingredients that when frozen while stirring will produce products conforming to the definition of frozen custard, french ice cream, and french custard ice cream.

2VAC5-510-90. Fruit sherbets; identity; label statement of optional ingredients; fruit sherbet mix Sherbets.

A. Fruit sherbets are the foods each of which is prepared by freezing, while stirring, a mix composed of one or more of the optional characterizing fruit ingredients specified in subsection B of this section and one or more to the optional ingredients specified in subsection C of this section, sweetened with one or more of the optional sweetening ingredients specified in subsection D of this section. One or more of the optional ingredients specified in subsection E of this section may be used, subject to the conditions hereinafter set forth. The mix of combined dairy ingredients, with or without other ingredients, is pasteurized. The titratable acidity of the finished fruit sherbet, calculated as lactic acid, is not less than 0.35%. The mix with or without added water may be seasoned with salt, and may be homogenized. The optional dairy ingredients used and the content of milkfat and nonfat milk solids therein are such that the weight of milkfat is not less than 1.0% and not more than 2.0%, and the weight of total milk solids is not less than 2.0% and not more than 5.0% of the weight of the finished fruit sherbet. The optional caseinates specified in subdivision 7 of subsection E of this section are not deemed to be milk solids. The finished fruit sherbet weights not less than six pounds to the gallon; except that when the optional ingredient microcrystalline cellulose specified in subdivision 11 of subsection E of this section is used, the finished fruit sherbet weighs not less than six pounds to the gallon, exclusive of the weight of the microcrystalline cellulose.

B. The optional fruit characterizing ingredients referred to in subsection A of this section are any mature fruit or the juice of any mature fruit. The fruit or fruit juice used may be fresh, frozen canned, concentrated, or partially or wholly dried. The fruit may be thickened with pectin or other of the optional ingredients named in subdivision 2 of subsection E of this section, subject to the restriction on the total quantity of such substances in fruit sherbets prescribed in that subsection. The fruit is prepared by the removal of pits, seeds, skins, and cores, where such removal is usual in preparing that kind of fruit for consumption as fresh fruit. The fruit may be screened, crushed, or otherwise comminuted. It may be acidulated with citric acid, ascorbic acid, or phosphoric acid. In the case of concentrated fruit or fruit juices from which part of the water is removed, substances contributing flavor volatilized during water removal may be condensed and reincorporated in the concentrated fruit or fruit juice. In the case of citrus fruits, the whole fruit, including the peel but excluding the seeds, may be used, and in the case of citrus juice or concentrated citrus juices, cold-pressed citrus oil may be added thereto in an amount not exceeding that which would have been obtained if the whole fruit had been used. The quantity of fruit ingredients used is such that, in relation to the weight of the finished sherbet, the weight of fruit or fruit juice, as the case may be, including water necessary to reconstitute partially or wholly dried fruits or fruit juices to their original moisture content, is not less than 2.0% in the case of citrus sherbets, 6.0% in the case of berry sherbets, and 10% in the case of sherbets prepared with other fruits. For the purposes of this section, tomatoes and rhubarb are considered as kinds of fruit.

C. The optional dairy ingredients referred to in subsection A of this section are: cream, dried cream, plastic cream, (sometimes known as concentrated milkfat), butter, butter oil, milk, concentrated milk, evaporated milk, superheated condensed milk, sweetened condensed milk, dried milk, skim milk, concentrated skim milk, evaporated skim milk, condensed skim milk, superheated condensed skim milk, sweetened condensed skim milk, sweetened condensed part-skim milk, nonfat dry milk, sweet cream buttermilk, condensed sweet cream buttermilk, dried sweet cream buttermilk, skim milk that has been concentrated and from which part of the lactose has been removed by crystallization, concentrated cheese whey, and dried cheese whey. Water may be added, or water may be evaporated from the mix. The sweet cream buttermilk and the concentrated sweet cream buttermilk or dried sweet cream buttermilk, when adjusted with water to a total solids content of 8.5% has a titratable acidity of not more than 0.17%, calculated as lactic acid. The term "milk" as used in this section means cow's milk. Dried cheese whey is uniformly light in color, free from brown and black scorched particles, and has an alkalinity of ash, not more than 225 milliliters 0.1 N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and, as adjusted with water to a total solids content of 6.5%, a titratable acidity of not more than 0.16% calculated as lactic acid. Concentrated cheese whey has an alkalinity of ash, not more than 115 milliliters 0.1 N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and, as adjusted with water to a total solids content of 6.5%, a titratable acidity of not more than 0.18%, calculated as lactic acid.

D. The optional sweetening ingredients referred to in subsection A of this section are: sugar (sucrose), dextrose, invert sugar (paste or sirup), glucose sirup, dried glucose sirup, corn sirup, dried corn sirup, malt sirup, malt extract, dried malt sirup, dried malt extract, maltose sirup, dried maltose sirup.

E. Other optional ingredients referred to in subsection A of this section are:

1. Liquid eggs, frozen eggs, dried eggs, egg yolks, frozen yolks; dried yolks; but the weight of the egg yolk solids therein is less than 0.5% of the weight of the finished fruit sherbet.

2. Agar-agar, algin (sodium alginate), calcium sulfate, egg white, gelatin, gum acacia, guar seed gum, gum karaya, locust bean gum, oat gum, gum tragacanth, hydroxypropyl methylcellulose, carrageenan, salts of carrageenan, furcelleran, salts of furcelleran, lecithin, pectin, psyllium seed husk, sodium carboxymethylcellulose. The total weight of the solids of any such ingredient used singly or of any combination of two or more such ingredients used (including any such ingredient added separately to the fruit ingredient) is not more than 0.5% of the weight of the finished fruit sherbet. Such ingredients may be added in admixture with dextrin, propylene glycol, or glycerin.

3. Monoglycerides or diglycerides or both of fat-forming fatty acids. The total weight of such ingredients is not more than 0.2% of the weight of the finished fruit sherbet. If the preparation used is one of having a high proportion of monoglycerides (over 90%), it may be preblended with edible fat, but the amount of such fat does not exceed 20% by weight of the blend, and the total amount of the blend used does not exceed 0.2% of the weight of the finished fruit sherbet.

4. Polysorbate 65, polysorbate 80, or both (the limit on either used separately or both used in combination of not more than 0.1% by weight of the finished frozen dessert).

5. Propylene glycol alginate (limit of not more than 0.5% by weight of the finished frozen dessert).

6. Citric acid, tartaric acid, malic acid, lactic acid, ascorbic acid, phosphoric acid, or any combination of two or more of these in such quantity as seasons the finished food.

7. Casein prepared by precipitation with gums, ammonium caseinate, calcium caseinate, potassium caseinate, sodium caseinate.

8. Any natural food flavoring.

9. Any artificial flavoring.

10. Coloring, including artificial coloring.

11. Microcrystalline cellulose, in a quantity not to exceed 0.5% of the weight of the finished fruit sherbet.

12. When one or more of the optional thickening ingredients in subdivision 2 or 5 of this subsection are used, dioctyl sodium sulfosuccinate may be used in a quantity not in excess of 0.5% by weight of such ingredients.

F. The name of each such fruit sherbet is "__________ sherbet," the blank being filled in with the common name of the fruit or fruits from which the fruit ingredients used are obtained. When the names of two or more fruits are included, such names shall be arranged in order of predominance, if any, by weight of the respective fruit ingredients used.

G. When the optional ingredients artificial coloring or artificial flavorings are used in fruit sherbet they shall be named on the labels as follows:

1. The label shall designate artificial coloring by the statement "artificially colored," "artificial coloring added," "with added artificial coloring," or "__________ an artificial color added," the blank being filled in with the name of the artificial coloring used.

2. The label shall designate artificial flavoring by the statement "artificially flavored," "artificial flavoring added," "with added artificial flavoring," or "__________ an artificial flavor added," the blank being filled in with the name of the artificial flavoring used.

3. Whenever artificial flavoring is not added as such but as a component of some other ingredient, the label shall include the statement "__________ artificially flavored," the blank being filled in with the name of such other ingredient.

4. When the optional ingredient microcrystalline cellulose specified in subdivision 11 of subsection E of this section is used, the label shall bear the statement "microcrystalline cellulose added" or "with added microcrystalline cellulose." Label statements may be combined, as for example, "with added artificial flavoring and artificial coloring."

H. Where one or more of the optional ingredients artificial coloring or artificial flavoring are used and there appears on the label any representation as to the fruit or fruits in the sherbet, such representation shall be immediately and conspicuously accompanied by appropriate label statements as prescribed in subsection G of this section, showing the optional ingredients used.

I. Wherever the name of the food appears on the label so conspicuously as to be easily seen under customary conditions of purchase, the statements specified in this section, showing the optional ingredients used, shall immediately and conspicuously precede or follow such name without intervening written, printed, or graphic matter.

J. Fruit sherbet mix is the pasteurized unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of fruit sherbet.

A. Sherbet is the food prepared from the same ingredients and in the same manner, including labeling, as prescribed in 21 CFR 135.140.

B. Sherbet mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, produces a product conforming to the description of "sherbet" in 21 CFR 135.140.

2VAC5-510-110. Water ices; identity; label statement of optional ingredients; water ice mix Water ices.

A. Water ices are the foods, each of which is prepared by freezing, while stirring, a mix composed of one or more of the optional characterizing fruit ingredients specified in subsection B of this section, sweetened with one or more of the optional sweetening ingredients specified in subsection C of this section. One or more of the optional ingredients specified in subsection D of this section may be used, subject to the conditions hereinafter set forth. The titratable acidity of the finished water ice, calculated as lactic acid, is not less than 0.35%. The mix, with or without added water, may be seasoned with salt, and may be homogenized. The finished water ice weighs not less than six pounds to the gallon.

B. The optional fruit ingredients referred to in subsection A of this section are any mature fruit or the juice of any mature fruit. The fruit or fruit juice used may be fresh, frozen, canned, concentrated, or partially or wholly dried. The fruit may be thickened with pectin or other of the optional ingredients named in subdivision 1 of subsection D of this section subject to the restriction on the total quantity of such substances in water ices prescribed in that subdivision. The fruit is prepared by the removal of pits, seeds, skins, and cores where such removal is usual in preparing that kind of fruit for consumption as fresh fruit. The fruit may be screened, crushed, or otherwise communited. It may be acidulated with citric acid, ascorbic acid, or phosphoric acid. In the case of fruit or fruit juices from which part of the water is removed, substances contributing flavor volatilized during water removal may be condensed and reincorporated in the concentrated fruit or fruit juice. In the case of citrus fruits, the whole fruit, including the peel but excluding the seeds, may be used, and in the case of citrus juice or concentrated citrus juices, cold-pressed citrus oil may be added thereto in an amount not exceeding that which would have been obtained if the whole fruit had been used. The quantity of fruit ingredients used is such that in relation to the weight of the finished water ice, the weight of fruit or fruit juice as the case may be, including water necessary to reconstitute partially or wholly dried fruits or fruit juices to their original moisture content, is not less than 2.0% in the case of citrus ices, 6.0% in the case of berry ices, and 10% in the case of ices prepared with other fruits.

C. The optional sweetening ingredients referred to in subsection A of this section are: Sugar (sucrose), dextrose, invert sugar (paste or sirup), glucose sirup, dried glucose sirup, corn sirup, dried corn sirup, malt sirup, malt extract, dried malt sirup, dried malt extract, maltose sirup, dried maltose sirup.

D. Other optional ingredients referred to in subsection A of this section are:

1. a. Agar-agar, algin (sodium alginate), egg white, gelatin, gum acacia, guar seed gum, gum karaya, locust bean gum, oat gum, gum tragacanth, hydroxypropyl methyl cellulose, carrageenan, salts of carrageenan, furcelleran, salts of furcelleran, propylene glycol alginate, pectin, psyllium seed husk, sodium carboxymethylcellulose. The total weight of the solids of any such ingredient used singly, or of any combination of two or more such ingredients used, including any such ingredient added separately to the fruit ingredient, is not more than 0.5% of the weight of the finished water ice. Such ingredients may be added in admixture with dextrin, propylene glycol, or glycerin.

b. When one or more of the optional thickening ingredients in subdivision a of this subdivision are used, dioctyl sodium sulfosuccinate may be used in a quantity not in excess of 0.5% of weight of such ingredients.

2. Citric acid, tartaric acid, malic acid, lactic acid, ascorbic acid, phosphoric acid, or any combination of two or more of these in such quantity as seasons the finished food.

3. Any natural flavoring.

4. Any artificial flavoring.

5. Coloring, including artificial coloring.

E. The name of each such water ice is "__________ ice," the blank being filled with the common name of the fruit or fruits from which the fruit ingredient used is obtained. When the names of two or more fruits are included such names shall appear in the order of predominance, if any, by weight of the respective fruit ingredients used.

F. When the optional ingredients artificial coloring and artificial flavoring are used in water ices they shall be named on the labels as follows:

1. The label shall designate artificial flavoring by the statement "artificially flavored," "artificial flavoring added," "with added artificial flavoring," or "__________, an artificial flavor added," the blank being filled in with the name of the artificial flavoring used.

Label statements may be combined, as for example, "flavoring and artificial coloring added."

G. Where one or more of the optional ingredients artificial coloring or artificial flavoring are used and there appears on the labeling any representation as to the fruit or fruits in the ice, such representation shall be immediately and conspicuously accompanied by appropriate label statements as prescribed in subsection F of this section, showing the optional ingredients used.

H. Wherever the name of the food appears on the label so conspicuously as to be easily seen under customary conditions of purchase, the statements set out in this section showing the optional ingredients used shall immediately and conspicuously precede or follow such name, without intervening written, printed, or graphic matter.

I. Water ice mix is the unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of water ice.

A. Water ices are the foods that are prepared from the same ingredients and in the same manner, including labeling, as prescribed in 21 CFR 135.160.

B. Water ice mix is the unfrozen combination of ingredients that, when frozen while stirring, produces a product conforming to the description of "water ices" in 21 CFR 135.160.

2VAC5-510-130. Nonfruit sherbets; identity; label statement of optional ingredients; nonfruit sherbet mix. (Repealed.)

A. Nonfruit sherbets are the foods each of which is prepared by freezing, while stirring, a mix composed of one or more of the optional characterizing ingredients specified in subsection B of this section and one or more of the optional dairy ingredients specified in subsection C of this section, sweetened with one or more of the optional sweetening ingredients specified in subsection D of this section. One or more of the optional ingredients specified in subsection E of this section may be used, subject to the conditions hereinafter set forth. The mix of combined dairy ingredients, with or without other ingredients, is pasteurized. The mix, with or without added water, may be seasoned with salt and may be homogenized. The optional dairy ingredients used and the content of milkfat and nonfat milk solids therein are such that the weight of milkfat is not less than 1.0% and not more than 2.0% and their weight of total milk solids is not less than 2.0% and not more than 5.0% of the weight of the finished nonfruit sherbets. The optional caseinates specified in subdivision 7 of subsection E of this section are not deemed to be milk solids. The finished nonfruit sherbet weighs not less than six pounds to the gallon; except that when the optional ingredients microcrystalline cellulose specified in subdivision 9 of subsection E of this section is used, the finished nonfruit sherbet weighs not less than six pounds to the gallon, exclusive of the weight of the microcrystalline cellulose.

B. The optional characterizing ingredients referred to in subsection A of this section are:

1. Ground spice or infusion of coffee or tea.

2. Chocolate or cocoa, including sirup.

3. Confectionery.

4. Distilled alcoholic beverage, including liqueurs or wine, in an amount not to exceed that required for flavoring the sherbet.

5. Any natural or artificial food flavoring, except any having a characteristic fruit or fruit-like flavor.

C. The optional dairy ingredients referred to in subsection A of this section are: cream, dried cream, plastic cream (sometimes known as concentrated milkfat), butter, butter oil, milk, concentrated milk, evaporated milk, super-heated condensed milk, sweetened condensed milk, dried milk, skim milk, concentrated skim milk, evaporated skim milk, condensed skim milk, superheated condensed skim milk, sweetened condensed skim milk, sweetened condensed part-skim milk, nonfat dry milk, sweet cream buttermilk, condensed sweet cream buttermilk, dried sweet cream buttermilk, skim milk that has been concentrated and from which part of the lactose has been removed by crystallization, concentrated cheese whey, and dried cheese whey. Water may be added or water may be evaporated from the mix. The sweet cream buttermilk and the concentrated sweet cream buttermilk or dried sweet cream buttermilk, when adjusted with water to a total solids content of 8.5%, has a titratable acidity of not more than 0.17% calculated as lactic acid. The term "milk" as used in this section means cow's milk. Dried cheese whey is uniformly light in color, free from brown and black scorched particles, and has an alkalinity of ash not more than 225 milliliters 0.1 N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and, as adjusted with water to a total solids content of 6.5%, a titratable acidity of not more than 0.16% calculated as lactic acid. Concentrated cheese whey has an alkalinity of ash not more than 115 milliliters of 0.1 N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and, as adjusted with water to a total solids content of 6.5%, a titratable acidity of not more than 0.18% calculated as lactic acid.

D. The optional sweetening ingredients referred to in subsection A of this section are: sugar (sucrose), dextrose, invert sugar (paste or sirup), glucose sirup, dried glucose sirup, corn sirup, dried corn sirup, malt sirup, malt extract, dried malt sirup, dried malt extract, maltose sirup, dried maltose sirup.

E. Other optional ingredients referred to in subsection A of this section are:

1. Liquid eggs, frozen eggs, dried eggs, egg yolks, frozen yolks, dried yolks; but the weight of egg yolk solids therein is less than 0.5% of the weight of the finished nonfruit sherbet.

2. Agar-agar, algin (sodium alginate), calcium sulfate, egg white, gelatin, gum acacia, guar seed gum, gum karaya, locust bean gum, oat gum, gum tragacanth, hydroxypropyl methylcellulose, carrageenan, salts of carrageenan, furcelleran, salts of furcelleran, lecithin, pectin, psyllium seed husk, sodium carboxymethylcellulose. The total weight of the solids of any such ingredient used singly or of any combination of two or more such ingredients used is not more than 0.5% of the weight of the finished nonfruit sherbet. Such ingredients may be added in admixture with dextrin, propylene glycol, or glycerin.

3. Monoglycerides or diglycerides or both of fat-forming fatty acids. The total weight of such ingredients is not more than 0.2% of the weight of the finished nonfruit sherbet. If the preparation used is one having a high proportion of monoglycerides (over 90%), it may be preblended with edible fat, but the amount of such fat does not exceed 20% by weight of the blend and the total amount of the blend used does not exceed 0.2% of the weight of the finished nonfruit sherbet.

4. Polysorbate 65, polysorbate 80, or both (limit on either used separately or both used in combination of not more than 0.1% by weight of the finished frozen dessert).

5. Propylene glycol alginate (limit of not more than 0.5% by weight of the finished frozen dessert).

6. Citric acid, tartaric acid, malic acid, lactic acid, ascorbic acid, phosphoric acid, or any combinations of two or more of these in such quantity as seasons the finished food.

7. Casein prepared by precipitation with gums, ammonium caseinate, calcium caseinate, potassium caseinate, sodium caseinate.

8. Coloring, including artificial color.

9. Microcrystalline cellulose, in a quantity not to exceed 0.5% of the weight of the finished nonfruit sherbet.

10. When one or more of the optional thickening ingredients in subdivision 2 or 5 of this subsection are used, dioctyl sodium sulfosuccinate may be used in a quantity not in excess of 0.5% by weight of such ingredients.

F. Except as provided for in subsection G of this section, the name of each such nonfruit sherbet is ".... sherbet," the blank being filled in with the common or usual name or names of the characterizing flavor or flavors; for example, "peppermint."

G. If the characterizing flavor is vanilla, the name of the food is ".... sherbet," the blank being filled in as specified by 2VAC5-510-30 G 2 and 5 a.

H. When the optional ingredients artificial flavoring, artificial coloring, or microcrystalline cellulose are used in nonfruit sherbet, they shall be named on the label as follows:

1. If the flavoring ingredient or ingredients consists exclusively of artificial flavoring, the label designation shall be "artificially flavored."

2. If the flavoring ingredients are a combination of natural and artificial flavors, the label designation shall be "artificial and natural flavoring added."

3. The label shall designate artificial coloring by the statement "artificially colored," "artificial coloring added," "with added artificial coloring," or "...., an artificial color added," the blank being filled in with the name of the artificial coloring used.

4. When the optional ingredient microcrystalline cellulose is used, the label shall bear the statement "microcrystalline cellulose added" or "with added microcrystalline cellulose."

I. Wherever there appears on the label any representation as to the characterizing flavor or flavors of the food and such flavor or flavors consist in whole or in part of artificial flavoring, the statement required by subdivision 1 or 2 of subsection H of this section, as appropriate, shall immediately and conspicuously precede or follow such representation, without intervening written, printed, or graphic matter, except that the word "sherbet" may intervene, in a size reasonably related to the prominence of the name of the characterizing flavor and in any event the size of the type is not less than 6-point on packages containing less than one pint, not less than 8-point on packages containing at least one pint but less than one-half gallon, not less than 10-point on packages containing at least one-half gallon but less than one gallon, and not less than 12-point on packages containing one gallon or over.

J. Except as specified in subsection I of this section, the statements required by subsection H of this section shall be set forth on the principal display panel or panels of the label with such prominence and conspicuousness as to render them likely to be read and understood by the ordinary individual under customary conditions of purchase and use.

K. Nonfruit sherbet mix is the unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of nonfruit sherbet.

2VAC5-510-150. Nonfruit water ices; identity; label statement of optional ingredients; nonfruit water ice mix. (Repealed.)

A. Nonfruit water ices are the foods each of which is prepared by freezing, while stirring, a mix composed of one or more of the optional characterizing ingredients specified in subsection B of this section, sweetened with one or more of the optional sweetening ingredients specified in subsection C of this section. One or more of the optional ingredients specified in subsection D of this section may be used, subject to the conditions hereinafter set forth. The mix, with or without added water, may be seasoned with salt and may be homogenized. The finished nonfruit water ice weighs not less than six pounds to the gallon.

B. The optional characterizing ingredients referred to in subsection A of this section are:

1. Ground spice or infusion of coffee or tea.

2. Chocolate or cocoa, including sirup.

3. Confectionery.

4. Distilled alcoholic beverage, including liqueurs or wine, in an amount not to exceed that required for flavoring the water ice.

5. Any natural or artificial food flavoring, except any having a characteristic fruit or fruit-like flavor.

C. The optional sweetening ingredients referred to in subsection A of this section are: Sugar (sucrose), dextrose, invert sugar (paste or sirup), glucose sirup, dried glucose sirup, corn sirup, dried corn sirup, malt sirup, malt extract, dried malt sirup, dried malt extract, maltose sirup, dried maltose sirup.

D. Other optional ingredients referred to in subsection A of this section are:

1. Agar-agar, algin (sodium alginate), egg white, gelatin, gum acacia, guar seed gum, gum karaya, locust bean gum, oat gum, gum tragacanth, hydroxypropyl methylcellulose, carrageenan, salts of carrageenan, furcelleran, salts of furcelleran, propylene glycol alginate, pectin, psyllium seed husk, sodium carboxymethylcellulose. The total weight of the solids of any such ingredient used singly, or of any combination of two or more such ingredients used, is not more than 0.5% of the weight of the finished nonfruit water ice. Such ingredients may be added in admixture with dextrin, propylene glycol, or glycerin.

When one or more of the optional thickening ingredients in this subdivision are used, dioctyl sodium sulfosuccinate may be used in a quantity not in excess of 0.5% by weight of such ingredients.

2. Citric acid, tartaric acid, malic acid, lactic acid, ascorbic acid, phosphoric acid, or any combination of two or more of these in such quantity as seasons the finished food.

3. Coloring, including artificial coloring.

E. Except as provided for in subsection F of this section, the name of each such nonfruit water ice is ".... ice," the blank being filled in with the common or usual name or names of the characterizing flavor or flavors; for example, "peppermint."

F. If the characterizing flavor used is vanilla, the name of the food is ".... ice," the blank being filled in as specified by 2VAC5-510-30 G 2 and 5.

G. When the optional ingredients artificial flavoring or artificial coloring are used in nonfruit water ice, they shall be named on the label as follows:

1. If the flavoring ingredient or ingredients consist exclusively of artificial flavoring, the label designation shall be "artificially flavored."

2. If the flavoring ingredients used are a combination of natural and artificial flavors, the label designation shall be "artificial and natural flavoring added."

3. The label shall designate artificial coloring by the statement "artificially colored," "artificial coloring added," "with added artificial coloring," or "...., an artificial color added," the blank being filled in with the name of the artificial coloring used.

H. Wherever there appears on the label any representation as to the characterizing flavor or flavors of the food and such flavor or flavors consist in whole or in part of artificial flavoring, the statement required by subdivision 1 or 2 of subsection G of this section, as appropriate, shall immediately and conspicuously precede or follow such representation, without intervening written, printed, or graphic matter, except that the word "ice" may intervene, in a size reasonably related to the prominence of the name of the characterizing flavor and in any event the size of the type is not less than 6-point on packages containing less than one pint, not less than 8-point on packages containing at least one pint but less than one-half gallon, not less than 10-point on packages containing at least one-half gallon but less than one gallon and not less than 12-point on packages containing one gallon or over.

I. Except as specified in subsection H of this section, the statements required by subsection G of this section shall be set forth on the principal display panel or panels of the label with such prominence and conspicuousness as to render them likely to be read and understood by the ordinary individual under customary conditions of purchase and use.

J. Nonfruit water ice mix is the unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of nonfruit water ice.

2VAC5-510-170. Artificially sweetened ice cream or frozen dietary dairy dessert; identity; label statement of optional ingredients; artificially sweetened ice e cream mix or frozen dietary dairy dessert mix. (Repealed.)

A. Artificially sweetened ice cream or frozen dietary dairy dessert means ice cream manufactured, prepared, or processed for consumption by persons who wish to restrict their intake of ordinary sweetening ingredients and shall conform to the definition and standard of identity prescribed for ice cream in 2VAC5-510-30, except that it shall be sweetened with an artificial sweetening agent and contains edible carbohydrates other than sugar. The artificial sweetening agent and the edible carbohydrates shall be approved by the Federal Food and Drug Administration and no sugars other than those naturally present in the milk solids or flavoring agent shall be added thereto.

B. The manufacturer shall place the product in packages or containers which shall be conspicuously labeled either "artificially sweetened" immediately preceding the words "ice cream" in similar type at least one-half the size of the type used for the words "ice cream" and on the same contrasting background, or "frozen dietary dairy dessert."

C. The label shall also contain a statement in terms of percentage by weight of protein, fat, and carbohydrates, the total number of calories per ounce, the number of calories contributed by carbohydrates and any carbohydrates other than lactose, and the name of each ingredient entering into the composition other than flavors.

D. The following statement shall appear conspicuously following the declaration of the artificial sweetener used, such as "Contains.... % saccharine, (or sodium salt of saccharine, as the case may be), a non-nutritive artificial sweetener which should be used only by persons who must restrict their intake of ordinary sweets." The blank is to be filled in with the percent by weight of saccharine or other artificial sweetener in said product.

E. The product shall not be sold in any manner other than in sealed or unbroken packages or containers from one or more separate compartments of a refrigerated container or cabinet.

F. Artificially sweetened ice cream mix or frozen dietary dairy dessert mix is the pasteurized unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of artificially sweetened ice cream or frozen dietary dairy dessert.

2VAC5-510-190. Artificially sweetened ice milk; identity; label statement of optional ingredients; artificially sweetened ice milk mix. (Repealed.)

A. Artificially sweetened ice milk means ice milk manufactured, prepared, or processed for consumption by persons who wish to restrict their intake of ordinary sweetening ingredients and shall conform to the definition and standard of identity prescribed for ice milk in 2VAC5-510-70 , except that it shall be sweetened with an artificial sweetening agent and contains edible carbohydrates other than sugar. The artificial sweetening agent and the edible carbohydrates must be approved by the Federal Food and Drug Administration and no sugars other than those naturally present in the milk solids or flavoring agent shall be added thereto.

B. The manufacturer shall place the product in packages or containers which shall be conspicuously labeled "artificially sweetened" immediately preceding the words "ice milk" in similar type at least one-half the size of the type used for the words "ice milk" and on the same contrasting background.

C. The label shall also contain a statement in terms of percentage by weight of protein, fat, and carbohydrates, the total number of calories per ounce, the number of calories contributed by carbohydrates and any carbohydrates other than lactose, and the name of each ingredient entering into the composition other than flavors.

D. The following statement shall appear conspicuously following the declaration of the artificial sweetener used, such as "contains.... % saccharine, (or sodium salt of saccharine, or other artificial sweetener, as the case may be), a nonnutritive artificial sweetener which should only be used by persons who must restrict their intake of ordinary sweets." The blank is to be filled in with the percent by weight of saccharine or other artificial sweetener in said product.

E. The product shall not be sold in any manner other than in sealed or unbroken packages or containers from one or more separate compartments of a refrigerated container or cabinet.

F. Artificially sweetened ice milk mix is the pasteurized unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of artificially sweetened ice milk.

2VAC5-510-210. Frozen yogurt; identity; label statement of optional ingredients; frozen yogurt mix; shipping frozen yogurt mix.

A. Frozen yogurt is a food which that is prepared by freezing while stirring a pasteurized mix, containing one or more of the following ingredients, whole milk, partially defatted milk, skim milk, or other milk products, and with or without fruits, nuts, flavoring materials, sweeteners, stabilizers, emulsifiers, and any other safe and suitable approved ingredient which that is cultured after pasteurization by one or more strains of Lactobacillus delbrueckii subsp. bulgaricus and Streptcoccus thermophilus; provided, however, that fruits, nuts, or other flavoring materials may be added before or after the mix is pasteurized and cultured. The standard plate count requirement for frozen desserts shall apply only to the mix prior to culturing. The finished frozen yogurt shall weigh not less than 5 five pounds per gallon. The name of the product is "frozen yogurt." The label on a package of frozen yogurt, in addition to other required information, shall include a complete list of all ingredients in descending order or predominance; for the purposes of Part III (2VAC5-510-30 et seq.) of this chapter, the strains of bacteria may be collectively referred to as yogurt culture.

B. Frozen yogurt mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, will produce a product conforming to the definition of frozen yogurt.

C. Frozen yogurt mix may be shipped in a frozen state to plants and frozen desserts retail establishments.

2VAC5-510-240. Quiescently frozen confection; identity; label statement of optional ingredients; quiescently frozen confection mix.

A. Quiescently frozen confection means the frozen, sweetened, flavored product in the manufacture of which freezing has not been accompanied by stirring or agitation, generally known as quiescent freezing. This confection may be acidulated with harmless organic acid, may contain milk products, may be made with or without added harmless natural or artificial flavoring, with or without added harmless coloring. The finished product may contain shall not contain more than one-half of 1.0% by weight of stabilizing agents. The finished product shall contain not less than 17% by weight of total food solids. This confection must be manufactured in the form of servings, individually packaged, bagged, or otherwise wrapped, properly labeled and purveyed to the consumer in its original factory-filled package. In the production of this quiescently frozen confection, no processing or mixing prior to quiescent freezing shall be used that develops in the finished confection mix any physical expansion in excess of 10%.

B. Quiescently frozen confection mix is the unfrozen combination of ingredients that, when frozen, will produce a product conforming to the definition of quiescently frozen confection.

2VAC5-510-260. Quiescently frozen dairy confection; identity; label statement of optional ingredients; quiescently frozen dairy confection mix.

A. Quiescently frozen dairy confection means the frozen product made from water, pasteurized milk products, and sweetening agents, with added harmless coloring, with or without added stabilizing and emulsifying ingredients, and in the manufacture of which freezing has not been accompanied by stirring or agitation, generally known as quiescent freezing. It contains not less than 13% by weight of total milk solids, not less than 33% by weight of total food solids, not more than one-half of 1.0% by weight of stabilizing agents, not more than one-fifth of 1.0% by weight of monoglycerides or diglycerides or a combination of both, not more than one-tenth of 1.0% by weight of polysorbate 65 or polysorbate 80 or a combination of both. This confection must be manufactured in the form of servings individually packaged, bagged, or otherwise wrapped, properly labeled and purveyed to the consumer in its original factory-filled package. In the production of this quiescently frozen dairy confection, no processing or mixing prior to quiescent freezing shall be used that develops in the finished confection mix any physical expansion in excess of 10%.

B. Quiescently frozen dairy confection mix is the pasteurized, unfrozen combination of ingredients that, when frozen, will produce a product conforming to the definition of quiescently frozen dairy confection.

2VAC5-510-280. Manufactured desserts mix; identity; label statement of optional ingredients.

Manufactured desserts mix, whipped cream confection, or bisque tortoni means a pasteurized frozen dessert made with milk products, sweetening agents, flavoring agents, stabilizing agents, and emulsifying agents, with or without harmless coloring. It contains not less than 18% by weight of milkfat, not more than one-half of 1.0% by weight of stabilizing agents, not more than two-tenths of 1.0% by weight of monoglycerides or diglycerides of fat forming fatty acids or a combination of both, not more than one-tenth of 1.0% by weight of polyoxyethylene (20) sorbitan tristearate or polysorbate eighty 80 (polyoxyethelene (20) sorbitan monooleate) or a combination of both, not more than 12% of milk solids not fat, and may be packaged with harmless gas, as prescribed in 21 CFR Part 184, causing it to fluff upon ejection from the package or container.

2VAC5-510-290. Mellorine; identity; label statement of ingredients; mellorine mix.

A. Mellorine conforms to the definition and standard of identity, and is subject to the requirements for optional ingredients, prescribed for ice cream by 2VAC5-510-30, except that in place of optional dairy ingredients containing butterfat as permitted pursuant to 2VAC5-510-30 C, edible fats or oils other than milkfat are used, and provided further that the weight of edible fats or oils other than milkfat, is not less than 10% of the weight of the finished mellorine and the weight of the milk solids not fat is not less than 10% of the weight of the finished mellorine, except that when one or more of the bulky optional ingredients as specified in 2VAC5-510-30 B 3, 4, 5, 6, 7, or 8 are used, the weight of the edible fats or oils other than milkfat and the combined weight of edible fats or oils other than milkfat and milk solids not fat, exclusive of any fat and milk solids not fat in any malted milk used, are not less than 10% and 20% respectively, of the remainder obtained by subtracting the weight of such optional ingredients as provided in 2VAC5-510-30 A, from the weight of the finished mellorine, but in no case is the weight of edible fats or oils other than milkfat, or the combined weight of edible fats and oils other than milkfat and milk solids not fat to be less than 8.0% and 16% respectively of the weight of the finished mellorine, and that whenever provisions appear in 2VAC5-510-30 referring to milkfat, it shall be understood to be edible fats or oils other than milkfat in the case of mellorine is the food prepared from the same ingredients and in the same manner, including labeling, as prescribed in 21 CFR 135.130.

B. The name of the product is "mellorine."

C. When any artificial color is used in mellorine, directly or as a component of any other ingredient, the label shall bear the statement, "artificially colored," "artificial coloring added," "with added artificial color," or "...., an artificial color added," the blank to be filled in with the common or usual name of the artificial color; or in lieu thereof, in case the artificial color is a component of another ingredient, "...., artificially colored."

D. If both artificial color and artificial flavoring are used, the label statements may be combined.

E. Mellorine shall be manufactured in the form of servings individually packaged, bagged, or otherwise wrapped, properly labeled and purveyed to the consumer in its original plant sealed container.

F. The label on a package of mellorine shall conform to the provisions of 2VAC5-510-30 G and in addition to other required information shall include the name "Mellorine" in a conspicuous manner. Mellorine may not be designated by the use of the word "cream" or its phonetic equivalent.

G. B. Mellorine mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, will produce a product conforming to the definition description of mellorine in 21 CFR 135.130.

2VAC5-510-310. Parevine; parevine mix.

A. Parevine is the food prepared by freezing, while stirring, a pasteurized mix composed of: (i) one or more edible vegetable fats; (ii) any optional sweetening ingredient except lactose; and (iii) protein or any other source of carbohydrate food solids. Parevine shall not contain any milk or meat products or any derivatives of such products.

B. Its The fat content of parevine shall not be less than 10%, except that when bulky optional characterizing ingredients are used, the fat content may be reduced, as a result of the addition of such ingredients, but shall in no case be less than 8.0%.

C. Its The content of food solids in parevine shall not be less than 1.3 pounds per gallon of the finished product.

D. The weight of the finished product shall not be less than 4.5 pounds per gallon.

E. Parevine shall be offered in the form of servings individually packaged, bagged, or wrapped and properly labeled and purveyed to the consumer in original plant sealed plant-sealed container. When any artificial color or flavor is used in parevine directly or indirectly as a component of any other ingredient, then it must be declared in the label must bear the statement, "Artificial color and flavor added," or similar words of like import.

F. Parevine mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, will produce a product conforming to the definition description of parevine in this section.

2VAC5-510-330. Lowfat parevine; lowfat parevine mix.

A. Lowfat parevine is the food prepared by freezing, while stirring, a pasteurized mix composed of: (i) one or more edible vegetable fats; (ii) any optional sweetening ingredient except lactose; and (iii) protein or any other source of carbohydrate food solids. Lowfat parevine shall not contain any milk or meat products nor any derivatives of such products.

B. Its The fat content of lowfat parevine shall not be more than 6.0%.

C. Its The content of food solids in lowfat parevine shall not be less than 1.3 pounds per gallon of the finished product.

D. The weight of the finished product shall not be less than 4.5 pounds per gallon.

E. Lowfat parevine shall be offered in the form of servings individually packaged, bagged, or wrapped and properly labeled and purveyed to the consumer in original plant sealed plant-sealed container. When any artificial color or flavor is used in lowfat parevine directly or indirectly as a component of any other ingredient, then it must be declared in the label must bear the statement, "Artificial color and flavor added," or similar words of like import.

F. Lowfat parevine mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, will produce a product conforming to the definition description of lowfat parevine in this section.

2VAC5-510-350. Freezer made milk shake; identity; label statement of optional ingredients; freezer made milk shake mix.

A. Freezer made milk shake means a pure, clean, wholesome semi-viscous drink prepared by stirring while freezing in a dispensing freezer a pasteurized mix obtained from an approved source consisting of milkfat, milk solids not fat, water, optional sweetening ingredients, with or without egg or egg products, with harmless flavoring, with or without harmless coloring, and with or without approved stabilizer or approved emulsifier. It shall contain not less than three and one-fourth percent 3.25% milkfat. It shall contain not less than 10% milk solids not fat, it shall contain not more than one-half percent 0.5% by weight of stabilizer and not more than one-fifth of 1.0% of emulsifier. Freezer made milk shakes may only be sold or served from a dispensing freezer and may not be sold hard frozen.

B. Other freezer made shakes including jumbo shake, thick shake, T.V. shake, or any coined or trade name containing the word "shake" shall meet the requirements of subsection A of this section, except that the minimum percent of milkfat may be less than three and one-fourth percent 3.25%.

C. "Shakes" not meeting the requirement for "milk" shakes shall not be advertised, sold, or served as a milk shake.

D. Freezer made milk shake mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, will produce a product conforming to the definition description of freezer made milk shake in this section.

2VAC5-510-370. Freezer made shake mix. (Repealed.)

Freezer made shake mix is the pasteurized unfrozen combination of ingredients which when frozen while stirring will produce a product conforming to the definition of freezer made shake.

2VAC5-510-380. Frozen desserts; identity. (Repealed.)

Frozen desserts mean any or all of the following: Ice Cream, Frozen Custard, French Ice Cream, French Custard Ice Cream, Ice Milk, Fruit Sherbets, Water Ices, Non-Fruit Sherbets, Non-Fruit Water Ices, Artificially Sweetened Ice Cream or Frozen Dietary Dairy Dessert, Artificially Sweetened Ice Milk, Frozen Yogurt, Quiescently Frozen Confection, Quiescently Frozen Dairy Confection, Mellorine, Parevine, Lowfat Parevine, Freezer Made Milk Shakes and Freezer Made Shakes. Frozen desserts shall also mean the mix used in the freezing of the preceding list of frozen desserts. Powder or dry frozen dessert mixes are not required to be repasteurized when reconstituted with water as described in 2VAC5-510-540 A.

2VAC5-510-390. Imitation frozen desserts; identity; prohibitions, exceptions, filings confidential.

A. Imitation frozen dessert is any frozen substance, mixture, or compound, regardless of the name under which it is represented, which that is made in imitation or semblance of ice cream, or is prepared or frozen as ice cream is customarily prepared or frozen, and which that is not Ice Cream; Frozen Custard; French Ice Cream; and French Custard Ice Cream; Ice Milk; Fruit Sherbets; Water Ices; Non-Fruit Sherbets; Non-Fruit Water Ices; Artificially Sweetened Ice Cream or Frozen Dietary Dessert; Artificially Sweetened Ice Milk; Frozen Yogurt; Quiescently Frozen Confection; Quiescently Frozen Dairy Confection; Mellorine; Parevine; Lowfat Parevine; Freezer Made Milk Shakes; and Freezer Made Shakes ice cream, frozen custard, french ice cream, french custard ice cream, ice milk, fruit sherbet, water ice, nonfruit sherbet, nonfruit water ice, artificially sweetened ice cream or frozen dietary dessert, artificially sweetened ice milk, frozen yogurt, quiescently frozen confection, quiescently frozen dairy confection, mellorine, parevine, lowfat parevine, or freezer made milk shake, as established by definitions and standards of identity in Part III (2VAC5-510-30 et seq.) of this chapter.

B. Powder or dry imitation frozen desserts mixes which that contain no milk or other dairy product ingredients but contain dry whey, reduced minerals whey, whey protein concentrate, reduced lactose whey and/or, or optional caseinates specified in 2VAC5-510-30 E are exempted from the pasteurization requirements of Part XII (2VAC5-510-550 et seq.) of this chapter. The wheys, caseinates, or egg ingredients used in the formulation of these mixes shall have been pasteurized or subjected to any other method of process demonstrated to be equally efficient. Powder or dry imitation frozen dessert mixes shall contain no ingredients except those which that are generally recognized as safe by the Federal U.S. Food and Drug Administration or those which that are permitted by this chapter in a frozen dessert.

C. Imitation frozen desserts sold at the retail level may be drawn from a dispensing freezer and a sign must be plainly marked "Imitation....," the blank being filled in with the name of the frozen dessert imitated, in a manner conspicuous to the public in letters at least three inches in height. Imitation frozen desserts shall not be dispensed for sale from packages or containers. "Dispensed" shall mean dipping and scooping from packages or containers.

D. C. No imitation frozen desserts shall be manufactured, sold, advertised, offered, or exposed for sale in this the Commonwealth unless 30 days prior to such manufacture, advertisement, offer, exposure for sale, or sale, the manufacturer, offeror, or dealer shall file files with the commissioner such intent. The filing herein required by this subsection shall be on forms supplied by the commissioner and shall include such information as the name under which the imitation frozen dessert is to be advertised or offered for sale, ingredients including any optional ingredients, proportion of ingredients expressed in a percentage, method of preparation, and any other relevant information the commissioner may require.

E. D. Information filed pursuant to this section shall be confidential and used solely for administration and enforcement of this chapter.

F. E. Imitation frozen desserts shall be considered as frozen desserts in the enforcement of Parts IV (2VAC5-510-410 et seq.) through XIV (2VAC5-510-630 et seq.) of this chapter.

2VAC5-510-415. Recall plan.

A. Each permit holder shall develop a recall plan that, when implemented, will effectively protect the public from frozen dessert products that present a risk of illness, injury, or gross deception, or are otherwise defective. Each permit holder shall submit a recall plan to VDACS prior to the issuance of any frozen desserts plant permit. VDACS shall review the recall plan or require the recall plan to be modified by the permit holder. A permit holder shall review the permit holder's recall plan annually and each time the permit holder introduces a new product. Within the 60 days following a recall plan review, if the permit holder determines that modifications to the recall plan are necessary, the permit holder shall revise the recall plan and submit the revised plan to VDACS for approval.

B. A recall plan shall include provisions to provide the following information to VDACS:

1. Identity of the product involved in the recall;

2. Reason for the recall and the date and circumstances under which the product deficiency or possible deficiency was discovered;

3. Evaluation of the risk associated with the deficiency or possible deficiency;

4. Total amount of identified products produced and the time span of the production;

5. Total amount of identified products estimated to be in distribution channels;

6. Distribution information, including the identity of each person to which the identified product was sold and the number of identified products sold to each person;

7. Draft copy of the permit holder's proposed recall communication;

8. Proposed strategy for conducting the recall; and

9. Name and telephone number of the permit holder's representative who should be contacted concerning the recall.

C. Each permit holder shall promptly notify each of its affected direct accounts about a recall and shall prepare a recall communication to:

1. Clearly identify the product, size, lot number, code or serial number, and any other descriptive information to enable accurate and immediate identification of the recalled product;

2. Explain concisely the reason for the recall and the hazard involved, if any;

3. Provide specific instructions on what should be done with respect to the recalled product;

4. Require the affected direct account to report to the recalling firm the quantity of the recalled product that the affected direct account has in its possession;

5. State that further distribution or use of any remaining product should cease immediately; and

6. Where appropriate, state that the affected direct account should notify its customers who received the recalled product.

D. Each permit holder shall provide recall status reports to VDACS as requested by the VDACS until the recall is terminated. Each permit holder shall include in each recall status report the following information:

1. The number of affected direct accounts notified of the recall and the date and method of notification;

2. The number of affected direct accounts responding to the recall communication and the quantity of products in the affected direct account's possession at the time the recall communication was received;

3. The number and identity of the affected direct accounts that did not respond to the recall communication;

4. The number of products returned or corrected by each affected direct account that was contacted and the quantity of products that are accounted for;

5. The number of effectiveness checks that were made and the results of those checks; and

6. The estimated timeframe for completion of the recall.

E. Each permit holder shall implement its recall plan within eight hours after receipt of written notification to do so by VDACS. If the permit holder fails to implement its recall plan within the eight hours, VDACS may prepare and issue the recall communication.

2VAC5-510-420. Issuing, suspension, and revocation of permits.

A. It shall be unlawful for any person who does not possess a permit from the Virginia Department Commissioner of Agriculture and Consumer Services to bring into, send into, or receive into the Commonwealth of Virginia for sale, or to sell, or offer for sale therein, or to have in storage with intent to offer for sale or sell frozen desserts or frozen desserts mix identified in this chapter: Provided, that grocery stores, restaurants, soda fountains, and similar establishments where frozen desserts or frozen desserts mix are regularly served or sold at retail, but not processed, may be exempt from the requirements of this chapter manufacture in the Commonwealth any food listed in § 3.2-5212 of the Code of Virginia.

B. Only a person who complies with the requirements of this chapter shall be entitled to receive and retain such a permit. Permits shall not be transferable with respect to persons or locations.

C. The State Regulatory Authority Agency may immediately temporarily suspend such permit, without notice of hearing, whenever it has reason to believe that a public health hazard exists or is imminent, or in case of willful refusal to permit authorized inspection;, provided that a formal notice and hearing shall be afforded such suspended permit holder within 72 hours of such suspension. In all other cases of violation of this chapter, the State Regulatory Authority Agency may serve upon the holder a written notice of intent to suspend the permit. This notice shall specify the violations in question and may afford the holder a reasonable opportunity to correct the violations; or the State Regulatory Authority Agency shall afford the permit holder the opportunity for a formal hearing pursuant to § 2.2-4020 of the Code of Virginia before taking action to suspend or revoke a permit. A suspension of permit shall remain in effect until the violation has been corrected to the satisfaction of the State Regulatory Authority Agency.

D. Upon gross or repeated violations, the State Regulatory Authority Agency may revoke the permit following reasonable notice to the permit holder and an opportunity for a hearing. Part V (2VAC5-510-420 et seq.) of this chapter Nothing in this section is not intended to preclude the institution of court action.

E. The State Regulatory Agency may cancel, suspend, revoke, or deny the permit of any person if:

1. The permit holder does not daily or on a regular basis produce, provide, manufacture, sell, offer for sale, or store in the Commonwealth of Virginia ice cream, frozen desserts, or similar products;

2. The permit holder fails to provide at no cost to the State Regulatory Agency samples of ice cream, frozen desserts, or similar products in the permit holder's possession for testing by the State Regulatory Agency;

3. A public hazard exists that affects the permit holder's ice cream, frozen dessert, or similar products;

4. The permit holder or any agent of the permit holder has obstructed or interfered with the State Regulatory Agency in the performance of the State Regulatory Agency's duties;

5. The permit holder or any agent of the permit holder knowingly supplies false or misleading information to the State Regulatory Agency (i) in the person's application for a permit, (ii) concerning the identity of the person who will control the facility that is the subject of the permit, (iii) concerning any investigation conducted by the State Regulatory Agency, or (iv) concerning the location of any part of the permit holder's operation that is subject to a permit;

6. The permit holder fails to correct any deficiency that the State Regulatory Agency has cited in a written notice of intent to suspend the permit holder's permit, as a violation of this chapter;

7. The permit holder sells or offers to sell ice cream, frozen desserts, or similar products that violate any requirement of this chapter;

8. The most recent phosphate test on the permit holder's ice cream, frozen desserts, or similar products containing dairy violates the standard specified in this chapter;

9. The person manufactures, freezes, sells, offers or exposes for sale, or has in possession with the intent to sell any milk product, frozen dessert ingredients, or frozen dessert mix that is adulterated or misbranded or that does not conform to the product definition or of any requirement made and promulgated under this chapter; or

10. The State Regulatory Agency determines that conditions exist in a frozen desserts plant that would render such entity significantly out of compliance with an applicable provision of this chapter.

The State Regulatory Agency may summarily suspend a permit for violation of subdivision 4, 6, 7, 8, or 9 of this subsection.

F. The Commissioner of Agriculture and Consumer Services may suspend from sale or seize any frozen dessert product in violation of this chapter that is processed by any frozen desserts plant permit holder in lieu of suspending the frozen desserts plant permit holder's permit.

G. The Commissioner of Agriculture and Consumer Services may exempt a person who makes a frozen dessert and sells that frozen dessert directly to the consumer from the requirement to obtain a permit issued pursuant to § 3.2-5214 of the Code of Virginia. However, a person who pasteurizes the milk, milk products, or eggs used as ingredients in the frozen dessert is not eligible for this exemption.

2VAC5-510-430. Name and address of manufacturer, statement of quantity, and product identity and optional ingredients.

A. Any frozen dessert or frozen dessert mix in which a standard of identity has been established under Part III (2VAC5-510-30 et seq.) of this chapter (2VAC5-510-30 et seq.) shall be deemed to be misbranded if in container or package form unless it bears a label containing:

1. The name and address of the frozen desserts plant or retail establishment in which the frozen dessert or frozen dessert mix is manufactured, or the name and address of the manufacturer's principal office and a code designation approved by the Commissioner of Agriculture and Consumer Services identifying the plant or establishment in which the food was manufactured.

2. An accurate statement of the quantity of content in terms of liquid measure.

3. The name of the frozen dessert or frozen dessert mix defined under the standards of identity of Part III of this chapter (2VAC5-510-30 et seq.), and

4. The label statement of optional ingredients as required under Part III of this chapter (2VAC5-510-30 et seq.).

B. Where the frozen dessert or frozen dessert mix is not manufactured by the person whose name appears on the label, the label must identify the manufacturer by a code designation approved by the Virginia Commissioner of Agriculture and Consumer Services.

C. All labels must comply with the applicable requirements of 21 CFR Part 101 and any applicable requirements of 21 CFR Part 135.

Part VII

Inspection of Frozen Desserts Plants and Frozen Desserts Retail Establishments

2VAC5-510-440. Frequency, filing of inspection reports and confidentiality.

A. Each frozen desserts plant or frozen desserts establishment in this state whose products are intended for consumption within the Commonwealth of Virginia, shall be inspected by the State Regulatory Authority Agency prior to the issuance of a permit. Following the issuance of a permit, each frozen desserts plant or retail establishment shall be inspected at least once every three months. Should the violation of any requirement set forth in Part VIII (2VAC5-510-450 et seq.) or Part X (2VAC5-510-480 et seq.) of this chapter be found on any inspection, a second inspection shall be required after the time deemed necessary to remedy the violation, but not before three days have passed. This second inspection shall determine compliance with the requirements of Part VIII (2VAC5-510-450 et seq.) and Part X (2VAC5-510-480 et seq.). Any violation of the same requirement of Part VIII (2VAC5-510-450 et seq.) or Part X (2VAC5-510-480 et seq.) on such second inspection shall be cause for permit suspension according to Part V (2VAC5-510-420 et seq.) of this chapter (2VAC5-510-420 et seq.), or court action, or both.

B. One A copy of each inspection report shall be handed provided to the operator or other responsible person, or be posted in a conspicuous place on an inside wall of inside the establishment. This inspection report shall not be defaced, and shall be made available to the State Regulatory Authority Agency upon request. An identical copy of the inspection report shall be filed with the State Regulatory Authority. Every plant or frozen desserts establishment operator shall, upon request of the State Regulatory Authority Agency, permit access of officially designated persons to all parts of his the operator's plant, establishment, or facilities at any reasonable time to determine compliance with the provisions of this chapter.

C. It shall be unlawful for any person who in an official capacity obtains any information under the provisions of this chapter to use such information to his that person's own advantage or to reveal it to any unauthorized person.

2VAC5-510-450. Product test procedures and the examination of frozen desserts and their ingredients.

A. At irregular intervals during any six month period, at least four samples of frozen desserts and pasteurized mix from each plant shall be taken and examined by the State Regulatory Authority Agency. Samples of the frozen desserts or mix may be taken at any time prior to final delivery.

B. Frozen desserts establishments operating seasonally shall be sampled once every six weeks.

C. Freezer-made milk shakes and freezer-made shakes shall be sampled once every three months, with check samples of violations to be taken promptly.

D. B. Frozen desserts and mixes imported and offered for sale in the Commonwealth of Virginia shall may be sampled and tested as deemed necessary for the State Regulatory Authority Agency.

E. C. The products shall be tested in accordance with tests and examinations contained in Standard Methods for the Examination of Dairy Products or Official Methods of Analysis of the Association of Official Analytical Chemists AOAC International. A modified Roese-Gottlieb test, such as the Mojonnier or Dietert, may be used in making an official determination of the butterfat and total solids content of frozen dairy food products.

F. D. The bacterial quality of commingled milk and cream, and other dairy products for use in the manufacture of frozen desserts and mix, shall comply with the Commonwealth of Virginia regulations for Milk for Manufacturing Purposes and its Production and Processing Regulations Governing Milk for Manufacturing Purposes (2VAC5-531).

2VAC5-510-460. Quality standards Maximum allowable microbiological and temperature limits for pasteurized dairy ingredients, pasteurized and unpasteurized mixes or, and frozen desserts.

Pasteurized⁵ mix, dairy ingredients, frozen desserts, and unpasteurized⁵ imitation mixes and imitation frozen desserts shall comply with the following standards:

Bacteria Count
	Standard Plate Count Not More Than1	Coliform Determ Presence Not More Than1	Storage Temp.
Milk	50,000/ml	10/ml	45°F (7.2°C)
Cream	50,000/ml	10/ml	45°F (7.2°C)
Fluid Dairy Ingredient	50,000/ml	10/ml	45°F (7.2°C)
Mix	50,000/gr	10/gr	45°F (7.2°C)2, 3, 6
Frozen Dessert (plain)	50,000/gr	10/gr4
1In three out of the last five consecutive samples taken by the State Regulatory Agency. 2This does not preclude holding mix at higher temperatures for a short period of time immediately prior to freezing where applicable to particular manufacturing or processing practices. 3This does not apply to sterilized mix in hermetically sealed containers. 420/gr. for chocolate, fruit, nuts, or other bulky flavored frozen desserts. 5The phenol value shall be no greater than the minimum specified for the particular product, as determined by the phosphatase test of the latest edition of "Standard Methods." 6This does not apply to powder or dry frozen desserts mix.

¹In three out of the last five consecutive samples taken by the Regulatory Agency.

²This does not preclude holding mix at higher temperatures for a short period of time immediately prior to freezing where applicable to particular manufacturing or processing practices.

³This does not apply to sterilized mix in hermetically sealed containers.

⁴20/gr. for chocolate, fruit, nuts, or other bulky flavored frozen desserts.

⁵The phenol value shall be no greater than the minimum specified for the particular product, as determined by the phosphatase test of the latest edition of "Standard Methods."

⁶This does not apply to powder or dry frozen desserts mix.

2VAC5-510-470. Written notices, removal of products from sale, and permit suspension.

A. Whenever two of the last four consecutive bacteria counts, coliform determinations, or cooling temperatures taken on separate days exceed the limit of the standard for milk, cream, fluid dairy ingredients, frozen dessert mix, or frozen desserts, the State Regulatory Authority Agency shall send a written notice thereof of the exceedance to the person concerned. This notice shall be in effect so long as two of the last four consecutive samples exceed the limit of the standard. An additional sample of the product in violation shall be taken within 14 21 days of the sending of such notice, but not before the lapse of three days. Immediate suspension of permit or court action shall be instituted whenever the standard is violated by three of the last five bacteria counts, coliform determinations, or cooling temperatures.

B. The State Regulatory Authority Agency may forego forgo suspension of the permit, provided that the product or products in violation are not sold or offered for sale.

C. Whenever a phosphatase test is positive, the cause shall be determined. Where the cause is improper pasteurization, it shall be corrected, and any product involved shall not be offered for sale.

2VAC5-510-490. Building.

A. Construction, maintenance, and plants.

1. Buildings shall be of sound construction. The exterior and interior shall be kept clean and in good repair to protect against dust, dirt, and mold, and to prevent the entrance or harboring of insects, rodents, vermin, and other animals.

2. In processing areas, outside doors, windows, skylights, and transoms shall be screened or otherwise covered. Such outside doors shall not open inward and shall be self-closing;, and doors leading to processing rooms shall be sound and tight fitting. Windowsills on new construction shall be sloping. Outside conveyor openings and other special type outside openings for sanitary pipelines shall be covered when not in use;, and service-pipe openings shall be completely cemented around the pipe opening or have tight metal collars.

3. All rooms, compartments, coolers, freezers, and dry storage space in which any raw material packaging, ingredient supplies, or finished products are handled, processed, manufactured, packaged, or stored shall be designed and constructed to assure ensure clean and orderly operations. Rooms for receiving milk shall be separated from the processing area by a partition or suitable arrangement of equipment or facilities to avoid contamination of milk or dairy products. Boiler and tool rooms shall be separated from other rooms. Toilet and dressing rooms shall be conveniently located and shall not open directly into any room in which milk, dairy products, or ingredients are handled, processed, packaged, or stored. Doors of all toilet rooms shall be self-closing;, and fixtures shall be kept clean and in good repair.

4. Plans for new plant construction or major remodeling of existing plants shall be submitted to the State Regulatory Authority Agency for approval prior to such new construction or remodeling.

B. Interior finishing.

1. In all rooms in which milk or dairy products are received and processed and where mix and frozen desserts are manufactured, packaged, or stored, (except dry storage of packaging materials), or in which equipment or utensils are washed, the walls, ceilings, partitions, and posts shall be smoothly finished with a washable material of light color that is substantially impervious to moisture. A wainscoting of a suitable material in a darker color may be used to a height not exceeding 60 inches from the floor.

2. The floors in these rooms shall be of concrete or other impervious material and shall be smooth, properly graded to drain, and have drains trapped;, except that freezers used for storing frozen desserts, frozen fruits, frozen eggs, and comparable ingredients need not be provided with floor drains;, but the floors shall be sloped to drain to one or more exits, and shall be kept clean. The plumbing shall be installed to prevent backup of sewage into the plant. On new construction or extensive remodeling, the floors shall be joined and coved with the walls to form watertight joints. Sound, smooth, wood floors may be used in certain packaging rooms where the nature of the product permits. Toilet and dressing rooms shall have impervious floors and smooth walls.

C. Ventilation and lighting.

1. All rooms and compartments (, including storage space and toilet and dressing rooms), shall be ventilated to maintain sanitary conditions, prevent undue condensation of water vapor, and minimize or eliminate objectionable odors.

2. Lighting, whether natural or artificial, shall be of good quality and well distributed in all rooms and compartments. All rooms where milk, dairy products, or mix and frozen desserts are handled, processed, manufactured, or packaged, or where equipment or utensils are washed, shall have at least 30 foot-candles of light intensity on all working surfaces; areas where dairy products are examined for condition and quality, at least 50 foot-candles of light intensity; and all other rooms, at least five foot-candles or intensity measured 30 inches above the floor. Light bulbs and fluorescent tubes shall be protected against breakage.

2VAC5-510-500. Facilities.

A. Water supply.

1. Both hot and cold water of safe and sanitary quality shall be available in sufficient quantity for all plant operations and facilities. Water from other lines, when officially approved, may be used for boiler feed water and condenser water, if such water lines are completely separated from the water lines carrying the sanitary water supply, and if the equipment is constructed and controlled to prevent contamination of any product or product contact surface. There shall be no cross-connections between safe and unsafe water lines or between private and public supply.

2. Bacteriological examination shall be made of the plant sanitary private water supply at least once every six months by the appropriate State Regulatory Authority Agency to determine purity and safety for use in processing or manufacturing dairy products.

3. The results of all plant private water supply tests shall be kept on file at the plant for at least one year. Public water supply tests shall be made available to the State Regulatory Agency if requested.

B. Employee facilities.

1. In addition to toilet and dressing rooms, the plant shall provide the following employee facilities:

a. Conveniently located sanitary drinking water;

b. A locker or other suitable facility for each employee;

c. b. Hand washing facilities, including hot and cold running water, under pressure and connected to the sewage system; soap or other detergents and sanitary rooms and at other places; and single service towels or an approved hand drying device where necessary for the cleanliness of all personnel handling products; and

d. c. Self-closing containers for used towels and other wastes.

2. A durable, legible sign shall be posted conspicuously in each toilet and dressing room directing employees to wash their hands before returning to work.

C. Steam. Steam shall be supplied in sufficient volume and pressure for satisfactory operation of each applicable piece of equipment. Steam that may come into direct contact with milk or dairy products shall be culinary steam. Culinary steam shall comply with the 3-A Accepted Practices, "Method of Producing Steam of Culinary Quality," Number 609-02 609-03 (3-A Sanitary Standards, Incorporated, adopted November 21, 2004).

D. Disposal of wastes. The plant sewage system shall have sufficient slope and capacity to remove readily all waste from processing operations. Where a public sewer is not available, wastes shall be disposed of by methods approved by the State Regulatory Authority Agency. Containers for the collection and holding of wastes other than dry waste paper shall be constructed of metal or other equally impervious material, kept covered with tight-fitting lids, and placed outside the plant on a concrete slab or on a rack raised at least 12 inches; however, waste containers may be kept inside a suitable enclosed, clean, and fly-proof room. Solid wastes shall be disposed of regularly in an approved manner, and the containers cleaned before reuse. Dry waste paper shall be burned at the plant in an approved incinerator, or compressed or bagged and disposed of in an approved manner.

2VAC5-510-505. Rooms used for domestic purposes.

A. No facility, equipment, storage, or processing area that requires inspection may be accessed through any room used for domestic purposes or part of any room used for domestic purposes.

B. A toilet room used for domestic purposes shall be approved as complying with the requirements of this chapter only if (i) the toilet room is located within 300 feet of the processing facility and (ii) all labor utilized in the processing facility is provided by the permit holder's immediate family.

2VAC5-510-510. Equipment and utensils.

A. Construction and installation.

1. New equipment shall meet applicable 3-A Sanitary Standards. Equipment and utensils coming in contact with milk, dairy products, mix or frozen desserts, including sanitary pumps, piping, fittings, and connections, shall be constructed of stainless steel or other equally corrosion-resistant and easily cleanable material. Where the use of stainless steel is not practicable, or in old equipment, other properly coated or plated metals may be approved temporarily. Nonmetallic parts having product contact surfaces shall be of materials that meet 3-A Sanitary Standards, "Multiple-Use Rubber and Rubber-Like Materials Used as Product Contact Surfaces in Dairy Equipment," Number 18-03 (3-A Sanitary Standards, Incorporated, effective August 21, 1999), and "Multiple-Use Plastic Materials Used as Product Contact Surfaces for Dairy Equipment," Number 20-21 20-27 (3-A Sanitary Standards, Incorporated, effective July 7, 2011).

2. Bulk storage and distribution equipment for handling liquid sweetening agents shall consist of suitable metals, alloys, or other materials which that will withstand corrosive action by the ingredient;, and the equipment and ingredients shall be protected from contamination.

3. All equipment and piping shall be designed and installed to be easily accessible for cleaning, and shall be kept in good repair, and free from cracks and corroded surfaces. Milk pumps shall be of a sanitary type and easily dismantled, for cleaning or shall be of specifically approved construction to allow cleaning in place. New or rearranged equipment shall be set away from any wall or spaced in such a manner as to facilitate proper cleaning and to maintain good housekeeping. All parts or interior surfaces or equipment, pipes (except certain piping cleaned-in-place), or fittings, including valves and connections, shall be accessible for inspection. Cleaned-in-place sanitary piping and welded sanitary pipeline systems will be acceptable if properly engineered and installed according to 3-A Accepted Practices, "Permanently Installed Product and Solution Pipelines and Cleaning Systems Used in Milk and Milk Product Processing Plants," Number 605-04 (3-A Sanitary Standards, Incorporated, effective August 20, 1994).

B. Pasteurization equipment.

1. Pasteurization equipment shall comply with 3-A Accepted Practices, "Sanitary Construction, Installation, Testing, and Operation of High Temperature Short-Time and Higher-Heat Shorter-Time Pasteurizer Systems," Number 603-06 603-07 (3-A Sanitary Standards, Incorporated, effective November 21, 2005) and 3-A Sanitary Standards, "Non-Coiled Type Batch Pasteurizers for Milk and Milk Products," Number 24-02 24-03 (3-A Sanitary Standards, Incorporated, effective July 16, 2010).

2. Heat treatment equipment used to reach temperatures higher than commonly used for pasteurization shall comply with appropriate sanitary construction and operating procedures approved by the State Regulatory Authority Agency.

3. Whenever it is necessary to break a seal on such pasteurization equipment, this equipment shall be properly adjusted and placed in correct operation immediately. The breaking of the seal and the adjustment made shall be reported immediately to the State Regulatory Authority Agency in order that the equipment can be officially checked and resealed.

C. Cleaning and sanitizing.

1. Equipment, sanitary piping, and utensils used in receiving, storing, processing, manufacturing, packaging, and handling milk, dairy products, mix or frozen desserts, and all product contact surfaces of homogenizers, high-pressure pumps, and high-pressure lines shall be kept clean.

2. The packing glands on all agitators, pumps, and vats shall be inspected at regular intervals and kept clean.

3. After being cleaned, and immediately before use, all equipment coming in contact with milk, dairy products, or mix or frozen desserts shall have an effective bactericidal or sanitizing treatment.

4. Before use, equipment not designed for C-I-P CIP cleaning shall have been disassembled and thoroughly cleaned and sanitized. Dairy cleaners, wetting agents, detergents, sanitizing agents, or other similar material may be used that will not contaminate or adversely affect dairy products. Steel wool or metal sponges shall not be used in the cleaning of any dairy equipment or utensils.

5. C-I-P CIP cleaning shall be used only on equipment and pipeline systems that are designed and engineered for that purpose. Installation and cleaning procedures shall comply with 3-A Accepted Practices, "Permanently Installed Product and Solution Pipelines and Cleaning Systems Used in Milk and Milk Processing Plants," Number 605-04 (3-A Sanitary Standards, Incorporated, effective August 20, 1994). An outline of the cleaning procedures to be followed shall be posted near the C-I-P CIP equipment.

6. Applicable equipment and areas in the plant shall be thoroughly vacuumed regularly with a heavy-duty industrial vacuum cleaner. The material picked up shall be disposed of by burning or other means in a manner to destroy any insects present.

7. Exhaust stacks, elevators, and conveyors shall be inspected at regular intervals and kept clean.

8. Storage or holding tanks used to store milk, milk products, frozen desserts, or frozen desserts mix shall be cleaned and sanitized when empty and shall be emptied at least every 72 hours.

Part XI

Vehicles; Frozen Dessert Retail Establishments; Reconstitution of Powder or Dry Frozen Desserts Mix

2VAC5-510-520. Vehicles.

A. All vehicles A vehicle used to transport mix, frozen desserts, cream, milk, and or dairy products shall be constructed and operated to protect their the vehicle's contents from heat, sun, and contamination. Such vehicles The vehicle shall be kept clean;, and no substance capable of contaminating mix, frozen desserts, cream, milk and, or dairy products shall be transported in them the vehicle. Vehicles A vehicle transporting frozen desserts or mix to wholesale or retail outlets shall have the name of the distributor prominently displayed on them the vehicle.

B. A covered or enclosed dock for loading, unloading, and washing tank trucks, and other facilities shall be available at all plants that receive or ship milk, fluid dairy ingredients, or frozen desserts mix in tanks. A plant shall provide approved equipment when deemed necessary by the State Regulatory Authority Agency to prevent contamination of products while being loaded or unloaded in tank trucks.

C. Milk transport tanks, sanitary piping, fittings, and pumps shall be cleaned and sanitized after each use. Tanks and equipment shall be washed promptly after use and given bactericidal treatment immediately sanitized before use. After being washed and sanitized, each tank shall be identified by a tag that is attached to the outlet valve, having and that states the following information: (i) plant and specific location where cleaned, (ii) date and time of day of washing and sanitizing, and (iii) name of persons who washed and sanitized the tank. The tag shall not be removed until the tank is again washed and sanitized.

2VAC5-510-530. Frozen desserts retail establishments. (Repealed.)

Frozen desserts retail establishments, including commissaries and depots, shall comply with applicable provisions of Part X of this chapter (2VAC5-510-480 et seq.).

2VAC5-510-540. Frozen desserts retail establishments which plants that reconstitute powder or dry frozen desserts mix.

A. Powder or dry frozen desserts mix shall be reconstituted with potable water in one of the following ways:

1. If the retail establishment frozen desserts plant possesses and uses a mechanical means capable of cooling the reconstituted mix to 45°F (7.2°C) within four hours, cold tap water may be used.

2. If the retail establishment frozen desserts plant does not possess or use a mechanical means capable of cooling the reconstituted mix to 45°F (7.2°C) within four hours, only potable water at a temperature of 40°F (4.4°C) or below shall be used.

B. Powder or dry frozen desserts mix is not required to be repasteurized after being reconstituted with water.

C. Powder or dry frozen desserts mix may be reconstituted with pasteurized milk at a temperature of 40°F (4.4°C) or below.

2VAC5-510-550. Pasteurization of frozen dessert mix.

A. Except for flavoring ingredients, the entire mix shall be pasteurized after formulation. A frozen dairy dessert mix must be repasteurized at the receiving plant before being offered for sale, unless the State Regulatory Agency grants permission for the frozen dairy dessert mix to be sold without repasteurization. Pasteurized mix or frozen desserts shall not be permitted to come in contact with equipment or containers with which unpasteurized mix, frozen desserts, milk, or milk products have been in contact, unless such equipment has first been properly washed and subjected to a satisfactory bactericidal treatment. Powdered or dry frozen dessert mixes are not required to be re-pasteurized after being reconstituted with water as described in 2VAC5-510-540 of this chapter sanitized.

B. All milk, milk products, eggs, egg products, cocoa, cocoa products, emulsifiers, stabilizers, vitamins, and liquid sweeteners shall be added to the frozen dessert before it is pasteurized, except when:

1. The frozen desserts plant demonstrates to the State Regulatory Agency's satisfaction that the addition of these ingredients prior to pasteurization will negatively impact the ability to produce the product or the quality of the product;

2. The frozen desserts plant maintains records that demonstrate to the State Regulatory Agency's satisfaction the science proving that the ingredients that are added after pasteurization are safe and suitable; or

3. The ingredients are safely and sanitarily added to the frozen dessert product.

C. Flavoring and coloring ingredients may be added after pasteurization when:

1. The ingredient has been subjected to a prior heat treatment sufficient to destroy pathogenic microorganisms;

2. The ingredient has 0.85% water activity (a_w of 0.85) or less when the water activity is calculated by dividing the water vapor pressure of the ingredient by the vapor pressure of pure water when at the same temperature as the ingredient;

3. The ingredient has a high acid content (pH level of 4.6 or below when measured at 75°F (23.9°C)) or high alkalinity (pH level greater than 11 when measured at 75°F (23.9°C));

4. The ingredient's alcohol content is sufficient to ensure that pathogenic microorganisms will not be transferred to the final product;

5. The ingredient consists of safe and suitable bacterial cultures or enzymes;

6. The ingredient is dry sugar or salt; or

7. The ingredient is subjected to any process acceptable to the State Regulatory Agency that will ensure that the ingredient is free of pathogenic microorganisms.

2VAC5-510-560. Cooling.

After heat treatment or pasteurization, processed fluid milk products, including mix (except for sterilized mix in hermetically sealed containers), shall be cooled promptly to 45°F (7.2°C) or lower and maintained there at that temperature until used, provided that storage or holding tanks used to store milk, milk products, frozen desserts, or frozen desserts mix shall be cleaned and sanitized when empty and shall be emptied at least every 72 hours. Fluid milk products may be held at higher temperatures for a short time immediately prior to freezing when applicable to particular manufacturing or processing practices.

2VAC5-510-570. Storage.

A. Utensils and portable equipment used in processing operations shall be stored above the floor in clean, dry locations, and in self-draining positions on racks constructed of impervious, corrosion-resistant material.

B. Dripped or spilled products or ingredients shall not be sold for human consumption.

C. Dairy products, mix, or frozen dessert ingredients in dry storage shall be arranged in aisles, rows, sections, or lots, or in such other manner as to be orderly and easily accessible for inspection, and to permit adequate cleaning of the room. Dunnage or pallets shall be used when appropriate. Dairy products, mix, or frozen dessert ingredients shall not be stored with any product that would damage them or impair their the quality of the product. Open containers shall be carefully protected from contamination.

D. All products requiring refrigeration, except where otherwise specified, shall be stored under optimum temperatures and humidity to maintain their quality and condition. Products shall not be placed directly on wet floors, or be exposed to foreign odors, or subjected to conditions, such as dripping or condensation, that might cause package or product damage.

E. Items in supply storage rooms shall be kept clean and protected, and be arranged to permit inspection of supplies and cleaning and spraying of the room. Insecticides and rodenticides shall be properly labeled, segregated, and stored in a separate room or cabinet away from milk or dairy products or packaging supplies. Caps, parchment papers, wrappers, liners, gaskets, and single service sticks, spoons, covers, and containers for frozen desserts, mix or their ingredients shall (i) be purchased and stored only in sanitary tubes, wrappings, or cartons. These shall; (ii) be kept in a clean, dry place until used; and shall (iii) be handled in a sanitary manner.

2VAC5-510-600. Lubricants.

Lubricants approved for use on milk product contact surfaces that are applied to filling machine pistons, cylinders, pumps, and valves shall be sterile, approved for food-grade use and shall be applied in a sanitary manner.

2VAC5-510-610. Cleanliness.

A. Plant employees shall wash their hands before beginning work, and upon returning to work after using toilet facilities, eating, smoking, or otherwise soiling their hands. They Plant employees shall keep their hands clean and follow good hygienic practices while on duty. Expectorating or use of tobacco in any form shall be prohibited in rooms and compartments where milk, dairy products, mix, or frozen desserts are unpacked or exposed. Clean white or light colored washable outer-garments and caps (paper caps or hairnets are acceptable) adequate hair restraints shall be worn by all persons engaged in processing milk, dairy products, mix, or frozen desserts.

B. In addition, employees Employees engaged in manual molding, wrapping, and touching any product contact surface shall treat their clean hands with a bactericide of approved strength wash their hands with hot, soapy water and dry their hands with single-use paper towels or an approved hand drying device before beginning such work and after each interruption. Rubber Disposable, single-use rubber or plastic gloves may be used if sanitized as above.

2VAC5-510-620. Health.

A. No person afflicted with a communicable disease shall be permitted in any room or compartment where milk, dairy products, mix or frozen desserts are prepared, processed, or otherwise handled who is affected with any disease in a communicable form or who is a carrier of a communicable disease may work at any frozen desserts plant in any capacity that would bring the person in contact with the production, handling, storage, or transportation of milk, milk products, other frozen dessert ingredients, frozen desserts, or frozen desserts mix containers, equipment, or utensils. No person who has a discharging or infected wound, sore, or lesion on hands, arms, or other exposed portions of the body shall work in any plant processing or packaging rooms or in any other capacity resulting in contact with milk, dairy products, mix or frozen dessert.

B. Each employee whose work brings him in contact with the processing or handling of milk, dairy products, mix or frozen desserts, containers or equipment shall have a medical and physical examination by a registered physician or by the local department of health, and shall furnish a satisfactory medical certificate prior to employment. An employee returning to work following illness from a communicable disease shall have a certificate from his the employee's attending physician to establish proof of complete recovery.

2VAC5-510-630. Availability.

All records herein required to be kept by plants shall be available for examination by the State Regulatory Authority at reasonable times. A plant shall, at reasonable times, make available for examination by the State Regulatory Agency all records that this chapter and 21 CFR Part 117 Subpart C, if applicable, require the plant to maintain.

2VAC5-510-640. Water supply test records. (Repealed.)

The results of all plant water supply tests shall be kept on file at the plant for at least one year.

2VAC5-510-650. Pasteurization, temperature, and C-I-P CIP recorder charts.

Recorder charts showing the pasteurization record for each day shall be appropriately marked with the name of the product for each batch, date, time, and signature of the operator, and the markings made by the recording device shall not overlap. Recorder charts showing the C-I-P CIP record for each day shall be appropriately marked, and the markings made by the recording device shall not overlap. Temperature recording charts shall be labeled with the name of the product for each batch, date, time, and signature of the operator, and the markings made by the recording device shall not overlap. The charts Charts shall be kept on file at the plant for at least six months. Electronic records or records in a format designated by the State Regulatory Agency may be used in lieu of recording charts with prior State Regulatory Agency approval.

2VAC5-510-660. Employee medical certificates. (Repealed.)

Current-employee medical certificates shall be kept on file at the plant.

FORMS (2VAC5-510)

Virginia Department of Agriculture and Consumer Services Permit Application.

Dairy Manufacturing Permit Application Part I (rev. 4/2022)

Dairy Manufacturing Permit Application Part II (rev. 4/2022)

Dairy Manufacturing Plant Inspection Report (rev. 2/2018)

Milk Plant Equipment Test Report (rev. 11/2023)

Vat Pasteurizer Equipment Test Report (rev. 2/2018)

Official Warning Notice (rev. 4/2022)

Official Suspension Notice (rev. 4/2022)

DOCUMENTS INCORPORATED BY REFERENCE (2VAC5-510)

3-A Accepted Practices, Method of Producing Steam of Culinary Quality, Number 609-02, 3-A Sanitary Standards, Inc.

3-A Accepted Practices for a Method of Producing Culinary Steam, Number 609-03, adopted November 21, 2004, 3-A Sanitary Standards Inc.

3-A Sanitary Standards, for Multiple-Use Rubber and Rubber-Like Materials Used as Product Contact Surfaces in Dairy Equipment, Number 18–03, effective August 21, 1999, 3-A Sanitary Standards, Inc.

3-A Sanitary Standards, Multiple-Use Plastic Materials Used as Product Contact Surfaces for Dairy Equipment, Number 20-21, 3-A Sanitary Standards, Inc.

3-A Sanitary Standards for Multiple-Use Plastic Materials, Number 20-27, effective July 7, 2011, 3-A Sanitary Standards Inc.

3-A Accepted Practices, for Permanently Installed Product and Solution Pipelines and Cleaning Systems Used in Milk and Milk Product Processing Plants, Number 605-04, effective August 20, 1994, 3-A Sanitary Standards, Inc.

3-A Accepted Practices, Sanitary Construction, Installation, Testing, and Operation of High Temperature Short-Time and Higher-Heat Shorter-Time Pasteurizer Systems, Number 603-06, 3-A Sanitary Standards, Inc.

3-A Sanitary Standards, Non-Coiled Type Batch Pasteurizers for Milk and Milk Products, Number 24-02, 3-A Sanitary Standards, Inc.

3-A Accepted Practices for the Sanitary Construction, Installation, Testing, and Operation of High-Temperature Short-Time and Higher-Heat Shorter-Time Pasteurizer Systems, Number 603-07, effective November 21, 2005, 3-A Sanitary Standards Inc.

3-A Sanitary Standards for Non-Coiled Type Batch Pasteurizers for Milk and Milk Products, Number 24-03, effective July 16, 2010, 3-A Sanitary Standards Inc.

TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Fast-Track Regulation

Title of Regulation: 2VAC5-510. Rules and Regulations Governing the Production, Processing, and Sale of Ice Cream, Frozen Desserts, and Similar Products (amending 2VAC5-510-10, 2VAC5-510-20, 2VAC5-510-30, 2VAC5-510-90, 2VAC5-510-110, 2VAC5-510-210 through 2VAC5-510-350, 2VAC5-510-390, 2VAC5-510-420 through 2VAC5-510-470, 2VAC5-510-490, 2VAC5-510-500, 2VAC5-510-510, 2VAC5-510-520, 2VAC5-510-540 through 2VAC5-510-570, 2VAC5-510-600 through 2VAC5-510-630, 2VAC5-510-650; adding 2VAC5-510-415, 2VAC5-510-505; repealing 2VAC5-510-40, 2VAC5-510-50, 2VAC5-510-130 through 2VAC5-510-190, 2VAC5-510-370, 2VAC5-510-380, 2VAC5-510-530, 2VAC5-510-640, 2VAC5-510-660).

Statutory Authority: §§ 3.2-5201 and 3.2-5212 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: January 29, 2025.

Effective Date: February 13, 2025.

Agency Contact: Pamela Miles, Program Manager, Office of Dairy and Foods, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-8899, FAX (804) 371-7792, TDD (800) 828-1120, or email pamela.miles@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board with the authority to adopt regulations in accordance with the provisions of Title 3.2 of the Code of Virginia. Section 3.2-5212 of the Code of Virginia authorizes the board to establish definitions and standards of quality and identity and to adopt and enforce regulations dealing with the issuance of permits, labeling, and sanitary standards for ice cream, ice milk, frozen custards, sherbets, water ices, related foods, other similar products, and products manufactured or sold in semblance to or as substitutes for those products.

Purpose: The proposed amendments are essential to the protection of the public health and welfare because they set the necessary standards of operation for the production of Virginia-made frozen desserts to (i) provide a system of prevention and overlapping safeguards designed to minimize foodborne illness; (ii) ensure that employees are healthy, food is safe, equipment used is easily cleaned and kept in a sanitary condition, and acceptable levels of sanitation are maintained in manufacturing facilities; and (iii) promote Virginia's dairy and frozen dessert industry. The amendments are necessary to ensure that appropriate measures are in place to address emerging and ongoing food safety concerns that exist within an evolving food industry.

Rationale for Using Fast-Track Rulemaking Process: The board expects the proposed amendments to be noncontroversial because the changes (i) include the elimination of the requirement that out-of-state importers of frozen desserts obtain a permit to operate a frozen dessert plant from the Commissioner of Agriculture and Consumer Services and add provisions for use of a less costly electronic recordkeeping methods and (ii) do not create new requirements for existing permit holders.

Substance: The proposed amendments include (i) removing standards of identity that have a counterpart in the Code of Federal Regulations (CFR) and instead incorporating the CFR standards of identity by reference; (ii) removing the requirement that out-of-state importers obtain a permit from the Commissioner of Agriculture and Consumer Services to operate a frozen dessert plant; (iii) adding a requirement for recall plans, which aligns the regulation with requirements set forth in other dairy-related regulations; (iv) clarifying language regarding whether frozen desserts must be repasteurized at a receiving plant prior to further sale or distribution, which allows the department the flexibility to evaluate, on a case-by-case basis, manufacturer processing steps and practices to ensure that finished products are safe to consume while relaxing the requirement to repasteurize certain products; and (v) making several sections more easily readable and understood by all relevant stakeholders.

Issues: The primary advantage to the public is the reduction of the risk of foodborne illnesses within frozen dessert establishments, which protects consumers and industry from potentially devastating health consequences and financial losses. The proposed amendments will also result in additional flexibility in determining required processing steps and the removal of duplicative permitting and inspection requirements. The primary advantage to the agency is the alignment of the regulations with current food science and the clarification of ambiguous areas relating to enforcement and inspection standards. There are no known disadvantages to the public or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services (board) seeks to update the regulation to align with the United States Department of Agriculture's (USDA) current General Specifications for Dairy Plants Approved for USDA Inspection and Grading Service (USDA Specifications). The proposed changes would (i) condense the text of the regulation by replacing the current text for standards of identities for frozen dessert products with references to the standards of identities promulgated in the Code of Federal Regulations (21 CFR Part 135); (ii) remove a requirement for out-of-state importers to obtain a permit to operate a frozen dessert plant from the Commissioner; (iii) provide flexibility in determining the required processing steps to ensure consumer safety; (iv) remove all references to retail sale; (v) allow the use of electronic recordkeeping systems; (vi) align requirements in the regulation with other existing dairy-related regulations; (vii) enhance recordkeeping procedures to further protect public health through lot traceability; and (viii) update the referenced version of documents incorporated by reference.

Background. This regulatory action would update the existing Rules and Regulations Governing the Production, Processing, and Sale of Ice Cream, Frozen Desserts, and Similar Products (regulation), which are based on federal USDA Specifications. The regulation currently includes requirements pertaining to the safe and sanitary maintenance, storage, operation, and use of equipment; the safe handling, protection, and preservation of frozen dessert products; the proper pasteurization techniques used to ensure dairy ingredients in frozen desserts are safe for consumers; proper lighting and ventilation; proper equipment design and cleanability; proper facility construction; and personal hygiene for employees. The board reports that the proposed amendments are necessary to remain current with federal laws and reflect current practice, which are based on the latest scientific knowledge and technological advancements, and thus to protect public health.

The most substantive changes are summarized below:

The definition of "frozen dessert retail establishment" would be struck from 2VAC5-510-10 (Definitions) and all references to retail establishments would be removed throughout the regulation, as requirements that are specific to retail establishments are already included in the board's retail food establishment regulation (2VAC5-585).²

2VAC5-510-30, 2VAC5-510-40, and 2VAC5-510-50 currently contain the definitions or standards of identity (SOI) for ice cream; ice cream mix; and frozen custard, french ice cream, french custard ice cream, respectively. These sections would be combined to mirror the structure of the federal regulation. The state-specific SOIs would be replaced with references to SOIs in the CFR because the existing state-specific SOIs are nearly identical to those in the CFR.

Similarly, 2VAC5-510-90 and 2VAC5-510-130, which currently pertain to fruit sherbet and non-fruit sherbet, would be consolidated into 2VAC5-510-90, which would be renamed "Sherbets." 2VAC5-510-110 and 2VAC5-510-150, which pertain to water ice and nonfruit water ice, would also be consolidated. Again, the state-specific SOIs would be replaced with references to SOIs in the CFR.

2VAC5-510-170 pertains to artificially sweetened ice cream or frozen dietary dairy dessert. This section would be repealed in its entirety as these desserts are included under "ice cream" and covered in 2VAC5-510-30.

2VAC5-510-415 (Recall Plans) would be added, requiring recall plans to be included in applications for permits. According to Virginia Department of Agriculture and Consumer Services (VDACS) staff, this amendment would codify an existing practice as all plants already do this, as required by 21 CFR Part 117.³ The recall plan requirements are identical to those in the regulation governing milk for manufacturing (2VAC5-531).⁴

2VAC5-510-420 (Issuing, suspension, and revocation of permits) currently requires manufacturers as well as importers (from out-of-state) to obtain a permit. VDACS reports that it is impractical and unrealistic for the agency to permit and track the numerous frozen dessert products coming into Virginia and that manufacturers in other states are already permitted and inspected in their own state. Thus, the permit requirement for importers would be repealed.

2VAC5-510-550 (Pasteurization of frozen dessert mix) would be amended to clarify that frozen dessert mixes must be repasteurized at the receiving plant before being offered for sale, unless VDACS grants permission for the frozen dairy dessert mix to be sold without repasteurization. VDACS explained that the current language has caused confusion in the past and that the proposed language is intended to ensure that VDACS has "the flexibility to evaluate, on a case-by-case basis, manufacturer processing steps and practices to ensure that finished products are safe to consume, while relaxing the requirement to re-pasteurize certain products."⁵

2VAC5-510-620 (Health) currently requires employees to undergo a medical and physical examination before beginning employment; this requirement would be struck. VDACS reports that the primary purpose of this section is to prevent employees sick with communicable diseases from coming into work and that the other requirements in this section address this concern. Additionally, VDACS expressed concern that the requirement to receive a medical exam before beginning work could create an unnecessary barrier to employment.

Additional amendments would align the structure and content of the regulation with other Virginia dairy regulations. For example, language outlining the actions that would warrant the cancellation, suspension, or denial of a permit would be added to 2VAC5-510-420⁶ and the requirement that employee facilities include "conveniently located sanitary drinking water" would be removed from Section 500.⁷

Estimated Benefits and Costs. The proposed amendments would benefit current and prospective manufacturers of ice cream and frozen desserts by providing clear, concise, and updated requirements that conform to current USDA specifications. VDACS reports that the proposed amendments reflect current federal requirements and current practice, and that manufacturers of ice cream and frozen desserts are not expected to incur any new costs as a result. The proposed amendments would benefit consumers of ice cream and frozen desserts manufactured in Virginia by ensuring that these products continue to be produced in a manner that makes them safe for consumption.

Businesses and Other Entities Affected. VDACS reports that there are currently 41 manufacturers in Virginia, some of which may also have retail establishments on their premises. VDACS also reports that there are 20 permitted importers who would no longer be required to renew or maintain this permit; however, this is likely an undercount of all the businesses importing ice cream and frozen desserts from other states.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁸ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁹ Since the proposed amendments largely serve to clarify the requirements and conform the regulation to federal regulations, there is not anticipated to be an increase in net costs or decrease in net benefits for any entity. For example, although recall policies would be newly added in the regulation, they are already required by federal regulation. Further, some manufacturers may benefit from increased flexibility with respect to repasteurization or hiring workers without requiring an initial health and physical examination. However, to the extent that these provisions have already been implemented in practice, any associated benefits have likely already accrued. Thus, an adverse impact is not indicated.

Small Businesses¹⁰ Affected.¹¹ Manufacturers of ice cream or frozen desserts that are small businesses would not be expected to face any new costs.

Localities¹² Affected.¹³ The proposed amendments do not appear to disproportionally affect any locality in particular or affect costs for local governments.

Projected Impact on Employment. The proposed amendments would not be expected to affect employment by manufacturers of ice cream or frozen desserts.

Effects on the Use and Value of Private Property. The proposed amendments are not expected to affect the value of private businesses that manufacture ice cream or frozen desserts. The proposed amendments do not affect real estate development costs.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² See https://law.lis.virginia.gov/admincode/title2/agency5/chapter585/.

³ See https://www.ecfr.gov/current/title-21/section-117.139. See also the Agency Background Document (ABD), page 4: https://townhall.virginia.gov/L/GetFile.cfm?File=48\6530\10418\AgencyStatement_VDACS_10418_v1.pdf.

⁴ See item K: https://law.lis.virginia.gov/admincode/title2/agency5/chapter531/section50/.

⁵ ABD, page 4.

⁶ This would align the regulation with Chapters 490 and 531. ABD, page 15.

⁷ VDACS staff explained that this requirement is not present in the other dairy regulations. VDACS staff also confirmed with the Department of Labor and Industry that the Occupational Safety and Health Administration's Sanitation Standard for General Industry (29 CFR 1910.121(b)(1)), which requires employers to provide potable drinking water, would apply to frozen dessert manufacturing facilities. 16VAC25-60-120 incorporates 29 CFR 1910.

⁸ Pursuant to § 2.2-4007.04 D of the Code of Virginia: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance.

⁹ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

¹⁰ 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."

¹¹ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹² "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹³ Section 2.2-4007.04 of the Code of Virginia defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board of Agriculture and Consumer Services concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The amendments update Rules and Regulations Governing the Production, Processing, and Sale of Ice Cream, Frozen Desserts, and Similar Products (2VAC5-510), which is based on the U.S. Department of Agriculture's (USDA) General Specifications for Dairy Plants Approved for USDA Inspection and Grading Service. The amendments (i) replace the current text for standards of identities for frozen dessert products with references to the standards of identities provided in 21 CFR Part 135; (ii) remove the requirement for out-of-state importers to obtain a permit to operate a frozen dessert plant from the Commissioner of Agriculture and Consumer Services; (iii) provide flexibility in determining required processing steps to ensure consumer safety; (iv) remove all references to retail sale; (v) allow the use of electronic recordkeeping systems; (vi) align requirements with other existing dairy-related regulations; (vii) enhance recordkeeping procedures to further protect public health through lot traceability; and (viii) update documents incorporated by reference.

Chapter 510

Rules and Regulations Governing the Production, Processing, and Sale of Ice Cream, Frozen Desserts, and Similar Products

2VAC5-510-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"3-A Accepted Practices" means the accepted practices published by 3-A Sanitary Standards, Incorporated and indexed in the 3-A Sanitary Standards and 3-A Accepted Practices, effective March 1, 2024.

"3-A Sanitary Standards" means the standards for dairy equipment published by 3-A Sanitary Standards, Incorporated and indexed in the 3-A Sanitary Standards and 3-A Accepted Practices, effective March 1, 2024.

"Adulterated milk, milk products, and frozen desserts" means any milk, milk products, other frozen dessert ingredient, frozen desserts, or frozen desserts mix which:

1. Bears or contains any poisonous or deleterious substance in a quantity which may render it injurious to health;

2. Bears or contains any added poisonous or deleterious substance for which no safe tolerance has been established by state or federal regulation, or in excess of such tolerance if one has been established;

3. Consists, in whole or in part, of any substance unfit for human consumption;

4. Has been produced, processed, prepared, packed, or held under insanitary conditions;

5. Container is composed, in whole or in part, of any poisonous or deleterious substance which may render the contents injurious to health; or

6. Any substance has been added thereto or mixed or packed therewith so as to increase its bulk or weight, or reduce its quality or strength, or make it appear better or of greater value than it is that meets one or more of the conditions specified in 21 USC § 342.

"Commissary or depot" means any place, premise, or establishment in which pasteurized mix, ingredients, containers, or supplies are prepared or stored for the servicing of one or more mobile units, and where facilities are provided for cleaning the vehicle and the cleaning and bactericidal treatment of equipment and utensils.

"Frozen desserts manufacturer" means any person who manufactures, processes, converts, partially freezes, or freezes any mix or frozen desserts for distribution or sale.

"Cleaned in place" or "CIP" means the procedure by which equipment is mechanically cleaned in place by circulation of wash, rinse, and sanitizer solutions.

"Frozen dessert" means any of the following: ice cream, frozen custard, french ice cream, french custard ice cream, ice milk, fruit sherbet, water ice, nonfruit sherbet, nonfruit water ice, artificially sweetened ice cream or frozen dietary dairy dessert, artificially sweetened ice milk, frozen yogurt, quiescently frozen confection, quiescently frozen dairy confection, mellorine, parevine, lowfat parevine, freezer made milk shake, freezer made shake, those products manufactured or sold in semblance to or as substitutes for the foregoing frozen desserts, and any mix used in the freezing of the foregoing frozen desserts.

"Frozen desserts plant" means any place or premises where frozen desserts or mix are manufactured, processed, pasteurized, or frozen for distribution or sale at wholesale.

"Frozen desserts retail establishment" means any place or premises including retail stores, stands, hotels, restaurants, and vehicles or mobile units where frozen desserts are frozen or partially frozen or dispensed for sale at retail.

"Harmless" means that a food or substance is generally recognized as safe, as prescribed in 21 CFR Parts 181 through 186.

"Misbranded" means a milk, milk products product, other frozen desserts ingredients dessert ingredient, frozen desserts and dessert, or frozen desserts dessert mix are misbranded when that:

1. Their containers bear Bears on its container or accompany is accompanied by any false or misleading written, printed, or graphic matter;

2. Such milk and products do Does not conform to their definitions as contained the product's definition established in this chapter; and or

3. Such products are Is not labeled in accordance with Part VI (2VAC5-510-430 et seq.) of this chapter 2VAC5-510-430.

"Mobile unit" means any vehicle or temporary establishment that shall travel from place to place in which a frozen desserts processor freezes, partially freezes, or dispenses frozen desserts for sale.

"Official methods" means Official Methods of Analysis of the Association of Official Analytical Chemists AOAC International, a publication of the Association of Official Analytical Chemists Collaboration International. A modified Roese-Gottlieb test, such as the Mojonnier' or Dietert, may be used in making official determination of the butterfat and total solids content of frozen dairy food products.

"Pasteurization" or "pasteurized" means the process of heating, in approved and properly operated equipment, every particle of mix to any one of the following temperatures and holding at the temperature for the specified time:

1. Vat Pasteurization: 155°F (68.3°C) and holding at such temperature for at least 30 minutes.

2. HTST (high-temperature short-time) Pasteurization: 175°F (79.4°C) and holding at such temperature for at least 25 seconds.

Nothing contained in this definition shall be construed as barring any other method of process, or combination of times and temperatures, as may be demonstrated to be equally efficient.

"Permit" means authority issued under the Act by the regulatory agency the document issued by the Commissioner of Agriculture and Consumer Services pursuant to § 3.2-5214 of the Code of Virginia that authorizes a person to operate a frozen desserts plant.

"Permit holder" means the entity that is legally responsible for the operation of the frozen desserts plant, such as the owner, the owner's agent, or other person, and that possesses a valid permit to operate a frozen desserts plant.

"Person" means any individual, partnership, corporation, company, firm, trustee, or association.

"Plant" means any place, premise, or establishment where milk or dairy products are received or handled for processing or manufacturing the products defined herein in this chapter.

"Powder" or "dry frozen desserts mix" means a frozen desserts mix in a dry form.

"Standard methods" means Standard Methods for the Examination of Dairy Products, a publication of the American Public Health Association.

"3-A Sanitary standards and accepted practices" means the standards for dairy equipment and accepted practices formulated by the 3-A Sanitary Standards Committees representing the International Association for Food Protection, the United States Public Health Service, and the Dairy Industry Committee, Published by the 3-A Sanitary Standards, Incorporated.

"State Regulatory Agency" means the Commissioner of Agriculture and Consumer Services or the commissioner's agent or the State Health Commissioner or the commissioner's agent when such person is carrying out any duty assigned to such commissioner in the Milk, Milk Products, and Dairies Law (§ 3.2-5200 et seq. of the Code of Virginia).

"Summarily suspend" means the immediate suspension of a permit issued by the State Regulatory Agency without the opportunity for the permit holder to contest the suspension prior to the effective date and time of the suspension.

"VDACS" means the Virginia Department of Agriculture and Consumer Services.

2VAC5-510-20. Uniformity of enforcement.

A. The Virginia Board of Agriculture and Consumer Services hereby finds and declares that a uniform regulation is needed to govern the production, processing, labeling, and distribution of ice cream and similar products within the Commonwealth of Virginia. This chapter relating to ice cream and similar products shall be applicable throughout the Commonwealth of Virginia and shall be enforced on a statewide basis. Products produced, processed, or manufactured under the provisions of this chapter may can be sold in all counties, cities, and towns in this state. They The products shall not be subject to regulations by ordinance or otherwise to supervision, or to inspection by any political subdivision.

B. No regulation shall be construed to prohibit the sale of any imported dairy product within this state, the Commonwealth if the laws and regulations of the exporting state or political subdivision thereof are substantially the same as this chapter, and if they the laws and regulations are enforced with equal effectiveness as determined by Virginia Department of Agriculture and Consumer Services VDACS or State Health the Virginia Department of Health.

C. Unless otherwise provided by state law or by regulation of the Virginia Board of Agriculture and Consumer Services, this chapter shall be interpreted and enforced where applicable with administrative procedures and recommended regulations of the United States U.S. Department of Health and Human Resources and the United States U.S. Department of Agriculture.

Part III

Standards of Identity Standardized Frozen Desserts and Related Products

2VAC5-510-30. Ice cream; identity; label statement of optional ingredients Ice cream and frozen custard.

A. Ice cream is the food prepared by freezing, while stirring, a pasteurized mix composed of one or more of the optional ingredients specified in subsection C of this section, sweetened with one or more of the optional sweetening ingredients specified in subsection D of this section. One or more of the optional characterizing ingredients specified in subsection B of this section and one or more of the optional ingredients specified in subdivisions 5 to 10 of subsection D may be used to characterize the ice cream. One or more of the optional caseinates specified in subsection E and one or more of the optional ingredients specified in subsection F of this section may be used, subject to the conditions hereinafter set forth. The mix may be seasoned with salt, and may be homogenized. The kind and quantity of optional dairy ingredients used, as specified in subsection C of this section, and the content of milk fat and nonfat milk solids therein, are such that the weights of milkfat and total milk solids are not less than 10% and 20%, respectively, of the weight of the finished ice cream; but in no case shall the content of milk solids not fat be less than 6.0%, except that when one or more of the bulky optional ingredients as specified in subdivisions 3 to 8 of subsection B, inclusive, of this section, are used, the weights of milkfat and total milk solids (exclusive of such fat and solids in any malted milk used) are not less than 10% and 20%, respectively, of the remainder obtained by subtracting the weight of such optional ingredients, modified as prescribed in this subsection, from the weight of the finished ice cream; but in no case is the weight of milkfat or total milk solids less than 8.0% and 16%, respectively, of the weight of the finished ice cream. The optional caseinates specified in subsection E of this section are not deemed to be milk solids. In calculating the reduction of milkfat and total milk solids from the use of bulky optional ingredients, chocolate and cocoa solids used shall be considered the bulky ingredients of subdivision 3 of subsection B of this section. In order to make allowance for additional sweetening ingredients needed when bulky ingredients are used, the weight of chocolate or cocoa solids may be multiplied by 2.5; the weight of fruit or nuts used may be multiplied by 1.4; and the weight of partially or wholly dried fruits or fruit juices may be multiplied by appropriate factors to obtain the original weights before drying and this weight multiplied by 1.4. The finished ice cream contains not less than 1.6 pounds of total solids to the gallon and weighs not less than 4.5 pounds to the gallon; except that when the optional ingredient microcrystalline cellulose specified in subdivision 6 of subsection F of this section is used, the finished ice cream contains not less than 1.6 pounds of total solids to the gallon and weighs not less than 4.5 pounds to the gallon exclusive, in both cases, of the weight of the microcrystalline cellulose. Artificial flavoring in any chocolate, cocoa, confectionary, or other ingredient used is an optional ingredient of the finished ice cream. Coloring, including artificial coloring, may be added.

B. The optional characterizing ingredients referred to in subsection A. of this section are:

1. Ground spice, ground vanilla beans, infusion of coffee or tea, or any natural food flavoring.

2. Artificial food flavoring.

3. Chocolate or cocoa, which may be added as such or as a suspension in sirup, and which may contain disodium phosphate or sodium citrate in such quantity that the finished ice cream contains not more than 0.2% by weight of disodium phosphate or sodium citrate. For the purposes of this section, the term "cocoa" means one or any combination of two or more of the following: Cocoa, breakfast cocoa, lowfat cocoa, and the unpulverized residual material prepared by removing part of the fat from ground cacao nibs.

4. Mature fruit or the juice of mature fruit, either of which may be fresh, frozen, canned, concentrated, or partially or wholly dried. The fruit may be whole, shredded, or comminuted; it may be sweetened, thickened with pectin or with one or more of the ingredients named in subdivision 2 of subsection F of this section, subject to the restriction on the total quantity of such substances in ice cream prescribed in that subdivision, and it may be acidulated with citric acid, ascorbic acid, or phosphoric acid. The fruit is prepared by the removal of pits, seeds, skins, and cores, where such removal is used in preparing that kind of fruit for consumption as fresh fruit. In the case of fruit or fruit juice from which part of the water is removed, the substances contributing flavor volatilized during water removal may be condensed and reincorporated in the concentrated fruit or fruit juice. In the case of the citrus fruits the whole fruit, including the peel but excluding the seeds, may be used, and in the case of citrus juice or concentrated citrus juice, cold-pressed citrus oil may be added in an amount not exceeding that which would have been obtained if the peel from the whole fruit had been used. For the purposes of this section the flesh of the coconut shall be considered a fruit.

5. Nut meats, which may be roasted, cooked in an edible fat or oil, or preserved in sirup, and which may be salted.

6. Malted milk.

7. Confectionary. For the purposes of this section, the term "confectionery" means candy, cakes, cookies, and glaced fruits.

8. Properly prepared and cooked cereal.

9. Distilled alcoholic beverage, including liqueurs or wine, in an amount not to exceed that required for flavoring the ice cream.

C. The optional dairy ingredients referred to in subsection A of this section are: cream, dried cream, plastic cream (sometimes known as concentrated milkfat), butter, butter oil, milk, concentrated milk, evaporated skim milk, condensed skim milk, superheated condensed skim milk, sweetened condensed skim milk, sweetened condensed part skim milk, nonfat dry milk, sweet cream buttermilk, condensed sweet cream buttermilk, dried sweet cream buttermilk, skim milk that has been concentrated and from which part of the lactose has been removed by crystallization, skim milk in concentrated or dried form which has been modified by treating the concentrated skim milk with calcium hydroxide and disodium phosphate, concentrated cheese whey, and dried cheese whey. Water may be added, or water may be evaporated from the mix. The sweet cream buttermilk and the concentrated sweet cream buttermilk or dried sweet cream buttermilk, when adjusted with water to a total solids content of 8.5%, has a titratable acidity of not more than 0.17%, calculated as lactic acid. The term "milk" as used in this section means cow's milk. Any concentrated cheese whey and dried cheese whey used contribute not more than 25% by weight of the total nonfat milk solids content of the finished food. Dried cheese whey is uniformly light in color, free from brown and black scorched particles, and has an alkalinity of ash, not more than 225 milliliters 0.1N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and, as adjusted with water to a total solids content of 6.5%, a titratable acidity of not more than 0.16%, calculated as lactic acid. Concentrated cheese whey has an alkalinity of ash, not more than 115 milliliters 0.1N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and as adjusted with water to a total solids content of 6.5%, calculated as lactic acid. The modified skim milk, when adjusted with water to a total solids content of 9%, is substantially free of lactic acid as determined by titration with 0.1N NaOH and it has a pH value in the range of 8.0 to 8.3.

D. The optional sweetening ingredients referred to in subsection A of this section are:

1. Sugar (sucrose) or sugar sirup.

2. Dextrose.

3. Invert sugar (in paste or sirup form).

4. Corn sirup, dried corn sirup, glucose sirup, dried glucose sirup.

5. Maple sirup, maple sugar.

6. Honey.

7. Brown sugar.

8. Malt sirup, maltose sirup, malt extract.

9. Dried malt sirup, dried maltose sirup, dried malt extract.

10. Refiner's sirup.

11. Molasses (other than black strap).

12. Lactose.

13. Fructose.

E. The optional caseinates referred to in subsection A of this section which may be added to ice cream mix containing not less than 20% total milk solids are: casein prepared by precipitation with gums, ammonium caseinate, calcium caseinate, potassium caseinate, and sodium caseinate. Caseinates may be added in liquid or dry form, but must be free of excess alkali.

F. Other optional ingredients referred to in subsection A of this section are:

1. Liquid eggs, frozen eggs, dried eggs, egg yolks, frozen egg yolks, and dried egg yolks. Any egg ingredient used is added to the mix before it is pasteurized. The total weight of egg yolk solids in the finished ice cream from one or a combination of two or more such ingredients is less than the minimum prescribed for frozen custard by 2VAC5-510-50 (1.4%).

2. Agar-agar, algin (sodium alginate), calcium sulfate, gelatin, gum acacia, guar seed gum, gum karaya, locust bean gum, oat gum, gum tragacanth, carrageenan, salts of carrageenan, furcelleran, salts of furcelleran, lecithin, psyllium seed husk, sodium carboxymethylcellulose. The total weight of the solids of any such ingredient used singly or of any combination of two of more such ingredients used (including any such ingredient and pectin added separately to the fruit ingredient) is not more than 0.5% of the weight of the finished ice cream. Such ingredients may be added in admixture with dextrin, propylene glycol, or glycerin.

3. Monoglycerides or diglycerides or both of fat-forming fatty acids. The total weight of such ingredients is not more than 0.2% of the weight of the finished ice cream. If the preparation used is one having a high proportion of monoglycerides (over 90%), it may be preblended with edible fat, but the amount of such fat does not exceed 20% by weight of the blend, and the total amount of the blend used does not exceed 0.2% of the weight of the finished ice cream.

4. Polysorabate 65, polysorbate 80, or both may be used, with a limit on either, used separately or both used in combination, of not more than 0.1% by weight of the finished frozen dessert.

5. Propylene glycol alginate limit of not more than 0.5% by weight of the finished frozen dessert.

6. Microcrystalline cellulose, in a quantity not to exceed 1.5% by weight of the finished frozen dessert.

7. When one or more of the optional thickening ingredients in subdivision 2 or 5 of this subsection are used, dioctyl sodium sulfosuccinate may be used in a quantity not in excess of 0.5% by weight of such ingredients.

8. a. Sodium citrate, disodium phosphate, tetrasodium pyrophosphate, sodium hexametaphosphate, or any combination of two or more of these; but the total quantity of the solids of such ingredients (exclusive of any disodium phosphate or sodium citrate present in chocolate or cocoa, as permitted by subdivision 3 of subsection B of this section) is not more than 0.2% by weight of the finished ice cream.

b. Calcium oxide, magnesium oxide, calcium hydroxide, magnesium hydroxide, calcium carbonate, magnesium carbonate, or any combination of two or more of these; but the total quantity of the solids of such ingredients is not more than 0.04% of the weight of the finished ice cream.

G. 1. The name of the food is "ice cream."

2. a. If the food contains no artificial flavor, the name on the principal display panel or panels of the label shall be accompanied by the common or usual name of the characterizing flavor, e.g., "vanilla," in letters not less than one-half the height of the letters used in the words "ice cream."

b. If the food contains both a natural characterizing flavor and an artificial flavor simulating it, and if the natural flavor predominates, the name on the principal display panel or panels of the label shall be accompanied by the common name of the characterizing flavor, in letters not less than one-half the height of the letters used in the words "ice cream," followed by the word "flavored," in letters not less than one-half the height of the letters in the name of the characterizing flavor, e.g., "VANILLA flavored," or "PEACH flavored," or "VANILLA flavored STRAWBERRY flavored."

c. If the food contains both a natural characterizing flavor and an artificial flavor simulating it, and if the artificial flavor predominates, or if artificial flavor is used alone, the name on the principal display panel or panels of the label shall be accompanied by the common name of the characterizing flavor, in letters not less than one-half the height of the letters used in the words "ice cream," preceded by "artificial" or "artificially flavored," in letters not less than one-half the height of the letters in the name of the characterizing flavor, e.g., "artificial VANILLA," or "artificially flavored STRAWBERRY" or "artificially flavored VANILLA and artificially flavored STRAWBERRY."

3. a. If the food is subject to the requirements of subdivision 2 b of this subsection or if it contains any artificial flavor not simulating the characterizing flavor, the label also shall bear the words "artificial flavor added" or "artificial ______ flavor added," the blank being filled with the common name of the flavor simulated by the artificial flavor in letters of the same size and prominence as the words that precede and follow it.

b. When the optional ingredient microcrystalline cellulose specified in subdivision 6 of subsection F of this section is used, the label shall bear the statement "microcrystalline cellulose added" or "with microcrystalline cellulose."

c. When two or more of the optional ingredients specified in subdivision 2 of subsection B and subdivision 6 of subsection F of this section are used, such words may be combined; for example, "microcrystalline cellulose and artificial flavor added."

d. Wherever the name of the characterizing flavor appears on the label so conspicuously as to be easily seen under customary conditions of purchase, the words prescribed by this subparagraph shall immediately and conspicuously precede or follow such name, in a size reasonably related to the prominence of the name of the characterizing flavor and in any event the size of the type is not less than 6-point on packages containing less than one pint, not less than 8-point on packages containing at least one pint but less than one-half gallon, but less than one gallon, and not less than 12-point on packages containing one gallon or over; however, that where the characterizing flavor and a trademark or brand are presented together, other written, printed, or graphic matter that is a part of or is associated with the trademark or brand, may intervene if the required words are in such relationship with the trademark or brand as to be clearly related to the characterizing flavor: And provided further, that if the finished product contains more than one flavor of ice cream subject to the requirements of this subparagraph, the statements required by this subparagraph need appear only once in each statement of characterizing flavors present in such ice cream, e.g., "VANILLA flavored, CHOCOLATE and STRAWBERRY flavored, artificial flavors added."

4. If the food contains both a natural characterizing flavor and an artificial flavor simulating the characterizing flavor, any reference to the natural characterizing flavor, except as otherwise authorized by this subsection, shall be accompanied by a reference to the artificial flavor, displayed with substantially equal prominence, e.g., "strawberry and artificial strawberry flavor."

5. An artificial flavor simulating the characterizing flavor shall be deemed to predominate:

a. In the case of vanilla beans or vanilla extract used in combination with vanillin if the amount of vanillin used is greater than one ounce per unit of vanilla constituent.

b. In the case of fruit or fruit juice used in combination with artificial fruit flavor, if the quantity of the fruit or fruit juice used is such that, in relation to the weight of the finished ice cream, the weight of the fruit or fruit juice, as the case may be (including water necessary to reconstitute partially or wholly dried fruits or fruit juices to their original moisture content) is less than 2.0% in the case of citrus ice cream, 6.0% in the case of berry or cherry ice cream, 10% in the case of ice cream prepared with other fruits.

c. In the case of nut meats used in combination with artificial nut flavor, if the quantity of nut meats used is such that, in relation to the finished ice cream, the weight of the nut meats is less than 2.0%.

d. In the case of two or more fruit or fruit juices, or nut meats, or both, used in combination with artificial flavors simulating the natural flavors and dispersed throughout the food, if the quantity of any fruit or fruit juice or nut meat is less than one-half the applicable percentage specified in subparagraphs b or c of this paragraph. For example, if a combination ice cream contains less than 5.0% of bananas and less than 1.0% of almonds it would be "Artificially flavored banana-almond ice cream." However, if it contains more than 5.0% of bananas and more than 1.0% of almonds it would be "Banana-almond flavored ice cream."

6. If two or more flavors of ice cream are distinctively combined in one package, e.g., "Neapolitan" ice cream, the applicable provisions of this subsection shall govern each flavor of ice cream comprising the combination.

H. Optional ingredients other than those included in subsections B, C, D and F may be used when permitted for use in ice cream by the Federal Food and Drug Administration.

A. Ice cream or frozen custard is the food prepared from the same ingredients and in the same manner, including labeling, as prescribed in 21 CFR 135.110 or 21 CFR 135.115.

B. Ice cream mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, produces a product conforming to the description of "ice cream" in 21 CFR 135.110 or "goat's milk ice cream" in 21 CFR 135.115.

C. Frozen custard mix, french ice cream mix, or french custard ice cream mix is the pasteurized unfrozen combination of ingredients that, when frozen while stirring, produces products conforming to the description of "frozen custard," "french ice cream," or "french custard ice cream" in 21 CFR 135.110 or "goat's milk frozen custard," "goat's milk french ice cream," or "goat's milk french custard ice cream" in 21 CFR 135.115.

2VAC5-510-40. Ice cream mix. (Repealed.)

Ice cream mix is the pasteurized unfrozen combination of ingredients which when frozen while stirring will produce a product conforming to the definition of ice cream.

2VAC5-510-50. Frozen custard, french ice cream, french custard ice cream; identity; label statement of optional ingredients; frozen custard mix, french ice cream mix, and french custard ice cream mix. (Repealed.)

A. Frozen custard, french ice cream, french custard ice cream conforms to the definition and standard of identity, and is subject to the requirements for label statement of optional ingredients, prescribed for ice cream by 2VAC5-510-30, except that one or more of the optional egg ingredients permitted by 2VAC5-510-30 F 1 are used in such quantity that the total weight of egg yolk solids therein is not less than 1.4% of the weight of the finished frozen custard; Provided, however, that when the ingredients named in subdivisions 3 through 8 of 2VAC5-510-30 B, inclusive, are used the content of egg yolk solids may be reduced in proportion to the bulky ingredient or ingredients added, under the conditions prescribed by 2VAC5-510-30 A for reduction in milkfat and total milk solids; but in no case is the content of egg yolk solids less than 1.12%.

B. Frozen custard mix, french ice cream mix, and french custard ice cream mix are the pasteurized unfrozen combinations of ingredients that when frozen while stirring will produce products conforming to the definition of frozen custard, french ice cream, and french custard ice cream.

2VAC5-510-90. Fruit sherbets; identity; label statement of optional ingredients; fruit sherbet mix Sherbets.

A. Fruit sherbets are the foods each of which is prepared by freezing, while stirring, a mix composed of one or more of the optional characterizing fruit ingredients specified in subsection B of this section and one or more to the optional ingredients specified in subsection C of this section, sweetened with one or more of the optional sweetening ingredients specified in subsection D of this section. One or more of the optional ingredients specified in subsection E of this section may be used, subject to the conditions hereinafter set forth. The mix of combined dairy ingredients, with or without other ingredients, is pasteurized. The titratable acidity of the finished fruit sherbet, calculated as lactic acid, is not less than 0.35%. The mix with or without added water may be seasoned with salt, and may be homogenized. The optional dairy ingredients used and the content of milkfat and nonfat milk solids therein are such that the weight of milkfat is not less than 1.0% and not more than 2.0%, and the weight of total milk solids is not less than 2.0% and not more than 5.0% of the weight of the finished fruit sherbet. The optional caseinates specified in subdivision 7 of subsection E of this section are not deemed to be milk solids. The finished fruit sherbet weights not less than six pounds to the gallon; except that when the optional ingredient microcrystalline cellulose specified in subdivision 11 of subsection E of this section is used, the finished fruit sherbet weighs not less than six pounds to the gallon, exclusive of the weight of the microcrystalline cellulose.

B. The optional fruit characterizing ingredients referred to in subsection A of this section are any mature fruit or the juice of any mature fruit. The fruit or fruit juice used may be fresh, frozen canned, concentrated, or partially or wholly dried. The fruit may be thickened with pectin or other of the optional ingredients named in subdivision 2 of subsection E of this section, subject to the restriction on the total quantity of such substances in fruit sherbets prescribed in that subsection. The fruit is prepared by the removal of pits, seeds, skins, and cores, where such removal is usual in preparing that kind of fruit for consumption as fresh fruit. The fruit may be screened, crushed, or otherwise comminuted. It may be acidulated with citric acid, ascorbic acid, or phosphoric acid. In the case of concentrated fruit or fruit juices from which part of the water is removed, substances contributing flavor volatilized during water removal may be condensed and reincorporated in the concentrated fruit or fruit juice. In the case of citrus fruits, the whole fruit, including the peel but excluding the seeds, may be used, and in the case of citrus juice or concentrated citrus juices, cold-pressed citrus oil may be added thereto in an amount not exceeding that which would have been obtained if the whole fruit had been used. The quantity of fruit ingredients used is such that, in relation to the weight of the finished sherbet, the weight of fruit or fruit juice, as the case may be, including water necessary to reconstitute partially or wholly dried fruits or fruit juices to their original moisture content, is not less than 2.0% in the case of citrus sherbets, 6.0% in the case of berry sherbets, and 10% in the case of sherbets prepared with other fruits. For the purposes of this section, tomatoes and rhubarb are considered as kinds of fruit.

C. The optional dairy ingredients referred to in subsection A of this section are: cream, dried cream, plastic cream, (sometimes known as concentrated milkfat), butter, butter oil, milk, concentrated milk, evaporated milk, superheated condensed milk, sweetened condensed milk, dried milk, skim milk, concentrated skim milk, evaporated skim milk, condensed skim milk, superheated condensed skim milk, sweetened condensed skim milk, sweetened condensed part-skim milk, nonfat dry milk, sweet cream buttermilk, condensed sweet cream buttermilk, dried sweet cream buttermilk, skim milk that has been concentrated and from which part of the lactose has been removed by crystallization, concentrated cheese whey, and dried cheese whey. Water may be added, or water may be evaporated from the mix. The sweet cream buttermilk and the concentrated sweet cream buttermilk or dried sweet cream buttermilk, when adjusted with water to a total solids content of 8.5% has a titratable acidity of not more than 0.17%, calculated as lactic acid. The term "milk" as used in this section means cow's milk. Dried cheese whey is uniformly light in color, free from brown and black scorched particles, and has an alkalinity of ash, not more than 225 milliliters 0.1 N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and, as adjusted with water to a total solids content of 6.5%, a titratable acidity of not more than 0.16% calculated as lactic acid. Concentrated cheese whey has an alkalinity of ash, not more than 115 milliliters 0.1 N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and, as adjusted with water to a total solids content of 6.5%, a titratable acidity of not more than 0.18%, calculated as lactic acid.

D. The optional sweetening ingredients referred to in subsection A of this section are: sugar (sucrose), dextrose, invert sugar (paste or sirup), glucose sirup, dried glucose sirup, corn sirup, dried corn sirup, malt sirup, malt extract, dried malt sirup, dried malt extract, maltose sirup, dried maltose sirup.

E. Other optional ingredients referred to in subsection A of this section are:

1. Liquid eggs, frozen eggs, dried eggs, egg yolks, frozen yolks; dried yolks; but the weight of the egg yolk solids therein is less than 0.5% of the weight of the finished fruit sherbet.

2. Agar-agar, algin (sodium alginate), calcium sulfate, egg white, gelatin, gum acacia, guar seed gum, gum karaya, locust bean gum, oat gum, gum tragacanth, hydroxypropyl methylcellulose, carrageenan, salts of carrageenan, furcelleran, salts of furcelleran, lecithin, pectin, psyllium seed husk, sodium carboxymethylcellulose. The total weight of the solids of any such ingredient used singly or of any combination of two or more such ingredients used (including any such ingredient added separately to the fruit ingredient) is not more than 0.5% of the weight of the finished fruit sherbet. Such ingredients may be added in admixture with dextrin, propylene glycol, or glycerin.

3. Monoglycerides or diglycerides or both of fat-forming fatty acids. The total weight of such ingredients is not more than 0.2% of the weight of the finished fruit sherbet. If the preparation used is one of having a high proportion of monoglycerides (over 90%), it may be preblended with edible fat, but the amount of such fat does not exceed 20% by weight of the blend, and the total amount of the blend used does not exceed 0.2% of the weight of the finished fruit sherbet.

4. Polysorbate 65, polysorbate 80, or both (the limit on either used separately or both used in combination of not more than 0.1% by weight of the finished frozen dessert).

5. Propylene glycol alginate (limit of not more than 0.5% by weight of the finished frozen dessert).

6. Citric acid, tartaric acid, malic acid, lactic acid, ascorbic acid, phosphoric acid, or any combination of two or more of these in such quantity as seasons the finished food.

7. Casein prepared by precipitation with gums, ammonium caseinate, calcium caseinate, potassium caseinate, sodium caseinate.

8. Any natural food flavoring.

9. Any artificial flavoring.

10. Coloring, including artificial coloring.

11. Microcrystalline cellulose, in a quantity not to exceed 0.5% of the weight of the finished fruit sherbet.

12. When one or more of the optional thickening ingredients in subdivision 2 or 5 of this subsection are used, dioctyl sodium sulfosuccinate may be used in a quantity not in excess of 0.5% by weight of such ingredients.

F. The name of each such fruit sherbet is "__________ sherbet," the blank being filled in with the common name of the fruit or fruits from which the fruit ingredients used are obtained. When the names of two or more fruits are included, such names shall be arranged in order of predominance, if any, by weight of the respective fruit ingredients used.

G. When the optional ingredients artificial coloring or artificial flavorings are used in fruit sherbet they shall be named on the labels as follows:

1. The label shall designate artificial coloring by the statement "artificially colored," "artificial coloring added," "with added artificial coloring," or "__________ an artificial color added," the blank being filled in with the name of the artificial coloring used.

2. The label shall designate artificial flavoring by the statement "artificially flavored," "artificial flavoring added," "with added artificial flavoring," or "__________ an artificial flavor added," the blank being filled in with the name of the artificial flavoring used.

3. Whenever artificial flavoring is not added as such but as a component of some other ingredient, the label shall include the statement "__________ artificially flavored," the blank being filled in with the name of such other ingredient.

4. When the optional ingredient microcrystalline cellulose specified in subdivision 11 of subsection E of this section is used, the label shall bear the statement "microcrystalline cellulose added" or "with added microcrystalline cellulose." Label statements may be combined, as for example, "with added artificial flavoring and artificial coloring."

H. Where one or more of the optional ingredients artificial coloring or artificial flavoring are used and there appears on the label any representation as to the fruit or fruits in the sherbet, such representation shall be immediately and conspicuously accompanied by appropriate label statements as prescribed in subsection G of this section, showing the optional ingredients used.

I. Wherever the name of the food appears on the label so conspicuously as to be easily seen under customary conditions of purchase, the statements specified in this section, showing the optional ingredients used, shall immediately and conspicuously precede or follow such name without intervening written, printed, or graphic matter.

J. Fruit sherbet mix is the pasteurized unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of fruit sherbet.

A. Sherbet is the food prepared from the same ingredients and in the same manner, including labeling, as prescribed in 21 CFR 135.140.

B. Sherbet mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, produces a product conforming to the description of "sherbet" in 21 CFR 135.140.

2VAC5-510-110. Water ices; identity; label statement of optional ingredients; water ice mix Water ices.

A. Water ices are the foods, each of which is prepared by freezing, while stirring, a mix composed of one or more of the optional characterizing fruit ingredients specified in subsection B of this section, sweetened with one or more of the optional sweetening ingredients specified in subsection C of this section. One or more of the optional ingredients specified in subsection D of this section may be used, subject to the conditions hereinafter set forth. The titratable acidity of the finished water ice, calculated as lactic acid, is not less than 0.35%. The mix, with or without added water, may be seasoned with salt, and may be homogenized. The finished water ice weighs not less than six pounds to the gallon.

B. The optional fruit ingredients referred to in subsection A of this section are any mature fruit or the juice of any mature fruit. The fruit or fruit juice used may be fresh, frozen, canned, concentrated, or partially or wholly dried. The fruit may be thickened with pectin or other of the optional ingredients named in subdivision 1 of subsection D of this section subject to the restriction on the total quantity of such substances in water ices prescribed in that subdivision. The fruit is prepared by the removal of pits, seeds, skins, and cores where such removal is usual in preparing that kind of fruit for consumption as fresh fruit. The fruit may be screened, crushed, or otherwise communited. It may be acidulated with citric acid, ascorbic acid, or phosphoric acid. In the case of fruit or fruit juices from which part of the water is removed, substances contributing flavor volatilized during water removal may be condensed and reincorporated in the concentrated fruit or fruit juice. In the case of citrus fruits, the whole fruit, including the peel but excluding the seeds, may be used, and in the case of citrus juice or concentrated citrus juices, cold-pressed citrus oil may be added thereto in an amount not exceeding that which would have been obtained if the whole fruit had been used. The quantity of fruit ingredients used is such that in relation to the weight of the finished water ice, the weight of fruit or fruit juice as the case may be, including water necessary to reconstitute partially or wholly dried fruits or fruit juices to their original moisture content, is not less than 2.0% in the case of citrus ices, 6.0% in the case of berry ices, and 10% in the case of ices prepared with other fruits.

C. The optional sweetening ingredients referred to in subsection A of this section are: Sugar (sucrose), dextrose, invert sugar (paste or sirup), glucose sirup, dried glucose sirup, corn sirup, dried corn sirup, malt sirup, malt extract, dried malt sirup, dried malt extract, maltose sirup, dried maltose sirup.

D. Other optional ingredients referred to in subsection A of this section are:

1. a. Agar-agar, algin (sodium alginate), egg white, gelatin, gum acacia, guar seed gum, gum karaya, locust bean gum, oat gum, gum tragacanth, hydroxypropyl methyl cellulose, carrageenan, salts of carrageenan, furcelleran, salts of furcelleran, propylene glycol alginate, pectin, psyllium seed husk, sodium carboxymethylcellulose. The total weight of the solids of any such ingredient used singly, or of any combination of two or more such ingredients used, including any such ingredient added separately to the fruit ingredient, is not more than 0.5% of the weight of the finished water ice. Such ingredients may be added in admixture with dextrin, propylene glycol, or glycerin.

b. When one or more of the optional thickening ingredients in subdivision a of this subdivision are used, dioctyl sodium sulfosuccinate may be used in a quantity not in excess of 0.5% of weight of such ingredients.

2. Citric acid, tartaric acid, malic acid, lactic acid, ascorbic acid, phosphoric acid, or any combination of two or more of these in such quantity as seasons the finished food.

3. Any natural flavoring.

4. Any artificial flavoring.

5. Coloring, including artificial coloring.

E. The name of each such water ice is "__________ ice," the blank being filled with the common name of the fruit or fruits from which the fruit ingredient used is obtained. When the names of two or more fruits are included such names shall appear in the order of predominance, if any, by weight of the respective fruit ingredients used.

F. When the optional ingredients artificial coloring and artificial flavoring are used in water ices they shall be named on the labels as follows:

1. The label shall designate artificial flavoring by the statement "artificially flavored," "artificial flavoring added," "with added artificial flavoring," or "__________, an artificial flavor added," the blank being filled in with the name of the artificial flavoring used.

Label statements may be combined, as for example, "flavoring and artificial coloring added."

G. Where one or more of the optional ingredients artificial coloring or artificial flavoring are used and there appears on the labeling any representation as to the fruit or fruits in the ice, such representation shall be immediately and conspicuously accompanied by appropriate label statements as prescribed in subsection F of this section, showing the optional ingredients used.

H. Wherever the name of the food appears on the label so conspicuously as to be easily seen under customary conditions of purchase, the statements set out in this section showing the optional ingredients used shall immediately and conspicuously precede or follow such name, without intervening written, printed, or graphic matter.

I. Water ice mix is the unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of water ice.

A. Water ices are the foods that are prepared from the same ingredients and in the same manner, including labeling, as prescribed in 21 CFR 135.160.

B. Water ice mix is the unfrozen combination of ingredients that, when frozen while stirring, produces a product conforming to the description of "water ices" in 21 CFR 135.160.

2VAC5-510-130. Nonfruit sherbets; identity; label statement of optional ingredients; nonfruit sherbet mix. (Repealed.)

A. Nonfruit sherbets are the foods each of which is prepared by freezing, while stirring, a mix composed of one or more of the optional characterizing ingredients specified in subsection B of this section and one or more of the optional dairy ingredients specified in subsection C of this section, sweetened with one or more of the optional sweetening ingredients specified in subsection D of this section. One or more of the optional ingredients specified in subsection E of this section may be used, subject to the conditions hereinafter set forth. The mix of combined dairy ingredients, with or without other ingredients, is pasteurized. The mix, with or without added water, may be seasoned with salt and may be homogenized. The optional dairy ingredients used and the content of milkfat and nonfat milk solids therein are such that the weight of milkfat is not less than 1.0% and not more than 2.0% and their weight of total milk solids is not less than 2.0% and not more than 5.0% of the weight of the finished nonfruit sherbets. The optional caseinates specified in subdivision 7 of subsection E of this section are not deemed to be milk solids. The finished nonfruit sherbet weighs not less than six pounds to the gallon; except that when the optional ingredients microcrystalline cellulose specified in subdivision 9 of subsection E of this section is used, the finished nonfruit sherbet weighs not less than six pounds to the gallon, exclusive of the weight of the microcrystalline cellulose.

B. The optional characterizing ingredients referred to in subsection A of this section are:

1. Ground spice or infusion of coffee or tea.

2. Chocolate or cocoa, including sirup.

3. Confectionery.

4. Distilled alcoholic beverage, including liqueurs or wine, in an amount not to exceed that required for flavoring the sherbet.

5. Any natural or artificial food flavoring, except any having a characteristic fruit or fruit-like flavor.

C. The optional dairy ingredients referred to in subsection A of this section are: cream, dried cream, plastic cream (sometimes known as concentrated milkfat), butter, butter oil, milk, concentrated milk, evaporated milk, super-heated condensed milk, sweetened condensed milk, dried milk, skim milk, concentrated skim milk, evaporated skim milk, condensed skim milk, superheated condensed skim milk, sweetened condensed skim milk, sweetened condensed part-skim milk, nonfat dry milk, sweet cream buttermilk, condensed sweet cream buttermilk, dried sweet cream buttermilk, skim milk that has been concentrated and from which part of the lactose has been removed by crystallization, concentrated cheese whey, and dried cheese whey. Water may be added or water may be evaporated from the mix. The sweet cream buttermilk and the concentrated sweet cream buttermilk or dried sweet cream buttermilk, when adjusted with water to a total solids content of 8.5%, has a titratable acidity of not more than 0.17% calculated as lactic acid. The term "milk" as used in this section means cow's milk. Dried cheese whey is uniformly light in color, free from brown and black scorched particles, and has an alkalinity of ash not more than 225 milliliters 0.1 N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and, as adjusted with water to a total solids content of 6.5%, a titratable acidity of not more than 0.16% calculated as lactic acid. Concentrated cheese whey has an alkalinity of ash not more than 115 milliliters of 0.1 N HC1 per 100 grams, a bacterial count of not more than 50,000 per gram, and, as adjusted with water to a total solids content of 6.5%, a titratable acidity of not more than 0.18% calculated as lactic acid.

D. The optional sweetening ingredients referred to in subsection A of this section are: sugar (sucrose), dextrose, invert sugar (paste or sirup), glucose sirup, dried glucose sirup, corn sirup, dried corn sirup, malt sirup, malt extract, dried malt sirup, dried malt extract, maltose sirup, dried maltose sirup.

E. Other optional ingredients referred to in subsection A of this section are:

1. Liquid eggs, frozen eggs, dried eggs, egg yolks, frozen yolks, dried yolks; but the weight of egg yolk solids therein is less than 0.5% of the weight of the finished nonfruit sherbet.

2. Agar-agar, algin (sodium alginate), calcium sulfate, egg white, gelatin, gum acacia, guar seed gum, gum karaya, locust bean gum, oat gum, gum tragacanth, hydroxypropyl methylcellulose, carrageenan, salts of carrageenan, furcelleran, salts of furcelleran, lecithin, pectin, psyllium seed husk, sodium carboxymethylcellulose. The total weight of the solids of any such ingredient used singly or of any combination of two or more such ingredients used is not more than 0.5% of the weight of the finished nonfruit sherbet. Such ingredients may be added in admixture with dextrin, propylene glycol, or glycerin.

3. Monoglycerides or diglycerides or both of fat-forming fatty acids. The total weight of such ingredients is not more than 0.2% of the weight of the finished nonfruit sherbet. If the preparation used is one having a high proportion of monoglycerides (over 90%), it may be preblended with edible fat, but the amount of such fat does not exceed 20% by weight of the blend and the total amount of the blend used does not exceed 0.2% of the weight of the finished nonfruit sherbet.

4. Polysorbate 65, polysorbate 80, or both (limit on either used separately or both used in combination of not more than 0.1% by weight of the finished frozen dessert).

5. Propylene glycol alginate (limit of not more than 0.5% by weight of the finished frozen dessert).

6. Citric acid, tartaric acid, malic acid, lactic acid, ascorbic acid, phosphoric acid, or any combinations of two or more of these in such quantity as seasons the finished food.

7. Casein prepared by precipitation with gums, ammonium caseinate, calcium caseinate, potassium caseinate, sodium caseinate.

8. Coloring, including artificial color.

9. Microcrystalline cellulose, in a quantity not to exceed 0.5% of the weight of the finished nonfruit sherbet.

10. When one or more of the optional thickening ingredients in subdivision 2 or 5 of this subsection are used, dioctyl sodium sulfosuccinate may be used in a quantity not in excess of 0.5% by weight of such ingredients.

F. Except as provided for in subsection G of this section, the name of each such nonfruit sherbet is ".... sherbet," the blank being filled in with the common or usual name or names of the characterizing flavor or flavors; for example, "peppermint."

G. If the characterizing flavor is vanilla, the name of the food is ".... sherbet," the blank being filled in as specified by 2VAC5-510-30 G 2 and 5 a.

H. When the optional ingredients artificial flavoring, artificial coloring, or microcrystalline cellulose are used in nonfruit sherbet, they shall be named on the label as follows:

1. If the flavoring ingredient or ingredients consists exclusively of artificial flavoring, the label designation shall be "artificially flavored."

2. If the flavoring ingredients are a combination of natural and artificial flavors, the label designation shall be "artificial and natural flavoring added."

3. The label shall designate artificial coloring by the statement "artificially colored," "artificial coloring added," "with added artificial coloring," or "...., an artificial color added," the blank being filled in with the name of the artificial coloring used.

4. When the optional ingredient microcrystalline cellulose is used, the label shall bear the statement "microcrystalline cellulose added" or "with added microcrystalline cellulose."

I. Wherever there appears on the label any representation as to the characterizing flavor or flavors of the food and such flavor or flavors consist in whole or in part of artificial flavoring, the statement required by subdivision 1 or 2 of subsection H of this section, as appropriate, shall immediately and conspicuously precede or follow such representation, without intervening written, printed, or graphic matter, except that the word "sherbet" may intervene, in a size reasonably related to the prominence of the name of the characterizing flavor and in any event the size of the type is not less than 6-point on packages containing less than one pint, not less than 8-point on packages containing at least one pint but less than one-half gallon, not less than 10-point on packages containing at least one-half gallon but less than one gallon, and not less than 12-point on packages containing one gallon or over.

J. Except as specified in subsection I of this section, the statements required by subsection H of this section shall be set forth on the principal display panel or panels of the label with such prominence and conspicuousness as to render them likely to be read and understood by the ordinary individual under customary conditions of purchase and use.

K. Nonfruit sherbet mix is the unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of nonfruit sherbet.

2VAC5-510-150. Nonfruit water ices; identity; label statement of optional ingredients; nonfruit water ice mix. (Repealed.)

A. Nonfruit water ices are the foods each of which is prepared by freezing, while stirring, a mix composed of one or more of the optional characterizing ingredients specified in subsection B of this section, sweetened with one or more of the optional sweetening ingredients specified in subsection C of this section. One or more of the optional ingredients specified in subsection D of this section may be used, subject to the conditions hereinafter set forth. The mix, with or without added water, may be seasoned with salt and may be homogenized. The finished nonfruit water ice weighs not less than six pounds to the gallon.

B. The optional characterizing ingredients referred to in subsection A of this section are:

1. Ground spice or infusion of coffee or tea.

2. Chocolate or cocoa, including sirup.

3. Confectionery.

4. Distilled alcoholic beverage, including liqueurs or wine, in an amount not to exceed that required for flavoring the water ice.

5. Any natural or artificial food flavoring, except any having a characteristic fruit or fruit-like flavor.

C. The optional sweetening ingredients referred to in subsection A of this section are: Sugar (sucrose), dextrose, invert sugar (paste or sirup), glucose sirup, dried glucose sirup, corn sirup, dried corn sirup, malt sirup, malt extract, dried malt sirup, dried malt extract, maltose sirup, dried maltose sirup.

D. Other optional ingredients referred to in subsection A of this section are:

1. Agar-agar, algin (sodium alginate), egg white, gelatin, gum acacia, guar seed gum, gum karaya, locust bean gum, oat gum, gum tragacanth, hydroxypropyl methylcellulose, carrageenan, salts of carrageenan, furcelleran, salts of furcelleran, propylene glycol alginate, pectin, psyllium seed husk, sodium carboxymethylcellulose. The total weight of the solids of any such ingredient used singly, or of any combination of two or more such ingredients used, is not more than 0.5% of the weight of the finished nonfruit water ice. Such ingredients may be added in admixture with dextrin, propylene glycol, or glycerin.

When one or more of the optional thickening ingredients in this subdivision are used, dioctyl sodium sulfosuccinate may be used in a quantity not in excess of 0.5% by weight of such ingredients.

2. Citric acid, tartaric acid, malic acid, lactic acid, ascorbic acid, phosphoric acid, or any combination of two or more of these in such quantity as seasons the finished food.

3. Coloring, including artificial coloring.

E. Except as provided for in subsection F of this section, the name of each such nonfruit water ice is ".... ice," the blank being filled in with the common or usual name or names of the characterizing flavor or flavors; for example, "peppermint."

F. If the characterizing flavor used is vanilla, the name of the food is ".... ice," the blank being filled in as specified by 2VAC5-510-30 G 2 and 5.

G. When the optional ingredients artificial flavoring or artificial coloring are used in nonfruit water ice, they shall be named on the label as follows:

1. If the flavoring ingredient or ingredients consist exclusively of artificial flavoring, the label designation shall be "artificially flavored."

2. If the flavoring ingredients used are a combination of natural and artificial flavors, the label designation shall be "artificial and natural flavoring added."

3. The label shall designate artificial coloring by the statement "artificially colored," "artificial coloring added," "with added artificial coloring," or "...., an artificial color added," the blank being filled in with the name of the artificial coloring used.

H. Wherever there appears on the label any representation as to the characterizing flavor or flavors of the food and such flavor or flavors consist in whole or in part of artificial flavoring, the statement required by subdivision 1 or 2 of subsection G of this section, as appropriate, shall immediately and conspicuously precede or follow such representation, without intervening written, printed, or graphic matter, except that the word "ice" may intervene, in a size reasonably related to the prominence of the name of the characterizing flavor and in any event the size of the type is not less than 6-point on packages containing less than one pint, not less than 8-point on packages containing at least one pint but less than one-half gallon, not less than 10-point on packages containing at least one-half gallon but less than one gallon and not less than 12-point on packages containing one gallon or over.

I. Except as specified in subsection H of this section, the statements required by subsection G of this section shall be set forth on the principal display panel or panels of the label with such prominence and conspicuousness as to render them likely to be read and understood by the ordinary individual under customary conditions of purchase and use.

J. Nonfruit water ice mix is the unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of nonfruit water ice.

2VAC5-510-170. Artificially sweetened ice cream or frozen dietary dairy dessert; identity; label statement of optional ingredients; artificially sweetened ice e cream mix or frozen dietary dairy dessert mix. (Repealed.)

A. Artificially sweetened ice cream or frozen dietary dairy dessert means ice cream manufactured, prepared, or processed for consumption by persons who wish to restrict their intake of ordinary sweetening ingredients and shall conform to the definition and standard of identity prescribed for ice cream in 2VAC5-510-30, except that it shall be sweetened with an artificial sweetening agent and contains edible carbohydrates other than sugar. The artificial sweetening agent and the edible carbohydrates shall be approved by the Federal Food and Drug Administration and no sugars other than those naturally present in the milk solids or flavoring agent shall be added thereto.

B. The manufacturer shall place the product in packages or containers which shall be conspicuously labeled either "artificially sweetened" immediately preceding the words "ice cream" in similar type at least one-half the size of the type used for the words "ice cream" and on the same contrasting background, or "frozen dietary dairy dessert."

C. The label shall also contain a statement in terms of percentage by weight of protein, fat, and carbohydrates, the total number of calories per ounce, the number of calories contributed by carbohydrates and any carbohydrates other than lactose, and the name of each ingredient entering into the composition other than flavors.

D. The following statement shall appear conspicuously following the declaration of the artificial sweetener used, such as "Contains.... % saccharine, (or sodium salt of saccharine, as the case may be), a non-nutritive artificial sweetener which should be used only by persons who must restrict their intake of ordinary sweets." The blank is to be filled in with the percent by weight of saccharine or other artificial sweetener in said product.

E. The product shall not be sold in any manner other than in sealed or unbroken packages or containers from one or more separate compartments of a refrigerated container or cabinet.

F. Artificially sweetened ice cream mix or frozen dietary dairy dessert mix is the pasteurized unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of artificially sweetened ice cream or frozen dietary dairy dessert.

2VAC5-510-190. Artificially sweetened ice milk; identity; label statement of optional ingredients; artificially sweetened ice milk mix. (Repealed.)

A. Artificially sweetened ice milk means ice milk manufactured, prepared, or processed for consumption by persons who wish to restrict their intake of ordinary sweetening ingredients and shall conform to the definition and standard of identity prescribed for ice milk in 2VAC5-510-70 , except that it shall be sweetened with an artificial sweetening agent and contains edible carbohydrates other than sugar. The artificial sweetening agent and the edible carbohydrates must be approved by the Federal Food and Drug Administration and no sugars other than those naturally present in the milk solids or flavoring agent shall be added thereto.

B. The manufacturer shall place the product in packages or containers which shall be conspicuously labeled "artificially sweetened" immediately preceding the words "ice milk" in similar type at least one-half the size of the type used for the words "ice milk" and on the same contrasting background.

C. The label shall also contain a statement in terms of percentage by weight of protein, fat, and carbohydrates, the total number of calories per ounce, the number of calories contributed by carbohydrates and any carbohydrates other than lactose, and the name of each ingredient entering into the composition other than flavors.

D. The following statement shall appear conspicuously following the declaration of the artificial sweetener used, such as "contains.... % saccharine, (or sodium salt of saccharine, or other artificial sweetener, as the case may be), a nonnutritive artificial sweetener which should only be used by persons who must restrict their intake of ordinary sweets." The blank is to be filled in with the percent by weight of saccharine or other artificial sweetener in said product.

E. The product shall not be sold in any manner other than in sealed or unbroken packages or containers from one or more separate compartments of a refrigerated container or cabinet.

F. Artificially sweetened ice milk mix is the pasteurized unfrozen combination of ingredients that when frozen while stirring will produce a product conforming to the definition of artificially sweetened ice milk.

2VAC5-510-210. Frozen yogurt; identity; label statement of optional ingredients; frozen yogurt mix; shipping frozen yogurt mix.

A. Frozen yogurt is a food which that is prepared by freezing while stirring a pasteurized mix, containing one or more of the following ingredients, whole milk, partially defatted milk, skim milk, or other milk products, and with or without fruits, nuts, flavoring materials, sweeteners, stabilizers, emulsifiers, and any other safe and suitable approved ingredient which that is cultured after pasteurization by one or more strains of Lactobacillus delbrueckii subsp. bulgaricus and Streptcoccus thermophilus; provided, however, that fruits, nuts, or other flavoring materials may be added before or after the mix is pasteurized and cultured. The standard plate count requirement for frozen desserts shall apply only to the mix prior to culturing. The finished frozen yogurt shall weigh not less than 5 five pounds per gallon. The name of the product is "frozen yogurt." The label on a package of frozen yogurt, in addition to other required information, shall include a complete list of all ingredients in descending order or predominance; for the purposes of Part III (2VAC5-510-30 et seq.) of this chapter, the strains of bacteria may be collectively referred to as yogurt culture.

B. Frozen yogurt mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, will produce a product conforming to the definition of frozen yogurt.

C. Frozen yogurt mix may be shipped in a frozen state to plants and frozen desserts retail establishments.

2VAC5-510-240. Quiescently frozen confection; identity; label statement of optional ingredients; quiescently frozen confection mix.

A. Quiescently frozen confection means the frozen, sweetened, flavored product in the manufacture of which freezing has not been accompanied by stirring or agitation, generally known as quiescent freezing. This confection may be acidulated with harmless organic acid, may contain milk products, may be made with or without added harmless natural or artificial flavoring, with or without added harmless coloring. The finished product may contain shall not contain more than one-half of 1.0% by weight of stabilizing agents. The finished product shall contain not less than 17% by weight of total food solids. This confection must be manufactured in the form of servings, individually packaged, bagged, or otherwise wrapped, properly labeled and purveyed to the consumer in its original factory-filled package. In the production of this quiescently frozen confection, no processing or mixing prior to quiescent freezing shall be used that develops in the finished confection mix any physical expansion in excess of 10%.

B. Quiescently frozen confection mix is the unfrozen combination of ingredients that, when frozen, will produce a product conforming to the definition of quiescently frozen confection.

2VAC5-510-260. Quiescently frozen dairy confection; identity; label statement of optional ingredients; quiescently frozen dairy confection mix.

A. Quiescently frozen dairy confection means the frozen product made from water, pasteurized milk products, and sweetening agents, with added harmless coloring, with or without added stabilizing and emulsifying ingredients, and in the manufacture of which freezing has not been accompanied by stirring or agitation, generally known as quiescent freezing. It contains not less than 13% by weight of total milk solids, not less than 33% by weight of total food solids, not more than one-half of 1.0% by weight of stabilizing agents, not more than one-fifth of 1.0% by weight of monoglycerides or diglycerides or a combination of both, not more than one-tenth of 1.0% by weight of polysorbate 65 or polysorbate 80 or a combination of both. This confection must be manufactured in the form of servings individually packaged, bagged, or otherwise wrapped, properly labeled and purveyed to the consumer in its original factory-filled package. In the production of this quiescently frozen dairy confection, no processing or mixing prior to quiescent freezing shall be used that develops in the finished confection mix any physical expansion in excess of 10%.

B. Quiescently frozen dairy confection mix is the pasteurized, unfrozen combination of ingredients that, when frozen, will produce a product conforming to the definition of quiescently frozen dairy confection.

2VAC5-510-280. Manufactured desserts mix; identity; label statement of optional ingredients.

Manufactured desserts mix, whipped cream confection, or bisque tortoni means a pasteurized frozen dessert made with milk products, sweetening agents, flavoring agents, stabilizing agents, and emulsifying agents, with or without harmless coloring. It contains not less than 18% by weight of milkfat, not more than one-half of 1.0% by weight of stabilizing agents, not more than two-tenths of 1.0% by weight of monoglycerides or diglycerides of fat forming fatty acids or a combination of both, not more than one-tenth of 1.0% by weight of polyoxyethylene (20) sorbitan tristearate or polysorbate eighty 80 (polyoxyethelene (20) sorbitan monooleate) or a combination of both, not more than 12% of milk solids not fat, and may be packaged with harmless gas, as prescribed in 21 CFR Part 184, causing it to fluff upon ejection from the package or container.

2VAC5-510-290. Mellorine; identity; label statement of ingredients; mellorine mix.

A. Mellorine conforms to the definition and standard of identity, and is subject to the requirements for optional ingredients, prescribed for ice cream by 2VAC5-510-30, except that in place of optional dairy ingredients containing butterfat as permitted pursuant to 2VAC5-510-30 C, edible fats or oils other than milkfat are used, and provided further that the weight of edible fats or oils other than milkfat, is not less than 10% of the weight of the finished mellorine and the weight of the milk solids not fat is not less than 10% of the weight of the finished mellorine, except that when one or more of the bulky optional ingredients as specified in 2VAC5-510-30 B 3, 4, 5, 6, 7, or 8 are used, the weight of the edible fats or oils other than milkfat and the combined weight of edible fats or oils other than milkfat and milk solids not fat, exclusive of any fat and milk solids not fat in any malted milk used, are not less than 10% and 20% respectively, of the remainder obtained by subtracting the weight of such optional ingredients as provided in 2VAC5-510-30 A, from the weight of the finished mellorine, but in no case is the weight of edible fats or oils other than milkfat, or the combined weight of edible fats and oils other than milkfat and milk solids not fat to be less than 8.0% and 16% respectively of the weight of the finished mellorine, and that whenever provisions appear in 2VAC5-510-30 referring to milkfat, it shall be understood to be edible fats or oils other than milkfat in the case of mellorine is the food prepared from the same ingredients and in the same manner, including labeling, as prescribed in 21 CFR 135.130.

B. The name of the product is "mellorine."

C. When any artificial color is used in mellorine, directly or as a component of any other ingredient, the label shall bear the statement, "artificially colored," "artificial coloring added," "with added artificial color," or "...., an artificial color added," the blank to be filled in with the common or usual name of the artificial color; or in lieu thereof, in case the artificial color is a component of another ingredient, "...., artificially colored."

D. If both artificial color and artificial flavoring are used, the label statements may be combined.

E. Mellorine shall be manufactured in the form of servings individually packaged, bagged, or otherwise wrapped, properly labeled and purveyed to the consumer in its original plant sealed container.

F. The label on a package of mellorine shall conform to the provisions of 2VAC5-510-30 G and in addition to other required information shall include the name "Mellorine" in a conspicuous manner. Mellorine may not be designated by the use of the word "cream" or its phonetic equivalent.

G. B. Mellorine mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, will produce a product conforming to the definition description of mellorine in 21 CFR 135.130.

2VAC5-510-310. Parevine; parevine mix.

A. Parevine is the food prepared by freezing, while stirring, a pasteurized mix composed of: (i) one or more edible vegetable fats; (ii) any optional sweetening ingredient except lactose; and (iii) protein or any other source of carbohydrate food solids. Parevine shall not contain any milk or meat products or any derivatives of such products.

B. Its The fat content of parevine shall not be less than 10%, except that when bulky optional characterizing ingredients are used, the fat content may be reduced, as a result of the addition of such ingredients, but shall in no case be less than 8.0%.

C. Its The content of food solids in parevine shall not be less than 1.3 pounds per gallon of the finished product.

D. The weight of the finished product shall not be less than 4.5 pounds per gallon.

E. Parevine shall be offered in the form of servings individually packaged, bagged, or wrapped and properly labeled and purveyed to the consumer in original plant sealed plant-sealed container. When any artificial color or flavor is used in parevine directly or indirectly as a component of any other ingredient, then it must be declared in the label must bear the statement, "Artificial color and flavor added," or similar words of like import.

F. Parevine mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, will produce a product conforming to the definition description of parevine in this section.

2VAC5-510-330. Lowfat parevine; lowfat parevine mix.

A. Lowfat parevine is the food prepared by freezing, while stirring, a pasteurized mix composed of: (i) one or more edible vegetable fats; (ii) any optional sweetening ingredient except lactose; and (iii) protein or any other source of carbohydrate food solids. Lowfat parevine shall not contain any milk or meat products nor any derivatives of such products.

B. Its The fat content of lowfat parevine shall not be more than 6.0%.

C. Its The content of food solids in lowfat parevine shall not be less than 1.3 pounds per gallon of the finished product.

D. The weight of the finished product shall not be less than 4.5 pounds per gallon.

E. Lowfat parevine shall be offered in the form of servings individually packaged, bagged, or wrapped and properly labeled and purveyed to the consumer in original plant sealed plant-sealed container. When any artificial color or flavor is used in lowfat parevine directly or indirectly as a component of any other ingredient, then it must be declared in the label must bear the statement, "Artificial color and flavor added," or similar words of like import.

F. Lowfat parevine mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, will produce a product conforming to the definition description of lowfat parevine in this section.

2VAC5-510-350. Freezer made milk shake; identity; label statement of optional ingredients; freezer made milk shake mix.

A. Freezer made milk shake means a pure, clean, wholesome semi-viscous drink prepared by stirring while freezing in a dispensing freezer a pasteurized mix obtained from an approved source consisting of milkfat, milk solids not fat, water, optional sweetening ingredients, with or without egg or egg products, with harmless flavoring, with or without harmless coloring, and with or without approved stabilizer or approved emulsifier. It shall contain not less than three and one-fourth percent 3.25% milkfat. It shall contain not less than 10% milk solids not fat, it shall contain not more than one-half percent 0.5% by weight of stabilizer and not more than one-fifth of 1.0% of emulsifier. Freezer made milk shakes may only be sold or served from a dispensing freezer and may not be sold hard frozen.

B. Other freezer made shakes including jumbo shake, thick shake, T.V. shake, or any coined or trade name containing the word "shake" shall meet the requirements of subsection A of this section, except that the minimum percent of milkfat may be less than three and one-fourth percent 3.25%.

C. "Shakes" not meeting the requirement for "milk" shakes shall not be advertised, sold, or served as a milk shake.

D. Freezer made milk shake mix is the pasteurized, unfrozen combination of ingredients that, when frozen while stirring, will produce a product conforming to the definition description of freezer made milk shake in this section.

2VAC5-510-370. Freezer made shake mix. (Repealed.)

Freezer made shake mix is the pasteurized unfrozen combination of ingredients which when frozen while stirring will produce a product conforming to the definition of freezer made shake.

2VAC5-510-380. Frozen desserts; identity. (Repealed.)

Frozen desserts mean any or all of the following: Ice Cream, Frozen Custard, French Ice Cream, French Custard Ice Cream, Ice Milk, Fruit Sherbets, Water Ices, Non-Fruit Sherbets, Non-Fruit Water Ices, Artificially Sweetened Ice Cream or Frozen Dietary Dairy Dessert, Artificially Sweetened Ice Milk, Frozen Yogurt, Quiescently Frozen Confection, Quiescently Frozen Dairy Confection, Mellorine, Parevine, Lowfat Parevine, Freezer Made Milk Shakes and Freezer Made Shakes. Frozen desserts shall also mean the mix used in the freezing of the preceding list of frozen desserts. Powder or dry frozen dessert mixes are not required to be repasteurized when reconstituted with water as described in 2VAC5-510-540 A.

2VAC5-510-390. Imitation frozen desserts; identity; prohibitions, exceptions, filings confidential.

A. Imitation frozen dessert is any frozen substance, mixture, or compound, regardless of the name under which it is represented, which that is made in imitation or semblance of ice cream, or is prepared or frozen as ice cream is customarily prepared or frozen, and which that is not Ice Cream; Frozen Custard; French Ice Cream; and French Custard Ice Cream; Ice Milk; Fruit Sherbets; Water Ices; Non-Fruit Sherbets; Non-Fruit Water Ices; Artificially Sweetened Ice Cream or Frozen Dietary Dessert; Artificially Sweetened Ice Milk; Frozen Yogurt; Quiescently Frozen Confection; Quiescently Frozen Dairy Confection; Mellorine; Parevine; Lowfat Parevine; Freezer Made Milk Shakes; and Freezer Made Shakes ice cream, frozen custard, french ice cream, french custard ice cream, ice milk, fruit sherbet, water ice, nonfruit sherbet, nonfruit water ice, artificially sweetened ice cream or frozen dietary dessert, artificially sweetened ice milk, frozen yogurt, quiescently frozen confection, quiescently frozen dairy confection, mellorine, parevine, lowfat parevine, or freezer made milk shake, as established by definitions and standards of identity in Part III (2VAC5-510-30 et seq.) of this chapter.

B. Powder or dry imitation frozen desserts mixes which that contain no milk or other dairy product ingredients but contain dry whey, reduced minerals whey, whey protein concentrate, reduced lactose whey and/or, or optional caseinates specified in 2VAC5-510-30 E are exempted from the pasteurization requirements of Part XII (2VAC5-510-550 et seq.) of this chapter. The wheys, caseinates, or egg ingredients used in the formulation of these mixes shall have been pasteurized or subjected to any other method of process demonstrated to be equally efficient. Powder or dry imitation frozen dessert mixes shall contain no ingredients except those which that are generally recognized as safe by the Federal U.S. Food and Drug Administration or those which that are permitted by this chapter in a frozen dessert.

C. Imitation frozen desserts sold at the retail level may be drawn from a dispensing freezer and a sign must be plainly marked "Imitation....," the blank being filled in with the name of the frozen dessert imitated, in a manner conspicuous to the public in letters at least three inches in height. Imitation frozen desserts shall not be dispensed for sale from packages or containers. "Dispensed" shall mean dipping and scooping from packages or containers.

D. C. No imitation frozen desserts shall be manufactured, sold, advertised, offered, or exposed for sale in this the Commonwealth unless 30 days prior to such manufacture, advertisement, offer, exposure for sale, or sale, the manufacturer, offeror, or dealer shall file files with the commissioner such intent. The filing herein required by this subsection shall be on forms supplied by the commissioner and shall include such information as the name under which the imitation frozen dessert is to be advertised or offered for sale, ingredients including any optional ingredients, proportion of ingredients expressed in a percentage, method of preparation, and any other relevant information the commissioner may require.

E. D. Information filed pursuant to this section shall be confidential and used solely for administration and enforcement of this chapter.

F. E. Imitation frozen desserts shall be considered as frozen desserts in the enforcement of Parts IV (2VAC5-510-410 et seq.) through XIV (2VAC5-510-630 et seq.) of this chapter.

2VAC5-510-415. Recall plan.

A. Each permit holder shall develop a recall plan that, when implemented, will effectively protect the public from frozen dessert products that present a risk of illness, injury, or gross deception, or are otherwise defective. Each permit holder shall submit a recall plan to VDACS prior to the issuance of any frozen desserts plant permit. VDACS shall review the recall plan or require the recall plan to be modified by the permit holder. A permit holder shall review the permit holder's recall plan annually and each time the permit holder introduces a new product. Within the 60 days following a recall plan review, if the permit holder determines that modifications to the recall plan are necessary, the permit holder shall revise the recall plan and submit the revised plan to VDACS for approval.

B. A recall plan shall include provisions to provide the following information to VDACS:

1. Identity of the product involved in the recall;

2. Reason for the recall and the date and circumstances under which the product deficiency or possible deficiency was discovered;

3. Evaluation of the risk associated with the deficiency or possible deficiency;

4. Total amount of identified products produced and the time span of the production;

5. Total amount of identified products estimated to be in distribution channels;

6. Distribution information, including the identity of each person to which the identified product was sold and the number of identified products sold to each person;

7. Draft copy of the permit holder's proposed recall communication;

8. Proposed strategy for conducting the recall; and

9. Name and telephone number of the permit holder's representative who should be contacted concerning the recall.

C. Each permit holder shall promptly notify each of its affected direct accounts about a recall and shall prepare a recall communication to:

1. Clearly identify the product, size, lot number, code or serial number, and any other descriptive information to enable accurate and immediate identification of the recalled product;

2. Explain concisely the reason for the recall and the hazard involved, if any;

3. Provide specific instructions on what should be done with respect to the recalled product;

4. Require the affected direct account to report to the recalling firm the quantity of the recalled product that the affected direct account has in its possession;

5. State that further distribution or use of any remaining product should cease immediately; and

6. Where appropriate, state that the affected direct account should notify its customers who received the recalled product.

D. Each permit holder shall provide recall status reports to VDACS as requested by the VDACS until the recall is terminated. Each permit holder shall include in each recall status report the following information:

1. The number of affected direct accounts notified of the recall and the date and method of notification;

2. The number of affected direct accounts responding to the recall communication and the quantity of products in the affected direct account's possession at the time the recall communication was received;

3. The number and identity of the affected direct accounts that did not respond to the recall communication;

4. The number of products returned or corrected by each affected direct account that was contacted and the quantity of products that are accounted for;

5. The number of effectiveness checks that were made and the results of those checks; and

6. The estimated timeframe for completion of the recall.

E. Each permit holder shall implement its recall plan within eight hours after receipt of written notification to do so by VDACS. If the permit holder fails to implement its recall plan within the eight hours, VDACS may prepare and issue the recall communication.

2VAC5-510-420. Issuing, suspension, and revocation of permits.

A. It shall be unlawful for any person who does not possess a permit from the Virginia Department Commissioner of Agriculture and Consumer Services to bring into, send into, or receive into the Commonwealth of Virginia for sale, or to sell, or offer for sale therein, or to have in storage with intent to offer for sale or sell frozen desserts or frozen desserts mix identified in this chapter: Provided, that grocery stores, restaurants, soda fountains, and similar establishments where frozen desserts or frozen desserts mix are regularly served or sold at retail, but not processed, may be exempt from the requirements of this chapter manufacture in the Commonwealth any food listed in § 3.2-5212 of the Code of Virginia.

B. Only a person who complies with the requirements of this chapter shall be entitled to receive and retain such a permit. Permits shall not be transferable with respect to persons or locations.

C. The State Regulatory Authority Agency may immediately temporarily suspend such permit, without notice of hearing, whenever it has reason to believe that a public health hazard exists or is imminent, or in case of willful refusal to permit authorized inspection;, provided that a formal notice and hearing shall be afforded such suspended permit holder within 72 hours of such suspension. In all other cases of violation of this chapter, the State Regulatory Authority Agency may serve upon the holder a written notice of intent to suspend the permit. This notice shall specify the violations in question and may afford the holder a reasonable opportunity to correct the violations; or the State Regulatory Authority Agency shall afford the permit holder the opportunity for a formal hearing pursuant to § 2.2-4020 of the Code of Virginia before taking action to suspend or revoke a permit. A suspension of permit shall remain in effect until the violation has been corrected to the satisfaction of the State Regulatory Authority Agency.

D. Upon gross or repeated violations, the State Regulatory Authority Agency may revoke the permit following reasonable notice to the permit holder and an opportunity for a hearing. Part V (2VAC5-510-420 et seq.) of this chapter Nothing in this section is not intended to preclude the institution of court action.

E. The State Regulatory Agency may cancel, suspend, revoke, or deny the permit of any person if:

1. The permit holder does not daily or on a regular basis produce, provide, manufacture, sell, offer for sale, or store in the Commonwealth of Virginia ice cream, frozen desserts, or similar products;

2. The permit holder fails to provide at no cost to the State Regulatory Agency samples of ice cream, frozen desserts, or similar products in the permit holder's possession for testing by the State Regulatory Agency;

3. A public hazard exists that affects the permit holder's ice cream, frozen dessert, or similar products;

4. The permit holder or any agent of the permit holder has obstructed or interfered with the State Regulatory Agency in the performance of the State Regulatory Agency's duties;

5. The permit holder or any agent of the permit holder knowingly supplies false or misleading information to the State Regulatory Agency (i) in the person's application for a permit, (ii) concerning the identity of the person who will control the facility that is the subject of the permit, (iii) concerning any investigation conducted by the State Regulatory Agency, or (iv) concerning the location of any part of the permit holder's operation that is subject to a permit;

6. The permit holder fails to correct any deficiency that the State Regulatory Agency has cited in a written notice of intent to suspend the permit holder's permit, as a violation of this chapter;

7. The permit holder sells or offers to sell ice cream, frozen desserts, or similar products that violate any requirement of this chapter;

8. The most recent phosphate test on the permit holder's ice cream, frozen desserts, or similar products containing dairy violates the standard specified in this chapter;

9. The person manufactures, freezes, sells, offers or exposes for sale, or has in possession with the intent to sell any milk product, frozen dessert ingredients, or frozen dessert mix that is adulterated or misbranded or that does not conform to the product definition or of any requirement made and promulgated under this chapter; or

10. The State Regulatory Agency determines that conditions exist in a frozen desserts plant that would render such entity significantly out of compliance with an applicable provision of this chapter.

The State Regulatory Agency may summarily suspend a permit for violation of subdivision 4, 6, 7, 8, or 9 of this subsection.

F. The Commissioner of Agriculture and Consumer Services may suspend from sale or seize any frozen dessert product in violation of this chapter that is processed by any frozen desserts plant permit holder in lieu of suspending the frozen desserts plant permit holder's permit.

G. The Commissioner of Agriculture and Consumer Services may exempt a person who makes a frozen dessert and sells that frozen dessert directly to the consumer from the requirement to obtain a permit issued pursuant to § 3.2-5214 of the Code of Virginia. However, a person who pasteurizes the milk, milk products, or eggs used as ingredients in the frozen dessert is not eligible for this exemption.

2VAC5-510-430. Name and address of manufacturer, statement of quantity, and product identity and optional ingredients.

A. Any frozen dessert or frozen dessert mix in which a standard of identity has been established under Part III (2VAC5-510-30 et seq.) of this chapter (2VAC5-510-30 et seq.) shall be deemed to be misbranded if in container or package form unless it bears a label containing:

1. The name and address of the frozen desserts plant or retail establishment in which the frozen dessert or frozen dessert mix is manufactured, or the name and address of the manufacturer's principal office and a code designation approved by the Commissioner of Agriculture and Consumer Services identifying the plant or establishment in which the food was manufactured.

2. An accurate statement of the quantity of content in terms of liquid measure.

3. The name of the frozen dessert or frozen dessert mix defined under the standards of identity of Part III of this chapter (2VAC5-510-30 et seq.), and

4. The label statement of optional ingredients as required under Part III of this chapter (2VAC5-510-30 et seq.).

B. Where the frozen dessert or frozen dessert mix is not manufactured by the person whose name appears on the label, the label must identify the manufacturer by a code designation approved by the Virginia Commissioner of Agriculture and Consumer Services.

C. All labels must comply with the applicable requirements of 21 CFR Part 101 and any applicable requirements of 21 CFR Part 135.

Part VII

Inspection of Frozen Desserts Plants and Frozen Desserts Retail Establishments

2VAC5-510-440. Frequency, filing of inspection reports and confidentiality.

A. Each frozen desserts plant or frozen desserts establishment in this state whose products are intended for consumption within the Commonwealth of Virginia, shall be inspected by the State Regulatory Authority Agency prior to the issuance of a permit. Following the issuance of a permit, each frozen desserts plant or retail establishment shall be inspected at least once every three months. Should the violation of any requirement set forth in Part VIII (2VAC5-510-450 et seq.) or Part X (2VAC5-510-480 et seq.) of this chapter be found on any inspection, a second inspection shall be required after the time deemed necessary to remedy the violation, but not before three days have passed. This second inspection shall determine compliance with the requirements of Part VIII (2VAC5-510-450 et seq.) and Part X (2VAC5-510-480 et seq.). Any violation of the same requirement of Part VIII (2VAC5-510-450 et seq.) or Part X (2VAC5-510-480 et seq.) on such second inspection shall be cause for permit suspension according to Part V (2VAC5-510-420 et seq.) of this chapter (2VAC5-510-420 et seq.), or court action, or both.

B. One A copy of each inspection report shall be handed provided to the operator or other responsible person, or be posted in a conspicuous place on an inside wall of inside the establishment. This inspection report shall not be defaced, and shall be made available to the State Regulatory Authority Agency upon request. An identical copy of the inspection report shall be filed with the State Regulatory Authority. Every plant or frozen desserts establishment operator shall, upon request of the State Regulatory Authority Agency, permit access of officially designated persons to all parts of his the operator's plant, establishment, or facilities at any reasonable time to determine compliance with the provisions of this chapter.

C. It shall be unlawful for any person who in an official capacity obtains any information under the provisions of this chapter to use such information to his that person's own advantage or to reveal it to any unauthorized person.

2VAC5-510-450. Product test procedures and the examination of frozen desserts and their ingredients.

A. At irregular intervals during any six month period, at least four samples of frozen desserts and pasteurized mix from each plant shall be taken and examined by the State Regulatory Authority Agency. Samples of the frozen desserts or mix may be taken at any time prior to final delivery.

B. Frozen desserts establishments operating seasonally shall be sampled once every six weeks.

C. Freezer-made milk shakes and freezer-made shakes shall be sampled once every three months, with check samples of violations to be taken promptly.

D. B. Frozen desserts and mixes imported and offered for sale in the Commonwealth of Virginia shall may be sampled and tested as deemed necessary for the State Regulatory Authority Agency.

E. C. The products shall be tested in accordance with tests and examinations contained in Standard Methods for the Examination of Dairy Products or Official Methods of Analysis of the Association of Official Analytical Chemists AOAC International. A modified Roese-Gottlieb test, such as the Mojonnier or Dietert, may be used in making an official determination of the butterfat and total solids content of frozen dairy food products.

F. D. The bacterial quality of commingled milk and cream, and other dairy products for use in the manufacture of frozen desserts and mix, shall comply with the Commonwealth of Virginia regulations for Milk for Manufacturing Purposes and its Production and Processing Regulations Governing Milk for Manufacturing Purposes (2VAC5-531).

2VAC5-510-460. Quality standards Maximum allowable microbiological and temperature limits for pasteurized dairy ingredients, pasteurized and unpasteurized mixes or, and frozen desserts.

Pasteurized⁵ mix, dairy ingredients, frozen desserts, and unpasteurized⁵ imitation mixes and imitation frozen desserts shall comply with the following standards:

Bacteria Count
	Standard Plate Count Not More Than1	Coliform Determ Presence Not More Than1	Storage Temp.
Milk	50,000/ml	10/ml	45°F (7.2°C)
Cream	50,000/ml	10/ml	45°F (7.2°C)
Fluid Dairy Ingredient	50,000/ml	10/ml	45°F (7.2°C)
Mix	50,000/gr	10/gr	45°F (7.2°C)2, 3, 6
Frozen Dessert (plain)	50,000/gr	10/gr4
1In three out of the last five consecutive samples taken by the State Regulatory Agency. 2This does not preclude holding mix at higher temperatures for a short period of time immediately prior to freezing where applicable to particular manufacturing or processing practices. 3This does not apply to sterilized mix in hermetically sealed containers. 420/gr. for chocolate, fruit, nuts, or other bulky flavored frozen desserts. 5The phenol value shall be no greater than the minimum specified for the particular product, as determined by the phosphatase test of the latest edition of "Standard Methods." 6This does not apply to powder or dry frozen desserts mix.

¹In three out of the last five consecutive samples taken by the Regulatory Agency.

²This does not preclude holding mix at higher temperatures for a short period of time immediately prior to freezing where applicable to particular manufacturing or processing practices.

³This does not apply to sterilized mix in hermetically sealed containers.

⁴20/gr. for chocolate, fruit, nuts, or other bulky flavored frozen desserts.

⁵The phenol value shall be no greater than the minimum specified for the particular product, as determined by the phosphatase test of the latest edition of "Standard Methods."

⁶This does not apply to powder or dry frozen desserts mix.

2VAC5-510-470. Written notices, removal of products from sale, and permit suspension.

A. Whenever two of the last four consecutive bacteria counts, coliform determinations, or cooling temperatures taken on separate days exceed the limit of the standard for milk, cream, fluid dairy ingredients, frozen dessert mix, or frozen desserts, the State Regulatory Authority Agency shall send a written notice thereof of the exceedance to the person concerned. This notice shall be in effect so long as two of the last four consecutive samples exceed the limit of the standard. An additional sample of the product in violation shall be taken within 14 21 days of the sending of such notice, but not before the lapse of three days. Immediate suspension of permit or court action shall be instituted whenever the standard is violated by three of the last five bacteria counts, coliform determinations, or cooling temperatures.

B. The State Regulatory Authority Agency may forego forgo suspension of the permit, provided that the product or products in violation are not sold or offered for sale.

C. Whenever a phosphatase test is positive, the cause shall be determined. Where the cause is improper pasteurization, it shall be corrected, and any product involved shall not be offered for sale.

2VAC5-510-490. Building.

A. Construction, maintenance, and plants.

1. Buildings shall be of sound construction. The exterior and interior shall be kept clean and in good repair to protect against dust, dirt, and mold, and to prevent the entrance or harboring of insects, rodents, vermin, and other animals.

2. In processing areas, outside doors, windows, skylights, and transoms shall be screened or otherwise covered. Such outside doors shall not open inward and shall be self-closing;, and doors leading to processing rooms shall be sound and tight fitting. Windowsills on new construction shall be sloping. Outside conveyor openings and other special type outside openings for sanitary pipelines shall be covered when not in use;, and service-pipe openings shall be completely cemented around the pipe opening or have tight metal collars.

3. All rooms, compartments, coolers, freezers, and dry storage space in which any raw material packaging, ingredient supplies, or finished products are handled, processed, manufactured, packaged, or stored shall be designed and constructed to assure ensure clean and orderly operations. Rooms for receiving milk shall be separated from the processing area by a partition or suitable arrangement of equipment or facilities to avoid contamination of milk or dairy products. Boiler and tool rooms shall be separated from other rooms. Toilet and dressing rooms shall be conveniently located and shall not open directly into any room in which milk, dairy products, or ingredients are handled, processed, packaged, or stored. Doors of all toilet rooms shall be self-closing;, and fixtures shall be kept clean and in good repair.

4. Plans for new plant construction or major remodeling of existing plants shall be submitted to the State Regulatory Authority Agency for approval prior to such new construction or remodeling.

B. Interior finishing.

1. In all rooms in which milk or dairy products are received and processed and where mix and frozen desserts are manufactured, packaged, or stored, (except dry storage of packaging materials), or in which equipment or utensils are washed, the walls, ceilings, partitions, and posts shall be smoothly finished with a washable material of light color that is substantially impervious to moisture. A wainscoting of a suitable material in a darker color may be used to a height not exceeding 60 inches from the floor.

2. The floors in these rooms shall be of concrete or other impervious material and shall be smooth, properly graded to drain, and have drains trapped;, except that freezers used for storing frozen desserts, frozen fruits, frozen eggs, and comparable ingredients need not be provided with floor drains;, but the floors shall be sloped to drain to one or more exits, and shall be kept clean. The plumbing shall be installed to prevent backup of sewage into the plant. On new construction or extensive remodeling, the floors shall be joined and coved with the walls to form watertight joints. Sound, smooth, wood floors may be used in certain packaging rooms where the nature of the product permits. Toilet and dressing rooms shall have impervious floors and smooth walls.

C. Ventilation and lighting.

1. All rooms and compartments (, including storage space and toilet and dressing rooms), shall be ventilated to maintain sanitary conditions, prevent undue condensation of water vapor, and minimize or eliminate objectionable odors.

2. Lighting, whether natural or artificial, shall be of good quality and well distributed in all rooms and compartments. All rooms where milk, dairy products, or mix and frozen desserts are handled, processed, manufactured, or packaged, or where equipment or utensils are washed, shall have at least 30 foot-candles of light intensity on all working surfaces; areas where dairy products are examined for condition and quality, at least 50 foot-candles of light intensity; and all other rooms, at least five foot-candles or intensity measured 30 inches above the floor. Light bulbs and fluorescent tubes shall be protected against breakage.

2VAC5-510-500. Facilities.

A. Water supply.

1. Both hot and cold water of safe and sanitary quality shall be available in sufficient quantity for all plant operations and facilities. Water from other lines, when officially approved, may be used for boiler feed water and condenser water, if such water lines are completely separated from the water lines carrying the sanitary water supply, and if the equipment is constructed and controlled to prevent contamination of any product or product contact surface. There shall be no cross-connections between safe and unsafe water lines or between private and public supply.

2. Bacteriological examination shall be made of the plant sanitary private water supply at least once every six months by the appropriate State Regulatory Authority Agency to determine purity and safety for use in processing or manufacturing dairy products.

3. The results of all plant private water supply tests shall be kept on file at the plant for at least one year. Public water supply tests shall be made available to the State Regulatory Agency if requested.

B. Employee facilities.

1. In addition to toilet and dressing rooms, the plant shall provide the following employee facilities:

a. Conveniently located sanitary drinking water;

b. A locker or other suitable facility for each employee;

c. b. Hand washing facilities, including hot and cold running water, under pressure and connected to the sewage system; soap or other detergents and sanitary rooms and at other places; and single service towels or an approved hand drying device where necessary for the cleanliness of all personnel handling products; and

d. c. Self-closing containers for used towels and other wastes.

2. A durable, legible sign shall be posted conspicuously in each toilet and dressing room directing employees to wash their hands before returning to work.

C. Steam. Steam shall be supplied in sufficient volume and pressure for satisfactory operation of each applicable piece of equipment. Steam that may come into direct contact with milk or dairy products shall be culinary steam. Culinary steam shall comply with the 3-A Accepted Practices, "Method of Producing Steam of Culinary Quality," Number 609-02 609-03 (3-A Sanitary Standards, Incorporated, adopted November 21, 2004).

D. Disposal of wastes. The plant sewage system shall have sufficient slope and capacity to remove readily all waste from processing operations. Where a public sewer is not available, wastes shall be disposed of by methods approved by the State Regulatory Authority Agency. Containers for the collection and holding of wastes other than dry waste paper shall be constructed of metal or other equally impervious material, kept covered with tight-fitting lids, and placed outside the plant on a concrete slab or on a rack raised at least 12 inches; however, waste containers may be kept inside a suitable enclosed, clean, and fly-proof room. Solid wastes shall be disposed of regularly in an approved manner, and the containers cleaned before reuse. Dry waste paper shall be burned at the plant in an approved incinerator, or compressed or bagged and disposed of in an approved manner.

2VAC5-510-505. Rooms used for domestic purposes.

A. No facility, equipment, storage, or processing area that requires inspection may be accessed through any room used for domestic purposes or part of any room used for domestic purposes.

B. A toilet room used for domestic purposes shall be approved as complying with the requirements of this chapter only if (i) the toilet room is located within 300 feet of the processing facility and (ii) all labor utilized in the processing facility is provided by the permit holder's immediate family.

2VAC5-510-510. Equipment and utensils.

A. Construction and installation.

1. New equipment shall meet applicable 3-A Sanitary Standards. Equipment and utensils coming in contact with milk, dairy products, mix or frozen desserts, including sanitary pumps, piping, fittings, and connections, shall be constructed of stainless steel or other equally corrosion-resistant and easily cleanable material. Where the use of stainless steel is not practicable, or in old equipment, other properly coated or plated metals may be approved temporarily. Nonmetallic parts having product contact surfaces shall be of materials that meet 3-A Sanitary Standards, "Multiple-Use Rubber and Rubber-Like Materials Used as Product Contact Surfaces in Dairy Equipment," Number 18-03 (3-A Sanitary Standards, Incorporated, effective August 21, 1999), and "Multiple-Use Plastic Materials Used as Product Contact Surfaces for Dairy Equipment," Number 20-21 20-27 (3-A Sanitary Standards, Incorporated, effective July 7, 2011).

2. Bulk storage and distribution equipment for handling liquid sweetening agents shall consist of suitable metals, alloys, or other materials which that will withstand corrosive action by the ingredient;, and the equipment and ingredients shall be protected from contamination.

3. All equipment and piping shall be designed and installed to be easily accessible for cleaning, and shall be kept in good repair, and free from cracks and corroded surfaces. Milk pumps shall be of a sanitary type and easily dismantled, for cleaning or shall be of specifically approved construction to allow cleaning in place. New or rearranged equipment shall be set away from any wall or spaced in such a manner as to facilitate proper cleaning and to maintain good housekeeping. All parts or interior surfaces or equipment, pipes (except certain piping cleaned-in-place), or fittings, including valves and connections, shall be accessible for inspection. Cleaned-in-place sanitary piping and welded sanitary pipeline systems will be acceptable if properly engineered and installed according to 3-A Accepted Practices, "Permanently Installed Product and Solution Pipelines and Cleaning Systems Used in Milk and Milk Product Processing Plants," Number 605-04 (3-A Sanitary Standards, Incorporated, effective August 20, 1994).

B. Pasteurization equipment.

1. Pasteurization equipment shall comply with 3-A Accepted Practices, "Sanitary Construction, Installation, Testing, and Operation of High Temperature Short-Time and Higher-Heat Shorter-Time Pasteurizer Systems," Number 603-06 603-07 (3-A Sanitary Standards, Incorporated, effective November 21, 2005) and 3-A Sanitary Standards, "Non-Coiled Type Batch Pasteurizers for Milk and Milk Products," Number 24-02 24-03 (3-A Sanitary Standards, Incorporated, effective July 16, 2010).

2. Heat treatment equipment used to reach temperatures higher than commonly used for pasteurization shall comply with appropriate sanitary construction and operating procedures approved by the State Regulatory Authority Agency.

3. Whenever it is necessary to break a seal on such pasteurization equipment, this equipment shall be properly adjusted and placed in correct operation immediately. The breaking of the seal and the adjustment made shall be reported immediately to the State Regulatory Authority Agency in order that the equipment can be officially checked and resealed.

C. Cleaning and sanitizing.

1. Equipment, sanitary piping, and utensils used in receiving, storing, processing, manufacturing, packaging, and handling milk, dairy products, mix or frozen desserts, and all product contact surfaces of homogenizers, high-pressure pumps, and high-pressure lines shall be kept clean.

2. The packing glands on all agitators, pumps, and vats shall be inspected at regular intervals and kept clean.

3. After being cleaned, and immediately before use, all equipment coming in contact with milk, dairy products, or mix or frozen desserts shall have an effective bactericidal or sanitizing treatment.

4. Before use, equipment not designed for C-I-P CIP cleaning shall have been disassembled and thoroughly cleaned and sanitized. Dairy cleaners, wetting agents, detergents, sanitizing agents, or other similar material may be used that will not contaminate or adversely affect dairy products. Steel wool or metal sponges shall not be used in the cleaning of any dairy equipment or utensils.

5. C-I-P CIP cleaning shall be used only on equipment and pipeline systems that are designed and engineered for that purpose. Installation and cleaning procedures shall comply with 3-A Accepted Practices, "Permanently Installed Product and Solution Pipelines and Cleaning Systems Used in Milk and Milk Processing Plants," Number 605-04 (3-A Sanitary Standards, Incorporated, effective August 20, 1994). An outline of the cleaning procedures to be followed shall be posted near the C-I-P CIP equipment.

6. Applicable equipment and areas in the plant shall be thoroughly vacuumed regularly with a heavy-duty industrial vacuum cleaner. The material picked up shall be disposed of by burning or other means in a manner to destroy any insects present.

7. Exhaust stacks, elevators, and conveyors shall be inspected at regular intervals and kept clean.

8. Storage or holding tanks used to store milk, milk products, frozen desserts, or frozen desserts mix shall be cleaned and sanitized when empty and shall be emptied at least every 72 hours.

Part XI

Vehicles; Frozen Dessert Retail Establishments; Reconstitution of Powder or Dry Frozen Desserts Mix

2VAC5-510-520. Vehicles.

A. All vehicles A vehicle used to transport mix, frozen desserts, cream, milk, and or dairy products shall be constructed and operated to protect their the vehicle's contents from heat, sun, and contamination. Such vehicles The vehicle shall be kept clean;, and no substance capable of contaminating mix, frozen desserts, cream, milk and, or dairy products shall be transported in them the vehicle. Vehicles A vehicle transporting frozen desserts or mix to wholesale or retail outlets shall have the name of the distributor prominently displayed on them the vehicle.

B. A covered or enclosed dock for loading, unloading, and washing tank trucks, and other facilities shall be available at all plants that receive or ship milk, fluid dairy ingredients, or frozen desserts mix in tanks. A plant shall provide approved equipment when deemed necessary by the State Regulatory Authority Agency to prevent contamination of products while being loaded or unloaded in tank trucks.

C. Milk transport tanks, sanitary piping, fittings, and pumps shall be cleaned and sanitized after each use. Tanks and equipment shall be washed promptly after use and given bactericidal treatment immediately sanitized before use. After being washed and sanitized, each tank shall be identified by a tag that is attached to the outlet valve, having and that states the following information: (i) plant and specific location where cleaned, (ii) date and time of day of washing and sanitizing, and (iii) name of persons who washed and sanitized the tank. The tag shall not be removed until the tank is again washed and sanitized.

2VAC5-510-530. Frozen desserts retail establishments. (Repealed.)

Frozen desserts retail establishments, including commissaries and depots, shall comply with applicable provisions of Part X of this chapter (2VAC5-510-480 et seq.).

2VAC5-510-540. Frozen desserts retail establishments which plants that reconstitute powder or dry frozen desserts mix.

A. Powder or dry frozen desserts mix shall be reconstituted with potable water in one of the following ways:

1. If the retail establishment frozen desserts plant possesses and uses a mechanical means capable of cooling the reconstituted mix to 45°F (7.2°C) within four hours, cold tap water may be used.

2. If the retail establishment frozen desserts plant does not possess or use a mechanical means capable of cooling the reconstituted mix to 45°F (7.2°C) within four hours, only potable water at a temperature of 40°F (4.4°C) or below shall be used.

B. Powder or dry frozen desserts mix is not required to be repasteurized after being reconstituted with water.

C. Powder or dry frozen desserts mix may be reconstituted with pasteurized milk at a temperature of 40°F (4.4°C) or below.

2VAC5-510-550. Pasteurization of frozen dessert mix.

A. Except for flavoring ingredients, the entire mix shall be pasteurized after formulation. A frozen dairy dessert mix must be repasteurized at the receiving plant before being offered for sale, unless the State Regulatory Agency grants permission for the frozen dairy dessert mix to be sold without repasteurization. Pasteurized mix or frozen desserts shall not be permitted to come in contact with equipment or containers with which unpasteurized mix, frozen desserts, milk, or milk products have been in contact, unless such equipment has first been properly washed and subjected to a satisfactory bactericidal treatment. Powdered or dry frozen dessert mixes are not required to be re-pasteurized after being reconstituted with water as described in 2VAC5-510-540 of this chapter sanitized.

B. All milk, milk products, eggs, egg products, cocoa, cocoa products, emulsifiers, stabilizers, vitamins, and liquid sweeteners shall be added to the frozen dessert before it is pasteurized, except when:

1. The frozen desserts plant demonstrates to the State Regulatory Agency's satisfaction that the addition of these ingredients prior to pasteurization will negatively impact the ability to produce the product or the quality of the product;

2. The frozen desserts plant maintains records that demonstrate to the State Regulatory Agency's satisfaction the science proving that the ingredients that are added after pasteurization are safe and suitable; or

3. The ingredients are safely and sanitarily added to the frozen dessert product.

C. Flavoring and coloring ingredients may be added after pasteurization when:

1. The ingredient has been subjected to a prior heat treatment sufficient to destroy pathogenic microorganisms;

2. The ingredient has 0.85% water activity (a_w of 0.85) or less when the water activity is calculated by dividing the water vapor pressure of the ingredient by the vapor pressure of pure water when at the same temperature as the ingredient;

3. The ingredient has a high acid content (pH level of 4.6 or below when measured at 75°F (23.9°C)) or high alkalinity (pH level greater than 11 when measured at 75°F (23.9°C));

4. The ingredient's alcohol content is sufficient to ensure that pathogenic microorganisms will not be transferred to the final product;

5. The ingredient consists of safe and suitable bacterial cultures or enzymes;

6. The ingredient is dry sugar or salt; or

7. The ingredient is subjected to any process acceptable to the State Regulatory Agency that will ensure that the ingredient is free of pathogenic microorganisms.

2VAC5-510-560. Cooling.

After heat treatment or pasteurization, processed fluid milk products, including mix (except for sterilized mix in hermetically sealed containers), shall be cooled promptly to 45°F (7.2°C) or lower and maintained there at that temperature until used, provided that storage or holding tanks used to store milk, milk products, frozen desserts, or frozen desserts mix shall be cleaned and sanitized when empty and shall be emptied at least every 72 hours. Fluid milk products may be held at higher temperatures for a short time immediately prior to freezing when applicable to particular manufacturing or processing practices.

2VAC5-510-570. Storage.

A. Utensils and portable equipment used in processing operations shall be stored above the floor in clean, dry locations, and in self-draining positions on racks constructed of impervious, corrosion-resistant material.

B. Dripped or spilled products or ingredients shall not be sold for human consumption.

C. Dairy products, mix, or frozen dessert ingredients in dry storage shall be arranged in aisles, rows, sections, or lots, or in such other manner as to be orderly and easily accessible for inspection, and to permit adequate cleaning of the room. Dunnage or pallets shall be used when appropriate. Dairy products, mix, or frozen dessert ingredients shall not be stored with any product that would damage them or impair their the quality of the product. Open containers shall be carefully protected from contamination.

D. All products requiring refrigeration, except where otherwise specified, shall be stored under optimum temperatures and humidity to maintain their quality and condition. Products shall not be placed directly on wet floors, or be exposed to foreign odors, or subjected to conditions, such as dripping or condensation, that might cause package or product damage.

E. Items in supply storage rooms shall be kept clean and protected, and be arranged to permit inspection of supplies and cleaning and spraying of the room. Insecticides and rodenticides shall be properly labeled, segregated, and stored in a separate room or cabinet away from milk or dairy products or packaging supplies. Caps, parchment papers, wrappers, liners, gaskets, and single service sticks, spoons, covers, and containers for frozen desserts, mix or their ingredients shall (i) be purchased and stored only in sanitary tubes, wrappings, or cartons. These shall; (ii) be kept in a clean, dry place until used; and shall (iii) be handled in a sanitary manner.

2VAC5-510-600. Lubricants.

Lubricants approved for use on milk product contact surfaces that are applied to filling machine pistons, cylinders, pumps, and valves shall be sterile, approved for food-grade use and shall be applied in a sanitary manner.

2VAC5-510-610. Cleanliness.

A. Plant employees shall wash their hands before beginning work, and upon returning to work after using toilet facilities, eating, smoking, or otherwise soiling their hands. They Plant employees shall keep their hands clean and follow good hygienic practices while on duty. Expectorating or use of tobacco in any form shall be prohibited in rooms and compartments where milk, dairy products, mix, or frozen desserts are unpacked or exposed. Clean white or light colored washable outer-garments and caps (paper caps or hairnets are acceptable) adequate hair restraints shall be worn by all persons engaged in processing milk, dairy products, mix, or frozen desserts.

B. In addition, employees Employees engaged in manual molding, wrapping, and touching any product contact surface shall treat their clean hands with a bactericide of approved strength wash their hands with hot, soapy water and dry their hands with single-use paper towels or an approved hand drying device before beginning such work and after each interruption. Rubber Disposable, single-use rubber or plastic gloves may be used if sanitized as above.

2VAC5-510-620. Health.

A. No person afflicted with a communicable disease shall be permitted in any room or compartment where milk, dairy products, mix or frozen desserts are prepared, processed, or otherwise handled who is affected with any disease in a communicable form or who is a carrier of a communicable disease may work at any frozen desserts plant in any capacity that would bring the person in contact with the production, handling, storage, or transportation of milk, milk products, other frozen dessert ingredients, frozen desserts, or frozen desserts mix containers, equipment, or utensils. No person who has a discharging or infected wound, sore, or lesion on hands, arms, or other exposed portions of the body shall work in any plant processing or packaging rooms or in any other capacity resulting in contact with milk, dairy products, mix or frozen dessert.

B. Each employee whose work brings him in contact with the processing or handling of milk, dairy products, mix or frozen desserts, containers or equipment shall have a medical and physical examination by a registered physician or by the local department of health, and shall furnish a satisfactory medical certificate prior to employment. An employee returning to work following illness from a communicable disease shall have a certificate from his the employee's attending physician to establish proof of complete recovery.

2VAC5-510-630. Availability.

All records herein required to be kept by plants shall be available for examination by the State Regulatory Authority at reasonable times. A plant shall, at reasonable times, make available for examination by the State Regulatory Agency all records that this chapter and 21 CFR Part 117 Subpart C, if applicable, require the plant to maintain.

2VAC5-510-640. Water supply test records. (Repealed.)

The results of all plant water supply tests shall be kept on file at the plant for at least one year.

2VAC5-510-650. Pasteurization, temperature, and C-I-P CIP recorder charts.

Recorder charts showing the pasteurization record for each day shall be appropriately marked with the name of the product for each batch, date, time, and signature of the operator, and the markings made by the recording device shall not overlap. Recorder charts showing the C-I-P CIP record for each day shall be appropriately marked, and the markings made by the recording device shall not overlap. Temperature recording charts shall be labeled with the name of the product for each batch, date, time, and signature of the operator, and the markings made by the recording device shall not overlap. The charts Charts shall be kept on file at the plant for at least six months. Electronic records or records in a format designated by the State Regulatory Agency may be used in lieu of recording charts with prior State Regulatory Agency approval.

2VAC5-510-660. Employee medical certificates. (Repealed.)

Current-employee medical certificates shall be kept on file at the plant.

FORMS (2VAC5-510)

Virginia Department of Agriculture and Consumer Services Permit Application.

Dairy Manufacturing Permit Application Part I (rev. 4/2022)

Dairy Manufacturing Permit Application Part II (rev. 4/2022)

Dairy Manufacturing Plant Inspection Report (rev. 2/2018)

Milk Plant Equipment Test Report (rev. 11/2023)

Vat Pasteurizer Equipment Test Report (rev. 2/2018)

Official Warning Notice (rev. 4/2022)

Official Suspension Notice (rev. 4/2022)

DOCUMENTS INCORPORATED BY REFERENCE (2VAC5-510)

3-A Accepted Practices, Method of Producing Steam of Culinary Quality, Number 609-02, 3-A Sanitary Standards, Inc.

3-A Accepted Practices for a Method of Producing Culinary Steam, Number 609-03, adopted November 21, 2004, 3-A Sanitary Standards Inc.

3-A Sanitary Standards, for Multiple-Use Rubber and Rubber-Like Materials Used as Product Contact Surfaces in Dairy Equipment, Number 18–03, effective August 21, 1999, 3-A Sanitary Standards, Inc.

3-A Sanitary Standards, Multiple-Use Plastic Materials Used as Product Contact Surfaces for Dairy Equipment, Number 20-21, 3-A Sanitary Standards, Inc.

3-A Sanitary Standards for Multiple-Use Plastic Materials, Number 20-27, effective July 7, 2011, 3-A Sanitary Standards Inc.

3-A Accepted Practices, for Permanently Installed Product and Solution Pipelines and Cleaning Systems Used in Milk and Milk Product Processing Plants, Number 605-04, effective August 20, 1994, 3-A Sanitary Standards, Inc.

3-A Accepted Practices, Sanitary Construction, Installation, Testing, and Operation of High Temperature Short-Time and Higher-Heat Shorter-Time Pasteurizer Systems, Number 603-06, 3-A Sanitary Standards, Inc.

3-A Sanitary Standards, Non-Coiled Type Batch Pasteurizers for Milk and Milk Products, Number 24-02, 3-A Sanitary Standards, Inc.

3-A Accepted Practices for the Sanitary Construction, Installation, Testing, and Operation of High-Temperature Short-Time and Higher-Heat Shorter-Time Pasteurizer Systems, Number 603-07, effective November 21, 2005, 3-A Sanitary Standards Inc.

3-A Sanitary Standards for Non-Coiled Type Batch Pasteurizers for Milk and Milk Products, Number 24-03, effective July 16, 2010, 3-A Sanitary Standards Inc.

TITLE 2. AGRICULTURE

BOARD OF AGRICULTURE AND CONSUMER SERVICES

Fast-Track Regulation

Title of Regulation: 2VAC5-585. Retail Food Establishment Regulations (amending 2VAC5-585-40, 2VAC5-585-50, 2VAC5-585-65 through 2VAC5-585-80, 2VAC5-585-160, 2VAC5-585-220, 2VAC5-585-270, 2VAC5-585-400, 2VAC5-585-420, 2VAC5-585-430, 2VAC5-585-440, 2VAC5-585-450, 2VAC5-585-510, 2VAC5-585-620, 2VAC5-585-700, 2VAC5-585-725, 2VAC5-585-790, 2VAC5-585-830, 2VAC5-585-850, 2VAC5-585-870, 2VAC5-585-900, 2VAC5-585-910, 2VAC5-585-930, 2VAC5-585-950, 2VAC5-585-1300, 2VAC5-585-1460, 2VAC5-585-1540, 2VAC5-585-1700, 2VAC5-585-2010, 2VAC5-585-2100, 2VAC5-585-2190, 2VAC5-585-3140, 2VAC5-585-3150, 2VAC5-585-3310, 2VAC5-585-3360, 2VAC5-585-3370, 2VAC5-585-3510, 2VAC5-585-3520, 2VAC5-585-3542, 2VAC5-585-3600, 2VAC5-585-3620, 2VAC5-585-3630, 2VAC5-585-3740, 2VAC5-585-3750, 2VAC5-585-3860, 2VAC5-585-3890, 2VAC5-585-3910 through 2VAC5-585-3950, 2VAC5-585-4050, 2VAC5-585-4060; adding 2VAC5-585-445, 2VAC5-585-726, 2VAC5-585-3670 through 2VAC5-585-3720, 2VAC5-585-3760).

Statutory Authority: § 3.2-5121 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: January 29, 2025.

Effective Date: February 13, 2025.

Agency Contact: Pamela Miles, Program Manager, Office of Dairy and Foods, Department of Agriculture and Consumer Services, P. O. Box 1163, Richmond, VA 23218, telephone (804) 786-8910, FAX (804) 371-7792, TDD (800) 828-1120, or email pamela.miles@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board with the authority to adopt regulations in accordance with the provisions of Title 3.2 of the Code of Virginia. Section 3.2-5121 of the Code of Virginia authorizes the board to promulgate and amend this regulation.

Purpose: The first goal of the amendments is to maintain a scientifically sound basis for regulation of the retail food industry. The modifications proposed to the existing regulation are necessary to ensure appropriate measures are in place to address emerging and ongoing food safety concerns that exist within an evolving food industry. The second goal is to facilitate the shared responsibility of the food industry and the government in ensuring that food provided to the consumer is safe and does not become a vehicle for a disease outbreak or the transmission of communicable disease. Foodborne disease in the United States is a major cause of personal distress, preventable death, and avoidable economic burden. The U.S. Centers for Disease Control and Prevention estimate that foodborne diseases result in approximately 48 million people becoming ill, 128,000 hospitalizations, and 3,000 deaths in the United States each year. Epidemiological outbreak data repeatedly identify five major risk factors related to employee behaviors and preparation practices in retail and food service establishments as contributing to foodborne illness. Those risk factors include (i) improper holding temperatures; (ii) inadequate cooking, such as undercooking raw eggs; (iii) contaminated equipment; (iv) food from unsafe sources; and (v) poor personal hygiene. The amendments address controls for these risk factors. The regulation also provides the necessary guidance to the retail food industry for controlling risk factors and implementing appropriate intervention strategies. The third goal of the amendments is to ensure a regulatory approach that is uniform throughout the retail segment of Virginia's food industry by establishing standards that are equivalent to those administered by the Virginia Department of Health in restaurants and food service establishments. This regulatory uniformity also extends throughout the nation, as most states have adopted versions of the Federal and Drug Administration (FDA) Food Code.

Rationale for Using Fast-Track Rulemaking Process: This regulatory action is expected to be noncontroversial because the proposed amendments were generated from the national Conference for Food Protection, which provides a formal process whereby members of industry, regulatory, academic, consumer, and professional organizations are afforded equal input in the modification of the FDA Food Code.

Substance: Amendments include (i) revising definitions to conform with the 2022 FDA Food Code, adding definitions for permit and permit holder, and adding sesame as a major food allergen; (ii) updating terminology, cross-references, and clarification of handling and tagging of shellfish products and adding clarification for manufacturer cooking instructions; (iii) decreasing the hot water temperature requirements at hand sinks; (iv) amending the regulation to conform with the 2022 FDA Food Code related to variances and food donation; and (v) adding and clarifying requirements for a permit application, permits, transferability of a permit, and posting a permit for public view. Chapter 204 of the 2022 Acts of Assembly directs the Commissioner of Agriculture and Consumer Services to issue a permit to any food manufacturer, food storage warehouse, or retail food establishment that is in compliance with the Food and Drink Law and regulations adopted pursuant to it. These amendments are necessary to reflect this permit requirement.

Issues: The primary advantage of the proposed amendments for the public is the reduction of the risk of foodborne illnesses within food establishments, thus protecting consumers and industry from potentially devastating health consequences and financial losses. The revisions will also make the regulation more understandable and align the regulation with best practices. The primary advantage to the agency is that the regulation will be based on current food science and clarify ambiguous areas relating to enforcement and inspection standards. Staff will have a better understanding of the improved regulatory scheme of food safety, thus providing enhanced communication to the public and retail food establishments on how to prevent foodborne illness. The primary advantage to the regulated community, particularly chains and franchises that operate in other states as well as in multiple jurisdictions across the Commonwealth that have adopted the current version of the FDA Food Code, will be more consistent regulatory application. There are no known disadvantages to the public or the Commonwealth with the adoption of the proposed amendments.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board of Agriculture and Consumer Services (board) proposes to amend the existing Retail Food Establishment Regulations to incorporate, in part, 2022 amendments to the Food and Drug Administration (FDA) Food Code. The current regulation is based on the 2017 Food Code and its 2019 Supplement.

Background. The Retail Food Establishment Regulations establish minimum sanitary standards for retail food establishments such as supermarkets, grocery stores, and convenience stores. Those standards include the safe and sanitary maintenance, storage, operation, and use of equipment; the safe preparation, handling, protection, and preservation of food, including necessary refrigeration or heating methods; procedures for vector and pest control; requirements for toilet and hand washing facilities for employees; requirements for appropriate lighting and ventilation; requirements for an approved water supply and sewage disposal system; personal hygiene standards for employees; and the appropriate use of precautions to prevent the transmission of communicable diseases. Standards in the regulation are labelled as either priority, priority foundation, or core; these labels correspond to certain timeframes and other corrective action requirements for each affected item. The current and proposed regulation state that an operator or person in charge shall at the time of inspection correct a violation of a priority item or priority foundation item of this chapter and implement corrective actions for a HACCP (Hazard Analysis and Critical Control Point) plan provision that is not in compliance with its critical limit. Further, considering the nature of the potential hazard involved and the complexity of the corrective action needed, the department may agree to or specify a longer timeframe, not to exceed:

1. 72 hours after the inspection, for the operator to correct violations of a priority items; or

2. 10 calendar days after the inspection, for the operator to correct a priority foundation item or HACCP plan deviations.

For core items, the current and proposed regulation state that the operator or person in charge shall correct core items by a date and time agreed to or specified by the department but no later than 90 calendar days after the inspection.² The proposed amendments with a potential impact in each section are discussed below. Some of these items are labelled as priority, priority foundation, or core.

12VAC5-585-40, Definitions - There are several amendments to this section. Adding sesame to the definition of major food allergen may have an impact as described below in the Estimated Benefits and Costs section.

12VAC5-585-70, Duties of person in charge - The board proposes to add the following to the list of items for which the person in charge is responsible to ensure: "Food employees are properly maintaining the temperature of time/temperature control for safety foods during thawing through daily oversight of the food employees' routine monitoring of food temperatures."

12VAC5-585-80, Responsibility of permit holder, person in charge, and conditional employees - Under the current regulation, food employees who are diagnosed with an infection from Salmonella (nontyphoidal) and are asymptomatic are to be prevented from working as an employee in the food establishment or entering the food establishment as an employee. The board proposes to amend the text to indicate that such individuals are to be restricted rather than be excluded from working. The current and proposed regulation define restrict as to limit the activities of a food employee so that there is no risk of transmitting a disease that is transmissible through food and the food employee does not work with exposed food, clean equipment, utensils, linens, or unwrapped single-service or single-use articles.

12VAC5-585-430, Molluscan shellfish; original container - The board proposes to add that Molluscan shellfish from one tagged or labeled container may not be commingled with molluscan shellfish from another container with different certification numbers, different harvest dates, or different harvest areas identified on the tag or label before being ordered by the consumer.

12VAC5-585-440, Molluscan shellfish; maintain identification - The current regulation requires specified recordkeeping information on the tag or label. The proposed regulation adds a third option, the invoice.

12VAC5-585-620, Food storage; prohibited areas - Currently, the prohibition on storing food in toilet rooms is a core standard. The board proposes to make it a priority foundation item.

12VAC5-585-726, Manufacturer cooking instructions - This section is new under the proposed regulation. In its entirety, it states that:

A. Commercially packaged food that bears a manufacturer's cooking instructions shall be cooked according to those instructions before use in ready-to-eat foods or offered in unpackaged form for human consumption, unless the manufacturer's instructions specify that the food may be consumed without cooking. ^P

B. Food for which the manufacturer has provided information that it has not been processed to control pathogens, when used in ready-to-eat foods or offered for human consumption, shall be cooked according to a time and temperature appropriate for the food. ^P

The P superscripts indicate that the proposed new standards are priority items.

12VAC5-585-870, Reduced oxygen packaging without a variance, criteria - The board proposes to include an additional option to package and seal food products by a cooling or sous-vide process so long as the food meets certain refrigeration requirements.

12VAC5-585-900, Food labels - The board proposes to require food establishments to notify consumers (through card, sign, or other method) regarding potential allergens in bulk food that is available for consumer self-dispensing.

12VAC5-585-910, Other forms of information - The board proposes to require food establishments to notify consumers in writing of the presence of major food allergens as an ingredient in unpackaged food items that are served or sold to the consumer.

12VAC5-585-1540, Equipment, clothes washers and dryers, and storage cabinets, contamination prevention - Currently, the prohibition on locating equipment, cabinets used for the storage of food, or cabinets used to store cleaned and sanitized equipment, utensils, laundered linens, and single-service and single-use article in toilet rooms is a core standard item. The board proposes to make it a priority foundation item.

12VAC5-585-2010, Prohibitions - Currently, the prohibition on storing cleaned and sanitized equipment, utensils, laundered linens, and single-service and single-use articles in toilet rooms is a core standard. The board proposes to make it a priority foundation item.

12VAC5-585-2190, Handwashing sink, installation - The board proposes to reduce the minimum hot water temperature at a handwashing sink from 100°F to 85°F.³

12VAC5-585-3370, Poisonous or toxic material containers - The current section in its entirety is the following sentence: A container previously used to store poisonous or toxic materials shall not be used to store, transport, or dispense food.^P The board proposes to add ", equipment, utensils, linens, single-service, or single-use articles" after food and before the period.

Estimated Benefits and Costs. Alignment of the Virginia Food Regulations to the 2022 FDA Food Code may benefit chain food establishments that operate in other states and localities that also use the most recent version of the Food Code. Many large chain operations use the most recent edition of the Food Code as an operational standard to ensure they reduce liability and operate consistently throughout their operational region.⁴ By adopting current changes to the FDA Food Code, there is also consistency with the Virginia Department of Health Food Regulations.

12VAC5-585-10, Definitions - The current regulation (12VAC5-585-900) requires that labels on food packaged in a food establishment include the name of the food source for each major food allergen contained in the food unless the food source is already part of the common or usual name of the respective ingredient. In the proposed regulation (12VAC5-585-900), bulk food that is available for consumer self-dispensing must also be prominently labeled with each major food allergen contained in the food unless the food source is already part of the common or usual name of the respective ingredient. The board also proposes to state (12VAC5-585-910) that, "The permit holder shall notify consumers by written notification of the presence of major food allergens as an ingredient in unpackaged food items that are served or sold to the consumer." Given the current and proposed notification requirements, adding sesame to the definition of major food allergen would make it substantively more likely that individuals allergic to sesame would be aware that food that they may consider obtaining and eating from a food establishment contains sesame. According to the U.S. Department of Health and Human Services, National Institutes of Health, the sesame allergy is one of the 10 most common childhood food allergies, and reactions can be severe.⁵ Sesame allergies can cause anaphylaxis, a serious and potentially life-threatening reaction.⁶ Thus, adding sesame to the definition of major food allergen would likely be substantively beneficial for public health. There would be cost to food establishments of providing this information on menus, packages, bulk food containers, etc., but it would likely be small, particularly compared to the potential benefit.

12VAC5-585-70, Duties of person in charge - As mentioned, the board proposes to add the following to the list of items for which the person in charge is responsible to ensure: "Food employees are properly maintaining the temperature of time/temperature control for safety foods during thawing through daily oversight of the food employees' routine monitoring of food temperatures." The regulation already contains specific time/temperature control requirements for thawing. Adding this to the list of items for which the person in charge is responsible to ensure would put a greater emphasis on the importance of following safe thawing methods, but it would not likely produce a large change on what occurs in practice. The person in charge may remind the employees more often on what the safe thawing methods are.

12VAC5-585-80, Responsibility of permit holder, person in charge, and conditional employees - As described, under the current regulation food employees who are diagnosed with an infection from Salmonella (nontyphoidal) and are asymptomatic, are to be prevented from working as an employee in the food establishment. The board proposes to amend the text to allow such individuals to work in a capacity where their activities are limited to where there is no risk of transmitting the disease and the food employee does not work with exposed food, clean equipment, utensils, linens, or unwrapped single-service or single-use articles. This proposed amendment would be beneficial for both employees with such infections in that they can earn income, and for the food establishment in staffing.

12VAC5-585-430, Molluscan shellfish; original container - The board proposes to add that Molluscan shellfish from one tagged or labeled container may not be commingled with molluscan shellfish from another container with different certification numbers, different harvest dates, or different harvest areas identified on the tag or label before being ordered by the consumer. Proper identification is vital for tracing the origin of shellfish in the event of a foodborne outbreak. Prohibiting the comingling may make it more likely that tracing the origin of shellfish in the event of a foodborne outbreak can be done accurately. This is beneficial in that it may reduce the likelihood that people consume unsafe molluscan shellfish. It could also potentially be beneficial for the food establishment and providers of the molluscan shellfish in that recalls of the product could be narrower and the area of growing waters closed to harvesting could be smaller when identification is more precise.

12VAC5-585-440, Molluscan shellfish; maintain identification - Adding a third option (invoices) for recordkeeping could be beneficial for food establishments that would prefer that option over the existing two (tag or label).

12VAC5-585-620, Food storage; prohibited areas - Currently, the prohibition on storing food in toilet rooms is a core standard item. The board proposes to make it a priority foundation item. This would reduce the maximum number of days that the food establishment could be given to correct this violation from 90 to 10.

12VAC5-585-726, Manufacturer cooking instructions - This section is new under the proposed regulation. In its entirety, it states that:

A. Commercially packaged food that bears a manufacturer's cooking instructions shall be cooked according to those instructions before use in ready-to-eat foods or offered in unpackaged form for human consumption, unless the manufacturer's instructions specify that the food may be consumed without cooking.^P

B. Food for which the manufacturer has provided information that it has not been processed to control pathogens, when used in ready-to-eat foods or offered for human consumption, shall be cooked according to a time and temperature appropriate for the food.^P

The ^P superscripts indicate that the proposed new standards are priority items.

The proposed new standards may be beneficial for food safety, but may also limit a food preparer's creativity if he wishes to cook the commercially packaged food in a different way than is described in the manufacturer's instructions.

12VAC5-585-870, Reduced oxygen packaging without a variance, criteria - The board proposes to include an additional option to package and seal food products by a cooling or sous-vide process so long as the food meets certain refrigeration requirements. The additional option could be beneficial for food establishments that wish to use it.

12VAC5-585-900, Food labels - The board proposes to require food establishments to notify consumers (through a card, sign, or other method) regarding potential allergens in bulk food that is available for consumer self-dispensing. This would make it substantively more likely that individuals with food allergies would be aware that the bulk food contains the food to which they are allergic. As described, food allergies can potentially be life threatening. Thus, this proposal would likely be substantively beneficial for public health. The cost to the food establishment of providing this information on menus, packages, bulk food containers, etc., would likely be small, particularly compared to the potential benefit.

12VAC5-585-910 ,Other forms of information - The board proposes to require food establishments to notify consumers in writing of the presence of major food allergens as an ingredient in unpackaged food items that are served or sold to the consumer. This would make it substantively more likely that individuals with food allergies would be aware that the unpackaged food, including meals at restaurants, contains the food to which they are allergic. As described, food allergies can potentially be life threatening. Thus, this proposal would likely be substantively beneficial for public health. The cost to the food establishment of providing this information on menus, packages, bulk food containers, etc., would likely be small, particularly compared to the potential benefit.

12VAC5-585-1540, Equipment, clothes washers and dryers, and storage cabinets, contamination prevention - Currently, the prohibition on locating equipment, cabinets used for the storage of food, or cabinets used to store cleaned and sanitized equipment, utensils, laundered linens, and single-service and single-use article in toilet rooms or their vestibules is a core standard item. The board proposes to make it a priority foundation item. This would reduce the maximum number of days that the food establishment could be given to correct this violation from 90 to 10.

12VAC5-585-2010, Prohibitions - Currently, the prohibition on storing cleaned and sanitized equipment, utensils, laundered linens, and single-service and single-use articles in toilet rooms or their vestibules is a core standard item. The board proposes to make it a priority foundation item. This would reduce the maximum number of days that the food establishment could be given to correct this violation from 90 to 10.

12VAC5-585-2190, Handwashing sinks, water temperature, and flow - The board proposes to reduce the minimum hot water temperature at a handwashing sink from 100°F to 85°F. This could result in energy cost savings for food establishments.

12VAC5-585-3370, Poisonous or toxic material containers - The current section in its entirety is the following sentence: "A container previously used to store poisonous or toxic materials shall not be used to store, transport, or dispense food."^P The board proposes to amend the sentence as follows, to expand this prohibition beyond just food, "A container previously used to store poisonous or toxic materials shall not be used to store, transport, or dispense food^P, equipment, utensils, linens, single-service, or single-use articles." (emphasis added) To the extent that containers previously used to store poisonous or toxic materials are actually used to store, transport, or dispense equipment, utensils, linens, single-service, or single-use articles, and the poisonous or toxic materials are not consistently 100% removed from the containers, this proposed amendment could improve public health. There is no information to indicate that finding containers that were not previously used to store poisonous or toxic materials would be costly.

Businesses and Other Entities Affected. The proposed amendments affect the 9,907 active retail food establishments and an additional 30 with plans approved and waiting for the firm to open. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.⁷ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.⁸ Some of the proposed amendments likely produce a net benefit for society overall, but still do increase costs for some individual entities. For example, though the proposed required notifications for the presence of allergens potentially have large benefits for people with food allergies, they do (moderately) increase costs for food establishments. Thus, an adverse impact is indicated for food establishments.

Small Businesses⁹ Affected.¹⁰ Types and Estimated Number of Small Businesses Affected. VDACS states that it does not track the number of retail food establishments that qualify as small businesses, but notes that 4,946 of the retail establishments are independently owned and operated, and are not corporations.

Costs and Other Effects. The proposal to require labeling and notifications for sesame and other allergens would moderately increase costs for small retail food establishments that are not already doing so.

Alternative Method that Minimizes Adverse Impact. There are no clear alternative methods that both reduce adverse impact and meet the intended policy goals.

Localities¹¹ Affected.¹² The proposed amendments neither disproportionally affect any particular localities, nor directly affect costs for local governments.

Projected Impact on Employment. The proposed amendments do not appear to substantively affect total employment.

Effects on the Use and Value of Private Property. The proposal to reduce the minimum hot water temperature at a handwashing sink from 100°F to 85°F may result in reduced energy costs for some food establishments. These reduced costs could increase the value of these businesses. The proposed required notifications for the presence of allergens moderately increase costs for food establishments, potentially moderately reducing value. The proposed amendments do not affect real estate development costs.

_____________________________

¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² The regulation also states that the department may approve a compliance schedule that extends beyond the time limits specified under subsection A of this section if a written schedule of compliance is submitted by the operator and no health hazard exists or will result from allowing an extended schedule for compliance.

³ The 2022 Edition of the FDA Food Code and the International Plumbing Code define tempered water as having a temperature range between 29.4°C (85°F) and 43°C (110°F). The current regulation states that A handwashing sink shall be equipped to provide water at a temperature of at least 100°F (38°C). The proposal is to replace 100°F (38°C) with 85°F (29.4°C).

⁴ Source: VDACS (see page three of Office of Regulatory Management Economic Review Form: https://townhall.virginia.gov/L/GetFile.cfm?File=48\6484\10354\ORM_EconomicImpact_VDACS_10354_v2.pdf.

⁵ See https://www.nih.gov/news-events/nih-research-matters/sesame-allergy-common-among-children-food-allergies.

⁶ See https://www.healthline.com/health/allergies/understanding-sesame-allergies.

⁷ Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁸ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁹ Pursuant to § 2.2-4007.04, 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."

¹⁰ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹¹ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹² Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Department of Agriculture and Consumer Services concurs with the analysis prepared by the Department of Planning and Budget.

Summary:

The amendments update Retail Food Establishment Regulations (2VAC5-585), which is based on the 2017 Food and Drug Administration (FDA) Food Code and its 2019 supplement, to make the regulation consistent with the 2022 FDA Food Code and 12VAC5-421. The amendments (i) incorporate the 2022 amendments to the FDA Food Code, (ii) add and revise definitions, (iii) update cross-references, (iv) add sesame as an allergen, (v) change standards related to temperatures, (vi) add provisions for food donations, and (vii) update references to permit holders.

2VAC5-585-40. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Accredited program" means a food protection manager certification program that has been evaluated and listed by an accrediting agency as conforming to national standards for organizations that certify individuals. "Accredited program" refers to the certification process and is a designation based upon an independent evaluation of factors such as the sponsor's mission; organizational structure; staff resources; revenue sources; policies; public information regarding program scope, eligibility requirements, recertification, discipline, and grievance procedures; and test development and administration. "Accredited program" does not refer to training functions or educational programs.

"Additive" means either a (i) "food additive" having the meaning stated in the Federal Food, Drug, and Cosmetic Act, 21 USC § 321(s) and 21 CFR 170.3(e)(1) or (ii) "color additive" having the meaning stated in the Federal Food, Drug, and Cosmetic Act, 21 USC § 321(t) and 21 CFR 70.3(f).

"Adulterated" has the meaning stated in the Federal Food, Drug, and Cosmetic Act, 21 USC § 342.

"Approved" means acceptable to the department based on a determination of conformity with principles, practices, and generally recognized standards that protect public health.

"Approved water system" means a permitted waterworks constructed, maintained, and operated pursuant to 12VAC5-590 or a private well constructed, maintained, and operated pursuant to 12VAC5-630.

"Asymptomatic" means without obvious symptoms; not showing or producing indications of a disease or other medical condition, such as an individual infected with a pathogen but not exhibiting or producing any signs or symptoms of vomiting, diarrhea, or jaundice. "Asymptomatic" includes not showing symptoms because symptoms have resolved or subsided, or because symptoms never manifested.

"A_w" means water activity that is a measure of the free moisture in a food, is the quotient of the water vapor pressure of the substance divided by the vapor pressure of pure water at the same temperature, and is indicated by the symbol A_w.

"Balut" means an embryo inside a fertile egg that has been incubated for a period sufficient for the embryo to reach a specific stage of development after which it is removed from incubation before hatching.

"Beverage" means a liquid for drinking, including water.

"Bottled drinking water" means water that is sealed in bottles, packages, or other containers and offered for sale for human consumption, including bottled mineral water.

"Casing" means a tubular container for sausage products made of either natural or artificial (synthetic) material.

"Certification number" means a the unique combination of letters and numbers assigned identification number issued by a shellfish control authority to a molluscan shellfish dealer according to the provisions of the National Shellfish Sanitation Program each dealer for each location. Each certification number shall consist of a one-digit to five-digit Arabic numeral preceded by the two-letter state abbreviation and followed by a two-letter abbreviation for each type of activity the dealer is qualified to perform in accordance with the provisions of the National Shellfish Sanitation Program using the terms in Tables A and B:

Table A. Certifications
Acronym	Term
SP	Shucker-packer
RP	Repacker
SS	Shellstock shipper
RS	Reshipper
DP	Depuration processor

Table B. Permits
Acronym	Term
PHP	Post-harvest processing
AQ	Aquaculture
WS	Wet storage

"CFR" means Code of Federal Regulations. Citations in this chapter to the CFR refer sequentially to the title, part, and section numbers. For example, 40 CFR 180.194 refers to Title 40, Part 180, Section 194.

"CIP" means cleaned in place by the circulation or flowing by mechanical means through a piping system of a detergent solution, water rinse, and sanitizing solution onto or over equipment surfaces that require cleaning, such as the method used, in part, to clean and sanitize a frozen dessert machine. "CIP" does not include the cleaning of equipment such as band saws, slicers, or mixers that are subjected to in-place manual cleaning without the use of a CIP system.

"Commingle" means: 1. To combine shellstock harvested on different days or from different growing areas as identified on the tag or label; or 2. To combine shucked shellfish from containers with different container codes or different shucking dates the act of combining different lots of shellfish.

"Comminuted" means reduced in size by methods including chopping, flaking, grinding, or mincing. "Comminuted" includes (i) fish or meat products that are reduced in size and restructured or reformulated such as gefilte fish, gyros, ground beef, and sausage and (ii) a mixture of two or more types of meat that have been reduced in size and combined, such as sausages made from two or more meats.

"Commissioner" means the Commissioner of Agriculture and Consumer Services, his duly designated officer, or his agent.

"Conditional employee" means a potential food employee to whom a job offer is made, conditional on responses to subsequent medical questions or examinations designed to identify potential food employees who may be suffering from a disease that can be transmitted through food and done in compliance with Title 1 of the Americans with Disabilities Act of 1990.

"Confirmed disease outbreak" means a foodborne disease outbreak in which laboratory analysis of appropriate specimens identifies a causative agent and epidemiological analysis implicates the food as the source of the illness.

"Consumer" means a person who is a member of the public, takes possession of food, is not functioning in the capacity of an operator of a food establishment a permit holder or an operator of a food processing plant, and does not offer the food for resale.

"Core item" means a provision in this chapter that is not designated as a priority item or a priority foundation item. "Core item" includes an item that usually relates to general sanitation, operational controls, sanitation standard operating procedures (SSOPs), facilities or structures, equipment design, or general maintenance.

"Corrosion-resistant materials" means a material that maintains acceptable surface cleanability characteristics under prolonged influence of the food to be contacted, the normal use of cleaning compounds and sanitizing solutions, and other conditions of the use environment.

"Counter-mounted equipment" means equipment that is not portable and is designed to be mounted off the floor on a table, counter, or shelf.

"Critical control point" means a point or procedure in a specific food system where loss of control may result in an unacceptable health risk.

"Critical limit" means the maximum or minimum value to which a physical, biological, or chemical parameter must be controlled at a critical control point to minimize the risk that the identified food safety hazard may occur.

"Cut leafy greens" means fresh leafy greens whose leaves have been cut, shredded, sliced, chopped, or torn. The term "leafy greens" includes iceberg lettuce, romaine lettuce, leaf lettuce, butter lettuce, baby leaf lettuce (i.e., immature lettuce or leafy greens), escarole, endive, spring mix, spinach, cabbage, kale, arugula, and chard. The term "leafy greens" does not include herbs such as cilantro or parsley.

"Dealer" means a person who is authorized by a shellfish control authority for the activities of a shellstock shipper, shucker-packer, repacker, reshipper, or depuration processor of molluscan shellfish according to the provisions of the National Shellfish Sanitation Program.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Disclosure" means a written statement that clearly identifies the animal-derived foods that are, or can be ordered, raw, undercooked, or without otherwise being processed to eliminate pathogens, or items that contain an ingredient that is raw, undercooked, or without otherwise being processed to eliminate pathogens.

"Dry storage area" means a room or area designated for the storage of packaged or containerized bulk food that is not time/temperature control for safety food and dry goods such as single-service items.

"Easily cleanable" means a characteristic of a surface that:

1. Allows effective removal of soil by normal cleaning methods;

2. Is dependent on the material, design, construction, and installation of the surface; and

3. Varies with the likelihood of the surface's role in introducing pathogenic or toxigenic agents or other contaminants into food based on the surface's approved placement, purpose, and use.

"Easily cleanable" includes a tiered application of the criteria that qualify the surface as easily cleanable as specified above in this definition to different situations in which varying degrees of cleanability are required, such as:

1. The appropriateness of stainless steel for a food preparation surface as opposed to the lack of need for stainless steel to be used for floors or for tables used for consumer dining; or

2. The need for a different degree of cleanability for a utilitarian attachment or accessory in the kitchen as opposed to a decorative attachment or accessory in the consumer dining area.

"Easily movable" means:

1. Portable; mounted on casters, gliders, or rollers; or provided with a mechanical means to safely tilt a unit of equipment for cleaning; and

2. Having no utility connection, a utility connection that disconnects quickly, or a flexible utility connection line of sufficient length to allow the equipment to be moved for cleaning of the equipment and adjacent area.

"Egg" means the shell egg of avian species, such as chicken, duck, goose, guinea, quail, ratites, or turkey. "Egg" does not include a balut, egg of the reptile species such as alligator, or an egg product.

"Egg product" means all, or a portion of, the contents found inside eggs separated from the shell and pasteurized in a food processing plant, with or without added ingredients, intended for human consumption, such as dried, frozen, or liquid eggs. "Egg product" does not include food that contains eggs only in a relatively small proportion, such as cake mixes.

"Employee" means the operator permit holder, person in charge, food employee, person having supervisory or management duties, person on the payroll, family member, volunteer, person performing work under contractual agreement, or other person working in a food establishment.

"EPA" means the U.S. Environmental Protection Agency.

"Equipment" means an article that is used in the operation of a food establishment, such as a freezer, grinder, hood, ice maker, meat block, mixer, oven, reach-in refrigerator, scale, sink, slicer, stove, table, temperature measuring device for ambient air, vending machine, or warewashing machine. "Equipment" does not include apparatuses used for handling or storing large quantities of packaged foods that are received from a supplier in a cased or overwrapped lot, such as hand trucks, forklifts, dollies, pallets, racks, and skids.

"Exclude" means to prevent a person from working as an employee in a food establishment or entering a food establishment as an employee.

"FDA" means the U.S. Food and Drug Administration.

"Fish" means fresh or saltwater finfish, crustaceans, other forms of aquatic life (including alligator, frog, aquatic turtle, jellyfish, sea cucumber, and sea urchin and the roe of such animals) other than birds or mammals, and all mollusks, if such animal life is intended for human consumption; and includes an edible human food product derived in whole or in part from fish, including fish that has been processed in any manner.

"Food" means (i) a raw, cooked, or processed edible substance, ice, beverage, or ingredient used or intended for use or for sale in whole or in part for human consumption or (ii) chewing gum.

"Foodborne disease outbreak" means the occurrence of two or more cases of a similar illness resulting from the ingestion of a common food.

"Food-contact surface" means a surface of equipment or a utensil with which food normally comes into contact, or a surface of equipment or a utensil from which food may drain, drip, or splash into a food, or onto a surface normally in contact with food.

"Food employee" means an individual working with unpackaged food, food equipment or utensils, or food-contact surfaces.

"Food establishment" means an operation that (i) stores, prepares, packages, serves, vends food directly to the consumer, or otherwise provides food for human consumption such as a market, restaurant, satellite or catered feeding location, catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people, vending location, conveyance used to transport people, institution, or food bank and (ii) relinquishes possession of a 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.

"Food establishment" includes (i) an element of the operation such as a transportation vehicle or a central preparation facility that supplies a vending location or satellite feeding location unless the vending or satellite feeding location is inspected by the regulatory authority and (ii) an operation that is conducted in a mobile, stationary, temporary, or permanent facility or location where consumption is on or off the premises.

"Food establishment" does not include:

1. An establishment that offers only prepackaged foods that are not time/temperature control for safety foods;

2. A produce stand that only offers whole, uncut fresh fruits and vegetables;

3. A food processing plant, including those that are located on the premises of a food establishment;

4. A food warehouse;

5. A kitchen in a private home; or

6. A private home that receives catered or home delivered food.

"Food processing plant" means a commercial operation that manufactures, packages, labels, or stores food for human consumption and provides food for sale or distribution to other business entities such as food processing plants or food establishments. "Food processing plant" does not include a "food establishment."

"Game animal" means an animal, the products of which are food, that is not classified as (i) livestock, sheep, swine, goat, horse, mule, or other equine in 9 CFR 301.2; (ii) poultry; or (iii) fish. "Game animal" includes mammals such as reindeer, elk, deer, antelope, water buffalo, bison, rabbit, squirrel, opossum, raccoon, nutria, or muskrat, and nonaquatic reptiles such as land snakes. "Game animal" does not include ratites.

"General use pesticide" means a pesticide that is not classified by EPA for restricted use as specified in 40 CFR 152.175.

"Grade A standards" means the requirements of the Grade "A" Pasteurized Milk Ordinance, 2017 Revision, (U.S. Food and Drug Administration) with which certain fluid and dry milk and milk products comply.

"HACCP plan" means a written document that delineates the formal procedures for following the Hazard Analysis and Critical Control Point principles developed by the National Advisory Committee on Microbiological Criteria for Foods.

"Handwashing sink" means a lavatory, a basin or vessel for washing, a wash basin, or a plumbing fixture especially placed for use in personal hygiene and designed for the washing of hands. "Handwashing sink" includes an automatic handwashing facility.

"Hazard" means a biological, chemical, or physical property that may cause an unacceptable consumer health risk.

"Health practitioner" means a physician licensed to practice medicine, or if allowed by law, a nurse practitioner, physician assistant, or similar medical professional.

"Hermetically sealed container" means a container that is designed and intended to be secure against the entry of microorganisms and, in the case of low acid canned foods, to maintain the commercial sterility of its contents after processing.

"Highly susceptible population" means persons who are more likely than other people in the general population to experience foodborne disease because they are (i) immunocompromised; preschool age children, or older adults; and (ii) obtaining food at a facility that provides services such as custodial care, health care, or assisted living, such as a child or adult day care center, kidney dialysis center, hospital or nursing home, or nutritional or socialization services such as a senior center.

"Imminent health hazard" means a significant threat or danger to health that is considered to exist when there is evidence sufficient to show that a product, practice, circumstance, or event creates a situation that requires immediate correction or cessation of operation to prevent injury based on the number of potential injuries, and the nature, severity, and duration of the anticipated injury.

"Injected" means manipulating meat to which a solution has been introduced into its interior by processes that are referred to as "injecting," "pump marinating," or "stitch pumping."

"In-shell product" means nonliving, processed shellfish with one or both shells present.

"Intact meat" means a cut of whole muscle meat that has not undergone comminution, vacuum tumbling with solutions, mechanical tenderization, or reconstruction, cubing, or pounding.

"Juice" means the aqueous liquid expressed or extracted from one or more fruits or vegetables, purées of the edible portions of one or more fruits or vegetables, or any concentrate of such liquid or purée. "Juice" does not include, for purposes of HACCP, liquids, purées, or concentrates that are not used as beverages or ingredients of beverages.

"Kitchenware" means food preparation and storage utensils.

"Law" means applicable local, state, and federal statutes, regulations, and ordinances.

"Linens" means fabric items such as cloth hampers, cloth napkins, table cloths, wiping cloths, and work garments, including cloth gloves.

"Major food allergen" means milk, egg, fish (such as bass, flounder, cod, and including crustacean shellfish such as crab, lobster, or shrimp), tree nuts (such as almonds, pecans, or walnuts), wheat, peanuts, and soybeans, and sesame; or a food ingredient that contains protein derived from one of these foods. "Major food allergen" does not include (i) any highly refined oil derived from a major food allergen in this definition and any ingredient derived from such highly refined oil or (ii) any ingredient that is exempt under the petition or notification process specified in the Food Allergen Labeling and Consumer Protection Act of 2004 (P.L. 108-282).

"Meat" means the flesh of animals used as food including the dressed flesh of cattle, swine, sheep, or goats and other edible animals, except fish, poultry, and wild game animals as specified under 2VAC5-585-330 A 2 and 3.

"Mechanically tenderized" means manipulating meat by piercing with a set of needles, pins, blades, or any mechanical device that breaks up muscle fiber and tough connective tissue to increase tenderness. This includes injection, scoring, and processes that may be referred to as "blade tenderizing," "jaccarding," "pinning," or "needling."

"mg/L" means milligrams per liter, which is the metric equivalent of parts per million (ppm).

"Mobile food establishment" means a food establishment mounted on wheels, excluding boats in the water, that is readily movable from place to place at all times during operation and includes pushcarts, trailers, trucks, or vans. The unit, all operations, and all equipment must be integral to and be within or attached to the unit.

"Molluscan shellfish" means any edible species of fresh or frozen oysters, clams, mussels, and scallops or edible portions thereof, except when the scallop product consists only of the shucked adductor muscle. Molluscan shellfish includes shellstock, shucked shellfish, and in-shell products.

"Noncontinuous cooking" means the cooking of food in a food establishment using a process in which the initial heating of the food is intentionally halted so that it may be cooled and held for complete cooking at a later time prior to sale or service. "Noncontinuous cooking" does not include cooking procedures that only involve temporarily interrupting or slowing an otherwise continuous cooking process.

"Operator" means the entity that is legally responsible for the operation of the food establishment such as the owner, the owner's agent, or other person.

"Packaged" means bottled, canned, cartoned, bagged, or wrapped, whether packaged in a food establishment or a food processing plant. "Packaged" does not include wrapped or placed in a carry-out container to protect the food during service or delivery to the consumer, by a food employee, upon consumer request.

"Permit" means the document issued by the department that authorizes a person to operate a food establishment.

"Permit holder" means the entity that:

1. Is legally responsible for the operation of the food establishment, such as the owner, the owner's agent, or other person; and

2. Possesses a valid permit to operate a food establishment.

"Person" means an association, a corporation, individual, partnership, other legal entity, government, or governmental subdivision or agency.

"Person in charge" means the individual present at a food establishment who is responsible for the operation at the time of inspection.

"Personal care items" means items or substances that may be poisonous, toxic, or a source of contamination and are used to maintain or enhance a person's health, hygiene, or appearance. "Personal care items" include items such as medicines, first aid supplies, and other items such as cosmetics and toiletries such as toothpaste and mouthwash.

"pH" means the symbol for the negative logarithm of the hydrogen ion concentration, which is a measure of the degree of acidity or alkalinity of a solution. Values between 0 and 7.0 indicate acidity and values between 7.0 and 14 indicate alkalinity. The value for pure distilled water is 7.0, which is considered neutral.

"Physical facilities" means the structure and interior surfaces of a food establishment including accessories such as soap and towel dispensers and attachments such as light fixtures and heating or air conditioning system vents.

"Plumbing fixture" means a receptacle or device that is permanently or temporarily connected to the water distribution system of the premises and demands a supply of water from the system or discharges used water, waste materials, or sewage directly or indirectly to the drainage system of the premises.

"Plumbing system" means the water supply and distribution pipes; plumbing fixtures and traps; soil, waste, and vent pipes; sanitary and storm sewers and building drains, including their respective connections, devices, and appurtenances within the premises; and water-treating equipment.

"Poisonous or toxic materials" means substances that are not intended for ingestion and are included in four five categories:

1. Cleaners and sanitizers, which include cleaning and sanitizing agents and agents such as caustics, acids, drying agents, polishes, and other chemicals;

2. Pesticides, except sanitizers, which include substances such as insecticides and rodenticides;

3. Substances necessary for the operation and maintenance of the establishment such as nonfood grade lubricants and personal care items that may be deleterious to health; and

4. Substances that are not necessary for the operation and maintenance of the establishment and are on the premises for retail sale, such as petroleum products and paints; and

5. Restricted-use pesticides.

"Potable water" means water fit for human consumption that is obtained from an approved water supply and that is (i) sanitary and normally free of minerals, organic substances, and toxic agents in excess of reasonable amounts and (ii) adequate in quantity and quality for the minimum health requirements of the person served. Potable water is traditionally known as drinking water and excludes such nonpotable forms as boiler water, mop water, rainwater, wastewater, and nondrinking water.

"Poultry" means any domesticated bird (chickens, turkeys, ducks, geese, guineas, ratites, or squabs), whether live or dead, as defined in 9 CFR 381.1 and any migratory waterfowl, game bird, pheasant, partridge, quail, grouse, or pigeon, whether live or dead, as defined in 9 CFR 362.1.

"Premises" means the physical facility, its contents, and the contiguous land or property under the control of the operator permit holder or the physical facility, its contents, and the land or property not described above if its facilities and contents are under the control of the operator permit holder and may impact food establishment personnel, facilities, or operations, and a food establishment is only one component of a larger operation.

"Primal cut" means a basic major cut into which carcasses and sides of meat are separated, such as a beef round, pork loin, lamb flank, or veal breast.

"Priority foundation item" means a provision in this chapter whose application supports, facilitates, or enables one or more priority items. "Priority foundation item" includes an item that requires the purposeful incorporation of specific actions, equipment, or procedures by industry management to attain control of risk factors that contribute to foodborne illness or injury such as personnel training, infrastructure or necessary equipment, HACCP plans, documentation or recordkeeping, and labeling and is denoted in this chapter with a superscript "Pf," which looks like this: ^Pf.

"Priority item" means a provision in this chapter whose application contributes directly to the elimination, prevention, or reduction to an acceptable level of hazards associated with foodborne illness or injury and there is no other provision that more directly controls the hazard. "Priority item" includes items with a quantifiable measure to show control of hazards such as cooking, reheating, cooling, and handwashing and is denoted in this chapter with a superscript "P," which looks like this: ^P.

"Private well" means any water well constructed for a person on land that is owned or leased by that person and is usually intended for household, groundwater source heat pump, agricultural use, industrial use, or other nonpublic water well.

"Pure water" means potable water fit for human consumption that is (i) sanitary and normally free of minerals, organic substances, and toxic agents in excess of reasonable amounts and (ii) adequate in quantity and quality for the minimum health requirements of the persons served.

"Ratite" means a flightless bird such as an emu, ostrich, or rhea.

"Ready-to-eat food" means food that:

1. (i) Is in a form that is edible without additional preparation to achieve food safety, as specified under 2VAC5-585-700 A, B, and C; 2VAC5-585-710; or 2VAC5-585-730; (ii) is a raw or partially cooked animal food and the consumer is advised as specified under 2VAC5-585-700 D 1 and D 3; or (iii) is prepared in accordance with a variance that is granted as specified under 2VAC5-585-700 D 4; and

2. May receive additional preparation for palatability or aesthetic, epicurean, gastronomic, or culinary purposes.

"Ready-to-eat food" includes:

1. Raw animal food that is cooked as specified under 2VAC5-585-700 or 2VAC5-585-710, or frozen as specified under 2VAC5-585-730;

2. Raw fruits and vegetables that are washed as specified under 2VAC5-585-510;

3. Plant food that is cooked for hot holding as specified under 2VAC5-585-720;

4. All time/temperature control for safety food that is cooked to the temperature and time required for the specific food under Article 4 (2VAC5-585-700 et seq.) of Part III of this chapter and cooled as specified in 2VAC5-585-800;

5. Plant food for which further washing, cooking, or other processing is not required for food safety, and from which rinds, peels, husks, or shells, if naturally present, are removed;

6. Substances derived from plants such as spices, seasonings, and sugar;

7. A bakery item such as bread, cakes, pies, fillings, or icing for which further cooking is not required for food safety;

8. The following products that are produced in accordance with USDA guidelines and that have received a lethality treatment for pathogens: dry, fermented sausages, such as dry salami or pepperoni; salt-cured meat and poultry products, such as prosciutto ham, country cured ham, and Parma ham; and dried meat and poultry products, such as jerky or beef sticks; and

9. Food manufactured as specified in 21 CFR Part 113.

"Ready-to-eat food" does not include:

1. Commercially packaged food that bears a manufacturer's cooking instructions; or

2. Food for which the manufacturer has provided information that the food has not been processed to control for pathogens.

"Reduced oxygen packaging" means (i) the reduction of the amount of oxygen in a package by removing oxygen; displacing oxygen and replacing it with another gas or combination of gases; or otherwise controlling the oxygen content to a level below that normally found in the atmosphere (approximately 21% at sea level); and (ii) a process as specified in clause (i) of this definition that involves a food for which the hazards Clostridium botulinum or Listeria monocytogenes require control in the final packaged form.

"Reduced oxygen packaging" includes:

1. Vacuum packaging, in which air is removed from a package of food and the package is hermetically sealed so that a vacuum remains inside the package;

2. Modified atmosphere packaging, in which the atmosphere of a package of food is modified so that its composition is different from air, but the atmosphere may change over time due to the permeability of the packaging material or the respiration of the food. Modified atmosphere packaging includes reduction in the proportion of oxygen, total replacement of oxygen, or an increase in the proportion of other gases such as carbon dioxide or nitrogen;

3. Controlled atmosphere packaging, in which the atmosphere of a package of food is modified so that until the package is opened, its composition is different from air, and continuous control of that atmosphere is maintained, such as by using oxygen scavengers or a combination of total replacement of oxygen, nonrespiring food, and impermeable packaging material;

4. Cook chill packaging, in which cooked food is hot filled into impermeable bags that have the air expelled and are then sealed or crimped closed. The bagged food is rapidly chilled and refrigerated at temperatures that inhibit the growth of psychotrophic psychrotrophic pathogens; or

5. Sous vide packaging, in which raw or partially cooked food is vacuum packaged in an impermeable bag, cooked in the bag, rapidly chilled, and refrigerated at temperatures that inhibit the growth of psychotrophic psychrotrophic pathogens.

"Refuse" means solid waste not carried by water through the sewage system.

"Regulatory authority" means local, state, or federal enforcement body or their authorized representative having jurisdiction over the food establishment.

"Reminder" means a written statement concerning the health risk of consuming animal foods raw, undercooked, or without otherwise being processed to eliminate pathogens.

"Reservice" means the transfer of food that is unused and returned by a consumer after being served or sold and in the possession of the consumer, to another person.

"Restrict" means to limit the activities of a food employee so that there is no risk of transmitting a disease that is transmissible through food and the food employee does not work with exposed food, clean equipment, utensils, linens, or unwrapped single-service or single-use articles.

"Restricted egg" means any check, dirty egg, incubator reject, inedible, leaker, or loss as defined in 9 CFR Part 590.

"Restricted use pesticide" means a pesticide product that contains the active ingredients specified in 40 CFR 152.175 and that is limited to use by or under the direct supervision of a certified applicator.

"Risk" means the likelihood that an adverse health effect will occur within a population as a result of a hazard in a food.

"Safe material" means an article manufactured from or composed of materials that may not reasonably be expected to result, directly or indirectly, in their becoming a component or otherwise affecting the characteristics of any food; an additive that is used as specified in § 409 of the Federal Food, Drug, and Cosmetic Act (21 USC § 348); or other materials that are not additives and that are used in conformity with applicable regulations of the Food and Drug Administration.

"Sanitization" means the application of cumulative heat or chemicals on cleaned food-contact surfaces that, when evaluated for efficacy, is sufficient to yield a 5-log reduction, which is equal to a 99.999% reduction, of representative disease microorganisms of public health importance.

"Sealed" means free of cracks or other openings that allow the entry or passage of moisture.

"Service animal" means an animal such as a guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability.

"Servicing area" means an operating base location to which a mobile food establishment or transportation vehicle returns regularly for such things as vehicle and equipment cleaning, discharging liquid or solid wastes, refilling water tanks and ice bins, and boarding food.

"Sewage" means liquid waste containing animal or vegetable matter in suspension or solution and may include liquids containing chemicals in solution. "Sewage" includes water-carried and non-water-carried human excrement or kitchen, laundry, shower, bath, or lavatory waste separately or together with such underground surface, storm, or other water and liquid industrial wastes as may be present from residences, buildings, vehicles, industrial establishments, or other places.

"Shellfish control authority" means a state, federal, foreign, tribal, or other government entity legally responsible for administering a program that includes certification of molluscan shellfish harvesters and dealers for interstate commerce.

"Shellstock" means raw, in-shell live molluscan shellfish in the shell.

"Shiga toxin-producing Escherichia coli" or "STEC" means any E. coli capable of producing Shiga toxins (also called verocytotoxins). STEC infections can be asymptomatic or may result in a spectrum of illness ranging from mild nonbloody diarrhea to hemorrhagic colitis (i.e., bloody diarrhea) to hemolytic uremic syndrome (HUS), which is a type of kidney failure. Examples of serotypes of STEC include: E. coli O157:H7, E. coli O157:NM, E. coli O26:H11, E. coli O145:NM, E. coli O103:H2, and E. coli O111:NM. STEC are sometimes referred to as VTEC (verocytotoxigenic E. coli) or as EHEC (enterohemorrhagic E. coli). EHEC are a subset of STEC that can cause hemorrhagic colitis or HUS.

"Shucked shellfish" means molluscan shellfish that have one or both shells removed.

"Single-service articles" means tableware, carry-out utensils, and other items such as bags, containers, placemats, stirrers, straws, toothpicks, and wrappers that are designed and constructed for one time, one person use after which they are intended for discard.

"Single-use articles" means utensils and bulk food containers designed and constructed to be used once and discarded. "Single-use articles" includes items such as wax paper, butcher paper, plastic wrap, formed aluminum food containers, jars, plastic tubs or buckets, bread wrappers, pickle barrels, ketchup bottles, and number 10 cans that do not meet the materials, durability, strength, and cleanability specifications under 2VAC5-585-960, 2VAC5-585-1080, and 2VAC5-585-1100 for multiuse utensils.

"Slacking" means the process of moderating the temperature of a food such as allowing a food to gradually increase from a temperature of -10°F (-23°C) to 25°F (-4°C) in preparation for deep-fat frying or to facilitate even heat penetration during the cooking of previously block-frozen food such as shrimp.

"Smooth" means a food-contact surface having a surface free of pits and inclusions with a cleanability equal to or exceeding that of (100 grit) number three stainless steel; a nonfood-contact surface of equipment having a surface equal to that of commercial grade hot-rolled steel free of visible scale; and a floor, wall, or ceiling having an even or level surface with no roughness or projections that render it difficult to clean.

"Tableware" means eating, drinking, and serving utensils for table use such as flatware including forks, knives, and spoons; hollowware including bowls, cups, serving dishes, and tumblers; and plates.

"Temperature measuring device" means a thermometer, thermocouple, thermistor, or other device that indicates the temperature of food, air, or water.

"Temporary food establishment" means a food establishment that operates for a period of no more than 14 consecutive days in conjunction with a single event or celebration.

"Time/temperature control for safety food" or "TCS" (formerly "potentially hazardous food") means a food that requires time/temperature control for safety to limit pathogenic microorganism growth or toxin formation:

1. "Time/temperature control for safety food" includes an animal food that is raw or heat treated; a plant food that is heat treated or consists of raw seed sprouts, cut melons, cut leafy greens, cut tomatoes or mixtures of cut tomatoes that are not modified in a way so that they are unable to support pathogenic microorganism growth or toxin formation, or garlic-in-oil mixtures that are not modified in a way so that they are unable to support pathogenic microorganism growth or toxin formation; and except as specified in subdivision 2 d of this definition, a food that because of the interaction of its A_w and pH values is designated as product assessment required (PA) in Table A or B of this definition:

Table A. Interaction of pH and Aw for control of spores in food heat treated to destroy vegetative cells and subsequently packaged.
Aw values	pH values
	4.6 or less	>4.6 - 5.6	>5.6
≤0.92	non-TCS food*	non-TCS food	non-TCS food
>0.92 - 0.95	non-TCS food	non-TCS food	PA**
>0.95	non-TCS food	PA	PA
*TCS means time/temperature control for safety food **PA means product assessment required

Table B. Interaction of pH and Aw for control of vegetative cells and spores in food not heat treated or heat treated but not packaged.
Aw values	pH values
	< 4.2	4.2 - 4.6	> 4.6 - 5.0	> 5.0
<0.88	non-TCS food*	non-TCS food	non-TCS food	non-TCS food
0.88 - 0.90	non-TCS food	non-TCS food	non-TCS food	PA**
>0.90 - 0.92	non-TCS food	non-TCS food	PA	PA
>0.92	non-TCS food	PA	PA	PA
*TCS means time/temperature control for safety food **PA means product assessment required

2. "Time/temperature control for safety food" does not include:

a. An air-cooled hard-boiled egg with shell intact, or an egg with shell intact that is not hard boiled, but has been pasteurized to destroy all viable salmonellae;

b. A food in an unopened hermetically sealed container that is commercially processed to achieve and maintain commercial sterility under conditions of nonrefrigerated storage and distribution;

c. A food that because of its pH or A_w value, or interaction of A_w and pH values, is designated as a non-TCS food in Table A or B of this definition;

d. A food that is designated as PA in Table A or B of this definition and has undergone a product assessment showing that the growth or toxin formation of pathogenic microorganisms that are reasonably likely to occur in that food is precluded due to:

(1) Intrinsic factors including added or natural characteristics of the food such as preservatives, antimicrobials, humectants, acidulants, or nutrients;

(2) Extrinsic factors including environmental or operational factors that affect the food such as packaging, modified atmosphere such as reduced oxygen packaging, shelf-life and use, or temperature range of storage and use; or

(3) A combination of intrinsic and extrinsic factors; or

e. A food that does not support the growth or toxin formation of pathogenic microorganisms in accordance with one of the subdivisions 2 a through 2 d of this definition even though the food may contain a pathogenic microorganism or chemical or physical contaminant at a level sufficient to cause illness or injury.

"Tobacco product" has the meaning stated in the Federal Food, Drug, and Cosmetic Act, 21 USC § 321(rr).

"USDA" means the U.S. Department of Agriculture.

"Utensil" means a food-contact implement or container used in the storage, preparation, transportation, dispensing, sale, or service of food, such as kitchenware or tableware that is multiuse, single service, or single use; gloves used in contact with food; temperature sensing probes of food temperature measuring devices; and probe-type price or identification tags used in contact with food.

"Variance" means a written document issued by the department that authorizes a modification or waiver of one or more requirements of this chapter if, in the opinion of the department, a health hazard or nuisance will not result from the modification or waiver.

"Vending machine" means a self-service device that, upon insertion of a coin, paper currency, token, card, key, or by electronic transaction or optional manual operation, dispenses unit servings of food in bulk or in packages without the necessity of replenishing the device between each vending operation.

"Vending machine location" means the room, enclosure, space, or area where one or more vending machines are installed and operated and includes the storage areas and areas on the premises that are used to service and maintain the vending machines.

"Warewashing" means the cleaning and sanitizing of utensils and food-contact surfaces of equipment.

"Waterworks" means a system that serves piped water for human consumption to at least 15 service connections or 25 or more individuals for at least 60 days out of the year. "Waterworks" includes all structures, equipment, and appurtenances used in the storage, collection, purification, treatment, and distribution of pure water except the piping and fixtures inside the building where such water is delivered.

"Whole-muscle, intact beef" means whole muscle beef that is not injected, mechanically tenderized, reconstructed, or scored and marinated, from which beef steaks may be cut.

2VAC5-585-50. Assignment.

A. Except as specified in subsection B or C of this section, the operator permit holder shall be the person in charge or shall designate a person in charge and shall ensure that a person in charge is present at the food establishment during all hours of operation.^Pf

B. In a food establishment with two or more separately inspected permitted departments that are the legal responsibility of the same operator permit holder and that are located on the same premises, the operator permit holder may, during specific time periods when food is not being prepared, packaged, or served, designate a single person in charge who is present on the premises during all hours of operation, and who is responsible for each separately inspected permitted food establishment on the premises.^Pf

C. This section does not apply to certain types of food establishments deemed by the department to pose minimal risk of causing, or contributing to, foodborne illness based on the nature of the operation and the extent of the food preparation.^Pf

2VAC5-585-65. Certified food protection manager.

A. At least one employee who has supervisory and management responsibility and the authority to direct and control food preparation and service shall be a certified food protection manager who has shown proficiency of required information through passing a test that is part of an accredited program.

B. The person in charge shall be a certified food protection manager who has shown proficiency of required information through passing a test that is part of an accredited program. For purposes of enforcing this subsection, this requirement will take effect on June 24, 2023.

C. This section does not apply to certain types of food establishments deemed by the department to pose minimal risk of causing, or contributing to, foodborne illness based on the nature of the operation and extent of food preparation.

2VAC5-585-67. Food protection manager certification.

A. A person in charge who demonstrates knowledge by being a food protection manager who is certified by a food protection manager certification program that is evaluated and listed by a Conference for Food Protection-recognized accrediting agency as conforming to the Conference for Food Protection Standards for Accreditation of Food Protection Manager Certification Programs, April 2018 2023, (Conference for Food Protection) is deemed to comply with subdivision 2 of 2VAC5-585-60.

B. A food establishment that has a person in charge who is certified by a food protection manager certification program that is evaluated and listed by a Conference for Food Protection-recognized accrediting agency as conforming to the Conference for Food Protection Standards for Accreditation of Food Protection Manager Certification Programs, April 2018 2023, (Conference for Food Protection) is deemed to comply with 2VAC5-585-65.

2VAC5-585-70. Duties of person in charge.

The person in charge shall ensure that:

1. Food establishment operations are not conducted in a private home or in a room used as living or sleeping quarters as specified under 2VAC5-585-2990;^Pf

2. Persons unnecessary to the food establishment operation are not allowed in the food preparation, food storage, or warewashing areas, except that brief visits and tours may be authorized by the person in charge if steps are taken to ensure that exposed food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles are protected from contamination;^Pf

3. Employees and other persons such as delivery and maintenance persons and pesticide applicators entering the food preparation, food storage, and warewashing areas comply with this chapter;^Pf

4. Employees are effectively cleaning their hands, by routinely monitoring the employees' handwashing;^Pf

5. Employees are visibly observing foods as they are received to determine that they are from approved sources, delivered at the required temperatures, protected from contamination, unadulterated, and accurately presented, by routinely monitoring the employees' observations and periodically evaluating foods upon their receipt;^Pf

6. Employees are verifying that foods delivered to the food establishment during nonoperating hours are from approved sources and are placed into appropriate storage locations such that they are maintained at the required temperatures, protected from contamination, unadulterated, and accurately presented;^Pf

7. Employees are properly cooking time/temperature control for safety food, being particularly careful in cooking those foods known to cause severe foodborne illness and death, such as eggs and comminuted meats, through daily oversight of the employees' routine monitoring of the cooking temperatures using appropriate temperature measuring devices properly scaled and calibrated as specified under 2VAC5-585-1180 and 2VAC5-585-1730 B;^Pf

8. Employees are using proper methods to rapidly cool time/temperature control for safety foods that are not held hot or are not for consumption within four hours, through daily oversight of the employees' routine monitoring of food temperatures during cooling;^Pf

9. Employees are properly maintaining the temperatures of time/temperature control for safety food during hot and cold holding through daily oversight of the employees' routine monitoring of food temperatures;^Pf

10. Food employees are properly maintaining the temperature of time/temperature control for safety foods during thawing through daily oversight of the food employee's routine monitoring of food temperatures;^Pf

11. Consumers who order raw or partially cooked ready-to-eat foods of animal origin are informed as specified under 2VAC5-585-930 that the food is not cooked sufficiently to ensure its safety;^Pf

11. 12. Employees are properly sanitizing cleaned multiuse equipment and utensils before they are reused, through routine monitoring of solution temperature and exposure time for hot water sanitizing, and chemical concentration, pH, temperature, and exposure time for chemical sanitizing;^Pf

12. 13. Consumers are notified that clean tableware is to be used when they return to self-service areas such as salad bars and buffets as specified under 2VAC5-585-590;^Pf

13. 14. Except when approval is obtained from the department as specified in 2VAC5-585-450 E, employees are preventing cross-contamination of ready-to-eat food with bare hands by properly using suitable utensils such as deli tissue, spatulas, tongs, single-use gloves, or dispensing equipment;^Pf

14. 15. Employees are properly trained in food safety, including food allergy awareness, as it relates to their assigned duties. Food allergy awareness includes describing foods identified as major food allergens and the symptoms that a major food allergen could cause in a sensitive individual who has an allergic reaction; ^Pf

15. 16. Food employees and conditional employees are informed in a verifiable manner of their responsibility to report in accordance with law, to the person in charge, information about their health and activities as they relate to diseases that are transmissible through food, as specified under 2VAC5-585-80 A;^Pf and

16. 17. Written procedures and plans where specified by this chapter and as developed by the food establishment are maintained and implemented as required.^Pf

2VAC5-585-80. Responsibility of operator permit holder, person in charge, and conditional employees.

A. The operator permit holder shall require food employees and conditional employees to report to the person in charge information about their health and activities as they relate to diseases that are transmissible through food. A food employee or conditional employee shall report the information in a manner that allows the person in charge to reduce the risk of foodborne disease transmission, including providing necessary additional information, such as the date of onset of symptoms and an illness, or of a diagnosis without symptoms, if the food employee or conditional employee:

1. Has any of the following symptoms:

a. Vomiting;^P

b. Diarrhea;^P

c. Jaundice;^P

d. Sore throat with fever;^P or

e. A lesion containing pus such as a boil or infected wound that is open or draining and is:

(1) On the hands or wrists, unless an impermeable cover such as a finger cot or stall protects the lesion and a single-use glove is worn over the impermeable cover;^P

(2) On exposed portions of the arms, unless the lesion is protected by an impermeable cover;^P or

(3) On other parts of the body, unless the lesion is covered by a dry, durable, tight-fitting bandage;^P

2. Has an illness diagnosed by a health practitioner due to:

a. Norovirus;^P

b. Hepatitis A virus;^P

c. Shigella spp.;^P

d. Shiga toxin-producing Escherichia coli; ^P

e. Typhoid fever (caused by Salmonella typhi);^P or

f. Salmonella (nontyphoidal);^P

3. Had typhoid fever, diagnosed by a health practitioner, within the past three months , without having received antibiotic therapy, as determined by a health practitioner;^P

4. Has been exposed to, or is the suspected source of, a confirmed disease outbreak, because the food employee or conditional employee consumed or prepared food implicated in the outbreak, or consumed food at an event prepared by a person who is infected or ill with:

a. Norovirus within the past 48 hours of the last exposure;^P

b. Shiga toxin-producing Escherichia coli, or Shigella spp. within the past three days of the last exposure;^P

c. Typhoid fever within the past 14 days of the last exposure;^P or

d. Hepatitis A virus within the past 30 days of the last exposure;^P or

5. Has been exposed by attending or working in a setting where there is a confirmed disease outbreak, or living in the same household as, and has knowledge about an individual who works or attends a setting where there is a confirmed disease outbreak, or living in the same household as, and has knowledge about, an individual diagnosed with an illness caused by:

a. Norovirus within the past 48 hours of the last exposure;^P

b. Shiga toxin-producing Escherichia coli or Shigella spp. within the past three days of the last exposure;^P

c. Typhoid fever (caused by Salmonella typhi) within the past 14 days of the last exposure;^P or

d. Hepatitis A virus within the past 30 days of the last exposure.^P

B. The person in charge shall notify the department when a food employee is:

1. Jaundiced;^Pf or

2. Diagnosed with an illness due to a pathogen as specified under subdivisions A 2 a through f of this section.^Pf

C. The person in charge shall ensure that a conditional employee:

1. Who exhibits or reports a symptom, or who reports a diagnosed illness as specified under subdivisions A 1 through 3 of this section, is prohibited from becoming a food employee until the conditional employee meets the criteria for the specific symptoms or diagnosed illness as specified under 2VAC5-585-100;^P and

2. Who will work as a food employee in a food establishment that serves a highly susceptible population and reports a history of exposure as specified under subdivisions A 4 and 5 of this section, is prohibited from becoming a food employee until the conditional employee meets the criteria specified under subdivision 10 of 2VAC5-585-100.^P

D. The person in charge shall ensure that a food employee who exhibits or reports a symptom, or who reports a diagnosed illness or a history of exposure as specified under subsection A of this section is:

1. Excluded as specified under subdivisions 1 through 3 and 4 a, 5 a, 6 a, 7, or 8 a of 2VAC5-585-90 and in compliance with the provisions specified under subdivisions 1 through 8 of 2VAC5-585-100;^P or

2. Restricted as specified under subdivision 4 b, 5 b, 6 b, 7, 8 b, 9, or 10 of 2VAC5-585-90 and in compliance with the provisions specified under subdivisions 4 through 10 of 2VAC5-585-100.^P

E. A food employee or conditional employee shall report to the person in charge the information as specified under subsection A of this section.^Pf

F. A food employee shall:

1. Comply with an exclusion as specified under subdivisions 1 through 3 and 4 a, 5 a, 6 a, 7, or 8 a of 2VAC5-585-90, and with the provisions specified under subdivisions 1 through 8 of 2VAC5-585-100;^P or

2. Comply with a restriction specified under subdivision 4 b, 5 b, 6 b, 7, or 8 b of 2VAC5-585-90 or under subdivision 8, 9, or 10 of 2VAC5-585-90 and comply with the provisions specified under subdivisions 4 through 10 of 2VAC5-585-100.^P

2VAC5-585-160. When to wash.

Food employees shall clean their hands and exposed portions of their arms as specified under 2VAC5-585-140 immediately before engaging in food preparation including working with exposed food, clean equipment and utensils, and unwrapped single-service and single-use articles^P and:

1. After touching bare human body parts other than clean hands and clean, exposed portions of arms;^P

2. After using the toilet room;^P

3. After caring for or handling service animals or aquatic animals as allowed under 2VAC5-585-250 B;^P

4. Except as specified in 2VAC5-585-220 B, after coughing, sneezing, using a handkerchief or disposable tissue, using a tobacco product, eating, or drinking;^P

5. After handling soiled equipment or utensils;^P

6. During food preparation, as often as necessary to remove soil and contamination and to prevent cross contamination when changing tasks;^P

7. When switching between working with raw food and working with ready-to-eat food;^P

8. Before donning gloves to initiate a task that involves working with food;^P and

9. After engaging in other activities that contaminate the hands.^P

2VAC5-585-220. Eating, drinking, or using tobacco products.

A. Except as specified in subsection B of this section, an employee shall eat, drink, or use any form of tobacco product only in designated areas where the contamination of exposed food; clean equipment, utensils, and linens; unwrapped single-service and single-use articles; or other items needing protection cannot result.

B. A food employee may drink from a closed beverage container if the container is handled to prevent contamination of:

1. The employee's hands;

2. The container; and

3. Exposed food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles.

2VAC5-585-270. Compliance with food law.

A. Food shall be obtained from sources that comply with law.^P

B. Food prepared in a private home may not be used or offered for human consumption in a food establishment unless the home kitchen is inspected and regulated by the food regulatory authority that has jurisdiction over the private home.^P

C. Packaged food shall be labeled as specified in law, including 21 CFR Part 101; 9 CFR Part 317; and 9 CFR Part 381, Subpart N; and as specified under 2VAC5-585-400 and 2VAC5-585-410.^Pf

D. Fish, other than those specified in 2VAC5-585-730 B, that are intended for consumption in raw or undercooked form and allowed as specified in 2VAC5-585-700 D, may be offered for sale or service if they are obtained from a supplier that freezes fish as specified under 2VAC5-585-730 A, or if they are frozen on the premises as specified under 2VAC5-585-730 A and records are retained as specified under 2VAC5-585-740.

E. Whole-muscle, intact beef steaks that are intended for consumption in an undercooked form without a consumer advisory as specified in 2VAC5-585-700 C shall be:

1. Obtained from a food processing plant that, upon request by the purchaser, packages the steaks and labels them to indicate that the steaks meet the definition of does not mechanically tenderize, vacuum tumble with solutions, reconstruct, cube, or pound those whole-muscle, intact beef steaks;^Pf or

2. Deemed acceptable by the department based on other evidence, such as written buyer specifications or invoices, that indicates that the steaks meet the definition of whole-muscle, intact beef;^Pf and

3. If individually cut in a food establishment:

a. Cut from whole-muscle, intact beef that is labeled by received from a food processing plant as specified in subdivision 1 of this subsection or identified as specified in subdivision 2 of this subsection;^{Pf P} and

b. Prepared so they remain intact;.^Pf and

c. If packaged for undercooking in a food establishment, labeled as specified in subdivision 1 of this subsection or identified as specified in subdivision 2 of this subsection.^Pf

F. Meat and poultry that are not ready-to-eat foods and are in a packaged form when offered for sale or otherwise offered for consumption shall be labeled to include safe handling instructions as specified in law, including 9 CFR 317.2(l) and 9 CFR 381.125(b).

G. Eggs that have not been specifically treated to destroy all viable Salmonellae shall be labeled to include safe handling instructions as specified in law, including 21 CFR 101.17(h).

2VAC5-585-400. Shucked Molluscan shellfish, packaging and identification.

A. Raw shucked Molluscan shellfish shall be obtained in nonreturnable packages or containers that bear a legible tag or label that identifies the:^Pf

1. Name, address, and certification number of the shucker-packer or repacker of Source and is affixed by a dealer that depurates, packs, ships, or reships the molluscan shellfish, as specified in the National Shellfish Sanitation Program Guide for Control of Molluscan Shellfish;^Pf and

2. The "sell "Sell by" or "best if used by" date for shucked shellfish packages with a capacity of less than 64 fluid ounces (1.89 L) or the date shucked for packages with a capacity of 64 fluid ounces (1.89 L) or more.^Pf

B. A package container of raw shucked molluscan shellfish that does not bear a tag or label or that bears a tag or label that does not contain all the information as specified under subsection A of this section shall be subject to a hold order, as allowed by law, or seizure and destruction in accordance with 21 CFR 1240.60(d).

2VAC5-585-420. Shellstock; condition.

When received by a food establishment, shellstock shall be reasonably free of mud, dead shellfish shellstock, and shellfish shellstock with broken shells. Dead shellfish or shellstock and shellstock with badly broken shells shall be discarded.

2VAC5-585-430. Molluscan shellfish; original container.

A. Except as specified in subsections B through C, D, and E of this section, molluscan shellfish may not be removed from the container in which they are received other than immediately before sale or preparation for service.

B. Molluscan shellfish from one tagged or labeled container shall not be commingled with molluscan shellfish from another container with different certification numbers, different harvest dates, or different growing areas identified on the tag or label before being ordered by the consumer.^Pf

C. For display purposes, shellstock or in-shell product may be removed from the container in which they are received, displayed on drained ice, or held in a display container, and a quantity specified by a consumer may be removed from the display or display container and provided to the consumer if:

1. The source of the shellstock or in-shell product on display is identified as specified under 2VAC5-585-410 2VAC5-585-400 and recorded as specified under 2VAC5-585-440; and

2. The shellstock or in-shell product are protected from contamination.

C. D. Shucked shellfish may be removed from the container in which they were received and held in a display container from which individual servings are dispensed upon a consumer's request if:

1. The labeling information for the shellfish on display as specified under 2VAC5-585-400 is retained and correlated to the date when, or dates during which, the shellfish are sold or served; and

2. The shellfish are protected from contamination.

D. E. Shucked shellfish may be removed from the container in which they were received and repacked in consumer self-service containers where allowed by law if:

1. The labeling information for the shellfish is on each consumer self-service container as specified under 2VAC5-585-400 and 2VAC5-585-900 A and B 1 through 5;

2. The labeling information as specified under 2VAC5-585-400 is retained and correlated with the date when, or dates during which, the shellfish are sold or served;

3. The labeling information and dates specified under subdivision 2 of this subsection are maintained for 90 days; and

4. The shellfish are protected from contamination.

2VAC5-585-440. Shellstock; Molluscan shellfish, maintaining identification.

A. Except as specified under subdivision C 2 of this section, shellstock molluscan shellfish tags or labels shall remain attached to the container in which the shellstock are received until the container is empty.^Pf

B. The date when the last shellstock molluscan shellfish from the container is sold or served shall be recorded on the tag or, label, or invoice.^Pf

C. The identity of the source of shellstock molluscan shellfish that are sold or served shall be maintained by retaining shellstock product tags or, labels, or invoices for 90 calendar days from the date that is recorded on the tag or, label, or invoice as specified in subsection B of this section by:^Pf

1. Using an approved recordkeeping system that keeps the tags or, labels, or invoices in chronological order correlated to the date that is recorded on the tag or, label, or invoice as specified under subsection B of this section;^Pf and

2. If shellstock, shucked shellfish, or in-shell product are removed from its tagged or labeled container:

a. Preserving source identification by using a recordkeeping system as specified under subdivision 1 of this subsection;^Pf and

b. Ensuring that shellstock or, shucked shellfish, or in-shell product from one tagged or labeled container are not commingled with shellstock or, shucked shellfish, or in-shell product from another container with different certification numbers; different harvest dates; or different growing areas as identified on the tag or label before being ordered by the consumer.^Pf

2VAC5-585-445. Food donation.

Food stored, prepared, packaged, displayed, and labeled in accordance with the law and this chapter may be offered for donation.

2VAC5-585-450. Preventing contamination from hands.

A. Food employees shall wash their hands as specified under 2VAC5-585-140.

B. Except when washing fruits and vegetables as specified under 2VAC5-585-510 or as specified in subsections D and E of this section, food employees may not contact exposed, ready-to-eat food with their bare hands and shall use suitable utensils such as deli tissue, spatulas, tongs, single-use gloves, or dispensing equipment.^P

C. Food employees shall minimize bare hand and arm contact with exposed food that is not in a ready-to-eat form. ^Pf

D. Subsection B of this section does not apply to a food employee who contacts exposed, ready-to-eat food with bare hands at the time the ready-to-eat food is being added as an ingredient to food that:

1. Contains a raw animal food and is to be cooked in the food establishment to heat all parts of the food to the minimum temperatures specified in 2VAC5-585-700 A and B or 2VAC5-585-710; or

2. Does not contain a raw animal food but is to be cooked in the food establishment to heat all parts of the food to a temperature of at least 145°F (63°C).

E. Food employees not serving a highly susceptible population may contact exposed, ready-to-eat food with their bare hands if:

1. The operator permit holder obtains prior approval from the department;

2. Written procedures are maintained in the food establishment and made available to the department upon request that include:

a. For each bare hand contact procedure, a listing of the specific ready-to-eat foods that are touched by bare hands; and

b. Diagrams and other information showing that handwashing facilities, installed, located, equipped, and maintained as specified under 2VAC5-585-2230, 2VAC5-585-2280, 2VAC5-585-2310, 2VAC5-585-3020, 2VAC5-585-3030, and 2VAC5-585-3045, are in an easily accessible location and in close proximity to the work station where the bare hand contact procedure is conducted;

3. A written employee health policy that details how the food establishment complies with 2VAC5-585-80, 2VAC5-585-90, and 2VAC5-585-100 including:

a. Documentation that the food employees and conditional employees acknowledge that they are informed to report information about their health and activities as they relate to gastrointestinal symptoms and diseases that are transmittable through food as specified under 2VAC5-585-80 A;

b. Documentation that food employees and conditional employees acknowledge their responsibilities as specified under 2VAC5-585-80 E and F; and

c. Documentation that the person in charge acknowledges the responsibilities as specified under 2VAC5-585-80 B, C, and D, 2VAC5-585-90, and 2VAC5-585-100;

4. Documentation that the food employees acknowledge that they have received training in:

a. The risks of contacting the specific ready-to-eat foods with their bare hands,

b. Proper handwashing as specified under 2VAC5-585-140,

c. When to wash their hands as specified under 2VAC5-585-160,

d. Where to wash their hands as specified under 2VAC5-585-170,

e. Proper fingernail maintenance as specified under 2VAC5-585-190,

f. Prohibition of jewelry as specified under 2VAC5-585-200, and

g. Good hygienic practices as specified under 2VAC5-585-220 and 2VAC5-585-230;

5. Documentation that hands are washed before food preparation and as necessary to prevent cross-contamination by food employees as specified under 2VAC5-585-130, 2VAC5-585-140, 2VAC5-585-160, and 2VAC5-585-170 during all hours of operation when the specific ready-to-eat foods are prepared;

6. Documentation that food employees contacting ready-to-eat food with bare hands use two or more of the following control measures to provide additional safeguards to hazards associated with bare hand contact:

a. Double handwashing,

b. Nail brushes,

c. A hand antiseptic after handwashing as specified under 2VAC5-585-180,

d. Incentive programs such as paid sick leave that assist or encourage food employees not to work when they are ill, or

e. Other control measures approved by the department; and

7. Documentation that corrective action is taken when subdivisions 1 through 6 of this subsection are not followed.

2VAC5-585-510. Washing fruits and vegetables.

A. Except as specified in subsection B of this section and except for whole, raw fruits and vegetables that are intended for washing by the consumer before consumption, raw fruits and vegetables shall be thoroughly washed in water to remove soil and other contaminants before being cut, combined with other ingredients, cooked, served, or offered for human consumption in ready-to-eat form.

B. Fruits and vegetables may be washed by using chemicals as specified under 2VAC5-585-3390, and a test kit or other device that accurately measures the active ingredient concentration of the fruit and vegetable wash solution may be provided by the manufacturer of the wash solution.

C. Devices used for onsite generation of chemicals meeting the requirements specified in 21 CFR 173.315 for the washing of raw, whole fruits and vegetables shall be used in accordance with the manufacturer's instructions.^Pf

2VAC5-585-620. Food storage; prohibited areas.

Food may not be stored:

1. In locker rooms;

2. In toilet rooms;^Pf

3. In dressing rooms;

4. In garbage rooms;

5. In mechanical rooms;

6. Under sewer lines that are not shielded to intercept potential drips;

7. Under leaking water lines, including leaking automatic fire sprinkler heads, or under lines on which water has condensed;

8. Under open stairwells; or

9. Under other sources of contamination.

2VAC5-585-700. Raw animal foods.

A. Except as specified in subsections B, C, and D of this section, raw animal foods such as eggs, fish, meat, poultry, and foods containing these raw animal foods shall be cooked to heat all parts of the food to a temperature and for a time that complies with one of the following methods based on the food that is being cooked:

1. 145°F (63°C) or above for 15 seconds for:^P

a. Raw eggs that are broken and prepared in response to a consumer's order and for immediate service;^P and

b. Except as specified under subdivisions A 2 and 3 and subsections B and C of this section, fish and intact meat, including game animals commercially raised for food and under a voluntary inspection program as specified under 2VAC5-585-330 A 1;^P

2. 155°F (68°C) for 17 seconds or the temperature specified in the following chart that corresponds to the holding time for ratites, mechanically tenderized, and injected meats and nonintact meats; the following if they are comminuted: fish, meat, and game animals commercially raised for food and under a voluntary inspection program as specified under 2VAC5-585-330 A 1; and raw eggs that are not prepared as specified under subdivision A 1 a of this section:^P

Minimum
Temperature °F (°C)	Time
145 (63)	3 minutes
150 (66)	1 minute
158 (70)	<1 second (instantaneous)

3. 165°F (74°C) or above for less than one second (instantaneous) for poultry, baluts, wild game animals as specified under 2VAC5-585-330 A 2 and 3, commercially raised rabbits as specified under 2VAC5-585-330 C, stuffed fish, stuffed meat, stuffed pasta, stuffed poultry, stuffed ratites, or stuffing containing fish, meat, poultry, or ratites.^P

B. Whole meat roasts including beef, corned beef, lamb, pork, and cured pork roasts such as ham shall be cooked:

1. As specified in the following chart, to heat all parts of the food to a temperature and for the holding time that corresponds to that temperature; ^P and

Temperature °F (°C)	Time1 in Minutes	Temperature °F (°C)	Time1 in Seconds
130 (54.4)	112	147 (63.9)	134
131 (55.0)	89	149 (65.0)	85
133 (56.1)	56	151 (66.1)	54
135 (57.2)	36	153 (67.2)	34
136 (57.8)	28	155 (68.3)	22
138 (58.9)	18	157 (69.4)	14
140 (60.0)	12	158 (70.0)	0
142 (61.1)	8
144 (62.2)	5
145 (62.8)	4
1Holding time may include postoven heat rise.

2. If cooked in an oven, use an oven that is preheated to the temperature specified for the roast's weight in the following chart and that is held at that temperature;^Pf

Oven Type	Oven Temperature Based on Roast Weight
	Less than 10 lbs (4.5 kg)	10 lbs (4.5 kg) or more
Still Dry	350°F (177°C) or more	250°F (121°C) or more
Convection	325°F (163°C) or more	250°F (121°C) or more
High Humidity1	250°F (121°C) or less	250°F (121°C) or less
1Relative humidity greater than 90% for at least one hour as measured in the cooking chamber or exit of the oven; or in a moisture-impermeable bag that provides 100% humidity

C. A raw or undercooked whole-muscle, intact beef steak may be served or offered for sale in a ready-to-eat form if:

1. The food establishment serves a population that is not a highly susceptible population;

2. The steak is labeled, as specified under 2VAC5-585-270 E, to indicate that it meets the definition of whole-muscle, intact beef prepared so that it remains intact; and

3. The steak is cooked on both the top and bottom to a surface temperature of 145°F (63°C) or above and a cooked color change is achieved on all external surfaces.

D. A raw animal food such as raw egg, raw fish, raw-marinated fish, raw molluscan shellfish, or steak tartare or a partially cooked food such as lightly cooked fish, soft cooked eggs, or rare meat other than whole-muscle, intact beef steaks as specified in subsection C of this section may be served or offered for sale upon consumer request or selection in a ready-to-eat form if:

1. As specified under subdivisions 3 a and 3 b of 2VAC5-585-950, the food establishment serves a population that is not a highly susceptible population;

2. The food, if served or offered for service by consumer selection from a children's menu, does not contain comminuted meat;^Pf and

3. The consumer is informed as specified under 2VAC5-585-930 that to ensure its safety, the food should be cooked as specified under subsection A or B of this section; or

4. The department grants a variance from subsection A or B of this section as specified in 2VAC5-585-3540 based on a HACCP plan that:

a. Is submitted by the operator permit holder and approved as specified under 2VAC5-585-3541;

b. Documents scientific data or other information showing that a lesser time and temperature regimen results in a safe food; and

c. Verifies that equipment and procedures for food preparation and training of food employees at the food establishment meet the conditions of the variance.

2VAC5-585-725. Noncontinuous cooking of raw animal foods.

Raw animal foods that are cooked using a noncontinuous cooking process shall be:

1. Subject to an initial heating process that is no longer than 60 minutes in duration;^P

2. Immediately after initial heating, cooled according to the time and temperature parameters specified for cooked time/temperature control for safety food under 2VAC5-585-800 A;^P

3. After cooling, held frozen or cold as specified for time/temperature control for safety food under 2VAC5-585-820 A 2;^P

4. Prior to sale or service, cooked using a process that heats all parts of the food to a temperature and for a time as designated in 2VAC5-585-700 A through C;^P

5. Cooled according to the time and temperature parameters specified for cooked time/temperature control for safety food under 2VAC5-585-800 A if not either hot held as specified under 2VAC5-585-820 A 1, served immediately, or held using time as a public health control as specified under 2VAC5-585-850 after complete cooking;^P and

6. Prepared and stored according to written procedures that:

a. Have obtained prior approval from the department;^Pf

b. Are maintained in the food establishment and are available to the department upon request;^Pf

c. Describe how the requirements specified under subdivisions 1 through 5 of this section are to be monitored and documented by the operator permit holder and the corrective actions to be taken if the requirements are not met;^Pf

d. Describe how the foods, after initial heating but prior to complete cooking, are to be marked or otherwise identified as foods that must be cooked as specified under subdivision 4 of this section prior to being offered for sale or service;^Pf and

e. Describe how the foods, after initial heating but prior to cooking as specified in subdivision 4 of this section, are to be separated from ready-to-eat foods as specified under 2VAC5-585-470 A.^Pf

2VAC5-585-726. Manufacturer cooking instructions.

A. Commercially packaged food that bears a manufacturer's cooking instructions shall be cooked according to those instructions before it is used in ready-to-eat foods or offered in unpackaged form for human consumption, unless the manufacturer's instructions specify that the food may be consumed without cooking.^P

B. Food for which the manufacturer has provided information that the food has not been processed to control pathogens, when used in ready-to-eat foods or offered for human consumption, shall be cooked according to a time and temperature appropriate for the food.^P

2VAC5-585-790. Thawing.

A. Except as specified in subdivision 4 of this subsection, time/temperature control for safety food shall be thawed:

1. Under refrigeration that maintains the food temperature at 41°F (5°C) or less;^Pf

2. Completely submerged under running water:

a. At a water temperature of 70°F (21°C) or below;^Pf

b. With sufficient water velocity to agitate and float off loose particles in an overflow;^Pf and

c. For a period of time that does not allow thawed portions of ready-to-eat food to rise above 41°F (5°C);^Pf or

d. For a period of time that does not allow thawed portions of a raw animal food requiring cooking as specified under 2VAC5-585-700 A or B to be above 41°F (5°C) for more than four hours including:

(1) The time the food is exposed to the running water and the time needed for preparation for cooking;^Pf or

(2) The time it takes under refrigeration to lower the food temperature to 41°F (5°C);^Pf

3. As part of a cooking process if the food that is frozen is:

a. Cooked as specified under 2VAC5-585-700 A or B or, 2VAC5-585-710, or 2VAC5-585-726;^Pf or

b. Thawed in a microwave oven and immediately transferred to conventional cooking equipment, with no interruption in the process;^Pf or

4. Using any procedure if a portion of frozen ready-to-eat food is thawed and prepared for immediate service in response to an individual consumer's order.

B. Reduced oxygen packaged fish that bears a label indicating that it is to be kept frozen until time of use shall be removed from the reduced oxygen environment:

1. Prior to its thawing under refrigeration as specified in subdivision A 1 of this section; or

2. Prior to, or immediately upon completion of, its thawing using procedures specified in subdivision A 2 of this section.

2VAC5-585-830. Ready-to-eat, time/temperature control for safety food; date marking.

A. Except when packaging food using a reduced oxygen packaging method as specified under 2VAC5-585-870 and except as specified in subsections E and F of this section, refrigerated, ready-to-eat, time/temperature control for safety food prepared and held in a food establishment for more than 24 hours shall be clearly marked to indicate the date or day by which the food shall be consumed on the premises, sold, or discarded when held at a temperature of 41°F (5°C) or less for a maximum of seven days. The day of preparation shall be counted as day one.^Pf

B. Except as specified in subsections E, F, and G of this section, refrigerated, ready-to-eat, time/temperature control for safety food prepared and packaged by a food processing plant shall be clearly marked, at the time the original container is opened in a food establishment and if the food is held for more than 24 hours, to indicate the date or day by which the food shall be consumed on the premises, sold, or discarded, based on the temperature and time combinations specified in subsection A of this section and:^Pf

1. The day the original container is opened in the food establishment shall be counted as day one;^Pf and

2. The day or date marked by the food establishment may not exceed a manufacturer's use-by date if the manufacturer determined the use-by date based on food safety.^Pf

C. A refrigerated, ready-to-eat, time/temperature control for safety food ingredient or a portion of a refrigerated, ready-to-eat, time/temperature control for safety food that is subsequently combined with additional ingredients or portions of food shall retain the date marking of the earliest-prepared or first-prepared ingredient.^Pf

D. A date marking system that meets the criteria stated in subsections A and B of this section may include:

1. Using a method approved by the department for refrigerated, ready-to-eat, time/temperature control for safety food that is frequently rewrapped, such as lunchmeat or a roast, or for which date marking is impractical, such as soft-serve mix or milk in a dispensing machine;

2. Marking the date or day of preparation, with a procedure to discard the food on or before the last date or day by which the food must be consumed on the premises, sold, or discarded as specified in subsection A of this section;

3. Marking the date or day the original container is opened in a food establishment, with a procedure to discard the food on or before the last date or day by which the food must be consumed on the premises, sold, or discarded as specified under subsection B of this section; or

4. Using calendar dates, days of the week, color-coded marks, or other effective marking methods, provided that the marking system is disclosed to the department upon request.

E. Subsections A and B of this section do not apply to individual meal portions served or repackaged for sale from a bulk container upon a consumer's request.

F. Subsections A and B of this section do not apply to shellstock.

G. Subsection B of this section does not apply to the following foods prepared and packaged by a food processing plant inspected by a regulatory authority:

1. Deli salads, such as ham salad, seafood salad, chicken salad, egg salad, pasta salad, potato salad, and macaroni salad, manufactured in accordance with 21 CFR Part 110 117;

2. Hard cheeses containing not more than 39% moisture as defined in 21 CFR Part 133, such as cheddar, gruyere, parmesan and reggiano, and romano;

3. Semi-soft cheese containing more than 39% moisture, but not more than 50% moisture, as defined in 21 CFR Part 133, such as blue, edam, gorgonzola, gouda, and Monterey Jack;

4. Cultured dairy products as defined in 21 CFR Part 131, such as yogurt, sour cream, and buttermilk;

5. Preserved fish products, such as pickled herring and dried or salted cod, and other acidified fish products as defined in 21 CFR Part 114;

6. Shelf stable, dry fermented sausages, such as pepperoni and Genoa; and

7. Shelf stable salt-cured products such as prosciutto and Parma (ham).

2VAC5-585-850. Time as a public health control.

A. Except as specified under subsection D of this section, if time without temperature control is used as the public health control for a working supply of time/temperature control for safety food before cooking, or for ready-to-eat, time/temperature control for safety food that is displayed or held for sale or service, written procedures shall be prepared in advance, maintained in the food establishment, and made available to the department upon request that specify:^Pf

1. Methods of compliance with subsection B or C of this section;^Pf and

2. Methods of compliance with 2VAC5-585-800 for food that is prepared, cooked, and refrigerated before time is used as a public health control.^Pf

B. If time without temperature control is used as the public health control up to a maximum of four hours:

1. Except as specified in subdivision B 2 of this section, the food shall have an initial temperature of 41°F (5°C) or less when removed from cold holding temperature control, 135°F (57°C) or greater when removed from hot-holding temperature control;^P

2. The food may have an initial temperature of 70°F (21°C) or less if:

a. It is a ready-to-eat (i) fruit or vegetable that, upon cutting, is rendered a time/temperature control for safety food or (ii) hermetically sealed food that, upon opening, is rendered a time/temperature control for safety food;

b. The food temperature does not exceed 70°F (21°C) within a maximum time period of four hours from the time it was rendered a time/temperature control for safety food; and

c. The food is marked or otherwise identified to indicate the time that is four hours past the point in time when the food is rendered a time/temperature control for safety food as specified in subdivision B 2 a of this section.

3. The food shall be marked or otherwise identified to indicate the time that is four hours past (i) the point in time when the food is removed from temperature control or (ii) the time that the food becomes a time/temperature control for safety food;^Pf

4. The food shall be cooked and served; served at any temperature, if ready-to-eat; or discarded within four hours from the point in time when the food is removed from temperature control;^P and

5. The food in unmarked containers or packages or marked to exceed a four-hour limit shall be discarded.^P

C. If time without temperature control is used as the public health control up to a maximum of six hours:

1. The food shall have an initial temperature of 41°F (5°C) or less when removed from temperature control and the food temperature may not exceed 70°F (21°C) within a maximum time period of six hours;^P

2. The food shall be monitored to ensure the warmest portion of the food does not exceed 70°F (21°C) during the six-hour period, unless an ambient air temperature is maintained that ensures the food does not exceed 70°F (21°C) during the six-hour holding period;^Pf

3. The food shall be marked or otherwise identified to indicate:^Pf

a. The time when the food is removed from 41°F (5°C) or less cold holding temperature control;^Pf and

b. The time that is six hours past the point in time when the food is removed from 41°F (5°C) or less cold holding temperature control;^Pf

4. The food shall be:

a. Discarded if the temperature of the foods exceeds 70°F (21°C);^P or

b. Cooked and served, served at any temperature if ready-to-eat, or discarded within a maximum of six hours from the point in time when the food is removed from 41°F (5°C) or less cold holding temperature control;^P and

5. The food in unmarked containers or packages, or marked with a time that exceeds the six-hour limit shall be discarded.^P

D. A food establishment that serves a highly susceptible population may not use time as specified under subsection A, B, or C of this section as the public health control for raw eggs.

2VAC5-585-870. Reduced oxygen packaging without a variance; criteria.

A. Except for a food establishment that obtains a variance as specified under 2VAC5-585-860, a food establishment that packages time/temperature control for safety food using a reduced oxygen packaging method shall control the growth and toxin formation of Clostridium botulinum and the growth of Listeria monocytogenes.^P

B. Except as specified in subsection E of this section, a food establishment that packages time/temperature control for safety food using a reduced oxygen packaging method shall implement a HACCP plan that contains the information specified under 2VAC5-585-3630 and that:^Pf

1. Identifies the food to be packaged;^Pf

2. Except as specified in subsections C and D of this section, requires that the packaged food shall be maintained at 41°F (5°C) or less and meet at least one of the following criteria:^Pf

a. Has an A_w of 0.91 or less,^Pf

b. Has a pH of 4.6 or less,^Pf

c. Is a meat or poultry product cured at a food processing plant regulated by the USDA using substances specified in 9 CFR 424.21 and is received in an intact package,^Pf

d. Is a food with a high level of competing organisms such as raw meat, raw poultry, or raw vegetables;^Pf or

e. Is a cheese that is commercially manufactured in a food processing plant with no ingredients added in the food establishment and that meets the Standards of Identity as specified in 21 CFR 133.150, 21 CFR 133.169, or 21 CFR 133.187;^P

3. Describes how the package shall be prominently and conspicuously labeled on the principal display panel in bold type on a contrasting background, with instruction to:^Pf

a. Maintain the food at 41°F (5°C) or below;^Pf and

b. Discard the food within 30 calendar days of its packaging if it is not served for on-premises consumption, or consumed if served or sold for off-premises consumption;^Pf

2. 4. Limits the refrigerated shelf life to no more than 30 calendar days from packaging to consumption, except the time the product is maintained frozen, or the original manufacturer's "sell by" or "use by" date, whichever occurs first;^P

3. 5. Includes operational procedures that:

a. Prohibit contacting ready-to-eat food with bare hands as specified under 2VAC5-585-450 B;^Pf

b. Identify a designated work area and the method by which:^Pf

(1) Physical barriers or methods of separation of raw foods and ready-to-eat foods minimize cross contamination,;^Pf and

(2) Access to the processing equipment is limited to responsible trained personnel familiar with the potential hazards of the operation;^Pf and

c. Delineate cleaning and sanitization procedures for food-contact surfaces;^Pf and

d. Describe how the package shall be prominently and conspicuously labeled on the principal display panel in bold type on a contrasting background, with instructions to:^Pf

(1) Maintain the food at 41°F (5°C) or below,^Pf and

(2) Discard the food if, within 30 calendar days of its packaging, it is not served for on-premises consumption or consumed, if served or sold for off-premises consumption; ^Pf

4. 6. Describes the training program that ensures that the individual responsible for the reduced oxygen packaging operation understands the:^Pf

a. Concepts required for safe operation;^Pf

b. Equipment and facilities;^Pf and

c. Procedures specified under subdivision 3 of this subsection and 2VAC5-585-3630;^Pf and

5. 7. Is provided to the department prior to implementation as specified under subsection B of 2VAC5-585-3620.

C. Except for fish that is frozen before, during, and after packaging and that bears a label indicating that it is to be kept frozen until time of use, a food establishment may not package fish using a reduced oxygen packaging method.^P

D. Except as specified in subsections C and E F of this section, a food establishment that packages time/temperature control for safety food using a cook-chill or sous vide process shall:

1. Provide to the department prior to implementation, a HACCP plan that contains the information as specified under 2VAC5-585-3630;^Pf

2. Ensure the food is:

a. Prepared and consumed on the premises, or prepared and consumed off the premises but within the same business entity with no distribution or sale of the packaged product to another business entity or the consumer;^Pf

b. Cooked to heat all parts of the food to a temperature and for a time as specified under 2VAC5-585-700 A, B, and C;^P

c. Protected from contamination before and after cooking as specified in 2VAC5-585-450 through 2VAC5-585-765;^P

d. Placed in a package with an oxygen barrier and sealed before cooking, or placed in a package and sealed immediately after cooking, and before reaching a temperature below 135°F (57°C);^P

e. Cooled to 41°F (5°C) in the sealed package or bag as specified under 2VAC5-585-800 and ^P

(1) Cooled to 34°F (1°C) within 48 hours of reaching 41°F (5°C) and held at that temperature until consumed or discarded within 30 calendar days after the date of packaging;^P

(2) Held at 41°F (5°C) or less for no more than seven calendar days, at which time the food must be consumed or discarded;^P

(3) Cooled to 34°F (1°C) within 48 hours of reaching 41°F (5°C), removed from refrigeration equipment that maintains a 34°F (1°C) food temperature, and then held at 41°F (5°C) or less for no more than seven calendar days, not to exceed 30 calendar days from its date of packaging, at which time the food must be consumed or discarded;^P or

(4) Held frozen with no shelf-life restriction while frozen until consumed or used;^P

f. Held in a refrigeration unit that is equipped with an electronic system that continuously monitors time and temperature and is visually examined for proper operation twice daily;^Pf

g. If transported off-site to a satellite location of the same business entity, equipped with verifiable electronic monitoring devices to ensure that times and temperatures are monitored during transportation;^Pf and

h. Labeled with the product name and the date packaged;^Pf and

3. Maintain the records required to confirm that cooling and cold holding refrigeration time/temperature parameters are required as part of the HACCP plan and:

a. Make such records available to the department upon request;^Pf and

b. Hold such records for at least six months;^Pf and

4. Implement written operational procedures as specified under subdivision B 3 of this section and a training program as specified under subdivision B 4 of this section.^Pf

E. Except as specified in subsection F of this section, a food establishment that packages cheese using a reduced oxygen packaging method shall:

1. Limit the cheeses packaged to those that (i) are commercially manufactured in a food processing plant; (ii) contain no ingredients added in the food establishment; and (iii) meet the Standards of Identity as specified in 21 CFR 133.150, 21 CFR 133.169, or 21 CFR 133.187;^P

2. Have a HACCP plan that contains the information specified in subdivisions 3 and 4 of 2VAC5-585-3630 and as specified in subdivisions B 1, B 3 a, B 5, and B 6 of this section;^Pf

3. Label the package on the principal display panel with a "use by" date that does not exceed (i) 30 days from its packaging or (ii) the original manufacturer's "sell by" or "use by" date, whichever occurs first;^Pf and

4. Discard the reduced oxygen packaged cheese if it is not sold for off-premises consumption or consumed within 30 calendar days of its packaging.^Pf

F. A HACCP plan is not required when a food establishment uses a reduced oxygen packaging method to package time/temperature control for safety food that is always:

1. Labeled with the production time and date;

2. Held at 41°F (5°C) or less during refrigerated storage; and

3. Removed from its packaging in the food establishment within 48 hours after packaging.

2VAC5-585-900. Food labels.

A. Food packaged in a food establishment shall be labeled as specified in law, including 21 CFR Part 101 and 9 CFR Part 317.

B. Label information shall include:

1. The common name of the food, or absent a common name, an adequately descriptive identity statement;

2. If made from two or more ingredients, a list of ingredients and subingredients in descending order of predominance by weight, including a declaration of artificial colors, artificial flavors, and chemical preservatives, if contained in the food;

3. An accurate declaration of the net quantity of contents;

4. The name and place of business of the manufacturer, packer, or distributor;

5. The name of the food source for each major food allergen contained in the food unless the food source is already part of the common or usual name of the respective ingredient;^Pf

6. Except as exempted in the Federal Food, Drug, and Cosmetic Act 21 USC § 403(g)(3) through (5), nutrition labeling as specified in 21 CFR Part 101 and 9 CFR Part 317, Subpart B; and

7. For any salmonid fish containing canthaxanthin or astaxanthin as a color additive, the labeling of the bulk fish container, including a list of ingredients, displayed on the retail container or by other written means, such as a counter card, that discloses the use of canthaxanthin or astaxanthin.

C. Bulk food that is available for consumer self-dispensing shall be prominently labeled with the following information in plain view of the consumer:

1. The manufacturer's or processor's label that was provided with the food; or

2. A card, sign, or other method of notification that includes the information specified under subdivisions B 1, 2, 5, and 6 of this section.

D. Bulk, unpackaged foods such as bakery products and unpackaged foods that are portioned to consumer specification need not be labeled if:

1. A health, nutrient content, or other claim is not made;

2. There are no state or local laws requiring labeling; and

3. The food is manufactured or prepared on the premises of the food establishment or at another food establishment or a food processing plant that is owned by the same person and is regulated by the food regulatory agency that has jurisdiction.

2VAC5-585-910. Other forms of information.

A. If required by law, consumer warnings shall be provided.

B. Food establishment or manufacturers' dating information on foods may not be concealed or altered.

C. The permit holder shall notify consumers by written notification of the presence of major allergens as an ingredient in unpackaged food items that are served or sold to the consumer.

2VAC5-585-930. Consumer advisory; consumption of animal foods that are raw, undercooked, or not otherwise processed to eliminate pathogens.

A. Except as specified in 2VAC5-585-700 C and 2VAC5-585-700 D 4 and under subdivision 3 of 2VAC5-585-950, if an animal food such as beef, eggs, fish, lamb, milk, pork, poultry, or shellfish is served or sold raw, undercooked, or without otherwise being processed to eliminate pathogens, either in ready-to-eat form or as an ingredient in another ready-to-eat food, the operator permit holder shall inform consumers of the significantly increased risk of consuming such foods by way of a disclosure and reminder, as specified in subsections B and C of this section, using brochures, deli case or menu advisories, label statements, table tents, placards, or other effective written means.^Pf

B. Disclosure shall include:

1. A description of the animal-derived foods, such as "oysters on the half shell (raw oysters)," "raw-egg Caesar salad," and "hamburgers (can be cooked to order)";^Pf or

2. Identification of the animal-derived foods by asterisking them to a footnote that states that the items are served raw or undercooked, or contain (or may contain) raw or undercooked ingredients.^Pf

C. Reminder shall include asterisking the animal-derived foods requiring disclosure to a footnote that states:

1. Regarding the safety of these items, written information is available upon request;^Pf

2. Consuming raw or undercooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness;^Pf or

3. Consuming raw or undercooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness, especially if you have certain medical conditions.^Pf

2VAC5-585-950. Pasteurized foods, prohibited reservice, and prohibited food.

In a food establishment that serves a highly susceptible population:

1. The following criteria apply to juice:

a. For the purposes of subdivision 1 of this section only, children who are age nine years or younger and receive food in a school, day care setting, or similar facility that provides custodial care are included as highly susceptible populations;

b. Prepackaged juice or a prepackaged beverage containing juice that bears a warning label as specified in 21 CFR 101.17(g) or a packaged juice or beverage containing juice that bears a warning label as specified under subdivision 2 of 2VAC5-585-765 may not be served or offered for sale;^P and

c. Unpackaged juice that is prepared on the premises for service or sale in a ready-to-eat form shall be processed under a HACCP plan that contains the information specified in 2VAC5-585-3630 and as specified in 21 CFR 120.24.^P

2. Pasteurized eggs or egg products shall be substituted for raw eggs in the preparation of:^P

a. Foods such as Caesar salad, hollandaise or béarnaise sauce, mayonnaise, meringue, eggnog, ice cream, and egg-fortified beverages;^P and

b. Except as specified in subdivision 6 of this section, recipes in which more than one egg is broken and the eggs are combined.^P

3. The following foods may not be served or offered for sale in a ready-to-eat form:^P

a. Raw animal foods such as raw fish, raw-marinated fish, raw molluscan shellfish, and steak tartare;^P

b. A partially cooked animal food such as lightly cooked fish, rare meat, soft-cooked eggs that are made from raw eggs, and meringue;^P and

c. Raw seed sprouts.;^P and

d. Packaged foods subject to 2VAC5-585-726 that are not cooked in accordance with that section.

4. Food employees may not contact ready-to-eat food as specified in 2VAC5-585-450 B and E.^P

5. Time only, as the public health control as specified under 2VAC5-585-850 D, may not be used for raw eggs.^P

6. Subdivision 2 b of this section does not apply if:

a. The raw eggs are combined immediately before cooking for one consumer's serving at a single meal, cooked as specified under 2VAC5-585-700 A 1, and served immediately, such as an omelet, soufflé, or scrambled eggs;

b. The raw eggs are combined as an ingredient immediately before baking and the eggs are thoroughly cooked to a ready-to-eat form, such as a cake, muffin, or bread; or

c. The preparation of the food is conducted under a HACCP plan that:

(1) Identifies the food to be prepared;

(2) Prohibits contacting ready-to-eat food with bare hands;

(3) Includes specifications and practices that ensure:

(a) Salmonella Enteritidis growth is controlled before and after cooking; and

(b) Salmonella Enteritidis is destroyed by cooking the eggs according to the temperature and time specified in 2VAC5-585-700 A 2;

(4) Contains the information specified under subdivision 5 of 2VAC5-585-3630 including procedures that:

(a) Control cross contamination of ready-to-eat food with raw eggs; and

(b) Delineate cleaning and sanitization procedures for food-contact surfaces; and

(5) Describes the training program that ensures that the food employee responsible for the preparation of the food understands the procedures to be used.

7. Except as specified in subdivision 8 of this section, food may be re-served as specified under 2VAC5-585-680 B 1 and 2.

8. Food may not be re-served under the following conditions:

a. Any food served to patients or clients who are under contact precautions in medical isolation or quarantine, or protective environment isolation may not be re-served to others outside.

b. Packages of food from any patients, clients, or other consumers should not be re-served to persons in protective environment isolation.

2VAC5-585-1300. Molluscan shellfish tanks.

A. Except as specified under subsection B of this section, molluscan shellfish life support system display tanks may not be used to store or display shellfish that are offered for human consumption and shall be conspicuously marked so that it is obvious to consumers that the shellfish are for display only.^P

B. Molluscan shellfish life-support system display tanks that are used to store or display shellfish that are offered for human consumption shall be operated and maintained in accordance with a variance granted by the department as specified in 2VAC5-585-3540 and a HACCP plan that:^Pf

1. Is submitted by the operator permit holder and approved as specified under 2VAC5-585-3541;^Pf and

2. Ensures that:

a. Water used with fish other than molluscan shellfish does not flow into the molluscan tank;^Pf

b. The safety and quality of the shellfish as they were received are not compromised by the use of the tank;^Pf and

c. The identity of the source of the shellstock is retained as specified under 2VAC5-585-440.^Pf

2VAC5-585-1460. Manual warewashing, sink compartment requirements.

A. Except as specified in subsection C of this section, a sink with at least three compartments shall be provided for manually washing, rinsing, and sanitizing equipment and utensils.^Pf

B. Sink compartments shall be large enough to accommodate immersion of the largest equipment and utensils. If equipment or utensils are too large for the warewashing sink, a warewashing machine or alternative equipment as specified in subsection C of this section shall be used.^Pf

C. Alternative manual warewashing equipment may be used when there are special cleaning needs or constraints and its use is approved. Alternative manual warewashing equipment may include:

1. High-pressure detergent sprayers;

2. Low-pressure or line-pressure spray detergent foamers;

3. Other task-specific cleaning equipment;

4. Brushes or other implements;

5. Two-compartment sinks as specified under subsections D and E of this section; or

6. Receptacles that substitute for the compartments of a multicompartment sink.

D. Before a two-compartment sink is used:

1. The operator permit holder shall have its use approved; and

2. The operator permit holder shall limit the number of kitchenware items cleaned and sanitized in the two-compartment sink, shall limit warewashing to batch operations for cleaning kitchenware such as between cutting one type of raw meat and another or cleanup at the end of a shift, and shall:

a. Make up the cleaning and sanitizing solutions immediately before use and drain them immediately after use; and

b. Use a detergent-sanitizer to sanitize and apply the detergent-sanitizer in accordance with the manufacturer's label instructions and as specified under 2VAC5-585-1710; or

c. Use a hot water sanitization immersion step as specified under subdivision 3 of 2VAC5-585-1860.

E. A two-compartment sink may not be used for warewashing operations where cleaning and sanitizing solutions are used for a continuous or intermittent flow of kitchenware or tableware in an ongoing warewashing process.

2VAC5-585-1540. Equipment, clothes washers and dryers, and storage cabinets, contamination prevention.

A. Except as specified in subsection B of this section, equipment, a cabinet used for the storage of food, or a cabinet used to store cleaned and sanitized equipment, utensils, laundered linens, and single-service and single-use articles may not be located:

1. In locker rooms;

2. In toilet rooms;^Pf

3. In garbage rooms;

4. In mechanical rooms;

5. Under sewer lines that are not shielded to intercept potential drips;

6. Under leaking water lines including leaking automatic fire sprinkler heads or under lines on which water has condensed;

7. Under open stairwells; or

8. Under other sources of contamination.

B. A storage cabinet used for linens or single-service or single-use articles may be stored in a locker room.

C. If a mechanical clothes washer or dryer is provided, it shall be located (i) so that the washer or dryer is protected from contamination and (ii) only where there is no exposed food; clean equipment, utensils, and linens; or unwrapped single-service and single-use articles.

2VAC5-585-1700. Manual and mechanical warewashing equipment, chemical sanitization - temperature, pH, concentration, and hardness.

A chemical sanitizer used in a sanitizing solution for a manual or mechanical operation at contact times specified under subdivision 3 of 2VAC5-585-1900 shall meet the criteria specified under 2VAC5-585-3380, shall be used in accordance with the EPA-registered label use instructions,^P and shall be used as follows:

1. A chlorine solution shall have a minimum temperature based on the concentration and pH of the solution as listed in the following chart;^P

	Minimum Concentration	Minimum Temperature
	mg/L (ppm)	pH 10 or less °F (°C)	pH 8.0 or less °F (°C)
	25-49	120 (49)	120 (49)
	50-99	100 (38)	75 (24)
	100	55 (13)	55 (13)

2. An iodine solution shall have a:

a. Minimum temperature of 68°F (20°C);^P

b. pH of 5.0 or less or a pH no higher than the level for which the manufacturer specifies the solution is effective;^P and

c. Concentration between 12.5 mg/L (ppm) and 25 mg/L (ppm);^P

3. A quaternary ammonium compound solution shall:

a. Have a minimum temperature of 75°F (24°C);^P

b. Have a concentration as specified under 2VAC5-585-3380 and as indicated by the manufacturer's use directions included in the labeling;^P and

c. Be used only in water with 500 mg/L (ppm) hardness or less or in water having a hardness no greater than specified by the EPA-registered label use instructions;^P

4. If another solution of a chemical specified under subdivisions 1 through, 2, and 3 of this section is used, the operator permit holder shall demonstrate to the department that the solution achieves sanitization and the use of the solution shall be approved;^P or

5. If a chemical sanitizer other than chlorine, iodine, or a quaternary ammonium compound is used, it shall be applied in accordance with the EPA-registered label use instructions;^P and

6. If a chemical sanitizer is generated by a device located on site at the food establishment, it shall be used as specified in subdivisions 1 through 4 of this section and shall be produced by a device that:

a. Complies with regulation as specified in §§ 2(q)(1) and 12 of the Federal Insecticide, Fungicide, and Rodenticide Act (7 USC § 136(q)(1) and 7 USC § 136j);^P

b. Complies with 40 CFR 152.500 and 40 CFR 156.10;^P

c. Displays the EPA device manufacturing facility registration number on the device;^Pf and

d. Is operated and maintained in accordance with manufacturer's instructions.^Pf

2VAC5-585-2010. Prohibitions.

A. Except as specified in subsection B of this section, cleaned and sanitized equipment, utensils, laundered linens, and single-service and single-use articles may not be stored:

1. In locker rooms;

2. In toilet rooms;^Pf

3. In garbage rooms;

4. In mechanical rooms;

5. Under sewer lines that are not shielded to intercept potential drips;

6. Under leaking water lines including leaking automatic fire sprinkler heads or under lines on which water has condensed;

7. Under open stairwells; or

8. Under other sources of contamination.

B. Laundered linens and single-service and single-use articles that are packaged or in a facility such as a cabinet may be stored in a locker room.

2VAC5-585-2100. Sampling.

A. Water from a private well shall be sampled and tested at least annually for nitrate and total coliform.^Pf

B. If nitrate, which is reported as "N" on the test results, exceeds 10 mg/L (ppm), the operator permit holder shall notify the department within 24 hours from when the operator permit holder is notified of the nitrate positive test result.^Pf

C. If a sample is total coliform positive, the positive culture medium shall be further analyzed to determine if E. coli is present. The operator permit holder shall notify the department within two calendar days from when the operator permit holder is notified of the coliform-positive test result. ^Pf

D. If E. coli is present, the operator permit holder shall notify the department within 24 hours from when the operator permit holder is notified of the E. coli positive test result.^Pf

2VAC5-585-2190. Handwashing sink, water temperature, and flow installation.

A. A handwashing sink shall be equipped to provide water at a temperature of at least 100°F (38°C) 85°F (29.4°C) through a mixing valve or combination faucet.^Pf

B. A steam mixing valve may not be used at a handwashing sink.

C. A self-closing, slow-closing, or metering faucet shall provide a flow of water for at least 15 seconds without the need to reactivate the faucet.

D. An automatic handwashing facility shall be installed in accordance with manufacturer's instructions.

2VAC5-585-3140. Employee accommodations, designated areas.

A. Areas designated for employees to eat, drink, and use tobacco products shall be located so that food, equipment, linens, and single-service and single-use articles are protected from contamination.

B. Lockers or other suitable facilities shall be located in a designated room or area where contamination of food, equipment, utensils, linens, and single-service and single-use articles cannot occur.

2VAC5-585-3150. Distressed merchandise, segregation and location.

Products that are held by the operator permit holder for credit, redemption, or return to the distributor, such as damaged, spoiled, or recalled products, shall be segregated and held in designated areas that are separated from food, equipment, utensils, linens, and single-service and single-use articles.^Pf

2VAC5-585-3310. Prohibiting animals.

A. Except as specified in subsections B, C, and D of this section, live animals may not be allowed on the premises of a food establishment.^Pf

B. Live animals may be allowed in the following situations if the contamination of food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles cannot result:

1. Edible fish or decorative fish in aquariums, shellfish or crustacea on ice or under refrigeration, and shellfish and crustacea in display tank systems;

2. Patrol dogs accompanying police or security officers in offices and dining, sales, and storage areas, and sentry dogs running loose in outside fenced areas;

3. In areas that are not used for food preparation and that are usually open for customers, such as dining and sales areas, service animals that are controlled by the disabled employee or person, if a health or safety hazard will not result from the presence or activities of the service animal;

4. Pets in the common dining areas of institutional care facilities such as nursing homes, assisted living facilities, group homes, or residential care facilities at times other than during meals if:

a. Effective partitioning and self-closing doors separate the common dining areas from food storage or food preparation areas;

b. Condiments, equipment, and utensils are stored in enclosed cabinets or removed from the common dining areas when pets are present; and

c. Dining areas including tables, countertops, and similar surfaces are effectively cleaned before the next meal service;

5. In areas that are not used for food preparation, storage, sales, display, or dining, in which there are caged animals or animals that are similarly confined, such as in a variety store that sells pets or a tourist park that displays animals; and

6. Dogs in outdoor dining areas if:

a. The outdoor dining area is not fully enclosed with floor to ceiling walls and is not considered a part of the interior physical facility.

b. The outdoor dining area is equipped with an entrance that is separate from the main entrance to the food establishment, and the separate entrance serves as the sole means of entry for patrons accompanied by dogs.

c. A sign stating that dogs are allowed in the outdoor dining area is posted at each entrance to the outdoor dining area in such a manner as to be clearly observable by the public.

d. A sign within the outdoor dining area stating the requirements as specified in subdivisions 6 e, f, and g of this subsection is provided in such a manner as to be clearly observable by the public.

e. Food and water provided to dogs is served using equipment that is not used for the service of food to a person or is served in single-use articles.

f. Dogs are not allowed on chairs, seats, benches, or tables.

g. Dogs are kept on a leash or within a pet carrier and under the control of an adult at all times.

h. The establishment provides effective means for cleaning up dog vomitus and fecal matter.

C. A dog may be allowed within a designated area inside or on the premises of, except in any area used for the manufacture of food products, a distillery, winery, farm winery, brewery, or limited brewery licensed pursuant to § 4.1-206 § 4.1-206.1 of the Code of Virginia, a winery or farm winery licensed pursuant to § 4.1-207 of the Code of Virginia, or a brewery or farm brewery licensed pursuant to § 4.1-208 of the Code of Virginia.

D. Live or dead fish bait may be stored if contamination of food; clean equipment, utensils, and linens; and unwrapped single-service and single-use articles cannot result.

2VAC5-585-3360. Conditions of use.

A. Poisonous or toxic materials shall be:

1. Used according to:

a. Law and this chapter;

b. Manufacturer's use directions included in labeling, and, for a pesticide, manufacturer's label instructions that state that use is allowed in a food establishment;^P

c. The conditions of certification, if certification is required, for use of the pest control materials;^P and

d. Additional conditions that may be established by the department; and

2. Applied so that:

a. A hazard to employees or other persons is not constituted;^P and

b. Contamination including toxic residues due to drip, drain, fog, splash, or spray on food, equipment, utensils, linens, and single-service and single-use articles is prevented, and for a restricted-use pesticide, this is achieved. Contamination shall be prevented by:^P

(1) Removing the items;^P

(2) Covering the items with impermeable covers;^P or (3) Taking taking other appropriate preventive actions;^P and

(4) (3) Cleaning and sanitizing equipment and utensils after the application.^P

B. A restricted use pesticide shall be applied only by an applicator certified as defined in 7 USC § 136(e); §§ 3.2-3929, 3.2-3930, and 3.2-3931 of the Code of Virginia (Virginia Pesticide Control Act); or a person under the direct supervision of a certified applicator.^Pf

2VAC5-585-3370. Poisonous or toxic material containers.

A container previously used to store poisonous or toxic materials may not be used to store, transport, or dispense food, equipment, utensils, linens, or single-service or single-use articles.^P

2VAC5-585-3510. Public health protection.

A. The department shall apply this chapter to promote its underlying purpose, as specified in 2VAC5-585-20, of safeguarding public health and ensuring that food is safe, unadulterated, and honestly presented when offered to the consumer or donated.

B. In enforcing the provisions of this chapter, the department shall assess existing facilities or equipment that were in use before the effective date of this chapter 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 2VAC5-585-960 through 2VAC5-585-1060;

3. Whether the capacities of cooling, heating, and holding equipment are sufficient to comply with 2VAC5-585-1450; and

4. The existence of a documented agreement with the establishment operator permit holder that the facilities or equipment will be replaced as specified in subdivision 6 7 of 2VAC5-585-3750.

2VAC5-585-3520. 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 chapter 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 establishment operator permit applicant, permit holder, or person in charge and a copy shall be maintained in the department's file for the food establishment.

2VAC5-585-3542. Conformance with approved procedures.

If the department grants a variance as specified in 2VAC5-585-3540, or a HACCP plan is otherwise required as specified under 2VAC5-585-3620, the operator permit holder shall:

1. Maintain the approved variance at the food establishment;^Pf

2. Comply with the HACCP plans and procedures that are submitted as specified under 2VAC5-585-3630 and approved as a basis for the modification or waiver;^P and

3. Maintain and provide to the department, upon request, records specified under subdivisions 5 and 6 c of 2VAC5-585-3630 that demonstrate that the following are routinely employed:

a. Procedures for monitoring 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 a critical control point.^Pf

2VAC5-585-3600. Facility and operating plans - when plans are required.

An operator A permit applicant or permit holder shall submit to the department properly prepared plans and specifications for review and approval before:

1. The construction of a food establishment;^Pf

2. The conversion of an existing structure for use as a food establishment;^Pf or

3. The remodeling of a food establishment or a change of type of food establishment or food operation if the department determines that plans and specifications are necessary to ensure compliance with this chapter.^Pf

2VAC5-585-3620. When a HACCP plan is required.

A. Before engaging in an activity that requires a HACCP plan, an operator a permit applicant or permit holder shall submit to the department for approval a properly prepared HACCP plan as specified under 2VAC5-585-3630 and the relevant provisions of this chapter if:

1. Submission of a HACCP plan is required according to law;

2. A variance is required as specified under 2VAC5-585-700 D 4, 2VAC5-585-860, or 2VAC5-585-1300 B; or

3. The department determines that a food preparation or processing method requires a variance based on a plan submittal specified under 2VAC5-585-3610, an inspectional finding, or a variance request.

B. Before engaging in reduced oxygen packaging without a variance as specified under 2VAC5-585-870, an operator a permit applicant or permit holder shall submit a properly prepared HACCP plan to the department.

2VAC5-585-3630. Contents of a HACCP plan.

For a food establishment that is required under 2VAC5-585-3620 to have a HACCP plan, the operator permit applicant or permit holder shall submit to the department a properly prepared HACCP plan that includes:

1. General information such as the name of the operator permit applicant or permit holder, the food establishment address, and contact information;

2. A categorization of the types of time/temperature control for safety foods that are to be controlled under the HACCP plan;^Pf

3. A flow diagram or chart for each specific food or category type that identifies:

a. Each step in the process;^Pf and

b. The steps that are critical control points;^Pf

4. The ingredients, recipes, or formulations; materials and equipment used in the preparation of each specific food or category type; and methods and procedural control measures that address the food safety concerns involved;^Pf

5. A critical control points summary for each specific food category type that clearly identifies:

a. Each critical control point;^Pf

b. The significant hazards for each critical control point;^Pf

c. The critical limits for each critical control point;^Pf

d. The method and frequency for monitoring and controlling each critical control point by the designated food employee or the person in charge;^Pf

e. Action to be taken by the designated food employee or person in charge if the critical limits for each critical control point are not met;^Pf

f. The method and frequency for the person in charge to routinely verify that the food employee is following standard operating procedures and monitoring critical control points;^Pf and

g. Records to be maintained by the person in charge to demonstrate that the HACCP plan is properly operated and managed;^Pf

6. Supporting documents such as:

a. Food employee and supervisory training plan and operating procedures that address the food safety issues of concern;^Pf

b. Copies of blank record forms that are necessary to implement the HACCP plan;^Pf

c. Additional scientific data or other information, as required by the department, supporting the determination that food safety is not compromised by the proposal;^Pf and

7. Any other information required by the department.

2VAC5-585-3670. Submission 30 calendar days before proposed opening.

A person seeking to operate a food establishment shall submit an application for a permit at least 30 calendar days before the date planned for opening the food establishment.

2VAC5-585-3680. Form of submission.

A person seeking to operate a food establishment shall submit to the department a written application for a permit on a form provided by the department.

2VAC5-585-3690. Qualifications and responsibilities of applicants.

To qualify for a permit, an applicant shall:

1. Be an owner of the food establishment or an officer of the establishment's legal ownership;

2. Comply with the requirements of this chapter; and

3. As specified under 2VAC5-585-3820, allow the department access to the food establishment and provide the department with required information and records.

2VAC5-585-3700. Contents of the application.

The application for a permit shall include:

1. The name, mailing address, telephone number, and signature of the person applying for the permit;

2. The name, mailing address, and location of the food establishment; and

3. Other information required by the department.

2VAC5-585-3710. New, converted, or remodeled establishments.

The department shall issue a permit to an applicant that is required to submit plans as specified in 2VAC5-585-3600 after:

1. The applicant submits a properly completed application;

2. The department reviews and approves the required plans, specifications, and information; and

3. A preoperational inspection required by 2VAC5-585-3650 shows that the establishment is built or remodeled in accordance with the approved plans and specifications and that the establishment is in compliance with this chapter.

2VAC5-585-3720. Existing establishments, change of ownership, or termination.

A. The department may issue a permit to a new owner of an existing food establishment after a properly completed application is submitted, reviewed, and approved and an inspection shows that the establishment is in compliance with this chapter.

B. An existing food establishment shall notify the department in writing of a transfer of legal ownership or termination of business operations. Such notice shall be submitted in writing to the department at least 30 days prior to the transfer of legal ownership or termination of business operation.

2VAC5-585-3740. Responsibilities of the department.

A. At the time of the initial inspection, the department shall provide to the operator permit holder a copy of this chapter so that the operator permit holder is notified of the compliance requirements and the conditions of retention, as specified under 2VAC5-585-3750, that are applicable to the food establishment.

B. Failure to provide the information specified in subsection A of this section does not prevent the department from taking authorized action or seeking remedies if the operator permit holder fails to comply with this chapter or an order, warning, or directive of the department.

2VAC5-585-3750. Responsibilities of the operator permit holder.

The operator permit holder shall:

1. Post the permit in a location in the food establishment that is conspicuous to consumers;

2. Comply with the provisions of this chapter including the conditions of a granted variance as specified under 2VAC5-585-3542 and approved plans as specified under 2VAC5-585-3610;

2. 3. If a food establishment is required under 2VAC5-585-3620 to operate under a HACCP plan, comply with the plan as specified under 2VAC5-585-3542;

3. 4. Immediately contact the department to report an illness of a food employee or conditional employee as specified under 2VAC5-585-80 B;

4. 5. Immediately discontinue operations and notify the department if an imminent health hazard may exist as specified under 2VAC5-585-3910;

5. 6. Allow authorized representatives of the commissioner access to the food establishment as specified under 2VAC5-585-3820;

6. 7. Replace existing facilities and equipment specified in 2VAC5-585-3510 with facilities and equipment that comply with this chapter if:

a. The department directs the replacement because the facilities and equipment constitute a public health hazard or nuisance or no longer comply with the criteria upon which the facilities and equipment were accepted;

b. The department directs the replacement of the facilities and equipment because of a change of ownership; or

c. The facilities and equipment are replaced in the normal course of operation;

7. 8. Comply with directives of the department, including timeframes for corrective actions specified in inspection reports, notices, orders, warnings, and other directives issued by the department in regard to the operator's permit holder's food establishment or in response to community emergencies;

8. 9. Accept notices issued and served by the department according to law;

9. 10. Be subject to the administrative, civil, injunctive, and criminal remedies authorized in law for failure to comply with this chapter or a directive of the department, including timeframes for corrective actions specified in inspection reports, notices, orders, warnings, and other directives; and

10. 11. Notify customers that a copy of the most recent establishment inspection report is available upon request by posting a sign or placard in a location in the food establishment that is conspicuous to customers or by another method acceptable to the department.

2VAC5-585-3760. Permits not transferable.

A permit shall not be transferred from:

1. One person to another person;

2. One food establishment to another food establishment; or

3. One type of food operation to another type of food operation if the food operation changes from the type of operation specified in the application as specified under 2VAC5-585-3700 and the change in operation is not approved.

2VAC5-585-3860. Documenting information and observations.

The authorized representative of the commissioner shall document:

1. Administrative information about the food establishment's legal identity, street and mailing addresses, type of establishment and operation, inspection date, and other information such as type of water supply and sewage disposal, and personnel certificates that may be required; and

2. Specific factual observations of violative conditions or other deviations from this chapter that require correction by the establishment operator permit holder, including:

a. Failure of the person in charge to demonstrate the knowledge of foodborne illness prevention, application of HACCP principles, and the requirements of this chapter specified under 2VAC5-585-60;

b. Failure of food employees, conditional employees, and the person in charge to report a disease or medical condition as specified under 2VAC5-585-80 B and D;

c. Nonconformance with priority items and priority foundation items of this chapter;

d. Failure of the appropriate food employees to demonstrate their knowledge of, and ability to perform in accordance with, the procedural, monitoring, verification, and corrective action practices required by the department as specified under 2VAC5-585-3542;

e. Failure of the person in charge to provide records required by the department for determining conformance with a HACCP plan as specified under subdivision 5 g of 2VAC5-585-3630; and

f. Nonconformance with critical limits of a HACCP plan.

2VAC5-585-3890. Refusal to sign acknowledgment.

The authorized representative of the commissioner shall:

1. Inform a person who declines to sign an acknowledgment of receipt of inspectional findings as specified in 2VAC5-585-3880 that:

a. An acknowledgment of receipt is not an agreement with findings;

b. Refusal to sign an acknowledgment of receipt will not affect the operator's permit holder's obligation to correct the violations noted in the inspection report within the time frames specified; and

c. A refusal to sign an acknowledgment of receipt is noted in the inspection report and conveyed to the department's historical record for the food establishment; and

2. Make a final request that the person in charge sign an acknowledgment receipt of inspectional findings.

2VAC5-585-3910. Imminent health hazard, ceasing operations and reporting.

A. Except as specified in subsections B and C of this section, an operator a permit holder shall immediately discontinue operations and notify the department if an imminent health hazard may exist because of an emergency such as a fire, flood, extended interruption of electrical or water service, sewage backup, misuse of poisonous or toxic materials, onset of an apparent foodborne illness outbreak, gross insanitary occurrence or condition, or other circumstance that may endanger public health.^P

B. An operator A permit holder need not discontinue operations in an area of an establishment that is unaffected by the imminent health hazard.

C. Considering the nature of the potential hazard involved and the complexity of the corrective action needed, the department may agree to continuing operations in the event of an extended interruption of electrical or water service if:

1. A written emergency operating plan has been approved by the department;

2. Immediate corrective action is taken to eliminate, prevent, or control any food safety risk and imminent health hazard associated with the electrical or water service interruption; and

3. The department is informed upon implementation of the written emergency operating plan.

2VAC5-585-3920. Resumption of operations.

If operations are discontinued as specified under 2VAC5-585-3910 or otherwise according to law, the operator permit holder shall obtain approval from the department before resuming operations.

2VAC5-585-3930. Priority or priority foundation item, timely correction.

A. Except as specified in subsection B of this section, an operator a permit holder or person in charge shall at the time of inspection correct a violation of a priority item or priority foundation item of this chapter and implement corrective actions for a HACCP plan provision that is not in compliance with its critical limit.^Pf

B. Considering the nature of the potential hazard involved and the complexity of the corrective action needed, the department may agree to or specify a longer timeframe, not to exceed:

1. 72 hours after the inspection, for the operator permit holder to correct violations of a priority item; or

2. 10 calendar days after the inspection, for the operator permit holder to correct violations of a priority foundation item or HACCP plan deviations.

2VAC5-585-3940. Verification and documentation of correction.

A. After observing at the time of inspection a correction of a violation of a priority item or priority foundation item or a HACCP plan deviation, the authorized representative of the commissioner shall enter the violation and information about the corrective action on the inspection report.

B. As specified under 2VAC5-585-3930 B, after receiving notification that the operator permit holder has corrected a violation of a priority item or priority foundation item or HACCP plan deviation, or at the end of the specified period of time, the authorized representative shall verify correction of the violation or deviation during the next inspection of the establishment and shall document the information on an inspection report, and enter the report in the department's records.

2VAC5-585-3950. Core items, timely correction.

A. Except as specified in subsection B of this section, the operator permit holder or person in charge shall correct core items by a date and time agreed to or specified by the department but no later than 90 calendar days after the inspection.

B. The department may approve a compliance schedule that extends beyond the time limits specified under subsection A of this section if a written schedule of compliance is submitted by the operator permit holder and no health hazard exists or will result from allowing an extended schedule for compliance.

2VAC5-585-4050. Restriction or exclusion of food employee or closure of food establishment.

Based on the findings of an investigation related to a food employee or conditional employee who is suspected of being infected or diseased, the department may issue an order to the suspected food employee, conditional employee, or operator permit holder instituting one or more of the following control measures:

1. Restricting the food employee or conditional employee;

2. Excluding the food employee or conditional employee; or

3. Closing the food establishment in accordance with law.

2VAC5-585-4060. Restriction or exclusion order: warning or hearing not required, information required in order.

Based on the findings of the investigation as specified in 2VAC5-585-4040 and to control disease transmission, the department may issue an order of restriction or exclusion to the suspected food employee or the operator permit holder without prior warning, notice of hearing, or a hearing if the order:

1. States the reasons for the restriction or exclusion that is ordered;

2. States the evidence that the food employee or operator permit holder shall provide in order to demonstrate that the reasons for the restriction or exclusion are eliminated;

3. States that the suspected food employee or the operator permit holder may request an appeal hearing by submitting a timely request as provided in law; and

4. Provides the name and address of the authorized representative of the commissioner to whom a request for appeal hearing be made.

FORMS (2VAC5-585)

Permit Application for Retail Food Establishment, VDACS-FSP-APPRE (rev. 6/23)

Retail Inspection Report, ODF-FSP-10001 (rev. 7/2018)

DOCUMENTS INCORPORATED BY REFERENCE (2VAC5-585)

Approved Drug Products with Therapeutic Equivalence Evaluations, 39th Edition, 2019, U.S. Department of Health and Human Services, Food and Drug Administration, Center for Drug Evaluation and Research, Office of Pharmaceutical Science, Office of Generic Drugs at http://www.fda.gov/cder/ob/default.htm

Conference for Food Protection Standards for Accreditation of Food Protection Manager Certification Programs, April 2018, Conference for Food Protection, 30 Elliott Court, Martinsville, IN 46151-1331

Conference for Food Protection Standard for Accreditation of Food Protection Manager Certification Programs, April 2023, Conference for Food Protection, 30 Elliott Court, Martinsville, IN 46151-1331

Grade "A" Pasteurized Milk Ordinance, 2017 Revision, U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, Milk Safety Branch (HFS-626), 5100 Paint Branch Parkway, College Park, MD 20740-3835

Interstate Certified Shellfish Shippers List (updated monthly), published by the U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, Office of Seafood (HFS-417), 5100 Paint Branch Parkway, College Park, MD 20740-3835

National Shellfish Sanitation Program (NSSP) Guide for the Control of Molluscan Shellfish, 2017 Revision, U.S. Department of Health and Human Services, Public Health Service, Food and Drug Administration, Office of Seafood (HFS-417), 5100 Paint Branch Parkway, College Park, MD 20740-3835

NSF/ANSI 18-2016 Manual Food and Beverage Dispensing Equipment, 2012, NSF International, 789 North Dixboro Road, P.O. Box 130140, Ann Arbor, MI 48113-0140, www.nsf.org

United States Standards, Grades, and Weight Classes for Shell Eggs, AMS-56, effective July 20, 2000, U.S. Department of Agriculture, Agricultural Marketing Service, Poultry Programs, STOP 0259, Room 3944-South, 1400 Independence Avenue, SW, Washington, DC 20250-0259

TITLE 3. ALCOHOLIC BEVERAGE AND CANNABIS CONTROL

VIRGINIA ALCOHOLIC BEVERAGE CONTROL AUTHORITY

Final Regulation

Title of Regulation: 3VAC5-10. Procedural Rules for the Conduct of Hearings Before the Board and Its Hearing Officers (amending 3VAC5-10-10 through 3VAC5-10-130, 3VAC5-10-150 through 3VAC5-10-450; adding 3VAC5-10-490; repealing 3VAC5-10-340).

Statutory Authority: §§ 4.1-103 and 4.1-111 of the Code of Virginia.

Effective Date: January 29, 2025.

Agency Contact: LaTonya D. Hucks-Watkins, Senior Legal Counsel, Virginia Alcoholic Beverage Control Authority, 7450 Freight Way, Mechanicsville, VA 23116, telephone (804) 213-4698, FAX (804) 213-4574, or email latonya.hucks-watkins@virginiaabc.com.

Summary:

The amendments (i) specify that only an interested party or the interested party's legal counsel can exercise the right of cross-examination; (ii) extend the timeframe in which an offer in compromise may be submitted; (iii) align the regulation with current procedures, authority, and terminology; and (iv) eliminate obsolete text. A change to the proposed regulation updates a cross-reference to the Code of Virginia.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

Chapter 10

Procedural Rules for the Conduct of Hearings Before before the Board Virginia Alcoholic Beverage Control Authority and Its Hearing Officers Administrative Law Judges

Part I

Hearings Before Hearing Officers before Administrative Law Judges

3VAC5-10-10. Appearance.

A. Any interested party who would be aggrieved by a decision of the board Virginia Alcoholic Beverage Control Authority upon any application or in a disciplinary proceeding may appear and be heard in person, or by duly authorized representative, and produce under oath evidence relevant and material to the matters in issue. Upon due notice a hearing may be conducted by telephone as provided in Part IV (3VAC5-10-410 through 3VAC5-10-470) of this chapter. Hearings may also be conducted virtually.

B. The interested parties will be expected to appear or be represented at the place and on the date of hearing or on the dates to which the hearing may be continued.

C. If an interested party fails to appear at a hearing, the hearing officer administrative law judge may proceed in his the interested party's absence and render a decision.

3VAC5-10-20. Argument.

Oral or argument, written argument, or both, may be submitted to and limited by the hearing officer administrative law judge. Oral argument is to be included in the stenographic report of the hearing.

3VAC5-10-30. Attorneys; representation.

Any individual, partnership, association, or corporation who that is a licensee or applicant for any license or any interested party shall have the right to be represented by counsel at any board Virginia Alcoholic Beverage Control Authority hearing for which he the licensee or applicant has received notice. The licensee, applicant, or interested party shall not be required to be represented by counsel during such hearing. Any officer or director of a corporation may examine, cross-examine, and question witnesses, present evidence on behalf of the corporation, draw conclusions, and make arguments before the hearing officers administrative law judges.

3VAC5-10-40. Communications.

Communications regarding hearings before hearing officers administrative law judges upon licenses and applications for licenses should be addressed to the Chief Hearing Officer Clerk, Hearings and, Appeals, and Judicial Services Division.

3VAC5-10-50. Complaints.

The board Virginia Alcoholic Beverage Control Authority, in its discretion and for good cause shown, may arrange a hearing upon the complaint of any aggrieved party(s) party against the continuation of a license. The complaint shall be in writing directed to the Director, Chief of the Bureau of Law Enforcement Operations, setting forth the name and post office address of the person(s) person against whom the complaint is filed, together with a concise statement of all the facts necessary to an understanding of the grievance and a statement of the relief desired.

3VAC5-10-60. Continuances.

Motions to continue a hearing will be granted as in actions at law. Requests for continuances should be addressed to the Chief Hearing Officer Administrative Law Judge, Hearings and, Appeals, and Judicial Services Division, or the hearing officer administrative law judge who will preside over the hearing.

3VAC5-10-70. Decisions.

A. Initial decisions. The decision of the hearing officer administrative law judge shall be deemed the initial decision, shall be a part of the record, and shall include:

1. A statement of the hearing officer's administrative law judge's findings of fact and conclusions, as well as the reasons or bases therefor for the findings, upon all the material issues of fact, law, or discretion presented on the record; and

2. The appropriate rule, order, sanction, relief, or denial thereof as to each such issue.

B. Summary decisions. At the conclusion of a hearing, the hearing officer administrative law judge, in his the administrative law judge's discretion, may announce the initial decision to the interested parties.

C. Notice. At the conclusion of any hearing, the hearing officer administrative law judge shall advise interested parties that the initial decision will be reduced to writing and the notice of such decision, along with notice of the right to appeal to the board Virginia Alcoholic Beverage Control Authority (authority), will be mailed to them the interested party or their the interested party's representative and filed with the board authority in due course. (See 3VAC5-10-240 for Appeals).

D. Prompt filing. The initial decision shall be reduced to writing,; mailed to interested parties at the address on record with the board authority by certified mail, return receipt requested, and by regular mail,; and filed with the board authority as promptly as possible after the conclusion of the hearing or the expiration of the time allowed for the receipt of additional evidence.

E. Request for early or immediate decision. Where the initial decision is deemed to be acceptable, an interested party may file, either orally before the hearing officer administrative law judge or in writing, a waiver of his the interested party's right of appeal to the board authority and request early or immediate implementation of the initial decision. The board authority or hearing officer administrative law judge may grant the request for early or immediate implementation of the decision by causing issuance or surrender of the license and prompt entry of the appropriate order.

F. Timely review. The board authority shall review the initial decision and may render a proposed decision, which may adopt, modify, or reject the initial decision unless immediate implementation is ordered. In any event, the board authority shall issue notice of any proposed decision, along with notice of right to appeal, within the time provided for appeals as stated in 3VAC5-10-240.

3VAC5-10-80. Docket.

Cases will be placed upon the docket in the order in which they mature except that, for good cause shown or for reasons appearing to the board Virginia Alcoholic Beverage Control Authority or to the chief hearing officer chief administrative law judge, the order may be varied.

3VAC5-10-90. Evidence.

A. Generally. All relevant and material evidence shall be received, except that:

1. The rules relating to privileged communications and privileged topics shall be observed; and

2. Secondary evidence of the contents of a document shall be received only if the original is not readily available. In deciding whether a document is readily available, the hearing officer administrative law judge shall balance the importance of the evidence against the difficulty of obtaining it, and the more important the evidence, the more effort should be made to have the original document produced.

B. Cross-examination. Subject to the provisions of subsection A of this section, any interested party shall have the right to cross-examine adverse witnesses and any agent or subordinate of the board Virginia Alcoholic Beverage Control Authority (authority) whose report is in evidence and to submit rebuttal evidence, except that:

1. Where the interested party is represented by counsel, only counsel shall exercise the right of cross-examination;

2. Where there is more than one interested party, only counsel or other representatives of such parties the other interested parties shall exercise the right of cross-examination; and

3. Where there is more than one group of interested parties present for the same purpose, only counsel or other representative of such groups the interested party designated to represent each group shall exercise the right of cross-examination. If the hearing officer administrative law judge deems it necessary, in order to expedite the proceedings, a merger of such groups shall be arranged.

C. Cumulative testimony. The introduction of evidence which is cumulative, corroborative, or collateral evidence shall be avoided. The hearing officer administrative law judge may limit the testimony of any witness which that is judged to be cumulative, corroborative, or collateral; however, the interested party offering such testimony may make a short avowal of the testimony which that would be given and, if the witness asserts that such avowal is true, this avowal shall be made a part of the stenographic report.

D. Subpoenas, depositions, and request for admissions. Subpoenas, depositions de bene esse, and requests for admissions may be taken, directed, and issued in accordance with §§ § 2.2-4022 and subdivision [ 10 21 ] of § 4.1-103 10 and 9-6.14:13 of the Code of Virginia.

E. Stenographic report. All evidence, stipulations, and argument in the stenographic report which that are relevant to the matters in issue shall be deemed to have been introduced for the consideration of the board administrative law judge or the authority.

F. Stipulations. Insofar as possible, interested parties will be expected to stipulate as to any facts involved. Such stipulations shall be made a part of the stenographic report.

3VAC5-10-100. Hearings; penalty.

A. Hearings before the hearing officer administrative law judge shall be held, insofar as practicable, at the county seat of the county in which the establishment of the applicant or licensee is located, or, if the establishment is located within the corporate limits of any city, then in such city. However, if it is located in a county or city within a metropolitan area in which the board Virginia Alcoholic Beverage Control Authority maintains a hearing room in a district office, such hearings may be held in such hearing room. Notwithstanding the above this subsection, hearing officers administrative law judges may conduct hearings at locations convenient to the greatest numbers of persons in order to expedite the hearing process. Hearings may also be held via telephone or virtually.

B. At any hearing held by a hearing officer an administrative law judge, any person hindering the orderly conduct or decorum of the hearing shall be guilty of a violation of this regulation and shall be subject to the penalty prescribed by § 4.1-349 of the Code of Virginia.

3VAC5-10-110. Hearing officers Administrative law judges.

A. Hearing officers Administrative law judges are charged with the duty of conducting fair and impartial hearings and of maintaining order in a form and manner consistent with the dignity of the board Virginia Alcoholic Beverage Control Authority (authority).

B. Each hearing officer administrative law judge shall have authority, subject to the published rules of the board authority and within its powers, to:

1. Administer oaths and affirmations;

2. Issue subpoenas as authorized by law;

3. Rule upon offers of proof and receive relevant and material evidence;

4. Take or cause depositions and interrogatories to be taken, directed, and issued;

5. Examine witnesses and otherwise regulate the course of the hearing;

6. Hold conferences for the settlement or simplification of issues by consent of interested parties;

7. Dispose of procedural requests and similar matters;

8. Amend the issues or add new issues, provided the applicant or licensee expressly waives notice thereof. The waiver shall be made a part of the stenographic report of the hearing;

9. Submit initial decisions to the board authority and to other interested parties or their representatives; and

10. Take any other action authorized by the rules of the board authority;

11. Conduct mediation between interested parties; and

12. Require the designation of an interested person to act as a representative for proceedings involving groups of individuals present for the same purpose.

3VAC5-10-120. Interested parties.

As used in this chapter, "interested parties" shall mean the following persons:

1. The applicant;

2. The licensee;

3. Persons who would be aggrieved by a decision of the board Virginia Alcoholic Beverage Control Authority (authority); and

4. For purposes of appeal pursuant to 3VAC5-10-240, interested parties shall be only those persons who appeared at and asserted an interest in the hearing before a hearing officer an administrative law judge.

Where in this chapter reference is made to "licensee," the term likewise shall be applicable to a permittee (i.e., a person that holds or held a permit issued by the authority) or a designated manager to the extent that this chapter are is not inconsistent with the statutes and regulations relating to such persons.

3VAC5-10-130. Motions or requests.

Motions or requests for ruling made prior to the hearing before a hearing officer an administrative law judge shall be in writing,; addressed to the Chief Hearing Officer Administrative Law Judge, Hearings and, Appeals, and Judicial Services Division,; and shall state with reasonable certainty the ground therefor grounds for the motion or request for ruling. Argument upon such motions or requests will not be heard without special leave granted by the hearing officer administrative law judge who will preside over the hearing.

3VAC5-10-150. Consent settlement.

A. Generally. The board, Virginia Alcoholic Beverage Control Authority (authority) or its the authority's designee, may offer to resolve disciplinary cases when the nature of the proceeding and public interest permit. In appropriate cases, the board authority or its the authority's designee will extend an offer for a consent settlement to the licensee.

B. Who may accept. The licensee or his the licensee's attorney may accept an offer of consent settlement. If the licensee is a corporation, only an attorney or an officer, director, or majority stockholder of the corporation may accept an offer of consent settlement.

C. How to accept. The licensee shall return the properly executed consent order along with the payment in full of any monetary penalty no later than 21 calendar days from the date of mailing by the board authority. Failure to respond within the time period will result in a withdrawal of the offer by the agency and a formal hearing will be held on the date specified in the notice of hearing.

D. Effect of acceptance. Acceptance of the consent settlement offer shall constitute an admission of the alleged violation of the A.B.C. laws Alcoholic Beverage Control Act (§ 4.1-100 et seq. of the Code of Virginia) or authority regulations and will result in a waiver of the right to a formal hearing and the right to appeal or otherwise contest the charges. The offer of consent settlement is not negotiable; however, the licensee is not precluded from submitting an offer in compromise under 3VAC5-10-160.

E. Board Authority review. Prior to extending an offer of consent settlement to the licensee, the board authority or its the authority's designee may reject any proposed settlement which that is contrary to law or policy or which that, in its the authority's sole discretion, is not appropriate.

F. Record. Unaccepted offers of consent settlement will become a part of the record only after completion of the hearing process.

3VAC5-10-160. Offers in compromise and negotiations.

A. Following notice of a disciplinary proceeding, a licensee may be afforded opportunity for the submission of an offer in compromise in lieu of suspension or in addition thereto, or in lieu of revocation of his the license, where, in the discretion of the board Virginia Alcoholic Beverage Control Authority (authority), the nature of the proceeding and the public interest permit. Such offer should be addressed to the chief hearing officer administrative law judge. Acceptance of the offer in compromise shall constitute an admission of the alleged violation of the A.B.C. laws Alcoholic Beverage Control Act (§ 4.1-100 et seq. of the Code of Virginia) or authority regulations, and shall result in a waiver of the right to a formal hearing and the right to appeal or otherwise contest the charges. The reason for the acceptance of such an offer shall be made a part of the record of the proceeding. Unless good cause be is shown, continuances for purposes of considering an offer in compromise will not be granted. Offers in compromise may be submitted anytime following notice of a disciplinary proceeding and before the conclusion of an appeal hearing authority issues a final decision in an appeal. Any such offer may not be accepted at the informal conference and no offer shall be submitted after the conclusion of the appeal hearing. The board authority may waive any provision of this section for good cause shown.

B. Following notice of a disciplinary proceeding or objection from the authority to the issuance of a license, a licensee or applicant in conjunction with the authority may agree to a negotiated resolution in lieu of a suspension or in addition thereto, in lieu of revocation of the license, or in lieu of a denial of the application where, in the discretion of the authority, the nature of the proceeding and the public interest permit. Such negotiation shall be handled by the interested party and the authority. Acceptance of a negotiated resolution may constitute an admission of the alleged violation of the Alcoholic Beverage Control Act or authority regulations and shall result in a waiver of the right to a formal hearing and the right to appeal or otherwise contest the charges or objections. Unless good cause is shown, continuances for purposes of finalizing a negotiated resolution will not be granted. Negotiated resolutions may be submitted anytime following notice of a disciplinary proceeding or objections hearing and before the authority issues a final decision in an appeal.

3VAC5-10-170. Record.

A. The certified transcript of testimony, argument, and exhibits, together with all papers and requests filed in the proceeding, shall constitute the exclusive record of the initial decision.

B. Upon due application made to the chief hearing officer administrative law judge, copies of the record of a hearing shall be made available to parties entitled thereto at a fee established by the board Virginia Alcoholic Beverage Control Authority.

3VAC5-10-180. Rehearings.

A No rehearing before a hearing officer an administrative law judge shall not be held in any matter unless it be is affirmatively shown that relevant and material evidence, which ought to produce an opposite result on rehearing, is available,; is not merely cumulative, corroborative, or collateral,; and could not have been discovered before the original hearing by the use of ordinary diligence;, provided, that the board Virginia Alcoholic Beverage Control Authority, in its discretion, may cause a rehearing to be held before a hearing officer an administrative law judge in the absence of the foregoing conditions, as provided in 3VAC5-10-290.

3VAC5-10-190. Self-incrimination.

If any witness subpoenaed to appear on behalf of the board Virginia Alcoholic Beverage Control Authority (authority) shall testify in a hearing before a hearing officer an administrative law judge on complaints against a licensee as to any violation in which the witness, as a licensee or an applicant, has participated, such testimony shall not be used against him nor shall the board the witness. The authority shall take any no administrative action against him the witness for the offense to which he the witness testifies.

3VAC5-10-200. Subpoenas.

Upon request of any interested party, the chief hearing officer, administrative law judge or a hearing officer an administrative law judge is authorized to issue subpoenas requiring the attendance of witnesses and the production of records, memoranda, papers, and other documents at a hearing before a hearing officer an administrative law judge.

3VAC5-10-210. Witnesses.

A. Interested parties shall arrange to have their witnesses present at the time and place designated for the hearing.

B. Upon request of any party entitled to cross-examine witnesses, as set forth in 3VAC5-10-90 B, the hearing officer administrative law judge may separate the witnesses, including agents of the board Virginia Alcoholic Beverage Control Authority (authority).

C. A person subpoenaed as a witness to appear on behalf of the board authority shall be entitled to the same allowance for expenses as witnesses for the Commonwealth in criminal cases.

3VAC5-10-220. Pre-hearing conferences.

A. A pre-hearing conference will be conducted when an applicant for a license or a licensee who is the subject of a disciplinary proceeding does not waive its the right to such a conference. A waiver may be verbal or in writing. Unless the parties are advised otherwise, the agency Virginia Alcoholic Beverage Control Authority (authority) will automatically waive the pre-hearing conference when the applicant or licensee does so. When the applicant or licensee is offered a pre-hearing conference and fails to respond within 10 calendar days after the date of such offer, the pre-hearing conference will be deemed to be waived.

B. The pre-hearing conference will serve as a vehicle to acquaint the interested party, in a general way, with the nature of the charges or objections, and the evidence in support thereof and of the charges or objections, to hear any matters relevant thereto presented by the interested parties, and to explore whether (i) administrative proceedings or objections should be terminated or (ii) the case should proceed to formal hearing and stipulations can be reached. The conference will be open to the public, but participation will be limited to the interested parties, their the interested parties' attorneys-at-law or other qualified representatives, and designated board authority representatives. The pre-hearing conference may be held virtually or telephonically, by telephone and at least five days prior to the formal hearing. The conference may be held, when practical, at the county or city in which the establishment of the applicant or licensee is located. Reasonable notice of administrative charges or objections and the date, time, and place of the conference shall be given to the participants. The failure of the applicant or licensee to appear at a scheduled conference will be deemed a waiver of the pre-hearing conference. The pre-hearing conference will not be recorded. Sworn testimony will not be taken, nor will subpoenas be issued. Any initial decision will include a summary of the pre-hearing conference.

3VAC5-10-230. Agency Virginia Alcoholic Beverage Control Authority representation.

The Director, Chief of the Bureau of Law Enforcement Operations or his a designee may (i) represent the Bureau of Law Enforcement Operations before the board Virginia Alcoholic Beverage Control Authority (authority) or any hearing officer administrative law judge; (ii) petition the board authority for modification of the hearing officer's administrative law judge's decision; or (iii) request a ruling on other motions as may be necessary. This authority does not extend to complaints under the Franchise Acts.

Part II

Hearings Before before the Board Virginia Alcoholic Beverage Control Authority

3VAC5-10-240. Appeals.

A. An interested party may appeal to the board Virginia Alcoholic Beverage Control Authority (authority) an adverse initial decision, including the findings of fact and the conclusions, of a hearing officer an administrative law judge or a proposed decision, or any portion thereof of a proposed decision, of the board authority, provided a request therefor in writing identifying any alleged errors in the decision is received within 30 days after the date of mailing of the initial decision or the proposed decision, whichever is later.

B. At his option, an An interested party may submit written exceptions to the initial or proposed decision within the 30-day period and waive further hearing proceedings.

C. If an interested party fails to appear at a hearing, the board authority may proceed in his the interested party's absence and render a decision.

3VAC5-10-250. Attorneys; representation.

Any individual, partnership, association, or corporation who that is a licensee or applicant for any license or any interested party shall have the right to be represented by counsel at any board Virginia Alcoholic Beverage Control Authority (authority) hearing for which he the licensee, applicant, or interested party has received notice. The licensee, applicant, or interested party shall not be required to be represented by counsel during such hearing. Any officer or director of a corporation may examine, cross-examine, and question witnesses,; present evidence on behalf of the corporation,; draw conclusions; and make arguments before the board authority.

3VAC5-10-260. Communications.

Communications regarding appeal hearings upon licenses and applications for licenses should be addressed to the secretary to the board Chief Clerk of the Hearing, Appeals, and Judicial Services Division.

3VAC5-10-270. Continuances.

Continuances will be granted as in actions at law. Requests for continuances of appeal hearings should be addressed to the secretary to the board Chief Clerk of the Hearings, Appeals, and Judicial Services Division.

3VAC5-10-280. Decision of the board Virginia Alcoholic Beverage Control Authority.

The final decision of the board Virginia Alcoholic Beverage Control Authority, together with any written opinion, should be transmitted to each interested party or to his the interested party's representative.

3VAC5-10-290. Evidence.

A. Generally. Subject to the exceptions permitted in this section, and to any stipulations agreed to by all interested parties, all evidence should be introduced at hearings before hearing officers administrative law judges.

B. Additional evidence. Should the appeal panel or Virginia Alcoholic Beverage Control Authority (authority) determine at an appeal hearing, either upon motion or otherwise, that it is necessary or desirable that additional evidence be taken, the appeal panel may:

1. Direct that a hearing officer an administrative law judge to fix a time and place for the taking of such evidence within the limits prescribed by the board authority and in accordance with 3VAC5-10-180; and

2. Upon unanimous consent of the appeal panel, permit the introduction of after-discovered or new evidence at the appeal hearing.

If the initial decision indicates that the qualifications of the establishment of an applicant or licensee are such as to cast substantial doubt upon the eligibility of the place for a license, evidence may be received at the appeal hearing limited to the issue involved and to the period of time subsequent to the date of the hearing before the hearing officer administrative law judge.

C. Examination. Any appeal panel member may examine a witness upon any question relevant to the matters in issue.

D. Cross-examination. The right to cross-examine and the submission of rebuttal evidence as provided in 3VAC5-10-90 shall be allowed in any appeal hearing where the introduction of additional evidence is permitted.

3VAC5-10-300. Hearings.

Hearings before the board Virginia Alcoholic Beverage Control Authority or appeal panel in the absence of notice to the contrary will be held in the office of the board Virginia Alcoholic Beverage Control Authority, Virginia A.B.C. Building, 7450 Freight Way, Mechanicsville, Virginia 23116.

3VAC5-10-310. Motions or requests.

Motions or requests for rulings, made after a hearing before a hearing officer an administrative law judge and prior to an appeal hearing before the board, Virginia Alcoholic Beverage Control Authority (authority) shall be in writing, addressed to the secretary to the board, Chief Clerk of the Hearings, Appeals, and Judicial Services Division, and shall state with reasonable certainty the grounds therefor for the motion or request for ruling. Argument upon such motions or requests will not be heard without special leave granted by the board authority.

3VAC5-10-320. Notice of hearing.

Reasonable notice of the time and place of an appeal hearing shall be given to each interested party who appeared at the initial hearing or his the interested party's representative.

3VAC5-10-330. Record.

A. The record of the hearing before the hearing officer administrative law judge, including the initial decision, and the transcript of testimony, argument, and exhibits together with all papers and requests filed in the proceeding before the board, Virginia Alcoholic Beverage Control Authority (authority) shall constitute the exclusive record for the final decision of the board authority.

B. Upon due application made to the secretary to the board Chief Clerk of the Hearings, Appeals, and Judicial Services Division, copies of the record, including the decision of the board authority and any opinion setting forth the reasons for the decision, shall be made available to parties entitled thereto at a rate established by the board authority.

3VAC5-10-340. Rehearings and reconsideration. (Repealed.)

The board may, in its discretion for good cause shown, grant a rehearing or reconsideration on written petition of an interested party addressed to the Secretary to the Board and received within 30 days after the date of the final decision of the board. The petition shall contain a full and clear statement of the facts pertaining to the grievance, the grounds in support thereof, and a statement of the relief desired. The board may grant such at any time on its own initiative for good cause shown.

3VAC5-10-350. Scope of hearing.

A. Except as provided in 3VAC5-10-290, the appeal hearing shall be limited to the record made before the hearing officer administrative law judge.

B. The provisions of Part I (3VAC5-10-10 through 3VAC5-10-230) of this chapter shall be applicable to proceedings held under this part except to the extent such provisions are inconsistent herewith with this part.

3VAC5-10-360. Complaints.

Complaints shall be referred in writing to the secretary to the board Chief Clerk of the Hearings, Appeals, and Judicial Services Division.

3VAC5-10-370. Hearings.

Hearings will be conducted in accordance with the provisions of Part I (3VAC5-10-10 through 3VAC5-10-230) of this chapter (3VAC5-10-10 et seq.). Further, the board Virginia Alcoholic Beverage Control Authority (authority) and the hearing officers administrative law judges designated by it the authority may require an accounting to be submitted by each party in determining an award of costs and attorneys' attorney fees.

3VAC5-10-380. Appeals.

The decision of the hearing officer administrative law judge may be appealed to the board Virginia Alcoholic Beverage Control Authority as provided in 3VAC5-10-240. Appeals shall be conducted in accordance with the provisions of Part II (3VAC5-10-240 through 3VAC5-10-350) of this chapter (3VAC5-10-240 et seq.).

3VAC5-10-390. Hearings on notification of price increases.

Upon receipt from a winery, brewery, or wine or beer importer of a request for notice of a price increase less than 30 days in advance, a hearing will be scheduled before the board Virginia Alcoholic Beverage Control Authority (authority), not a hearing officer an administrative law judge, as soon as practicable with five days days' notice to all parties, which include, at a minimum, all the wholesalers selling the winery or brewery's product. There will be no continuances granted and the board authority must rule within 24 hours of the hearing.

3VAC5-10-400. Discovery, prehearing procedures and production at hearings; definitions.

The Rules of the Supreme Court of Virginia Parts One, One A, Two, Two A, Three, and Four shall apply in all proceedings under the Wine and Beer Franchise Acts, Chapters 4 (§ 4.1-400 et seq.) and 5 (§ 4.1-500 et seq.) of Title 4.1 of the Code of Virginia, including mediation and arbitration proceedings when necessary pursuant to §§ 4.1-409 and 4.1-508 of the Code of Virginia. Any references to a "court" contained in the rules shall be deemed to mean the hearing officer administrative law judge or officers of the board Virginia Alcoholic Beverage Control Authority conducting the proceeding.

No provision of this section shall affect the practice of taking evidence at a hearing, but such practice, including that of generally taking evidence ore tenus only at hearings before hearing officers administrative law judges, shall continue unaffected hereby.

3VAC5-10-410. Applicability.

The board Virginia Alcoholic Beverage Control Authority (authority) and its hearing officers administrative law judges may conduct hearings by telephone only when the applicant/licensee applicant or licensee expressly waives the in-person hearing. The board authority will determine whether or not certain hearings might practically be conducted by telephone. The provisions of Part I (3VAC5-10-10 et seq. through 3VAC5-10-230) of this chapter shall apply only to Part IV (3VAC5-10-410 et seq. through 3VAC5-10-470) of this chapter where applicable.

3VAC5-10-420. Appearance.

The interested parties will be expected to be available by telephone at the time set for the hearing and may produce, under oath, evidence relevant and material to the matters in issue. The board Virginia Alcoholic Beverage Control Authority will arrange for telephone conference calls at its expense.

3VAC5-10-430. Argument.

Oral or written argument may be submitted to and limited by the hearing officer administrative law judge. Oral argument is to be included in the stenographic report of the hearing. Written argument, if any, must be submitted to the hearing officer administrative law judge and other interested parties in advance of the hearing.

3VAC5-10-440. Documentary evidence.

Documentary evidence, which that an interested party desires to be considered by the hearing officer, administrative law judge must be submitted to the hearing officer administrative law judge and other interested parties in advance of the hearing.

3VAC5-10-450. Hearings.

A. Telephone hearings will usually originate from the central office of the board Virginia Alcoholic Beverage Control Authority in Richmond Mechanicsville, Virginia, but may originate from other locations. Interested parties An interested party may participate from the location of their the interested party's choice where a telephone is available. If an interested party is not available by telephone at the time set for the hearing, the hearing may be conducted in his the interested party's absence.

B. If at any time during a telephone hearing, the hearing officer administrative law judge determines that the issues are so complex that a fair and impartial hearing cannot be accomplished, the hearing officer administrative law judge shall adjourn the telephone hearing and reconvene an in-person hearing as soon as practicable.

3VAC5-10-490. Mediation.

A. Upon consent of all interested parties, the Virginia Alcoholic Beverage Control Authority (authority) may afford the parties an opportunity to resolve appropriate cases through mediation.

B. The mediations may be conducted by an administrative law judge of the authority.

C. If the mediation is unsuccessful, the matter may proceed to a formal hearing. The administrative law judge who conducted the mediation shall not preside over the formal hearing.

TITLE 3. ALCOHOLIC BEVERAGE AND CANNABIS CONTROL

VIRGINIA ALCOHOLIC BEVERAGE CONTROL AUTHORITY

Final Regulation

Title of Regulation: 3VAC5-10. Procedural Rules for the Conduct of Hearings Before the Board and Its Hearing Officers (amending 3VAC5-10-10 through 3VAC5-10-130, 3VAC5-10-150 through 3VAC5-10-450; adding 3VAC5-10-490; repealing 3VAC5-10-340).

Statutory Authority: §§ 4.1-103 and 4.1-111 of the Code of Virginia.

Effective Date: January 29, 2025.

Agency Contact: LaTonya D. Hucks-Watkins, Senior Legal Counsel, Virginia Alcoholic Beverage Control Authority, 7450 Freight Way, Mechanicsville, VA 23116, telephone (804) 213-4698, FAX (804) 213-4574, or email latonya.hucks-watkins@virginiaabc.com.

Summary:

The amendments (i) specify that only an interested party or the interested party's legal counsel can exercise the right of cross-examination; (ii) extend the timeframe in which an offer in compromise may be submitted; (iii) align the regulation with current procedures, authority, and terminology; and (iv) eliminate obsolete text. A change to the proposed regulation updates a cross-reference to the Code of Virginia.

Summary of Public Comments and Agency's Response: No public comments were received by the promulgating agency.

Chapter 10

Procedural Rules for the Conduct of Hearings Before before the Board Virginia Alcoholic Beverage Control Authority and Its Hearing Officers Administrative Law Judges

Part I

Hearings Before Hearing Officers before Administrative Law Judges

3VAC5-10-10. Appearance.

A. Any interested party who would be aggrieved by a decision of the board Virginia Alcoholic Beverage Control Authority upon any application or in a disciplinary proceeding may appear and be heard in person, or by duly authorized representative, and produce under oath evidence relevant and material to the matters in issue. Upon due notice a hearing may be conducted by telephone as provided in Part IV (3VAC5-10-410 through 3VAC5-10-470) of this chapter. Hearings may also be conducted virtually.

B. The interested parties will be expected to appear or be represented at the place and on the date of hearing or on the dates to which the hearing may be continued.

C. If an interested party fails to appear at a hearing, the hearing officer administrative law judge may proceed in his the interested party's absence and render a decision.

3VAC5-10-20. Argument.

Oral or argument, written argument, or both, may be submitted to and limited by the hearing officer administrative law judge. Oral argument is to be included in the stenographic report of the hearing.

3VAC5-10-30. Attorneys; representation.

Any individual, partnership, association, or corporation who that is a licensee or applicant for any license or any interested party shall have the right to be represented by counsel at any board Virginia Alcoholic Beverage Control Authority hearing for which he the licensee or applicant has received notice. The licensee, applicant, or interested party shall not be required to be represented by counsel during such hearing. Any officer or director of a corporation may examine, cross-examine, and question witnesses, present evidence on behalf of the corporation, draw conclusions, and make arguments before the hearing officers administrative law judges.

3VAC5-10-40. Communications.

Communications regarding hearings before hearing officers administrative law judges upon licenses and applications for licenses should be addressed to the Chief Hearing Officer Clerk, Hearings and, Appeals, and Judicial Services Division.

3VAC5-10-50. Complaints.

The board Virginia Alcoholic Beverage Control Authority, in its discretion and for good cause shown, may arrange a hearing upon the complaint of any aggrieved party(s) party against the continuation of a license. The complaint shall be in writing directed to the Director, Chief of the Bureau of Law Enforcement Operations, setting forth the name and post office address of the person(s) person against whom the complaint is filed, together with a concise statement of all the facts necessary to an understanding of the grievance and a statement of the relief desired.

3VAC5-10-60. Continuances.

Motions to continue a hearing will be granted as in actions at law. Requests for continuances should be addressed to the Chief Hearing Officer Administrative Law Judge, Hearings and, Appeals, and Judicial Services Division, or the hearing officer administrative law judge who will preside over the hearing.

3VAC5-10-70. Decisions.

A. Initial decisions. The decision of the hearing officer administrative law judge shall be deemed the initial decision, shall be a part of the record, and shall include:

1. A statement of the hearing officer's administrative law judge's findings of fact and conclusions, as well as the reasons or bases therefor for the findings, upon all the material issues of fact, law, or discretion presented on the record; and

2. The appropriate rule, order, sanction, relief, or denial thereof as to each such issue.

B. Summary decisions. At the conclusion of a hearing, the hearing officer administrative law judge, in his the administrative law judge's discretion, may announce the initial decision to the interested parties.

C. Notice. At the conclusion of any hearing, the hearing officer administrative law judge shall advise interested parties that the initial decision will be reduced to writing and the notice of such decision, along with notice of the right to appeal to the board Virginia Alcoholic Beverage Control Authority (authority), will be mailed to them the interested party or their the interested party's representative and filed with the board authority in due course. (See 3VAC5-10-240 for Appeals).

D. Prompt filing. The initial decision shall be reduced to writing,; mailed to interested parties at the address on record with the board authority by certified mail, return receipt requested, and by regular mail,; and filed with the board authority as promptly as possible after the conclusion of the hearing or the expiration of the time allowed for the receipt of additional evidence.

E. Request for early or immediate decision. Where the initial decision is deemed to be acceptable, an interested party may file, either orally before the hearing officer administrative law judge or in writing, a waiver of his the interested party's right of appeal to the board authority and request early or immediate implementation of the initial decision. The board authority or hearing officer administrative law judge may grant the request for early or immediate implementation of the decision by causing issuance or surrender of the license and prompt entry of the appropriate order.

F. Timely review. The board authority shall review the initial decision and may render a proposed decision, which may adopt, modify, or reject the initial decision unless immediate implementation is ordered. In any event, the board authority shall issue notice of any proposed decision, along with notice of right to appeal, within the time provided for appeals as stated in 3VAC5-10-240.

3VAC5-10-80. Docket.

Cases will be placed upon the docket in the order in which they mature except that, for good cause shown or for reasons appearing to the board Virginia Alcoholic Beverage Control Authority or to the chief hearing officer chief administrative law judge, the order may be varied.

3VAC5-10-90. Evidence.

A. Generally. All relevant and material evidence shall be received, except that:

1. The rules relating to privileged communications and privileged topics shall be observed; and

2. Secondary evidence of the contents of a document shall be received only if the original is not readily available. In deciding whether a document is readily available, the hearing officer administrative law judge shall balance the importance of the evidence against the difficulty of obtaining it, and the more important the evidence, the more effort should be made to have the original document produced.

B. Cross-examination. Subject to the provisions of subsection A of this section, any interested party shall have the right to cross-examine adverse witnesses and any agent or subordinate of the board Virginia Alcoholic Beverage Control Authority (authority) whose report is in evidence and to submit rebuttal evidence, except that:

1. Where the interested party is represented by counsel, only counsel shall exercise the right of cross-examination;

2. Where there is more than one interested party, only counsel or other representatives of such parties the other interested parties shall exercise the right of cross-examination; and

3. Where there is more than one group of interested parties present for the same purpose, only counsel or other representative of such groups the interested party designated to represent each group shall exercise the right of cross-examination. If the hearing officer administrative law judge deems it necessary, in order to expedite the proceedings, a merger of such groups shall be arranged.

C. Cumulative testimony. The introduction of evidence which is cumulative, corroborative, or collateral evidence shall be avoided. The hearing officer administrative law judge may limit the testimony of any witness which that is judged to be cumulative, corroborative, or collateral; however, the interested party offering such testimony may make a short avowal of the testimony which that would be given and, if the witness asserts that such avowal is true, this avowal shall be made a part of the stenographic report.

D. Subpoenas, depositions, and request for admissions. Subpoenas, depositions de bene esse, and requests for admissions may be taken, directed, and issued in accordance with §§ § 2.2-4022 and subdivision [ 10 21 ] of § 4.1-103 10 and 9-6.14:13 of the Code of Virginia.

E. Stenographic report. All evidence, stipulations, and argument in the stenographic report which that are relevant to the matters in issue shall be deemed to have been introduced for the consideration of the board administrative law judge or the authority.

F. Stipulations. Insofar as possible, interested parties will be expected to stipulate as to any facts involved. Such stipulations shall be made a part of the stenographic report.

3VAC5-10-100. Hearings; penalty.

A. Hearings before the hearing officer administrative law judge shall be held, insofar as practicable, at the county seat of the county in which the establishment of the applicant or licensee is located, or, if the establishment is located within the corporate limits of any city, then in such city. However, if it is located in a county or city within a metropolitan area in which the board Virginia Alcoholic Beverage Control Authority maintains a hearing room in a district office, such hearings may be held in such hearing room. Notwithstanding the above this subsection, hearing officers administrative law judges may conduct hearings at locations convenient to the greatest numbers of persons in order to expedite the hearing process. Hearings may also be held via telephone or virtually.

B. At any hearing held by a hearing officer an administrative law judge, any person hindering the orderly conduct or decorum of the hearing shall be guilty of a violation of this regulation and shall be subject to the penalty prescribed by § 4.1-349 of the Code of Virginia.

3VAC5-10-110. Hearing officers Administrative law judges.

A. Hearing officers Administrative law judges are charged with the duty of conducting fair and impartial hearings and of maintaining order in a form and manner consistent with the dignity of the board Virginia Alcoholic Beverage Control Authority (authority).

B. Each hearing officer administrative law judge shall have authority, subject to the published rules of the board authority and within its powers, to:

1. Administer oaths and affirmations;

2. Issue subpoenas as authorized by law;

3. Rule upon offers of proof and receive relevant and material evidence;

4. Take or cause depositions and interrogatories to be taken, directed, and issued;

5. Examine witnesses and otherwise regulate the course of the hearing;

6. Hold conferences for the settlement or simplification of issues by consent of interested parties;

7. Dispose of procedural requests and similar matters;

8. Amend the issues or add new issues, provided the applicant or licensee expressly waives notice thereof. The waiver shall be made a part of the stenographic report of the hearing;

9. Submit initial decisions to the board authority and to other interested parties or their representatives; and

10. Take any other action authorized by the rules of the board authority;

11. Conduct mediation between interested parties; and

12. Require the designation of an interested person to act as a representative for proceedings involving groups of individuals present for the same purpose.

3VAC5-10-120. Interested parties.

As used in this chapter, "interested parties" shall mean the following persons:

1. The applicant;

2. The licensee;

3. Persons who would be aggrieved by a decision of the board Virginia Alcoholic Beverage Control Authority (authority); and

4. For purposes of appeal pursuant to 3VAC5-10-240, interested parties shall be only those persons who appeared at and asserted an interest in the hearing before a hearing officer an administrative law judge.

Where in this chapter reference is made to "licensee," the term likewise shall be applicable to a permittee (i.e., a person that holds or held a permit issued by the authority) or a designated manager to the extent that this chapter are is not inconsistent with the statutes and regulations relating to such persons.

3VAC5-10-130. Motions or requests.

Motions or requests for ruling made prior to the hearing before a hearing officer an administrative law judge shall be in writing,; addressed to the Chief Hearing Officer Administrative Law Judge, Hearings and, Appeals, and Judicial Services Division,; and shall state with reasonable certainty the ground therefor grounds for the motion or request for ruling. Argument upon such motions or requests will not be heard without special leave granted by the hearing officer administrative law judge who will preside over the hearing.

3VAC5-10-150. Consent settlement.

A. Generally. The board, Virginia Alcoholic Beverage Control Authority (authority) or its the authority's designee, may offer to resolve disciplinary cases when the nature of the proceeding and public interest permit. In appropriate cases, the board authority or its the authority's designee will extend an offer for a consent settlement to the licensee.

B. Who may accept. The licensee or his the licensee's attorney may accept an offer of consent settlement. If the licensee is a corporation, only an attorney or an officer, director, or majority stockholder of the corporation may accept an offer of consent settlement.

C. How to accept. The licensee shall return the properly executed consent order along with the payment in full of any monetary penalty no later than 21 calendar days from the date of mailing by the board authority. Failure to respond within the time period will result in a withdrawal of the offer by the agency and a formal hearing will be held on the date specified in the notice of hearing.

D. Effect of acceptance. Acceptance of the consent settlement offer shall constitute an admission of the alleged violation of the A.B.C. laws Alcoholic Beverage Control Act (§ 4.1-100 et seq. of the Code of Virginia) or authority regulations and will result in a waiver of the right to a formal hearing and the right to appeal or otherwise contest the charges. The offer of consent settlement is not negotiable; however, the licensee is not precluded from submitting an offer in compromise under 3VAC5-10-160.

E. Board Authority review. Prior to extending an offer of consent settlement to the licensee, the board authority or its the authority's designee may reject any proposed settlement which that is contrary to law or policy or which that, in its the authority's sole discretion, is not appropriate.

F. Record. Unaccepted offers of consent settlement will become a part of the record only after completion of the hearing process.

3VAC5-10-160. Offers in compromise and negotiations.

A. Following notice of a disciplinary proceeding, a licensee may be afforded opportunity for the submission of an offer in compromise in lieu of suspension or in addition thereto, or in lieu of revocation of his the license, where, in the discretion of the board Virginia Alcoholic Beverage Control Authority (authority), the nature of the proceeding and the public interest permit. Such offer should be addressed to the chief hearing officer administrative law judge. Acceptance of the offer in compromise shall constitute an admission of the alleged violation of the A.B.C. laws Alcoholic Beverage Control Act (§ 4.1-100 et seq. of the Code of Virginia) or authority regulations, and shall result in a waiver of the right to a formal hearing and the right to appeal or otherwise contest the charges. The reason for the acceptance of such an offer shall be made a part of the record of the proceeding. Unless good cause be is shown, continuances for purposes of considering an offer in compromise will not be granted. Offers in compromise may be submitted anytime following notice of a disciplinary proceeding and before the conclusion of an appeal hearing authority issues a final decision in an appeal. Any such offer may not be accepted at the informal conference and no offer shall be submitted after the conclusion of the appeal hearing. The board authority may waive any provision of this section for good cause shown.

B. Following notice of a disciplinary proceeding or objection from the authority to the issuance of a license, a licensee or applicant in conjunction with the authority may agree to a negotiated resolution in lieu of a suspension or in addition thereto, in lieu of revocation of the license, or in lieu of a denial of the application where, in the discretion of the authority, the nature of the proceeding and the public interest permit. Such negotiation shall be handled by the interested party and the authority. Acceptance of a negotiated resolution may constitute an admission of the alleged violation of the Alcoholic Beverage Control Act or authority regulations and shall result in a waiver of the right to a formal hearing and the right to appeal or otherwise contest the charges or objections. Unless good cause is shown, continuances for purposes of finalizing a negotiated resolution will not be granted. Negotiated resolutions may be submitted anytime following notice of a disciplinary proceeding or objections hearing and before the authority issues a final decision in an appeal.

3VAC5-10-170. Record.

A. The certified transcript of testimony, argument, and exhibits, together with all papers and requests filed in the proceeding, shall constitute the exclusive record of the initial decision.

B. Upon due application made to the chief hearing officer administrative law judge, copies of the record of a hearing shall be made available to parties entitled thereto at a fee established by the board Virginia Alcoholic Beverage Control Authority.

3VAC5-10-180. Rehearings.

A No rehearing before a hearing officer an administrative law judge shall not be held in any matter unless it be is affirmatively shown that relevant and material evidence, which ought to produce an opposite result on rehearing, is available,; is not merely cumulative, corroborative, or collateral,; and could not have been discovered before the original hearing by the use of ordinary diligence;, provided, that the board Virginia Alcoholic Beverage Control Authority, in its discretion, may cause a rehearing to be held before a hearing officer an administrative law judge in the absence of the foregoing conditions, as provided in 3VAC5-10-290.

3VAC5-10-190. Self-incrimination.

If any witness subpoenaed to appear on behalf of the board Virginia Alcoholic Beverage Control Authority (authority) shall testify in a hearing before a hearing officer an administrative law judge on complaints against a licensee as to any violation in which the witness, as a licensee or an applicant, has participated, such testimony shall not be used against him nor shall the board the witness. The authority shall take any no administrative action against him the witness for the offense to which he the witness testifies.

3VAC5-10-200. Subpoenas.

Upon request of any interested party, the chief hearing officer, administrative law judge or a hearing officer an administrative law judge is authorized to issue subpoenas requiring the attendance of witnesses and the production of records, memoranda, papers, and other documents at a hearing before a hearing officer an administrative law judge.

3VAC5-10-210. Witnesses.

A. Interested parties shall arrange to have their witnesses present at the time and place designated for the hearing.

B. Upon request of any party entitled to cross-examine witnesses, as set forth in 3VAC5-10-90 B, the hearing officer administrative law judge may separate the witnesses, including agents of the board Virginia Alcoholic Beverage Control Authority (authority).

C. A person subpoenaed as a witness to appear on behalf of the board authority shall be entitled to the same allowance for expenses as witnesses for the Commonwealth in criminal cases.

3VAC5-10-220. Pre-hearing conferences.

A. A pre-hearing conference will be conducted when an applicant for a license or a licensee who is the subject of a disciplinary proceeding does not waive its the right to such a conference. A waiver may be verbal or in writing. Unless the parties are advised otherwise, the agency Virginia Alcoholic Beverage Control Authority (authority) will automatically waive the pre-hearing conference when the applicant or licensee does so. When the applicant or licensee is offered a pre-hearing conference and fails to respond within 10 calendar days after the date of such offer, the pre-hearing conference will be deemed to be waived.

B. The pre-hearing conference will serve as a vehicle to acquaint the interested party, in a general way, with the nature of the charges or objections, and the evidence in support thereof and of the charges or objections, to hear any matters relevant thereto presented by the interested parties, and to explore whether (i) administrative proceedings or objections should be terminated or (ii) the case should proceed to formal hearing and stipulations can be reached. The conference will be open to the public, but participation will be limited to the interested parties, their the interested parties' attorneys-at-law or other qualified representatives, and designated board authority representatives. The pre-hearing conference may be held virtually or telephonically, by telephone and at least five days prior to the formal hearing. The conference may be held, when practical, at the county or city in which the establishment of the applicant or licensee is located. Reasonable notice of administrative charges or objections and the date, time, and place of the conference shall be given to the participants. The failure of the applicant or licensee to appear at a scheduled conference will be deemed a waiver of the pre-hearing conference. The pre-hearing conference will not be recorded. Sworn testimony will not be taken, nor will subpoenas be issued. Any initial decision will include a summary of the pre-hearing conference.

3VAC5-10-230. Agency Virginia Alcoholic Beverage Control Authority representation.

The Director, Chief of the Bureau of Law Enforcement Operations or his a designee may (i) represent the Bureau of Law Enforcement Operations before the board Virginia Alcoholic Beverage Control Authority (authority) or any hearing officer administrative law judge; (ii) petition the board authority for modification of the hearing officer's administrative law judge's decision; or (iii) request a ruling on other motions as may be necessary. This authority does not extend to complaints under the Franchise Acts.

Part II

Hearings Before before the Board Virginia Alcoholic Beverage Control Authority

3VAC5-10-240. Appeals.

A. An interested party may appeal to the board Virginia Alcoholic Beverage Control Authority (authority) an adverse initial decision, including the findings of fact and the conclusions, of a hearing officer an administrative law judge or a proposed decision, or any portion thereof of a proposed decision, of the board authority, provided a request therefor in writing identifying any alleged errors in the decision is received within 30 days after the date of mailing of the initial decision or the proposed decision, whichever is later.

B. At his option, an An interested party may submit written exceptions to the initial or proposed decision within the 30-day period and waive further hearing proceedings.

C. If an interested party fails to appear at a hearing, the board authority may proceed in his the interested party's absence and render a decision.

3VAC5-10-250. Attorneys; representation.

Any individual, partnership, association, or corporation who that is a licensee or applicant for any license or any interested party shall have the right to be represented by counsel at any board Virginia Alcoholic Beverage Control Authority (authority) hearing for which he the licensee, applicant, or interested party has received notice. The licensee, applicant, or interested party shall not be required to be represented by counsel during such hearing. Any officer or director of a corporation may examine, cross-examine, and question witnesses,; present evidence on behalf of the corporation,; draw conclusions; and make arguments before the board authority.

3VAC5-10-260. Communications.

Communications regarding appeal hearings upon licenses and applications for licenses should be addressed to the secretary to the board Chief Clerk of the Hearing, Appeals, and Judicial Services Division.

3VAC5-10-270. Continuances.

Continuances will be granted as in actions at law. Requests for continuances of appeal hearings should be addressed to the secretary to the board Chief Clerk of the Hearings, Appeals, and Judicial Services Division.

3VAC5-10-280. Decision of the board Virginia Alcoholic Beverage Control Authority.

The final decision of the board Virginia Alcoholic Beverage Control Authority, together with any written opinion, should be transmitted to each interested party or to his the interested party's representative.

3VAC5-10-290. Evidence.

A. Generally. Subject to the exceptions permitted in this section, and to any stipulations agreed to by all interested parties, all evidence should be introduced at hearings before hearing officers administrative law judges.

B. Additional evidence. Should the appeal panel or Virginia Alcoholic Beverage Control Authority (authority) determine at an appeal hearing, either upon motion or otherwise, that it is necessary or desirable that additional evidence be taken, the appeal panel may:

1. Direct that a hearing officer an administrative law judge to fix a time and place for the taking of such evidence within the limits prescribed by the board authority and in accordance with 3VAC5-10-180; and

2. Upon unanimous consent of the appeal panel, permit the introduction of after-discovered or new evidence at the appeal hearing.

If the initial decision indicates that the qualifications of the establishment of an applicant or licensee are such as to cast substantial doubt upon the eligibility of the place for a license, evidence may be received at the appeal hearing limited to the issue involved and to the period of time subsequent to the date of the hearing before the hearing officer administrative law judge.

C. Examination. Any appeal panel member may examine a witness upon any question relevant to the matters in issue.

D. Cross-examination. The right to cross-examine and the submission of rebuttal evidence as provided in 3VAC5-10-90 shall be allowed in any appeal hearing where the introduction of additional evidence is permitted.

3VAC5-10-300. Hearings.

Hearings before the board Virginia Alcoholic Beverage Control Authority or appeal panel in the absence of notice to the contrary will be held in the office of the board Virginia Alcoholic Beverage Control Authority, Virginia A.B.C. Building, 7450 Freight Way, Mechanicsville, Virginia 23116.

3VAC5-10-310. Motions or requests.

Motions or requests for rulings, made after a hearing before a hearing officer an administrative law judge and prior to an appeal hearing before the board, Virginia Alcoholic Beverage Control Authority (authority) shall be in writing, addressed to the secretary to the board, Chief Clerk of the Hearings, Appeals, and Judicial Services Division, and shall state with reasonable certainty the grounds therefor for the motion or request for ruling. Argument upon such motions or requests will not be heard without special leave granted by the board authority.

3VAC5-10-320. Notice of hearing.

Reasonable notice of the time and place of an appeal hearing shall be given to each interested party who appeared at the initial hearing or his the interested party's representative.

3VAC5-10-330. Record.

A. The record of the hearing before the hearing officer administrative law judge, including the initial decision, and the transcript of testimony, argument, and exhibits together with all papers and requests filed in the proceeding before the board, Virginia Alcoholic Beverage Control Authority (authority) shall constitute the exclusive record for the final decision of the board authority.

B. Upon due application made to the secretary to the board Chief Clerk of the Hearings, Appeals, and Judicial Services Division, copies of the record, including the decision of the board authority and any opinion setting forth the reasons for the decision, shall be made available to parties entitled thereto at a rate established by the board authority.

3VAC5-10-340. Rehearings and reconsideration. (Repealed.)

The board may, in its discretion for good cause shown, grant a rehearing or reconsideration on written petition of an interested party addressed to the Secretary to the Board and received within 30 days after the date of the final decision of the board. The petition shall contain a full and clear statement of the facts pertaining to the grievance, the grounds in support thereof, and a statement of the relief desired. The board may grant such at any time on its own initiative for good cause shown.

3VAC5-10-350. Scope of hearing.

A. Except as provided in 3VAC5-10-290, the appeal hearing shall be limited to the record made before the hearing officer administrative law judge.

B. The provisions of Part I (3VAC5-10-10 through 3VAC5-10-230) of this chapter shall be applicable to proceedings held under this part except to the extent such provisions are inconsistent herewith with this part.

3VAC5-10-360. Complaints.

Complaints shall be referred in writing to the secretary to the board Chief Clerk of the Hearings, Appeals, and Judicial Services Division.

3VAC5-10-370. Hearings.

Hearings will be conducted in accordance with the provisions of Part I (3VAC5-10-10 through 3VAC5-10-230) of this chapter (3VAC5-10-10 et seq.). Further, the board Virginia Alcoholic Beverage Control Authority (authority) and the hearing officers administrative law judges designated by it the authority may require an accounting to be submitted by each party in determining an award of costs and attorneys' attorney fees.

3VAC5-10-380. Appeals.

The decision of the hearing officer administrative law judge may be appealed to the board Virginia Alcoholic Beverage Control Authority as provided in 3VAC5-10-240. Appeals shall be conducted in accordance with the provisions of Part II (3VAC5-10-240 through 3VAC5-10-350) of this chapter (3VAC5-10-240 et seq.).

3VAC5-10-390. Hearings on notification of price increases.

Upon receipt from a winery, brewery, or wine or beer importer of a request for notice of a price increase less than 30 days in advance, a hearing will be scheduled before the board Virginia Alcoholic Beverage Control Authority (authority), not a hearing officer an administrative law judge, as soon as practicable with five days days' notice to all parties, which include, at a minimum, all the wholesalers selling the winery or brewery's product. There will be no continuances granted and the board authority must rule within 24 hours of the hearing.

3VAC5-10-400. Discovery, prehearing procedures and production at hearings; definitions.

The Rules of the Supreme Court of Virginia Parts One, One A, Two, Two A, Three, and Four shall apply in all proceedings under the Wine and Beer Franchise Acts, Chapters 4 (§ 4.1-400 et seq.) and 5 (§ 4.1-500 et seq.) of Title 4.1 of the Code of Virginia, including mediation and arbitration proceedings when necessary pursuant to §§ 4.1-409 and 4.1-508 of the Code of Virginia. Any references to a "court" contained in the rules shall be deemed to mean the hearing officer administrative law judge or officers of the board Virginia Alcoholic Beverage Control Authority conducting the proceeding.

No provision of this section shall affect the practice of taking evidence at a hearing, but such practice, including that of generally taking evidence ore tenus only at hearings before hearing officers administrative law judges, shall continue unaffected hereby.

3VAC5-10-410. Applicability.

The board Virginia Alcoholic Beverage Control Authority (authority) and its hearing officers administrative law judges may conduct hearings by telephone only when the applicant/licensee applicant or licensee expressly waives the in-person hearing. The board authority will determine whether or not certain hearings might practically be conducted by telephone. The provisions of Part I (3VAC5-10-10 et seq. through 3VAC5-10-230) of this chapter shall apply only to Part IV (3VAC5-10-410 et seq. through 3VAC5-10-470) of this chapter where applicable.

3VAC5-10-420. Appearance.

The interested parties will be expected to be available by telephone at the time set for the hearing and may produce, under oath, evidence relevant and material to the matters in issue. The board Virginia Alcoholic Beverage Control Authority will arrange for telephone conference calls at its expense.

3VAC5-10-430. Argument.

Oral or written argument may be submitted to and limited by the hearing officer administrative law judge. Oral argument is to be included in the stenographic report of the hearing. Written argument, if any, must be submitted to the hearing officer administrative law judge and other interested parties in advance of the hearing.

3VAC5-10-440. Documentary evidence.

Documentary evidence, which that an interested party desires to be considered by the hearing officer, administrative law judge must be submitted to the hearing officer administrative law judge and other interested parties in advance of the hearing.

3VAC5-10-450. Hearings.

A. Telephone hearings will usually originate from the central office of the board Virginia Alcoholic Beverage Control Authority in Richmond Mechanicsville, Virginia, but may originate from other locations. Interested parties An interested party may participate from the location of their the interested party's choice where a telephone is available. If an interested party is not available by telephone at the time set for the hearing, the hearing may be conducted in his the interested party's absence.

B. If at any time during a telephone hearing, the hearing officer administrative law judge determines that the issues are so complex that a fair and impartial hearing cannot be accomplished, the hearing officer administrative law judge shall adjourn the telephone hearing and reconvene an in-person hearing as soon as practicable.

3VAC5-10-490. Mediation.

A. Upon consent of all interested parties, the Virginia Alcoholic Beverage Control Authority (authority) may afford the parties an opportunity to resolve appropriate cases through mediation.

B. The mediations may be conducted by an administrative law judge of the authority.

C. If the mediation is unsuccessful, the matter may proceed to a formal hearing. The administrative law judge who conducted the mediation shall not preside over the formal hearing.