The Executive Commissioner of the Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts 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. The amendments are adopted without changes to the proposed text as published in the November 10, 2017, issue of the Texas Register (42 TexReg 6306), and therefore will not be republished.

BACKGROUND AND JUSTIFICATION

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 When these rules were repealed and replaced, rules elsewhere in Title 25, Chapter 229 (relating to Food and Drug) that incorporated the Texas Food Establishment rules by reference were not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. Temporary emergency rules were adopted on August 24, 2017. A 60-day extension period for the emergency rules was filed and is valid through February 19, 2018. 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 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.

COMMENTS

The 30-day comment period ended on December 11, 2017. During this period, DSHS did not receive any comments regarding the proposed rules.

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.