PART 1. TEXAS DEPARTMENT OF AGRICULTURE
The Texas Department of Agriculture (the department) proposes new §15.11, concerning retail egg replacement. The new section is proposed in order to provide requirements under which retailers may adopt procedures to replace broken or unsound eggs within a carton, to provide requirements for cartons used for egg replacement, to provide sanitation requirements for egg replacement, and to provide record keeping requirements. Documentation of employee training on these requirements would be kept at the retail establishment. New §15.11 also provides that retailers must submit a written plan for replacement to the department and, upon approval, operate under the conditions of a compliance agreement. At the time of adoption of the proposal, the department will modify the current Egg Administrative Penalty Matrix to ensure compliance with these regulations.
Due to their fragile nature and perishability, shell eggs can easily be damaged at any point in the distribution system. Damaged eggs provide an excellent growing environment for harmful bacteria, such as Salmonella, which can be associated with raw eggs. Existing rules require the removal of cartons containing damaged eggs from a retail display, but do not specify handling requirements or methods of disposal to ensure sanitary practices. The rule will allow retailers appropriate flexibility to reduce waste, while ensuring safe handling of eggs and maintaining labeling and grading requirements.
Joe Benavides, Regulatory Branch Chief, has determined that for the first five-year period the new section is in effect, there will be no fiscal implication for the state or local government as a result of enforcing or administering the new section.
Mr. Benavides also has determined that for the first five-year period the new section is in effect, the public benefit of enforcing and administering the section will be more sanitary egg handling and reduced waste. There will be no fiscal impact on small or micro-businesses, or persons required to comply with the section. The new requirements will apply to retailers only on a voluntary basis, by a retailer who wishes to enter into a compliance agreement submitting a plan to the department for approval. Therefore, no regulatory flexibility analysis is required.
Comments on the proposal may be submitted to Joe Benavides, Regulatory Branch Chief, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.
The new section is proposed under the Texas Agriculture Code, §132.044(e), which authorizes the department to provide for the repacking, downgrading, or both repacking and downgrading of eggs by a retailer; §132.003, which authorizes the department to adopt rules as necessary, in the administration of Chapter 132, relating to Eggs; and §12.020, which authorizes the department to enforce administrative penalties for violations of Chapter 132.
The code affected by the proposal is the Texas Agricultural Code, Chapters 12 and 132.
§15.11.Retail Egg Replacement.
(a) Replacement requirements. A retailer approved by the department in accordance with this section and operating under the conditions of a compliance agreement, may replace missing or damaged eggs provided:
(1) only eggs of the same packer, as evidenced by the license number printed or stamped on the carton, are used for replacement;
(2) only eggs of the same grade and size, as evidenced by the label on the carton are used for replacement;
(3) only eggs with the same expiration date, lot code, or Julian date, as evidenced by the label or stamp on the carton, are used for replacement;
(4) only eggs from the same brand, as evidenced by the label, are used for replacement eggs;
(5) eggs adjacent to eggs that have leaked into the carton or container and are in contact with the spilled egg content shall not be used as replacement eggs; and
(6) only eggs that are visibly clean with no prominent stains, adhering dirt, debris, fecal matter, or other foreign material are used for replacement.
(b) Cartons used for egg replacement.
(1) Cartons or containers containing eggs with broken shells that cause the egg white or yolk to spill into the carton shall not be used for replacement and must be removed from sale.
(2) Cartons or containers used for replacement must be from the original packer and must comply with the labeling requirements in accordance with this chapter.
(c) Sanitation during egg replacement. Eggs shall be replaced in the refrigerated display case or removed from the refrigerated display and replaced in an area where the temperature is at or below 45 degrees Fahrenheit, provided:
(1) the replacement area is clean and free of contaminants;
(2) a cart or table approved for food preparation is used during replacement; and
(3) replacement is performed in compliance with requirements in TAC Title 25, Part 1, §§229.161 - 229.171 (relating to Texas Food Establishments).
(d) Training retail employees. All employees of the retailer who replace eggs must be trained by the retailer on the approved procedure for replacement submitted by the retailer and the requirements of this section.
(e) Approval of egg replacement methods. A retail establishment must submit a written procedure for egg replacement to the department for approval that meets the requirements of this section.
(f) Record keeping requirements.
(1) Records shall be maintained at the retail establishment of all eggs replaced in the previous 90 days. Records shall include:
(A) date of replacement;
(B) name of employee(s) conducting egg replacement;
(C) name of packer and Texas egg license number on carton replaced;
(D) grade and size of eggs replaced; and
(E) number of dozen replaced.
(2) Documentation of training for each employee required by this section shall be maintained at the retail establishment.
(3) All records required in this section shall be provided upon request to the department during normal business hours.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 14, 2009.
TRD-200901424
Dolores Alvarado Hibbs
General Counsel
Texas Department of Agriculture
Earliest possible date of adoption: May 31, 2009
For further information, please call: (512) 463-4075
CHAPTER 227. CERTIFICATION, RECERTIFICATION, RENEWAL
SUBCHAPTER A. CERTIFICATION REQUIREMENTS
The Prescribed Burning Board (Board) proposes amendments to Chapter 227, §227.6, concerning categories for certification as a certified prescribed burn manager. The amendments are proposed to make the section consistent with categories for certification approved by the Board and already being implemented by the Texas Department of Agriculture, as administrator of the prescribed burning certification program. The amendments also modify existing language in §227.6(b) regarding the regional certification of certified prescribed burn managers, also to be consistent with Board action. Proposed amendments to §227.6 add existing categories of certification for a commercial and private certified prescribed burn manager and provide eligibility requirements for each category. The amendment to new subsection (b) clarifies the language and clarifies that certified prescribed burn managers are certified on an ecoregion basis.
Jimmy Bush, assistant commissioner for pesticide programs, has determined that for the first five-year period the proposed amended section is in effect there will be no fiscal implications for state or local government as a result of administering or enforcing the amended section. The existing Board rules regarding training and experience required for certification, and the minimum insurance requirements are not changed by the amendments, therefore there will be no additional fees, or requirements different from those currently existing.
Mr. Bush has also determined that for each year of the first five years the proposed amended section is in effect, the public benefit anticipated as a result of administering and enforcing the amended section will be the increase in persons certified as prescribed burn managers, which will result in more trained and experienced persons conducting prescribed burning activities in Texas, and ultimately help reduce the threat of wildfires. There will be no cost to micro-businesses, small businesses, or individuals required to comply with the proposed amendments. The existing Board rules regarding training and experience required for certification, and the minimum insurance requirements are not changed by the amendments, therefore, there will be no additional fees or requirements.
Comments may be submitted to Jimmy Bush, Assistant Commissioner for Pesticide Programs, P.O. Box 12847, Austin, Texas 78711. Comments must be received no later than 30 days from the date of publication of the proposal in the Texas Register.
The amendments are proposed under the Natural Resources Code, §153.046, which provides the Board with the authority to establish standards for prescribed burning, and standards for certification, recertification, and training for prescribed burn managers; and §153.041 of the Natural Resources Code, which authorizes the Board to be established within the department and to administer the prescribed burn manager certification program.
The code that will be affected by this proposal is the Natural Resources Code, Chapter 153.
§227.6.Categories of Certification.
(a) Prescribed burn managers may be certified in one of the following two categories:
(1) Commercial Certified Prescribed Burn Manager. A commercial certified prescribed burn manager may conduct prescribed burns for hire on property other than that of his or her employer. To obtain certification, an applicant must:
(A) meet training and experience requirements as required by Chapter 228 of this title (relating to Training for Certified Prescribed Burn Managers);
(B) carry or be covered by a general liability insurance policy in the amount of $1 million per occurrence, and $2 million aggregate, that:
(i) insures the applicant for damages to persons or property occurring as a result of prescribed burning activities conducted under Natural Resources Code, Chapter 153, and the rules adopted thereunder; and
(ii) covers the commercial certified prescribed burn manager's activities at any location within a designated burn region in the state of Texas where the commercial certified prescribed burn manager is authorized to burn; and
(C) meet all qualifications required under Natural Resources Code, Chapter 153 and the rules adopted thereunder, including continuing education and insurance verification requirements.
(2) Private Certified Prescribed Burn Manager. A private certified prescribed burn manager conducts prescribed burns on property owned by, leased by, or occupied by the private certified prescribed burn manager or that person's employer. An employee qualifies as a private certified prescribed burn manager only if he or she is employed to perform other duties related to the operation and provides labor for the prescribed burning activities, but does not provide the necessary equipment. To obtain certification, an applicant must:
(A) meet training and experience requirements as required by Chapter 228 of this title;
(B) carry or be covered by a general liability insurance policy, in the amount of $1 million per occurrence, and $2 million aggregate, that:
(i) insures the private certified prescribed burn manager for damages to any persons or any property occurring as a result of prescribed burning activities conducted under Natural Resources Code, Chapter 153, and the rules adopted thereunder; and
(ii) covers the private certified prescribed burn manager's activities on property owned by, leased by, or occupied by the private certified prescribed burn manager, or property owned by, leased by, or occupied by his or her employer. An employee qualifying under this category may use the insurance policy of his or her employer as long as the employee is a named insured on the policy; and
(C) meet all qualifications required under Natural Resources Code, Chapter 153 and the rules adopted thereunder, including continuing education and insurance verification requirements.
(b) A certified [Certification of the
] prescribed burn manager shall be certified to conduct
burn activities based on the ecoregion [region]
of Texas in which the certified prescribed burn manager
has been trained to conduct prescribed burns.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 20, 2009.
TRD-200901470
Dolores Alvarado Hibbs
General Counsel, Texas Department of Agriculture
Prescribed Burning Board
Earliest possible date of adoption: May 31, 2009
For further information, please call: (512) 463-4075