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Oregon Bulletin

March 1, 2013

Department of Agriculture, Chapter 603

Rule Caption: Designates and explains general production and restricted districts for Brassica spp. (includes rapeseed/canola) production.

Adm. Order No.: DOA 1-2013

Filed with Sec. of State: 2-6-2013

Certified to be Effective: 2-6-13

Notice Publication Date: 1-1-2013

Rules Adopted: 603-052-0861, 603-052-0862, 603-052-0882, 603-052-0884, 603-052-0886, 603-052-0888, 603-052-0901, 603-052-0921

Rules Amended: 603-052-0860, 603-052-0870, 603-052-0880

Rules Repealed: 603-052-0850, 603-052-0852

Subject: These rules define control areas for Brassica spp. including rapeseed and provide regulations that will be applicable to the seeding and growing of rapeseed for any purpose in a general production area and protected districts. The rules are designed to recognize a farmers’ right to grow their choice of product while balancing potential conflicts that may emerge with other producers because of cross-pollination, disease, pests, and volunteer plants. The rules designate areas of Oregon that will be classified as protected districts and Brassica spp. production will be restricted by rules that are specific to each protected district. All land not in a protected district will be regulated as general production area. Oregon has designated four protected districts.

 Within the Willamette Valley Protected District best management practices apply to all Brassica spp. except for vegetable brassicas grown as a vegetable crop. Within the Willamette Valley Protected District, the Department has described a Rapeseed Exclusion Zone in which growing rapeseed is prohibited. Rapeseed production is allowed within the Willamette Valley Protected District only outside of the Rapeseed Exclusion Zone and then only up to a combined cumulative total acreage cap of 2,500 acres per production year. In addition, rapeseed may only be grown pursuant to a rapeseed production contract with the Oregon Department of Agriculture (ODA).

 The Central Oregon Protected District consists of Crook, Deschutes, and Jefferson counties. Rapeseed production will require a research permit. Rapeseed fields must be isolated by at least three miles, and the location must be recorded at the appropriate Oregon State University County Extension office. Farming practices must manage plant disease, pests, and volunteer plants.

 The Northeast Oregon Protected District consists of Baker, Union, and Wallowa counties, except for the following part of Wallowa County, which is designated as a general production area: Township 4N, Range 43E; Township 4N Range 44E; Township 4N, Range 45E; Township 5N, Range 43E; Township 5N, Range 44E; and Township 5N, Range 45E; and the portions of Township 6N, Range 43E; Township 6N, Range 44E; and Township 6N, Range 45E that are located within Oregon’s borders. Rapeseed production is allowed, but is subject to certain requirements. The required isolation distance will be at least two miles, and all fields must be recorded at the appropriate Oregon State University County Extension Office. Farming practices must manage plant disease, pests, and volunteer plants.

 The Malheur/Idaho Protected District consists of a three-mile wide strip of land along the Idaho border from the point where Payette County, Idaho’s northern border intersects Malheur County’s eastern border, south to the point where Highway 95 crosses the Oregon border. Rapeseed is prohibited in the Malheur/Idaho Protected District.

 Production contracts for rapeseed production in the Willamette Valley Protected District may be entered into with ODA. Variances in the Willamette Valley Protected District may be obtained from ODA. Research permits may be issued by ODA if an accredited university is involved. ODA will maintain specified records of rapeseed fields. ODA has the authority to seek injunctive relief and seek summary destruction of any Brassica spp. that violates any rules or the terms of a production contract, variance, or research permit.

Rules Coordinator: Sue Gooch—(503) 986-4583

603-052-0860

Rapeseed Control Areas

As provided in ORS 570.405 and 570.450, the Oregon Department of Agriculture may establish control areas for Brassica spp. including rapeseed, for the general protection of the horticultural, agricultural or forest industries of Oregon by excluding from established control areas Brassica spp. or rapeseed plants that if, not managed in accordance with these rules, may be a menace to such areas and generally to horticultural, agricultural or forest industries. The Department may also establish the conditions for the production of Brassica spp. and rapeseed in control areas so as to protect against plant diseases, plant pests or other conditions as may constitute a menace to the horticultural, agricultural or forest industries of Oregon.

Stat. Auth.: ORS 561.190 & 570.450
Stats. Implemented: ORS 561.190, 561.510 - 561.600, 570.305, 570.405, 570.410 - 570.415 & 570.450
Hist.: AD 19-1990, f. & cert. ef. 10-15-90; AD 7-1991(Temp), f. & cert. ef. 7-22-91; AD 19-1991, f. & cert. ef. 12-5-91; DOA 18-2005, f. & cert. ef. 10-28-05; DOA 14-2009, f. & cert. ef. 9-16-09; DOA 3-2010, f. & cert. ef. 1-21-10; DOA 24-2012(Temp), f. & cert. ef. 8-10-12 thru 1-31-13; DOA 1-2013, f. & cert. ef. 2-6-13

603-052-0861

General Production Area/Protected Districts

The seeding and growing of rapeseed by any person for any purpose in the state of Oregon shall be subject to the regulations of either the general production area or a protected district as described in these rules.

Stat. Auth.: ORS 561.190, 561.510–561.600, 570.305, 570.405. 570.410–570.415 & 570.450
Stats. Implemented: ORS 570.405–570.415 & 570.450
Hist.: DOA 1-2013, f. & cert. ef. 2-6-13

603-052-0862

Definitions

Unless the context requires otherwise, the following terms are defined as indicated:

(1) “Brassica spp.” means any plants in the genus Brassica.

(2) “Cover crop brassica” means any species of brassica that is grown as a cover crop and is not allowed to flower.

(3) “Department” means the department of agriculture of the state of Oregon.

(4) “Director” means the director of the department or the Director’s duly authorized representative.

(5) “Forage brassica” means any species of brassica that is grown for animal/livestock feed and is not allowed to flower.

(6) “Person” means an individual, firm, partnership, corporation, company, society, association, cooperative, two or more persons having a joint or common interest, or any unit or agency of local, state, or federal government.

(7) “Producer” means any person who is the owner, tenant, or operator of land who has an interest in, and is entitled to receive all or any part of the proceeds from the sale of any commodity produced on that land.

(8) “Production Year” means the year in which the rapeseed crop is harvested.

(9) “Rapeseed “ means plants of the species Brassica napus, Brassica rapa, Brassica juncea, or other brassica species grown for the purpose of edible or industrial oil production. Canola is a marketing term for some rapeseed crops and is included in this definition.

(10) “Vegetable Brassica spp.” includes crops where the primary use is as a vegetable crop or as seed stock for planting. Species and common names for crops included in this category are Brassica napus (rutabaga, Siberian kale), B. rapa (turnip, turnip rapa, forage turnip, Napa or Chinese cabbage, Chinese flat cabbage, pak choi, pe-tsai, mizuna or mibuna, tendergreen mustard, and broccoli raab), B. juncea (Chinese mustard), B. oleracea (kale, collards, Chinese kale or Chinese broccoli or gai lan or kalian, cauliflower and heading broccoli, cabbage, brussel sprouts, kohl rabi and sprouting broccoli or calabrese) and B. carinata (Ethiopian mustard).

(11) “Field” For the purpose of this rule a field may include one or more contiguous plots of land managed as a single unit. These plots may be separated by an unimproved farm road, ditch or hedgerow.

Stat. Auth.: ORS 561.190, 561.510–561.600, 570.305, 570.405. 570.410–570.415 & 570.450
Stats. Implemented: ORS 570.405–570.415 & 570.450
Hist.: DOA 1-2013, f. & cert. ef. 2-6-13

603-052-0870

General Production Area

All lands in Oregon outside of protected districts constitute the General Production Area. Rapeseed production in the General Production Area is subject to the following best management practices:

(1) All rapeseed, cover crop brassica, and forage brassica seed stock that trades in commerce in the General Production Area must be accompanied by an official test stating that the untreated seed is free from blackleg (Leptosphaeria maculans); and

(2) All rapeseed, cover crop brassica, and forage brassica seed stock must also be treated prior to planting with a fungicide or treatment method approved for blackleg control.

(3) To prevent buildup of blackleg, blackrot, and other diseases and pests, oilseed or vegetable brassicas may not be grown on the same plot of land more than two years in every five.

(4) Brassica spp. crops grown in the General Production Area but transported into or through protected districts are subject to the transport requirements of the protected district through which the oilseed Brassica is transported.

Stat. Auth.: ORS 561.190 & 570.450
Stats. Implemented: ORS 561.190, 561.510 - 561.600, 570.305, 570.405, 570.410 - 570.415 & 570.450
Hist.: AD 19-1990, f. & cert. ef. 10-15-90; AD 7-1991(Temp), f. & cert. ef. 7-22-91; DOA 18-2005, f. & cert. ef. 10-28-05; DOA 14-2009, f. & cert. ef. 9-16-09; DOA 24-2012(Temp), f. & cert. ef. 8-10-12 thru 1-31-13; DOA 1-2013, f. & cert. ef. 2-6-13

603-052-0880

Protected Districts; Prohibitions

(1) Production of Brassica spp. seed crops requires special care and isolation. Brassica spp. may be grown within the following protected districts only in accordance with those rules governing each protected district. The following are protected districts:

(a) Willamette Valley Protected District;

(b) Central Oregon Protected District;

(c) Northeast Oregon Protected District;

(d) Malheur/Idaho Protected District.

(2) No person shall violate any provision of those rules governing each protected district.

Stat. Auth.: ORS 561.190, 561.510–561.600, 570.305, 570.405. 570.410–570.415 & 570.450
Stats. Implemented: ORS 570.405–570.415 & 570.450
Hist.: AD 19-1990, f. & cert. ef. 10-15-90; AD 7-1991(Temp), f. & cert. ef. 7-22-91; AD 19-1991, f. & cert. ef. 12-5-91; DOA 18-2005, f. & cert. ef. 10-28-05; DOA 1-2008, f. & cert. ef. 1-7-08; DOA 14-2009, f. & cert. ef. 9-16-09; DOA 3-2010, f. & cert. ef. 1-21-10; DOA 24-2012(Temp), f. & cert. ef. 8-10-12 thru 1-31-13; DOA 1-2013, f. & cert. ef. 2-6-13

603-052-0882

Willamette Valley Protected District

(1) The following area is designated as the Willamette Valley Protected Area: the area encompassed by a rectangle beginning at the northwest corner of Township 1N, Range 6W and proceeding east to the northeast corner of Township 1N, Range 2E, then south to the southeast corner of Township 19S, Range 2E, then west to the southwest corner of Township 19S, Range 6W, then north to the point of beginning. The Willamette Valley protected district boundaries were formed by giving consideration to the area historically pinned for Brassica spp. production (1995-2009) including a 3-mile wide buffer. This forms the rectangular shaped outer boundaries. See Figure 1.

(a) Rapeseed Exclusion Zone. The boundary of the Rapeseed Exclusion Zone is based upon consideration of the Willamette Valley Specialty Seed Association’s pinning history for Brassica spp. seed production, recognizes the predominant historic footprint of Brassica spp. seed production between 1995 and 2012, and is identified by the solid purple area within the Willamette Valley Protected District. (See Figure 1.)

(2) Best Management Practices for All Brassica spp. The following best management practices apply to all Brassica spp. grown in the Willamette Valley Protected District except for Vegetable Brassicas grown as a vegetable crop:

(a) To prevent buildup of blackleg, blackrot, and other diseases and pests, Brassica spp. seed crops may not be grown on the same plot of land in two consecutive years and not more than two years in every five years;

(b) All Brassica spp. seed stock that trades in commerce in the protected district must be accompanied by an official test stating that the untreated seed was free from blackleg (Leptosphaeria maculans). In addition, after the official test, but prior to planting, the seed must be treated with a fungicide or treatment method approved for blackleg control (e.g. hot water);

(c) Cover crop and forage brassicas may be grown in the protected district provided these crops are not allowed to flower;

(d) All planting, harvest, and transportation equipment shall be cleaned to prevent any inadvertant spread of Brassica spp. from the field;

(e) Brassica producers shall be responsible for the removal of any inadvertent spread of seed or volunteer plants of Brassica spp. within a quarter mile of any plot of land utilized for Brassica spp. production during the year of production and the subsequent year. These plants must be controlled by the Brassica producer as soon as feasible prior to flowering or prior to April 15, whichever occurs first, and;

(f) All transport and handling of Brassica spp. within, into, or through the Willamette Valley Protected District shall be accomplished in suitably packaged, covered or sealed containers or vehicles to prevent the inadvertent spread of seed or production of volunteer plants and shall be limited to the following highways and the most direct routes to these highways: Interstate 5 and Highways 20, 22, 26, 27, 34, 47, 84, or 99.

(3) Additional Requirements for Production of Rapeseed. In addition to the requirements for growing and transporting Brassica spp., as specified in OAR 603-052-0882(2), any person seeking to grow rapeseed in the Willamette Valley Protected District must identify field locations for the growth of rapeseed outise of the the Rapeseed Exclusion Zone and must obtain a Rapeseed Protected District Contract, a Research Permit, or a Variance from the Department.

(a) Rapeseed Exclusion Zone. No rapeseed may be grown within the Rapeseed Exclusion Zone described in OAR 603-02-0882 (1)(a.). Rapeseed is prohibited in this zone: See solid purple area on Figure 1.

(b) Rapeseed Protected District Contract. Any person seeking to grow rapeseed within the Willamette Valley Protected District but outside the Rapeseed Exclusion Zone must first enter into a Rapeseed Protected District Contract with the Department.

(c) Cap on Acreage. The total acreage of rapeseed in the Willamette Valley Protected District is limited to a maximum of 2,500 acres per production year. A minimum field size of 25 acres is required for the production of rapeseed.

(d) Allocation of Acres. For each production year, the Department will allocate acreages based on the number of acres requested. In the event that the combined cumulative total of requested acres exceeds the acreage cap of 2,500 acres, the Department will allocate acreage on a pro-rata basis consistent with the 25 acre field size minimum.

(4) Rapeseed Protected District Contract and Contract Terms. Any person seeking to grow rapeseed within the Willamette Valley Protected District must, before planting, enter into a Rapeseed Protected District Contract with the Department.

(a) Applications for a Rapeseed Protected District Contract must be in writing and directed to the Department’s Plant Program Area.

(b) Any person applying for a Rapeseed Protected District Contract to grow rapeseed in the Willamette Valley Protected District must specify the location of those acres proposed for growing rapeseed.

(c) The Department will award contracts for planting by September 1 of each year for requests received on or before July 15 close of business.

(d) Each contract will describe the responsibilities and obligations of the producer.

(e) Contract terms may include but are not be limited to the following elements: disease and pest prevention requirements; planting, production, and transportation requirements; post-harvest management; volunteer prevention; cross-pollination prevention; approved production acreage; fees; spring vs. fall planting; duration of the contract; and prohibitions.

(f) Persons entering into a Rapeseed Protected District Contract with the Department are subject to a contract fee to cover the cost of enforcing or carrying out the Brassica spp. control area rules for the growth of rapeseed in the protected district pursuant to the Department’s authority in ORS 570.412. The contract fee shall be established on a cost recovery basis and include the cost of processing applications for a Rapeseed Protected District Contract and monitoring rapeseed production within a protected district.

(5) Variances. At the request of any person seeking to grow rapeseed in the Willamette Valley Protected District, the Department may, after consultation with the Willamette Valley Specialty Seed Association, Specialty Seed Growers Association, Willamette Valley Oil Seed Growers Association, Oregon Clover Commission, and the Oregon Fresh Market Growers Association (OFMGA), grant a temporary one-year variance to the acreage cap provided only that the following factors are present:

(a) The acres proposed for a variance are located near the edges of the protected district and in such location as no other crops would be displaced or adversely affected by granting of a variance.

(b) If granted, a one-year variance is not subject to the acreage cap within the Willamette Valley Protected District.

(c) Growers receiving a variance must also enter into a Rapeseed Production Contract with the Department and pay all applicable fees as specified in the contract.

Stat. Auth.: ORS 561.190, 561.510–561.600, 570.305, 570.405. 570.410–570.415 & 570.450
Stats. Implemented: ORS 570.405–570.415 & 570.450
Hist.: DOA 1-2013, f. & cert. ef. 2-6-13

603-052-0884

Central Oregon Protected District

(1) The following area is designated as the Central Oregon Protected Area: the entire counties of Crook, Deschutes and Jefferson.

(2) Forage and cover crop rapeseed may be grown but shall not be allowed to flower.

(3) Rapeseed seed crops are prohibited in the Central Oregon Protected District except under Research Permit (see 603-052-0901(1)). All rapeseed grown under research permit must meet the following conditions:

(a) Within the Central Oregon Protected District the required isolation distance shall be not less than three miles;

(b) The location of all rapeseed fields must be recorded at the appropriate Oregon State University County Extension Office at least ten days prior to planting;

(c) To prevent buildup of blackleg, blackrot, and other diseases and pests rapeseed may not be grown on the same plot of land of land in two consecutive years and not more than two years in every five years;

(d) Rapeseed seed stock that trades in commerce in the protected district must be accompanied by an official test stating that the untreated seed was free from blackleg (Leptosphaeria maculans); the seed must also be treated (after the official test) prior to planting with a fungicide or treatment method approved for blackleg control;

(e) All planting, harvest, and transportation equipment shall be cleaned to prevent any inadvertant spread of rapeseed from the field;

(f) All unbagged loads of rapeseed transported within the protected district must be in enclosed bins or in containers lined and covered in a manner to prevent seed loss; and

(g) Any volunteer or uncontrolled rapeseed in or around production fields must be prevented from flowering by the producer.

Stat. Auth.: ORS 561.190, 561.510–561.600, 570.305, 570.405. 570.410–570.415 & 570.450
Stats. Implemented: ORS 570.405–570.415 & 570.450
Hist.: DOA 1-2013, f. & cert. ef. 2-6-13

603-052-0886

Northeast Oregon Protected District

(1) The following area is designated as the Northeast Oregon Protected District: the entire counties of Baker, Union and Wallowa, except the following part of Wallowa County which is designated as a general production area: Township 4N, Range 43E; Township 4N, Range 44E; Township 4N, Range 45E; Township 5N, Range 43E; Township 5N, Range 44E; and Township 5N, Range 45E; and those portions of Township 6N, Range 43E; Township 6N, Range 44E; and Township 6N, Range 45E falling within the State of Oregon.

(2) Forage and cover crop rapeseed may be grown but shall not be allowed to flower.

(3) Rapeseed seed crops are allowed in the Northeast Oregon Protected District subject to the following requirements:

(a) Within the Northeast Oregon Protected District the required isolation distance from any crops with which it could cross pollinate shall be not less than two miles;

(b) The location of all rapeseed fields must be recorded at the appropriate Oregon State University County Extension Office at least ten days prior to planting;

(c) To prevent buildup of blackleg, blackrot, and other diseases and pests rapeseed may not be grown on the same plot of land in two consecutive years and not more than two years in every five years;

(d) Rapeseed seed stock that trades in commerce in the protected district must be accompanied by an official test stating that the untreated seed was free from blackleg (Leptosphaeria maculans). After the official test, the seed must also be treated prior to planting with a fungicide or treatment method approved for blackleg control;

(e) All planting, harvest, and transportation equipment shall be cleaned to prevent any inadvertent spread of rapeseed from the field;

(f) All unbagged loads of rapeseed transported through or within the protected district must be in enclosed bins or in containers lined and covered in a manner to prevent seed loss; and

(g) Any volunteer or uncontrolled rapeseed in or around production fields must be prevented from flowering by the producer.

Stat. Auth.: ORS 561.190, 561.510–561.600, 570.305, 570.405. 570.410–570.415 & 570.450
Stats. Implemented: ORS 570.405–570.415 & 570.450
Hist.: DOA 1-2013, f. & cert. ef. 2-6-13

603-052-0888

Malheur/Idaho Protected District

(1) The following area is designated as the Malheur/Idaho Protected District: in Malheur County, a 3-mile wide strip of land along the Idaho border from the point where Payette County, Idaho’s northern border intersects Malheur County’s eastern border, south to the point where Highway 95 crosses the Oregon border. This strip of land borders Idaho’s rapeseed production district IV (IDAPA 02.06.13) where rapeseed production is prohibited. The rest of Malheur Co. is a general production area.

(2) Forage and cover crop rapeseed may be grown but shall not be allowed to flower.

(3) Rapeseed seed crops are prohibited in the Malheur/Idaho Protected District.

Stat. Auth.: ORS 561.190, 561.510–561.600, 570.305, 570.405. 570.410–570.415 & 570.450
Stats. Implemented: ORS 570.405–570.415 & 570.450
Hist.: DOA 1-2013, f. & cert. ef. 2-6-13

603-052-0901

Research, Summary, Changes

(1) Research Permits. The Department may issue research permits in any protected district providing exemptions to the rapeseed control area rules for the purpose of research. Research plots under permit are not subject to the acreage cap within the Willamette Valley Protected District. Persons requesting a research permit shall petition the Department in writing and include the following:

(a) Research must include the involvement of an accredited university;

(b) All applicable conditions of rapeseed production must be met including pinning of fields;

(c) The Director retains the final authority to approve or deny research permit requests. Any action under a research permit shall be subject to any conditions or restrictions set forth in the permit, and these conditions and restrictions may vary depending on the proposed action and its potential risk.

(2) Summary. The Department will maintain a summary of rapeseed fields produced under contract or research permit with the Department including locations of acres planted, number of acres planted, dates planted, and contact persons.

(3) Changes to Rapeseed Control Area Rules. Interested persons may petition the Department to amend or repeal these rules, including designation changes creating or removing protected district status, by following the procedures in the Administrative Procedures Act, ORS 183.390.

Stat. Auth.: ORS 561.190, 561.510–561.600, 570.305, 570.405. 570.410–570.415 & 570.450
Stats. Implemented: ORS 570.405–570.415 & 570.450
Hist.: DOA 1-2013, f. & cert. ef. 2-6-13

603-052-0921

Violations

(1) No person shall violate any control area rule or any Rapeseed Production Contract term governing the production of rapeseed in Oregon.

(2) Consistent with ORS 561.280 and ORS 570.405 and in addition to any other lawful remedy, the Director may bring an action to enjoin the violation or threatened violation of any provision of ORS 570.405 and ORS 570.450 or its rules, or violation of any Rapeseed Production Contract entered into by an applicant and the department. Such action may be filed in the circuit court of Marion County or in the county in which the violation or threatened violation occurs or is about to occur. Consistent with applicable law, the relief requested may include, but is not limited to, an order for summary destruction of any rapeseed crop.

(3) Notice of Noncompliance and Plan of Correction. In addition to, or in lieu of, any action to enjoin enforcement of the terms of a Rapeseed Production Contract, the Director may issue a Notice of Noncompliance and Plan of Correction to any person.

(a) A Notice of Noncompliance informs the person to whom the notice is directed of the violation, including a reference to the particular statute, administrative rules or contract term involved, and the location of the violation;

(b) A Plan of Correction directs the person to whom the plan of correction is directed to perform those actions necessary to comply with the particular statute, administrative rules or contract terms involved;

(A) Specifies a reasonable period of time by which compliance is to be achieved not to exceed five (5) calendar days after the notice is received;

(B) May include requirements for the person to whom the plan of correction is directed to report the completion of specific actions;

(c) A Notice of Noncompliance and Plan of Correction is issued by the Director, is an order other than contested case for purposes of judicial review, and must be served personally or by registered or certified mail.

(d) Failure to perform any of the requirements of a Plan of Correction may be considered by the Director as a failure to correct the violation within the period of time set for correction by the Director in the Notice of Noncompliance and Plan of Correction and may result in any lawful enforcement including, but not limited to, those remedies described in subsection (2) of this section.

Stat. Auth.: ORS 561.190, 561.510–561.600, 570.305, 570.405. 570.410–570.415 & 570.450
Stats. Implemented: ORS 570.405–570.415 & 570.450
Hist.: DOA 1-2013, f. & cert. ef. 2-6-13


 

Rule Caption: Establishes schedule of civil penalties for violations of various food safety laws and rules.

Adm. Order No.: DOA 2-2013

Filed with Sec. of State: 2-7-2013

Certified to be Effective: 2-7-13

Notice Publication Date: 11-1-2012

Rules Adopted: 603-013-0905, 603-013-0910, 603-013-0920, 603-013-0932, 603-017-0900, 603-017-0910, 603-017-0920, 603-017-0930, 603-021-0900, 603-021-0910, 603-021-0920, 603-021-0930, 603-022-0900, 603-022-0910, 603-022-0920, 603-022-0930, 603-024-0900, 603-024-0910, 603-024-0920, 603-024-0930, 603-025-0900, 603-025-0910, 603-025-0920, 603-025-0930, 603-028-0900, 603-028-0910, 603-028-0920, 603-028-0930, 603-100-0900, 603-100-0910, 603-100-0920, 603-100-0930

Subject: The rules create schedules of civil penalties that the Department of agriculture may impose when a person fails to comply with statutes or rules relating to various food safety issues. Civil penalty schedules are added to OAR Chapter 603, Divisions 13 (Slaughtering Establishments), 17 (Refrigerated Lockers), 21 (Bakeries and Nonalcoholic Beverages), 22 (Eggs), 24 (Definitions and Standards of Identity, Labeling and Other Regulations Relating to Fluid Milk and Dairy Products, 25 (Food Establishment Standards and Standards for Retail Service, 28 (Meat Products and Establishments) and 100 (Shellfish Sanitation). Penalties imposed will comply with ORS 183.745, except that any written application for a hearing must be received by the Department no later than 10 days after notice of a penalty. No penalty may exceed $10,000. Penalties are based on a monetary range that increases with the risk to public health, or in situations that make regulatory oversight impossible for the Department. To determine penalty amounts the Department will consider the gravity of the violation, past violations, and other mitigating circumstances.

Rules Coordinator: Sue Gooch—(503) 986-4583

603-013-0905

Purpose

The Oregon Department of Agriculture Food Safety Program licenses and inspects all facets of Oregon’s food distribution system, except restaurants, to ensure food is safe for consumption. Education and technical assistance are vital to the prevention, correction, and abatement of food safety violations, and are preferred over regulatory action. However, regulatory action may be necessary to deter violations of food safety laws and rules, to educate persons about the consequences of such violations, and to compel compliance with food safety laws for the protection of consumers. The Department intends to initiate civil penalty actions when educational measures, technical assistance, warning letters, compliance agreements or other remedial measures fail to achieve compliance.

Stat. Auth.: ORS 561.190, 603.995 & 619.996
Stats. Implemented: ORS 603.995 & 619.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-013-0910

Definitions

As used in OAR 603-013-0920 through 603-100-0930, unless otherwise required by the context, the following terms will be construed to mean:

(1) “Department” means the Oregon Department of Agriculture.

(2) “Interference” means hindering or impeding an activity or process, which includes, but is not limited to any harassment, unreasonable delay, threat, concealment, deceit, or obstruction.

(3) “Major,” with respect to violations, means an incident, or series of incidents that cause a reasonable probability that serious adverse health consequences or death will occur.

(4) “Minor,” with respect to violations, means an incident, or series of incidents that are not likely to cause adverse health consequences.

(5) “Moderate,” with respect to violations, means an incident, or series of incidents that may cause temporary or medically reversible adverse health consequences, or where the probability of serious adverse health consequences is remote.

(6) “Repeat violation” means the recurrence of the same violation for each 24-hour period after a notice of noncompliance or assessment of civil penalty was issued within the preceding three years. It does not include a violation if the previous notice is the subject of a pending appeal or if the notice has been withdrawn or successfully appealed.

(7) “Same,” with respect to violations, means an identical recurrence, exact repetition, or a continuation of a previous violation.

(8) “Violation” means the failure to comply with any requirement of ORS Chapter 603 or 619 or any rule adopted thereunder.

Stat. Auth.: ORS 561.190, 603.995 & 619.996
Stats. Implemented: ORS 603.995 & 619.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-013-0920

Schedule of Civil Penalties

(1) Operating an animal food slaughtering establishment or processing establishment without first obtaining a license therfor from the Department as required in ORS 619.031. Penalty — $5,000 to $10,000.

(2) Violation of ORS 619.031(7) by a person licensed under ORS 619.031(1)–(5). Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000;

(c) Major — $7,000 to $10,000.

Stat. Auth.: ORS 561.190, 603.995 & 619.996
Stats. Implemented: ORS 603.995 & 619.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-013-0932

Penalty factors; procedure

(1) In imposing a penalty pursuant to OAR 603-013-0910, the Department shall consider the following factors, which are listed in prioritized order:

(a) The immediacy and extent to which the violation threatens the public health or safety.

(b) Any prior violations of statutes, rules or orders pertaining to meat or meat related activities.

(c) The past history of the person incurring the penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation.

(d) The economic and financial conditions of the person incurring the penalty, including any financial gains resulting from the violation.

(2) Each 24-hour period a violation continues after the period of time established for compliance will be considered a separate violation unless the Department finds a different period of time is more appropriate to describe the specific violation event.

(3) Repeat violations of OAR 603-013-0910 will be assessed as three times the penalty amount in OAR 603-013-0910, not to exceed $10,000.

(4) A civil penalty imposed under this rule will comply with ORS 183.745, except that the written application for a hearing must be received by the Department no later than 10 days after the mailing or personal service of the notice of civil penalty.

Stat. Auth.: ORS 561.190, 603.995 & 619.996
Stats. Implemented: ORS 603.995 & 619.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-017-0900

Purpose

The Oregon Department of Agriculture Food Safety Program licenses and inspects all facets of Oregon’s food distribution system, except restaurants, to ensure food is safe for consumption. Education and technical assistance are vital to the prevention, correction, and abatement of food safety violations, and are preferred over regulatory action. However, regulatory action may be necessary to deter violations of food safety laws and rules, to educate persons about the consequences of such violations, and to compel compliance with food safety laws for the protection of consumers. The Department intends to initiate civil penalty actions when educational measures, technical assistance, warning letters, compliance agreements or other remedial measures fail to achieve compliance.

Stat. Auth.: ORS 561.190, 628.350, 628.995
Stats. Implemented: ORS 628.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-017-0910

Definitions

As used in OAR 603-017-0920 through 603-017-0930, unless otherwise required by the context, the following terms will be construed to mean:

(1) “Department” means the Oregon Department of Agriculture.

(2) “Interference” means hindering or impeding an activity or process, which includes, but is not limited to any harassment, unreasonable delay, threat, concealment, deceit, or obstruction.

(3) “Major,” with respect to violations, means an incident, or series of incidents that cause a reasonable probability that serious adverse health consequences or death will occur.

(4) “Minor,” with respect to violations, means an incident, or series of incidents that are not likely to cause adverse health consequences.

(5) “Moderate,” with respect to violations, means an incident, or series of incidents that may cause temporary or medically reversible adverse health consequences, or where the probability of serious adverse health consequences is remote.

(6) “Repeat violation” means the recurrence of the same violation for each 24-hour period after a notice of noncompliance or assessment of civil penalty was issued within the preceding three years. It does not include a violation if the previous notice is the subject of a pending appeal or if the notice has been withdrawn or successfully appealed.

(7) “Same,” with respect to violations, means an identical recurrence, exact repetition, or a continuation of a previous violation.

(8) “Violation” means the failure to comply with any requirement of ORS 628.210 to 628.370 or any rule adopted thereunder.

Stat. Auth.: ORS 561.190, 628.350, 628.995
Stats. Implemented: ORS 628.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-017-0920

Schedule of Civil Penalties

In addition to any penalty available under ORS 561.190 or 628.990, the Department may impose a civil penalty with respective amounts for:

(1) Owning, operating, or offering the services of any refrigerated locker plant without obtaining a license as explained in ORS 628.220 for each place of business from the Department. Penalty — $5,000 to $10,000.

(2) Failure to conspicuously display the license in the licensed plant at all times pursuant to ORS 628.220. Penalty — $100.

(3) Operating a refrigerated locker business at any address other than the address stated in the application submitted pursuant to ORS 628.230. Penalties:

(a) Minor — $100 to $3,500;

(b) Moderate — $3,501 to $7,000; or

(c) Major — $7,001 to $10,000.

(4) Permitting a person who has a communicable or infectious disease to work in or about any refrigerated locker plant, or to handle any food in connection with the operation of such plant in violation of ORS 628.270(2). Penalty — $500 to $5,000.

(5) Interference with a lawful inspection under authority of ORS 628.280. Penalty — $5,000 to $10,000.

(6) Failure to maintain sanitary and safety requirements of ORS 628.290. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(7) Failure to maintain adequate equipment, temperatures, or records as required in ORS 628.300. Penalty — $500 to $5,000.

(8) Failure to use nontoxic ink or other harmless substance to apply marks directly to meat or other food products as explained in ORS 628.310. Penalty — $100 to $5,000.

(9) Failure to identify any fresh carcass meats with a suitable tag or stamp, and place all meats that have not been previously chilled in a chill room for at least 24 hours before removal to the cutting room as explained in ORS 628.330. Penalty — $100 to $5,000.

(10) Failure to handle fish and wild game consistent with the provisions of ORS 628.340. Penalty — $500 to $5,000.

Stat. Auth.: ORS 561.190, 628.350, 628.995
Stats. Implemented: ORS 628.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-017-0930

Penalty Factors; Procedure

(1) In imposing a penalty pursuant to the schedule adopted pursuant to ORS 628.995, the Department shall consider the following factors, which are listed in prioritized order:

(a) The immediacy and extent to which the violation threatens the public health or safety.

(b) Any prior violations of statutes, rules or orders pertaining to refrigerated locker plants.

(c) The past history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation.

(d) The economic and financial conditions of the person incurring the penalty, including any financial gains resulting from the violation.

(2) Each 24-hour period a violation continues after the period of time established for compliance will be considered a separate violation unless the Department finds a different period of time is more appropriate to describe the specific violation event.

(3) Repeat violations of OAR 603-017-0910 will be assessed as three times the penalty amount in OAR 603-017-0910, not to exceed $10,000.

(4) A civil penalty imposed under this rule will comply with ORS 183.745, except that the written application for a hearing must be received by the department no later than 10 days after the mailing or personal service of the notice of civil penalty.

Stat. Auth.: ORS 561.190, 628.350, 628.995
Stats. Implemented: ORS 628.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-021-0900

Purpose

The Oregon Department of Agriculture Food Safety Program licenses and inspects all facets of Oregon’s food distribution system, except restaurants, to ensure food is safe for consumption. Education and technical assistance are vital to the prevention, correction, and abatement of food safety violations, and are preferred over regulatory action. However, regulatory action may be necessary to deter violations of food safety laws and rules, to educate persons about the consequences of such violations, and to compel compliance with food safety laws for the protection of consumers. The Department intends to initiate civil penalty actions when educational measures, technical assistance, warning letters, compliance agreements or other remedial measures fail to achieve compliance.

Stat. Auth.: ORS 561.190, 625.995 & 635.995
Stats. Implemented: ORS 625.995 & 635.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-021-0910

Definitions

A bakery is subject to the definitions set forth in ORS Chapter 625, and OAR 603-025-0010. As used in OAR 603-021-0920 through 603-021-0930, unless otherwise required by the context, the following terms will be construed to mean:

(1) “Interference” means hindering or impeding an activity or process, which includes, but is not limited to any harassment, unreasonable delay, threat, concealment, deceit, or obstruction.

(2) “Major,” with respect to violations, means an incident, or series of incidents that cause a reasonable probability that serious adverse health consequences or death will occur.

(3) “Minor,” with respect to violations, means an incident, or series of incidents that are not likely to cause adverse health consequences.

(4) “Moderate,” with respect to violations, means an incident, or series of incidents that may cause temporary or medically reversible adverse health consequences, or where the probability of serious adverse health consequences is remote.

(5) “Repeat violation” means the recurrence of the same violation for each 24-hour period after a notice of noncompliance or assessment of civil penalty was issued within the preceding three years. It does not include a violation if the previous notice is the subject of a pending appeal or if the notice has been withdrawn or successfully appealed.

(7) “Same,” with respect to violations, means an identical recurrence, exact repetition, or a continuation of a previous violation.

(8) “Violation” means the failure to comply with any requirement of ORS 625.010 to 625.270 or Chapter 635, or any rule adopted thereunder.

Stat. Auth.: ORS 561.190, 625.995 & 635.995
Stats. Implemented: ORS 625.995 & 635.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-021-0920

Schedule of Civil Penalties

In addition to any penalty available under ORS 561.190 or 635.991, the Department may issue civil penalties with respective amounts for:

(1) Operating or participating in the operation of any bakery within this state without a license for that bakery pursuant to ORS 625.020(1). Penalties:

(a) Minor — $2,000 to $6,000;

(b) Moderate — $6,001 to $8,000; or

(c) Major — $8,001 to $10,000.

(2) Failure to display the numbered license certificate in a licensed bakery in accordance with ORS 625.070. Penalty — $100.

(3) Engaging within this state in the sale or distribution of any bakery product, other than exclusively as a retail food store or otherwise at retail at a fixed place or places of business, without holding a license so to do issued to that person by the Department pursuant to ORS 625.080. Penalties:

(a) Minor — $2,500 to $5,000;

(b) Moderate — $5,001 to $7,500; or

(c) Major — $7,501 to $10,000.

(4) Failure to display the numbered license certificate of a distributor licensed in accordance with ORS 625.120. Penalty — $100.

(5) Interference with a lawful inspection authorized under ORS 625.140. Penalty — $5,000 to $10,000.

(6) Violation of ORS 625.215, relating to prohibited bakery products. Penalties:

(a) Minor — $100 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(7) Violation of labeling standards in OAR 603-021-0015. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(8) Failure to meet the standard of identity for Bakery Products, cereal flours and related products with an established state or federal standard of identity as explained in ORS 616.780. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(9) Operating or engaging in the business of a nonalcoholic beverage manufacturer without first obtaining and thereafter maintaining a license, or renewal thereof, from the Department pursuant to ORS 635.027. Penalty — $5,000 to $10,000.

(10) Failure to maintain adequate sanitation or other measures as described in OAR 603-021-0007, 603-021-0010, 603-021-0710, or 603-021-0720 to 603-021-0750. Penalty — $500 to $5,000.

(11) Failure to maintain adequate facilities as described in OAR 603-021-0715. Penalty — $500 to $5,000.

(12) Labeling carbonated beverages, still drinks, or mineral waters inconsistent with the provisions of OAR 603-021-0755. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

Stat. Auth.: ORS 561.190, 625.995 & 635.995
Stats. Implemented: ORS 625.995 & 635.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-021-0930

Penalty factors; procedure

(1) In imposing a penalty pursuant to the schedule adopted under ORS 625.995 or 635.995, the Department shall consider the following factors, which are listed in prioritized order:

(a) The immediacy and extent to which the violation threatens the public health or safety.

(b) Any prior violations of statutes, rules or orders pertaining to Bakeries, Bakery Products, or Nonalcoholic Beverages.

(c) The past history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation.

(d) The economic and financial conditions of the person incurring the penalty, including any financial gains resulting from the violation.

(2) Each 24-hour period a violation continues after the period of time established for compliance will be considered a separate violation unless the Department finds a different period of time is more appropriate to describe the specific violation event.

(3) Repeat violations of OAR 603-021-0910 will be assessed as three times the penalty amount in OAR 603-021-0910, not to exceed $10,000.

(4) A civil penalty imposed under this rule will comply with ORS 183.745, except that the written application for a hearing must be received by the department no later than 10 days after the mailing or personal service of the notice of civil penalty.

Stat. Auth.: ORS 561.190, 625.995 & 635.995
Stats. Implemented: ORS 625.995 & 635.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-022-0900

Purpose

The Oregon Department of Agriculture Food Safety Program licenses and inspects all facets of Oregon’s food distribution system, except restaurants, to ensure food is safe for consumption. Education and technical assistance are vital to the prevention, correction, and abatement of food safety violations, and are preferred over regulatory action. However, regulatory action may be necessary to deter violations of food safety laws and rules, to educate persons about the consequences of such violations, and to compel compliance with food safety laws for the protection of consumers. The Department intends to initiate civil penalty actions when educational measures, technical assistance, warning letters, compliance agreements or other remedial measures fail to achieve compliance.

Stat. Auth.: ORS 561.190, 632.995
Stats. Implemented: ORS 632.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-022-0910

Definitions

As used in OAR 603-022-0920 through 603-022-0930, unless otherwise required by the context, the following terms will be construed to mean:

(1) “Department” means the Oregon Department of Agriculture.

(2) “Federal Act” has the meaning in ORS 632.705(12).

(3) “Interference” means hindering or impeding an activity or process, which includes, but is not limited to any harassment, unreasonable delay, threat, concealment, deceit, or obstruction.

(4) “Major,” with respect to violations, means an incident, or series of incidents that cause a reasonable probability that serious adverse health consequences or death will occur.

(5) “Minor,” with respect to violations, means an incident, or series of incidents that are not likely to cause adverse health consequences.

(6) “Moderate,” with respect to violations, means an incident, or series of incidents that may cause temporary or medically reversible adverse health consequences, or where the probability of serious adverse health consequences is remote.

(7) “Repeat violation” means the recurrence of the same violation for each 24-hour period after a notice of noncompliance or assessment of civil penalty was issued within the preceding three years. It does not include a violation if the previous notice is the subject of a pending appeal or if the notice has been withdrawn or successfully appealed.

(8) “Same,” with respect to violations, means an identical recurrence, exact repetition, or a continuation of a previous violation.

(9) “Violation” means the failure to comply with any requirement of ORS 632.705 to 632.815, or any rules adopted thereunder.

Stat. Auth.: ORS 561.190, 632.995
Stats. Implemented: ORS 632.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-022-0920

Schedule of Civil Penalties

In addition to any penalty available under ORS 561.190, 632.990, or 619.993 the Department may impose a civil penalty with respective amounts for:

(1) Violation of the licensing requirements of ORS 632.715(1). Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(2) Failure to conspicuously display original or duplicate licenses as required in ORS 632.715(3). Penalty — $100.

(3) Engaging in the commercial breaking of eggs for the purpose of recovering therefrom, for human food, the whites, yolks or whole egg meats, or any part thereof, for resale as such, without first obtaining from the Department of Agriculture a permit to do so pursuant to ORS 632.730. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000

(4) Failure to pay a fee or fees pursuant to ORS 632.741. Penalty — $1,000 to $5,000.

(5) Failure to meet the invoicing requirements or record retention requirements of ORS 632.745. Penalty — $500 to $5,000.

(6) Failure to construct, maintain and utilize plant facilities and equipment utilized in processing eggs or egg products in accordance with the rules promulgated under the federal Act or promulgated by the Department. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000

(7) Interference with a lawful inspection authorized under ORS 632.761(1). Penalty — $5,000 to $10,000.

(8) Interference with the seizure, embargo or detention, in accordance with the provisions of ORS 561.605 to 561.630, of any eggs or egg products determined to be in violation of the provisions of ORS 632.705 to 632.815 or rules promulgated pursuant thereto. Penalty — $5,000 to $10,000.

(9) Interference with condemnation in accordance with the provisions of ORS 616.740, of any plant premises, facilities, equipment, containers or vehicles determined to be in violation of the provisions of ORS 632.705 to 632.815 or rules promulgated pursuant thereto. Penalty — $5,000 to $10,000.

(10) Violation of the labeling or advertising requirements of ORS 632.771. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(11) Selling eggs for human consumption in previously used consumer containers bearing the brand, trademark or officially designated number of another egg handler, unless the same is removed or defaced as explained in ORS 632.786(1). Penalty — $100 to $5,000.

(12) As a retailer, selling eggs from a bulk display without displaying the placard required by ORS 632.771(3). Penalty — $100 to $5,000.

(13) Delivering or selling eggs for human consumption that have been incubated or have been in either an artificial or natural incubator as explained in ORS 632.786(6). Penalty — $100 to $5,000.

(14) Delivering or selling for human consumption ova from slaughtered birds of any species as explained in ORS 632.786(7). Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(15) Selling any eggs or egg products that are adulterated or misbranded as explained in ORS 632.786(8). Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(16) Selling any eggs as fresh eggs unless they are of the quality or grade prescribed for fresh eggs by the Department or the Federal Act as explained in ORS 632.786(9). Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(17) Selling egg products for human consumption that have not been pasteurized, or as a food processor purchasing egg products that have not been pasteurized as explained in ORS 632.786(10). Penalty — $1,000 to $5,000.

(18) Advertising eggs or egg products in violation of the standards or requirements prescribed by the Department as explained in ORS 632.786(11). Penalty — $1,000 to $5,000.

(19) Using containers in the bulk sale of eggs that bear the trademark of another egg handler without the consent of the registrant of such trademark as explained in ORS 632.786(12). Penalty — $1,000 to $5,000.

(20) Failure to maintain sanitation standards of OAR 603-022-0500 through 603-022-0545, relating to egg candling and grading facilities and establishments. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Minor — $7,001 to $10,000.

Stat. Auth.: ORS 561.190, 632.995
Stats. Implemented: ORS 632.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-022-0930

Penalty factors; procedure

(1) In imposing a penalty pursuant to the schedule adopted pursuant to ORS 632.995, the Department shall consider the following factors, which are listed in prioritized order:

(a) The immediacy and extent to which the violation threatens the public health or safety.

(b) Any prior violations of statutes, rules or orders pertaining to eggs.

(c) The past history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation.

(d) The economic and financial conditions of the person incurring the penalty, including any financial gains resulting from the violation.

(2) Each 24-hour period a violation continues after the period of time established for compliance will be considered a separate violation unless the Department finds a different period of time is more appropriate to describe the specific violation event.

(3) Repeat violations of OAR 603-022-0910 will be assessed as three times the penalty amount in OAR 603-022-0910, not to exceed $10,000.

(4) A civil penalty imposed under this rule will comply with ORS 183.745, except that the written application for a hearing must be received by the department no later than 10 days after the mailing or personal service of the notice of civil penalty.

Stat. Auth.: ORS 561.190, 632.995
Stats. Implemented: ORS 632.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-024-0900

Purpose

The Oregon Department of Agriculture Food Safety Program licenses and inspects all facets of Oregon’s food distribution system, except restaurants, to ensure food is safe for consumption. Education and technical assistance are vital to the prevention, correction, and abatement of food safety violations, and are preferred over regulatory action. However, regulatory action may be necessary to deter violations of food safety laws and rules, to educate persons about the consequences of such violations, and to compel compliance with food safety laws for the protection of consumers. The Department intends to initiate civil penalty actions when educational measures, technical assistance, warning letters, compliance agreements or other remedial measures fail to achieve compliance.

Stat. Auth.: ORS 561.190 & 621.995
Stats. Implemented: ORS 621.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-024-0910

Definitions

As used in OAR 603-024-0920 through 603-024-0930, unless otherwise required by the context, the following terms will be construed to mean:

(1) “Interference” means hindering or impeding an activity or process, which includes, but is not limited to any harassment, unreasonable delay, threat, concealment, deceit, or obstruction.

(2) “Major,” with respect to violations, means an incident, or series of incidents that cause a reasonable probability that serious adverse health consequences or death will occur.

(3) “Minor,” with respect to violations, means an incident, or series of incidents that are not likely to cause adverse health consequences.

(4) “Moderate,” with respect to violations, means an incident, or series of incidents that may cause temporary or medically reversible adverse health consequences, or where the probability of serious adverse health consequences is remote.

(5) “Repeat violation” means the recurrence of the same violation for each 24-hour period after a notice of noncompliance or assessment of civil penalty was issued within the preceding three years. It does not include a violation if the previous notice is the subject of a pending appeal or if the notice has been withdrawn or successfully appealed.

(6) “Same,” with respect to violations, means an identical recurrence, exact repetition, or a continuation of a previous violation.

(8) “Violation” means the failure to comply with any requirement of ORS 621.056, 621.057, 621.062, 621.070, 621.072, 621.076, 621.084, 621.088, 621.117, 621.122, 621.124, 621.161, 621.166, 621.183, 621.198, 621.207, 621.226, 621.259, 621.335, 621.340, 621.345, 621.418, 621.445 or 621.730, or any rules, regulations or standards adopted under ORS 621.060, 621.083, 621.096, 621.224 or 621.261.

Stat. Auth.: ORS 561.190 & 621.995
Stats. Implemented: ORS 621.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-024-0920

Schedule of Civil Penalties

In addition to any penalty available under ORS 561.190 or 621.991, the Department may impose a civil penalty with respective amounts for:

(1) Failure by a distributor, producer-distributor or dairy products plant licensee to employ a grader that accurately and impartially grades all milk or fluid milk purchased by the distributor, producer-distributor or licensee from producers before it is commingled with other milk or otherwise loses its identity pursuant to ORS 621.056. Penalty — $1,000 to $5,000.

(2) Violation of the grader recording requirements in ORS 621.057. Penalty — $100 to $5,000.

(3) The processing, distribution, sale or offer or exposure for sale fluid milk that does not conform to a standard of identity established by the Department as explained in ORS 621.062. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(4) The use of any grade designation on bottle caps, in advertising, on labels or in any other manner connected with the sale of fluid milk without a Department license for the person to use the grade designation as explained in ORS 621.070. Penalty — $5,000 to $10,000.

(5) Failure to obtain a license as required in ORS 621.072(2). Penalty — $5,000 to $10,000.

(6) Failure to obtain a license as required in ORS 621.072(4). Penalty — $1,000 to $5,000.

(7) Interference with a lawful inspection as authorized under ORS 621.072(5). Penalty — $5,000 to $10,000.

(8) Knowingly misrepresenting the annual gross dollar volume of sales and services by a license applicant within Oregon during the prior calendar year or, if the applicant maintains sales and service records on a fiscal basis, the prior fiscal year, for the requirements of ORS 621.072 or 621.166. Penalty — $1,000 to $5,000.

(9) Violation of the requirements of ORS 621.076(1), relating to container labeling. Penalty — $5,000 to $10,000.

(10) Bottling unpasteurized fluid milk off of the premises where it is produced as explained in ORS 621.076(2). Penalty — $5,000 to $10,000.

(11) A producer or producer-distributor selling or offering for sale fluid milk during the period that the license of the producer or producer-distributor to use a grade designation on fluid milk has been suspended under ORS 621.072 or 621.073. Penalty — $5,000 to $10,000.

(12) A distributor knowingly purchasing fluid milk from any person whose license to use a grade designation has been suspended under ORS 621.072 or 621.073. Penalty — $5,000 to $10,000.

(13) A distributor knowingly purchasing fluid milk from any person other than a person licensed under ORS 621.072. Penalty — $5,000 to $10,000.

(14) Violation of the labeling requirements of ORS 621.076(6). Penalty — $1,000 to $5,000.

(15) A distributor, producer-distributor, dairy products plant licensee or any other purchaser of milk from producers failing to weigh, sample and test fluid milk purchased by them from producers in the same manner as milk and cream are weighed, sampled and tested under ORS 621.096. Penalty — $1,000 to $5,000.

(16) Violation of ORS 621.088, relating to milk or cream to which water has been added. Penalty — $5,000 to $10,000.

(17) Violation of ORS 621.117, relating to pasteurized milk and disease-free goat and sheep herds. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(18) Operating or permitting the operation of any pasteurization equipment except under the direct personal supervision of a person licensed as a pasteurizer operator under ORS 621.266. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(19) A distributor, producer-distributor or dairy products plant licensee selling, offering or exposing for sale any milk or cream that has not been pasteurized or produced by a disease-free goat or sheep herd, except to another distributor, producer-distributor or dairy products plant licensee for the manufacture of milk, fluid milk or dairy products as explained in ORS 621.122(2). Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(20) Except as permitted by ORS 621.003, 621.012, 621.060 and 621.076, a person knowingly selling, offering or exposing for sale any milk or cream that has not been pasteurized or produced by a disease-free goat or sheep herd, except to a distributor, producer-distributor or dairy products plant licensee for the manufacture of milk, fluid milk or dairy products as explained in ORS 621.122(3). Penalty — $8,000 to $10,000.

(21) A distributor, producer-distributor or dairy products plant licensee selling, offering or exposing for sale any milk, fluid milk or dairy product processed or manufactured by the distributor, producer-distributor or licensee without all of the milk or cream constituents from cows having been pasteurized and all milk or cream constituents from goats or sheep were produced by a disease-free herd or have been pasteurized as explained in ORS 621.122(4). Penalty — $5,000 to $10,000.

(22) A person knowingly selling, offering or exposing for sale any dairy product without all of the milk or cream constituents of the product from cows have been pasteurized and all constituents from goats or sheep were produced by a disease-free herd or have been pasteurized as explained in ORS 621.122(5). Penalty — $8,000 to $10,000.

(23) A person falsely representing by word, design, device or by any other means that any milk, cream, fluid milk, dairy product, frozen dessert mix or frozen dessert has been pasteurized as explained in ORS 621.122(7). Penalty — $5,000 to $10,000.

(24) A distributor, producer-distributor or dairy products plant licensee failing to provide for the grading of all milk transported, received or purchased by the distributor, producer-distributor or licensee as required by ORS 621.056, 621.057, 621.084 and 621.226 and regulations adopted under ORS 621.096. Penalty — $1,000 to $5,000.

(25) A person altering, removing or tampering with any condemnation tag affixed by the Department or a grader pursuant to the provisions of ORS 621.203 or 621.226. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(26) Violations of the requirements of ORS 621.122(10), relating to sampling, weighing, and testing milk or cream. Penalty — $500 to $5,000.

(27) A person selling or offering or exposing for sale any fluid milk with knowledge that the milk has been produced from a herd of cows, sheep or goats, one or more of which were infected with brucellosis at the time the milk was produced, or with knowledge that not all the animals in the herd have been tested or retested for brucellosis in a manner approved by the Department as explained in ORS 621.124. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(28) Operating a dairy products plant without a valid license for that plant as explained in ORS 622.161. Penalty — $5,000 to $10,000.

(29) Violation of the license requirements of ORS 621.166. Penalty — $5,000 to $10,000.

(30) A person operating a dairy products plant or a physical facility of a distributor or producer-distributor that fails to conform to the standards prescribed pursuant to ORS 621.176 and 621.181, relating to disease and contamination prevention. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(31) A producer storing milk that is to be sold to a dairy products plant or to be used at a physical facility of a distributor or producer-distributor, in bulk storage tanks, equipment, buildings or other facilities that do not conform to the standards prescribed pursuant to ORS 621.193. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(32) A distributor, producer-distributor or dairy products plant licensee receiving or purchasing milk from a producer, that is stored in bulk storage tanks, equipment, buildings or other facilities that do not conform to the standards prescribed pursuant to ORS 621.193. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(33) A person other than an authorized employee or agent of the Department removing a condemnation tag or marking from a container as explained in ORS 621.207(1). Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(34) A person placing any fluid milk, cream, milk or dairy product in a container bearing a condemnation tag or marking as explained in ORS 622.207(2). Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(35) A person using the contents of a container that has been condemned to manufacture, process or bottle fluid milk, cream, milk or dairy products as explained in ORS 622.207(3). Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(36) Failure of a grader to affix a condemnation tag and mix sufficient harmless red coloring matter with any milk, cream, dairy product or fluid milk when the milk, cream, dairy product or fluid milk is unlawful as described in ORS 621.226(2). Penalty — $500 to $5,000.

(37) Operating pasteurization equipment used by a distributor or producer-distributor or at a dairy products plant, and the distributor, producer-distributor or dairy products plant licensee fails to ensure that the pasteurization process is under the direct supervision of a pasteurizer operator licensed under ORS 621.266. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(38) A person engaging in the business of freezing or making frozen desserts and then selling those frozen desserts at wholesale without a license to carry on that business from the Department. Penalty — $5,000 to $10,000.

(39) A frozen dessert wholesaler selling, offering for sale or possessing with intent to sell a frozen dessert or frozen dessert mix that has an excessive bacteria count as established by rule of the Department. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(40) A person selling or offering for sale any product that the person represents to be a frozen dessert or that simulates or imitates the taste, texture or general composition of a frozen dessert unless the product conforms to the standard of identity for that frozen dessert established by rule of the Department pursuant to ORS 621.311. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(41) A person selling or offering for sale an imitation milk product that does not conform to a standard of quality and identity established by the Department as explained in ORS 621.418. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(42) Violation of ORS 621.445(1), relating to colored butter substitutes in any public eating place. Penalty — $100 to $500.

(43) A milk handler, dealer, licensee or purchaser of milk terminating or threatening to terminate the purchase of milk from a producer or seller, or taking or threatening to take other retaliatory action against a producer or seller of milk, because the producer or seller has exercised rights and privileges as authorized in ORS Chapter 621. Penalty — $1,000 to $5,000.

(44) Selling or offering for sale imitation milk products in the final delivery container that contain more than 20,000 bacteria per milliliter, 10 coliform per milliliter, or whose temperature exceeds 45 degrees Fahrenheit. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(45) Failure to maintain sanitation standards of OAR 603-024-0095. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(46) Violation of OAR 603-024-0379, relating to grading period of milk. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(47) Violation of OAR 603-024-0641, relating to transportation of milk and milk products. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

Stat. Auth.: ORS 561.190 & 621.995
Stats. Implemented: ORS 621.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-024-0930

Penalty factors; procedure

(1) In imposing a penalty pursuant to the schedule adopted pursuant to ORS 621.995, the Department shall consider the following factors, which are listed in prioritized order:

(a) The immediacy and extent to which the violation threatens the public health or safety.

(b) Any prior violations of statutes, rules or orders pertaining to milk, dairy products or substitutes thereof.

(c) The past history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation.

(d) The economic and financial conditions of the person incurring the penalty, including any financial gains resulting from the violation

(2) Each 24-hour a violation continues after the period of time established for compliance will be considered a separate violation unless the Department finds a different period of time is more appropriate to describe the specific violation event.

(3) Repeat violations of OAR 603-024-0910 will be assessed as three times the penalty amount in OAR 603-024-0910, not to exceed $10,000.

(4) A civil penalty imposed under this rule will comply with ORS 183.745, except that the written application for a hearing must be received by the department no later than 10 days after the mailing or personal service of the notice of civil penalty.

Stat. Auth.: ORS 561.190 & 621.995
Stats. Implemented: ORS 621.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-025-0900

Purpose

The Oregon Department of Agriculture Food Safety Program licenses and inspects all facets of Oregon’s food distribution system, except restaurants, to ensure food is safe for consumption. Education and technical assistance are vital to the prevention, correction, and abatement of food safety violations, and are preferred over regulatory action. However, regulatory action may be necessary to deter violations of food safety laws and rules, to educate persons about the consequences of such violations, and to compel compliance with food safety laws for the protection of consumers. The Department intends to initiate civil penalty actions when educational measures, technical assistance, warning letters, compliance agreements or other remedial measures fail to achieve compliance.

Stat. Auth.: ORS 561.190, 616.997 & 632.995
Stats. Implemented: ORS 616.997 & 632.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-025-0910

Definitions

As used in OAR 603-025-0920 through 603-025-0930, unless otherwise required by the context, the following terms will be construed to mean:

(1) “Department” means the Oregon Department of Agriculture.

(2) “Interference” means hindering or impeding an activity or process, which includes, but is not limited to any harassment, unreasonable delay, threat, concealment, deceit, or obstruction.

(3) “Major,” with respect to violations, means an incident, or series of incidents that cause a reasonable probability that serious adverse health consequences or death will occur.

(4) “Minor,” with respect to violations, means an incident, or series of incidents that are not likely to cause adverse health consequences.

(5) “Moderate,” with respect to violations, means an incident, or series of incidents that may cause temporary or medically reversible adverse health consequences, or where the probability of serious adverse health consequences is remote.

(6) “Repeat violation” means the recurrence of the same violation for each 24-hour period after a notice of noncompliance or assessment of civil penalty was issued within the preceding three years. It does not include a violation if the previous notice is the subject of a pending appeal or if the notice has been withdrawn or successfully appealed.

(7) “Same,” with respect to violations, means an identical recurrence, exact repetition, or a continuation of a previous violation.

(8) “Violation” means the failure to comply with any requirement of ORS Chapter 616 or any rules adopted thereunder.

Stat. Auth.: ORS 561.190, 616.997 & 632.995
Stats. Implemented: ORS 616.997 & 632.995

603-025-0920

Schedule of Civil Penalties

In addition to any penalty available under ORS 561.190, 616.992, 616.994, or 632.990 the Department may impose a civil penalty with respective amounts for:

(1) Violation of ORS 616.073(3), relating to sulfite use. Penalty — $500 to $5,000.

(2) The manufacture, sale or delivery, holding or offering for sale of any food that is adulterated or misbranded as explained in ORS 616.215(1). Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(3) The adulteration or misbranding of any food as explained in ORS 616.215(2). Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(4) The receipt in commerce of any food that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise as explained in ORS 616.215(3). Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(5) Violation of the labeling requirements of ORS 616.215(4). Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(6) The dissemination of any false advertisement as explained in ORS 616.215(5). Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(7) Interference with any inspection or investigation performed pursuant to ORS 616.286. Penalty — $5,000 to $10,000.

(8) The giving of a guaranty or undertaking which is false, except by a person who relied on a guaranty or undertaking to the same effect signed by, and containing the name and address of the person from whom the person received in good faith the food as explained in ORS 616.215(7). Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(9) The removal or disposal of a detained or embargoed article in violation of ORS 616.225. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(10) The alteration, mutilation, destruction, obliteration or removal of the whole or any part of the label of a food, if done while such article is held for sale and results in such article being misbranded as explained in ORS 616.215(9). Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(11) Forging, counterfeiting, simulating or falsely representing, or without proper authority using any mark, stamp, tag, label or other identification device authorized or required by rules promulgated under the provisions of ORS 616.205 to 616.295 and 616.305 to 616.315. Penalty — $5,000 to $10,000.

(12) The use by any person to the person’s own advantage, or disclosure, other than to the Director or the authorized representative of the director or to the courts when relevant in any judicial proceeding under ORS 616.205 to 616.385, of any information acquired under the authority of ORS 616.205 to 616.385 concerning any method or process which is a trade secret entitled to protection. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(13) Labeling or offering for sale any food fish product designated as halibut, with or without additional descriptive words, unless such food fish product is Hippoglossus hippoglossus or Hippoglossus stenolepsis as explained in ORS 616.217. Penalty — $500 to $5,000.

(14) Failure of a retail or wholesale food distributor to place a warning label on food containing diethylstilbestrol pursuant to ORS 616.333. Penalty — $500 to $5,000.

(15) Violation of rules promulgated under ORS 616.700, relating to sanitation requirements for food and food establishments. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(16) Operating a food establishment without obtaining or maintaining a license as required in ORS 616.706. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(17) Knowingly misrepresenting the annual gross dollar volume of sales of covered operations by that applicant within Oregon during the prior calendar year or, if the applicant maintains sales records on a fiscal basis, the prior fiscal year for the requirements of ORS 616.706. Penalty — $1,000 to $5,000.

(18) The unauthorized removal of a notice posted by the department under the authority of ORS 616.740. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(19) The manufacture, sale or delivery, holding or offering for sale of any food that does not conform to a standard of identity when the Department has adopted a standard of identity food as explained in ORS 616.761 to 616.775. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(20) Violation of ORS 616.785, relating to unenriched flours, macaroni, and noodle products. Penalty — $500 to $5,000.

(21) Interference with a lawful inspection under authority of ORS 616.790. Penalty — $5,000 to $10,000.

(22) Violation of the Open Date Labeling Laws of ORS 616.815, 616.820, 616.825 or 616.830 or the rules adopted under ORS 616.835, relating to open date labeling. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(23) Violation of ORS 616.860, relating to unit pricing. Penalty — $500 to $5,000.

(24) A retail seller of packaged consumer commodities failing to express unit retail price statements in terms of the price per single whole unit of weight, volume, measure or count as prescribed by administrative rules adopted by the Department under ORS 616.875 for particular consumer commodities or groups for consumer commodities. Penalty — $500 to $5,000.

Stat. Auth.: ORS 561.190, 616.997 & 632.995
Stats. Implemented: ORS 616.997 & 632.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-025-0930

Penalty factors; procedure

(1) In imposing a penalty pursuant to the schedule adopted pursuant to ORS 628.995, the Department shall consider the following factors, which are listed in prioritized order:

(a) The immediacy and extent to which the violation threatens the public health or safety.

(b) Any prior violations of statutes, rules or orders pertaining to food and other commodities.

(c) The past history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation.

(d) The economic and financial conditions of the person incurring the penalty, including any financial gains resulting from the violation.

(2) Each 24-hour period a violation continues after the period of time established for compliance will be considered a separate violation unless the Department finds a different period of time is more appropriate to describe the specific violation event.

(3) Repeat violations of OAR 603-025-0910 will be assessed as three times the penalty amount in OAR 603-025-0910, not to exceed $10,000.

(4) A civil penalty imposed under this rule will comply with ORS 183.745, except that the written application for a hearing must be received by the department no later than 10 days after the mailing or personal service of the notice of civil penalty.

Stat. Auth.: ORS 561.190, 616.997 & 632.995
Stats. Implemented: ORS 616.997 & 632.995
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-028-0900

Purpose

The Oregon Department of Agriculture Food Safety Program licenses and inspects all facets of Oregon’s food distribution system, except restaurants, to ensure food is safe for consumption. Education and technical assistance are vital to the prevention, correction, and abatement of food safety violations, and are preferred over regulatory action. However, regulatory action may be necessary to deter violations of food safety laws and rules, to educate persons about the consequences of such violations, and to compel compliance with food safety laws for the protection of consumers. The Department intends to initiate civil penalty actions when educational measures, technical assistance, warning letters, compliance agreements or other remedial measures fail to achieve compliance.

Stat. Auth.: ORS 561.190, 603.995 & 619.996
Stats. Implemented: ORS 603.995 & 619.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-028-0910

Definitions

As used in OAR 603-028-0920 through 603-028-0930, in addition to the definitions set forth in OAR 603-028-0005 and 603-028-0600, the following shall apply:

(1) “Interference” means hindering or impeding an activity or process, which includes, but is not limited to any harassment, unreasonable delay, threat, concealment, deceit, or obstruction.

(2) “Major,” with respect to violations, means an incident, or series of incidents that cause a reasonable probability that serious adverse health consequences or death will occur.

(3) “Minor,” with respect to violations, means an incident, or series of incidents that are not likely to cause adverse health consequences.

(4) “Moderate,” with respect to violations, means an incident, or series of incidents that may cause temporary or medically reversible adverse health consequences, or where the probability of serious adverse health consequences is remote.

(5) “Repeat violation” means the recurrence of the same violation for each 24-hour period after a notice of noncompliance or assessment of civil penalty was issued within the preceding three years. It does not include a violation if the previous notice is the subject of a pending appeal or if the notice has been withdrawn or successfully appealed.

(6) “Same,” with respect to violations, means an identical recurrence, exact repetition, or a continuation of a previous violation.

(7) “Violation” means the failure to comply with any requirement of ORS Chapter 603 or 619 or any rules adopted thereunder.

Stat. Auth.: ORS 561.190, 603.995 & 619.996
Stats. Implemented: ORS 603.995 & 619.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-028-0920

Schedule of Civil Penalties

In addition to any penalty available under ORS 561.190, 603.992, or 619.993 the Department may impose a civil penalty with respective amounts for:

(1) Selling, offering to sell, or exposing for sale meat products, or engaging in any activity described or identified in ORS 603.025(4) without first obtaining and maintaining a license from the Department. Penalty — $5,000 to $10,000.

(2) Failure to carry a surety bond meeting the requirements of ORS 603.025(3) with one or more corporate sureties authorized to do business in this state, or an irrevocable letter of credit issued by an insured institution, as defined in ORS 706.008. Penalties:

(a) Minor — $2,500 to $5,000;

(b) Moderate — $5,001 to $7,500; or

(c) Major — $7,501 to $10,000.

(3) Failure to display the license required in ORS 603.025 in a conspicuous manner at the address shown on the license. Penalty — $100.

(4) Buying or selling carcasses of meat animals, meat or meat products capable of use as human food that are not marked, tagged or otherwise identified as inspected meat or meat products as required by ORS Chapter 619. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(5) Failure to comply with the custom slaughtering establishment requirements as required in ORS 603.045(2) – (7) or the provisions of OAR 603-028-0700, 603-028-0810, or 603-028-0825. Penalties:

(a) Minor — $500 to $3,500;

(b) Moderate — $3,501 to $6,500; or

(c) Major — $6,501 to $10,000.

(6) The owner or occupier of premises where animals are slaughtered permitting the same to remain unclean, to the extent that it constitutes a health hazard as explained in ORS 603.059. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(7) Violation of the slaughter methods prescribed in ORS 603.065(1)-(2). Penalty — $5,000 to $10,000.

(8) Violation of the sanitation requirements of ORS 619.026. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(9) Interference with lawful inspections by the Department as authorized by ORS 619.036(1) and (3). Penalty — $5,000 to $10,000.

(10) Interference with the lawful seizure, embargo, or detention of any food commodity, or lawful quarantine any building, equipment, vehicle or facility found upon inspection or test to be in violation of ORS 619.026 to 619.066 or of any rule adopted under ORS 619.026 to 619.066. Penalty — $5,000 to $10,000.

(11) Unapproved removal of a Department posted notice, or continued use of an establishment or vehicle when condemned by the Department as authorized in ORS 619.041. Penalty — $5,000 to $10,000.

(12) Having in the person’s possession for any reason or purpose unwholesome meat or meat products that are not denatured and properly identified as explained in ORS 619.051(1). Penalty — $1,000 to $5,000.

(13) Carrying or transporting, by vehicle or otherwise, the carcass or meat of any meat animal destined for sale or distribution as food, that is not thoroughly protected from dust, dirt, flies or other contaminants as explained in ORS 619.051(2). Penalty — $1,000 to $5,000.

(14) Selling, holding or offering for sale any meat product if such meat product is from a meat animal not slaughtered under the auspices of the meat and poultry inspection program of the United States Department of Agriculture if federal regulations have been established for the inspection of the meat animal as explained in ORS 619.051(3). Penalty — $5,000 to $10,000.

(15) Failure to perform trichinae treatments as required in ORS 619.056. Penalties:

(a) $1,000 to $4,000;

(b) $4,001 to $7,000; or

(c) $7,001 to $10,000.

(16) Any person operating a retail meat seller establishment, as defined in ORS Chapter 603, in conjunction with a custom slaughtering establishment or custom processing establishment failing to mark, tag or identify all individually wrapped packages or containers of meat or meat products slaughtered, wrapped, prepared or handled for the owner of a meat animal, at the time and in the manner deemed necessary by the Department as explained in ORS 619.061. Penalty — $500 to $5,000.

(17) Violation of the provisions of ORS 619.355, 619.360, 619.365, or 619.370, relating to fryers. Penalty — $500 to $5,000.

(18) Willful violation of ORS 619.421, relating to lamb. Penalty — $500 to $5,000.

(19) Violation of OAR 603-028-0300, relating to packaging, labeling, advertising, and display. Penalties:

(a) Minor — $500 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(20) Violation of OAR 603-028-0405, relating to additives in raw meat and raw meat products. Penalty — $500 to $5,000.

(21) Violation of OAR 603-028-0500, relating to prohibited acts. Penalty — $5,000 to $10,000.

Stat. Auth.: ORS 561.190, 603.995 & 619.996
Stats. Implemented: ORS 603.995 & 619.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-028-0930

Penalty factors; procedure

(1) In imposing a penalty pursuant to the schedule adopted pursuant to ORS 603.995 or 619.996, the Department shall consider the following factors, which are listed in prioritized order:

(a) The immediacy and extent to which the violation threatens the public health or safety;

(b) Any prior violations of statutes, rules or orders pertaining to meat or meat related activities.

(c) The past history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation.

(d) The economic and financial conditions of the person incurring the penalty, including any financial gains resulting from the violation.

(2) Each 24-hour period a violation continues after the period of time established for compliance will be considered a separate violation unless the Department finds a different period of time is more appropriate to describe the specific violation event.

(3) Repeat violations of OAR 603-028-0910 will be assessed as three times the penalty amount in OAR 603-028-0910, not to exceed $10,000.

(4) A civil penalty imposed under this rule will comply with ORS 183.745, except that the written application for a hearing must be received by the department no later than 10 days after the mailing or personal service of the notice of civil penalty.

Stat. Auth.: ORS 561.190, 603.995 & 619.996
Stats. Implemented: ORS 603.995 & 619.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-100-0900

Purpose

The Oregon Department of Agriculture Food Safety Program licenses and inspects all facets of Oregon’s food distribution system, except restaurants, to ensure food is safe for consumption. Education and technical assistance are vital to the prevention, correction, and abatement of food safety violations, and are preferred over regulatory action. However, regulatory action may be necessary to deter violations of food safety laws and rules, to educate persons about the consequences of such violations, and to compel compliance with food safety laws for the protection of consumers. The Department intends to initiate civil penalty actions when educational measures, technical assistance, warning letters, compliance agreements or other remedial measures fail to achieve compliance.

Stat. Auth.: ORS 561.190 & 622.996
Stats. Implemented: ORS 622.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-100-0910

Definitions

As used in OAR 603-100-0920 through 603-100-0930, unless otherwise required by the context, the following terms will be construed to mean:

(1) “Interference” means hindering or impeding an activity or process, which includes, but is not limited to any harassment, unreasonable delay, threat, concealment, deceit, or obstruction.

(2) “Major,” with respect to violations, means an incident, or series of incidents that cause a reasonable probability that serious adverse health consequences or death will occur.

(3) “Minor,” with respect to violations, means an incident, or series of incidents that are not likely to cause adverse health consequences.

(4) “Moderate,” with respect to violations, means an incident, or series of incidents that may cause temporary or medically reversible adverse health consequences, or where the probability of serious adverse health consequences is remote.

(5) “Repeat violation” means the recurrence of the same violation for each 24-hour period after a notice of noncompliance or assessment of civil penalty was issued within the preceding three years. It does not include a violation if the previous notice is the subject of a pending appeal or if the notice has been withdrawn or successfully appealed.

(6) “Same,” with respect to violations, means an identical recurrence, exact repetition, or a continuation of a previous violation.

(7) “Violation” means the failure to comply with any requirement of ORS 622.010 to 622.180, or any rule adopted thereunder.

Stat. Auth.: ORS 561.190 & 622.996
Stats. Implemented: ORS 622.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-100-0920

Schedule of Civil Penalties

In addition to any penalty available under ORS 561.190 or 622.992, the Department may impose a civil penalty with respective amounts for:

(1) Acting as a dealer without the certificate or certificates of shellfish sanitation issued by the Department as explained in ORS 622.020. Penalty — $5,000 to $10,000.

(2) Operating outside of the geographic area specified in a validated certificate of shellfish sanitation as explained in ORS 622.040. Penalty — $5,000 to $10,000.

(3) A dealer failing to display the certificate of a dealer or certificates of shellfish sanitation in accordance with the rules of ORS Chapter 622. Penalty — $100.

(4) A dealer sending or accepting any shellfish without a signed statement in accordance with ORS 622.160. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(5) A dealer who gathers or receives shellfish from any source other than designated in the certificate or certificates of shellfish sanitation and fails to keep accurate records of the amount and source of such shellfish, fails to retain the records for at least 90 days, or fails to provide access to the Department for inspection as explained in ORS 622.170. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(6) Interference with a lawful inspection under ORS 622.180(2)(a). Penalty — $5,000 to $10,000.

(7) Interference with the taking of samples as requested by the Department under ORS 622.180(2)(b). Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(8) Interference with the Department’s condemnation, removal from sale, or destruction of any shellfish that are unfit for consumption, from an uncertified source, or are improperly certified as explained in ORS 622.180(1)(c). Penalty — $5,000 to $10,000.

(9) Violation of any requirement for dealers or harvesters found in the National Shellfish Sanitation Program, Guide for the Control of Molluscan Shellfish, 2009 Revision. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(10) Failure of a grower or harvester to deliver shellfish intended for human consumption to a certified shellfish shipper within 24 hours of harvest as explained in OAR 603-100-0040. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

(11) Failure to tag shellstock harvested from non-interstate approved harvest areas pursuant to OAR 603-100-0050. Penalties:

(a) Minor — $1,000 to $4,000;

(b) Moderate — $4,001 to $7,000; or

(c) Major — $7,001 to $10,000.

Stat. Auth.: ORS 561.190 & 622.996
Stats. Implemented: ORS 622.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

603-100-0930

Penalty factors; procedure

(1) In imposing a penalty pursuant to the schedule adopted pursuant to ORS 621.995, the Department shall consider the following factors, which are listed in prioritized order:

(a) The immediacy and extent to which the violation threatens the public health or safety.

(b) Any prior violations of statutes, rules or orders pertaining shellfish.

(c) The past history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation.

(d) The economic and financial conditions of the person incurring the penalty, including any financial gains resulting from the violation.

(2) Each 24-hour period a violation continues after the period of time established for compliance will be considered a separate violation unless the Department finds a different period of time is more appropriate to describe the specific violation event.

(3) Repeat violations of OAR 603-024-0910 will be assessed as three times the penalty amount in OAR 603-024-0910, not to exceed $10,000.

(4) A civil penalty imposed under this rule will comply with ORS 183.745, except that the written application for a hearing must be received by the Department no later than 10 days after the mailing or personal service of the notice of civil penalty.

Stat. Auth.: ORS 561.190 & 622.996
Stat. Implemented: ORS 622.996
Hist.: DOA 2-2013, f. & cert. ef. 2-7-13

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2012.

2.) Copyright 2013 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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