(1) Section
580.051(5),
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 does not show
the word "Medicated" in the brand name.
(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.
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" FDACS 13255,
Rev. (05/19), which is hereby adopted and incorporated by reference in this
rule and is available online at
https://www.flrules.org/Gateway/reference.asp?No=Ref-11186.
(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 subsection
5E-3.003(4),
F.A.C., 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 $1, 000 per violation and suspension of the feed master
registration. As authorized in Section
580.111, F.S., a suspension will
incur a stop-sale of the products distributed by that registrant 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),
F.A.C., not to exceed $1, 000 per violation and a suspension of the feed master
registration. As authorized in Section 580.111, F.S., a suspension will incur a
stop-sale of the products distributed by that registrant 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 Rule
5E-3.020, 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 Rule
5E-3.020, 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.
(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
1 No animal, human or environmental effects identified,
2 Possibility, probability, or potential for harm existed,
or
3 Any harm to animals, humans or the environment.
B = Level of financial harm to the consumer that is created
by the violation
1 Unknown or under $1, 000,
2 $1, 000 or over and under $5, 000, or
3 $5, 000 or over.
2. WHETHER THE VIOLATION WAS COMMITTED
WILLFULLY
C = Whether the violation was committed willfully.
1 No evidence or insufficient evidence of willful intent by
the violator, or
3 Evidence of willful intent by the
violator.
3. COMPLIANCE
RECORD OF THE VIOLATOR
D = Compliance record of the violator
0 No prior actions
1 One prior action dissimilar to the current
violation.
2 Two or more prior actions dissimilar to current
violation.
3 Previous action for the same or similar violation or
previously fined for a different violation, or
4 Previous 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)
1 Very limited distribution, quantity or limited purchasers;
violation is limited to a single lot.
2 Distribution 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.
3 Distribution 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
4 Distribution is unlimited, potentially
nationwide.
Notes
Fla. Admin.
Code Ann. R. 5E-3.018
Rulemaking Authority 570.07(23), 580.036(2) FS. Law
Implemented 120.695, 570.971, 580.051, 580.065, 580.091, 580.111, 580.121,
580.131 FS.
New 3-4-87, Amended
3-31-93, 6-1-95, 11-14-01, Amended by
Florida
Register Volume 45, Number 191, October 1, 2019 effective
10/13/2019.
New 3-4-87, Amended 3-31-93, 6-1-95, 11-14-01,
10-13-19.
