The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), proposes new §§229.701 - 229.704, concerning the regulation of food at farmers' markets.

BACKGROUND AND PURPOSE

The purpose of the new rules is to implement Senate Bill (SB) 81 of the 82nd Legislature, Regular Session, 2011, and House Bill (HB) 1382 of the 83rd Legislature, Regular Session, 2013, that amends Health and Safety Code, Chapter 437, relating to requirements for farmers' markets. SB 81 and HB 1382 direct the department to adopt rules under Health and Safety Code, §437.020 and §437.0202, as they relate to food temperature requirements and permits at farmers' markets that sell to consumers.

SECTION-BY-SECTION SUMMARY

New §229.701 sets forth the purpose and applicability of the subchapter.

New §229.702 defines and clarifies the intended meaning of words and terms used in the subchapter.

New §229.703 sets forth permit requirements for a person who sells potentially hazardous food at a farmers' market.

New §229.704 sets forth temperature and cook time controls for the safety of food at farmers' markets, along with the maintenance of proper storage of food.

FISCAL NOTE

Jon Huss, Section Director, Environmental and Consumer Safety Section, has determined that for each year of the first five years that the sections will be in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the sections as proposed.

SMALL AND MICRO-BUSINESS IMPACT ANALYSIS

Mr. Huss has also determined that there will be no effect on small businesses or micro-businesses required to comply with the sections as proposed. This was determined by interpretation of the rules that small businesses and micro-businesses will not be required to alter their business practices in order to comply with the sections.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the sections as proposed. There is no anticipated negative impact on local employment.

PUBLIC BENEFIT

In addition, Mr. Huss has also determined that for each year of the first five years the sections are in effect, the public will benefit from adoption of the sections. The public benefit anticipated as the result of administering these sections is the assurance of food safety at farmers markets.

REGULATORY ANALYSIS

The department has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state.

TAKINGS IMPACT ASSESSMENT

The department has determined that the proposed new rules do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking under Government Code, §2007.043.

PUBLIC COMMENT

Comments on the proposed new rules may be submitted to Christopher Sparks, Public Sanitation and Retail Food Safety, Policy, Standards and Quality Assurance Unit, Division of Regulatory Services, Environmental and Consumer Safety Section, Department of State Health Services, Mail Code 1987, P.O. Box 149347, Austin, Texas 78714-9347, (512) 834-6770, extension 2303, or by email to christopher.sparks@dshs.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.

PUBLIC HEARING

A public hearing to receive comments on the proposal will be scheduled after publication in the Texas Register and will be held at the Department of State Health Services, Exchange Building, 8407 Wall Street, Austin, Texas 78754. The meeting date will be posted on the Food Establishments Group website at www.dshs.state.tx.us/foodestablishments. Please contact Christopher Sparks at (512) 834-6770, extension 2303, or christopher.sparks@dshs.state.tx.us if you have questions.

LEGAL CERTIFICATION

The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.

STATUTORY AUTHORITY

The new rules are authorized under the Health and Safety Code, Chapter 437, which provides the Executive Commissioner of the Health and Human Services Commission with authority to adopt rules and guidelines under §§437.020, 437.0201 and 437.0202; and Government Code, §531.0055(e), and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

The new rules affect Health and Safety Code, Chapters 437 and 1001; and Government Code, Chapter 531.