TFER Draft Posted for Informal Comments
The Texas Food Establishment Rules (TFER) Draft Rules
have been reposted for Informal Comments on the Health and Human Services
Rule-making Comment on Proposed and Draft Rules web page from September 4 – September 30, 2020. Informal opportunities to comment occur before a
rule is published in the Texas Register. Stakeholders
will have another opportunity to submit formal comments when the proposed rules
are posted at a later date in the Texas Register. The following are
draft rules on which HHS is accepting informal public or stakeholder input.
Texas Food Establishment Rules - Draft Rules
Frequently Asked Questions and Comments
Background:
The Texas Food
Establishment Rules (TFER) Draft Rules were posted for Informal Comments on the
Health and Human Services Rule-making, Comment on Proposed and Draft Rules web page from April 27 - May 11, 2020. The informal comment period provides
opportunities for comments from stakeholders before a rule is published in the
Texas Register. The Texas Department of State Health Services (DSHS) received numerous
informal comments from stakeholders, including from state, local, and county
regulators, health associations, a nonprofit advocacy organization, and
industry partners. The following Question and Answer is intended to provide clarification
to the most common questions and comments received throughout the informal comment
period.
- Does the change of the TFER draft definition (25) Regulatory authority that only identifies DSHS remove local and county health departments authority for licensing and inspection within their jurisdictions?
- Does the TFER draft remove the current 47 item inspection report or prohibit a health department from using it as their inspection report within their jurisdictions?
- If there is not a specific inspection report identified in the TFER draft, what will DSHS use in place of the 47 item inspection report for retail food inspections?
- Why is the program updating rules as the current TFER was updated in 2015?
- Why is DSHS referencing the 2017 FDA Food Code versus continuing to transcribe the code into rule?
- DSHS has been the primary resource for state rules and interpretation for regulatory agencies in Texas. Will this TFER draft defer resources to a federal level?
Will DSHS provide printed copies of a uniform reporting symptoms and diagnosis sign or poster for food establishment use?
- Does update of the definition 228.2(14)(C)(iii) identifying what is not a food establishment remove regulatory authorities’ ability to inspect the premises of a food establishment in which a food processing plant is also located?
Will DSHS provide any assistance for the transition of the TFER Draft?
- Why were local and county health department not included in the creation of the TFER Draft?
- The reference of the FDA Food Code will cause a lack of uniformity and remove the framework currently structured in TFER.
- Some local jurisdictions already require Food Handler Certifications at Temporary Events. How, would this effect a county department?
- The draft TFER excludes FDA section 8-201.11, relating to when plans are required for food establishment construction, but the following FDA section 8-201.12 that outlines the contents of submitted plans is not excluded. What was the purpose?
- The subchapter on Private Water Systems is removed in the proposed TFER and replaced with a reference to 30 TAC Chapter 290, Subchapter F. This would result in an inspector marking the entire chapter out of compliance through citing a specific statute.
- The FDA definition of “Additive” for both “Color Additive” and “Food Additive” reference the Code of Federal Regulations (CFR) instead of the applicable Texas statutes in Health and Safety Code 431.
- There is poor alignment between the FDA Food Code and the draft TFER regarding eggs. The draft TFER cites “Chicken Eggs” in a single section, §228.62(b) for receiving specifications, and all other references in both codes refer to “raw shell eggs” throughout.
- Why were the definitions of “Bare Hand Contact” and “Non-Time/Temperature Control for Safety Food” removed from TFER Draft?
- The TFER Draft allows an establishment to operate without electricity as stated in FDA Food Code 8-404.11.
Certified Food Manager updates in TFER draft. Does this mean on-site at all times?
- Adoption by reference of the 2017 FDA Food Code, or any other substantial change to the 2015 Texas Food Establishment Rules, will place a severe financial burden on local health jurisdictions that already have paid for the installation or updating of inspection software in line with the 2015 TFER.
Does the change of the TFER draft definition
(25) Regulatory authority that only identifies DSHS remove local and county
health departments authority for licensing and inspection within their
jurisdictions?
No, the definition
change does not remove local or county authority to permit or conduct
inspections within respective jurisdictions.
The definition change by the department was to align DSHS rules
with other Consumer Protection Programs. Informal comments to keep the current
definition in 2015 TFER are under consideration by the department.
Does the TFER draft remove the current
47 item inspection report or prohibit a health department from using it as
their inspection report within their jurisdictions?
No, removing the inspection report from rule will allow
jurisdictions to choose and implement inspection reports of their choice,
including the current 47- item inspection report.
The removal of the inspection report by DSHS was to provide
flexibility for health departments to modify their inspection reports as their
jurisdictions deem necessary without interference with future TFER updates. The
department is considering the recommendation to update the current 47- item inspection
form matrix to reference the needed FDA citations and eliminate confusion in
programs continuing to use the current inspection report.
If there is not a specific inspection
report identified in the TFER draft, what will DSHS use in place of the 47 item
inspection report for retail food inspections?
DSHS is currently taking info from field staff and regional
leadership and examining options for inspection reports which will best suit the
specifics for DSHS inspections and enforcement for food establishments located
within the department’s jurisdiction.
Why
is the program updating rules as the current TFER was updated in 2015?
DSHS, must review all rules every four years for consistency and
required updates per policy or statute. The current 2015 TFER was at the
necessary time frame for review and required updates due to S.B. 476 concerning
dogs in outdoor dining areas of retail food establishments.
The TFER draft references the 2017 FDA Food Code, the most current
Food Code, and leaves only the Texas Specific regulations in TFER.
Why is DSHS referencing the 2017 FDA
Food Code versus continuing to transcribe the code into rule?
DSHS sees adoption of the Food Code by reference as an efficient
and streamlined method of keeping pace with changes to the Food Code. This
expedites future-rule making for the department and avoids long durations
without TFER updates.
DSHS has been the primary resource for
state rules and interpretation for regulatory agencies in Texas. Will this TFER draft defer resources to a
federal level?
No, DSHS will continue to be a resource for health programs and
training across Texas. The department
will address questions and provide interpretation for Texas-specific rules and
the FDA Food Code. DSHS currently works closely with the assigned FDA Retail
Food Specialist regarding interpretations, since much of the current rule is
transcribed from the 2013 FDA Food Code.
Will DSHS provide printed copies of a uniform
reporting symptoms and diagnosis sign or poster for food establishment use?
DSHS currently provides a digital copy of a food employee
reporting sign posted on our guidance documents page that can be used to meet
the new requirement.
Comments to change the location of the reporting signage at
every handwashing station to a prominent location in the food establishment are
under consideration by the department.
Does update of the definition 228.2(14)(C)(iii)
identifying what is not a food establishment remove regulatory authorities’ ability
to inspect the premises of a food establishment in which a food processing
plant is also located?
No, the edited definition does not prohibit a regulatory
authority from permitting or inspecting a processing plant located on the
premises of a food establishment. However, TFER is specific to food
establishments and does not apply in food processing plants.
Will DSHS provide any assistance for
the transition of the TFER Draft?
DSHS will continue to respond to training and standardization requests
submitted to the department. The
department will also continue to provide guidance documents and regulatory
clarifications on TFER.
Reference to the FDA Food Code will also allow for more related
training from FDA Compliance Wire and Pathlore training sites.
Why were local and county health
department not included in the creation of the TFER Draft?
DSHS is the
primary department for food safety rule development specified in Health and Safety Code for Texas.
Texas stakeholders can provide informal comments for draft rules and formal
comments for proposed rules during rule development.
The reference of the FDA Food Code will cause a lack
of uniformity and remove the framework currently structured in TFER.
DSHS believes the
framework for identifying and interpreting food safety violations is still the
same as the current 2015 TFER. The additional support documents--FDA Annex 3
and FDA Supplement--further educate and clarify the rules in a way not
currently done in TFER.
Some local jurisdictions already require
Food Handler Certifications at Temporary Events. How, would this effect a county department?
Current
section 228.222(a)(2) and draft Rules allow regulatory authority to have at
least one person on-site who has a minimum of an accredited food handler
certification if they deem it necessary. DSHS does not require this for
temporary events operated in DSHS jurisdiction.
The draft TFER excludes
FDA section 8-201.11, relating to when plans are required for food
establishment construction, but the following FDA section 8-201.12 that
outlines the contents of submitted plans is not excluded. What was the purpose?
8-201.11 was
excluded to allow more flexible language included in draft TFER §228.241
Facility and Operating Plans. The
department is considering revisions to the section to provide clarification.
The subchapter on Private
Water Systems is removed in the proposed TFER and replaced with a reference to
30 TAC Chapter 290, Subchapter F. This would result in an inspector marking the
entire chapter out of compliance through citing a specific statute.
DSHS does
not have regulatory authority over private water systems. The draft TFER makes
reference to the 30 TAC Chapter 290, Subchapter F, which are TCEQ rules that set
minimum standards for transient noncommunity water systems.
The FDA definition of
“Additive” for both “Color Additive” and “Food Additive” reference the Code of
Federal Regulations (CFR) instead of the applicable Texas statutes in Health and Safety Code 431.
Program will take
comments into consideration for changes.
There is poor alignment
between the FDA Food Code and the draft TFER regarding eggs. The draft TFER
cites “Chicken Eggs” in a single section, §228.62(b) for receiving
specifications, and all other references in both codes refer to “raw shell
eggs” throughout.
TDA is the
regulatory agency when setting grading requirements for eggs in Texas. The department may only address grading available
in Texas.
Please refer to
Regulatory Clarification No. 20, Selling Non-Chicken Eggs to a Retail Food
Establishment, for more information on other eggs sold to retail food
establishments.
Why were the definitions
of “Bare Hand Contact” and “Non-Time/Temperature Control for Safety Food” removed
from TFER Draft?
The term bare
hand contact is not currently defined in FDA Food Code due to its self-description.
Non-TCS is not defined in FDA Food Code but is a described in the current
definition of Time/Temperature Control for Safety Food as examples of food not
included in the definition.
The TFER Draft allows an
establishment to operate without electricity as stated in FDA Food Code
8-404.11.
The new
information added to the imminent health hazards section in the 2017 FDA Food Code
allows a food establishment to
continue operations in the event of an extended
interruption of electrical or water service. However, this can only be approved by the
regulatory authority if:
- a written emergency operating plan has been approved;
- immediate corrective action is taken to eliminate, prevent, or
control any food safety risk and imminent health hazard associated with the
electrical or water service interruption; and
- the regulatory authority is informed upon implementation of the
written emergency operating plan.
The
amendment is necessary due to the frequent occurrence of weather events such as
hurricanes and tornadoes in Texas.
Certified Food Manager
updates in TFER draft. Does this mean ON-SITE at all times?
Yes, the current TFER
and Draft TFER require that the Person-in-Charge be present at the food
establishment during all hours of operation. 2017 FDA Food Code amended
paragraph 2-102.12(A) to require that the Person in Charge be a Certified Food
Protection Manager.
Adoption by reference of the 2017 FDA Food Code, or any other
substantial change to the 2015 Texas Food Establishment Rules, will place a
severe financial burden on local health jurisdictions that already have paid
for the installation or updating of inspection software in line with the 2015
TFER.
The
department is committed to providing rules that reflect current knowledge, food
standards, and that protect public health. The department is reviewing this
concern and will determine if amendments are necessary.
Future opportunities to
comment formally to the proposed rules is currently targeted around late
December 2020. PSRFSU is
still in the process of scheduling webinars at a
later time for further stakeholder discussions. (A webinar was not able to be
completed during the informal comment period due to DSHS COVID-19 pandemic
response.)
SB 476 - Summary
UPDATE: SENATE BILL 476 (86th Legislature)
Effective
September 1, 2019
Senate Bill 476 added new language (HSC 437.025) to Health
and Safety Code Chapter 437 to allow (but not require) food
establishment owners to permit customers to bring pet dogs into outdoor dining
areas. “A municipality may not adopt an
ordinance, rule, or similar measure that imposes a requirement on a food
service establishment for a dog in an outdoor dining area that is more
stringent” than the requirements set forth by the bill. Below are the requirements listed in new HSC
437.025 for an outdoor dining area in which dogs will be allowed:
1.
The establishment must post a sign in a conspicuous location in the area
stating that dogs are permitted.
2.
The customer and dog must access the outdoor dining area directly from
the exterior of the establishment.
3.
The dog must not enter the interior of the establishment.
4.
The customer must keep the dog on a leash and under control.
5.
The customer must not allow the dog on a seat, table, countertop, or
similar surface.
6.
There must be no food preparation or open food other than that served to
customers in the outdoor dining area.
The Texas Food Establishment Rules (TFER) will reflect this
new change in upcoming TFER revision.
DRAFT RULE: To be announced.
SB 932 - Summary
UPDATE: SENTATE BILL 932 (86th
Legislature)
Effective
September 1, 2019
SB 932 created new Section 437.0065 in Health and Safety
Code Chapter 437.
The bill limits the permitting fee charged to (a) a
farmer for the “sale of food directly to consumers at a farmers’ market, a farm
stand, or the farmer’s farm” and (b) “an individual who prepares food for sale
at a farmers’ market” to an annual fee of $100.
The permit must be valid for at least one year and “cover sales at all
locations within the jurisdiction of the permitting authority.”
HB 234 - Summary
UPDATE: HOUSE BILL 234 (86th Legislature)
Effective: September 1, 2019
HB 234 amends Chapter 250 of the Local Government Code
and Chapter 202 of the Property Code to state that municipalities, counties,
other local health jurisdictions, may not prohibit or regulate, including by
license, permit, or fee, the “occasional sale of lemonade or other nonalcoholic
beverages from a stand on private property or in a public park by an individual
younger than 18 years of age.”
HB 234 also amends Chapter 202 of the Property Code to
state that a property owners’ association may not adopt or enforce a
restrictive covenant that prohibits or regulates, including by permit or fee,
the “occasional sale of lemonade or other nonalcoholic beverages from a stand
on property located in the subdivision by an individual younger than 18 years
of age who has the permission of the property owner. . . .” The bill further states that the property
owners’ association (1) owes no duty of care to persons participating in the
beverage sale and (2) is not liable for injuries to persons participating in
the beverage sale unless the injuries are the result of “willful or wanton acts
or gross negligence of the association.”
SB 572
- Summary
UPDATE: SENATE BILL 572 (86th Legislature)
Effective: September 1, 2019
SB 572 amends HSC 437 with significant changes to the
allowances and requirements regarding Cottage Food Operators:
- The bill expands the list of
foods that can be produced as cottage foods to include fermented vegetable
products; acidified canned goods (plant-based only); pickled fruit and
vegetables; frozen raw and uncut fruit and vegetables; and any other food that
is not time/temperature control for safety (TCS).
-
The bill sets forth production and labeling
requirements for cottage food operators who produce fermented vegetable
products, acidified canned goods, and pickled fruit and vegetables. As a resource for the production
requirements, the bill requires DSHS to post certain information on the
department website.
-
The bill removes previous language from HSC
437.001(2-b)(C) that restricted location of sale of cottage foods.
-
The bill expands method of sale of cottage
foods to include mail order and the internet while still requiring that the
product be delivered directly to the consumer by the operator. Shipping and third-party delivery services
are not allowed.
-
The bill sets forth specific labeling
requirements, in addition to those already in effect for all cottage food
operators, for fermented vegetable products, acidified canned goods, pickled
fruit and vegetables, and frozen, raw and uncut fruit and vegetables.
HB 1694 - Summary
UPDATE: House Bill 1694 (86th Legislature)
Effective: September 1, 2019
HB 1694 amends HSC Chapter 437 to prohibit permitting for
food samples at a farm or farmer’s market—including cottage foods. It prohibits a local HD from regulating
samples at a farmer’s market other than sanitary conditions already prescribed
in HSC 437.020(c). It allows inspection
to enforce the requirements of HSC 437.020 regarding samples at a farmer’s
market. It also allows a requirement for
a permit for food cooked and sold or distributed at a farmer’s market. It also adds “cottage food” to the definition
of “food” at HSC 437.020(2)(F).
** FURTHER BILL INFORMATION WILL BE POSTED AS APPROVED **
As of October 2, 2015, there are no draft or proposed rules.
If you have any questions or comments, please contact the Public Sanitation and Retail Food Establishment Group at 1-512-834-6753.