Performance Specifications and Standards for Motor Vehicle Brake Fluid, Registration, Guidelines for Imposing Administrative Penalties
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
RULE NOS.:RULE TITLES:
5F-6.001Performance Specifications and Standards for Motor Vehicle Brake Fluid
5F-6.002Registration
5F-6.003Guidelines for Imposing Administrative Penalties
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. 133, July 10, 2013 issue of the Florida Administrative Register.
5F-6.001 Performance Specifications and Standards for Motor Vehicle Brake Fluid.
(1) The performance specifications and standards for brake fluid adopted by the United States Department of Transportation and contained in Motor Vehicle Safety Standard No. 116, Motor Vehicle Brake Fluid, revised October 1, 2011, as referenced specified in 49 CFR 571.116, are hereby adopted as rules of the Department of Agriculture and Consumer Services.
(2) through (3) No Change.
(4) In accordance with s. 526.53(2)(a),526, Part II F.S., any brake fluid brand/formula distributed in violation of ss. Section 526.50 – 526.56, F.S., or this rule chapter shall be placed under stop sale order by the department using FDACS-03206, Stop Sale Order, Rev. 12/12, and FDACS-03537, Warning Tag “Warning” tag, Rev. 08/12, prohibiting the sale of the brake fluid brand/formula combination. Upon resolution of the violation, the brake fluid shall be released by the department. The documents referenced in this subsection are incorporated by reference in Rule 5F-2.001, F.A.C.
Rulemaking Authority 526.52(1), 526.53(4), 570.07(23) FS. Law Implemented 526.53(1), (2), 526.54 FS. History–New 5-8-78, Formerly 5F-6.01, Amended 12-9-98, 12-9-02, 6-21-04,______.
5F-6.002 Registration.
(1) Each brake fluid brand/formula combination to be distributed in this state shall be registered annually with the department prior to distribution and registrant shall make application on FDACS-03212, Application for Registration of Brake Fluid or Formula Addition to a Currently Registered Brand, Rev. 10/12, hereby incorporated by reference, if not being renewed under the provisions of subsection (2) of this rule. Copies of this form may be accessed at http://www.flrules.org/Gateway/reference. Application shall be made by the owner of the brand name or, pursuant to s. Section 526.51(1)(a), F.S., by an applicant providing an affidavit from the brand name owner authorizing applicant to make application for registration. Upon successful registration, pursuant to s. 526.51 Chapter 526, Part II, F.S., and this rule chapter, the department shall permit the brake fluid brand/formula combination authorizing the distribution of the specified brake fluid brand/formula combination in this state for the permit year.
(2) In order to be considered as a renewal and in addition to the requirements listed in s. Section 526.51, F.S., any brake fluid brand/formula combination previously registered for distribution in this state in the permit year immediately preceding the current permit year for which application is being made, must have all associated application materials submitted to the department by the applicant prior to July 1 of the upcoming permit year for which applicant is seeking registration. Application for renewal shall be made on FDACS-03213, Application for Renewal of Registration of Brake Fluid, Rev. 10/12, hereby incorporated by reference. Copies of this form may be accessed at http://www.flrules.org/Gateway/reference. If any one or more components of the application package and/or associated registration elements are received after July 1, a late fee of $25 shall be applied to the renewal fee. Upon successful renewal of registration, pursuant to s. 526.51 Chapter 526, Part II, F.S., and this rule chapter, the department shall permit the renewed brake fluid brand/formula combination authorizing the distribution of the specified brake fluid brand/formula combination in this state for the permit year.
(3) Any unregistered brand of brake fluid that was registered in the immediately preceding registration period and has not been or is not currently in the process of being renewed shall be disposed of by the registrant within 90 days of registration expiration. Disposal shall be the responsibility of the registrant and in a manner as prescribed below. If the product has been placed under stop sale order by the department, it must be released by the department prior to the execution of any disposal method. Acceptable disposal methods:
(a) 1. Removal of all unregistered brake fluid product from this state, not to be distributed again in this state until successful registration has been completed, or;
(b) 2. Donation of product to a non-profit organization for consumption so long as all donated product meets all specifications for quality, adulteration, and labeling for brake fluid products, as prescribed in s. Section 526.53, F.S., and this rule chapter or;.
3. Other means approved in writing by the deparetment.
Rulemaking Authority 526.53(4), 570.07(23) FS. Law Implemented 526.51, 526.52, 526.53, FS. History–New ______.
5F-6.003 Guidelines for Imposing Administrative Penalties
(1) This rule sets forth the guidelines the department will follow in imposing the penalties authorized under s. 526.55 Chapter 526, Part II, F.S. 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-year period. The three-year period shall be based on the date of issuance of the stop sale order. 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 $1,000 per violation for a first-time offender or $5,000 per violation for second-time or subsequent offender, or for a willful and intentional 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) through (4) No Change.
(5) No Change.
(a) 1. through 4. No Change.
5. The violation existed for more than one month an extended period of time.
6. The violation was repeated within one year a short period of time.
7. through 8. No Change.
9. Failure Undue delay in initiating or completing or failure to take affirmative or corrective action within 48 hours after receipt of the stop sale order for the violation.
10. through 13. No Change.
(b) No Change.
(6) through (7) No Change.
(8) Penalties.
(a) Minor Violations. A violation of Chapter 526, Part II, F.S., or this rule chapter 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 stop sale order. If a third stop sale order for a minor violation is issued to a business within a three year period a $500 penalty shall be issued and in accordance with s. Section 526.55, F.S., a $500 penalty shall be issued. An additional penalty of $500 shall be issued for each stop sale order issued for independent events thereafter. In addition, the department shall also revoke or suspend a registration for an unpaid fine and until such time that the fine has been paid. For the purposes of this rule, the following violations shall be considered minor violations:
1. Violations of s. Section 526.52(3)(a), F.S.
2. Violations of s. Section 526.52(3)(b), F.S.
3. Violations of s. Section 526.53(5), F.S.
(b) Major Violations. Any violation of Chapter 526, Part II, F.S., or this rule chapter that results in economic or physical harm to a person or adversely affects the public health, safety, or welfare or creates a significant threat of such harm shall be considered a major violation. Major violations shall result in the issuance of a stop sale order and imposition of an administrative fine of $500 per violation for first-time offenders of Chapter 526, Part II, F.S., and/or Rule Chapter 5F-6, F.A.C., within a three-year period. An additional $500 fine shall be issued for each subsequent violation thereafter within a three-year period not to exceed the statutory maximum of $5,000 per violation for second-time or repeat offenders of Chapter 526, Part II, F.S. and/or Rule Chapter 5F-6, F.A.C., not to exceed the statutory maximum of $5,000 per violation. Aggravating factors, as defined in paragraph (5)(a) of this section, shall warrant the adjustment of the fine upward from $250 to $2,500 per violation per aggravating factor and mitigating factors, as defined in paragraph (5)(b) of this section, shall warrant the adjustment of the fine downward from $250 to $2,500 per violation per mitigating factor, but no fine shall exceed the statutory maximum maxima as outlined in s. Section 526.55, F.S. If, three years after the day of issuance of the last stop sale order for a violation under this rule, no new violation has occurred pertaining to the specific brand/formula combination of brake fluid, all previous fines shall be disregarded when administering a fine for the next violation. Pursuant to Section 526.51, F.S., In addition, the department shall may also revoke cancel or suspend refuse to a registration for an unpaid fine and until such time that the fine has been paid a major violation. For the purposes of this rule, the following violations shall be considered major violations:
1. No Change.
2. Violations of subsection 5F-6.002(1), F.A.C. If a complete registration package has been received by the department within 30 calendar days from the date of the stop sale order, the fine shall be mitigated to a warning letter for a first time violation by a registrant if said registrant has never previously registered applicable products subject to this subsection in this state prior. Subsequent violations by same registrant for any brand/formula combination within a three-year period shall not be mitigated under these provisions.
3. No Change.
4. Violations of s. Section 526.52(3)(c), F.S.
(c) Willful Violations. Willful violations shall result in the imposition of an administrative fine of up to $5,000 per violation, and suspension of registration for a period of one year and/or additional penalties as prescribed by law. The following shall constitute a willful violation:
1. Any willful and intentional violation of Chapter 526, Part II, F.S., or this rule chapter or of any requirement or standard adopted pursuant thereto, not otherwise included in this section.
1.2. Any willful and intentional violation of a stop sale order or the conditions stipulated on a release.
2.3. Failure A failure to comply with either a Final Order or a Default Final Order of the department.
(9) Resolution of Violations, Settlement, and Additional Enforcement Remedies.
(a) The department and person(s) charged with a violation may agree to resolve violations prior to an administrative hearing or enter into settlement pursuant to s. Section 120.57(4), F.S. The penalties addressed in this rule chapter 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 526, Part II, F.S.
(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 may impose administrative fines in a Default Final Order equal to the maximum amount possible, not to exceed $5,000 per violation.
(c) No Change.
Rulemaking Authority 526.53(4), 570.07(23) FS. Law Implemented 526.55 FS. History–New______.
