The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes amendments to §229.661, concerning Cottage Food Production Operations and §§229.702 - 229.704, concerning Farmers' Markets.

BACKGROUND AND PURPOSE

The purpose of the proposal is to comply with amendments to Texas Health and Safety Code Chapter 437, Regulation of Food Service Establishments, Retail Food Stores, Mobile Food Units, And Roadside Food Vendors as promulgated in Senate Bill (S.B.) 617, 87th Legislature, Regular Session, 2021. S.B. 617 clarifies who may sell products at a farmers' market by changing the definition of "farmers' market" at Texas Health and Safety Code §437.020(a)(1) and adding a new definition for "food producer" at Texas Health and Safety Code §437.020(a)(3). The two definitions effectively prohibit a jurisdiction from construing the statute to exclude non-farmers or non-farm-related vendors and products from farmers' markets within its jurisdiction.

S.B. 617 also amends Texas Health and Safety Code §437.0065, which clarifies which food vendors may be permitted to sell food at a farmers' market and necessitates amendment of the statutory parameters for permitting in §229.703. This includes a $100/per annum cap on a single permit that is valid at any farmers' market in the jurisdiction of the permitting authority.

In addition, it is necessary to make editorial changes to the rules due to the changes of the Retail Food Establishment rules in 25 TAC, Chapter 228, which includes the adoption by reference of the U.S. Food and Drug Administration Food Code 2017 (Food Code). Rule citations in Chapter 229, Subchapters EE and FF are changed from Chapter 228 to the Food Code. The revisions update the definition of "food establishment" in §229.661(b)(9); change cooking times and requirements; and update references to "time and temperature control for safety food (TCS food)" in §229.704. Other editorial changes are made for consistency and clarity throughout the subchapters.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §229.661(b)(7) changes the definition of "farmers' market" to correspond with the amended definition at Texas Health and Safety Code §437.020(a)(1).

The proposed amendment to §229.661(b)(9) changes the definition of "food establishment" to correspond with the definition contained in the Food Code.

The proposed amendment adds Subpart F to the previous citation from the Code of Federal Regulations at §229.661(d)(5).

The proposed amendment to §229.702(2) adds a definition of "farmer" to clarify the term in the rules.

The proposed amendment to §229.702(3) changes the definition of "farmers' market" to correspond with Texas Health and Safety Code §437.020(a)(1). In addition, DSHS added verbiage for clarification.

The proposed amendments to §229.702(4) and (11) change the rule citations from the former Retail Food Establishment rules to the Food Code.

New §229.702(6) adds a new definition for "food producer" to correspond with the new definition at Texas Health and Safety Code §437.020(a)(3).

The proposed amendment to §229.702(8) deletes the definition of "producer," which is replaced by the new definition of "food producer" at §229.702(6).

Section 229.702(2) - (10) are renumbered to paragraphs (3) - (11) to account for the addition of new paragraphs (2) and (6) and the deletion of previous paragraph (8).

The proposed amendment to §229.703 clarifies requirements for a permit to sell food at a farmers' market to correspond with Texas Health and Safety Code §437.0065.

The proposed amendments to §229.704 change references to "potentially hazardous food" to the more current usage that is "Time and temperature control for safety (TCS food)."

The proposed amendment to §229.704(c) deletes the phrase "at all times" to avoid redundancy.

The proposed amendments to §229.704(d)(1) and (2) change cooking times to reflect requirements in the Food Code.

The proposed amendments to §229.704(d)(5)(A) and (f) change the rule citations from the former Retail Food Establishment rules to the Food Code.

The proposed amendments add the word "Texas" for clarity in the Health and Safety Code and agency names throughout the subchapters.

FISCAL NOTE

Donna Sheppard, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules do not have foreseeable implications relating to costs or revenues of the state.

Donna Sheppard has also determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules may have foreseeable implications relating to costs or revenues of local and county governments due to the cap of $100 permitting fee that food vendors will pay to the local governments. DSHS is unable to estimate the number of businesses operating or about to operate at farmers' markets in local health departments.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

(2) implementation of the proposed rules will not affect the number of DSHS employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to DSHS;

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

(6) the proposed rules will expand existing rules;

(7) the proposed rules will increase the number of individuals subject to the rules due to the requirement that food producers may sell food products at farmers' markets; and

(8) the proposed rules will have a positive effect on the state's economy.

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

Donna Sheppard has also determined that any adverse economic effect due to rural communities being required to comply with the $100/per annum fee limitation will be at least partially mitigated by expanded access to farmers' markets by non-farm-related vendors in some jurisdictions that previously interpreted the farmers' market language in Texas Health and Safety Code, Chapter 437 and 25 TAC Chapter 229, Subchapter FF to prevent them access.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

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 and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Dr. Timothy Stevenson, Associate Commissioner, Consumer Protection Division, has determined that for each year of the first five years the rules are in effect, the public benefit will be expansion of access to farmers' markets to non-farm-related vendors in some jurisdictions that previously interpreted the farmers' market statute and rules so as to prevent them access. This provides a potential new market to some "food producers" and greater diversity of goods to consumers who buy food products at farmers' markets.

Donna Sheppard has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules may incur economic costs because of the $100 per annum cost of the permit that will accompany greater accessibility to farmers' markets.

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 Joe Williams or Jason Guzman at DSHS Consumer Protection Division/Public Sanitation and Retail Food Safety Branch, Mail Code 1987, P.O. Box 149347, Austin, Texas 78714-9347, hand-delivered to 1100 West 49th Street, M428.6, Austin, Texas 78756, by voicemail to (512) 834-6753, by fax to (512) 834-6683, or by email to foodestablishments@dshs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. CST on the last working day of the comment period; or (3) faxed or emailed before midnight CST on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When faxing or emailing comments, please indicate "Comments on Proposed Rule 22R004" in the subject line.

STATUTORY AUTHORITY

The proposed amendment is authorized by Texas Government Code, §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the efficient enforcement of Texas Health and Safety Code, Chapter 437; and Texas Health and Safety Code, §1001.075, which provides that the Executive Commissioner of HHSC shall adopt rules 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 proposed amendment implements Texas Government Code, Chapter 531 and Texas Health and Safety Code, Chapters 437 and 1001.