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RULE §221.8Assessment of Administrative Penalties

(a) Administrative penalties and hearings. Administrative penalties may be assessed against a person who violates this chapter or the Act. A person who receives notice that an administrative penalty is proposed to be assessed, shall have the right to request a formal hearing, or to show compliance with the rules. A hearing shall be held under the provisions of the Administrative Procedures Act, Government Code, Chapter 2001, and the State Office of Administrative Hearings (SOAH) rules contained in 1 TAC, Chapter 155.

(b) Criteria for the assessment of administrative penalties. The department shall assess administrative penalties in accordance with the following criteria:

  (1) the seriousness of the violation;

  (2) history of previous violations:

    (A) the department may consider previous violations;

    (B) the base penalty may be reduced or increased based on past performance; and

    (C) past performance involves the consideration of the following factors:

      (i) how similar the previous violation was;

      (ii) how recent the previous violation was; and

      (iii) the number of previous violations in regard to correction of the problem.

  (3) demonstrated good faith:

    (A) the department may consider demonstrated good faith;

    (B) the base penalty may be reduced if good faith efforts to correct a violation have been made, or are being made; and

    (C) good faith effort may be determined by the department on a case-by-case basis and shall be fully demonstrated by the alleged violator.

  (4) hazard to the health and safety of the public:

    (A) the department may consider the hazard to the health and safety of the public;

    (B) the base penalty shall be increased when a direct hazard to the health and/or safety of the public is involved; and

    (C) the department may take into account, but need not be limited to, the following facts:

      (i) whether any disease or injuries have occurred from the violation;

      (ii) whether any existing condition contributed to a situation that could expose humans to a health hazard; or

      (iii) whether the consequences would be of an immediate or long-range hazard; and

  (5) other factors. The department may consider other factors as justice may require.

(c) Severity levels.

  (1) Violations. The violations may be categorized by one of the following severity levels.

    (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. Examples of Severity Level I violations include, but are not limited to:

      (i) operation of any licensable rendering related activity without a license;

      (ii) willfully diverting inedible products into human food channels; or

      (iii) the adulteration of any product intended for use in animal food or topical cosmetics which would make it unsuitable for such use.

    (B) Severity Level II covers violations that are very significant and have impact on the public health and safety. Examples of Severity Level II violations include, but are not limited to:

      (i) taking possession of stolen renderable raw materials, which includes waste cooking grease;

      (ii) continuing to operate any rendering business following expiration of a license;

      (iii) failure to provide access to premises to department representatives for the purpose of conducting a compliance inspection or complaint investigation; or

      (iv) any other act that results in fraud.

    (C) Severity Level III covers violations that are significant and which, if not corrected, could threaten the public and have adverse impact on the public health and safety. Examples of Severity Level III violations include, but are not limited to:

      (i) operating a renderable raw material collection vehicle which does not display a vehicle permit decal issued by the department in a manner prescribed by the department;

      (ii) purchasing renderable raw materials from a hauler that is not licensed by the department if required by the Act;

      (iii) purchasing renderable raw materials from a person whose collection vehicle does not display a vehicle permit decal; or

      (iv) construction of new facilities and/or additions to existing facilities without a construction permit.

    (D) Severity Level IV covers violations that are of more than minor significance, and if left uncorrected, would lead to more serious circumstances. Examples of Severity Level IV violations include, but are not limited to:

      (i) falsifying any information on an application for a rendering business operator's license or a hauler's license;

      (ii) creating a nuisance as defined by Health and Safety Code §341.011;

      (iii) failing to provide upon request, a record of all purchases and sales of renderable raw material as required by §221.5 of this title (relating to Records).

      (iv) operating any rendering related activity in excess of fifteen days following notification of expiration of a current license; or

      (v) constructing any facility or addition to an existing facility without having a construction permit as required by the Act and the rules of this chapter.

    (E) Severity Level V covers violations that are of minor safety or fraudulent significance. Examples of Severity Level V violations include, but are not limited to:

      (i) failing to maintain a minimum level of sanitation;

      (ii) failing to maintain a clean leak-proof vehicle; or

      (iii) failing to display the required and correct Texas Renderers' Licensing Act number and business name on vehicles used in his/her rendering business.

  (2) Severity of a violation. The severity of a violation may be increased if the violation involves deception, fraud, or other indication of willfulness. In determining the severity of a violation, the department shall take into account the economic benefit gained through noncompliance.

(d) Levels of penalties. The department will impose the following penalties according to the severity level:

  (1) Level I--$15,000;

  (2) Level II--$10,000;

  (3) Level III--$6,250;

  (4) Level IV--$3,750; and

  (5) Level V--$1,250.

(e) Each day a violation continues may be considered as a separate violation.

Source Note: The provisions of this §221.8 adopted to be effective December 10, 2000, 25 TexReg 12175; amended to be effective January 1, 2005, 29 TexReg 11979

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