Ala. Admin. Code r. 420-3-16-.04

Current through Register Vol. 43, No. 1, October 31, 2024

Section 420-3-16-.04 - Permits Prescribed

(1) It shall be unlawful for any person who does not possess a permit from the Health Officer to bring into, send into, or receive into the State of Alabama or its jurisdiction, for sale or to sell or offer for sale therein, or to have in storage any milk, milk products, or frozen desserts defined in these rules; provided, grocery stores, restaurants, soda fountains, and similar establishments where milk, milk products, or frozen desserts are served or sold at retail, but not processed, may be exempt from the requirements of these rules.

(2) Only a person who complies with the requirements of these rules shall be entitled to receive and retain such a permit. Permits shall not be transferrable with respect to person and/or locations and shall remain the property of the Alabama Department of Public Health. The permit may be suspended or revoked for violation of these rules.

(3) The term "permit," whenever it appears in this rule shall also mean a milk company operating under the ICP possessing a valid MOA with a TPC.

(4) Any person desiring to operate a milk processing plant, frozen dessert plant, or single-service manufacturing facility shall make written application for a permit on forms prescribed by the State Health Officer, as shown in Appendix M. Milk, milk product, and single-service manufacturer processor permits shall automatically expire on September 30 of each year and are renewable each year upon written application submitted within fifteen (15) days prior to expiration. Dairy farm permits are good until revoked.

(5) Prior to approval of an application for a permit, the State Health Officer shall inspect the proposed dairy, frozen dessert plant, milk processing plant, or single-service manufacturing facility to determine compliance with the requirements of these rules.

(6) The State Health Officer shall issue a permit to the applicant, if his/her inspection reveals the dairy plant, frozen dessert plant, milk processing plant, or single-service manufacturing facility complies with the requirements of these rules.

(7) Permits are issued only to applicants who meet the following inspection requirements:

(a) Completion of an application for permit.

(b) Approval of submitted plans for all physical facilities, equipment, and processes utilized by the applicant.

(c) Submittal of a milk processor fee for those facilities that require a fee.

(d) Satisfactory approval inspection by the Health Officer.

(8) Provided, that the manufacture of condensed and dry milk products, which do not meet the requirements of this rule for Grade "A" condensed or dry milk products and which are intended for other uses, shall not be construed to violate the terms of this rule, if such products are processed, packaged, and stored separately and are plainly identified.

(9) It shall be unlawful for any person to manufacture in a milk plant under a permit for Grade "A" condensed or dry milk products in the State of Alabama or its jurisdiction any condensed and dry milk products which do not meet the requirements of this rule for Grade "A" condensed or dry milk products without a permit from the Health Officer who shall require that such condensed and dry milk products be processed, packaged, and stored separately from Grade "A" condensed or dry milk products and that each container of such products be plainly marked in such a manner as to prevent confusion of the product with Grade "A" condensed or dry milk products.

(10) Permit Suspension - The Health Officer shall suspend such permit whenever he/she has reason to believe that a public health hazard exists; or whenever the permit holder has violated any of the requirements of these rules; or whenever the permit holder has interfered with the Health Officer in the performance of his/her duties; provided, the Heath Officer shall, in all cases, except where the milk, milk product, frozen dessert, or single-service container product involved creates, or appears to create, an imminent hazard to the public health or, in any case, of a willful refusal to permit authorized inspection, serve upon the holder a written notice of intent to suspend permit, which notice shall specify with particularity the violation(s) in question and afford the holder such reasonable opportunity to correct such violation(s) as may be agreed to by the parties or in the absence of agreement fixed by the Health Officer, before making any order of suspension effective. A suspension of permit shall remain in effect until the violation has been corrected to the satisfaction of the Health Officer.

(a) Upon notification, acceptable to the Health Officer, by any person whose permit has been suspended, or upon application within forty-eight (48) hours of any person who has been served with a notice of intention to suspend, and in the latter case before suspension, the Health Officer shall within seventy-two (72) hours proceed to a hearing to ascertain the facts of such violation(s) or interference and upon evidence presented at such hearing shall affirm, modify, or rescind the suspension or intention to suspend.

(b) Upon repeated violation(s), the Health Officer may revoke such permit following reasonable notice to the permit holder and an opportunity for a hearing. This section is not intended to preclude the institution of court action as provided in Rule 420-3-16-.05 -.06.

(11) Administrative Procedures - Issuance of Permits -Every milk producer, milk distributor, bulk milk hauler or sampler, milk tank truck, a milk transportation company, frozen dessert plant, milk plant, receiving station, transfer station, and milk tank truck cleaning facility operator shall hold a valid permit. The permit for a milk tank truck may be issued to the milk transportation company. Milk producers who transport milk or milk products only from their own dairy farms; employees of a milk distributor or milk plant operator who possesses a valid permit; and employees of a milk transportation company that possesses a valid permit and transports milk or milk products from a milk plant, receiving station, or transfer station shall not be required to possess a bulk milk hauler's or sampler's permit.

(a) Grocery stores, restaurants, soda fountains, and similar establishments where milk and milk products are served or sold at retail, but not processed, may be exempt from the requirements of this section.

(b) While compliance with the requirements for Grade "A" condensed and dry milk products is necessary to receive and retain a permit for these products, it is not the intent of this rule to limit the production of a milk plant that condenses and/or dries milk or milk products to Grade "A" products.

(c) The manufacture of ungraded products for other uses in milk plants operating under a permit for the manufacture of Grade "A" condensed and dry milk products is allowed under conditions specified in Rule 420-3-16-.08 and whereby such products are processed, packaged, and stored separately. In such cases, a second permit is required, which is issued with the understanding that ungraded products shall be handled in such a manner so as to avoid confusion with the Grade "A" production.

(d) Either or both permits may be temporarily suspended for the violation of any applicable provision of this rule, or revoked for a serious or repeated violation. Suspension of permits for violation of sanitation items of Rule 420-3-16-.08 is provided for in Rule 420-3-16-.06. In addition, the Health Officer may, at any time, institute court action under the provisions of Rule 420-3-16-.07.

(e) There is no specific frequency for the issuance of permits. This should be in accordance with the policies of the Health Officer and in agreement with those employed for the issuance of permits under this rule.

(f) Suspension of Permit - When any requirement(s) of this rule is violated, the permit holder is subject to the suspension of their permit.

(g) The Health Officer may forego suspension of the permit, provided the milk and/or milk product in violation is not sold or offered for sale as a Grade "A" milk and/or milk product. A Health Officer may allow the imposition of a monetary penalty in lieu of a permit suspension, provided the milk and/or milk product in violation is not sold or offered for sale as a Grade "A" milk and/or milk product. Except, that a milk producer may be assessed a monetary penalty in lieu of permit suspension for violative counts provided:

1. If the monetary penalty is due to a violation of the bacterial or cooling temperature standards, the Health Officer shall conduct an inspection of the facility and operating methods and make the determination that the conditions responsible for the violation have been corrected. Samples shall then be taken at the rate of not more than two (2) per week on separate days within a three (3) week period in order to determine compliance with the appropriate standard as determined in accordance with Rule 420-3-16-.07.

2. If the monetary penalty is due to a violation of the somatic cell count standard, the Health Officer shall verify that the milk supply is within acceptable limits as prescribed in Rule 420-3-16-.08. Samples shall then be taken at the rate of not more than two (2) per week on separate days within a three (3) week period in order to determine compliance with the appropriate standard as determined in accordance with Rule 420-3-16-.07.

Note: The option to issue a monetary penalty in lieu of a permit suspension as cited above shall not be applicable to a TPC authorized under the ICP.

(12) This rule adopted pursuant to Code of Ala. 1975, Section § 22-20-5, as amended, is intended to accord an individual administrative hearing in any and all matters concerning those rules heretofore adopted and promulgated by the State Board of Health, and all such rules adopted and promulgated in the future by the State Committee of Public Health, where procedural due process is indicated and not otherwise provided.

Note: TPCs authorized under the ICP shall follow the hearing procedures and process addressed in this rule.

(13) Reinstatement of Permits - Any permit holder whose permit has been suspended may make written application for the reinstatement of their permit.

(a) When the permit suspension has been due to a violation of any of the bacterial, coliform, or cooling temperature standards, the Health Officer, within one (1) week after the receipt of notification for reinstatement of permit, shall issue a temporary permit after determining by an inspection of the facilities and operating methods that the conditions responsible for the violation have been corrected. When a permit suspension has been due to a violation of the somatic cell count standard, the Health Officer may issue a temporary permit whenever a resampling of the herd's milk supply indicates the milk supply to be within acceptable limits as prescribed in Rule 420-3-16-.08. Samples shall then be taken at the rate of not more than two (2) per week on separate days within a three (3) week period. This accelerated sampling applies to bacteria, coliform, somatic cell count, and temperature. The Health Officer shall reinstate the permit upon compliance with the appropriate standard as determined in accordance with Rule 420-3-16-.07.

(b) Whenever the permit suspension has been due to a violation of a requirement other than bacteriological, coliform, somatic cell count, drug residue test, or cooling-temperature standards, the notification shall indicate that the violation(s) has been corrected. Within one (1) week of the receipt of such notification, the Health Officer shall make an inspection/audit of the applicant's facility, and as many additional inspections or audits thereafter as are deemed necessary, to determine that the applicant's facility is complying with the requirements. When the findings justify, the permit shall be reinstated.

(c) When a permit suspension has been due to a positive drug residue, the permit shall be reinstated in accordance with the provisions of Appendix N.

Ala. Admin. Code r. 420-3-16-.04

Adopted by Alabama Administrative Monthly Volume XXXVII, Issue No. 01, October 31, 2018, eff. 12/2/2018.

Author: G. M. Gallaspy, Jr.

Statutory Authority:Code of Ala. 1975, §§ 22-2-2, 22-20-7.