BILL NUMBER: AB 226 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 7, 2015
INTRODUCED BY Assembly Member Atkins
(Coauthors: Assembly Members Chávez, Jones, Maienschein, Waldron,
and Weber)
(Coauthors: Senators Anderson, Bates, and Block
Block, and Hueso )
FEBRUARY 3, 2015
An act to amend Sections 113779, 113789, 113818,
113839, 113984, 114053, and 114266 of,
and to add Section 113780
Sections 113729.5, 113780, and 113794.3 to, and to add Chapter
12.7 (commencing with Section 114378) to Part 7 of Division 104 of,
the Health and Safety Code, relating to food safety.
LEGISLATIVE COUNSEL'S DIGEST
AB 226, as amended, Atkins. Retail food safety: fishermen's
markets.
Existing law, the California Retail Food Code, establishes uniform
health and sanitation standards for, and provides for regulation by
the State Department of Public Health of, retail food facilities and
various types of food. Among other things, the code requires
nonpermanent food facilities that handle nonprepackaged food to
protect the food from contamination and limit the display and
handling of nonprepackaged food. The code also establishes specified
food safety and sanitation requirements for certified farmers'
markets governing food preparation, storage, and sampling, among
other things. Under existing law, local health agencies are primarily
responsible for enforcing the code. A person who violates any
provision of the code is guilty of a misdemeanor, except as otherwise
provided.
This bill would create a new type of nonpermanent food facility,
defined as a "fishermen's market," that would be a food facility
operated by a licensed commercial fisherman, a registered
aquaculturist, or an entity representing California seafood
producers, that sells only raw fresh or
edible aquatic plants, raw fresh fish, or fresh frozen fish,
legally caught by California-licensed commercial fishermen or
harvested by California-registered aquaculturists, directly to
consumers. The bill would establish and impose food safety and
sanitation requirements upon a fishermen's market. The bill would
authorize only a licensed commercial fisherman, a registered
aquaculturist, or an entity representing California seafood producers
to act as the responsible person and sole permit holder
permitholder for a fishermen's market, and would
require that fisherman a registered aquaculturist, or entity to
submit a permit application and site plan, including specified
information, to the local enforcement agency at
least two 2 weeks prior to the
operation of the fishermen's market. The bill would define terms for
its purposes and make conforming changes.
By imposing new enforcement requirements on local health agencies,
and by creating a new crime, the bill would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 113729.5 is added to the
Health and Safety Code , to read:
113729.5. "Acceptable market name" means a name that the FDA
recognizes as a suitable statement of identity, as described in
Section 101.3 of Title 21 of the Code of Federal Regulations, in the
labeling of a species. An acceptable market name fairly represents
the identity of the species to United States consumers because it is
not confusingly similar to the name of another species and because it
is not otherwise misleading. An acceptable market name may be any of
the following:
(a) A common or usual name established by either a history of
common usage in the United States or by regulation.
(b) The common name.
(c) A name specifically coined as the market name for a species.
For example, "basa" is the market name coined for Pangasius bocourti.
SECTION 1. SEC. 2. Section 113779 of
the Health and Safety Code is amended to read:
113779. (a) "Fish" means fresh or saltwater finfish, crustaceans,
and other forms of aquatic life including edible aquatic
plants, life, other than birds or mammals, and
all molluscan shellfish, if intended for human consumption. "Fish"
also includes alligator, frog, aquatic turtle, jellyfish, sea
cucumber, and sea urchin, and the roe of these animals.
(b) "Fish" includes a product derived in whole or in part from
fish, including fish that have been processed in any manner.
SEC. 2. SEC. 3. Section 113780 is
added to the Health and Safety Code, to read:
113780. "Fishermen's Market" means a food facility
location that is operated by a licensed
commercial fisherman licensed by the Department of
Fish and Wildlife or an entity representing California seafood
producers, that sells only raw fresh edible
aquatic plants, raw fresh fish, or fresh frozen fish, caught by
California-licensed commercial fishermen
licensed by the Department of Fish and Wildlife or harvested by
California-registered aquaculturists, directly to consumers.
SEC. 3. SEC. 4. Section 113789 of
the Health and Safety Code is amended to read:
113789. (a) "Food facility" means an operation that stores,
prepares, packages, serves, vends, or otherwise provides food for
human consumption at the retail level, including, but not limited to,
the following:
(1) An operation where food is consumed on or off the premises,
regardless of whether there is a charge for the food.
(2) A place used in conjunction with the operations described in
this subdivision, including, but not limited to, storage facilities
for food-related utensils, equipment, and materials.
(b) "Food facility" includes permanent and nonpermanent food
facilities, including, but not limited to, the following:
(1) Public and private school cafeterias.
(2) Restricted food service facilities.
(3) Licensed health care facilities, except as provided in
paragraph (13) of subdivision (c).
(4) Commissaries.
(5) Mobile food facilities.
(6) Mobile support units.
(7) Temporary food facilities.
(8) Vending machines.
(9) Certified farmers' markets, for purposes of permitting and
enforcement pursuant to Section 114370.
(10) Farm stands, for purposes of permitting and enforcement
pursuant to Section 114375.
(11) Fishermen's market. markets.
(c) "Food facility" does not include any of the following:
(1) A cooperative arrangement wherein no permanent facilities are
used for storing or handling food.
(2) A private home, including a cottage food operation that is
registered or has a permit pursuant to Section 114365.
(3) A church, private club, or other nonprofit association that
gives or sells food to its members and guests, and not to the general
public, at an event that occurs not more than three days in any
90-day period.
(4) A for-profit entity that gives or sells food at an event that
occurs not more than three days in a 90-day period for the benefit of
a nonprofit association, if the for-profit entity receives no
monetary benefit, other than that resulting from recognition from
participating in an event.
(5) Premises set aside for wine tasting, as that term is used in
Section 23356.1 of the Business and Professions Code and in the
regulations adopted pursuant to that section, that comply with
Section 118375, regardless of whether there is a charge for the wine
tasting, if no other beverage, except for bottles of wine and
prepackaged nonpotentially hazardous beverages, is offered for sale
for onsite consumption and no food, except for crackers, is served.
(6) Premises operated by a producer, selling or offering for sale
only whole produce grown by the producer or shell eggs, or both,
provided the sales are conducted on premises controlled by the
producer.
(7) A commercial food processing establishment as defined in
Section 111955.
(8) A child day care facility, as defined in Section 1596.750.
(9) A community care facility, as defined in Section 1502.
(10) A residential care facility for the elderly, as defined in
Section 1569.2.
(11) A residential care facility for the chronically ill, which
has the same meaning as a residential care facility, as defined in
Section 1568.01.
(12) Premises set aside by a beer manufacturer, as defined in
Section 25000.2 of the Business and Professions Code, that comply
with Section 118375, for the purposes of beer tasting, regardless of
whether there is a charge for the beer tasting, if no other beverage,
except for beer and prepackaged nonpotentially hazardous beverages,
is offered for sale for onsite consumption, and no food, except for
crackers, pretzels, or prepackaged food that is not potentially
hazardous food is offered for onsite consumption.
(13) (A) An intermediate care facility for the developmentally
disabled, as defined in subdivisions (e), (h), and (m) of Section
1250, with a capacity of six beds or fewer.
(B) A facility described in subparagraph (A) shall report any
foodborne illness or outbreak to the local health department and to
the State Department of Public Health within 24 hours of the illness
or outbreak.
(14) A community food producer, as defined in Section 113752.
(d) "Fresh frozen" means that the food was quickly frozen while
still fresh, including immediately after the food had been harvested
or fish had been caught.
SEC. 5. Section 113794.3 is added to
the Health and Safety Code , to read:
113794.3. "Fresh frozen" means that the food was quickly frozen
while still fresh, including immediately after the food had been
harvested or fish had been caught.
SEC. 4. Section 113818 of the Health and Safety
Code is amended to read:
113818. (a) "Limited food preparation" means food preparation
that is restricted to one or more of the following:
(1) Heating, frying, baking, roasting, popping, shaving of ice,
blending, steaming or boiling of hot dogs, or assembly of
nonprepackaged food.
(2) Dispensing and portioning of nonpotentially hazardous food.
(3) Holding, portioning, and dispensing of any foods that are
prepared for satellite food service by the onsite permanent food
facility or prepackaged by another approved source.
(4) Slicing and chopping of food on a heated cooking surface
during the cooking process.
(5) Cooking and seasoning to order.
(6) Preparing beverages that are for immediate service, in
response to an individual consumer order, that do not contain frozen
milk products.
(7) Shucking oysters.
(8) Eviscerating fish at a fishermen's market.
(b) "Limited food preparation" does not include any of the
following:
(1) Slicing and chopping unless it is on the heated cooking
surface.
(2) Thawing.
(3) Cooling of cooked, potentially hazardous food.
(4) Grinding raw ingredients or potentially hazardous food.
(5) Reheating of potentially hazardous foods for hot holding,
except for steamed or boiled hot dogs and tamales in the original,
inedible wrapper.
(6) Except as authorized in paragraph (3) of subdivision (a), hot
holding of nonprepackaged, potentially hazardous food, except for
roasting corn on the cob, steamed or boiled hot dogs, and tamales in
the original, inedible wrapper.
(7) Washing of foods.
(8) Cooking of potentially hazardous foods for later use.
SEC. 5. SEC. 6. Section 113839 of
the Health and Safety Code is amended to read:
113839. "Nonpermanent food facility" means a food facility that
operates from a mobile unit or at a nonpermanent location, including,
but not limited to, a certified farmers' market, a fishermen's
market, a mobile food facility, a mobile support unit, a temporary
food facility, or a vending machine.
SEC. 6. SEC. 7. Section 113984 of
the Health and Safety Code is amended to read:
113984. (a) Adequate and suitable counter space shall be provided
for all food preparation operations.
(b) Except as specified in subdivision (c) or (h),
(c), food preparation shall be conducted within
a fully enclosed food facility.
(c) Limited food preparation shall be conducted within a food
compartment or as approved by the enforcement agency. Subject to
subdivision (g), this subdivision does not to
require an additional food compartment when doing either of
the following:
(1) Eviscerating fish at a fishermen's market.
(2) Adding
adding ingredients to a beverage or dispensing
into a serving container when the beverage is prepared for immediate
service in response to an individual consumer order.
(d) Food shall be prepared with suitable utensils and on surfaces
that, prior to use, have been cleaned, rinsed, and sanitized as
specified in Section 114117 to prevent cross-contamination.
(e) Overhead protection shall be provided above all food
preparation, food display, warewashing, and food storage areas.
(f) All food shall be thawed, washed, sliced, and cooled within an
approved fully enclosed food facility.
(g) Based upon local environmental conditions, location, and other
similar factors, the enforcement officer may establish additional
structural or operational requirements, or both, for mobile food
facilities as necessary to ensure that foods, food-contact surfaces,
and utensils are of a safe and sanitary quality.
(h) Full enclosure of a food facility is not required for limited
food preparation when the other requirements of this section are met
and the food facility can be fully enclosed or placed within a fully
enclosed facility during periods of non-operation.
SEC. 7. Section 114053 of the Health and Safety
Code is amended to read:
114053. (a) Prepackaged food may not be stored in direct contact
with ice or water if the food is subject to the entry of water
because of the nature of its packaging, wrapping, or container, or
its positioning in the ice or water.
(b) Except as specified in subdivisions (c) and (d),
nonprepackaged food may not be stored in direct contact with
undrained ice.
(c) Whole raw fruits or vegetables, cut raw vegetables, and tofu
may be immersed in ice or water.
(d) (1) Raw chicken and raw fish that are received immersed in ice
in shipping containers may remain in that condition while in storage
awaiting preparation, display, service, or sale.
(2) Whole or eviscerated raw fresh fish may be placed on ice while
on display for sale.
SEC. 8. Section 114266 of the Health and Safety Code is amended to
read:
114266. (a) Each permanent food facility shall be fully enclosed
in a building consisting of permanent floors, walls, and an overhead
structure that meet the minimum standards as prescribed by this part.
Food facilities that are not fully enclosed on all sides and that
are in operation on January 1, 1985, shall not be required to meet
the requirements of this section until the facility is remodeled or
has a significant menu change in its menu
or significant change in its method of
operation.
(b) Notwithstanding subdivision (a), this section does not require
the enclosure of dining areas or any other operation approved for
outdoor food service, or limited food preparation
operations. service.
(c) Notwithstanding subdivision (a), a produce stand that was in
operation prior to January 1, 2007, shall have no more than one side
open to the outside air during business hours.
SEC. 9. Chapter 12.7 (commencing with Section 114378) is added to
Part 7 of Division 104 of the Health and Safety Code, to read:
CHAPTER 12.7. FISHERMEN'S MARKETS
114378. A fishermen's market shall meet the applicable
requirements of this chapter and Chapter 13 (commencing
with Section 114380), and the applicable requirements of
Chapter 1 (commencing with Section 113700), Chapter 2 (commencing
with Section 113728), Chapter 3 (commencing with Section 113945),
Chapter 4 (commencing with Section 113980), Chapter 5 (commencing
with Section 114095), Chapter 6 (commencing with Section 114130),
Chapter 7 (commencing with Section 114189), and
Chapter 8 (commencing with Section 114250), and Chapter 13
(commencing with Section 114380), unless specifically
exempt or otherwise exempted as provided in this
chapter.
114378.1. (a) Fish sold in a fishermen's market shall be raw and
may be displayed whole or eviscerated. A fisherman selling fish in a
fishermen's market shall only sell raw edible aquatic plants or
fish that he or she caught legally, or that was caught by one
or two other licensed commercial fishermen. If a fisherman sells fish
caught by another licensed commercial fisherman, the fisherman shall
provide a copy of that other fisherman's commercial license and
contact information upon the request of the local
enforcement agency.
(b) A fishermen's market may provide a separate service that
fillets, cuts, or packages fish for customers who purchase direct
sales of fish within the fishermen's market as a temporary food
facility, mobile food facility, or other facility approved by the
local enforcement agency. A separate health permit
is required and applicable requirements for that category of permit
shall be met.
(c) Fish parts from the day's operations may be used for bait by a
licensed commercial fisherman or registered aquaculturist.
(d) Ice used for refrigeration purposes shall not be used for
consumption in food or beverages.
(e) Except as otherwise provided in Section 113996, during
operating hours of a fishermen's market, potentially hazardous food
may be held at a temperature not to exceed 45 degrees Fahrenheit for
up to 12 hours during a 24-hour period.
(e) Notwithstanding subdivision (b) and Section 113818, raw fish
may be eviscerated at a fishermen's market.
114378.2. A fishermen's market shall meet all of the following
requirements:
(a) The Each fishermen's market food booth
shall post the name of the fisherman, vessel or farm, and
species acceptable market name of fish
sold, shall be sold so they are legible
and clearly visible to patrons.
(b) Notwithstanding Section 113953, handwashing facilities for a
fishermen's market food both that operates for three
consecutive days or less may include a container capable of
providing a continuous stream of water from an approved source that
leaves both hands free to allow vigorous rubbing with soap and warm
water for 10 to 15 seconds, inclusive. A catch basin shall be
provided to collect wastewater, and the wastewater shall be properly
disposed of according to Section 114197.
(c) Handwashing facilities shall be equipped with handwashing
cleanser and single-use sanitary towels. A separate receptacle shall
be available for towel waste.
(d) Notwithstanding Section 114205, potable water shall be
available for handwashing and sanitizing as approved by the
local enforcement agency.
(e) Approved toilet and handwashing facilities shall be available
within 200 feet of the premises of a fishermen's market or as
approved by the local enforcement agency.
(f) All garbage and refuse shall be stored and disposed of in a
manner approved by the local enforcement agency.
(g) Wastewater shall be disposed of in a facility connected to the
public sewer system or in a manner approved by the local
enforcement agency.
(h) Floors shall be constructed of concrete, asphalt, tight wood,
or other similar cleanable material kept in good repair.
(i) Overhead protection shall be provided for all food
preparation, over the evisceration process, food
storage, food display, and warewashing areas. Overhead
protection shall be made of wood, canvas, or other materials that
protect the facility from precipitation, dust, bird and insect
droppings, and other contaminants.
(j) Notwithstanding Section 114095, approved warewashing
facilities may be shared if the sink is centrally located and is
adjacent to the sharing facilities. The local
enforcement agency may also approve use of warewashing facilities
within a permanent facility if it is located within 200 feet of the
premises of the fishermen's market or as approved by the
local enforcement agency.
(k) Food-related and utensil-related equipment shall be located
and installed to prevent food contamination.
(l) During periods of nonoperation, food
inoperation, food, food equipment, and utensils shall be stored
within a fully enclosed facility approved by the local
enforcement agency, or in approved food compartments where
the food is food, food equipment, and
utensils are protected at all times from contamination,
exposure to the elements, ingress of rodents or other vermin, and
temperature abuse.
114378.3. (a) A permit application and site plan shall be
submitted to the local enforcement agency at least
two weeks prior to the operation of a fishermen's market. Only
California-registered commercial fishermen, California-registered
aquaculturists, or an entity representing California seafood
producers may act as the responsible person and sole permit
holder permitholder for a fishermen's market.
The site plan shall include all of the following:
(1) A map with proposed locations of the fishermen's market
food booths, boundaries of the fishermen's market, restrooms,
refuse containers, potable water supply faucets, waste water
waste water disposal facilities, and
all shared warewashing and hand washing facilities as applicable.
(2) Details of the materials and methods used to construct the
food booths.
(3) Foods that will be handled and dispensed.
(4) Procedures for food handling, food temperature control, refuse
management, cleaning and sanitizing utensils and equipment, and
cleaning structures and premises.
(5) Procedures for transporting food to and from the fishermen's
market and actions taken to prevent contamination.
(6) List of names of licensed commercial fishermen or registered
aquaculturists, copies of their licenses or registrations, and a
document authorizing the organizer to act as the responsible person
and permit holder on their behalf.
(b) A fishermen's market may operate adjacent, to
adjacent to, or in conjunction with, a food
facility or a community event. In those situations, the fishermen's
market is only subject to the limitations and requirements of a
fishermen's market. The other food facilities remain subject to the
limitations and requirements, including separate permit requirements,
that are applicable to the type of facility being operated.
SEC. 10. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.