PART 1. DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 229. FOOD AND DRUG
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 Subchapter U, §§229.370 - 229.374, relating to Permitting Retail Food Establishments; and amendments to Subchapter Z, §§229.470 - 229.474, relating to Inspection Fees for Retail Food Establishments.
The amendments to §§229.371, 229.372, and 229.471 are adopted with changes to the proposed text as published in the January 19, 2024, issue of the Texas Register (49 TexReg 227). These rules will be republished. The amendments to §§229.370, 229.373, 229.374, 229.470, and §§229.472 - 229.474 are adopted without changes to the proposed text as published in the January 19, 2024, issue of the Texas Register (49 TexReg 227). These rules will not be republished.
BACKGROUND AND JUSTIFICATION
The amendments update definitions, citations, and clarify rule language in 25 TAC Chapter 229, Subchapters U and Z due to the 2021 adoption-by-reference of the 2017 U.S. Food and Drug Administration Food Code in 25 TAC Chapter 228, Retail Food Establishments.
Amendments to the Retail Foods-related portions of 25 TAC Chapter 229 update rule language to reflect the current practices and needs of the Retail Foods Program. The amendments also remove references to "child care center" in §§229.371, 229.372, and 229.471 since permitting and inspections of food service operations of child care centers transferred from the DSHS Retail Food Safety program to HHSC Regulatory Services Division. The minimum standards for child care centers are in 26 TAC Chapter 746 and the minimum standards for food preparation and food service are in §746.3317.
COMMENTS
The 31-day comment period ended February 19, 2024.
During this period, DSHS received one comment regarding the proposed rules.
Comment: Northeast Texas Public Health District (NETPHD) requests DSHS comment regarding the impact on local jurisdictions of the changes to the definition of "nonprofit organization" proposed at §229.371(4), formerly §229.371(9), and why DSHS changed the exemption under the Internal Revenue Code from 501(C) to 501(c)(3) in the proposed rule.
Response: DSHS appreciates the comments. DSHS acknowledges NETPHD's concern regarding the impact of changing who is permit-exempt and the possible impact on these organizations' ability to respond to public need, especially during times of emergency, and revised the definition of "Nonprofit organization" in §229.371(4) and §229.471(6) by replacing "501(c)(3)" with "501(c)" to remove the proposed amendments to these rules.
DSHS also revised §229.372(j)(1) and (2) to provide greater clarity to the text.
SUBCHAPTER U. PERMITTING RETAIL FOOD ESTABLISHMENTS
STATUTORY AUTHORITY
The amendments are authorized by Texas Health and Safety Code §437.0056 and §437.0125, which direct the Executive Commissioner of HHSC to adopt rules necessary for the implementation of food safety laws; 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 services by DSHS and for the administration of Texas Health and Safety Code Chapter 1001.
§229.371.Definitions.
All definitions found in §228.2 of this title (relating to Definitions) are applicable to this subchapter. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) 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.
(2) Food establishment--
(A) A food establishment is an operation that:
(i) stores, prepares, packages, serves, or vends food directly to the consumer, or otherwise provides food for human consumption, such as:
(I) a restaurant;
(II) a retail food store;
(III) a satellite or catered feeding location;
(IV) a catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people;
(V) a market;
(VI) a vending machine location;
(VII) a self-service food market;
(VIII) a conveyance used to transport people;
(IX) an institution; or
(X) a food bank; and
(ii) 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 provided by common carriers.
(B) A food establishment includes:
(i) an element of the operation, such as a transportation vehicle or a central preparation facility supplying a vending machine location or satellite feeding location unless the vending machine or feeding location is permitted by the regulatory authority; and
(ii) an operation conducted in a mobile, stationary, temporary, or permanent facility or location and where consumption is on or off the premises regardless if there is a charge for the food.
(C) A food establishment does not include:
(i) an establishment offering only prepackaged foods that are not time and temperature control for safety (TCS) foods;
(ii) a produce stand only offering whole, uncut fresh fruits and vegetables;
(iii) a food processing plant, including one located on the premises of a food establishment;
(iv) a cottage food production operation;
(v) a bed and breakfast limited as defined in §228.2(5) of this title (relating to Definitions); or
(vi) a private home receiving catered or home-delivered food.
(3) Food Service Establishment--A food establishment as defined in these rules.
(4) Nonprofit organization--A civic or fraternal organization, charity, lodge, association, proprietorship, or corporation possessing a 501(c) exemption under the Internal Revenue Code; or a religious organization.
(5) Permit holder--The person 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.
(6) 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-premises consumption. The term includes delicatessens offering prepared food in bulk quantities only. The term does not include establishments which handle only prepackaged, non-TCS food products; roadside markets offering only unprocessed fresh fruits and fresh vegetables; or farmers markets; except, 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 municipalities.
(7) School food establishment--A food service establishment where food is prepared and intended for service primarily to students in public and private schools, including kindergarten, preschool and elementary schools, junior high schools, high schools, colleges, and universities. A school food establishment is a food establishment and may include concession stands located on the school premises or other school-sponsored venues. School food establishments are managed and operated under the supervision of school district employees.
(8) Temporary food establishment--A food establishment operating for a period of no more than 14 consecutive days in conjunction with a single event or celebration.
(9) Time and temperature control for safety food (TCS food)--A food requiring time and temperature control for safety to limit pathogen growth or toxin production. The term includes a food that must be held under proper temperature controls, such as refrigeration, to prevent the growth of bacteria that may cause human illness. A TCS food may include a food containing protein and moisture and that is neutral or slightly acidic, such as meat, poultry, fish, and shellfish products; pasteurized and unpasteurized milk and dairy products; raw seed sprouts; baked goods that require refrigeration, including cream or custard pies or cakes; and ice products. The term does not include a food using TCS food as ingredients if the final food product does not require time or temperature control for safety to limit pathogen growth or toxin production.
§229.372.Permitting Fees and Procedures.
(a) Permitting fees.
(1) A person who operates a food establishment shall obtain a permit from the department and pay a permit fee for each establishment unless specifically exempted under subsection (b) or (c) of this section. All permit fees are nonrefundable. Permits are issued for a two-year term. The fees are based on gross annual volume of sales as follows:
(A) for an establishment with gross annual volume of food sales of $0 - $49,999.99, the fee is $250;
(B) for an establishment with gross annual volume of food sales of $50,000 - $149,999.99, the fee is $500; or
(C) for an establishment with gross annual volume of food sales of $150,000 or more, the fee is $750.
(2) A person who contracts with a school to provide food services on a for-profit basis shall obtain a permit and pay a permit fee for each school where food services are provided. Permits are issued for a two-year term. The permit fee is $250.
(3) A person who operates a mobile food unit shall obtain a permit from the department for each mobile food unit operated.
(A) Each mobile food unit shall be inspected and comply with §228.221 of this title (relating to Mobile Food Units) and pay a nonrefundable permit fee before a permit is issued. If a request for inspection is not received or if the mobile food unit does not meet the minimum standards contained in §228.221 of this title within two years of paying the permit fee, a new fee shall be paid.
(B) Mobile food unit permits are issued for a two-year term. The permit fee is $250.
(4) Each roadside food vendor shall obtain a permit and pay a fee. All fees are nonrefundable. A permit will be issued for a two-year term. The permit fee is $250.
(5) For all initial and renewal applications submitted through Texas.gov, the department is authorized to collect fees in amounts determined by the Department of Information Resources to recover costs associated with using Texas.gov.
(6) If the license or permit category changes during the license or permit period, the license or permit shall be renewed in the proper category at the time of the renewal.
(7) An establishment required to be licensed as a food manufacturer under Texas Health and Safety Code Chapter 431, and also required to be permitted under this subchapter, will be issued only one license or permit. The license or permit fee to be paid will be the higher fee of the two applicable fees.
(b) Exemptions from permit and fees.
(1) Food establishments permitted and inspected by a county or public health district under Texas Health and Safety Code Chapter 437, provided inspections are based on the requirements of §229.373 of this subchapter (relating to Minimum Standards for Permitting and Operation), are exempted from obtaining a permit and paying a fee to the department.
(2) The following meet the definition of "food establishment" in §229.371 of this subchapter (relating to Definitions), but are not required to pay a fee or obtain a Retail Food Establishment permit under this subchapter:
(A) food establishments permitted and under the inspection authority granted to municipal health departments;
(B) food establishments on federal property under federal inspection authority;
(C) food establishments under the inspection authority of state college or university personnel in accordance with the requirements of §229.373 of this subchapter;
(D) food establishments licensed under Texas Health and Safety Code Chapter 431, as manufacturers of food, provided the fee for licensure exceeds the permit fee required under this section;
(E) food establishments under the inspection authority of the Texas Health and Human Services Commission (HHSC) Regulatory Services Division;
(F) facilities under the inspection authority of the HHSC Regulatory Services Division;
(G) hospitals under the inspection authority of the HHSC Regulatory Services Division and that do not serve food to the general public;
(H) correctional facilities under the inspection authority of the Texas Department of Criminal Justice;
(I) nonprofit organizations as defined in §229.371(3) of this subchapter; (Nonprofit organizations which meet the definition of "manufacturers of food" under Texas Health and Safety Code Chapter 431, or the definition of "food salvage establishments" under Texas Health and Safety Code Chapter 432, are not exempt from licensure in those categories.)
(J) food and beverage vending machines; and
(K) mobile food units permitted and inspected under the authority granted to municipalities and which operate only within their respective jurisdictions. (Except for units which handle only pre-packaged, non-TCS foods, a mobile food unit is classified as a food establishment, regardless of whether food preparation occurs on the unit.)
(c) Nonprofit fee exemption. Nonprofit organizations as defined in §229.371(3) of this subchapter (relating to Definitions) are exempt from payment of the permit fee. Nonprofit organizations shall comply with the requirements of §229.373 of this subchapter. The department shall provide guidelines for the safe handling of foods prepared by nonprofit organizations. Any civic or fraternal organization, charity, lodge, association, proprietorship, corporation, or church not meeting the definition of "nonprofit organization" shall obtain a permit, pay the required fee, and comply with the requirements.
(d) Application for permit. The permit application shall be on a form furnished by the department and shall contain the following information:
(1) the name under which the establishment operates;
(2) the mailing address and street address of the establishment;
(3) if a sole proprietorship, the name of the proprietor; if a partnership, the names of all partners; if a corporation, the date and place of incorporation and the name and address of its registered agent in the State; or if any other type of association, the names of the principals of such association;
(4) the names of those individuals in an actual administrative capacity which, in the case of a sole proprietorship, shall be the managing proprietor; in a partnership, the managing partner; in a corporation, the officers and directors; in any other association, those in a managerial capacity;
(5) the signature of the owner, operator, or other authorized person; and
(6) any other information the department may require issuing a permit.
(e) Temporary food establishments. An organizer of an event at which a temporary food establishment operates shall obtain a permit for each temporary food establishment. In the absence of an event organizer, each temporary event operator shall obtain a permit. The application and permit fee for a temporary food establishment must be submitted to the department at least 30 days before the event. The permit fees are as follows.
(1) Single-event permit. The permit fee is $50 and is valid for the duration of a single event not to exceed 14 consecutive days from the initial effective date specified in the permit application. The fee is non-refundable.
(2) Multiple-event permit. A multiple-event permit is issued for a two-year term and the permit fee is $200. The fee is non-refundable.
(f) Two or more establishments. Each establishment shall submit an application even if it is owned by the same person.
(g) Pre-permit inspection. The department may conduct a pre-permit inspection to determine compliance with this subchapter.
(h) Issuance of a permit. The department may issue a permit or a renewal permit for an establishment based on compliance with Chapter 228 of this title (relating to Retail Food Establishments), and payment of all fees. Copies of the permit application are available by sending a request to the department at 1100 West 49th Street, Austin, Texas 78756-3182 or by downloading online at: https://www.dshs.texas.gov/retail-food-establishments/permitting-information-retail-food-establishments.
(1) The permit or proof of permit shall be posted in a location in the food establishment conspicuous to consumers.
(2) Permits for mobile food units, including pushcarts and roadside food vendors, shall be displayed on the unit at all times.
(3) A permit shall only be issued when all past due and delinquency fees are paid. This applies to any delinquent penalties due under an order issued by the department.
(i) Renewal of a permit.
(1) The permit holder shall submit a renewal application and permit fees before the expiration date of the permit. A person filing a renewal application after the expiration date shall pay an additional $100 as a delinquency fee.
(2) The department may renew a permit if the applicant is compliant with Chapter 228 of this title, and all fees are paid.
(3) Failure to submit a renewal application and permit fee before the expiration date, while continuing to operate, is a violation of Texas Health and Safety Code Chapter 437, and is subject to enforcement proceedings under that chapter, and §229.374 of this subchapter (relating to Refusal, Revocation, or Suspension of a Permit; Administrative Penalties).
(j) Amendment of permit.
(1) Fee. For a permit amendment, including a change of name or physical location of a food establishment requiring a permit under Texas Health and Safety Code §437.0125, the permit holder shall pay as follows:
(A) for an establishment with gross annual volume of food sales of $0 - $49,999.99, the fee is $125;
(B) for an establishment with gross annual volume of food sales of $50,000.00 - $149,999.99, the fee is $250;
(C) for an establishment with gross annual volume of food sales of $150,000.00 or more, the fee is $375; or
(D) for each mobile food unit, roadside vendor, school food establishment, or central preparation facility, the fee is $125.
(2) Change of location. A permit is not transferrable to another location for any non-mobile food establishment except in the case of a permit amendment as described in paragraph (1) of this subsection.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 23, 2024.
TRD-202401708
Cynthia Hernandez
General Counsel
Department of State Health Services
Effective date: May 13, 2024
Proposal publication date: January 19, 2024
For further information, please call: (512) 800-5343
STATUTORY AUTHORITY
The amendments are authorized by Texas Health and Safety Code §437.0056 and §437.0125, which direct the Executive Commissioner of HHSC to adopt rules necessary for the implementation of food safety laws; 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 services by DSHS and for the administration of Texas Health and Safety Code Chapter 1001.
§229.471.Definitions.
All definitions found in §228.2 of this title (relating to Definitions) are applicable to this subchapter. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) 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.
(2) Food employee--An individual working with unpackaged food, food equipment or utensils, or food-contact surfaces.
(3) Food establishment--
(A) A food establishment is an operation that:
(i) stores, prepares, packages, serves, or vends food directly to the consumer, or otherwise provides food for human consumption, such as:
(I) a restaurant;
(II) a retail food store;
(III) a satellite or catered feeding location;
(IV) a catering operation if the operation provides food directly to a consumer or to a conveyance used to transport people;
(V) a market;
(VI) a vending machine location;
(VII) a self-service food market;
(VIII) a conveyance used to transport people;
(IX) an institution; or
(X) a food bank; and
(ii) 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 provided by common carriers.
(B) A food establishment includes:
(i) an element of the operation, such as a transportation vehicle or a central preparation facility supplying a vending machine location or satellite feeding location unless the vending machine or feeding location is permitted by the regulatory authority; and
(ii) an operation conducted in a mobile, stationary, temporary, or permanent facility or location and where consumption is on or off the premises regardless if there is a charge for the food.
(C) A food establishment does not include:
(i) an establishment offering only prepackaged foods that are not time and temperature control for safety (TCS) foods;
(ii) a produce stand only offering whole, uncut fresh fruits and vegetables;
(iii) a food processing plant, including one located on the premises of a food establishment;
(iv) a cottage food production operation;
(v) a bed and breakfast limited as defined in §228.2(5) of this title (relating to Definitions); or
(vi) a private home receiving catered or home-delivered food.
(4) Food service establishment--A food establishment as defined in these rules.
(5) Group residence--A private or public housing corporation or institutional facility providing living quarters and meals. The term includes a domicile for unrelated persons such as a retirement home, correctional facility, or a long-term care facility.
(6) Nonprofit organization--A civic or fraternal organization, charity, lodge, association, proprietorship, or corporation possessing a 501(c) exemption under the Internal Revenue Code; or a religious organization. Nonprofit organizations are exempt from obtaining a permit as specified in §229.372(c) of this chapter (relating to Permitting Fees and Procedures). Nonprofit organizations are not exempt from the payment of an inspection fee as required under §229.472 of this subchapter (relating to Inspection Fees and Procedures).
(7) School food establishment--A food service establishment where food is prepared or served and intended for service primarily to students in public and private schools, including kindergarten, preschool and elementary schools, junior high schools, high schools, colleges, and universities. A school food establishment is a food establishment and may include concession stands located on the school premises or other school-sponsored venues. School food establishments are managed and operated under the supervision of school district employees.
(8) Temporary food establishment--A food establishment operating for a period of no more than 14 consecutive days in conjunction with a single event or celebration.
(9) Time and temperature control for safety food (TCS food)--A food requiring time and temperature control for safety to limit pathogen growth or toxin production. The term includes a food that must be held under proper temperature controls, such as refrigeration, to prevent the growth of bacteria that may cause human illness. A TCS food may include a food containing protein and moisture and that is neutral or slightly acidic, such as meat, poultry, fish, and shellfish products; pasteurized and unpasteurized milk and dairy products; raw seed sprouts; baked goods requiring refrigeration, including cream or custard pies or cakes; and ice products. The term does not include a food using TCS food as ingredients if the final food product does not require time or temperature control for safety to limit pathogen growth or toxin production.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on April 23, 2024.
TRD-202401709
Cynthia Hernandez
General Counsel
Department of State Health Services
Effective date: May 13, 2024
Proposal publication date: January 19, 2024
For further information, please call: (512) 800-5343