1. (a) Permit/license required. A current permit/license is required for every dairy farm, milk plant, receiving station, transfer station, raw for retail milk dairy farm, milk tank truck, and frozen dessert manufacturer located and operating in the state of Texas. Every milk plant and frozen dessert manufacturer that imports milk, milk products or frozen desserts into the State of Texas is required to obtain a current permit/license.

   1. (1) All milk facilities, frozen dessert manufacturers and operations shall be approved by the department prior to the issuance of a permit.
   2. (2) Permit or license fees are non-refundable.
   3. (3) A current permit or license shall only be issued when all past due fees and late fees have been paid for all years of operation in Texas.
2. (b) Application. Applications may be obtained by contacting the Milk and Dairy Division, Texas Department of Health (department), 1100 West 49th Street, Austin, Texas 78756, 512-719-0260. Applications are also available on-line at www.tdh.state.tx.us/bfds. The applicant must submit an accurate, complete application and pass an inspection in order to receive a permit/license to operate.

3. (c) Permit/license fees.

   1. (1) Permitted or licensed facilities and operations in Texas shall pay the following fees. If applications are made after March 1 of any year, the fee will be prorated.

   2. (2) This paragraph applies to all new and renewal applications received by the department prior to January 1, 2005. Permits issued under this subsection are valid up to one year and expire on August 31 (expiration date).

      1. (A) Milk plant - $400 per year. An invoice for the permit fee will be sent to the permitted entity when the entity has been approved by the department to begin production.
      2. (B) Producer dairy farm - $100 per year. An invoice for the permit fee will be sent to the permitted entity when the entity has been approved by the department to begin production.
      3. (C) Receiving and transfer station - $400 per year. An invoice for the permit fee will be sent to the permitted entity when the entity has been approved by the department to begin production.
      4. (D) Milk transport tanker - $100 per year. Each tanker is required to submit payment with the application and a copy of the inspection, which shall not be over 90 days from the date of inspection. Permit fees will be determined by the date of inspection.
      5. (E) Grade A raw for retail - $400 per year. An invoice for the permit fee will be sent to the permitted entity when the entity has been approved by the department to begin production.
      6. (F) Frozen desserts manufacturers - $400 per year. An invoice for the permit fee will be sent to the permitted entity when the entity has been approved by the department to begin production.

   3. (3) This paragraph applies to all new and renewal applications received on or after January 1, 2005. Permits issued under this subsection are valid for up to two years and expire on August 31 (expiration date).

      1. (A) Milk plant - $800 every two years. An invoice for the permit fee will be sent to the permitted entity when the entity has been approved by the department to begin production.
      2. (B) Producer dairy farm - $200 every two years. An invoice for the permit fee will be sent to the permitted entity when the entity has been approved by the department to begin production.
      3. (C) Receiving and transfer station - $800 every two years. An invoice for the permit fee will be sent to the permitted entity when the entity has been approved by the department to begin production.
      4. (D) Milk transport tanker - $200 every two years. Each tanker is required to submit payment with the application and a copy of inspection, which shall not be over 90 days from the date of inspection. Permit fees will be determined by the date of inspection.
      5. (E) Grade A raw for retail - $800 every two years. An invoice for the permit fee will be sent to the permitted entity when the entity has been approved by the department to begin production.
      6. (F) Frozen desserts manufacturers - $800 every two years. An invoice for the permit fee will be sent to the permitted entity when the entity has been approved to begin production.
   4. (4) For all applications and renewal applications, the department is authorized to collect subscription and convenience fees in amounts determined by the Texas Online Authority, to recover costs associated with application and renewal application processing through Texas Online.

4. (d) Renewal of a permit/license.

   1. (1) Milk plants, producer dairy farms, receiving and transfer stations, grade "A" raw for retail, and frozen desserts manufacturers must submit a renewal application and the required fee prior to September 1 of the permitting year. A person who submits a renewal application and required fee after the expiration date shall pay an additional $100 as a delinquency fee.
   2. (2) Milk transport tankers must submit a renewal application and required fee prior to September 1 of the permitting year. All tankers shall have an inspection no more than one year old on file prior to issuance of the renewal permit sticker.

5. (e) Amendment of permit/license.

   1. (1) Fee. A permit/license that is amended, including a change of name, ownership, or a change in location of a permitted place of business will require submission of a new permit, application, and the required fee pursuant to subsection (a) of this section.
   2. (2) Change of ownership. A permit is not transferable.
   3. (3) The department must be notified in writing at least 30 days prior to the effective date of the name, ownership, or location change.
6. (f) All applicants shall comply with §1.301 of this title (relating to Suspension of License for Failure to Pay Child Support).

7. (g) Applicability of other law.

   1. (1) Health and Safety Code (HSC), Chapter 431, applies to the conduct of a person licensed under HSC, Chapter 440, and to a frozen dessert, an imitation frozen dessert, a product sold in semblance of a frozen dessert, or a mix for one of those products subject to HSC, Chapter 440. A frozen dessert, an imitation frozen dessert, a product sold in semblance of a frozen dessert, or a mix for one of those products is a food for purposes of HSC, Chapter 431.
   2. (2) A person who holds a license under HSC, Chapter 440, related to the manufacturing of a product regulated under that Chapter and is engaging in conduct within the scope of that license, is not required to hold a license as a food manufacturer, food wholesaler, or warehouse operator under HSC, Chapter 431, Subchapter J.
   3. (3) Health and Safety Code, Chapter 431, applies to the conduct of a person licensed under HSC, Chapter 435, and to milk or a milk product subject to HSC, Chapter 435. Milk, or a milk product, is a food for purposes of HSC, Chapter 431.
   4. (4) A person who holds a license under HSC, Chapter 435, related to the processing, producing, bottling, receiving, transferring, or transporting of Grade "A" milk or milk products, and who is engaging in conduct within the scope of that permit, is not required to hold a license as a food manufacturer, food wholesaler, or warehouse operator under HSC, Chapter 431, Subchapter J.

8. (h) Inspection fees.

   1. (1) All milk or milk products processed, manufactured, or bottled by milk plants, and offered for sale within the State of Texas shall be assessed a $0.045 per hundredweight inspection fee or shall pay a minimum fee of $5.00 each month, whichever is greater. This fee shall be assessed on a monthly basis. The inspection fee includes the cost of analyzing samples for milk or milk products. Milk plants shall submit monthly production data to the department no later than 15 days after the end of each reporting month as designated by the department, accompanied by the fee required by this section. Each milk plant is required to furnish, upon request from the department, production records for the preceding three years for auditing purposes. This fee shall be considered delinquent if it is not received by the department within 30 days after the end of the reporting period.
   2. (2) All frozen desserts manufactured by frozen dessert manufacturing plants and intended for sale within the State of Texas shall be assessed a $0.015 per hundredweight inspection fee or shall pay a minimum fee of $5.00 each month, whichever is greater. This fee shall be assessed on a monthly basis. The inspection fee includes the cost for analyzing frozen dessert samples. Manufacturers shall submit monthly production data to the department no later than 15 days after the end of each monthly reporting period designated by the department, accompanied by the required fee. Also, each plant will be required to furnish, upon request, production records for the preceding three years for auditing purposes. This fee shall be considered delinquent if it is not received by the department within 30 days after the end of the reporting period.

Source Note:The provisions of this §217.91 adopted to be effective May 6, 2004, 29 TexReg 4172.