The Texas Department of Health (department) adopts the repeal of existing §§229.370 - 229.374 and new §§229.370 - 229.374 concerning permitting of food establishments. Section 229.371 is adopted with changes to the proposed text as published in the December 3, 1999 issue of the Texas Register (24 TexReg 10732). The repeal of §§229.370 - 229.374 and new §§229.370 and 229.372 - 229.374 are adopted without changes, and therefore will not be republished.

Specifically, these sections are the basic permitting requirements for all food establishments within the department's permitting authority and concern definitions; permitting fees and procedures; minimum standards for permitting and operation; refusal, revocation or suspension of a permit; and administrative penalties. The new rules will provide a much needed update which reflects consistency with the Texas Food Establishment Rules (TFER), §§229.161 - 229.171 and §§229.173 - 229.175. The TFER were adopted by the Texas Board of Health (board) in September 1998 and became effective October 6, 1998.

The new adopted rules repeal the existing rules for permitting retail food stores, food service establishments, mobile food units, roadside food vendors and temporary food service establishments. The new rules for permitting these facilities make the language consistent with the TFER, which are based on the U.S. Food and Drug Administration 1997 Model Food Code.

The repealed rules were previously adopted under the Health and Safety Code, Chapter 437, Regulation of Food Service Establishments, Retail Food Stores, Mobile Food Units, and Roadside Food Vendors. The repealed rules had required the department to permit those establishments which are not permitted and inspected by a city or county health department or public health district.

New §229.370 is the purpose and will remain the same stating that the department will establish a permitting system for the regulation of food establishments.

In new §229.371, the definitions are amended to be consistent with the TFER.

New §229.372 contains permitting fees and procedures. This section outlines the fee categories per type of establishment. Some establishments are exempt from the fees as specified in the statute. Those establishments required to permit with the department are described and specific administrative procedures are outlined for permit application, renewal and issuance.

New §229.373 is for minimum standards for permitting and operation. This section is amended making the references consistent with the recently adopted TFER.

New §229.374 is for administrative penalty provisions. This section amends the statutory references for the levying of administrative penalties that were adopted under Health and Safety Code, Chapter 431, Texas Food, Drug and Cosmetic Act, §431.054 and §431.056. The new adopted rules are consistent with the more specific act, Health and Safety Code, Chapter 437, Regulation of Food Service Establishments, Retail Food Stores, Mobile Food Units, and Roadside Food Vendors, §437.018.

The department received no public comments during the comment period. However, the department is making the following minor changes due to staff comments.

Change: Concerning §229.371(6), the department deleted the semicolon after "catering operation" which is not grammatically correct and the change clarifies the meaning of the sentence.

Change: Concerning §229.371(6)(B), the department changed the semicolon to a colon after the word "include" in order to make the sentence grammatically correct.

Change: Concerning §229.371(6)(C)(xi), the department deleted the word "a" to make the sentence grammatically correct. The last sentence now reads "...regardless of whether or not food preparation occurs on the unit."

25 TAC §§229.370 - 229.374

The repeals are adopted under Health and Safety Code, §437.0056, and §12.001 which provides the Texas Board of Health with authority to adopt rules for its procedure and for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on February 28, 2000.

TRD-200001492

Susan K. Steeg

General Counsel

Texas Department of Health

Effective date: March 19, 2000

Proposal publication date: December 3, 1999

For further information, please call: (512) 458-7236

The new sections are adopted under Health and Safety Code, §437.0056, and §12.001 which provides the Texas Board of Health with authority to adopt rules for its procedure and for the performance of every duty imposed by law on the board, the department, and the commissioner of health.

§229.371.Definitions.

The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise:

(1)

Bed and breakfast extended means:

(A)

an establishment with more than seven rooms for rent; or

(B)

that provides for food service other than breakfast to overnight guests; and

(C)

for the purposes of these rules, such facilities are classified as food establishments.

(2)

Bed and breakfast food establishment means:

(A)

an establishment that provides food service other than to its overnight guests;

(B)

the establishment must meet the rules and regulations applicable to retail food establishments; and

(C)

for the purposes of these rules, such facilities are classified as food establishments.

(3)

Child care center--Any facility licensed by the regulatory authority to receive 13 or more children for child care which prepares food for on-site consumption. A child care center is classified as a food establishment.

(4)

Department--The Texas Department of Health.

(5)

Food--A raw, cooked, or processed edible substance, ice, beverage or ingredient used or intended for use or for sale in whole or in part for human consumption, or chewing gum.

(6)

Food establishment--An operation that stores, prepares, packages, serves, or otherwise provides food for human consumption such as: a food service establishment; retail food store; satellite or catered feeding location; catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people; market; remote catered operations; conveyance used to transport people, institution; or food bank; and that relinquishes possession of food to a consumer directly, or indirectly through a delivery service such as home delivery of grocery orders or restaurant takeout orders, or delivery service that is provided by common carriers.

(A)

The term includes an element of the operation such as a transportation vehicle or a central preparation facility that supplies a vending location or satellite feeding location unless the vending or feeding location is permitted by the regulatory authority; a restaurant; a grocery store; an operation that is conducted in a mobile, roadside, stationary, temporary, or permanent facility or location; group residence; outfitter operations; bed and breakfast extended and bed and breakfast food establishments; where consumption is on or off the premises; and regardless of whether there is a charge for the food.

(B)

The term does not include: an establishment that offers only prepackaged foods that are not potentially hazardous; a produce stand that only offers whole, uncut fresh fruits and vegetables; a food processing plant; a kitchen in a private home if only food that is not potentially hazardous is prepared for sale or service at a function, such as a religious or charitable organization's bake sale; a Bed and Breakfast Limited facility as defined in these rules; or a private home.

(C)

All definitions found in §229.162 of this title (relating to Definitions) under the Texas Food Establishment Rules are applicable to these sections except that, for purposes of obtaining a permit and payment of fees only, the term "food establishment" does not include:

(i)

food establishments permitted and inspected under authority granted to Home-Rule or Type A General-Law Municipalities;

(ii)

federally inspected food establishments on federal property;

(iii)

correction facilities under the inspection of the Texas Department of Criminal Justice;

(iv)

nursing homes under the inspection of Long Term Care Regulatory in the Texas Department of Human Services;

(v)

hospitals under the inspection of the Health Facility Licensure Division in the department and which do not serve food to the general public;

(vi)

food establishments on state campuses inspected by state college or university personnel in accordance with the requirements of §229.373 of this title (relating to Minimum Standards for Permitting and Operation);

(vii)

food establishments licensed under the Health and Safety Code, Chapter 431, as manufacturers of food, provided the fee for licensure exceeds the permit fee required under §229.372 of this title (relating to Permitting Fees and Procedures);

(viii)

food establishments under the inspection of the Texas Department of Mental Health and Mental Retardation;

(ix)

nonprofit organizations as defined in these rules. Nonprofit organizations which meet the definition of "manufacturers of food" under Health and Safety Code, Chapter 431, or the definition of "food salvage establishments" under Health and Safety Code, Chapter 432, are not exempt from licensure in those categories;

(x)

food and beverage vending machines; and

(xi)

mobile food units permitted and inspected under the authority granted to Home-Rule or Type A General-Law Municipalities and which operate only within their respective jurisdictions. Except for units which handle only pre-packaged non-potentially hazardous foods, a mobile food unit is classified as a food establishment, regardless of whether or not food preparation occurs on the unit.

(7)

Food Service Establishment--A food establishment as defined in these rules.

(8)

Mobile food unit--A vehicle-mounted mobile food establishment designed to be readily moveable.

(9)

Nonprofit organization--A civic or fraternal organization, charity, lodge, association, proprietorship or corporation possessing a 501(C) exemption under the Internal Revenue Code; or religious organizations meeting the definition of "church" under the Internal Revenue Code, §170(b)(1)(A)(I).

(10)

Outfitter operation--Any operations such as trail rides or river raft trips where food is offered to patrons and which operates out of a central preparation location or food establishment. An outfitter operation is classified as a food establishment.

(11)

Permit holder--The person that is legally responsible for the operation of the food establishment such as the owner, the owner's agent, or other person; and who possesses a valid permit to operate a food establishment.

(12)

Person--An association, corporation, individual, partnership, other legal entity, government, or governmental subdivision or agency.

(13)

Potentially hazardous food--A food that is natural or synthetic and that requires temperature control because it is in a form capable of supporting the rapid and progressive growth of infectious or toxigenic microorganisms; the growth and toxin production of Clostridium botulinum ; or in raw shell eggs, the growth of Salmonella enteritidis .

(14)

Pushcart--A non self-propelled mobile food unit limited to serving nonpotentially hazardous food or potentially hazardous foods requiring a limited amount of preparation as authorized by the regulatory authority. A pushcart is classified as a mobile food unit.

(15)

Retail food store--A food establishment or section of an establishment where food and food products are offered to the consumer and intended for off-premise consumption. The term includes delicatessens that offer prepared food in bulk quantities only. The term does not include establishments which handle only prepackaged, nonpotentially hazardous foods; roadside markets that offer only unprocessed fresh fruits and fresh vegetables for sale; or farmers markets; except that, for the purposes of obtaining a permit and payment of fees only, the term "retail food store" does not include establishments permitted and inspected under authority granted to Home-Rule and Type A General-Law Municipalities.

(16)

Roadside food vendor--A person who operates a mobile retail food store from a temporary location adjacent to a public roadway or highway. Potentially hazardous foods shall not be prepared or processed by roadside food vendors. A roadside vendor is classified as a food establishment.

(17)

School food establishment--A food service establishment where food is prepared and intended for service primarily to students in institutions of learning including, but not limited to, public and private schools, including kindergarten, preschool and elementary schools, junior high schools, high schools, colleges, and universities. A school food establishment is classified as a food establishment.

(18)

Temporary food establishment--A food establishment that operates for a period of no more than 14 consecutive days in conjunction with a single event or celebration.