The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), adopts amendments to §229.661, concerning Cottage Food Production Operations, and §229.702, concerning Definitions, §229.703, concerning Permits, and §229.704, concerning Temperature Requirements, relating to Farmers' Markets. The amendments to §229.661 and §229.702 are adopted with changes to the proposed text, as published in the June 10, 2022, issue of the Texas Register (47 TexReg 3416). These amendments will be republished. The amendments to §229.703 and §229.704 are adopted without changes to the proposed text and will not be republished.

BACKGROUND AND JUSTIFICATION

The amendments are necessary 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.

COMMENTS

The 31-day comment period ended July 11, 2022.

During this period, DSHS received comments regarding the proposed rules from twenty-one commenters, including Harris County Public Health, Farm and Ranch Freedom Alliance, Bay Area Farmers' Market, Galveston's Own Farmers' Market, Homemade Texas, Victoria Farmers' Market, Canyon Farmers' Market, Southern Sunny Acres, R&R Farm, Dripping Springs Farmers' Market, These Bites, LLC, Natural Pasture Farms, The Greene Grille, and eight individual farmers and consumers. A summary of comments relating to the rules and DSHS's responses follows.

Comment: Four commenters expressed support for the clear language in S.B. 617 to support local farmers' markets and requested regulations that are clear and unambiguous, as much in the spirit of S.B. 617 as possible.

Response: DSHS agrees, and the rules are reflective of S.B. 617. DSHS made several changes to both the draft rules and proposed rules that are based on comments pointing out opportunities for more clarity and inclusion.

Comment: Nine commenters suggested changes to the definitions of "farmers' market" at §229.661(b)(7) and §229.702(3) in order to specify a minimum number of farmers and add language allowing vendors besides "farmers" and "food producers" in the farmers' market as long as the "farmers" and "food producers" constitute the majority.

Response: DSHS agrees and revises the rules as suggested.

Comment: Ten commenters objected to the deletion of rule text in §229.661(b)(9)(C)(iv) stating that a kitchen preparing non-TCS foods for sale at a religious or charitable bake sale is not a food establishment.

Response: DSHS agrees and revises the rule as requested.

Comment: One commenter suggested that the requirement at §229.661(d)(1)(A) for a cottage food production operation to place the physical address of the operation, i.e., the operator's home address, is a safety issue. The commenter suggests that, instead, all cottage food production operations should be "registered" with DSHS and be issued an Identification Number.

Response: DSHS disagrees and declines to make the suggested change. The address of the cottage food production operation is required on the label by Texas Health and Safety Code §437.0193(b)(1). A requirement for registration of cottage food production operations goes beyond the scope of the statute, which indicates in Texas Health and Safety Code §437.0191 that the operation is not to be considered a "food establishment." DSHS has no authority to regulate or "register" cottage food operations.

Comment: Nine commenters requested revision of the definition of "farmer" at §229.702(2) in order to provide examples of the "agricultural arts" and clarify the word "control." Other comments suggested additional clarifying language.

Response: DSHS agrees and revises the rule as requested to clarify the definition.

Comment: Three commenters suggested, in a general way, that §229.703, concerning permits, places an undue burden on farmers and food producers at farmers' markets by requiring more permitting and should be changed.

Response: DSHS disagrees and declines to make the suggested change. The wording in the rule text follows S.B. 617, which amended Texas Health and Safety Code §437.0065.

Comment: One commenter suggested that, in §229.703, a farmers' market should be required to become certified through state guidelines with Texas Department of Agriculture (TDA) to better ensure they are operating according to the rules defined by the State.

Response: DSHS disagrees and declines to revise the rule in response to this comment. Requirement for certification as a farmers' market with TDA is beyond the scope of the statute as set forth in Texas Health and Safety Code Chapter 437.

Comment: Nine commenters suggested that lack of clarity in the wording of proposed §229.703 may allow some jurisdictions to require a farmers' market permit of vendors selling cottage food products and raw produce. The commenters requested language that exempts these sellers from the requirement to obtain a permit from the regulatory authority for sales at farmers' markets.

Response: DSHS disagrees and declines to revise the rule as a result of the comments. DSHS does not require permits of cottage food operators or vendors of uncut, raw produce at farmers' markets under DSHS jurisdiction. DSHS thinks that exemption from permitting for these two groups is inherent in Texas Health and Safety Code §437.0191(a) and §437.0192(a) for cottage foods and 25 TAC §228.2(14)(C)(ii) for produce vendors. On the other hand, DSHS does not have authority to mandate permit exemptions at farmers' markets in areas under the jurisdiction of local and county health departments. These jurisdictions are, however, subject to the limitations placed on farmers' market permits for farmers and food producers by Texas Health and Safety Code §437.0065(c) and §229.703.

Comment: One commenter suggested that §229.703 be changed to allow farmers' market permits that are valid throughout the state of Texas.

Response. DSHS disagrees and declines to make the suggested change. The current rule text corresponds with Texas Health and Safety Code §437.0065, which clearly indicates that the "permitting authority" lies with DSHS or with local and county jurisdictions.

STATUTORY AUTHORITY

The amendments are adopted under 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.