The purpose and effect of this rulemaking is to adopt feed enforcement guidelines and penalty provisions in order to standardize enforcement responses to specific violations of Chapter 580, Florida Statutes (F.S.), and Chapter 5E-3, Florida ...

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Agricultural Environmental Services

RULE NO.:RULE TITLE:

5E-3.018Penalties

PURPOSE AND EFFECT: The purpose and effect of this rulemaking is to adopt feed enforcement guidelines and penalty provisions in order to standardize enforcement responses to specific violations of Chapter 580, Florida Statutes (F.S.), and Chapter 5E-3, Florida Administrative Code (F.A.C.); to clarify the process by which consumer feed penalties are satisfied; and to establish matrices to ensure the consistency of enforcement penalty determinations.

SUMMARY: The proposed rule will delineate minor rule violations as defined in Section 120.695 F.S., and establish a notice of noncompliance as the initial enforcement response to minor violations. The proposal will also clarify the process by which feed registrants must reimburse consumers for feed determined deficient by certified laboratory analyses, and will update the associated forms FDACS-13255 Notice of Deficiency Payment and FDACS-13256 Receipt of Deficiency Payment. Additionally, the proposed rule will enumerate standard enforcement responses for failure to comply with feed sampling/analysis and distribution reporting requirements as outlined in Rule 5E-3.003 and 5E-3.020, and establish enforcement matrices to ensure the consistency of monetary penalties issued in response to specific deficiencies involving sampling, reporting, or product safety.

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.

There are no regulatory impacts associated with implementing this rule, as the proposed changes will not create any new penalty or enforcement mechanisms and serve only to improve the consistency of enforcement responses to specific violations of Chapters 580, F.S. and 5E-3, F.A.C. Impacts to small businesses and other regulated entities will occur solely as a function of non-compliance and will not present any additional regulatory burden.

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: 570.07(23), 580.0236(2), 580.036(2) FS.

LAW IMPLEMENTED: 120.695, 570.971, 580.051, 580.065, 580.091, 580.111, 580.121, 580.131, 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: Sarah Oglesby, Chief, Bureau of Licensing and Enforcement, 3125 Conner Boulevard, Bldg. 8, Tallahassee, FL 32399; [phone]; [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

5E-3.018 Enforcement and Penalties.

(1) Section 580.051(4), F.S., authorizes the department to assess a penalty in the amount of $100 per violation against the violator for the distribution of commercial feed without labeling as required under Section 580.051(1), F.S. The assessment of a penalty shall be imposed where no labeling is furnished or where labeling of a feed product containing a drug or antibiotic does not show the word “Medicated” in the brand name. is improper according to the following guidelines:

(a) Net weight not shown;

(b) Registrant’s name and address not shown;

(c) Feed containing a drug or antibiotic not showing the word “Medicated” in the brand name;

(d) Mixed feeds containing more than 10% minerals, but less than 50% which do not show the required guarantees for calcium, phosphorus and salt as specified in subsection 5E-3.006(3), F.A.C.;

(e) Mixed feeds containing more than 50% minerals which do not show the required mineral guarantees as specified in subsection 5E-3.006(4), F.A.C.;

(f) Illegible labels;

(g) Feed containing bentonite or other non-nutritive ingredients not declaring the required percentages;

(h) Crude protein, crude fat or crude fiber not guaranteed to the closest one tenth percent or as minimum or maximum percentages as required.

(2) All penalties assessed under Section 580.131, F.S., must be paid to the consumer within 60 days from the date of notice by the department to the registrant.

(a) When payment has been made in full to the consumer, the registrant must notify the department in writing at the Florida Department of Agriculture and Consumer Services, Bureau of Licensing and Enforcement, 3125 Conner Boulevard, Building 8, Tallahassee, Florida 32399-1650 of the form of the payment using the form entitled “Notice of Deficiency Payment” (Form FDACS 13255, Rev. (05/19 8/01), which is hereby adopted and incorporated by reference in this rule and is available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-xxxx, and provide the department with a copy of a release of the registrant from liability for the payment on the form entitled, “Receipt of Deficiency Payment” FDACS 13256, (Rev. 05/19), which is hereby adopted and incorporated by reference in this rule and is available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-xxxxx. The release must be procured by the registrant from the consumer. This release shall be on the Receipt of Deficiency Payment (Form DACS-13256, Rev. 8/01).

(b) The following forms are hereby incorporated by reference. Copies may be obtained from the Florida Department of Agriculture and Consumer Services, Bureau of Compliance Monitoring, 3125 Conner Boulevard, Tallahassee, FL 32399-1650, [phone].

1. Notice of Deficiency Payment (Form DACS-13255, Rev. 8/01).

2. Receipt of Deficiency Payment (Form DACS-13256, Rev. 8/01).

(3) Sampling Penalties:

(a) Enforcement. Section 580.121(1), F.S., authorizes the department to impose an administrative penalty against any person who violates a provision of Chapter 580, F.S. or Chapter 5E-3, F.A.C. The following are requirements of sampling as outlined in Section 580.091, F.S. and Rule 5E-3.003, F.A.C., for which an administrative penalty will be imposed:

1. Failure to submit a minimum of one (1) sample by the end of the first quarter (September 30th) of each fiscal year as required by subsection 5E-3.003(4), F.A.C. will result in the issuance of a warning letter. Failure to submit a minimum of one (1) sample by the end of the first quarter for two consecutive years will result in an administrative fine in the amount of $250.00.

2. Failure to submit any samples for a given Fiscal Year (July 1 – June 30), including the first quarter sample as required in subparagraph 1. will result in a Stop-Sale as described in Section 580.111. F.S., and administrative fine as described in paragraph 5E-3.018(3)(b), F.A.C. The department shall release the commercial feed or feedstuff when the provisions and rules have been complied with and all adinistrative fines have peen paid in full.

3. Further refusal to submit samples for the second consecutive fiscal year will result in increased fines, as outlined in paragraph 5E-3.018(3)(b), F.A.C., not to exceed $1000 per violation and suspension of the feed master registration. As authorized in Section 578.12, F.S., a suspension will incur a stop-sale of the products distributed by that licensee until such a time that all provisions and rules have been complied with and all administrative fines have been paid in full.

4. Failure to meet all requirements of sampling as outlined in Rule 5E-3.003, F.A.C., including submission of any number of samples less than what is required under Rule 5E-3.003, F.A.C., for a consecutive three (3) year period will result in increased fines as outlined in paragraph 5E-3.018(3)(b), not to exceed $1,000 per violation and a suspension of the feed master registration. As authorized in Section 578.12, F.S., a suspension will incur a stop-sale of the products distributed by that licensee until such time that all provisions and rules have been complied with and all administrative fines have been paid in full.

5. Distribution of products while under suspension and/or failure to comply with a final order issued by the department  will result in revocation of the feed master registration.

(b) Sampling Fine Calculations.  The fine calculations for failure to perform the feed sampling requirements in Section 580.091(2), F.S. and subsection 5E-3.003(4), F.A.C., are determined by compliance history and the average estimated cost of the tests not performed:

First year of non-compliance              2.0 x the Cost of Tests not Performed = Fine Amount not to exceed $1000 per sample violation

 

Second consecutive year of non-compliance              4.0 x the Cost of Tests not Performed = Fine Amount not to exceed $1000 per sample violation

Third consecutive year of non-compliance              6.0 x the Cost of Tests not Performed = Fine Amount not to exceed $1000 per sample violation and suspension of feed master registration for up to 6 months.

 

The average estimated cost of each test is as follows:

1. Protein, Fat and Fiber (PFF) - $44.00

2. Aflatoxin - $41.00

3. Vomitoxin - $50.00

4. Fumonisin - $64.00

(4) Tonnage Reporting Enforcement. Section 580.121(1), F.S., authorizes the department to impose an administrative penalty against any person who violates a provision of Chapter 580, F.S., or Chapter 5E-3, F.A.C. The following are requirements of tonnage reporting as outlined in Section 580.041(1)(c)3., F.S. and Rule 5E-3.020, F.A.C., for which an administrative penalty will be imposed.

(a) Failure to submit tonnage reports as outlined in Rule 5E-3.020, F.A.C., within 30 days of the end of the first quarter will result in the issuance of a notice of non-compliance. Failure to submit a tonnage report within five (5) consecutive days after receipt of the notice of non-compliance shall result in the issuance of a warning letter.

(b) Failure to submit tonnage reports as outlined in paragraph 5E-3.018(4)(a), F.A.C., for two (2) quarters within a three (3) year compliance period, shall result in the issuance of an administrative fine in the amount of $250.

(c) Failure to submit tonnage reports as outlined in paragraph 5E-3.018(4)(a), F.A.C., for any three (3) quarters within a three (3) year compliance period, shall result in a Stop-Sale as described in Section 580.111, F.S., and the issuance of an administrative fine in the amount of $500. The Stop-Sale shall remain in effect until such a time that all administrative fines have been paid in full and delinquent tonnage has been submitted.

(d) Distribution of products while under Stop-Sale shall result in revocation of the feed master registration.

(5) Notice of Noncompliance. Any department investigation or inspection which reveals minor violations of this rule chapter in which the department determines that the violator was unaware of the rule or unclear as to how to comply with it will result in the issuance of a notice of noncompliance as the department’s first response to the minor violation. The following violations shall result in the issuance of a notice of noncompliance:

(a) Failure to comply with subsection 5E-3.018(2), F.A.C.

(b) Failure to comply with paragraphs 5E-3.003(3)(a)-(c), F.A.C.

(c) Failure to comply with subsection 5E-3.020(1), F.A.C.

(6) Warning Letters. After failure to comply with a notice of noncompliance, a warning letter shall be issued for any violations classified in this rule as minor violations. A warning letter may be issued for any first-time major violation.

(7) Major violations. Major violations are all violations other than those classified as minor violations.

(8) Fines. For major violations or repeat minor violations, the Department may issue a warning letter or impose an administrative fine not to exceed $1,000 per violation plus any other penalty allowed by the law including suspension or revocation of the feed master registration. When imposing a fine, the Department will consider the degree and extent of harm or potential harm, that was or could have been caused by the violation, whether the violation was committed willfully, the compliance history of the violator, and the scope of the violation.

(9) Fine Guide. FINE GUIDE = A(B+C+D+E)$50. This guide shall apply for each violation for which a fine is imposed with the exception of those violations addressed in subsections 5E-3.003(3) and (4), F.A.C., relating to feed sampling and tonnage reporting. The maximum fine is $1,000 per violation. The terms and values used in the fine guide calculation shall be:

1. DEGREE AND EXTENT OF HARM

A = Animal, Human and Environmental Hazards

1No animal, human or environmental effects identified,

2Possibility, probability, or potential for harm existed, or

3Any harm to animals, humans or the environment.

B = Level of financial harm to the consumer that is created by the violation

1Unknown or under $1000,

2$1000 or over and under $5000, or

3$5000 or over.

2. WHETHER THE VIOLATION WAS COMMITTED WILLFULLY

C = Whether the violation was committed willfully.

1No evidence or insufficient evidence of willful intent by the violator, or

3Evidence of willful intent by the violator.

3. COMPLIANCE RECORD OF THE VIOLATOR

D = Compliance record of the violator

0No prior actions

1One prior action dissimilar to the current violation.

2Two or more prior actions dissimilar to current violation.

3Previous action for the same or similar violation or previously fined for a different violation, or

4Previous action for the same or similar violation.

4. SCOPE OF THE VIOLATION

E = The scope of the violation and/or distribution of the violative product(s)

1Very limited distribution, quantity or limited purchasers; violation is limited to a single lot.

2Distribution is limited to a specific region of the state; violations are limited to one or two products; quantity of product distributed is small (<50 ton distributed); small number of animals effected.

3Distribution is statewide and/or impacts other states; violations are seen in multiple products across multiple lots; quantity of products distributed is large (>50 tons effected), or

4Distribution is unlimited, potentially nationwide.

Rulemaking Authority 101, 570.07(23), 580.0236(2), 580.036(2) FS. Law Implemented 120.695, 570.971, 580.051, 580.065, 580.091, 580.111, 580.121, 580.131 FS. History–New 3-4-87, Amended 3-31-93, 6-1-95, 11-14-01, _____________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Kelly Friend, Director, Division of Agricultural Environmental Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture, Nicole “Nikki” Fried

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: June 14, 2019

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 18, 2019, Issue: 45/118