The Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes amendments to Chapter 229 Food and Drug, Subchapter K, Texas Food Establishments, §229.177, concerning Certification of Food Managers in Areas Under the Department of State Health Services Permitting Jurisdiction; and §229.178, concerning Accreditation of Food Handler Education or Training Programs; Subchapter U, Permitting Retail Food Establishments, §229.371 concerning Definitions; §229.372, concerning Permitting Fees and Procedures; and §229.373, concerning Minimum Standards for Permitting and Operation; Subchapter Z, Inspection Fees for Retail Food Establishments, §229.471, concerning Definitions; §229.473, concerning Minimum Standards for Permitting and Operation; and §229.474, concerning Refusal of Inspection Request; Administrative Penalties; Subchapter EE, Cottage Food Production Operation, §229.661, concerning Cottage Food Production Operations; and Subchapter FF, Farmers' Markets, §229.702, concerning Definitions; and §229.704, concerning Temperature Requirements.

BACKGROUND AND PURPOSE

In October 2015, DSHS updated retail food safety rules by repealing 25 TAC §§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 When these rules were repealed and replaced, rules elsewhere in Title 25, Chapter 229 (relating to Food and Drug) that incorporated the Texas Food Establishment rules by reference were not updated to refer to the new rules in Chapter 228. Consequently, DSHS was 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 presented a peril to the health, safety, and welfare of the public. Under Texas Government Code, §2001.034, emergency rules were adopted to update §§229.177, 229.178, 229.371 - 229.373, 229.471, 229.473, 229.474, 229.661, 229.702, and §229.704 to include the rules references to Chapter 228. The emergency rules were adopted on August 24, 2017, and will expire on December 21, 2017, with an option to extend the rules for another 60 days. Therefore, amendments to §§229.177, 229.178, 229.371 - 229.373, 229.471, 229.473, 229.474, 229.661, 229.702, and §229.704 are proposed for the permanent adoption of the rule reference updates.

The purpose of the rule amendments is to update references to the current food safety rules in food establishments, cottage food production operations, and farmers' markets, thereby allowing DSHS to enforce rules relating to food safety in order to protect the health, safety, and welfare of the public. The new rules in Chapter 228 are based on the current 2013 United States Food and Drug Administration Model Food Code, which allows the Texas food rules to be in conformity with the rest of the country.

SECTION-BY-SECTION SUMMARY

Subchapter K. Texas Food Establishments.

The proposed amendments to §229.177(c) replace the rule reference §229.162(74) with the new rule reference to §228.2. Also, the potentially hazardous foods definition was replaced with the definition of Time/Temperature Control for Safety (TCS) food--(formerly Potentially Hazardous Food (PHF)).

The proposed amendments to §229.178(c) replace the rule references to §229.163 with Chapter 228, Subchapter B; replaces the rule references to §229.164 with Chapter 228, Subchapter C; and replaces the rule reference to §229.165 with Chapter 228, Subchapter D.

Subchapter U. Permitting Retail Food Establishments.

The proposed amendments to §229.371(6) replace the rule reference to §229.162 of this title (relating to Definitions) under the Texas Food Establishment Rules with §228.2 of this title (relating to Definitions) under the Retail Food rules.

The proposed amendments to §229.372(a) replace the rule references to §229.169 of this title (relating to Mobile Food Establishments) with §228.221 of this title (relating to Mobile Food Units). Also, §229.372(i) is amended by replacing the rule references §§229.161 - 229.171 and §§229.173 - 229.175 of this title (relating to Texas Food Establishments) with Chapter 228 of this title (relating to Retail Food).

The proposed amendments to §229.373 replace the rule references to §§229.161 - 229.171 and §§229.173 - 229.175 of this title (relating to Texas Food Establishments) with Chapter 228 of this title (relating to Retail Food).

Subchapter Z. Inspection Fees For Retail Food Establishments.

The proposed amendments to §229.471(5)(C) replace the rule reference to §229.162 with §228.2. Section 229.471(5)(D) is amended to replace the rule reference to §229.162 of this title (relating to Texas Food Establishments) with Chapter 228 of this title (relating to Retail Food).

The proposed amendments to §229.473 replace the rules references to §§229.161 - 229.171 and §§229.173 - 229.175 of this title (relating to Texas Food Establishments) with Chapter 228 of this title (relating to Retail Food). Also, the website for the Retail Food Establishments is updated to www.dshs.texas.gov/foodestablishments.

The proposed amendments to §229.474 replace the rules references to §§229.161 - 229.171 and §§229.173 - 229.175 of this title (relating to Texas Food Establishments) with Chapter 228 of this title (relating to Retail Food).

Subchapter EE. Cottage Food Production Operation.

The proposed amendments to §229.661(b) replace the rule reference to §229.162 with §228.2.

Subchapter FF. Farmers' Markets

The proposed amendments to §229.702(3) replace the rule reference to §229.162 with §228.2. Also, §229.702(10) is amended to replace the definition of "Potentially hazardous food (time/temperature control for safety food--As defined in §229.162 of this title" with "Time/Temperature Control for Safety (TCS) food--(formerly Potentially Hazardous Food)--As defined in §228.2 of this title."

The proposed amendments to §229.704(d) replace the rule reference to §229.162(115) with §228.2. Also, §229.704(f) is amended to replace the rule reference to §229.164(c)(1)(C) of this title (relating to Specifications for Receiving Food) with §228.63 of this title (relating to Specifications for Receiving).

FISCAL NOTE

Donna Sheppard, Chief Financial Officer, 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.

GOVERNMENT GROWTH IMPACT STATEMENT

DSHS has determined that during the first five years that the sections will be in effect:

(1) the proposed rule amendments will not create or eliminate a government program;

(2) implementation of the proposed rule amendments will not affect the number of employee positions;

(3) implementation of the proposed rule amendments will not require an increase or decrease in future legislative appropriations;

(4) the proposed rule amendments will not affect fees paid to the agency;

(5) the proposed rule amendments will not create new rules;

(6) the proposed rule amendments will not expand, limit, or repeal existing rules;

(7) the proposed rule amendments will not change the number of individuals subject to the rules; and

(8) the proposed rule amendments will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Jon Huss, Associate Commissioner, has determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules do not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.

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.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas.

PUBLIC BENEFIT

Mr. Huss has also determined that for each year of the first five years the rules are in effect, the public will benefit from the adoption of the rules. The anticipated public benefit will be allowing DSHS to enforce the food establishments, cottage food production operations, and farmers' markets rules relating to food safety in order to protect the health, safety, and welfare of the public.

REGULATORY ANALYSIS

DSHS has determined that this proposal is not a "major environmental rule" as defined by Texas 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. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

DSHS has determined that the proposal does 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, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Cheryl Wilson, Interim Manager, Standards and Quality Assurance Section; Department of State Health Services, Mail Code 1987, P.O. Box 149347, Austin, Texas 78714-9347; by fax to (512) 834-6707 Fax; or by email to Cheryl.Wilson@dshs.texas.gov within 30 days of publication of this proposal in the Texas Register.

The amendment is authorized by Texas Health and Safety Code, §437.0056, which requires DSHS to adopt rules for granting and maintaining retail food permits in areas not regulated by counties and public health districts; Texas Health and Safety Code, §437.0193, which requires DSHS to adopt rules for labeling of foods produced by cottage food production operations; Texas Health and Safety Code, §437.0202, which authorizes DSHS to implement rules relating to food temperature requirements and permits at farmers' markets; and Texas Government Code, §531.0055, and Texas Health and Safety Code, §1001.075, which authorize the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by DSHS and for the administration of Texas Health and Safety Code, Chapter 1001.

The amendment is authorized by Texas Health and Safety Code, Chapters 437 and 1001, and Texas Government Code, Chapter 531.