Purpose, Definitions, Inspection, Inspection Guidelines, Annual Food Permit Requirements of Tomato Packers and Repackers, Exemptions, Enforcement
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
Division of Fruit and Vegetables
RULE NOS.:RULE TITLES:
5G-6.001Purpose
5G-6.003Definitions
5G-6.005Inspection
5G-6.006Inspection Guidelines
5G-6.007Annual Food Permit Requirements of Tomato Packers and Repackers
5G-6.011Exemptions
5G-6.013Enforcement
NOTICE OF CHANGE
Notice is hereby given that the following changes have been made to the proposed rule in accordance with subparagraph 120.54(3)(d)1., F.S., published in Vol. 39 No. 246, December 20, 2013 issue of the Florida Administrative Register.
THE FULL TEXT OF THE PROPOSED RULE IS:
5G-6.001 Purpose.
No change.
Rulemaking Authority 500.09(1)(b), (3), (4), 500.12(1)(f), 570.07(6), 570.07(23) FS. Law Implemented 500.09(1)(b), (4), 500.12(1)(f) FS. History–New 4-16-08, Repealed_________.
5G-6.003 Purpose and Definitions.
No change.
Rulemaking Authority 500.09(1)(b), (4), 500.70(7), 570.07(6), (10), (23), FS. Law Implemented 500.03(1) 500.09(1)(b), (4), 500.147(6), 500.70, FS. History–New 4-16-08, Amended_________.
5G-6.005 Inspection of Permitted and Registered Entities.
(1) The department shall conduct regulatory inspections of entities permitted and registered pursuant to Rule 5G-6.007, F.A.C., including, tomato farms, tomato greenhouses, tomato packinghouses, and repacking locations, and any vehicle being used to transport or hold tomatoes at least once annually to verify adherence to the requirements of the Tomato Best Practices Manual, FDACS-P-01580, (Rev. 10/14 10/13), as adopted in Rule 5G-6.009, F.A.C., Chapter 500, Florida Statutes, and this rule chapter.
(2) No change.
Rulemaking Authority 500.09(1)(b), (4), 500.70(2), (7), 570.07(6), (10), (23), 570.481(1)(a) FS. Law Implemented 500.70(3)(a), 570.48(2)(e), 570.481(1)(a), (b), 603.12, 603.13 FS. History–New 4-16-08, Amended__________.
5G-6.006 Food Safety Audit Documents.
The Department hereby adopts and incorporates the following forms for use by the department in performing inspections described in Rule 5G-6.005, F.A.C. Samples of these documents are available online as indicated.
(1) Food Safety Audit – Tomato Good Agricultural Practices Open Field Production, Harvest and Field Packing, FDACS-07081 (Rev. 10/14 08/13), http://www.flrules. org/gateway/reference.
(2) Food Safety Audit – Tomato Good Agricultural Practices Greenhouse, FDACS-07083 (Rev. 10/14 08/13), http://www.flrules.org/Gateway/reference.
(3) Food Safety Audit – Tomato Good Agricultural Practices Packinghouse, FDACS-07085 (Rev. 10/14
08/13), http://www.flrules.org/Gateway/reference.
(4) Food Safety Audit – Tomato Good Agricultural Practices Repacking and Distribution, FDACS-07086 (Rev. 10/14 08/13), https://www.flrules.org/gateway/reference.
(5) Food Safety Audit – Tomato Good Agricultural Practices Corrective Action Needed Report, FDACS-07165, 02/14, http://www.flrules.org/Gateway/reference.
(6) 21 C.F.R. §§1.225-1.243 (2014), http://www.flrules.org/Gateway/reference.
Rulemaking Authority 500.09(1)(b), (4), 500.70(2), (7), 570.07(6), (10), (23) FS. Law Implemented 500.70(3)(a), 570.48(2)(e), 570.481(1)(a), (b), 603.12, 603.13 FS. History–New_________.
5G-6.007 Annual Permitting and Registration Requirements of Florida Tomato Producers, Harvesters, Packers and Repackers.
(1) through (2) No change.
(3)(2) No change in rule text.
(4)(3) No change in rule text.
Rulemaking Authority 500.09(1)(b), (4), 500.12(1)(b), (f), 500.70(2), (4)(a), (6), (7), 570.07(6),(10), (23) FS. Law Implemented 500.03(1)(n), 500.12(1)(a), (b), 500.70(2)(a), (6), 570.48(2)(e), 570.481(1)(a), (b) FS. History–New 4-16-08, Amended 11-24-09,_________.
5G-6.011 Exemptions.
The following categories of tomatoes are exempt from the requirements of Rule 5G-6.009, F.A.C.:
(1) No change
(2) Tomatoes sold by an individual grower to a consumer at a local farmers’ market, roadside stand, or U-pick operation not to exceed two (2) twenty-five pound boxes per customer, per day.
Rulemaking Authority 500.70(7), 570.07(23) FS. Law Implemented 500.70(5) FS. History–New 4-16-08, Amended_________.
5G-6.013 Guidelines for Imposing Administrative Penalties.
(1) This rule sets forth the guidelines the Department will follow in imposing the penalties authorized under Sections 500.121 and 500.70(3)(b), Florida Statutes. The purpose of the guidelines is to give notice of the range of penalties which normally will be imposed for a single violation within a three (3) year period. The three-year period shall be based on the date of the last administrative enforcement action imposed for the same violation. These guidelines list aggravating and mitigating factors that, if present, will reduce or increase penalties to be imposed. No aggravating factors will be applied to increase a fine imposed for a single violation above the statutory maximum of $5,000.00 per violation. The guidelines in this rule chapter are based upon a single count violation of each provision listed. Multiple counts of the violated provision or a combination of the listed violations will be added together to determine an overall total penalty and will be grounds for enhancement of penalties.
(2) No change.
(a) For purposes of enforcing compliance with Chapter 500, Florida Statutes, this rule chapter, and Rule 5K-4.029, F.A.C. Florida Administrative Code, a Department representative shall issue FDACS-07153, (Rev. 10/14 10/13), Tomato Stop-Sale – Interdiction Stations, or FDACS-07154, (Rev. 10/14 10/13), Tomato Stop-Sale, to anyone producing, harvesting, packing, or repacking tomatoes that do not meet the requirements of Chapter 500, Florida Statutes, or Rule Chapter 5G-6, F.A.C. Florida Administrative Code, including the Tomato Best Practices Manual, FDACS-P-01580, (Rev. 10/14 10/13), as adopted in Rule 5G-6.009, F.A.C. Florida Administrative Code, or Rule 5K-4.029, Florida Administrative Code. If the Department determines that the tomatoes under stop sale are in compliance, a Department representative shall issue FDACS-07152, (Rev. 10/14 10/13), Release of Tomato Stop-Sale to the owner of the tomatoes under stop-sale.
(b) The following forms are hereby adopted and incorporated by reference and are available online as indicated:
1. Tomato Stop-Sale – Interdiction Stations, FDACS-07153, (Rev. 10/14 10/13), https://www.flrules. org/gateway/reference.
2. Tomato Stop-Sale, FDACS-07154, Rev. (10/14 10/13), http://www.flrules.org/Gateway/reference;
3. Release of Tomato Stop-Sale, FDACS-07152, (Rev. 10/14 10/13), http://www.flrules.org/Gateway/reference.
(3) Nothing in this chapter shall limit the ability of the department to informally dispose of administrative actions by settlement agreement, or consent order, or other lawful means.
(4) No change.
(5) Aggravating and Mitigating Factors. The department will consider aggravating and mitigating factors in determining penalties for violations of Chapter 500, Florida Statutes, Rule Chapter 5G-6, Florida Administrative Code, and Rule 5K-4.029, Florida Administrative Code. The factors shall be applied against each single count of the listed violation.
(a) Aggravating Factors:
1. The violation caused or has the potential to cause harm to a person or property and the degree or extent of such harm.
2. The violation endangered the public safety or welfare.
3. Previous violations for the same or a similar offense that resulted in enforcement action.
4. The length of time the business has been in operation and the Vviolation history over the past three years.
5. The violation existed in excess of 30 days.
6. The violation was repeated within 14 days.
7. The violator impeded, or otherwise failed to cooperate with, the department’s inspection and/or investigation.
8. Previous disciplinary action against the violator in this or any other jurisdiction and the deterrent effect of the penalty imposed.
9. Undue delay in initiating or completing, or failure to take, affirmative or corrective action after receipt of a the Tomato Stop Sale stop sale order, FDACS- 07154, Rev. 10/14, incorporated in Rule 5G-6.013, F.A.C., or a Tomato Good Agricultural Practices Corrective Action Notice Needed Report, FDACS-07165, Rev. 02/14, which is incorporated in Rule 5G-6.006, F.A.C. for the violation.
10. Whether the violation resulted from negligence or an intentional act.
11. The cost of enforcement action.
12. The number of other violations proven in the same proceeding.
1113. The benefit to the violator.
(b) Mitigating Factors:
1. Any documented efforts by the violator at rehabilitation.
2. Whether intentional actions of another party prevented the violator from complying with the applicable laws or rules.
3. Financial hardship.
4. Acts of God or nature that impairs the ability of the violator to comply with Chapter 500, Florida Statutes, Rule Chapter 5G-6, Florida Administrative Code, and Rule 5K-4.029, Florida Administrative Code.
5. The violation has a low risk of, or did not result in, harm to the public health, safety, or welfare.
6. The violator expeditiously took affirmative or corrective action after it received written notification of the violation, including costs incurred by the violator for rectifying any damage or harm to consumers vehicles and/or property on a Tomato Good Agricultural Practices Corrective Actions Needed Report, FDACS - 07165 Rev. 02/14, which is incorporated in Rule 5G-6.006, F.A.C.
7. The number and seriousness of the counts in the administrative complaint.
78. The disciplinary history of the person committing the violation within the previous (3) three years.
9. If a repeat violation, whether three years has passed since the prior violation.
(6) through (7) No change.
(8) Penalties.
(a) No change.
(b) Major Violations. A violation of a Chapter 500, Florida Statutes, of Chapter 5G-6, F.A.C. or Rule 5K-4.029, F.A.C. is a major violation if it results in economic or physical harm to a person or adversely affects the public health, safety, or welfare, or creates a threat of such harm. Major violations shall result in the issuance of a warning letter, stop sale, suspension of operating permit, or imposition of an administrative fine of up to $5,000 per violation. Aggravating factors, as described defined in subparagraph (5)(a) of this rule, shall warrant the adjustment of the fine upward and mitigating factors, as defined in subparagraph (5)(b) of this rule, shall warrant the adjustment of the fine downward, but no fine shall exceed the statutory maximum as outlined in subsection 500.70(3)(b), and 500.121(1), and (2), F.S. Fines for major violations shall result in a monetary penalty of a minimum of $500.00 up to $5,000.00. For the purposes of this rule, the following violations shall be considered major violations:
1. through 4. No change.
5. Mobile packing of tomatoes is conducted without an approved sanitizing procedure as described in the Tomato Best Practices Manual , Part A(1)(j) and Part B(1)(g) and which is adopted in Rule 5G-6.009, F.A.C.
6. Mobile packing of tomatoes into cardboard containers without an approved sanitation process as described in the Tomato Best Practices Manual, Part A(1)(j) and Part B(1)(g) and which is adopted in Rule 5G-6.009, F.A.C.
7. through 9. No change.
10. Approved sanitizer, as described in the Tomato Best Practices Manual, Part B(1)(g), which is adopted in Rule 5G-6.009, F.A.C., is not used in the dump tank wash water or on the spray line;
11. through 20. No change.
(c) No change.
(9) No change.
Rulemaking Authority 500.09(3), 500.70(7), 570.07(6), (10), (23) FS. Law Implemented 500.121, 500.70(3)(b) FS. History–New 4-16-08, Amended__________.
