1. (a) Purpose. The purpose of this section is to establish the criteria and procedures by which the commissioner of health will assess administrative penalties for violations by persons operating under the provisions of the Texas Renderers' Licensing Act (Act), Health and Safety Code, Chapter 144, these rules or a license or order issued under Chapter 144.
2. (b) Definitions. For purposes of this section, the Texas Department of Health will use the definitions as described in the Act, §144.002.
3. (c) Determining the amount of the penalty. In determining the amount of the penalty, the commissioner of health shall consider the criteria described in subsections (d)-(h) of this section.

4. (d) The seriousness of the violation.

   1. (1) Violations shall be categorized by one of the following severity levels.

      1. (A) Severity Level I covers violations that are most significant and have a direct negative impact on, or represent a threat to, the public health and safety and include, but are not limited to, operating without a license if required by the Act.
      2. (B) Severity Level II covers violations that are very significant and have impact on the public health and safety including, but not limited to, continuing to operate following expiration of a license.
      3. (C) Severity Level III covers violations that are significant and which, if not corrected, could threaten the public and have an adverse impact on the public health and safety, including, but not limited to, constructions of new facilities and/or additions to existing facilities without a construction permit, when required as set out in the Act.
      4. (D) Severity Level IV covers violations that are of more than minor significance, and if left uncorrected, would lead to more serious circumstances, including, but not limited to, causing a nuisance as defined by the Health and Safety Code, §341.011.
      5. (E) Severity Level V covers violations that are of minor safety or fraudulent significance.
   2. (2) The severity of a violation shall be increased if the violation involves deception, fraud, or other indication of willfulness. In determining the severity of a violation, the economic benefit gained by a person through noncompliance shall be taken into account.

   3. (3) The following are examples only of severity levels; they are not exhaustive or controlling.

      1. (A) Severity Level I shall apply to any person operating any licensable rendering related activity without a license.
      2. (B) Severity Level II shall apply to any person operating any rendering related activity in excess of 15 days following expiration of a current license.
      3. (C) Severity Level III shall apply to any person constructing any facility or addition to an existing facility without having the required construction permit.

      4. (D) Severity Level IV shall apply to:

         1. (i) any person creating a nuisance, as defined by the Health and Safety Code, §341.011; and
         2. (ii) any person falsifying any information required on an application for a rendering license.

      5. (E) Severity Level V shall apply to:

         1. (i) any person failing to maintain a minimal level of sanitation;
         2. (ii) any person failing to maintain records of all purchases and sales of renderable raw material as defined in the Act, §144.002;
         3. (iii) any person failing to display the required and correct Texas Renderers' Licensing Act number on vehicles used in his/her rendering business;
         4. (iv) any person failing to maintain a clean, leakproof vehicle; and
         5. (v) any person failing to present any vehicle used in his/her rendering business for survey.

5. (e) History of previous violations. The department may consider previous violations. The base penalty may be reduced or increased by as much as 50% for past performance. Past performance involves the consideration of the following factors:

   1. (1) how similar the previous violation was;
   2. (2) how recent the previous violation was; and
   3. (3) the number of previous violations(s) in regard to correction of the problem.
6. (f) Demonstrated good faith. The department may consider demonstrated good faith. The base penalty may be reduced by as much as 50% if good faith efforts to correct a violation have been made, or are being made. Good faith effort shall be determined on a case-by-case basis and be fully demonstrated.

7. (g) Hazard to the health and safety of the public. The department may consider the hazard to the health and safety of the public. The base penalty shall be increased by as much as 50% when a direct hazard to the health and/or to the safety of the public is involved. It shall be taken into account, but need not be limited to, the following factors:

   1. (1) whether any disease or injuries have occurred from the violation;
   2. (2) whether any existing conditions contributed to a situation that could expose humans to a health hazard; or
   3. (3) whether the consequences would be of an immediate or long range hazard.
8. (h) Other matters. The commissioner may consider other matters as justice may require.

9. (i) Levels of penalties.

   1. (1) The department will impose different levels of penalties for different severity level violations as follows:

      1. (A) Level I--$15,000;
      2. (B) Level II--$10,000;
      3. (C) Level III--$6,250;
      4. (D) Level IV--$3,750; and
      5. (E) Level V--$1,250.
   2. (2) Each day a violation continues may be considered a separate violation.

10. (j) Assessment, payment, and refund procedures.

    1. (1) The commissioner may assess an administrative penalty only after a person charged with a violation is given an opportunity for an administrative hearing. The hearing shall be in accordance with the Health and Safety Code, §144.082, the Government Code, Chapter 2001, and the department's formal hearing procedures in Chapter 1 of this title (relating to Texas Board of Health).
    2. (2) Payment of an administrative penalty shall be in accordance with the provision of the Health and Safety Code, §144.083.
    3. (3) A refund of an administrative penalty shall be in accordance with the provisions of the Health and Safety Code, §144.084.

Source Note:The provisions of this §221.2 adopted to be effective March 15, 1995, 20 TexReg 1417.