The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (DSHS) adopts, on an emergency basis, amendments to Title 25, Texas Administrative Code, §229.177 and §229.178, concerning Texas Food Establishments; §§229.371 - 229.373, concerning Permitting Retail Food Establishments; §§229.471, 229.473, and 229.474, concerning Inspection Fees for Retail Food Establishments; §229.661, concerning Cottage Food Production Operation; and §229.702 and §229.704, concerning Farmers' Markets. As authorized by Government Code, §2001.034, the Executive Commissioner may adopt an emergency rule without prior notice or hearing, or with an abbreviated notice and hearing, if a state or federal law requires adoption on fewer than 30 days' notice. Emergency rules adopted under Government Code, §2001.034, may be effective for not longer than 120 days and may be renewed for not longer than 60 days.

BACKGROUND AND PURPOSE

In October 2015, DSHS updated retail food safety rules by repealing Title 25, Texas Administrative Code, §§229.161 - 229.171 and §§229.173 - 229.175 (relating to Texas Food Establishments) and replacing them with Title 25, Chapter 228 (relating to Retail Food). When these rules were repealed and replaced, rules elsewhere in Title 25, Chapter 229 (relating to Food and Drug) that incorporated the old rules by reference were not updated to refer to the new rules in Chapter 228. Consequently, DSHS is unable to enforce violations of food safety rules by food establishments, cottage food production operations, and farmers' markets. This lack of authority to enforce food safety rule violations by food establishments, cottage food production operations, and farmers' markets presents an imminent peril to the health, safety, and welfare of the public and therefore requires immediate action.

The purpose of these emergency rule amendments is to update references to the current food safety rules in the food establishment, cottage food production operations, and farmers' markets rules, thereby allowing DSHS to enforce the food establishment, cottage food production operations, and farmers' markets rules relating to food safety in order to protect the health, safety, and welfare of the public.

The emergency rules are adopted under Government Code, §2001.034, and Health and Safety Code, §§437.0056, 437.0193, 437.0202, and §1001.075. Government Code, §2001.034, authorizes the adoption of emergency rules without prior notice or hearing, or with an abbreviated notice and hearing, if an agency finds that an imminent peril to the public health, safety, or welfare or a requirement of state or federal law requires adoption of a rule on fewer than 30 days' notice. Health and Safety Code, §437.0056, requires DSHS to establish a permitting system for the regulation of food establishments and to ensure uniform requirements for retail food operations. Health and Safety Code, §437.0193, requires DSHS to adopt rules for labeling of foods produced by cottage food production operations. Health and Safety Code, §437.0202, authorizes DSHS to implement rules relating to food temperature requirements and permits at farmers' markets. Government Code, §531.0055, and Health and Safety Code, §1001.075, 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 DSHS and for the administration of Health and Safety Code, Chapter 1001.