Or. Admin. Code § 603-057-0531 - Civil Penalty For A Violation Not Resulting From Gross Negligence or Willful Misconduct on or after January 1, 2016; Formula for Amount
(1) When the
Director determines that the violation did not result from gross negligence or
willful misconduct, and if the violation occurred on or after January 1, 2016,
the Director will determine the amount of the civil penalty using this section.
To determine the amount of the civil penalty, calculate it utilizing the
formula: NB + [(.1 x NB) x (P + H + R + C)] = Penalty Amount where:
(a) N = the number of times, within a period
of three years prior to and including the date of the current violative act,
that the person has been determined by the Director to have committed that
violative act;
(b) B = the base
penalty determined using the following matrix: [Matrix not included. See ED.
NOTE.]
(A) The Magnitude of Violation is
determined according to OAR 603-057-0525(2).
(B) The Gravity of Effect is determined
according to OAR 603-057-0525(3).
(c) P = past occurrence of unrelated
violations under ORS Chapter 634 for a period of three years prior to the date
of the current violative act. P will be weighted from O to 6 in the following
manner:
(A) O = no prior violation or
insufficient evidence on which to base a finding;
(B) 1 = past occurrence of an unrelated
Category III violation;
(C) 2 =
past occurrence of an unrelated Category II violation or two unrelated Category
III violations;
(D) 3 = past
occurrence of an unrelated Category I violation, two unrelated Category II
violations or three unrelated Category III violations;
(E) 4 = past occurrence of two unrelated
Category I violations, three unrelated Category II violations or four unrelated
Category III violations;
(F) 5 =
past occurrence of three unrelated Category I violations, four unrelated
Category II violations, or five or more unrelated Category III
violations;
(G) 6 = past occurrence
of three or more unrelated Category I violations or five or more unrelated
Category II violations.
(d) H = History of the person in taking all
feasible steps or procedures necessary or appropriate to correct a violative
action. H will be weighted from -2 to 2 in the following way:
(A) -2 = the person took all feasible steps
or procedures to correct any prior violations;
(B) O = there is no prior history or
insufficient information on which to base a finding;
(C) 1 = the person took some, but not all
feasible steps or procedures to correct prior violations;
(D) 2 = the person took no action to correct
prior violations.
(e) R
= preventability of violation. R will be weighted from -2 to 7 in the following
way:
(A) -2 = the person's actions determined
to be violative were unavoidable;
(B) O = information is insufficient to make
any finding;
(C) 3 = the person's
actions determined to be violative were reasonably avoidable;
(D) 7 = the person's actions were
flagrant.
(f) C =
cooperativeness on the part of the person to assist the department in its
investigation and to the extent possible, rectify the violation. C will be
weighted from -2 to 2 in the following way:
(A) -2 = the person is cooperative;
(B) -1 = the person provides limited
cooperation;
(C) O = the person is
neither cooperative nor uncooperative;
(D) 1 = the person is generally
uncooperative;
(E) 2 = the person
is uncooperative.
(2) If the calculation utilizing the formula
in this section results in an amount more than $2,000 for a first violation of
any provision of ORS 634, the Director shall assess a civil penalty of $2,000.
If the calculation utilizing the formula in this section results in an amount
more than $4,000 for any subsequent violation of the same provision of ORS 634,
the Director shall assess a penalty of $4,000. In addition, the Director may
consider this adjustment if the Director remits or reduces the amount as
provided in ORS 634.910 or OAR
603-057-0502(6).
Notes
Matrix referenced is available from the agency.
Statutory/Other Authority: ORS 634; 2015 HB 3549, 2015 HB 5002 & 2015 SB 5507
Statutes/Other Implemented: ORS 634; 2015 HB 3549, 2015 HB 5002 & 2015 SB 5507
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