The following words and terms, when used in these sections,
shall have the following meanings, unless the context clearly indicates
otherwise:
(1) Child care center--Any facility licensed by the
regulatory authority to receive 13 or more children for child care
which prepares food for on-site consumption. A child care center is
classified as a food establishment.
(2) Department--The Department of State Health Services.
(3) Food--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 chewing gum.
(4) Food employee--An individual working with unpackaged
food, food equipment or utensils, or food-contact surfaces.
(5) Food establishment--
(A) Food establishment means an operation that stores,
prepares, packages, serves, vends, or otherwise provides food for
human consumption:
(i) such as a restaurant; retail food store; satellite
or catered feeding location; catering operation if the operation provides
food directly to a consumer or to a conveyance used to transport people;
market; vending location; conveyance used to transport people; institution;
or food bank; and
(ii) that relinquishes possession of 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.
(B) 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 feeding
location is permitted 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; and regardless of whether there is a charge
for the food.
(C) Food establishment does not include:
(i) an establishment that offers only prepackaged foods
that are not potentially hazardous;
(ii) a produce stand that only offers whole, uncut
fresh fruits and vegetables;
(iii) a food processing plant;
(iv) a kitchen in a private home if only food that
is not potentially hazardous is prepared for sale or service at a
function such as a religious or charitable organization's bake sale
if allowed by law;
(v) an area where food that is prepared as specified
in clause (iv) of this subparagraph is sold or offered for human consumption;
(vi) a Bed and Breakfast Limited facility as defined
in §228.2 of this title (relating to Definitions); or
(vii) a private home that receives catered or home-delivered
food.
(D) All definitions found in Chapter 228 of this title
(relating to Retail Food) are applicable to these sections except
that, for purposes of inspection or payment of inspection fees only,
the term "food establishment" does not include:
(i) food establishments permitted and inspected under
authority granted to Home-Rule or Type A General-Law Municipalities;
(ii) federally inspected food establishments on federal
property;
(iii) food establishments at correction facilities
under the inspection of the Texas Department of Criminal Justice;
(iv) food establishments on state campuses inspected
by state college or university personnel in accordance with the requirements
of §229.373 of this title (relating to Minimum Standards for
Permitting and Operation);
(v) food establishments licensed under the Health and
Safety Code, Chapter 431, as manufacturers of food;
(vi) mobile food units permitted and inspected under
the authority granted to Home-Rule or Type A General-Law Municipalities
and which operate only within their respective jurisdictions.
(6) Food service establishment--A food establishment
as defined in these rules.
(7) Group residence--A private or public housing corporation
or institutional facility that provides living quarters and meals.
The term includes a domicile for unrelated persons such as a retirement
home, correctional facility, or a long-term care facility.
(8) Mobile food establishment--A vehicle mounted food
establishment that is readily moveable.
(9) Nonprofit organization--A civic or fraternal organization,
charity, lodge, association, proprietorship or corporation possessing
a 501(C) exemption under the Internal Revenue Code; or religious organizations
meeting the definition of "church" under the Internal Revenue
Code, §170(b)(1)(A)(I). Nonprofit organizations are exempted
from obtaining a permit as specified in §229.372(e) of this title
(relating to Permitting Fees and Procedures). Nonprofit organizations
are not exempted from the payment of an inspection fee as required
under §229.472 of this title.
(10) Person--An association, corporation, individual,
partnership, other legal entity, government, or governmental subdivision
or agency.
(11) Potentially hazardous food--
(A) Potentially hazardous food (PHF) means a food that
requires time and temperature control for safety (TCS) to limit pathogen
growth or toxin production.
(B) Potentially hazardous food includes:
(i) an animal food (a food of animal origin), including
fresh shell eggs, that is raw or heat-treated; a food of plant origin
that is heat-treated or consists of raw seed sprouts; cut melons;
and garlic-in-oil mixtures that are not modified in a way that results
in mixtures that do not support growth as specified under subparagraph
(A) of this paragraph; and
(ii) a food whose pH/aw interaction
is designated as PHF/TCS in one of the tables listed in subparagraph
(D) of this paragraph, unless a product assessment or vendor documentation
acceptable to the regulatory authority is provided.
(C) Potentially hazardous food does not include:
(i) an air-cooled hard-boiled egg with shell intact,
or a shell egg that is not hard-boiled, but has been treated to destroy
all viable Salmonellae;
(ii) a food whose pH/aw interaction
is designated as non-PHF/non-TCS in one of the tables in subparagraph
(D) of this paragraph;
(iii) a food, in an unopened hermetically sealed container,
that is commercially processed to achieve and maintain commercial
sterility under conditions of non-refrigerated storage and distribution;
(iv) a food for which a product assessment, including
laboratory evidence, demonstrates that time and temperature control
for safety is not required and that may contain a preservative, other
barrier to the growth of microorganisms, or a combination of barriers
that inhibit the growth of microorganisms; or
(v) a food that does not support the growth of microorganisms
as specified under subparagraph (A) of this paragraph even though
the food may contain an infectious or toxigenic microorganism or chemical
or physical contaminant at a level sufficient to cause illness.
(D) Potentially hazardous food does not include food
that, because of pH, water activity (aw )
or the interaction of pH and aw , is considered
non-PHF/non-TCS in Table A or B below. Guidance for using the tables
is provided in the document entitled "Using pH, aw , or the Interaction of pH and aw to Determine If a Food Requires Time/Temperature
Control for Safety (TCS)". Copies of the guidance document may
be downloaded from the following website: http://www.dshs.state.tx.us,
or may be obtained from the department, 1100 West 49th Street, Austin,
Texas 78756-3182.
(i) Table A.
Attached Graphic
(ii) Table B.
Attached Graphic
(12) Pushcart--A non self-propelled mobile food unit
limited to serving nonpotentially hazardous food or potentially hazardous
foods requiring a limited amount of preparation as authorized by the
regulatory authority. A pushcart is classified as a mobile food unit.
A pushcart does not include non self-propelled units owned and operated
within a retail food store.
(13) Roadside food vendor--A person who operates a
mobile retail food store from a temporary location adjacent to a public
roadway or highway. Foods shall not be prepared or processed by a
roadside food vendor. A roadside vendor is classified as a mobile
food establishment.
(14) School food establishment--A food service establishment
where food is prepared or served and intended for service primarily
to students in institutions of learning including, but not limited
to, public and private schools, including kindergarten, preschool
and elementary schools, junior high schools, high schools, colleges,
and universities. A school food establishment is classified as a food
establishment.
(15) Temporary food establishment--A food establishment
that operates for a period of no more than 14 consecutive days in
conjunction with a single event or celebration.
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