603-056-0540 Civil Penalties; Magnitude of Violation and Gravity of Circumstance (1) When calculating a civil penalty for a violation, the department will determine the base penalty (B) by determining the magnitude of the violation as specified in section (2) of this rule and the gravity of circumstance pertinent to the violation as specified in section (3) of this rule. (2) Magnitude of Violation: Violations are categorized as to their magnitude of violation as follows: (a) Category III (Minor) violations are as follows: (A) Selling, offering for sale, or exposing for sale in the state of Oregon any agricultural or bulk flower seed that is not labeled or is mislabeled as to the total percentage, by weight, of inert matter. (B) Selling, offering for sale, or exposing for sale in the state of Oregon any agricultural or bulk flower seed that is not labeled or is mislabeled with respect to the month and year beyond which an inoculant, if shown in the labeling, is no longer claimed to be effective. (b) Category II (Moderate) violations are as follows: (A) Selling, offering for sale, or exposing for sale in the state of Oregon any agricultural, flower, or vegetable seed that is not labeled or is mislabeled as to origin, other crop seed, weed seed, percentage of hard seed, month and year of testing, or name and address of labeler or seller. (B) Selling, offering for sale or exposing for sale in the state of Oregon any agricultural, flower, or vegetable seed shipped, delivered, transported or sold to a dealer for resale that has not been tested to determine the percentage of germination within the preceding 18 months. (C) Selling, offering for sale or exposing for sale in the state of Oregon any hermetically sealed seed to be sold at retail that has not been tested within the preceding 36 months to determine the percentage of germination. (D) Failing to keep all records required by Oregon law (ORS chapter 633, any rule adopted pursuant thereto or any of the terms or conditions of an order issued pursuant thereto). (E) Selling, offering for sale or exposing for sale in the state of Oregon any agricultural, flower or vegetable seed without a valid Oregon seed dealer’s license. (c) Category I (Major) violations are as follows: (A) Selling, offering for sale or exposing for sale in the state of Oregon any agricultural, flower, or vegetable seed that bears a label that is false or misleading in any particular way that is not otherwise specified in this rule. (B) Selling, offering for sale or exposing for sale in the state of Oregon any agricultural, flower, or vegetable seed that is not labeled or is mislabeled as to kind, variety, lot number, percentage of germination, or net quantity of contents. (C) Selling, offering for sale or exposing for sale in the state of Oregon any agricultural, flower, or vegetable seed that is mislabeled as to variety name for seed varieties protected by the Plant Variety Protection Act (7 USC §§ 2321 – 2582; 7 CFR §§ 97.1 – 97.900). (D) Selling, offering for sale or exposing for sale in the state of Oregon any agricultural, flower or vegetable seed that is not labeled or is mislabeled as to chemical treatment as described in OAR 603-056-0431. (E) Selling, offering for sale or exposing for sale in the state of Oregon any agricultural, flower, or vegetable seed containing prohibited noxious weed seeds as established under OAR 603-056-0205 or the Federal Seed Act. (F) Selling, offering for sale or exposing for sale any agricultural or vegetable seed containing restricted noxious weed seeds in excess of the permissible numbers established in OAR 603-056-0205. (G) Selling, offering for sale or exposing for sale in the state of Oregon any tuber, horticultural plant or agricultural, cereal grain, flower or vegetable seed that is represented as certified, but was not produced under an official certification program as described in ORS 633.620 or 633.511(2). (H) Selling, offering for sale or exposing for sale in the state of Oregon any agricultural, flower, or vegetable seed using labels, tags or seals for which the seed does not meet the requirements, including, but not limited to: (i) Certified seed tags as described in ORS 633.511(2); (ii) Endophyte tags as described in OAR 603-056-0160; and (iii) Oregon Sod Quality seed tags as described in OAR 603-056-130. (I) Falsifying or altering any records pertaining to any dealing with agricultural, flower or vegetable seed, including seed labels, seed tests, records, or other documents pertaining to seed dealings. (J) As a seed conditioner, knowingly mislabeling agricultural, flower or vegetable seed as to kind or variety in the course of cleaning, blending, bagging, or storing seed or as part of other activities commonly performed by seed conditioners. (K) Failing to provide records as requested by the department. (3) Gravity of Circumstance: The department shall rank the violation as to its gravity of circumstance. Following are the factors that may be considered in assigning a gravity ranking to a specific violation. A violation lacking factors that would determine it to be of either high or medium level shall result in the gravity being ranked low level. (a) High: a violation may be considered to have a high gravity of circumstance when any of the following are determined: (A) The violation was flagrant. (B) The violation resulted in damage to human health, animal health, or the environment. (C) For violations determined under OAR 603-056-0540 (2)(c)(D), if the treatment is also classed as a pesticide as described in OAR 603-057-0525 (3)(a)(C). (D) Persons failed to comply with an officially ordered quarantine of agricultural, flower, or vegetable seed. (E) Persons willfully tampered with, falsified or misrepresented in any manner samples of any agricultural, flower or vegetable seed. (F) Persons interfered with the inspection or sampling of agricultural, flower or vegetable seed by the Director or their agents during the enforcement of ORS 633.511 to 633.750. (G) Persons interfered with an investigation by the Director or their agents during the enforcement of ORS 633.511 to 633.750. (b) Medium: a violation may be considered to have a medium gravity of circumstance when any of the following are determined: (A) The violation was flagrant. (B) The violation could have caused damage to human health, animal health, or the environment. (C) For violations determined under OAR 603-056-0540 (2)(c)(D), if the treatment is not classed as a pesticide as described in OAR 603-057-0525 (3)(a)(C). (D) Persons knowingly tampered with, falsified, or misrepresented in any manner samples of any agricultural, flower, or vegetable seed. (E) Persons failed to cooperate with the inspection or sampling of agricultural, flower, or vegetable seed by the department during the enforcement of ORS 633.511 to 633.750. (F) Persons failed to cooperate with an investigation by the department during the enforcement of ORS 633.511 to 633.750. (c) Multiple violations of the same level may result in all violations of that type to be considered at the next highest level. Statutory/Other Authority: ORS 561, 633 & 183.335 (5) Statutes/Other Implemented: ORS 183.745 & 633.680 History: DOA 9-2020, adopt filed 07/14/2020, effective 07/14/2020