# Title 33 — State Department of Health

## Article 33-33 — Rules Initiated by the Inspection Division

## Chapter 33-33-04.1 — Food Code

by Reference
### § 33-33-04.1-01. Adoption of the United States food and drug administration 2017 Model Food

Code by reference.
The provisions of the United States food and drug administration 2017 Model Food Code and its
supplement are adopted by reference into this chapter, with the following modifications:
1. Paragraph 1-201.10 Statement of Application for Listing of Terms. For purposes of this
chapter, subparagraph (3)(f) of the food establishment definition is revised as follows:
(f) A kitchen in a private home, such as a self-declared child care provider or an early
childhood program licensed for thirty or fewer children pursuant to North Dakota Century
Code chapter 50-11.1; or a bed-and-breakfast operation that prepares and offers food to
guests if the home is owner occupied, the number of available guests bedrooms does not
exceed six, breakfast is the only meal offered, the number of guests served does not
exceed eighteen, and the consumer is informed by statements contained in published
advertisements, mailed brochures, and placards posted at the registration area that the
food is prepared in a kitchen that is not regulated and inspected by the regulatory
authority; or
2. Paragraph 2-102.12 Certified Food Protection Manager. For the purposes of this chapter, is
excluded.
3. Paragraph 2-102.20 (B) Food Protection Manager Certification. For the purposes of this
chapter, is excluded.
4. Paragraph 8-401.10 Establishing Inspection Interval. For the purposes of this chapter, is
revised as follows:
a. Except as specified in subdivisions b and c of this subsection, the regulatory authority, at
any time during operation, may inspect a food establishment. The department shall
determine the frequency of inspection based on the level of risk categorization,
complaints, and previous compliance history.
b. The regulatory authority may increase the interval between inspections if:
(1) The food establishment is fully operating under an approved and validated hazard
analysis critical control point plan as specified under section 8-201.14 and
paragraphs 8-103.12 (A) and (B);
(2) The food establishment is assigned a less frequent inspection frequency based on a
written risk-based inspection schedule that is being uniformly applied throughout the
jurisdiction. The food establishment may be contacted by telephone or other means
by the regulatory authority to ensure the establishment manager and the nature of
food operation are not changed; or
(3) The establishment's operation involves only coffee service and other unpackaged or
prepackaged food that is not time/temperature control for safety food, such as
carbonated beverages and snack food, such as chips, nuts, popcorn, and pretzels.

c. The regulatory authority periodically shall inspect throughout its permit period a
temporary food establishment that prepares, sells, or serves unpackaged
time/temperature control for safety food and that:
(1) Has improvised rather than permanent facilities or equipment for accomplishing
functions, such as handwashing, food preparation and protection, food temperature
control, warewashing, providing drinking water, waste retention and disposal, and
insect and rodent control; or
(2) Has inexperienced food employees.
5. Paragraph 8-405.11 Timely Correction. For the purpose of this chapter, is revised as follows:
a. Except as specified in subdivision b of this subsection, a permitholder at the time of
inspection shall correct a violation of a priority item or priority foundation item of this code
and implement corrective actions for a hazard analysis critical control point 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 regulatory authority may agree to or specify a longer time
frame and approve a compliance schedule.
6. Paragraph 8-406.11 Time Frame for Correction. For the purpose of this chapter, is revised as
follows:
a. Except as specified in subdivision b of this subsection, the permitholder shall correct core
items by a date and time agreed to or specified by the regulatory authority.
b. The regulatory authority may approve a compliance schedule that extends beyond the
time limits specified under subdivision a of this subsection if a written schedule of
compliance is submitted by the permitholder and no health hazard exists or will result
from allowing an extended schedule for compliance.
History: Effective January 1, 2018; amended effective January 1, 2024.
General Authority: NDCC 23-09
Law Implemented: NDCC 23-09
