The Executive Commissioner of the Health and Human Services Commission (commission), on behalf of the Department of State Health Services (department) adopts new §§229.701 - 229.704, concerning the regulation of food at farmers' markets. Section 229.703 and §229.704 are adopted with changes to the proposed text as published in the February 7, 2014, issue of the Texas Register (39 TexReg 582). Section 229.701 and §229.702 are adopted without changes and, therefore, the sections will not be republished.

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 directs 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 this 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.

COMMENTS

The department, on behalf of the commission, has reviewed and prepared responses to the comments received regarding the proposed rules during the comment period, which the commission has reviewed and accepts. A public hearing to receive comments on the proposed rules was held at the department on March 3, 2014. The commenters were Representative David Simpson and an individual with The Farm and Ranch Freedom Alliance. The commenters were not against the rules in their entirety; however, the commenters suggested recommendations for change as discussed in the summary of comments.

Comment: Concerning sampling at a farmers' market, a commenter asked that a section be added to the rule that sets out the conditions for providing samples at the farmers' markets.

Response: The commission disagrees with adding a section to the rule as SB 81 does not allow the department to adopt rules that regulate the provision of samples. No change was made to the rules as a result of this comment.

Comment: Concerning the issuance of a temporary food establishment permit for cooking demonstrations for a bona fide educational purpose without requiring a fee, one commenter asked that a new section be added to state that a fee not be charged.

Response: The commission disagrees with adding a section as HB 1382 does not allow the department to adopt rules that regulate cooking demonstrations. No change was made to the rules as a result of this comment.

Comment: Concerning mobile food vending permits, one commenter asked that the rules be considered for revision to encourage more mobile food vending permits being issued.

Response: The commission disagrees that additional revision is necessary because the proposed §229.703 includes language that allows local health jurisdictions to issue different types of permits to farmers' market vendors, including a mobile food vending license. No change was made to the rules as a result of this comment.

Comment: Concerning adding a definition to §229.701, a commenter asked for a definition for "bona fide educational purpose."

Response: The commission disagrees with adding the definition. Health and Safety Code, §437.0203(b)(2) prohibits the adoption of a rule regulating cooking demonstrations at a farmers' market. No change was made to the rules as a result of this comment.

Comment: Concerning §229.703, two commenters were not in favor of this rule and asked for local jurisdictions to have the ability to issue permits to vendors at farmers' markets as they determine.

Response: The commission agrees and revised §229.703 to add "the department or the local health department may issue a permit to" a person who sells potentially hazardous food (time/temperature control for safety food) at a farmers' market. Adding this language clarifies that local health jurisdictions may issue the appropriate type of permit for a famers' market. Placing a time frame on a temporary food establishment permit would not be necessary as it is already in statute.

Comment: Concerning §229.704, temperature requirements, a commenter asked that a new section be added stating that the method of achieving and maintaining the mandatory temperatures be at the discretion of the individual.

Response: The commission disagrees with adding a section to the rule mandating a method for temperature control. Health and Safety Code, §437.0202(c) prohibits the department from mandating a specific method for complying with temperature control. No change was made to the rules as a result of this comment.

Section 229.704(d)(5)(B) was revised for consistency with rule text formatting by deleting the word "and" at the end of the subparagraph.

LEGAL CERTIFICATION

The Department of State Health Services, General Counsel, Lisa Hernandez, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.

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.