Section 217.92 - Enforcement(a) Tagging unsanitary equipment, utensils, and rooms. The department representative may attach a tag or other appropriate marking device to any equipment, utensil, or room in a dairy farm, milk plant, receiving station, transfer station, raw for retail dairy farm, milk tank truck, or frozen dessert manufacturer that the representative determines is unsanitary or is a health hazard. No equipment, utensil, or room so tagged shall be used until a department representative removes the tag following adequate cleaning and sanitization. Such tag shall not be removed by anyone other than a department representative.(b) Detained products. A department representative shall attach a tag or other appropriate marking device to any milk, milk product, dairy product, frozen dessert, Grade A retail raw milk, or Grade A retail raw milk product that is or is suspected of being adulterated or misbranded. The tag indicates notice that the product is detained. No person shall remove the tagged products from the premises or dispose of the product by sale or otherwise without prior written approval from the department or a court order.(c) Suspension of Health and Safety Code (HSC), Chapter 435, permit. The department may suspend a permit issued under HSC, Chapter 435, whenever there is reason to believe that a public health hazard exists, or whenever a permit holder has violated any of the sections of this chapter, or whenever the permit holder has interfered with the department or its agents in the performance of its duties. A written notice of the violation will be provided to the permit holder, and the permit holder shall have 72 hours to correct the violation(s). The written notice may be served by a copy of the inspection report handed to the permit holder or operator or may be posted at the place of business. After receipt of the notice, but prior to the expiration of the 72 hours, the permit holder may request an extension of the time to correct the violation(s). The permit holder who has been served with a written notice of violation and suspension may request an informal regulatory conference on the facts of the violation. The informal regulatory conference shall be held within 72 hours of the request, notwithstanding any time allotted for correction. A permit holder who disagrees with the outcome of an informal regulatory conference may make a written request for a hearing. The hearing will be conducted pursuant to §§ 1.21, 1.23, 1.25, and 1.27 of this title (relating to Formal Hearing Procedures) and the Administrative Procedure Act, Government Code, Chapter 2001.(d) Immediate suspension of HSC, Chapter 435, permit. Immediate suspension of a permit under this subsection shall occur when the milk or milk product involved creates, or appears to create, an imminent hazard to the public health; or in any case of a willful refusal to permit an inspection; or when the bacteria counts, coliform counts, somatic cell counts or cooling temperatures are in violation of the requirements of § 217.27(e) of this title (relating to Examination of Milk and Milk Products), § 217.28 of this title (relating to Standards for Grade A Raw for Retail Milk and Milk Products), or § 217.45 of this title (relating to Examination and Standards for Frozen Desserts); or when adulteration by inhibitors or water is identified; or if any pathogenic bacteria is isolated. A permit that is immediately suspended shall remain suspended until the department determines that the violation has been corrected. The permit holder may make a written request for a hearing to contest the suspension. The hearing will be conducted pursuant to §§ 1.21, 1.23, 1.25, and 1.27 of this title and the Administrative Procedure Act, Government Code, Chapter 2001.(e) Revocation of HSC, Chapter 435, permits. The department may revoke a permit issued under HSC, Chapter 435, if the permit holder is delinquent in the remittance of the permit fee or the inspection fee. The department may revoke a permit for noncompliance with the requirements of this chapter. The department will provide written notice of the reasons for the proposal to revoke, and the opportunity to request a hearing. The permit holder may make a written request for a hearing within 20 days of receipt of the written notice proposing revocation. The permit holder may also request an informal hearing conference without waiving the right to a hearing. The hearing will be conducted pursuant to §§ 1.21, 1.23, 1.25, and 1.27 of this title and the Administrative Procedure Act, Government Code, Chapter 2001.(f) Denial, suspension, and revocation of license issued under frozen desserts, HSC, Chapter 440. The department may deny an application for a license, may suspend a license, or may revoke a license issued under HSC, Chapter 440, for violations of HSC, Chapter 440, or these sections. The license holder may request a hearing in writing to contest the denial, suspension, or revocation. The license holder may also request an informal hearing conference without waiving the right to a hearing. The hearing will be conducted pursuant to §§ 1.21, 1.23, 1.25, and 1.27 of this title and the Administrative Procedure Act, Government Code, Chapter 2001.(g) Election of penalties. The penalty authorized by HSC, Chapter 435, is subject to either the sanctions prescribed in the "Grade A Pasteurized Milk Ordinance" which is adopted by reference in § 217.2 of this title (relating to Grade A Pasteurized Milk Ordinance) for products covered by the "Grade A Pasteurized Milk Ordinance," or any civil or administrative penalty sanctions otherwise imposed by HSC, Chapter 431, or sanctions found in other law for products not covered by the Grade A Pasteurized Milk Ordinance.(h) Administrative penalties. For products not covered by the "Grade A Pasteurized Milk Ordinance," administrative penalties, as provided in the Health and Safety Code, §§ 431.054 - 431.058, and in § 229.261 of this title (relating to Assessment of Administrative Penalties), may be assessed against a person who violates HSC, Chapter 435 or 440, this chapter or a rule or order adopted under this chapter, who holds a permit or license under HSC, Chapter 435 or 440, or who is regulated under this chapter.25 Tex. Admin. Code § 217.92
The provisions of this §217.92 adopted to be effective July 4, 2010, 35 TexReg 3038