1. (a) No person shall engage in any activity requiring a license under §§241.1-241.7 of this title (relating to Texas Crab Meat) without having applied for and obtained an annual numbered license pertaining to the particular activity from the department. No license will be issued without a HACCP plan in accordance with §241.4 of this title (relating to General HACCP Requirements) which is acceptable to the SSD.

2. (b) Dealer Licensing.

   1. (1) Picker-Packer. Any person who cooks crabs, and picks and packs the crab meat shall be licensed as a picker-packer.
   2. (2) Pasteurizer. Any person who cooks crabs, picks, packs, and pasteurizes the crab meat, or pasteurizes crab meat picked and packed in another location shall be licensed as a pasteurizer.
3. (c) Prior to beginning construction of a new crab meat plant, or major remodeling of an existing crab meat plant (which includes, but is not limited to: any process new to that particular plant; any change of product flow; or any enlarging of the plant structure) complete, legible plans showing the floor plan of the building, with dimensions drawn to scale, location of equipment, doors, floor drains, etc., and written, complete operational procedures for all phases of the activity, including flow of the product, shall be submitted to the department, SSD, for review and approval. Additional plans of the entire premises may be required showing all structures, as well as, all water wells and septic systems with related distances and a statement of specifications as to type, sizes, design, date installed, etc. Plans shall be submitted no less than 30 days prior to initiating a new process or beginning construction. No operations shall be conducted while any inside plant construction or any other construction which has the potential to contaminate the product is occurring.
4. (d) A legibly written or typed application on forms provided by the department must be filed with the SSD each year.
5. (e) If the applicant proposes to use a date other than an open date, the application for a license must be accompanied by a written statement of the procedure the applicant will use to determine the date to be included on the label for crab meat packed or pasteurized and shipped from the location listed in the application.
6. (f) A license and unique number shall be issued by the commissioner only after an inspection of the plant by an authorized agent has revealed that the plant and practices are in compliance with these sections. A license and unique number shall be issued to a dealer for each location at which crab meat operations are to be conducted and a license is required.
7. (g) The inspection of a previously licensed plant which has exhibited operational problems or violations of operational requirements of these sections or had a license revoked shall not be conducted until written, complete operational procedures for all phases of the activity, including flow of the product, are submitted to the SSD for review and approval. An application may be rejected and a license denied based on a history of failure to comply with the requirements of these sections.
8. (h) Crab meat operations by the dealer shall not begin until the commissioner has issued the Crab Meat Processing License for that location. Each license shall expire automatically at 11:59 p.m. the last day of February following the date of issue. Licenses shall not be transferable.

9. (i) After a license is issued, unannounced inspections may be conducted at any time the SSD has reason to believe the business may be in operation or that crab meat may be stored on the premises and at such frequency as may be necessary to assure that adequate operational and sanitary conditions are maintained. All crab meat at a licensed location shall be the responsibility of the dealer at that location for the purposes of these sections. A copy of the completed inspection form listing written descriptions of the violations observed along with any necessary explanation shall be provided by an authorized agent of the department to the most responsible individual present at the firm at the conclusion of the inspection. Any violations of the same requirement found on a consecutive inspection may result in license suspension in accordance with subsection (j) of this section.

   1. (1) When a routine inspection detects a critical deficiency the violation shall be corrected during that inspection or the plant must cease production affected by the violation. If production affected by the violation does not voluntarily cease, all crab meat handled or processed while the violation exists or existed shall be detained.
   2. (2) When a routine inspection detects four or more key deficiencies, the dealer shall establish a correction schedule acceptable to the SSD. The follow-up inspection shall determine if the violations have been corrected or are being corrected in accordance with the scheduled correction dates noted on the previous inspection report.
   3. (3) When a routine inspection detects other deficiencies or three or less key deficiencies, the deficiencies shall be corrected prior to the next routine inspection.

10. (j) The SSD may initiate procedures to suspend or to revoke a license or assess administrative penalties as follows:

    1. (1) The procedures shall be in accordance with the Texas Health and Safety Code, §436.114; the provisions of the Government Code, Chapter 2001, Administrative Procedure Act; and the department formal hearing procedures in Chapter 1 of this title (relating to the Board of Health).

    2. (2) The grounds for suspension or revocation or assessment of administrative penalties may be any one of the following:

       1. (A) inspection results indicate unsatisfactory conditions in the plant or the existence of a public health hazard;
       2. (B) the license holder or representative refuses to allow an inspection or otherwise interferes with the authorized department's agent in the performance of his or her duties; or
       3. (C) the license holder does not have a HACCP plan, has a HACCP plan unacceptable to the SSD, or fails to comply with a HACCP plan which is acceptable to the SSD.
11. (k) A dealer whose license has been suspended may not process any crab meat for a period determined by the commissioner.
12. (l) A dealer whose license has been suspended may not process any crab meat until the SSD is satisfied that all necessary corrections have been made. A suspension will not be rescinded until an inspection establishes that the firm has corrected all violations which resulted in the suspension and is in full compliance with all applicable criteria of these sections.
13. (m) A license may be revoked for any of the reasons outlined in subsection (j) of this section or for either of the following: if the violations initiating a suspension fail to be corrected within the time frame established, or if a history of repeated suspensions exists. A dealer whose license has been revoked shall not be issued a new license for 180 days or before the next licensing period, whichever is longer, after the date of signing of the final order of revocation. When the department contemplates suspension or revocation, the license holder shall be afforded the opportunity for a hearing. Notice of the contemplated action shall be given to the license holder by personal service or certified mail, return receipt requested. If no request for a hearing is received by the director of the SSD, within 14 days of personal service or the date of receipt of the notice by the dealer, the allegations contained in the notice are admitted as true, and the department may proceed to take the action set out in the notice.
14. (n) When the department determines that administrative penalties are appropriate, proposals for assessment of and hearings on administrative penalties shall be made in accordance with the Texas Health and Safety Code, §436.034; the provisions of the Government Code, Chapter 2001, Administrative Procedure Act; and the department formal hearing procedures in Chapter 1 of this title (relating to the Board of Health). When the department contemplates administrative penalties, the license holder shall be afforded the opportunity for a hearing. Notice of the contemplated action shall be given to the license holder by personal service or certified mail, return receipt requested. If no request for a hearing is received by the director of the SSD, within 14 days of personal service or the date of receipt of the notice by the dealer, the allegations contained in the notice are admitted as true, and the department may proceed to take the action set out in the notice.

15. (o) The seriousness of violations shall be categorized by one of the following severity levels. The examples following the severity levels are neither exhaustive nor controlling. They reflect only the seriousness of the violation and not the intent of the violator, the history of the violator, the amount necessary to deter future violations, or efforts to correct the violation.

    1. (1) Severity Level I--violations that are of minor public health significance. The following are examples of severity level I violations (other deficiency):

       1. (A) failure to keep premises clean and have adequate drainage;
       2. (B) failure to clean/maintain floors, walls, or ceilings;
       3. (C) failure to provide adequate and properly shielded lighting;
       4. (D) failure to post hand washing signs at hand washing stations; and
       5. (E) failure to restrict pickers from the packing room and all unauthorized persons from processing areas when operating.

    2. (2) Severity Level II--Violations that are of more than minor significance, or if left uncorrected, could result in more serious violations. The following are examples of severity level II violations (other deficiency):

       1. (A) failure to provide or use storage for employee clothing or personal articles;
       2. (B) failure to have clean, maintained, adequately drained floor;
       3. (C) failure to provide adequate heating/cooling/ventilation;
       4. (D) failure to provide adequate quantity of water to facility;
       5. (E) failure to provide hand washing stations with soap, sanitary towels, and/or waste receptacles with proper lids;
       6. (F) failure to properly construct, locate, maintain, and/or keep clean all non-food contact surfaces;
       7. (G) failure to provide detergents, approved sanitizers, brushes, and/or test kit to properly clean and sanitize the facility;
       8. (H) failure to properly store and/or keep clean single service containers;
       9. (I) failure to maintain frozen crab meat at 0 degrees Fahrenheit or less;
       10. (J) failure to require employees to wear clean outer garments, impermeable gloves/finger cots; to store properly; to wear proper hair restraints;
       11. (K) failure to promptly remove crab scrap or other accumulation; and
       12. (L) failure to meet code and/or install water disposal correctly or have adequate drainage where operations discharge water.

    3. (3) Severity Level III--Violations that are significant and which, if not corrected, could threaten public health. The following are examples of severity level III violations (key deficiency):

       1. (A) failure to exclude insects, rodents, vermin, or any other animals;
       2. (B) failure to provide hot and cold water at each sink/lavatory;
       3. (C) failure to protect plumbing from backflow, backsiphonage, and/or cross contamination;
       4. (D) failure to have toilets clean, repaired, and/or have self-closing doors;
       5. (E) failure to properly use, store, separate, and/or label poisonous/toxic materials;
       6. (F) failure to properly construct, locate, clean, and/or maintain food contact surfaces;
       7. (G) failure to provide a temperature measuring device in each refrigeration unit;
       8. (H) failure of employees to wash/sanitize their hands and/or exhibit good hygienic practices;
       9. (I) failure to restrict any personnel with infections that may be transmitted through the crab meat from participating in crab meat operations; and
       10. (J) failure to maintain complete and accurate records.

    4. (4) Severity Level IV--Violations that have a significant adverse impact on public health. The following are examples of severity level IV violations (key deficiency):

       1. (A) failure to separate operations by partition, space, or time;
       2. (B) failure to provide adequate refrigeration units;
       3. (C) failure to clean and sanitize food contact surfaces effectively and within required time frame;
       4. (D) failure to label crab meat or properly complete label;
       5. (E) failure to protect crab meat from contamination;
       6. (F) failure to pack into containers with a valid license number for that location; comply with label requirements; to use proper date;
       7. (G) failure to promptly pick, pack, pasteurize, and/or protect crab meat; and
       8. (H) failure to have responsible, effective, or designated person as supervisor.

    5. (5) Severity Level V--Violations that are most significant and create an imminent hazard to public health. The following are examples of severity level V violations (critical deficiency):

       1. (A) failure to cease operations when location/plant is flooded;
       2. (B) failure to protect the water supply from contamination;
       3. (C) failure to install and/or maintain adequate sewage disposal system;
       4. (D) failure to maintain crab meat at the proper temperature;
       5. (E) failure to keep crab meat from becoming contaminated;
       6. (F) failure to cool packed crab meat promptly;
       7. (G) failure to maintain packed crab meat at 40 degrees Fahrenheit or less during storage; and
       8. (H) failure to provide sanitary ice and/or properly protect it.

16. (p) The department may impose differing levels of penalties for different severity level violations.

    1. (1) Administrative penalties shall be imposed for Severity Level III, IV and V violations. Administrative penalties may be assessed for Severity Level I and II violations when they are combined with those of higher severity level(s) or for repeated violations which could have been prevented by corrective action and for which the dealer did not take effective corrective action.
    2. (2) Tables IA and IB show the base administrative penalties and the percentage of base amounts based on severity level of the violation.
17. (q) The department may offer a license holder the opportunity to attend a settlement conference to discuss with the department, or a division thereof, methods and schedules for correcting the violation(s) or to show compliance with applicable provisions of the Health and Safety Code, Chapter 436, the rules in this chapter (concerning Texas Crab Meat), license conditions, and any orders of the department issued thereunder, or discuss both such topics. The Office of General Counsel may conduct settlement negotiations.
18. (r) Notices of any settlement conference shall be sent by personal service or certified mail, return receipt requested. A settlement conference is not a prerequisite for the action to be taken under subsections (n), (o), or (p) of this section.
19. (s) By acceptance of a license, the holder agrees to save, hold harmless, and indemnify the State of Texas, the department, and its employees against any and all liability, claims or losses for property damage or personal injury which result in whole or in part from the license holder's activities. The State of Texas shall not be held liable for financial losses incurred by the plant supervisors or plant owners due to failure of crab meat activity, condemnation of crab meat, loss of crab meat, or other reasons.

Source Note:The provisions of this §241.3 adopted to be effective March 1, 1998, 23 TexReg 1972.