(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, dairy product manufacturer, 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. Permits are issued for a two-year term.

(1) All dairy farm, milk plant, receiving station, transfer station, raw for retail milk dairy farm, milk tank truck, dairy product manufacturer, and frozen dessert manufacturer, and operations located in Texas shall be approved by the department based on an inspection prior to the issuance of a permit.

(2) Permit or license fees once submitted are non-refundable.

(3) A current permit or license shall only be issued when all past due fees (including inspection fees under subsection (h) of this section) and late fees have been paid for all years of operation in Texas.

(b) Application. Applications may be obtained by visiting the Department of State Health Services at 8407 Wall Street, Austin, Texas or by contacting the Department of State Health Services, P.O. Box 149347, Austin, Texas 78714-9347. Applications are also available on-line at www.dshs.state.tx.us/fdlicense. The applicant must submit an accurate and complete application accompanied with a permit or license fee payable to the department prior to an inspection.

(1) Permitted or licensed facilities and operations shall pay the following fees. If applications are made after March 1 of any year, the fee will be prorated. (A) Milk plant: (i) $800 for a two-year license; (ii) $600 pro-rated; and (iii) $400 for a two-year license that is amended during the current licensure period due to minor change. (B) Producer dairy farm: (i) $200 for a two-year license; (ii) $150 pro-rated; and (iii) $100 for a two-year license that is amended during the current licensure period due to minor change. (C) Receiving and transfer station: (i) $800 for a two-year license; (ii) $600 pro-rated; and (iii) $400 for a two-year license that is amended during the current licensure period due to minor change. (D) Milk transport tanker: (i) $200 for a two-year license; (ii) $150 pro-rated; and (iii) $100 for a two-year license that is amended during the current licensure period due to minor change. (E) Grade A raw for retail: (i) $800 for a two-year license; (ii) $600 pro-rated; and (iii) $400 for a two-year license that is amended during the current licensure period due to minor change. (F) Frozen dessert manufacturers: (i) $800 for a two-year license; (ii) $600 pro-rated; and (iii) $400 for a two-year license that is amended during the current licensure period due to minor change. (G) Dairy product manufacturer: (i) $800 for a two-year license; (ii) $600 pro-rated; and (iii) $400 for a two-year license that is amended during the current licensure period due to minor change.

(2) 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.

(d) Renewal of a permit/license.

(1) Milk plants, producer dairy farms, receiving and transfer stations, Grade "A" raw for retail, dairy product manufacturer, and frozen dessert manufacturers must submit a renewal application and the required fee prior to September 1 of the year before the permit license expires. A person who submits a renewal application and required fee after the expiration date shall pay an additional $100 as a delinquency fee.

(2) Milk transport tankers must submit a renewal application and required fee prior to September 1 of the year before the permit license expires. All tankers shall have an inspection no more than one year old on file prior to issuance of the renewal permit sticker.

(3) Milk plants, Grade "A" raw for retail, and frozen dessert manufacturers' permit or license shall only be issued when all past due inspection fees are current.

(e) Amendment of permit/license.

(1) Fee. A permit/license that is amended for a change of name or a change in location of a permitted place of business will require submission of an application for amendment, and the required fee for the "minor change" amendment pursuant to subsection (c) of this section.

(2) Change of ownership. A permit is not transferable and will require submission of a new application and fee as outlined in subsection (c) of this section.

(3) The department must be notified in writing at least 30 days prior to the effective date of the name, ownership, or location change and will require submission of a new application and two-year license as outlined in subsection (a) of this section.

(f) All applicants shall comply with Subchapter T, §1.301 of this title (relating to Suspension of License for Failure to Pay Child Support).

(g) Applicability of other law.

(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, 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, 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) 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) 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) 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, or dairy 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.

(h) Inspection fees.

(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 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) All frozen desserts manufactured by frozen dessert manufacturing plants and offered 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 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.

(3) All dairy products manufactured in Texas shall be assessed a $0.015 per hundredweight inspection fee or shall pay a minimum fee of $5 each month, whichever is greater. This fee shall be assessed on a monthly basis. The inspection fee includes the cost for analyzing 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 July 4, 2010, 35 TexReg 3038