Chapter 901:2-2 Progressive Enforcement Actions Meat Processing Violations

901:2-2-01 Scope and purpose.

The purpose of Chapter 901:2-2 of the Administrative Code is to implement the progressive enforcement actions provided for in division (D) of section 918.08 and division (C) of section 918.28 of the Revised Code.

R.C. 119.032 review dates: 02/23/2010 and 02/23/2015
Promulgated Under: 119.03
Statutory Authority: 918.04 , 918.28
Rule Amplifies: 918.08 , 918.28
Prior Effective Dates: 2/4/02

901:2-2-02 Definitions.

As used in rules 901:2-2-01 to 901:2-2-08 of the Administrative Code:

(A) "Progressive enforcement action" means regulatory control action, withholding action, and suspension as defined in this rule.

(B) "Regulatory control action'' means the retention of product, rejection of equipment or facilities, slowing or stopping of lines, or refusal to allow the processing of specifically identified product.

(C) "Suspension'' means an interruption in the assignment of program employees to either all or part of an establishment.

(D) "Withholding action'' means the refusal to allow the marks of inspection to be applied to either all product in an establishment or product produced by a particular process.

(E) "9 C.F.R. ---" means title 9 of the Code of Federal Regulations, parts 300 to 500, as revised January 1, 2009, adopted by the department under rules 901:2-1-01 and 901:2-3-01 of the Administrative Code.

Effective: 01/10/2013
R.C. 119.032 review dates: 10/24/2012 and 01/10/2018
Promulgated Under: 119.03
Statutory Authority: 918.04
Rule Amplifies: 918.08 , 918.28
Prior Effective Dates: 02/04/02, 10/08/2007, 5/30/10

901:2-2-03 Regulatory control action.

(A) A program employee may take regulatory control action without prior notification if any of the following are present or occur in an establishment:

(1) Insanitary conditions or practices;

(2) Product adulteration or misbranding;

(3) Conditions that preclude program employees from determining that product is not either adulterated or misbranded; or

(4) Inhumane handling or slaughtering of livestock.

(B) If regulatory control action is taken, the program employee shall immediately notify the establishment in writing of the action and the basis for the action.

(C) An establishment may appeal a regulatory control action in accordance with division

(D) of section 918.08 and division (C) section 918.28 of the Revised Code.

R.C. 119.032 review dates: 02/23/2010 and 02/23/2015
Promulgated Under: 119.03
Statutory Authority: 918.04 , 918.28
Rule Amplifies: 918.08 , 918.28
Prior Effective Dates: 2/4/02

901:2-2-04 Withholding action or suspension.

(A) A program employee may take a withholding action or impose a suspension without providing the establishment prior written notification when:

(1) The establishment produced or shipped adulterated or misbranded product as defined in section 918.01 of the Revised Code;

(2) The establishment does not have a hazard analysis and critical control plan (HACCP) that complies with the requirements of 9 C.F.R. 417.2 ;

(3) The establishment either does not have sanitation standard operating procedures (SSOP) as required in 9 C.F.R. 416.11 , or the SSOP does not meet the requirements of 9 C.F.R. 416.12 ;

(4) Sanitary conditions are such that products in the establishment are or may be rendered adulterated;

(5) The establishment violated the terms of a regulatory control action;

(6) An establishment operator, officer, employee, or agent assaulted, threatened to assault, intimidated, or interfered with a department employee;

(7) The establishment did not destroy a condemned meat or poultry carcass, or part or product thereof, in accordance with either 9 C.F.R. 314 or 9 C.F.R. 381 subpart L, within three days of notification; or,

(8) The program employee may also impose a suspension without providing the establishment prior notification because the establishment is handling or slaughtering animals inhumanely.

(B) A program employee may take a withholding action or impose a suspension after an establishment is provided prior written notification and the opportunity to demonstrate or achieve compliance when:

(1) The HACCP system is inadequate, as specified in 9 C.F.R. 417.6 , due to multiple or recurring noncompliance;

(2) The SSOP has not been properly implemented or maintained as specified in 9 C.F.R. 416.13 to 9 C.F.R. 416.16 ;

(3) The establishment has not maintained sanitary conditions as prescribed in 9 C.F.R. 416.2 to 9 C.F.R. 416.8 due to multiple or recurring noncompliance;

(4) The establishment did not collect and analyze samples for escherichia coli biotype i and record results in accordance with 9 C.F.R. 310.25(a) or 9 C.F.R. 381.94(a) ; or,

(5) The establishment did not meet the salmonella performance standard requirements prescribed in 9 C.F.R. 310.25(b) or 9 C.F.R. 381.94(b) .

R.C. 119.032 review dates: 10/11/2012 and 10/11/2017
Promulgated Under: 119.03
Statutory Authority: 918.04
Rule Amplifies: 918.08 , 918.28
Prior Effective Dates: 02/04/02

901:2-2-05 Notification, appeals, and actions held in abeyance.

(A) Whenever a program employee takes a withholding action or imposes a suspension without prior notification as provided for in paragraph (A) of rule 901:2-2-04 of the Administrative Code, the establishment shall promptly receive a written notice:

(1) Stating the effective date of the action,

(2) Describing the reasons for the action,

(3) Identifying the products or processes affected by the action,

(4) Provide the establishment an opportunity to present immediate and corrective action and further planned preventive action; and,

(5) Advising the establishment that it may appeal the action in accordance with division (D) of section 918.08 or division (C) of section 918.28 of the Revised Code.

(B) Whenever a program employee takes a withholding action or imposes a suspension with prior notification as provided for in paragraph (B) of rule 901:2-2-04 of the Administrative Code, the written notice shall:

(1) State the type of enforcement action the program employee proposes to take;

(2) Describe the reason for the proposed enforcement action;

(3) Identify the products or processes affected by the proposed enforcement action; and,

(4) Inform the establishment that it has a right to appeal the notice of proposed enforcement action in accordance with division (D) of section 918.08 or division (C) of section 918.28 of the Revised Code by filing a notice of appeal with the department within three business days of receipt of the notice.

(C) If the program employee takes a withholding action or suspends inspection and does not hold the progressive enforcement action in abeyance as provided in paragraph (D) of this rule, the establishment may request a hearing pursuant to Chapter 119. of the Revised Code. Upon receipt of a request, the director shall schedule an expedited hearing.

(D) The program employee may hold a progressive enforcement action in abeyance and allow the establishment to operate under the conditions agreed to by the program employee and the establishment.

R.C. 119.032 review dates: 02/23/2010 and 02/23/2015
Promulgated Under: 119.03
Statutory Authority: 918.04 , 918.28
Rule Amplifies: 918.08 , 918.28
Prior Effective Dates: 2/4/02

901:2-2-06 Withdrawal of inspection.

(A) The director may withdraw inspection from an establishment when he finds:

(1) An establishment produced and shipped adulterated product;

(2) An establishment did not have or maintain a HACCP plan in accordance with 9 C.F.R. 417 ;

(3) An establishment did not have or maintain sanitation standard operating procedures in accordance with 9 C.F.R. 416 ;

(4) An establishment did not maintain sanitary conditions;

(5) An establishment did not collect and analyze samples for escherichia coli biotype i and record results as prescribed in either 9 C.F.R. 310.25(a) or 9 C.F.R. 381.94(a) ;

(6) An establishment did not comply with the salmonella performance standard requirements as prescribed in sections 9 C.F.R. 310.25(b) and 9 C.F.R. 381.94(b) ;

(7) An establishment did not slaughter or handle livestock humanely;

(8) An establishment operator, officer, employee, or agent assaulted, threatened to assault, intimidated, or interfered with a department employee; or

(9) A recipient of inspection or anyone responsibly connected to the recipient is unfit to engage in any business requiring inspection as specified in paragraph (B) of rule 901:2-1-04 of the Administrative Code.

(B) A request for voluntary suspension or voluntary withdrawal of inspection must be made to the department by an establishment during any time their facility is not in operation. The department shall provided the establishment with a copy of a completed voluntary suspension form.

(C) The establishment shall not resume operation until the department has inspected the facility and the establishment's license has been reinstated. The establishment shall make a request for inspection to the department not less than fourteen days from the date the establishment is to resume operation.

R.C. 119.032 review dates: 10/11/2012 and 10/11/2017
Promulgated Under: 119.03
Statutory Authority: 918.04
Rule Amplifies: 918.08 , 918.28
Prior Effective Dates: 02/04/02

901:2-2-07 Refusal to grant inspection.

(A) The director may refuse to grant inspection because an applicant:

(1) Does not have a HACCP plan as required by 9 C.F.R. 417 ;

(2) Does not have sanitation standard operating procedures as required by 9 C.F.R. 416 ;

(3) Has not demonstrated that adequate sanitary conditions exist in the establishment as required by 9 C.F.R. 308 or 9 C.F.R. 381 subpart h, and 9 C.F.R. 416 ;

(4) Has not demonstrated that livestock will be handled and slaughtered humanely; or

(5) Is unfit to engage in any business requiring inspection as specified in paragraph (B) of rule 901:2-1-04 of the Administrative Code.

(B) If the director refuses to grant inspection, the applicant will be provided the opportunity for a hearing in accordance with Chapter 119. of the Revised Code.

R.C. 119.032 review dates: 02/23/2010 and 02/23/2015
Promulgated Under: 119.03
Statutory Authority: 918.04 , 918.28
Rule Amplifies: 918.08 , 918.28
Prior Effective Dates: 2/4/02

901:2-2-08 Procedures for rescinding or refusing approval of marks, labels, and containers.

(A) The director may rescind or refuse approval of false or misleading marks, labels, or sizes or forms of any container for use with any meat or poultry product.

(B) The department will provide written notification that:

(1) Explains the reason for rescinding or refusing the approval;

(2) Provides an opportunity for the establishment to modify the marking, labeling, or container so that it will no longer be false or misleading; and

(3) Advises the establishment of its opportunity to submit a written statement to respond to the notification and to request a hearing.

(C) If the director rescinds or refuses approval of false or misleading marks, labels, or sizes or forms of any container for use with any meat or poultry product, a notice and opportunity for a hearing shall be provided, in accordance with Chapter 119. of the Revised Code.

R.C. 119.032 review dates: 02/23/2010 and 02/23/2015
Promulgated Under: 119.03
Statutory Authority: 918.04 , 918.28
Rule Amplifies: 918.08 , 918.28
Prior Effective Dates: 2/4/02