The purpose of the proposed rules is to implement the provisions of Section 500.70, Florida Statutes, and update the current rules. The effect will be rules that reflect current Florida law by providing for the registration of tomato farms and ...

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

PURPOSE AND EFFECT: The purpose of the proposed rules is to implement the provisions of Section 500.70, Florida Statutes, and update the current rules. The effect will be rules that reflect current Florida law by providing for the registration of tomato farms and clarifying the requirements for exemption from the rule. The proposed rules will also adopt inspection guidelines and forms that will be used to perform regulatory inspections and the imposition of administrative penalties.

SUMMARY: Implements Section 500.70, Florida Statutes; adopts inspection guidelines and forms for performing regulatory inspections; provides for the registration of tomato farms; clarifies the requirements for exemption from the rule; adopts guidelines for imposing administrative penalties.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The Department’s economic analysis of the adverse impact or potential regulatory costs of the proposed rule did not exceed any of the criteria established in Section 120.541(2)(a), Florida Statutes. As part of this analysis, the department relied upon the following: The proposed rule implements the statutory registration requirement of all Florida tomato farms, tomato packinghouses, and tomato repacking locations. The department has estimated that there are approximately 230 tomato farms, tomato packinghouses, and tomato repacking locations, which will be required to register with the department and pay an annual $100 registration fee. Therefore, the total annual cost to the industry of complying with the registration requirement is below the potential regulatory costs statutory threshold.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 500.09(1)(b), (4), 500.12(1)(b), (f), 500.70(2), (4)(a), (6), (7), 570.07(6), (10), (23), 570.481(1)(a) FS.

LAW IMPLEMENTED: 500.03(1) 500.09(1)(b), (4), 500.12(1)(a), (b), 500.121, 500.147(6), 500.70, 570.48(2)(e), 570.481(1)(a), (b), 603.12, 603.13 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Travis Tucker, Director, Division of Fruit and Vegetables, 500 3rd St. NW, Winter Haven, FL 33881

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

5G-6.001 Purpose.

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_________.

 

(Substantial rewording of Rule 5G-6.003 follows. See Florida Administrative Code for present text.)

 

5G-6.003 Purpose and Definitions.

(1) This rule establishes inspection procedures and best management practices to enhance the safety of fresh tomatoes grown, harvested, packed, or repacked in Florida as provided by Chapters 500 and 570, Florida Statutes. The purpose of these procedures and practices is to:

(a) Enhance the safety of tomatoes to the consuming public by the implementation of safer handling, production and packing practices.

(b) Prevent or minimize contamination of tomatoes either in the natural environment in which they are grown or in the handling, packing, repacking or selling of tomatoes once harvested since, once contaminated, removing or killing pathogens is difficult.

(c) Provide the necessary education and training on food safety practices to workers at all levels.

(2) In addition to the definitions provided in Sections 500.03 and 500.70, Florida Statutes, the following definitions shall apply:

(a) “Department” means the Florida Department of Agriculture and Consumer Services.

(b) “HACCP” (Hazard Analysis Critical Control Point) means a preventive food safety program used to protect the food supply against biological, chemical and physical hazards.

(c) “T-GAP” means Tomato Good Agricultural Practices.

(d) “T-BMP” means Tomato Best Management Practices.

(e) “Farmers Market” means a market, usually held out-of-doors, in public spaces, where farmers can sell their produce to the public.

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. 10/13), as adopted in Rule 5G-6.009, F.A.C., Chapter 500, Florida Statutes, and this rule chapter. Regulatory inspections will be performed as frequently as needed to verify adherence to T-GAP or T-BMP for product grown, packed or repacked and will be performed at least once a year in packing houses by the Department.

(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. 08/13), https://www.flrules. org/gateway/reference.asp?No=Ref-_______.

(2) Food Safety Audit – Tomato Good Agricultural Practices Greenhouse, FDACS-07083 (Rev. 08/13), http://www.flrules.org/Gateway/reference.

(3) Food Safety Audit – Tomato Good Agricultural Practices Packinghouse, FDACS-07085 (Rev. 08/13), http://www.flrules.org/Gateway/reference.

(4) Food Safety Audit – Tomato Good Agricultural Practices Repacking and Distribution, FDACS-07086 (Rev. 08/13), https://www.flrules.org/gateway/reference. asp?No=Ref-______.

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_________.

 

(Substantial rewording of Rule 5G-6.007 follows. See Florida Administrative Code for present text.)

 

5G-6.007 Annual Food Permit Permitting and Registration Requirements of Florida Tomato Producers, Harvesters, Packers and Repackers.

(1) Any person who packs or repacks tomatoes in this state that does not hold a food permit issued pursuant to Section 500.12, Florida Statutes, shall register their tomato packinghouse(s) or tomato repacker(s) by submitting the Annual Tomato Packer/Repacker Registration Application, FDACS-07151, (Rev. 10/13), which is hereby adopted and incorporated by reference. The application shall be accompanied by a registration fee of $100.00 and must be renewed annually on or before August 1 of each year. A copy of the form may be obtained by contacting the Florida Department of Agriculture and Consumer Services, Division of Fruit and Vegetables, 500 3rd Street NW, Winter Haven, Florida 33881-3403 or online at https://www.flrules. org/gateway/reference.asp?No=Ref-_____. Any person who packs or repacks tomatoes in this state that seeks a food permit pursuant to Section 500.12, Florida Statutes, as an alternative to the registration requirement provided by this rule shall use the procedures outlined in Rule 5K-4.020, F.A.C.

(2) Any person who produces or harvests tomatoes in this state shall register their tomato farm(s) tomato greenhouse(s) by submitting a completed Annual Tomato Farm/Greenhouse Registration Application, FDACS-07155, (Rev. 10/13), which is hereby adopted and incorporated by reference. A copy of the form may be obtained by contacting the Florida Department of Agriculture and Consumer Services, Division of Fruit and Vegetables, 500 3rd Street NW, Winter Haven, Florida 33881-3403 or online at https://www.flrules. org/gateway/reference.asp?No=Ref-_____. The application shall be accompanied by a registration fee of $100.00 and must be renewed annually on or before August 1 of each year.

(2) Upon receipt and approval of the application, the department will assign a permit number to the applicant, which shall be available for inspection and presented to department personnel upon request.

(3) All fees collected pursuant to this section shall be deposited into the General Inspection Trust Fund.

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., the T-GAP and T-BMP:

(1) Tomatoes sold by an individual grower to a consumer on the premises where the tomatoes were grown not to exceed two (2) twenty-five pound boxes per customer, per day. Tomatoes sold by an individual grower to a consumer on the premises on which they are grown not to exceed two twenty-five pound boxes per customer.

(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 twenty-five pound boxes per customer, per day. Tomatoes grown on premises and sold by the individual grower at a local farmers market not to exceed two twenty-five pound boxes per customer.

(3) Charitable contributions of tomatoes are exempt provided they are not diverted into commercial trade or the market place.

Rulemaking Authority 500.70(7), 570.07(23) FS. Law Implemented 500.70(5) FS. History–New 4-16-08, Amended_________.

 

(Substantial rewording of Rule 5G-6.013 follows. See Florida Administrative Code for present text.)

 

5G-6.013 Guidelines for Imposing Administrative Penalties Enforcement.

(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. 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. 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) The department will enforce compliance with Chapter 500, Florida Statutes, Rule Chapter 5G-6, Florida Administrative Code, and Rule 5K-4.029, Florida Administrative Code, by issuing an administrative complaint, stop sale order, and/or warning letter for violations of Chapter 500, Florida Statutes, Rule Chapter 5G-6, Florida Administrative Code, and Rule 5K-4.029, Florida Administrative Code.

(a) For purposes of enforcing compliance with Chapter 500, Florida Statutes, this rule chapter, and Rule 5K-4.029, Florida Administrative Code, a Department representative shall issue FDACS-07153, (Rev. 10/13), Tomato Stop-Sale – Interdiction Stations, or FDACS-07154, (Rev. 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, Florida Administrative Code, including the Tomato Best Practices Manual, FDACS-P-01580, (Rev. 10/13), as adopted in Rule 5G-6.009, 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. 10/13), 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. 10/13), https://www.flrules. org/gateway/reference.asp?No=Ref-_____;

2. Tomato Stop-Sale, FDACS-07154, Rev. (10/13), http://www.flrules.org/Gateway/reference;

3. Release of Tomato Stop-Sale, FDACS-07152, Rev. (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, consent order, or other lawful means.

(4) Rule Not All-Inclusive. This rule contains illustrative violations. It does not, and is not intended to encompass all possible violations of statute or department rule that might be committed by any person. The absence of any violation from this rule chapter shall in no way be construed to indicate that the violation does not cause harm to the public or is not subject to a penalty. In any instance where the violation is not listed in this rule, the penalty will be determined by consideration of:

(a) The closest analogous violation, if any, that is listed in this rule; and

(b) The mitigating or aggravating factors listed in this rule.

(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 violation 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 the stop sale order or a Corrective Action Notice 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.

13. 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.

7. The number and seriousness of the counts in the administrative complaint.

8. The disciplinary history of the person committing the violation.

9. If a repeat violation, whether three years has passed since the prior violation.

(6) The provisions of this rule chapter shall not be construed so as to prohibit or limit any other civil action or criminal prosecution that may be brought.

(7) In addition to the penalties established in this rule, the department reserves the right to seek to recover any other costs, penalties, attorney’s fees, court costs, service fees, collection costs, and damages allowed by law. Additionally, the department reserves the right to seek to recover any costs, penalties, attorney’s fees, court costs, service fees, collection costs, and costs resulting from a payment that is returned for insufficient funds to the department.

(8) Penalties.

(a) Minor Violations. A violation of Chapter 500, Florida Statutes, of Rule Chapter 5G-6, F.A.C. or Rule 5K-4.029, F.A.C., is a minor violation if it does not result in economic or physical harm to a person or adversely affect the public health, safety, or welfare or create a significant threat of such harm. Minor violations shall result in the issuance of a warning letter. Fines of up to $2,500.00 for minor violations shall result if subsequent violations are found within three years of the initial violation. For the purposes of this rule, the following violations shall be considered minor violations:

1. No Current copies of the Commodity Specific Food Safety Guidelines for the Fresh Tomato Supply Chain, Food Safety Programs and Auditing Protocol for the Fresh Tomato Supply Chain.

2. Bins, trays, or boxes made of corrugated cardboard are reused;

3. Tomato-contact bulk bins, gondolas, totes, or trays are not constructed of impervious materials that can be cleaned and sanitized regularly;

4. Water lines are not protected against back flow siphonage;

5. Signs reminding workers to wash their hands after using the toilet are not posted;

6. Portable hand wash water tanks not cleaned regularly;

7. Operation does not maintain written Environmental assessment documents to include a map or general description of the land being farmed, topography, land history of use, adjacent land use, water sources, and animal and wildlife presence or migration patterns;

8. Operation does not maintain an assessment document, signed by an authorized agent of the operation that shows that the production land and adjacent land have been assessed for a history of hazards including but not limited to industrial, toxic waste, landfill purposes, incinerator or municipal waste, animal manure, animal intrusion or animal husbandry;

9. Operation does not maintain an assessment document, signed by an authorized agent of the operation that acknowledges any environmental hazards or history as required by the Tomato Best Practices Manual (Part A (1)(b)3.), which is incorporated by reference in Rule 5G-6.009, F.A.C.

10. Environmental assessment documents are not reviewed by the food safety designate prior to each production cycle;

11. Operation does not maintain adequate records of the sale or disposition of product;

12. Operation uses containers that are not accurately labeled with the commodity name, greenhouse or farm firm name, and information sufficient to allow for source and lot identification.

(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 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. Firm is required to be registered with the Department, but does not hold a current food permit or producer registration as required by Rule 5G-6.007, F.A.C.;

2. Water used in the packinghouse does not meet the microbial standards for potable water or documentation of most recent test result is not available for inspection;

3. E.coli (or fecal coliforms) is detected in irrigation water above 126/100 ml and corrective measures are not immediately taken to minimize the potential for microbial contamination;

4. Compounds used to clean finished product containers, food contact surfaces or tools are not approved for that use by the US EPA, FDA or other appropriate agency;

5. Mobile packing of tomatoes is conducted without an approved sanitizing procedure.

6. Mobile packing of tomatoes into cardboard containers without an approved sanitation process.

7. Biosolids are used for fertilizer.

8. Debris and injured fruit are allowed to collect in wash areas and dump tanks;

9. Debris and injured fruit are not actively removed from lot;

10. Approved sanitizer is not used in the dump tank wash water or on the spray line ;

11. Sanitizer activity level is outside of its effective range;

12. Sanitizer is not maintained within its allowable limits. (Provide documentation);

13. Re-circulated or re-used water is not changed at least daily or proper records of water use not maintained;

14. Workers are not instructed to seek prompt treatment for cuts, abrasions and other injuries or clean first aid supplies are not provided;

15. Pesticide application equipment is not properly maintained and calibrated at a frequency sufficient to assure the accuracy of delivery;

16. Fertilizers containing manures or composts that have not been properly treated (e.g. composted or heat treated) are used for fertilization;

17. Procedures ensuring that any water source and distribution system are properly designed, located, constructed, and maintained in a manner to prevent contamination, including backflow prevention, proper well construction, and to prevent fouling by animals and pests are not followed;

18. Items that come into contact with product including tools, utensils, containers, and food contact equipment are not made of impervious, cleanable material capable of sanitization.

19. Pesticide chemicals are used in a manner that does not comply with all requirements of national registration and any federal, state or local regulations;

20. Pesticide chemicals are used that do not comply with all requirements of national registration and any federal, state or local regulations;

(c) Willful Violations. The following shall result in the imposition of an administrative fine of $5,000 per violation:

1. Any willful and intentional violation of Chapter 500, F.S., Rule Chapter 5G-6, F.A.C., Rule 5K-4.029, F.A.C., or of any requirement or standard adopted pursuant thereto;

2. Any willful and intentional violation of a stop sale/use order or stipulated conditions of release from a stop sale/use order;

3. Any willful and intentional violation of a warning letter.

(9) Resolution of Violations, Settlement, and Additional Enforcement Remedies.

(a) The department and person charged with a violation may agree to resolve violations prior to an administrative hearing or enter into settlement pursuant to Section 120.57(4), Florida Statutes. The penalties addressed in this rule shall not be construed to limit the authority of the department to resolve violations prior to or after initiation of any administrative action or to settle with any party. The department shall utilize all available remedies to ensure compliance including administrative action, civil actions, settlements, and referrals for criminal prosecution. The department shall enforce a failure to comply with an agreement to resolve violations or a settlement agreement with the penalties and remedies provided in the agreement and as authorized by Chapter 120 or Chapter 500, Florida Statutes.

(b) Failure to respond to an administrative complaint shall result in the entry of a Default Final Order against the violator or entity responsible for the violation. The department shall impose administrative fines in a Default Final Order equal to the maximum amount as allowable under subsection 500.70(3)(b), or 500.121(1) or (2), F.S.

(c) A failure to comply with either a Final Order or a Default Final Order of the department shall result in any applicable permit or registration revocation and an administrative fine equal to the maximum amount as allowable under ss. 500.70(3)(b), or 500.121(1) or (2), F.S. Additional penalties shall be sought through the enforcement of the order in circuit court.

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__________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Mr. Travis Tucker, Director, Division of Fruit and Vegetables

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Adam H. Putnam

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 13, 2013

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: July 17, 2013