TITLE 25. HEALTH SERVICES

PART 1. DEPARTMENT OF STATE HEALTH SERVICES

CHAPTER 37. MATERNAL AND INFANT HEALTH SERVICES

SUBCHAPTER R. ADVISORY COMMITTEES

25 TAC §37.350

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes an amendment to §37.350, concerning the Texas School Health Advisory Committee (committee).

BACKGROUND AND PURPOSE

The purpose of the proposal is to review and update §37.350 in accordance with Texas Government Code, §2001.039 regarding Agency Review of Existing Rules. The proposal updates the statutory reference establishing the committee and clarifies committee composition, roles, and responsibilities.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §37.350 adds the word "Texas" to the title of the section, to clarify that the name of the committee is the Texas School Health Advisory Committee.

The proposed amendment to §37.350(a) adds "Texas" to School Health Advisory Committee for clarity and consistency and removes the sentence referencing Texas Health and Safety Code, §11.016, as this citation is no longer accurate.

The proposed amendment to §37.350(b) adds Texas Education Code, §38.104(c), which authorizes the committee to review the analysis of the required student physical fitness assessment adopted by the Texas Education Agency and develop recommendations based on the review. The amendment adds "Texas" for consistency in references to statutes.

The proposed amendment to §37.350(c) removes the language referencing the State Health Services Council (council). The council was abolished in 2016. Subsection (c) also adds language to clarify that the committee is to review the analysis of the required student physical fitness assessment adopted by the Texas Education Agency and make recommendations on coordinated school health as outlined in Texas Education Code, §38.104(c).

The proposed amendment to §37.350(d)(1) adds the acronym for the Texas Education Agency and removes the language referencing the representative from the Governor's Advisory Council on Physical Fitness (GACPF). The GACPF was abolished in 2017. The proposed amendment also abbreviates "Health and Human Services Commission" as "commission" for consistency.

The proposed amendment to §37.350(d)(1)(A) replaces "school administrators" with assistant superintendents, school principals, or assistant principals to clarify who is eligible for the committee.

The proposed amendment to §37.350(d)(1)(B) adds clarifying language to state that the registered nurse must be working in a school as a school nurse or school nurse administrator. This change is consistent with language found in other member categories.

The proposed amendment to §37.350(d)(1)(D) adds language to clarify that the physician, physician's assistant, or nurse practitioner must be currently providing services to school-aged children.

The proposed amendment to §37.350(d)(1)(E) clarifies that the representative may be a school counselor, school psychologist, school social worker, or other school-based mental health professional and must be working in a school as a school counselor. This change is consistent with language found in other member categories.

The proposed amendment to §37.350(d)(1)(F) adds language to clarify that four members must be representing an agency or organization classified as a nonprofit or not-for-profit entity. The agency or organization must support student learning, development, mental health, substance abuse, and health-related activities. The proposed amendment also limits the number of representatives from institutions of higher education to no more than one member.

The proposed amendment to §37.350(d)(1)(G) adds clarifying language to state that the representative must be working in a school as a physical educator or physical education administrator. This change is consistent with language found in other member categories.

The proposed amendment to §37.350(d)(1)(H) adds clarifying language to state that the representative must be working in a school as a health educator or health education administrator. This change is consistent with language found in other member categories.

The proposed amendment to §37.350(d)(1)(I) replaces the word "services" with "program" to be consistent with a district's school nutrition program.

The proposed amendment to §37.350(d)(2) clarifies the special consideration regarding the committee by listing the information.

The proposed amendment to §37.350(d)(3) adds language to clarify that members and alternates are appointed, removes language regarding when an alternate takes the place of a member, and adds language regarding fulfilling a member's unexpired term.

The proposed amendment to §37.350(e)(2) removes paragraph (2), as alternate appointments are addressed in §37.350(d)(3).

The proposed amendment to §37.350(e)(3) renumbers paragraph (3) to paragraph (2) because the previous paragraph was removed.

The proposed amendment to §37.350(f) adds language stating that the presiding officer and assistant presiding officer positions will be appointed to a two-year term.

The proposed amendment to §37.350(f)(1) removes language related to officers holding over their position.

The proposed amendment to §37.350(f)(2) removes duplicative language regarding submitting reports to the Executive Commissioner of HHSC, addressed in §37.350(m).

The proposed amendment to §37.350(f)(3) clarifies that the assistant presiding officer assumes the presiding officer's role in the presiding officer's absence or when the presiding officer is no longer able to serve on the committee.

The proposed amendment to §37.350(f)(4) clarifies that the committee may fill the assistant presiding officer's vacancy by vote. This change is consistent with DSHS and HHSC policies and procedures.

The proposed amendment to §37.350(f)(5) clarifies that a member cannot serve more than two terms as an officer. The amendment removes the word "consecutive" for clarity.

The proposed amendment to §37.350(g)(3) clarifies language to indicate that meetings will be announced and conducted in accordance with Open Meetings Act requirements under Texas Government Code, Chapter 551. This change is consistent with DSHS and HHSC policies and procedures.

The proposed amendment to §37.350(g)(4) replaces "five" with "ten" working days to be consistent with DSHS and HHSC policies and procedures.

The proposed amendment to §37.350(g)(5) clarifies that a simple majority of committee members is considered to be a quorum.

The proposed amendment to §37.350(h)(1) aligns the notification with committee bylaws, as a member must only notify the committee contact at DSHS.

The proposed amendment to §37.350(h)(3) replaces "his/her" with "the member's" for grammatical purposes and removes "representative category" to clarify that the alternate member will serve out the remaining term of the member leaving the committee.

The proposed amendment to §37.350(j)(2) adds language to clarify that committee recommendations must be adopted pursuant to a simple majority vote on a motion duly made and seconded. This change is consistent with DSHS and HHSC policies and procedures. The proposed amendment to subsection (j) also renumbers the remaining paragraphs.

The proposed amendment to §37.350(j)(3) renumbered to (j)(4) removes the language related to the GACPF, as it was abolished in 2017.

The proposed amendment to §37.350(j)(5)(B) renumbered to (j)(6)(B) clarifies that meeting minutes will be posted to DSHS's website within 30 days of approval and signature.

The proposed amendment to §37.350(k)(1) adds language to clarify that the presiding officer may seek volunteers or appoint members to serve on subcommittees.

The proposed amendment to §37.350(l)(1) removes the reference to the "council" for clarity and consistency.

The proposed amendment to §37.350(l)(2) clarifies that committee members may not advocate on behalf of DSHS or HHSC and removes the reference to the "council."

The proposed amendment to §37.350(m) replaces "council" with "commissioner," as the council was abolished. The reports will be submitted to the commissioner of DSHS according to the requirements in DSHS policy. The proposed amendment also clarifies that the committee will post meeting dates, subcommittee dates, meeting minutes, and meeting agendas to the DSHS's website.

The proposed amendment to §37.350(m)(1) - (3) removes the specified reporting requirements as the advisory committee activity reports will be created and submitted per DSHS policy to include meeting dates of the committee and subcommittees (if applicable) and any activities or recommendations of the committee on the annual reporting template.

The proposed amendment to §37.350(n) adds "Texas" for consistency in reference to a statute.

The proposed amendment to §37.350(n)(3) removes this requirement as nonmembers are not allowed to serve on the committee. The amendment to subsection (n) renumbers the remaining paragraphs.

The proposed amendment to §37.350(n)(4) renumbered to (n)(3) clarifies that reimbursement documentation is submitted to DSHS staff and will be processed according to program guidelines. The amendment replaces "staff" with "guidelines" to clarify that guidelines determine allowable expenses. These changes are consistent with DSHS and HHSC policies and procedures.

FISCAL NOTE

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

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

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

(6) the proposed rule will not expand, limit, or repeal existing rule;

(7) the proposed rule will not change the number of individuals subject to the rule; and

(8) the proposed rule will not affect the state's economy.

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

Donna Sheppard has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rule does not apply to small or micro-businesses, or rural communities.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code, §2001.0045 does not apply to this rule because the rule does not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Dr. Manda Hall, Associate Commissioner, has determined that for each year of the first five years the rule is in effect, the public will benefit from adoption of the rule. The public benefit anticipated as a result of enforcing or administering the rule will be the committee's continued ability to make recommendations in supporting a leadership role for DSHS in coordinated school health programs and services for Texas schools. The research and recommendations provided by the committee provide support for local school health advisory councils, school boards, school administrators and school personnel in developing school health programs and services.

Donna Sheppard has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule because there are no new costs associated with the proposed amendment.

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

Questions about the content of this proposal may be directed to Anita Wheeler, School Health Coordinator, at (512) 776-7279.

Written comments on the proposal may be submitted to Anita Wheeler, P.O. Box 149347, Austin, Texas 7714-9347; 1100 W. 49th Street, Austin, Texas 78756-3101; or by email to SchoolHealth@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. on the last working day of the comment period; or (3) emailed before midnight 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 emailing comments, please indicate "Comments on Proposed Rule 19R012" in the subject line.

STATUTORY AUTHORITY

The amendment is authorized by Texas Health and Safety Code, §1001.0711 which requires a rule to establish a committee to provide assistance to DSHS in establishing a leadership role for DSHS in support for and delivery of coordinated school health programs and school health services. This amendment is also authorized by Texas Government Code, §531.0055, and Texas Health and Safety Code, §1001.075, which authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary 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 amendment affects Texas Government Code §531.0055; Texas Health and Safety Code, Chapter 1001; and Texas Education Code §38.104(c).

§37.350.Texas School Health Advisory Committee.

(a) The committee. The Texas School Health Advisory Committee (committee) shall be appointed under and governed by this section. [The committee is established under the Health and Safety Code, §11.016, which allows the Health and Human Services Commission (commission) to establish advisory committees.]

(b) Applicable law. Texas Government Code, §2110.008, does not apply to a committee created under this section. The committee is subject to the Texas Health and Safety Code, §1001.0711, concerning the School Health Advisory Committee and the Texas Education Code, §38.104(c).

(c) Purpose. The purpose of the committee is to provide assistance [to the State Health Services Council (council)] in establishing a leadership role for the Department of State Health Services (department) in support for and delivery of coordinated school health programs and school health services. In addition, the committee is to review the analysis of the required student physical fitness assessment adopted by the Texas Education Agency (TEA) and develop recommendations as outlined in Texas Education Code, §38.104(c).

(d) Composition.

(1) The committee shall be composed of one representative from the Texas Department of Agriculture (TDA), appointed by the Commissioner of Agriculture; one representative from TEA [the Texas Education Agency (TEA)], appointed by the Commissioner of Education; the department's School Health Program Coordinator or other department representative; [one representative from the Governor's Advisory Council on Physical Fitness (GACPF), to be designated by the GACPF;] and 17 members appointed by the Executive Commissioner of the Health and Human Services Commission (commission) which shall consist of:

(A) two individuals representing school superintendents, assistant superintendents, school principals, assistant principals, or [other school administrators; and/or] school district board members;

(B) one registered nurse working in a school as a school nurse or school nurse administrator [with school district or school health administrative nursing experience];

(C) five consumer members who are parents of school-age children with at least one parent of a child with special needs;

(D) one physician, or physician's assistant, or nurse practitioner currently providing health services to school-aged children;

(E) one representative working in a school as a school counselor, school psychologist, school social worker or other school-based mental health professional, [the school setting] with certification in student counseling and guidance or [and/or] safety;

(F) four members representing a nonprofit or not-for-profit entity directly working with schools or school-aged children to support student learning, development, mental health, substance abuse, and health-related activities with no more than one member representing an institution of higher education [four members representing organizations and/or agencies involved with the health of school children];

(G) one representative working in a [the] school as a physical educator or physical education administrator [setting] with certification as a physical educator;

(H) one representative working in a [the] school as a health educator or health education administrator [setting] with certification as a health educator; and

(I) one representative working in the school setting as part of the district's school nutrition program [services].

(2) In [During all phases of the membership selection process, the following information will be regarded with special consideration in] an effort to build a committee reflective of the current Texas population, special consideration will be given to:

(A) race, gender, age, and ethnic diversity;

(B) urban, rural, and suburban diversity; and[,]

(C) a broad statewide geographic representation whenever possible.

(3) Membership appointments shall include one alternate member for each appointed position [category representing a component of comprehensive school health]. The alternate will automatically be appointed as a member if the designated appointee is unable or unwilling to fulfill that role; or, whenever there is a vacancy [in a membership category before the end of a member's term. The appointed alternate will take the place of the member only during the term of office when the vacancy occurred]. The appointed alternate will perform the same duties and have the same privileges as the appointed member in fulfilling the unexpired term.

(e) Terms of office. The term of office of each member shall be four years. Members shall serve after expiration of their term until a replacement is appointed.

(1) Members shall be appointed for staggered terms so that the terms of a substantially equivalent number of members will expire on July 31 of each year.

[(2) If a vacancy occurs before the expiration of a member's term, the most currently appointed alternate for the category where the vacancy has occurred may assume the unexpired portion of that term.]

(2) [(3)] A member whose term is expiring has the option to apply for appointment for one additional term.

(f) Officers. The committee members shall elect a presiding officer and an assistant presiding officer to begin serving a two-year term on August 1 of their term.

(1) Each officer shall serve until July 31 of their two-year term. [Each officer may hold over until the committee members elect his or her replacement.]

(2) The presiding officer shall preside at all committee meetings at which he or she is in attendance, call meetings in accordance with this section, appoint subcommittees of the committee as, necessary[, and cause proper reports to be made to the Executive Commissioner of the Health and Human Services Commission]. The presiding officer may serve as an ex-officio member of any subcommittee of the committee.

(3) The assistant presiding officer shall act for the presiding officer during the presiding officer's [his/her ] absence and shall assume the office of presiding officer in the event of a vacancy. [When the unexpired term of the presiding officer is less than one-half, the assistant presiding officer shall complete the unexpired term of the presiding officer and the presiding officer will be installed to begin serving a two-year term as presiding officer with all the duties and privileges of the presiding officer as described in paragraph (2) of this subsection.]

(4) If the office of assistant presiding officer becomes vacant, it may be filled [temporarily] by a vote of the committee [until the Executive Commissioner of the Health and Human Services Commission appoints a successor].

(5) A member shall serve no more than two [consecutive ] terms as an [presiding] officer [and/or assistant presiding officer].

(6) The committee may reference its officers by other terms, such as chairperson and vice-chairperson.

(g) Meetings. The committee shall meet at least twice each year.

(1) A meeting may be called by agreement of the department staff and either the presiding officer or at least three members of the committee.

(2) The department shall make meeting arrangements and shall contact committee members to determine availability for a meeting date and place.

(3) Meetings shall be announced and conducted in accordance with the Open Meetings Act, Texas Government Code, Chapter 551. [The committee is not a "governmental body" as defined in the Open Meetings Act, Government Code, Chapter 551. However, in order to promote public participation, each meeting of the committee shall be announced and conducted in accordance with the Open Meetings Act, Government Code, Chapter 551, with the exception that the provisions allowing executive sessions shall not apply.]

(4) Each member of the committee shall be informed of a committee meeting at least ten [five] working days before the meeting.

(5) A simple majority [Ten members] of the committee shall constitute a quorum for the purpose of transacting official business.

(6) The committee is authorized to transact official business only when in a legally constituted meeting with a quorum present.

(7) The agenda for each committee meeting shall include an item entitled public comment under which any person will be allowed to address the committee on matters relating to committee business. The presiding officer may establish procedures for public comment, including a time limit on each comment.

(h) Attendance. Members shall attend committee meetings as scheduled. Members shall attend meetings of subcommittees to which the member is assigned.

(1) A member shall notify [the presiding officer or] appropriate department staff if he or she is unable to attend a scheduled meeting.

(2) It is grounds for removal from the committee if a member cannot discharge the member's duties for a substantial part of the term, is absent for more than half of the committee and subcommittee meetings during a calendar year, or is absent from at least three consecutive committee meetings. If the absences are determined to be reasonable, the member shall remain on the committee.

(3) If a member is removed from the committee before the end of the member's [his/her] term, the alternate appointee for the position [representative category] will serve out the remaining portion of the term.

(4) The validity of an action of the committee is not affected by the fact that it is taken when grounds for removal of a member exist.

(i) Staff. The department shall provide administrative support for the committee.

(j) Procedures. Roberts Rules of Order, Newly Revised, shall be the basis of parliamentary decisions except where otherwise provided by law or rule.

(1) Any committee action must be approved with a quorum present and by a majority vote or consensus of the members present.

(2) Any committee recommendations must be adopted pursuant to a simple majority vote on a motion duly made and seconded.

(3) [(2)] Each member shall have one vote.

(4) [(3)] A member may not authorize another individual to represent the member by proxy with the exception of the TDA, TEA, and department representatives appointed by the commissioners of these agencies [and the GACPF representative designated by the GACPF]. The commissioners of these agencies [and the GACPF] may appoint alternates to attend and vote.

(5) [(4)] The committee shall make decisions in the discharge of its duties without discrimination based on any person's race, creed, gender, religion, national origin, age, physical condition, or economic status.

(6) [(5)] Minutes of each committee meeting shall be taken by the department staff.

(A) After approval by the committee, the minutes shall be signed by the presiding officer.

(B) A copy of the minutes approved by the committee and signed by the presiding officer shall be posted to the department's website at dshs.texas.gov [provided to the council] within 30 days of approval and signature [each meeting]. Committee members will receive minutes of each meeting at least five days before [prior to] the following meeting.

(k) Subcommittees. The committee may establish subcommittees as necessary to assist the committee in carrying out its duties.

(1) The presiding officer shall ask for volunteers and appoint members of the committee to serve on subcommittees and to act as subcommittee chairpersons. [The presiding officer may also appoint nonmembers of the committee to serve on subcommittees.]

(2) Subcommittees shall meet when called by the subcommittee chairperson or when so directed by the committee.

(3) A subcommittee chairperson shall make regular reports to the committee at each of its meetings or in interim written reports as needed. The reports shall include an executive summary or minutes of each subcommittee meeting.

(l) Statement by members.

(1) The commission, [the council,] the department, and the committee shall not be bound in any way by any statement or action on the part of any committee member except when a statement or action is in pursuit of specific instructions from the commission, [council,] department, or committee.

(2) The committee and its members may not participate in legislative or advocacy activities [activity] in the name of the commission, [the council,] the department or the committee except with approval through the department's legislative process. Committee members are not prohibited from representing themselves or other entities in the legislative process. The committee will make recommendations per statutory requirements.

(m) Reports to commissioner of the department [council]. The committee shall file an annual written report of the committees' activities to the commissioner according to department policy [council]. The committee shall post the meeting dates of the committee and any subcommittees, meeting agendas, and meeting minutes on the department's website at dshs.texas.gov.

[(1) The report shall list the meeting dates of the committee and any subcommittees, the attendance records of its members, a brief description of actions taken by the committee, a description of how the committee has accomplished the tasks given to the committee by the council, the status of any rules which were recommended by the committee to the council and anticipated activities of the committee for the next year.]

[(2) The report shall identify the costs related to the committee's existence, including the cost of agency staff time spent in support of the committee's activities.]

[(3) The report shall cover the meetings and activities in the immediate preceding 12 months and shall be filed with the council each June. The presiding officer and appropriate department staff shall sign it.]

(n) Reimbursement for expenses. In accordance with the requirements set forth in the Texas Government Code, Chapter 2110, a committee member may receive reimbursement for the member's expenses incurred for each day the member engages in official committee business if authorized by the General Appropriations Act or budget execution process.

(1) No compensatory per diem shall be paid to members unless required by law.

(2) A committee member who is an employee of a state agency, other than the department, may not receive reimbursement for expenses from the department.

[(3) A nonmember of the committee who is appointed to serve on a subcommittee may not receive reimbursement for expenses from the department.]

(3) [(4)] Each member who is eligible to be reimbursed for expenses shall submit to department staff the member's receipts for allowable expenses as determined by school health program guidelines [staff], and any required official forms not later than 14 days after each committee meeting.

(4) [(5)] Requests for reimbursement of expenses shall be made on official state vouchers prepared by department staff.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 14, 2020.

TRD-202003367

Barbara L. Klein

General Counsel

Department of State Health Services

Earliest possible date of adoption: September 27, 2020

For further information, please call: (512) 776-7279


CHAPTER 85. HEALTH AUTHORITIES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (DSHS), proposes the repeal of §85.1, concerning Health Authorities; and proposes new §85.1, concerning Definitions; new §85.3, concerning Health Authorities; and new §85.4, concerning Public Health Data Review Process.

BACKGROUND AND PURPOSE

The proposal complies with House Bill 3704, 86th Legislature, Regular Session, 2019, which added Texas Health and Safety Code, §1001.089(e). The new law requires DSHS to establish a review process for a local public health entity that requests public health data maintained by DSHS. The review process applies to public health data requests for which there is not an existing agreement to share data. The proposed new rule allows DSHS to enter into an agreement with a local public health entity to share public health data that are necessary to fulfill its essential public health services in compliance with federal and state law.

The proposal also reorganizes the structure of the chapter and defines terms to improve clarity. The proposal also serves as the four-year review of rules in compliance with Texas Government Code, §2001.039.

SECTION-BY-SECTION SUMMARY

The proposal to Chapter 85 revises the current title of "Health Authorities" to "Local Public Health" to clarify the broader focus of the chapter. The proposal also removes the Subchapter A title because it is reflected in the chapter title.

The proposed repeal of §85.1, Health Authorities, deletes the rule because the rule text is included in a proposed new §85.3.

Proposed new §85.1, Definitions, creates definitions to provide clarity with terminology used in this chapter.

Proposed new §85.3, Health Authorities, incorporates the functions of a health authority from repealed §85.1. Most language from the repealed §85.1 is retained in new §85.3. The terms "health authority," "region," and "regional director" are clarified as definitions in new §85.1.

Proposed new §85.4, Public Health Data Review Process, complies with Texas Health and Safety Code, §1001.089(e). The new rule outlines a data request review process for local health entities seeking public health data from DSHS.

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 does not have foreseeable implications relating to costs or revenues of state or local governments.

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 create new rules;

(6) the proposed rules will repeal an existing rule;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

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

Donna Sheppard has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The rules apply to local health entities, and do not apply to small businesses or micro-businesses. The rules are intended to have a positive impact to local health entities across the state, including in rural communities, as the new §85.3 clarifies functions performed by a health authority and the new process outlined in §85.4 is proposed to improve the public health data request process for local health entities.

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

Lara Lamprecht, Assistant Deputy Commissioner of the Department of State Health Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be improved processes for providing timely and accurate public health data to local health entities, which will better inform essential public health services provision and decisions to address community health needs. Responsive services and timely decisions will result in safer and healthier communities.

Donna Sheppard has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. Participation in the data request process outlined in the rule is optional and does not impose any additional costs to those who choose to participate in the process.

REGULATORY ANALYSIS

DSHS has determined that this proposal is not a "major environmental rule" as defined by Government Code, §2001.0225. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

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

Questions about the content of this proposal may be directed to Peter Hajmasy at (512) 776-6537 in the DSHS Center for Health Policy and Performance.

Written comments on the proposal may be submitted to Peter Hajmasy, Director, DSHS Center for Health Policy and Performance, Mail Code 1911, P.O. Box 149347, Austin, Texas 78714-9347; street address 1100 West 49th Street, Austin, Texas 78756; or by email to PublicHealthPolicy@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. on the last working day of the comment period; or (3) emailed before midnight 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 emailing comments, please indicate "Comments on Proposed Rule 20R003" in the subject line.

SUBCHAPTER A. LOCAL PUBLIC HEALTH

25 TAC §85.1

STATUTORY AUTHORITY

The repeal is authorized by Texas Health and Safety Code, §1001.089(e), which requires DSHS to establish a review process for public health data requests from local health entities; and Texas Government Code, §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, including by DSHS. Under Texas Health and Safety Code, Chapter 1001, the DSHS Commissioner is authorized to assist the Executive Commission in the development of rules relating to the matters within DSHS jurisdiction. Review of the rules implements Texas Government Code, §2001.039.

The repeal implements Texas Health and Safety Code, Chapter 1001.

§85.1.Health Authorities.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 11, 2020.

TRD-202003306

Barbara L. Klein

General Counsel

Department of State Health Services

Earliest possible date of adoption: September 27, 2020

For further information, please call: (512) 776-6537


CHAPTER 85. LOCAL PUBLIC HEALTH

25 TAC §§85.1, 85.3, 85.4

STATUTORY AUTHORITY

The new sections are authorized by Texas Health and Safety Code, §1001.089(e), which requires DSHS to establish a review process for public health data requests from local health entities; and Texas Government Code, §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, including by DSHS. Under Texas Health and Safety Code, Chapter 1001, the DSHS Commissioner is authorized to assist the Executive Commission in the development of rules relating to the matters within DSHS jurisdiction. Review of the rules implements Texas Government Code, §2001.039.

The new sections implement Texas Health and Safety Code, Chapter 1001.

§85.1.Definitions.

The following terms and phrases, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Department--Department of State Health Services.

(2) Essential public health services--As defined by Texas Health and Safety Code, Chapter 121.

(3) Health authority--A physician who administers state and local laws relating to public health, appointed under the Local Public Health Reorganization Act, Texas Health and Safety Code, Chapter 121, by the governing body of a city, county, or public health district.

(4) Local public health entity--A local health unit, local health department, or public health district.

(5) Public health data--Any data relating to:

(A) the health status of people, living or dead;

(B) health, including data on the extent and nature of the disease, illness, disability, injury, and other aspects of well-being;

(C) environmental, behavioral, occupational, social, and other health hazards; and

(D) determinants of health.

(6) Region--A geographic area in the State of Texas designated by the department.

(7) Regional Director--A physician who is employed by the department and serves as the chief administrative officer of a region.

§85.3.Health Authorities.

(a) A health authority must be appointed in a municipality or county that has established a local health department or public health district.

(1) The director of a local health department or public health district, if the director is a physician, shall be the health authority within the jurisdiction of the local health department or public health district.

(2) If a non-physician serves as the director of a local health department or public health district, the director shall appoint a physician to serve as the health authority within the jurisdiction of such local health department or public health district, subject to the approval of the governing body of the local health department or public health district. No action is required by the department to further approve the appointment.

(b) A health authority may be appointed, but is not required to be appointed, in a municipality or county that has not established a local health department or public health district. The governing body of the municipality or the commissioners court of the county may appoint the health authority within its jurisdiction.

(c) A health authority serves for a term of two years and may be appointed to successive terms.

(d) A regional director of the department shall perform the duties of a health authority when there is no health authority for a municipality, county, public health district, or entity authorized to appoint a health authority in a jurisdiction in the regional director's region.

(e) A regional director of the department may perform some or all of the duties of a health authority, if an appointed health authority fails to perform duties prescribed by the department in this section. At the request of the appointing authority, a regional director may serve as a health authority because of the absence or incapacity of the appointed health authority. No action by the department is necessary to further approve a regional director's performance or service.

(f) A health authority shall perform each duty that is necessary to implement and enforce a law to protect the public health, as stated in the Texas Health and Safety Code, §121.024.

(g) An appointed health authority shall take the official oath required by the Texas Constitution, Article 16, §1, including the statement of appointed officer, and file a copy of the oath and appointment with the appropriate regional office within 10 working days of the date of taking the oath.

(h) If a health authority ceases to hold office for any reason, the appointing authority shall immediately notify the department and appropriate regional director. When a new health authority has been appointed, the person takes the action outlined in subsection (g) of this section and notifies the appropriate regional office of the change.

§85.4.Public Health Data Review Process.

(a) For any public health data request not subject to an existing agreement with the department, the local public health entity submits a request to the department using procedures posted on the department's website.

(b) The local public health entity must provide sufficient information in its data request for the department to determine if the data will be used in the provision of essential public health services.

(c) The department evaluates all requests timely to ensure the requests are processed as expeditiously and consistently as department resources allow.

(d) Requests are evaluated on the following criteria:

(1) the public health benefit and purpose of the request;

(2) the privacy of the individuals whose data is requested;

(3) the management of the data by the requestor, including management of public health data released to the requestor in previous requests; and

(4) other relevant state and federal laws regarding the confidentiality of data.

(e) The department may require the local public health entity to enter into a written agreement before the release of data.

(f) The department notifies a requesting local public health entity in writing of any denied request and the reason for the denial.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 11, 2020.

TRD-202003307

Barbara L. Klein

General Counsel

Department of State Health Services

Earliest possible date of adoption: September 27, 2020

For further information, please call: (512) 776-6537


CHAPTER 221. MEAT SAFETY ASSURANCE

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 §221.1, concerning General Provisions; §221.2, concerning Definitions; §221.3, concerning Registration Requirements, Exemptions, and Procedures; §221.11, concerning Federal Regulations on Meat and Poultry Inspection; §221.12, concerning Meat and Poultry Inspection; §221.14, concerning Custom Exempt Slaughter and Processing; Low-Volume Poultry or Rabbit Slaughter Operations; §221.15, concerning Inspection of Alternate Source Food Animals; the repeal of §221.4, concerning Vehicles, Identification of Vehicles and Vehicle Permit Decals; §221.5, concerning Records; §221.6, concerning Rendering Business Construction, Operational Requirements and Grounds; §221.7, concerning Prohibited Acts; §221.8, concerning Assessment of Administrative Penalties; and §221.9, concerning Denial, Suspension or Revocation of License or Permit and Enforcement Provisions; and new §221.16, concerning Fees.

BACKGROUND AND PURPOSE

The proposal complies with Senate Bill (S.B.) 202, 84th Legislature, Regular Session, 2015, which amended Texas Health and Safety Code, Chapter 144, relating to the requirements for rendering operations. S.B. 202 repealed Texas Health and Safety Code, §144.021(b), which provided DSHS with the authority to license and implement rules prescribing reasonable and appropriate construction, operational, maintenance, and inspection requirements for facilities engaging in rendering activities. These requirements are being removed from Subchapter A.

The proposal also complies with House Bill (H.B.) 410, 86th Legislature, Regular Session, 2019, which amended Texas Health and Safety Code, Chapter 433, relating to the regulation of certain low-volume poultry and rabbit processing establishments. H.B. 410 exempts low-volume livestock processing establishments that are exempt from federal inspection and that are processing fewer than 500 domestic rabbits in a calendar year from the requirement to register with DSHS and the requirement to develop a sanitary operation procedures plan. For the purposes of requirements for such establishments, H.B. 410 redefines "low-volume livestock processing establishment" as producers that slaughter more than 500 but fewer than 10,000 domestic rabbits or more than 1,000 but fewer than 10,000 poultry, of their own raising each year.

Texas Health and Safety Code, Chapter 433 requires a livestock inspector to be present to perform inspection activities for the slaughtering and processing of livestock for intrastate commerce. A new fee rule is being proposed to revise the overtime rate charged to businesses that choose to conduct more than 40 hours of processing or slaughtering of livestock per week.

The rules are also being revised to comply with Texas Government Code, §2001.039, which requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Chapter 221 has been reviewed, and DSHS has determined that reasons for adopting the sections exist because the rules are needed to administer the program effectively.

SECTION-BY-SECTION

Subchapter A concerns Transporting Dead Animals and Rendering.

The proposal removes all references to licensing, updates federal and state law, includes references to registration, updates legacy agency names, and corrects minor grammatical wording throughout the subchapter.

The proposed amendment to §221.1 removes the license requirements for businesses, adds the registration of businesses, and updates the statutory authorities.

The proposed amendment to §221.2 removes the definitions of "Act," "authorized agent," "operating license," and "vehicle permit decal" as these definitions are no longer necessary. The proposed amendment also adds new definitions for "department" and "department representative." The amendment renumbers the rule due to these changes.

The amendment to §221.3 revises the title of the rule to "Registration Requirements, Exemptions, and Procedures." The amendment updates the registering requirements, exemptions from registering, and procedures for registration. The amendment also removes all references to license or licensing.

The repeal of §§221.4 - 221.9 removes rules that are no longer necessary.

Subchapter B concerns Meat and Poultry Inspection.

The proposal updates federal and state law, updates legacy agency names, and corrects minor grammatical wording throughout the subchapter.

The proposed amendment to §221.11 updates federal laws for meat and poultry inspection, and updates a website for DSHS.

The proposed amendment to §221.12 updates the definitions for "Act," "alternate source food animals," "bison," "buffalo meat," "change in ownership," "Commissioner," "custom exempt operation," "custom processor," "custom slaughterer," "department," "exotic animal," "federal regulations," "feral swine," "game animals," "Grant of Custom Exemption," and "Grant of Inspection." The proposed amendment adds new definitions for "Grant of Voluntary Inspection," "granted establishment," "low-volume livestock operation," "Meat Safety Assurance Section," "Poultry or Rabbit Exemption," "slaughter," and "state director." The proposed amendment also removes the definitions of "director," "grant of poultry/rabbit exemption," and "very low volume poultry/rabbit processing establishments." The amendment updates Grant of Inspection, Grant of Voluntary Inspection, or Grant of Custom Exemption requirements and adds the meat and poultry establishments and related industries duties for inspection. The proposed amendment removes special fees for inspection services.

The proposed amendment to §221.14 revises the title of the rule to "Custom Exempt Slaughter and Processing; Low-Volume Poultry or Rabbit Slaughter Operations." The proposed amendment also updates the custom slaughter requirements, custom processing requirements, and low-volume poultry or rabbit slaughter operations requirements. The amendment adds a website for Time/Temperature Guidelines for Cooling Heated Products.

The proposed amendment to §221.15 updates a rule reference for fees and handwashing requirements.

New §221.16 adds special fees for inspection services.

FISCAL NOTE

Donna Shepperd, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, there will be an estimated increase in revenue to state government as a result of enforcing and administering the rules as proposed.

The effect on state government for each year of the first five years the proposed rules are in effect is an estimated increase in revenue of $59,260 in fiscal year (FY) 2021, $59,260 in FY 2022, $59,260 in FY 2023, $59,260 in FY 2024, and $59,260 in FY 2025.

Enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of local government.

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 require an increase in fees paid to DSHS;

(5) the proposed rules will create a new rule;

(6) the proposed rules will repeal existing rules to remove DSHS' licensing authority of rendering operations and modify the low-volume exemption; and

(7) the proposed rules will decrease the number of individuals subject to the rules because low volume poultry and rabbit processors will be exempt from certain state regulations.

DSHS has insufficient information to determine the proposed rules' effect on the state's economy.

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

Donna Shepperd has also determined that there will not be an adverse economic effect on small businesses, micro-businesses, or rural communities.

Small and micro-businesses which choose to conduct more than 40-hours of processing or slaughtering per week would incur an additional cost to reimburse DSHS for all inspection-related activities.

DSHS estimates that the number of small businesses and micro-businesses subject to the proposed rule is 58. The projected economic impact for a small business or micro-business which request overtime inspection would be approximately $1021.72 per establishment per fiscal year.

DSHS determined that alternative methods to achieve the purpose of the proposed rules for small businesses, micro-businesses, or rural communities would not be consistent with ensuring the health and safety of consumers of meat and poultry products in Texas.

LOCAL EMPLOYMENT IMPACT

The proposed rule 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; the rules are amended to reduce the burden or responsibilities imposed on regulated persons by the rules; and the rules are necessary to implement legislation that does not specially state that §2001.0045 applies to the rule.

PUBLIC BENEFIT AND COSTS

Stephen Pahl, 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 a decrease in regulation by DSHS on low-volume poultry and rabbit establishments and rendering establishments.

Donna Shepperd 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 any business which chooses to conduct more than 40-hours of processing or slaughtering per week would incur additional costs to reimburse DSHS for all inspection-related activities.

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

Questions about the content of this proposal may be directed to Brandon Rudloff, at (512) 834-4554 in the DSHS PSQA Meat Compliance Unit.

Written comments on the proposal may be submitted to Brandon Rudloff, Department of State Health Services, PSQA Meat Compliance Unit, Mail Code 1987, 8407 Wall Street, Austin, Texas 78754; Exchange Building, 8407 Wall Street, Austin, Texas 78754; or email to meat.regulatory@dshs.texas.gov. When emailing comments, please indicate "Comments on Proposed Rule 20R013" in the subject line.

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. on the last working day of the comment period; or (3) emailed before midnight 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.

SUBCHAPTER A. TRANSPORTING DEAD ANIMALS AND RENDERING

25 TAC §§221.1 - 221.3

STATUTORY AUTHORITY

The amendments are authorized by Texas Health and Safety Code, §433.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary for the efficient execution of this chapter; Texas Health and Safety Code, Chapter 144; and Texas Government Code, §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, including by DSHS. Under Texas Health and Safety Code, Chapter 1001, the DSHS Commissioner is authorized to assist the Executive Commission in the development of rules relating to the matters within DSHS jurisdiction. The rules are also being revised in compliance with Texas Government Code, §2001.039.

The amendments implement Texas Health and Safety Code, Chapters 144 and 433.

§221.1.General Provisions.

(a) This subchapter provides [These sections provide] for the registration [licensing and regulation] of rendering businesses; transporters of renderable raw materials and dead animals; and locations where a rendering business is conducted.

(b) The Texas Meat and Poultry Inspection Act, Texas Health and Safety Code, Chapter 433 [Texas Renderers' Licensing Act, Health and Safety Code, Chapter 144], provides the department with the authority to adopt rules consistent with the chapter as necessary pursuant to the enforcement of this chapter.

(c) No person may cause, suffer, or allow the operation, management, or maintenance of a rendering business or rendering business location without registering with [a license issued by] the department in accordance with this subchapter [these sections].

(d) All rendering businesses and rendering business locations shall comply with the minimum standards specified in this subchapter [these sections] in addition to existing standards contained in Texas Health and Safety Code, Chapter 144 [the Texas Renderers' Licensing Act] and the Texas Meat and Poultry Inspection Act, Texas Health and Safety Code, Chapter 433, relating to adulteration and misbranding.

(e) Any person who transports renderable raw materials or [and/or] dead animals from any place within this state to any place outside of the borders of this state must be registered with [have a valid rendering business license issued by] the department.

[(f) As a condition of licensing, the department may prescribe other responsible and appropriate construction, operational, maintenance and inspection requirements to ensure compliance with this chapter and other applicable rules of the department.]

§221.2.Definitions.

The following words and terms, when used in this subchapter [these sections], shall have the following meanings unless the context clearly indicates otherwise.

[(1) Act-The Texas Renderers' Licensing Act, Texas Health and Safety Code, Chapter 144.]

[(2) Authorized agent--An employee of the department designated by the commissioner to enforce the Act].

(1) [(3)] Commissioner--Commissioner of the [Texas] Department of State Health Services [or his successor].

[(4) Department--The Department of State Health Services.]

(2) [(5)] Dead animal--The whole or substantially whole carcass of a dead or fallen domestic animal, or domesticated wild animal, that was not slaughtered for human consumption.

(3) [(6)] Dead animal hauler--A person who collects and disposes of dead animals for commercial purposes.

(4) Department--The Department of State Health Services

(5) Department representative--An employee of the department designated by the commissioner to enforce Texas Health and Safety Code, Chapter 144, and the Texas Meat and Poultry Inspection Act, Texas Health and Safety Code, Chapter 433.

(6) [(7)] Disposal--The burying, burning, cooking, processing, or rendering of dead animals or of renderable raw materials.

(7) [(8)] Employee--A person who:

(A) is a legal employee of a rendering establishment; and

(B) handles or operates rendering equipment, utensils, containers, packaging materials or vehicles, owned or leased by the rendering establishment which are used to transport renderable raw material, recyclable cooking oil and/or waste cooking grease, and dead animals.

(8) [(9)] Feed grade fats and oils--Those fats or oils which have been obtained from edible fat and oil processing and include fatty acid products that result from the commercial rendering of animal tissues and from the processing of edible vegetables and plants.

(9) [(10)] Grease trap (brown grease)/grit trap waste--Industrial grade oil as defined in paragraph (10) [(11)] of this section and as such is not suitable for use as animal feed or topical cosmetics.

(10) [(11)] Industrial grade oil--A product not suitable for use in livestock feeds, and includes:

(A) tall oils--resinous by-product from the manufacturing of chemical wood pulp;

(B) by-products which have been used in or derived from nonfood manufacturing processes;

(C) salvage or sludge type oils which may consist in part of feed grade material, but which may also contain potential contaminants from a manufacturing process or the environment; and

(D) oils exposed to pesticides, polychlorinated biphenyls (PCBs), industrial chemicals, heavy metals, or other adulterants.

(11) [(12)] Inedible kitchen grease--Any unprocessed or partially processed grease, fat, or oil previously used in the cooking or preparation of food for human consumption and no longer suitable for such use.

(12) [(13)] Nuisance--Any situation or condition that constitutes a nuisance under the Texas Health and Safety Code, §341.011.

[(14) Operating license--A valid operating license issued by the department for each of the following:]

[(A) a rendering establishment;]

[(B) a related station;]

[(C) a transfer station;]

[(D) a renderable raw material hauler;]

[(E) a dead animal hauler; or]

[(F) a combination dead animal and renderable raw material hauler.]

(13) [(15)] Person--An individual, firm, partnership, association, corporation, trust, company, or organization, and includes an agent, officer, or employee of that individual or entity.

(14) [(16)] Pests--Any objectionable animal or insect, including[, but not limited to:] rodents, flies, larvae, and birds.

(15) [(17)] Processing--An operation or combination of operations through which materials derived from a dead animal or renderable raw material sources are:

(A) prepared for disposal at a rendering establishment;

(B) stored; or

(C) treated for commercial use or disposition, other than as food for human consumption.

(16) [(18)] Recyclable cooking oil--Any unprocessed or partially processed grease, fat, or oil previously used in the cooking or preparation of food for human consumption and intended for recycling by being used or reused as:

(A) an ingredient in a process to make a product; or

(B) an effective substitute for a commercial product.

(17) [(19)] Related station--An operation or facility that is necessary, useful, or incidental to the operation of a rendering establishment and that is operated or maintained separately from the rendering establishment.

(18) [(20)] Rendering business--The collection, transportation, disposal, or storage of dead animals or renderable raw materials for commercial purposes at locations where dead animals or renderable raw materials are rendered, boiled, processed, stored, transferred, or otherwise prepared, either as a separate business or in connection with any other established business.

(19) [(21)] Rendering establishment--An establishment or part of an establishment, a plant, or any other premise [premises] at which dead animals or renderable raw materials are rendered, boiled, processed, or otherwise prepared to obtain a product for commercial use or disposition, other than as food for human consumption. The term includes all other operations and facilities that are necessary or incidental to the establishment.

(20) [(22)] Renderable raw material--Any unprocessed or partially processed material of animal or plant origin, other than a dead animal, that is to be processed by rendering establishments. The term includes:

(A) animals, poultry, or fish slaughtered or processed for human consumption but that are unsuitable for that use;

(B) the inedible products and by-products of animals, poultry, or fish slaughtered or processed for human consumption;

(C) parts from dead animals;

(D) whole or partial carcasses of dead poultry or fish;

(E) waste cooking greases; and

(F) recyclable cooking oil.

(21) [(23)] Renderable raw material hauler--A person who collects or transports renderable raw materials for commercial purposes.

(22) [(24)] Renderable raw material hauling vehicle--Any motorized vehicle or detachable trailer used in the collection, receipt, transportation, delivery, transfer, or storage of renderable raw materials for commercial purposes.

(23) [(25)] Transfer station--A facility at which renderable raw materials are transferred from one conveyance to another.

[(26) Vehicle permit decal--A valid registration decal issued by the department.]

(24) [(27)] Waste cooking grease--Any unprocessed or partially processed grease, fat, or oil previously used in the cooking or preparation of food for human consumption and no longer suitable for such use, also defined as inedible kitchen grease.

(25) [(28)] Waste cooking grease hauler--Any person who collects, receives, transports, delivers, transfers, or stores incidental to such activities renderable raw material for commercial purposes, whether or not such person is required to register with the department [obtain a renderable raw material hauler license].

§221.3.Registration [Licensing ] Requirements, [Construction Permit Requirements,] Exemptions, [Fees] and Procedures.

(a) Registering [Licensing] requirements. All rendering businesses, renderable raw material haulers and [and/or] dead animal haulers shall register with the department [obtain a license] unless an exemption applies in subsection (b) [(c)] of this section. [Licenses are issued for a one or two-year term as determined by the department.] A registration [separate license] is required for each business and [and/or] place of business operated as a:

(1) rendering establishment;

(2) related station;

(3) transfer station;

(4) renderable raw material hauler;

(5) dead animal hauler; or

(6) combination dead animal and renderable raw material hauler.

[(b) Construction permit requirements. A person shall, prior to construction, obtain a construction permit (except as provided by the Act, §144.042) to construct a new rendering business or initiate construction involving replacement, addition, renovations or expansion of a rendering business as a:]

[(1) rendering establishment;]

[(2) related station; or]

[(3) transfer station.]

(b) [(c)] Exemptions from registering [licensing] requirements. Rendering business registering [licensing] requirements do not apply to the following:

(1) a person who slaughters, butchers, manufactures, or sells animal flesh or products only for use as food for human consumption, unless the person also performs rendering operations or processes as defined in this subchapter;

(2) a person who transports or disposes of the bodies of animals slaughtered for use as food for human consumption or the products of these bodies only for that purpose;

(3) an individual who disposes of the individual's own animal; or

(4) a governmental agency that collects, transports, or disposes of dead animals and renderable raw materials.

(c) Procedures for registration. To register as a rendering business, renderable raw material hauler or dead animal hauler, a person shall complete department registration forms, which can be obtained from the Department of State Health Services, Meat Safety Assurance Section. A rendering business, renderable raw material hauler or dead animal hauler must register with the department before accepting any renderable raw material.

[(d) Exemption from construction permit requirements. A construction permit fee is not required if the following conditions are met.]

[(1) The construction of a new rendering business is less than $10,000.]

[(2) The construction at a licensed rendering business is less than $10,000.]

[(e) The construction and layout requirements established under the Act applies to the construction.]

[(f) The department may prescribe other reasonable and appropriate construction, operational, and maintenance requirements to ensure compliance with the Act and rules of this chapter.]

[(g) License fee. All rendering businesses, renderable raw material haulers and/or dead animal haulers operating in Texas shall obtain a license and pay a licensing fee for each business operated as follows:]

[(1) for each rendering establishment having gross annual sales not exceeding $100,000:]

[(A) $350 for a one-year license; or]

[(B) $700 for a two-year license.]

[(2) for each rendering establishment having gross annual sales exceeding $100,000 but not more than $200,000:]

[(A) $500 for a one-year license; or]

[(B) $1,000 for a two-year license.]

[(3) for each rendering establishment having gross annual sales exceeding $200,000 but not more than $500,000:]

[(A) $750 for a one-year license; or]

[(B) $1,500 for a two-year license.]

[(4) for each rendering establishment having gross annual sales exceeding $500,000 but not more than $1 million:]

[(A) $1,000 for a one-year license; or]

[(B) $2,000 for a two-year license.]

[(5) for each rendering establishment having gross annual sales exceeding $1 million:]

[(A) $1,500 for a one-year license; or]

[(B) $3,000 for a two-year license.]

[(6) for each related station license:]

[(A) $400 for a one-year license; or]

[(B) $800 for a two-year license.]

[(7) for each transfer station license:]

[(A) $400 for a one-year license; or]

[(B) $800 for a two-year license.]

[(8) for each dead animal hauler license:]

[(A) $250 for a one-year license; or]

[(B) $500 for a two-year license.]

[(9) for each renderable raw material hauler license:]

[(A) $250 for a one-year license; or]

[(B) $500 for a two-year license; and]

[(10) for each combination dead animal and renderable raw material hauler license:]

[(A) $250 for a one-year license; or]

[(B) $500 for a two-year license.]

[(h) Vehicle permit decal fee. Except as exempted under subsection (c) of this section, a renderable raw material and/or dead animal hauling vehicle shall not be allowed to collect and transport dead animals or renderable raw materials unless such vehicle displays a decal as prescribed by the department. A vehicle permit decal will be issued for a one or two-year term as determined by the department. The fees are as follows:]

[(1) $25 for a one-year vehicle permit decal; or]

[(2) $50 for a two-year vehicle permit decal.]

[(i) Construction permit fee. An application for a construction permit must be accompanied by a fee payable to the department and will be based on the dollar value of construction cost as listed in this paragraph. The applicant must provide validated information and any other information required by the department to verify the construction cost. If construction cost is:]

[(1) Less than $10,000, then there is no permit fee required;]

[(2) $10,000-$49,999, the fee is $250;]

[(3) $50,000-$99,999, the fee is $500;]

[(4) $100,000-$249,999, the fee is $1,000;]

[(5) $250,000-$499,999, the fee is $1,500; and]

[(6) $500,000 and over, the fee is $2,500.]

[(j) License forms. License forms may be obtained by mail from the Meat Safety Assurance Division, Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756-3182, or from the Bureau of Food and Drug Safety website at http://www.tdh.state.tx.us/bfds/lic/apps.html.]

[(k) License applications and construction permits. A license or construction permit application for each rendering business, renderable raw material hauler and/or dead animal hauler shall be signed by the applicant and notarized, shall be made on the license application furnished by the department, shall be completed in its entirety, and shall be submitted with the license or construction permit fee.]

[(l) Issuance of license. The department may issue a license to the owner of a rendering business, renderable raw material hauler, and/or dead animal hauler after determining that the application is complete and the applicant is in compliance with the Act and rules in this chapter.]

[(1) A rendering business, renderable raw material hauler and/or dead animal hauler operating license is not prorated. The license is valid from the date of issuance until 12:00 midnight, December 31 of the calendar year in which the license was issued for a one-year license, and December 31 of the following calendar year for a two-year license.]

[(2) The license shall be displayed in a prominent place at the physical rendering business location.]

[(3) A photocopy of the license should be placed in each rendering business vehicle used to collect dead animals and/or renderable raw material.]

[(m) Renewal of license--applicable to all operations subject to the Act.]

[(1) A license holder shall renew a license in accordance with the requirements of this subsection.]

[(2) The license holder shall renew the license by filing an application for renewal on the form prescribed by the department accompanied by the required licensing fee set by the department. A licensee must file for renewal before the expiration date of the current license.]

[(3) If the renewal fee is not paid before the expiration of the 15th day after the date on which written notice of delinquency is provided to the license holder by the department, the license expires.]

[(4) If an operating license expires, a new application for an operating license must be submitted along with the appropriate fee.]

[(5) Failure to submit the renewal application may subject the rendering business to the enforcement provision of this chapter, §221.8 (relating to Assessment of Administrative Penalties) and §221.9 (relating to Denial, Suspension, or Revocation of License or Permit and Enforcement Provisions.)]

[(6) Falsification of an application will be grounds for denial or revocation of a license.]

[(n) Transferability of license. A rendering business license is not transferable.]

[(o) All license/permit fees paid under this section are non-refundable.]

[(p) A current license/permit shall only be issued when all past due fees are paid.]

[(q) Texas Online. Applicants may submit applications and renewal applications for a license under these sections electronically by the Internet through Texas Online at www.texasonline.state.tx.us. The department is authorized to collect fees, in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application process through Texas Online.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 11, 2020.

TRD-202003308

Barbara L. Klein

General Counsel

Department of State Health Services

Earliest possible date of adoption: September 27, 2020

For further information, please call: (512) 834-4554


25 TAC §§221.4 - 221.9

STATUTORY AUTHORITY

The repeals are authorized by Texas Health and Safety Code, §433.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary for the efficient execution of this chapter; Texas Health and Safety Code, Chapter 144; and Texas Government Code, §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, including by DSHS. Under Texas Health and Safety Code, Chapter 1001, the DSHS Commissioner is authorized to assist the Executive Commission in the development of rules relating to the matters within DSHS jurisdiction. The rules are also being revised in compliance with Texas Government Code, §2001.039.

The repeals implement Texas Health and Safety Code, Chapters 144 and 433.

§221.4.Vehicles, Identification of Vehicles and Vehicle Permit Decals.

§221.5.Records.

§221.6.Rendering Business Construction, Operational Requirements and Grounds.

§221.7.Prohibited Acts.

§221.8.Assessment of Administrative Penalties.

§221.9.Denial, Suspension or Revocation of License or Permit and Enforcement Provisions.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 14, 2020.

TRD-202003377

Barbara L. Klein

General Counsel

Department of State Health Services

Earliest possible date of adoption: September 27, 2020

For further information, please call: (512) 834-4554


SUBCHAPTER B. MEAT AND POULTRY INSPECTION

25 TAC §§221.11, 221.12, 221.14 - 221.16

STATUTORY AUTHORITY

The amendments and new section are authorized by Texas Health and Safety Code, §433.008, which provides that the Executive Commissioner of HHSC shall adopt rules necessary for the efficient execution of this chapter; Texas Health and Safety Code, Chapter 144; and Texas Government Code, §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system, including by DSHS. Under Texas Health and Safety Code, Chapter 1001, the DSHS Commissioner is authorized to assist the Executive Commission in the development of rules relating to the matters within DSHS jurisdiction. The rules are also being revised in compliance with Texas Government Code, §2001.039.

The amendments and new section implement Texas Health and Safety Code, Chapters 144 and 433.

§221.11.Federal Regulations on Meat and Poultry Inspection.

(a) The department adopts by reference the following federal regulations in the Code of Federal Regulations (CFR), as amended:

(1) 9 CFR, Part 301, Terminology; Adulteration and Misbranding Standards;

(2) 9 CFR, Part 303, Exemptions, except §303.1(a) [303.1(a)] and (b), [Exemptions];

(3) 9 CFR, Part 304, Application for Inspection; Grant of Inspection;

(4) 9 CFR, Part 305, Official Numbers; Inauguration of Inspection; Withdrawal of Inspection; Reports of Violation;

(5) 9 CFR, Part 306, Assignment and Authorities of Program Employees;

(6) 9 CFR, Part 307, Facilities for Inspection;

(7) 9 CFR, Part 309, Ante-Mortem Inspection;

(8) 9 CFR, Part 310, Post-Mortem Inspection;

(9) 9 CFR, Part 311, Disposal of Diseased or Otherwise Adulterated Carcasses and Parts;

(10) 9 CFR, Part 312, Official Marks, Devices[,] and Certificates;

(11) 9 CFR, Part 313, Humane Slaughter of Livestock;

(12) 9 CFR, Part 314, Handling and Disposal of Condemned or Other Inedible Products at Official Establishments;

(13) 9 CFR, Part 315, Rendering or Other Disposal of Carcasses and Parts Passed for Cooking;

(14) 9 CFR, Part 316, Marking Products and Their Containers;

(15) 9 CFR, Part 317, Labeling, Marking Devices, and Containers;

(16) 9 CFR, Part 318, Entry into Official Establishments; Reinspection and Preparation of Products;

(17) 9 CFR, Part 319, Definitions and Standards of Identity or Composition. The following requirements shall apply except in the case of restaurant menus and signs.

(A) The label of products prepared from bison meat must contain the words "bison meat," "North American bison meat," or "Native American bison meat."

(B) The label of products prepared from buffalo meat must contain the words "water buffalo meat," or "Asian buffalo meat."

(18) 9 CFR, Part 320, Records, Registration, and Reports;

(19) 9 CFR, Part 321, Cooperation with States and Territories;

(20) 9 CFR, Part 322, Exports;

(21) 9 CFR, Part 325, Transportation;

(22) 9 CFR, Part 327, Imported Products;

(23) 9 CFR, Part 329, Detention; Seizure and Condemnation; Criminal Offenses;

(24) 9 CFR, Part 331, Special Provisions for Designated States and Territories; and for Designation of Establishments Which Endanger Public Health and for Such Designated Establishments;

(25) 9 CFR, Part 335, Rules of Practice Governing Proceedings under the Federal Meat Inspection Act;

(26) 9 CFR, Part 350, Special Services Relating to Meat and Other Products;

(27) 9 CFR, Part 352, Exotic Animals and Horses; Voluntary Inspection;

(28) 9 CFR, Part 354, Voluntary Inspection of Rabbits and Edible Products Thereof;

(29) 9 CFR, Part 355, Certified Products for Dogs, Cats, and Other Carnivora; Inspection, Certification, and Identification as to Class, Quality, Quantity, and Condition;

(30) 9 CFR, Part 362, Voluntary Poultry Inspection Regulations;

(31) 9 CFR, Part 381, Poultry Products Inspection Regulations [Regulation], except §381.10(a)(3) through §381.10(c);

(32) 9 CFR, Part 416, Sanitation;

(33) 9 CFR, Part 417, Hazard Analysis and Critical Control Point (HACCP) Systems;

(34) 9 CFR, Part 418, Recalls;

(35) 9 CFR, Part 424, Preparation and Processing Operations;

(36) 9 CFR, Part 430, Requirements for Specific Classes of Product;

(37) 9 CFR, Part 441, Consumer Protection Standards: Raw Products; [and]

(38) 9 CFR, Part 442, Quantity of Contents Labeling and Procedures and Requirements for Accurate Weights; and

(39) 9 CFR, Part 500, Rules of Practice.

(b) Copies of these regulations are available via the Internet at https://www.dshs.texas.gov/meat/laws-rules.aspx [http://www.dshs.state.tx.us/msa/].

§221.12.Meat and Poultry Inspection.

(a) Introduction. The purpose of this subchapter [section] is to protect the public health by establishing uniform rules to assure that meat and poultry products are clean, wholesome and truthfully labeled.

(b) Definitions. The following words and terms, when used in this subchapter [these sections], shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--The Texas Meat and Poultry Inspection Act, Texas Health and Safety Code, Chapter 433 [Civil Statutes, Article 4476-7].

(2) Adulterated--A carcass, part of a carcass, or a meat food product where:

(A) any part of it is the product of an animal that has died in a manner other than by slaughter;

(B) any part of it consists of a filthy, putrid, or decomposed substance or is for another reason unsound, unhealthy, unwholesome, or otherwise unfit for human food; or

(C) it contains, because of administration of any substance to a live animal or otherwise, an added poison or harmful substance that makes the carcass, part of the carcass, or meat food unfit for human food.

(3) Alternate source food animals--Animals slaughtered and processed for food that are amenable to inspection under the [Texas Meat and Poultry Inspection] Act but are not amenable to inspection under the Federal Meat Inspection Act (21 U.S.C §601 et seq.) or Federal Poultry Products Inspection Act (21 U.S.C. §451 et seq.) [federal meat and poultry inspection acts].

(4) Bison--An animal known by the scientific name Bovidae bison bison, commonly known as the North American prairie bison; or an animal known by the scientific name Bovidae bison athabascae, commonly known as the Canadian wood [woods] bison.

(5) Bison meat--The meat or flesh of a bison.

(6) Buffalo--An animal known by the scientific name Bovidae bubalus bubalus, commonly known as the Asian Indian buffalo, water buffalo, or caraboa; an animal known by the scientific name Bovidae syncerus caffer, commonly known as the African buffalo or the Cape buffalo; an animal known by the scientific name Bovidae anoa depressicornis, commonly known as the Celebes buffalo; or an animal known by the scientific name Bovidae anoa mindorenis, commonly known as the Philippine buffalo or Mindoro buffalo.

(7) Buffalo meat--The carcass, part of the carcass, or meat food product made in whole or part of a buffalo [meat or flesh of a buffalo].

(8) Change in ownership--

(A) A change in the business organization operating the business which changes the legal entity responsible for operation of the business; or

(B) any change in control of the business. [; or]

[(C) any change in ownership of the business which requires a reapplication to the Texas Department of Health for a grant of inspection and/or custom exemption to operate.]

(9) Commissioner--Commissioner of the Department of State Health Services [or his successor]. For the purposes of this subchapter, the [The] term Secretary, [secretary] when used in 9 CFR, [for the purposes of this subchapter,] shall mean commissioner.

(10) Custom exempt operation [operations]--The slaughtering of livestock or the processing of an uninspected carcass or parts thereof for the owner of that livestock animal, carcass, or parts, a member of the owner's household, or a nonpaying guest of the owner in accordance with Texas Health and Safety Code, §433.006; or the selling of livestock to be slaughtered and processed by the purchaser on premises owned or operated by the seller for the exclusive use of the purchaser, a member of the owner's household, or a nonpaying guest of the owner in accordance with Texas Health and Safety Code, §433.006.

(11) Custom processor--A person who prepares meat food products from uninspected livestock carcasses or parts thereof for the owner of those carcasses or parts for the exclusive use of the owner, a member of the owner's household, or a nonpaying guest of the owner in accordance with Texas Health and Safety Code, §433.006.

(12) Custom slaughterer--A person who slaughters livestock for the owner of the livestock animal for the exclusive use of the owner of the livestock or sells livestock to be slaughtered by the purchaser on premises owned or operated by the seller, for the exclusive use of the purchaser of the livestock, a member of the purchaser's (owner's) household, or a nonpaying guest of the purchaser (owner) in accordance with Texas Health and Safety Code, §433.006. Custom slaughter includes all activities related to slaughter, including restraining of livestock, cleaning or preparing any equipment used for slaughter such as tools and knives, and cleaning and preparing the slaughter facility.

(13) Department--The Department of State Health Services. For the purposes of this subchapter, the term United States Department of Agriculture, when used in federal regulations adopted by reference by the department in §221.11 of this title (relating to Federal Regulations on Meat and Poultry Inspection), shall mean the department.

[(14) Director--Meat Safety Assurance Unit Director or his successor. The term Administrator, when used in 9 CFR, Parts 301-417, for the purpose of this section, shall mean director.]

(14) [(15)] Exotic animal--A member of a species of game not indigenous to this state, including [an] axis deer, nilgai antelope, or other cloven hoofed ruminant animal.

(15) [(16)] Federal regulations--The regulations adopted by reference by the department in §221.11 of this title [(relating to Federal Regulations on Meat and Poultry Inspection)].

(16) [(17)] Feral swine--Nondomestic descendants of domestic swine that have either escaped or were released and subsequently developed survival skills necessary to thrive in the wild. Some feral swine are outcrossed [out-crossed ] with "Russian boar." Feral swine are subject to the same regulations as domestic swine.

(17) [(18)] Game animals--Wild animals that are indigenous to this state, not amenable to the Act, [hunted for food or recreational purposes and] for which the hunter must obtain a hunting license from the Texas Parks and Wildlife Department before [prior to] hunting animals, such [animals] as white-tailed deer, mule deer, pronghorn antelope, and big horn sheep.

(18) [(19)] Grant of Custom Exemption [custom exemption]--An authorization from the department to engage in a business of custom slaughtering or [and/or] processing livestock for the owner of the livestock. This exemption includes the exclusive use of the owner, a member of the owner's household, or a nonpaying guest of the owner, in accordance with Texas Health and Safety Code, §433.006, provided that the following conditions are met: [for the owner's personal use.]

(A) the establishment slaughters only sound, healthy livestock and conducts all processing and handling under sanitary standards and procedures resulting in meat products that are not adulterated;

(B) the product meets the marking and labeling requirements as specified in §221.14 of this title (relating to Custom Exempt Slaughter and Processing; Low-Volume Poultry or Rabbit Slaughter Operations); and

(C) the establishment maintains records as specified in §221.14 of this title.

(19) [(20)] Grant of Inspection [inspection]--An authorization issued by the department to engage in a business subject to inspection under the Act.

(20) Grant of Voluntary Inspection--An authorization from the department to engage in a business subject to inspection of alternate source food animals under the Act.

(21) Granted establishment--Any establishment with a Grant of Inspection, Grant of Voluntary Inspection, or Grant of Custom Exemption.

(21) Grant of poultry/rabbit exemption--An authorization from the department for a person to engage in a very low volume business of slaughtering and processing poultry or rabbits of his/her own raising on his/her own property and personally distributing the carcasses and/or parts, to retail consumers, restaurants, or other retail establishments, provided that the following conditions are met:]

[(A) the person slaughters less than 10,000 poultry, rabbits, or a combination thereof, in a calendar year;]

[(B) the person does not buy and sell other poultry or rabbit products (except live chicks, baby rabbits, and/or breeding stock);]

[(C) only sound, healthy poultry or rabbits are slaughtered and all processes and handling are conducted under sanitary standards and procedures resulting in poultry and rabbit products that are not adulterated;]

[(D) the product bears the processor's name and address and the statement "Exempted P.L. 90-492"; (unless immediately sold to the household consumer); and]

[(E) the poultry is not a ratite.]

(22) Heat-treated--Meat or poultry products that are ready-to-eat or have the appearance of being ready-to-eat because they received heat processing.

(23) Livestock--Cattle, sheep, swine, goats, horses, mules, other equines, poultry, domestic rabbits, exotic animals, or domesticated game birds.

(24) Low-volume livestock operation--For purposes of this subchapter, a low-volume livestock operation includes an establishment that processes fewer than 10,000 domestic rabbits or more than 1,000 but fewer than 10,000 poultry in a calendar year, but does not include an establishment that processes 1,000 or fewer poultry raised by the operator of the establishment in a calendar year, or processes fewer than 500 domestic rabbits in a calendar year.

(25) Meat Safety Assurance Section--The organization overseen by the state director, within the Department of State Health Services, responsible for meat safety in granted establishments in Texas. For the purposes of this subchapter, the term Food Safety and Inspection Service (FSIS), when used in federal regulations adopted by reference by the department in §221.11 of this title, shall mean Meat Safety Assurance Section.

(26) [(24)] Person--Any individual, partnership, association, corporation, or unincorporated business organization.

(27) [(25)] Poultry--A live or dead domesticated bird.

(28) Poultry or Rabbit Exemption--Registration with the department for a person to engage in a low-volume livestock operation of slaughtering and processing poultry, rabbits, or both of their own raising on their own property and personally distributing the carcasses and parts to retail consumers, restaurants, or other retail establishments, provided that the following conditions are met:

(A) the person slaughters more than 500 but fewer than 10,000 domestic rabbits and/or more than 1,000 but fewer than 10,000 poultry in a calendar year, January 1 through December 31 inclusive;

(B) the person does not buy or sell other poultry or rabbit products (except live chicks, baby rabbits, and/or breeding stock);

(C) the person slaughters only sound, healthy poultry or rabbits and conducts all processes and handling under sanitary standards and procedures resulting in poultry or rabbit products that are not adulterated;

(D) the product meets the marking and labeling requirements as specified in §221.14(c)(4) of this title;

(E) the poultry is not a ratite.

(29) [(26)] Ratite--Poultry such as ostrich, emus, or rhea.

(30) Slaughter--Methods of humane death, for the purpose of food, under sanitary conditions.

(31) State director--For the purposes of this subchapter, the term administrator, when used in federal regulations adopted by reference by the department in §221.11 of this title, shall mean state director.

[(27) Very low volume poultry/rabbit processing establishments--Producers that slaughter less than 10,000 poultry, rabbits, or a combination thereof, of their own raising each year.]

(c) Grant of Inspection, Grant of Voluntary Inspection, or Grant of Custom Exemption [Grant of inspection, custom exemption, and/or poultry/rabbit exemption.]

(1) Basic requirements.

(A) A person shall not engage in a business subject to the Act unless that person has met the standards established by the Act, the federal regulations as adopted by the department, and this subchapter [these sections], and has obtained the appropriate Grant of Inspection, Grant of Voluntary Inspection, or Grant of Custom Exemption [grant of inspection, custom exemption, and/or poultry/rabbit exemption] issued by the department.

(B) A person shall not engage in custom operations unless that person has met the standards established by the Act, the federal regulations, and this subchapter [these sections], and has obtained a Grant of Custom Exemption [grant of custom exemption] issued by the department.

(C) A person shall not engage in exempted poultry or rabbit slaughter and processing operations unless that person has met the standards established by the Act, the federal regulations, and this subchapter [these sections], and has registered with the department, if required [obtained a grant of poultry/rabbit exemption issued by the department].

(D) A person shall not engage in alternate food source livestock slaughter and processing operations unless that person has met the standards established by the Act, the federal regulations, and this subchapter, and has obtained a Grant of Voluntary Inspection issued by the department.

(E) The establishment shall display the Grant of Inspection, Grant of Voluntary Inspection, and Grant of Custom Exemption in a prominent place at the physical business location, easily visible to the public.

(2) Application. [To apply for a grant of inspection, custom exemption, and/or poultry/rabbit exemption, a person shall complete department application forms which can be obtained from the Meat Safety Assurance Unit, Department of State Health Services, 1100 West 49th Street, Austin, Texas 78756.]

(A) To apply for a Grant of Inspection, Grant of Voluntary Inspection, or Grant of Custom Exemption, a person shall complete department application forms, which can be obtained from the Department of State Health Services, Meat Safety Assurance Section.

(B) Upon submission of an application for a Grant of Inspection, Grant of Voluntary Inspection, or Grant of Custom Exemption, the applicant must prove that the establishment meets all regulatory requirements for the grant.

(C) The department shall conduct an inspection to verify whether the establishment meets all regulatory requirements for the grant and shall notify the applicant of the results of the inspection within 45 working days of receiving a complete and accurate application,

(i) If the establishment meets all regulatory requirements on the date of inspection, the department will provide the applicant with the appropriate grant.

(ii) If the establishment does not meet all regulatory requirements on the date of inspection, the department will provide the applicant with a listing of the regulatory requirements that the establishment failed to meet. In this case, the applicant may reapply when the applicant is ready to support that the establishment meets all regulatory requirements for the grant.

(3) Duration. The applicant who has complied with the standards in the Act, the federal regulations, and this subchapter [these sections] will receive a Grant of Inspection, Grant of Voluntary Inspection, or Grant of Custom Exemption [grant of inspection, custom exemption, and/or poultry/rabbit exemption] for an indefinite period subject to the denial, suspension, and revocation provisions in paragraph (6) of this subsection.

(4) Non-transferable [Nontransferability]. A Grant of Inspection, Grant of Voluntary Inspection, and Grant of Custom Exemption [grant of inspection, custom exemption, and/or poultry/rabbit exemption] is not transferable to another person.

(5) Change of ownership. Any person operating a business under a Grant of Inspection, Grant of Voluntary Inspection, or Grant of Custom Exemption [grant of inspection, custom exemption, and/or poultry/rabbit exemption] from the department shall notify the department of any change in ownership of that business and, in such event, shall relinquish the current grant to the department. The new owner shall make application for a new grant on forms provided by the department. This notification and application shall be made before [prior to] the ownership change.

(6) Denial, suspension and revocation.

(A) The department may deny a Grant of Inspection, Grant of Voluntary Inspection, or Grant of Custom Exemption [grant of inspection, custom exemption, and/or poultry/rabbit exemption] to any applicant who does not comply with the standards of the Act, the federal regulations, and this subchapter [these sections].

(B) The department may suspend or revoke a Grant of Inspection, Grant of Voluntary Inspection, or Grant of Custom Exemption [grant of inspection, custom exemption, and/or poultry/rabbit exemption] of any person who violates the standards of the Act, the federal regulations, and this subchapter [these sections].

(C) The department may suspend a Grant of Inspection, Grant of Voluntary Inspection, or Grant of Custom Exemption if an establishment is inactive for a period in excess of 30 calendar days.

(D) An establishment, where a grant has been suspended, shall undergo reinspection before reinstatement of the grant.

(E) [(C)] A person whose grant has been denied, suspended, or revoked is entitled to an opportunity for a formal hearing in accordance with §§1.21, 1.23, 1.25, and 1.27 [§§1.21 -1.34] of this title (relating to Formal Hearing Procedures.)

(7) Meat and poultry establishments and related industries.

(A) For the purpose of conducting an inspection or performing any other inspection program duty, the department representatives must have access to the premises and to every part of an establishment that slaughters livestock or otherwise prepares or processes meat or poultry products subject to inspection, at all times, day or night, whether the establishment is being operated. The numbered official badge of a department representative is sufficient identification to entitle the representative to admittance to all parts of such an establishment and its premises.

(B) At all reasonable hours, any person subject to record keeping requirements under the Act or this chapter (whether holding or not holding a Grant of Inspection or exemption therefrom) must permit a department representative upon presentation of credentials, to enter the place of business to examine the facilities and inventory and to examine and copy the records specified in this chapter.

[(d) Special fees for inspection services.]

[(1) Scope and purpose. Fees shall be charged by the department for inspection services provided on a holiday or on an overtime basis, and/or for products which do not require inspection by state or federal law.]

[(2) Overtime and holiday rate. The overtime and holiday rate for inspection services provided pursuant to Health and Safety Code, Chapter 433, §433.009, shall be $29.50 per hour, per program employee.]

[(3) Rate for inspections not required by state or federal meat and poultry inspection laws. The rate for inspections not required by state or federal meat and poultry inspection laws provided pursuant to Health and Safety Code, Chapter 433, §433.009, shall be $29.50 per hour, per program employee.]

§221.14.Custom Exempt Slaughter and Processing; Low-Volume Poultry or Rabbit [Very Low Volume Poultry/Rabbit] Slaughter Operations.

(a) Custom slaughter requirements. The requirements of this section shall apply to the custom slaughter by any person of livestock, as defined in §221.12(b) of this title (relating to Meat and Poultry Inspection), delivered by or for the owner thereof for such slaughter, not for sale to the public and for the exclusive use of the owner, a member of the owner's household, or a nonpaying guest of the owner [exclusively for use, in the household of such owner, by him and members of his household and nonpaying guests]. The requirements of this section do not apply to hunter killed game animals, as defined in §221.12(b) of this title. The requirements of this section do not apply to processing of hunter killed exotic animals, or hunter killed feral swine, as defined in §221.12(b) of this title, provided persons engaged in such processing do not utilize the same facilities to engage in the receipt, storage, processing, or distribution of other meat and/or poultry food products.

(1) Animals for slaughter. [No adulterated animals as defined in §221.12(b)(2) of this title shall be accepted for custom slaughter.] Only healthy animals, exhibiting no abnormalities, may be accepted for custom slaughter at custom slaughter establishments. Unhealthy or unsound animals are those that exhibit any condition that is not normally expected to be exhibited in a healthy and sound member of that species.

(A) Examples of abnormal or unsound animals include[, but are not limited to,] animals that are not able to get up, or animals that have a missing or abnormal eye, swellings, rectal or vaginal prolapse, ocular or nasal discharge, a cough, or a limp.

(B) Animals that have an obviously recent break of the lower leg (below the stifle or elbow) and are able to walk and stand are not considered to be unsound or unhealthy if no other abnormal conditions are noted.

(2) Record keeping.

(A) Operators of facilities conducting custom slaughter shall keep records for a period of two years, beginning on January 1 of the previous year plus the current year to date.

(B) The records shall be available to department representatives on request.

(C) Custom slaughter records shall contain the name, address, and telephone number of the owner of each animal presented, the date the animal was slaughtered, the species and brief description of the livestock. If a custom processor accepts farm slaughtered animals for custom processing, records shall contain a signed statement from the animal owner that the animal was healthy and exhibited no abnormalities, other than an obviously recent break to the lower leg (below the stifle or elbow) and was able to walk and stand at the time of slaughter.

(D) Additional records that must be kept include records such as bills of sale, invoices, bills of lading, and receiving and shipping papers for transactions in which any livestock or carcass, meat or meat food product is purchased, sold, shipped, received, transported or otherwise handled by the custom slaughter establishment [slaughterer].

(E) If the custom slaughter establishment also maintains a retail meat outlet, separate records as listed in subparagraph (D) of this paragraph, shall be maintained for each type of business conducted at the establishment.

(3) Sanitary methods. Custom slaughter operations [establishments] shall be maintained in sanitary condition. Each custom slaughter establishment shall comply with [all of] the requirements of 9 CFR, Part 416, adopted under §221.11 of this title (relating to Federal Regulations on Meat and Poultry Inspection). Establishments that accept farm slaughtered livestock must complete and document cleaning and sanitization of all surfaces and equipment used in the processing of the farm slaughtered livestock before those surfaces and equipment may be used to process other products.

(4) Humane treatment of animals.

(A) Livestock pens, driveways, and ramps shall be maintained in good repair and free from sharp or protruding objects which may cause injury or pain to the animals. Floors of livestock pens, ramps, and driveways shall be constructed and maintained so as to provide good footing for livestock.

(B) A pen sufficient to protect livestock from the adverse climatic conditions of the locale shall be required at those custom slaughter establishments that hold animals overnight or through the day.

(C) Animals shall have access to water in all holding pens and, if held longer than 24 hours, access to feed. There shall be sufficient room in the holding pen for animals held overnight to lie down.

(D) Livestock must [is to] be humanely slaughtered in accordance with this section and 9 CFR §313, Humane Slaughter of Livestock, adopted by reference in §221.11 of this title. The slaughtering of livestock by using captive bolt stunners, electrical stunners, and shooting with firearms, are designated as humane methods of stunning [slaughtering].

(i) The captive bolt stunners, electrical stunners, or delivery [deliver] of a bullet or projectile shall be applied to the livestock in a manner so as to produce immediate unconsciousness in the animal [animals] before they are shackled, hoisted, thrown, cast, or cut. The animal [animals] shall be stunned in such a manner that they will be rendered unconscious with a minimum of excitement and discomfort.

(ii) The driving of animals to the stunning area shall be done with a minimum of excitement and discomfort to the animals. Delivery of calm animals to the stunning area is essential since accurate placement of stunning equipment is difficult on nervous or injured animals. Electrical equipment shall be minimally used with the lowest effective voltage to drive the animal to the stunning area. Pipes, sharp or pointed objects, and other items which would cause injury or unnecessary pain to the animal shall not be used to drive livestock.

(iii) Immediately after the stunning blow is delivered, the animals shall be in a state of complete unconsciousness and remain in this condition throughout shackling, sticking, and rapid exsanguination [bleeding].

(iv) Stunning instruments must be maintained in good repair and available for inspection by a department representative.

(v) Inhumane treatment of animals is [shall be] prohibited and any observed inhumane treatment of animals shall be subject to the tagging provisions of paragraph (6)(C) of this subsection in addition to possible enforcement action.

(E) Establishments conducting ritual slaughter in accordance with 7 USC §1902(b).

(i) Establishments conducting ritual slaughter must have a completed document, that is signed and dated by an appropriate authority attesting to the conduct of ritual slaughter at that establishment. This document must list, by name, the individuals authorized to perform ritual slaughter at that establishment.

(ii) Establishments conducting ritual slaughter in accordance with 7 USC §1902(b) are exempt from the stunning requirements of this section and the requirements of 9 CFR §313.2(f), §313.5, §313.15, §313.16, §313.30, and §313.50(c) pertaining to stunning methods provided animals are humanely restrained and adequately restrained to prevent harm to the animal throughout the slaughter process.

(5) Containers used for meat food products, [product;] paper, or other materials in contact with meat food products [product].

(A) To avoid contamination of product, containers shall be lined with suitable material of good quality before packing.

(B) Containers and trucks, or other means of conveyance in which any carcass or part is transported to the owner shall be kept in a clean and sanitary condition.

(C) Paper or other materials used for covering or lining containers and the cargo space of trucks, or other means of conveyance shall be of a kind which does not tear during use but remains intact and does not disintegrate when moistened by the product.

(6) Tagging insanitary equipment, utensils, rooms, and carcasses.

(A) A department representative may attach a "Texas Rejected" tag to any equipment, utensil, room, or compartment at a custom slaughter establishment that a department representative determines is insanitary and is a health hazard. No equipment, utensil, room, or compartment so tagged shall again be used until untagged or released by a department representative. Such tag [so attached] shall not be removed by anyone other than a department representative.

(B) A department representative that determines a carcass is adulterated, unfit for human food, is from an unhealthy or unsound animal, or could result in a health hazard, may attach a "Texas Retained" tag to the carcass and document the reason for attaching the tag on a form specified by the department and deliver the form to the operator of the custom slaughter establishment. The owner of the carcass shall be notified by the plant operator and advised of the potential health risk. The custom slaughter establishment [slaughterer] shall ensure that the owner of the carcass either authorizes the voluntary destruction and denaturing of the carcass and all parts or agrees to remove the carcass from the custom slaughter establishment.

(C) Inhumane treatment of animals that is observed by a department representative shall result in the attaching of a "Texas Rejected" tag to the deficient equipment, facility structure, or the stunning area causing the inhumane treatment. No equipment, area, or facility so tagged shall be used until untagged or released by the department representative.

(7) Marking and labeling of custom prepared products. Carcasses and parts therefrom that are prepared on a custom basis shall be marked at the time of preparation with the term "Not for Sale" in letters at least three-eighths inch in height, and shall also be identified with the owner's name or a code that allows identification of the carcass or carcass part to its owner. Ink used for marking such products must be labeled for such purpose. Ink containing FD&C Violet No. 1 shall not be used.

(8) Requirements concerning procedures.

(A) Heads from animals slaughtered by gunshot to the head shall not be used for food purposes. Such heads shall be denatured in accordance with paragraph (10) of this subsection and placed into containers marked "INEDIBLE." Heads with gunshot wounds may be returned to the owner only after they have been freely slashed and adequately denatured to preclude their use for human food.

(B) Cattle paunches and hog stomachs intended for use in the preparation of meat food products shall be emptied of their contents immediately upon removal from the carcass and thoroughly cleaned on all surfaces and parts.

(C) Carcasses shall not be adulterated, as defined in §221.12(b)(2) of this title, when placed in coolers.

(9) Requirements concerning ingredients. All ingredients and other articles used in the preparation of any carcass shall be clean, sound, healthful, wholesome, and will not result in the adulteration of the carcass. A letter of guaranty from the manufacturer stating that the ingredient or article is safe when used in contact with food shall be obtained by the custom slaughter establishment [slaughterer] and made available upon request to the department representative.

(10) Denaturing procedures. Carcasses, parts thereof, meat and meat food products that are adulterated or [and/or ] not returned to the owner shall be adequately denatured or decharacterized to preclude their use as human food. Before the denaturing agents are applied, carcasses and carcass parts shall be freely slashed or sectioned. The denaturing agent must be mixed with all of the carcasses or carcass parts to be denatured, and must be applied in such quantity and manner that it cannot [easily and readily] be removed by washing or soaking. A sufficient amount of the appropriate agent shall be used to give the material a distinctive color, odor, or taste so that such material cannot be confused with an article of human food.

(b) Custom processing requirements. The requirements of this section shall apply to the custom processing by any person of uninspected livestock carcasses or parts, delivered by or for the owner thereof for such processing, not for sale to the public and for the exclusive use of the owner, a member of the owner's household, or a nonpaying guest of the owner [exclusively for use, in the household of such owner, by him and members of his household and nonpaying guests]. The requirements of this section shall not apply to processing hunter killed game animals, as defined in §221.12(b) of this title. The requirements of this section do not apply to processing of hunter killed exotic animals, or hunter killed feral swine, as defined in §221.12(b) of this title, provided persons engaged in such processing do not utilize the same facilities to engage in the receipt, storage, processing, or distribution of other meat and/or poultry food products.

(1) Carcasses and parts for processing. No adulterated carcasses or parts as defined in §221.12(b)(2) of this title shall be accepted for custom processing.

(2) Record keeping.

(A) Operators of facilities conducting custom processing shall keep records for a period of two years, beginning on January 1 of the previous year plus the current year to date.

(B) The records shall be available to the department representative on request.

(C) Custom processing records shall contain the name, address, and telephone number of the owner of each carcass or parts presented, the date the carcass or parts were delivered, the species and amount.

(D) Additional records such as bills of sale, invoices, bills of lading, and receiving and shipping papers for transactions in which any carcass, meat or meat food product is purchased, sold, shipped, received, transported or otherwise handled by the custom processor shall also be kept by the custom processor.

(E) If the custom processing establishment also maintains a retail meat outlet, separate records, as listed in subparagraph (D) of this paragraph, shall be maintained for each type of business conducted at the establishment.

(F) Temperature monitoring records shall be maintained by the custom processor, for heat treated or ready-to-eat products. These records shall include the temperature attained and time held during heating and the time and temperatures during the cool down process.

(3) Sanitary methods. Custom processing establishments shall be maintained in sanitary condition. Each custom processing establishment shall comply with the requirements of 9 CFR, Part 416, adopted under §221.11 of this title.

(4) Containers used for product; paper or other materials in contact with product.

(A) To avoid contamination of product, containers shall be lined with suitable material of good quality before packing.

(B) Containers and trucks, or other means of conveyance in which any product is transported to the owner shall be kept in a clean and sanitary condition.

(C) Boxes and any containers used as tote boxes shall be clean and stored off the floor in a manner that does not interfere with good sanitation.

(5) Tagging insanitary equipment, utensils, rooms, and carcasses.

(A) A department representative may attach a "Texas Rejected" tag to any equipment, utensil, room, or compartment at a custom processing establishment that a department representative determines is insanitary and is a health hazard. No equipment, utensil, room, or compartment so tagged shall again be used until untagged or released by a department representative. Such tag so attached shall not be removed by anyone other than a department representative.

(B) A department representative that determines a carcass is adulterated, unfit for human food, is from an unhealthy or unsound animal, or may be a health hazard, may attach a "Texas Retained" tag to the carcass and document the reason for attaching the tag on a form specified by the department and deliver the form to the operator of the establishment. The owner of the carcass shall be notified by the plant operator and advised of the potential health risk. The custom processor shall ensure that the owner of the carcass or parts either authorizes the voluntary destruction and denaturing of the carcass and all parts or agrees to remove the carcass from the custom processing establishment. Under no circumstances may the carcass be further processed at the establishment.

(6) Death by other means than slaughter. Carcasses, or parts thereof, derived from animals that have died otherwise than by slaughter. This includes animals, such as roadkill or animals that have died by disease, trauma, or other accident, may not enter, or be processed by a granted establishment.

(7) [(6)] Marking and labeling of custom prepared products.

(A) Products that are custom prepared must be packaged immediately after preparation and must be labeled with the term "Not For Sale" in lettering not less than three-eighths inch in height. Such custom prepared products or their containers shall also bear the owner's name and any additional labeling such as product cut or description.

(B) Safe handling instructions shall accompany every customer's raw or not fully cooked products. The information shall be in lettering no smaller than one-sixteenth of an inch in size and may be placed on each product package, each tote box or bag containing packaged product, or given as a flyer to the customer with the product. The safe handling instructions shall be placed immediately after the heading in subparagraph (A) of this paragraph and shall include the following or similar statements.

(i) "Some meat and meat products may contain bacteria that could cause illness if the product is mishandled or cooked improperly. For your protection, follow these safe handling instructions." [shall be placed immediately after the heading and before the safe handling statements.]

(ii) "Meat and poultry must be kept refrigerated or frozen. Thaw in refrigerator or microwave." However, any portion of this statement that is in conflict with the product's specific handling instructions may be omitted, e.g., instructions to cook without thawing. A graphic illustration of a refrigerator may be displayed next to this statement.

(iii) "Raw meat and poultry must be kept separate from other foods. Wash working surfaces including cutting boards, utensils, and hands after touching raw meat or poultry." A graphic illustration of soapy hands under a faucet may be displayed next to this statement.

(iv) "Meat and poultry must be cooked thoroughly. Ground meat products should be cooked to an internal temperature of 160 degrees Fahrenheit or until the juices run clear. Other meat products should be cooked so that the external temperature reaches 160 degrees Fahrenheit." A graphic illustration of a skillet may be displayed next to this statement.

(v) "Hot foods must be kept hot. Refrigerate leftovers immediately or discard." A graphic illustration of a thermometer may be displayed next to the statement.

(8) [(7)] Requirements concerning procedures.

(A) Uninspected heads from custom slaughtered animals may not be sold or used in the preparation of meat food products unless prepared specifically for the owner of the animal for his personal use.

(B) Heads for use in the preparation of meat food products shall be split and the bodies of the teeth, the turbinates and ethmoid bones, ear tubes, and horn butts removed, and the heads then thoroughly cleaned.

(C) Bones and parts of bones shall be removed from product which is intended for chopping or grinding.

(D) Kidneys for use in the preparation of meat food products shall first be freely sectioned and then thoroughly soaked and washed.

(E) Clotted blood shall be removed from livestock hearts before they are used in the preparation of meat food products.

(F) Product shall not be adulterated as defined in §221.12(b)(2) of this title when placed in coolers or freezers.

(G) Frozen product may be defrosted in water or pickle in a manner that is not conducive to promoting bacterial growth or resulting in adulteration of the product.

(9) [(8)] Requirements concerning ingredients.

(A) All ingredients and other articles used in the preparation of any product shall be clean, sound, healthful, wholesome, and otherwise such as to not result in adulteration of product. A letter of guaranty from the manufacturer stating that the ingredient or article is safe when used as an ingredient or in contact with food shall be obtained by the custom processor and made available upon request to the department representative.

(B) Ingredients for use in any product may not contain any pesticide chemical or other residues in excess of levels permitted under the Federal Food, Drug, and Cosmetic Act.

(10) [(9)] Approval of substances for use.

(A) No substance may be used in the preparation of any product unless it is a Food and Drug Administration [an FDA] approved food additive.

(B) No product shall contain any substance which would render it adulterated.

(C) Nitrates shall not be used in curing bacon.

(i) Nitrites in the form of sodium nitrite may be used at 120 parts per million (ppm) ingoing (or in the form of potassium nitrite at 148 ppm ingoing) maximum for injected, massaged, or immersion cured bacon; and 550 ppm of sodium ascorbate or sodium erythorbate (isoascorbate) for injected, massaged, or immersion cured bacon shall be used.

(ii) Sodium or potassium nitrite may be used at 2 pounds to 100 gallons pickle at 10% pump level; 1 ounce to 100 pounds meat (dry cure).

(iii) Sodium ascorbate or sodium erythorbate (isoascorbate) may be used at 87.5 ounces to 100 gallons pickle at 10% pump level; 7/8 ounces to 100 pounds meat; or 10% solution to surfaces of cut meat.

(iv) Sodium nitrite shall not exceed 200 ppm ingoing or an equivalent amount of potassium nitrite (246 ppm ingoing) in dry cured bacon based on the actual or estimated skin-free green weight of the bacon belly.

(D) When curing products other than bacon, nitrites, nitrates, or combination shall not result in more than 200 ppm of nitrite in the finished product.

(i) Sodium or potassium nitrite may be used at 2 pounds to 100 gallons pickle at 10% pump level; 1 ounce to 100 pounds meat (dry cure); or 1/4 ounce to 100 pounds chopped meat and/or meat byproduct.

(ii) Sodium or potassium nitrate may be used at 7 pounds to 100 gallons pickle; 3 1/2 ounce to 100 pounds meat (dry cure); or 2 3/4 ounce to 100 pounds chopped meat. (Nitrates may not be used in bacon.)

(11) [(10)] Prescribed treatment of heat-treated meat and poultry products.

(A) All forms of fresh meat and poultry, including fresh unsmoked sausage and pork such as bacon and jowls are classified as products that are customarily well cooked in the home before being consumed. Therefore the treatment of such products for the destruction of pathogens is not required.

(B) Meat and poultry products, that are not customarily cooked or may not be cooked before consumption because they have the appearance of being fully cooked, must not contain pathogens.

(i) Heat-treated products and dry, semi-dry, and fermented sausages, that are less than three inches in diameter, are required to be heated to an internal temperature according to the following chart:

Figure: 25 TAC §221.14(b)(11)(B)(i) (.pdf)

[Figure: 25 TAC §221.14(b)(10)(B)(i)]

(ii) Heat treated products and dry, semi-dry, and fermented sausages, that are more than three inches in diameter, are required to be heated to an internal temperature according to the following chart:

Figure: 25 TAC §221.14(b)(11)(B)(ii) (.pdf)

[Figure: 25 TAC §221.14(b)(10)(B)(ii)]

(iii) Heat treated products that must be stored under refrigerated temperatures must be cooled quickly to prevent bacterial growth. During cooling, the product's maximum internal temperature should not remain between 130 degrees Fahrenheit and 80 degrees Fahrenheit for more than 1 1/2 hours nor between 80 degrees Fahrenheit and 40 degrees Fahrenheit for more than 5 hours. Custom processors may slowly cool cured products in accordance with Food Safety and Inspection Services (FSIS) Directive 7110.3, Time/Temperature Guidelines for Cooling Heated Products, which may be viewed at www.fsis.usda.gov, or other substantiated support.

[(I) The FSIS Directive 7110.3 may be viewed online via the Internet at http://www.fsis.usda,.gov/.]

[(II) Copies of the FSIS Directive 7110.3 may be purchased from the Scientific Services, Meat and Poultry Inspection, Food Safety and Inspection Service, U.S. Department of Agriculture, Washington, D.C. 20250.]

(iv) Custom processors not utilizing a heating step as described in clauses (i), (ii), and (iii) of this subparagraph must submit an alternate procedure, describing the method utilized in determining safety, to a department representative.

(v) Custom processors may produce heat-treated or ready-to-eat custom products, including chorizo, at temperatures other than those listed in clauses (i), (ii), and (iii) of this subparagraph when requested to do so by the owner of the product. The custom processor must obtain a signed statement from the owner of the product stating that the risks associated with eating under-cooked meat products are understood.

(C) When necessary to comply with the requirements of this section, the smokehouses, drying rooms, and other compartments used in the treatment of meat and poultry products to destroy pathogens shall be suitably equipped, by the operator of the custom processing establishment with accurate automatic recording thermometers.

(12) [(11)] Denaturing procedures. Carcasses, parts thereof, meat and meat food products that are adulterated and/or not returned to the owner shall be adequately denatured or decharacterized to preclude their use as human food. Before the denaturing agents are applied, carcasses and carcass parts shall be freely slashed or sectioned. The denaturing agent must be mixed with all of the carcasses or carcass parts to be denatured, and must be applied in such quantity and manner that it cannot easily and readily be removed by washing or soaking. A sufficient amount of the appropriate agent shall be used to give the material a distinctive color, odor, or taste so that such material cannot be confused with an article of human food.

(c) Low-volume poultry or rabbit [Very low poultry/rabbit ] slaughter operations requirements. [The requirements of this section shall apply to any person who slaughters and sells poultry, rabbits, or both, and qualifies as a very low volume slaughter operation, as defined in §221.12(b)(27) of this title.]

(1) Animals for slaughter. No adulterated poultry or rabbits as defined in §221.12(b)(2) of this title shall be slaughtered for the purpose of selling its carcass or parts for food. Only healthy poultry and rabbits, exhibiting no abnormalities, may be slaughtered for sale as food. Unhealthy or unsound poultry and rabbits are those that exhibit any condition that is not normally expected to be exhibited in a healthy and sound member of that species. Examples of abnormal or unsound animals include[, but are not limited to,] animals that are not able to get up, or animals that have any swellings, rectal or vaginal prolapse, ocular or nasal discharge, a cough, or a limp.

(2) Record keeping.

(A) Operators of facilities conducting slaughter under a Poultry or Rabbit Exemption [the poultry/rabbit exemption] shall keep records such as bills of sale, invoices, bills of lading, and receiving and shipping papers for transactions in which any livestock or carcass, meat or meat food product is purchased, sold, shipped, received, transported or otherwise handled for a period of two years, beginning on January 1 of the previous year plus the current year to date.

(B) The records shall be available to department representatives on request.

(3) Sanitary methods. Low-volume poultry or rabbit [Very low volume poultry/rabbit] slaughter operations shall be maintained in sanitary condition. [Each operator shall comply with all of the requirements of 9 CFR, §§416.11 - 416.16, adopted under §221.11 of this title.]

[(4) Tagging insanitary equipment, utensils, rooms, and carcasses.]

[(A) A department representative may attach a "Texas Rejected" tag to any equipment, utensil, room, or compartment at a very low volume poultry/rabbit slaughter establishment that a department representative determines is insanitary and is a health hazard. No equipment, utensil, room, or compartment so tagged shall again be used until untagged or released by a department representative. Such tag so attached shall not be removed by anyone other than a department representative.]

[(B) A department representative that determines a carcass is adulterated, unfit for human food, is from an unhealthy or unsound animal, or could result in a health hazard, may attach a "Texas Retained" tag to the carcass and document the reason for attaching the tag on a form specified by the department and deliver the form to the operator of the establishment. The unfit carcass may not be used as human food and must either be voluntarily destroyed and denatured or otherwise precluded from use as human food.]

(4) [(5)] Marking and labeling of products. Carcasses and parts therefrom that are prepared under the Poultry or Rabbit Exemption [a grant of limited inspection for low volume poultry and rabbit producers to be sold through an off premise retail outlet,] shall be packaged and the container shall be marked with each of the following in letters at least one-quarter inch in height, unless otherwise stated:

(A) the slaughterer's name and address and the term "Exempted P.L. 90-492" and the statement "Not Produced Under Inspection;" [in letters at least one-quarter inch in height.]

(B) the common or usual name of the product, if any there be, and if there is none, a truthful descriptive designation of the product;

(C) a special handling label such as, "Keep Refrigerated," "Keep Frozen," "Keep Refrigerated or Frozen," "Perishable- Keep Under Refrigeration," or any other similar statement that the establishment has received approval from the department to use; and

(D) safe handling instructions shall be in lettering no smaller than one-sixteenth of an inch in size and shall be prominently placed with such conspicuousness (as compared with other words, statements, designs, or devices in the labeling) as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use:

(i) Safe handling information. The safe handling information shall be presented on the label under the heading "Safe Handling Instructions," which shall be set in type size larger than the print size of the rationale statement and safe handling statement. The safe handling information shall be set off by a border and shall be one color type printed on a single color contrasting background whenever practical.

(ii) Rationale statement. The safe handling instructions shall include the following rationale statement, "This product was prepared from meat and/or poultry. Some food products may contain bacteria that could cause illness if the product is mishandled or cooked improperly. For your protection, follow these safe handling instructions." This statement shall be placed immediately after the heading for safe handling instructions in clause (i) of this subparagraph and before the safe handling statement in clause (iii) of this subparagraph.

(iii) Safe handling statement. The safe handling instructions shall include the following safe handling statements:

(I) "Keep refrigerated or frozen. Thaw in refrigerator or microwave." (Any portion of this statement that is in conflict with the product's specific handling instructions may be omitted, e.g., instructions to cook without thawing.) (A graphic illustration of a refrigerator shall be displayed next to the statement.);

(II) "Keep raw meat and poultry separate from other foods. Wash working surfaces (including cutting boards), utensils, and hands after touching raw meat or poultry." (A graphic illustration of soapy hands under a faucet shall be displayed next to the statement.);

(III) "Cook thoroughly." (A graphic illustration of a skillet shall be displayed next to the statement.); and

(IV) "Keep hot foods hot. Refrigerate leftovers immediately or discard." (A graphic illustration of a thermometer shall be displayed next to the statement.)

§221.15.Inspection of Alternate Source Food Animals.

(a) Requirements. Specific requirements of this section shall be in addition to those required by the rules adopted for inspection of livestock, under the Texas Meat and Poultry Inspection Act, and federal regulations as listed in §221.11 of this title (relating to Federal Regulations on Meat and Poultry Inspection).

(b) Fees. Fees shall be assessed in one-half hour increments for inspection services, provided by a department inspector to a facility holding a grant of inspection, as specified in §221.16 [§221.12(d)] of this title (relating to Fees [Meat and Poultry Inspection]). Failure of a grant holder to promptly pay invoices will result in cessation of overtime inspection services. Inspection time includes[, but is not limited to]:

(1) the inspector's time in the field during a hunt;

(2) the inspector's time spent completing inspection records;

(3) the inspector's time spent waiting for any purpose to facilitate the processor;

(4) the inspector's time for travel between hunt sites; and

(5) the inspector's time for travel from the inspector's official duty location to the field site and return.

(c) Sanitary dressing procedures. The following are general guidelines of sanitary dressing applicable to all species of livestock slaughtered.

(1) The person performing slaughter operations must not permit any contamination of edible portions of the carcass with materials such as feces, urine, hair, ingesta, milk, bile, pathological tissues and exudates, and other filth. All controls of slaughter and dressing procedures must be aimed at accomplishing this purpose.

(2) Slaughter operations must be conducted in a manner that precludes contamination, i.e., adequate separation of carcasses, parts, and viscera during dressing; routine cleaning and disinfection of certain equipment and hand tools; design and arrangement of equipment to prevent the contact of successive carcasses and parts; and appropriately located, functional lavatories and disinfection units.

(3) In the event that contamination does occur, it must be handled promptly and in a manner that ensures adequate protection to the remaining product. Contamination with feces, milk, pus, or pathological tissue or exudate must be promptly removed by trimming. Removal must be complete. Enough tissue must be removed so only clean meat remains. Scraping with the edge or back of a knife, wiping with a cloth or towel, or the use of a water spray are unacceptable procedures for removal of this type of contamination.

(d) Exotic animal.

(1) Sanitation. All slaughter operations [, including field slaughter,] are to be conducted in a way that precludes contamination. The following conditions, as a minimum, shall be met.

(A) The slaughter facility [or mobile slaughter] unit shall be constructed of smooth and impervious material capable of being thoroughly cleaned and sanitized before [prior to] commencing operations and must be so maintained.

(B) Only potable water shall be used in conjunction with exotic animal slaughter procedures. Water from private water wells shall be tested for potability by an approved laboratory within six months prior to use. Water from portable water tanks shall be tested by an approved laboratory every six months to determine that potable water remains potable after being in the portable tanks. Results of such testing shall be made available to the department [TDH] inspector.

(C) Hot water at a temperature adequate to facilitate equipment and unit sanitization during pre-operational and operational sanitation procedures is required on the skinning/evisceration floor. A procedure utilizing chemical sanitization in lieu of hot water may be used.

(D) Mobile as well as fixed slaughter units shall provide adequate measures to control flies, other insects, and dust.

(E) Inedible by-products must be handled in a manner that does not create an insanitary condition or adulteration and ensures inedibles are not diverted to human food. When containers are used to remove inedibles from the premises, such containers shall be marked "INEDIBLE" in letters at least two inches high. An adequate amount of denaturant in accordance with 9 CFR §314.3 will be used on all products placed in the "INEDIBLE" containers.

(2) Ante-mortem procedures.

(A) The producer must certify by completing and signing form MSA-71, Microchip Certification and Drug Advisory For Alternate Food Animal Species, whether the animal(s) have been identified with a microchip device.

(B) For mobile and field slaughter, once an animal has been shot, the animal will be exsanguinated [bled] as soon as possible in the field with a properly sanitized knife. The assigned inspector will examine and inspect each animal before [prior to] its entry into the processing facility to assure that the animals being harvested appear to have been healthy and were killed by the harvester.

(C) For field slaughter, environmental temperature may affect the time that may lapse before it is necessary to return to the mobile slaughter unit or processing facility for skinning and eviscerating. High environmental temperature may shorten the time lapse before [prior to] dressing, as dressing must begin before the carcass becomes distended due to gas formation in the interstitial tissues or in the small intestine. The department inspector has the final decision in determining the actual time allowed between exsanguination [bleeding] and skinning; however, a two and one-half [one half] hour time lapse shall not be exceeded.

(3) Post-mortem procedures.

(A) The vehicle used for transporting the slaughtered exotic animals shall be clean before [prior to] use and shall be cleaned as needed, during the operation.

(B) Dressing procedures are to begin at the slaughter unit or facility as soon as practical after slaughter.

(C) Heads from animals slaughtered by gunshot to the head shall not be used for food purposes. Such heads shall be denatured and placed into inedible containers.

(D) In the event that an animal is shot in an area other than the head, the resulting wound area and [and/or ] bruised areas must be trimmed of all contamination.

(E) The dressing of any animal whether it be the removal of a foot, head, or any part is strictly forbidden in any area other than inside the slaughter unit, regardless of the size of the animal. However, the removal of the antlers only is permitted before [prior to] entering the slaughter facility.

(4) Dressing procedures.

(A) Persons [It is imperative that persons] butchering an animal must keep their hands as clean as possible. Adequate hand washing[; adequate] facilities [for washing hands] must be readily available [accessible].

(B) Skinning operations must be conducted in a sanitary manner.

(C) As the pelt is removed, care must be taken to prevent contamination of the carcass by dirty hands, knife or pelt.

(D) If a pelt puller is used in such a manner that the carcass is raised to a horizontal position, the carcasses of the female animals must be checked closely for urine leakage.

(E) Heads must remain with the carcass until inspection is completed. Nasal and oral cavities should be flushed before heads are placed on inspection tables.

(F) Overall washing of carcasses should be accomplished before any openings are made for inspection or evisceration; however, any feces, ingesta, or milk must be trimmed before washing. The washer should take care to prevent filling the rectum with water during washing operations.

(G) The knife or other instrument used to open the breast must be disinfected after each use.

(H) The bung is not to be dropped until washing is completed. After opening the pelvic area, the neck of the bladder and the dropped bung should be grasped firmly and held until they clear the body cavity.

(I) Evisceration must be accomplished in a manner that precludes contamination of the carcass with contents from the bladder or intestine; viscera is to be placed in an inspection pan.

(J) If intestines are to be saved, contamination should be prevented by stripping and/or tying between the large and small intestine before removing from the table and sending to the next station.

(5) Processing. Processing of carcasses shall be conducted in a manner and location that complies with requirements for processing all livestock carcasses, including the provisions adopted under §221.11 of this title.

(e) Rabbits. See 9 CFR, Part 354, as adopted by §221.11 of this title.

(f) Migratory water fowl, game birds, squab. See 9 CFR, Part 362, as adopted by §221.11 of this title.

(g) Certified products for dogs, cats, and other carnivora. See 9 CFR, Part 355, as adopted by §221.11 of this title.

§221.16.Fees.

Special fees for inspection services.

(1) Inspection time. Inspection time may include:

(A) the inspector's time for performing inspectionservices;

(B) the inspector's time for completing inspection records;

(C) the inspector's time for waiting for any purpose to facilitate the slaughterer/processor to begin their regulated activity; and

(D) the inspector's time for traveling to perform inspection services.

(2) Fees. Fees shall be assessed in one-half hour increments for inspection services. Invoices are due upon receipt and become delinquent 30 calendar days from the date which is printed on the invoice. Inspection services will not be performed for any establishment having a delinquent account.

(3) Overtime and holiday rate. The overtime and holiday rate for inspection services shall be $60 per hour, per program employee.

(4) Rate. Rate for inspections not required by state or federal meat and poultry inspection laws. The rate for special inspections shall be $60 per hour, per program employee.

(5) Overtime and special inspection services. Overtime and special inspection services are subject to the availability of inspectors.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 11, 2020.

TRD-202003310

Barbara L. Klein

General Counsel

Department of State Health Services

Earliest possible date of adoption: September 27, 2020

For further information, please call: (512) 834-4554