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The Oregon Administrative Rules contain OARs filed through September 15, 2014
 
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DEPARTMENT OF AGRICULTURE

 

DIVISION 54

NURSERIES

Nursery License Fee Schedule

603-054-0016

License Fees: Growers and Collectors

(1) The license fee for nursery growers, other than greenhouse growers of herbaceous plants, and for collectors of native plants shall be as follows: If Annual Sales are — The license fee is:

(a) Up to $20,000 = $129;

(b) $20,001-$100,000 = $129 plus .0040 over $20,000;

(c) $100,001-$200,000 = $449 plus.0037 over $100,000;

(d) $200,001-$500,000 = $819 plus .0030 over $200,000;

(e) $500,001-$2,000,000 = $1,719 plus .0018 over $500,000;

(f) $2,000,001 & above = $4,419 plus .00052 over $2,000,000;

(g) Maximum Fee = $20,000.

(2) In addition to the annual license fee above, there will be a research assessment equal to .0002 of annual sales. The minimum research assessment is $10.

(3) In addition to the annual license fee (1) and research assessment fee (2) above, there will be an assessment for the Plant Pest and Disease Emergency Response Fund. The assessment will be adjusted annually to maintain a fund balance of $250,000 and will not exceed .0002 of annual sales.

Stat. Auth.: ORS 561 & 571
Stats. Implemented: ORS 571.057
Hist.: AD 8-1986, f. & ef. 5-22-86; AD 11-1995(Temp), f. & cert. ef. 6-14-95; AD 13-1997, f. & cert. ef. 7-31-97; Administrative correction 8-26-97; DOA 2-2003, f. & cert. ef. 1-7-03; DOA 9-2006, f. & cert. ef. 3-22-06; DOA 3-2008, f. & cert. ef. 1-7-08; DOA 13-2008, f. & cert. ef. 4-15-08; DOA 6-2014, f. & cert. ef. 5-1-14

603-054-0017

License Fees: Greenhouse Growers of Herbaceous Plants

(1) The license fee for greenhouse growers of herbaceous plants shall be as follows: If Annual Sales are — The license fee is:

(a) Up to $20,000 = $129;

(b) $20,001-$100,000 = $129 plus .0016 over $20,000;

(c) 100,001-$200,000 = $257 plus .0013 over $100,000;

(d) $200,001-$500,000 = $387 plus .00064 over $200,000;

(e) $500,001-$2,000,000 = $579 plus .00057 over $500,000;

(f) $2,000,001 & above = $1,434 plus .00052 over $2,000,000;

(g) Maximum Fee = $20,000.

(2) In addition to the annual license fee above, there will be a research assessment equal to .0002 of annual sales. The minimum research assessment is $10.

(3) In addition to the annual license fee (1) and research assessment fee (2) above, there will be an assessment for the Plant Pest and Disease Emergency Response Fund. The assessment will be adjusted annually to maintain a fund balance of $250,000 and will not exceed .0002 of annual sales.

Stat. Auth.: ORS 561 & 571
Stats. Implemented: ORS 571.057
Hist.: AD 8-1986, f. & ef. 5-22-86; AD 11-1995(Temp), f. & cert. ef. 6-14-95; AD 13-1997, f. & cert. ef. 7-31-97; Administrative correction 8-26-97; DOA 2-2003, f. & cert. ef. 1-7-03; DOA 9-2006, f. & cert. ef. 3-22-06; DOA 3-2008, f. & cert. ef. 1-7-08; DOA 13-2008, f. & cert. ef. 4-15-08; DOA 6-2014, f. & cert. ef. 5-1-14

603-054-0018

License Fees: Dealers, Florist and Landscape Contractors

(1) The license fee for dealers, florist, and landscape contractors shall be as follows: If annual purchases (live plant material only, cut flowers are exempt) are The license fee is:

(a) Up to $20,000 = $129;

(b) $20,001-$100,000 = [$129 plus .0016 over $20,000;

(c) 100,001-$200,000 = $257 plus .0013 over $100,000;

(d) $200,001-$500,000 = $387 plus .00064 over $200,000;

(e) $500,001-$2,000,000 = $579 plus .00057 over $500,000;

(f) $2,000,001 & above = $1,434 plus .00052 over $2,000,000;

(g) Maximum Fee = $20,000.

(2) In addition to the annual license fee above, there will be a research assessment equal to .0002 of annual purchases. The minimum research assessment is $10.

(3) In addition to the annual license fee (1) and research assessment fee (2) above, there will be an assessment for the Plant Pest and Disease Emergency Response Fund. The assessment will be adjusted annually to maintain a fund balance of $250,000 and will not exceed .0002 of annual purchases.

Stat. Auth.: ORS 561 & 571
Stats. Implemented: ORS 571.057
Hist.: AD 8-1986, f. & ef. 5-22-86; AD 11-1995(Temp), f. & cert. ef. 6-14-95; AD 13-1997, f. & cert. ef. 7-31-97; Administrative correction 8-26-97; DOA 2-2003, f. & cert. ef. 1-7-03; DOA 9-2006, f. & cert. ef. 3-22-06; DOA 3-2008, f. & cert. ef. 1-7-08; DOA 13-2008, f. & cert. ef. 4-15-08; DOA 6-2014, f. & cert. ef. 5-1-14

603-054-0020

Fees for European Pine Shoot Moth Survey

The fee for licensed nurseries or Christmas tree growers requesting European pine shoot moth survey is established at $85 per location (field) per year.

Stat. Auth.: ORS 561 & ORS 571
Stats. Implemented: ORS 571.145
Hist.: DOA 2-2003, f. & cert. ef. 1-7-03

603-054-0024

Fees for Issuance of Phytosanitary and Other Certificates

The following fees and charges are established for inspections requested by nurseries in order to issue state or federal phytosanitary certificates and any other certificate that requires inspection prior to issuance of such certificates. The base charge for certificates will be $25 each. The USDA administrative charge for federal phytosanitary certificates will be $12 for federal phytosanitary certificates completed by ODA personnel or $6 for federal phytosanitary certificates issued through PCIT.

Stat. Auth.: ORS 561 & 571
Stats. Implemented: ORS 571.145
Hist.: DOA 2-2003, f. & cert. ef. 1-7-03; DOA 9-2006, f. & cert. ef. 3-22-06; DOA 3-2008, f. & cert. ef. 1-7-08; DOA 4-2010, f. & cert. ef. 1-28-10; DOA 6-2014, f. & cert. ef. 5-1-14

603-054-0027

Notification of Imported Trees and Shrubs

(1) Recipients of tree and shrub nursery stock imported into the state of Oregon from any out-of-state source are required to notify the Oregon Department of Agriculture. Notification shall be via mail, FAX or e-mail to: Nursery Program Supervisor, Plant Division, Oregon Department of Agriculture, 635 Capitol St. NE, Salem, OR 97301; FAX 503-986-4564; quarantine@oda.state.or.us.

(2) For purposes of this section, "tree and shrub nursery stock" means woody forest and ornamental trees, shrubs and vines grown or kept for propagation or sale, including bareroot, balled and burlaped, and containerized plants, liners, budwood, seedlings and cuttings. Fruit, seeds and tissue culture plantlets are not considered tree and shrub nursery stock.

(3) Notice under (1) of this section in advance of arrival of the shipment is encouraged but must be no later than two business days (Monday through Friday) after its arrival. Notification shall include the species of plant(s), quantities, source, and recipient's contact information. Copies of regular shipping documents, e.g. load lists, with this information are encouraged. ODA may approve alternative notification systems if such systems allow ODA at least one business day to determine if an inspection is necessary.

(4) ODA will contact nurseries within one business day of receipt of notification if the tree and shrub nursery stock must be held for inspection under ORS 571.220 and 570.305. Recipients are not obligated to hold the imported tree and shrub nursery stock for inspection unless contacted directly by an ODA inspector, except that the imported tree and shrub nursery stock must not be sold or distributed to untraceable buyers, e.g. final consumers, for one business day after notifying ODA.

(5) Failure to comply with this rule could result in criminal penalties authorized in 571.991 of up to $5,000. Violation of this rule by a licensed nursery may also result in license suspension or revocation.

Stat. Auth.: ORS 570.305 & 571.220
Stats. Implemented: ORS 561.190
Hist.: DOA 9-2004, f. & cert. ef. 3-12-04; DOA 5-2007, f. & cert. ef. 3-16-07

603-054-0030

Inspection and Service Fees for Unlicensed Nursery Persons

The fees for inspection and special services performed for persons not required to be licensed pursuant to ORS Chapter 571 are as follows:

(1) Inspections and issuance of phytosanitary or other certificates at locations or premises of persons requesting such service shall be $60 per hour, chargeable to the nearest one-quarter hour, with a minimum of $45 for each inspection or issuance of a certificate.

(2) Inspections and issuance of phytosanitary certificates or other certificates at a State Department of Agriculture facility shall be $20 for each such certificate for non-commercial shipments (less than $1000 value) and $35 per certificate for commercial shipments (greater than $1000 value).

(3) Fees for laboratory services will be sufficient to recover the costs of such services.

Stat. Auth.: ORS 561 & 571
Stats. Implemented: ORS 561.020 & 571.145
Hist.: AD 2-1978, f. & ef. 1-19-78; AD 4-1979, f. & ef. 4-22-79; AD 1-1983, f. & ef. 1-4-83; AD 14-1997, f. & cert. ef. 7-30-97; DOA 2-2003, f. & cert. ef. 1-7-03; DOA 6-2014, f. & cert. ef. 5-1-14

603-054-0035

License Fees for Christmas Tree Growers

(1) The annual license fee for Christmas tree growers beginning May 15, 2008, shall be a basic charge of $62 plus an acreage assessment as follows: $3 per acre for 40 or fewer acres, plus an additional $2.60 per acre for more than 40 acres but not more than 100 acres, plus an additional $2.10 per acre for more than 100 acres but not more than 200 acres, plus an additional $1.60 per acre for more than 200 acres. The annual license fee for Christmas tree growers beginning May 15, 2009, shall be a basic charge of $64 plus an acreage assessment as follows: $3 per acre for 40 or fewer acres, plus an additional $2.70 per acre for more than 40 acres but not more than 100 acres, plus an additional $2.20 per acre for more than 100 acres but not more than 200 acres, plus an additional $1.70 per acre for more than 200 acres. The annual license fee for Christmas tree growers beginning May 15, 2010, shall be a basic charge of $66 plus an acreage assessment as follows: $3 per acre for 40 or fewer acres, plus an additional $2.80 per acre for more than 40 acres but not more than 100 acres, plus an additional $2.30 per acre for more than 100 acres but not more than 200 acres, plus an additional $1.80 per acre for more than 200 acres. The annual license fee for Christmas tree growers beginning May 15, 2011, shall be a basic charge of $68 plus an acreage assessment as follows: $3 per acre for 40 or fewer acres, plus an additional $2.90 per acre for more than 40 acres but not more than 100 acres, plus an additional $2.40 per acre for more than 100 acres but not more than 200 acres, plus an additional $1.90 per acre for more than 200 acres. The annual license fee for Christmas tree growers beginning May 15, 2012, shall be a basic charge of $70 plus an acreage assessment as follows: $3 per acre for 40 or fewer acres, plus an additional $3 per acre for more than 40 acres but not more than 100 acres, plus an additional $2.50 per acre for more than 100 acres but not more than 200 acres, plus an additional $2 per acre for more than 200 acres.

(2) The total license fee shall not exceed $5,000.

(3) To assist Christmas tree growers in determining their appropriate license fee, a license fee calculator can be found at: http://oda.state.or.us/dbs/christmas_tree_fee/calculator.lasso

Stat. Auth.: ORS 571.530
Stats. Implemented: ORS 571.530
Hist.: AD 11-1985, f. & ef. 11-27-85; AD 8-1987, f. & ef. 6-3-87; AD 6-1994, f. 6-3-94, cert. ef. 7-1-94; DOA 9-2008, f. & cert. ef. 2-15-08

Civil Penalties for Violations of ORS Chapters 561, 570 & 571

603-054-0040

Intent

Civil penalties encourage compliance with plant protection and marketing regulatory requirements. The intent of this civil penalty regulation is to implement the authority provided by the Oregon Legislature in order to protect Oregon's natural resources and enhance the marketing of our agricultural products. Communication is an important first step in reaching the Department of Agriculture's goal of educating the public and industry into compliance with its regulatory requirements. Occasionally, however, the violation is so obvious and threatening that stronger measures are appropriate in the first instance. Enforcement serves as an important, though usually secondary, educational tool.

Stat. Auth.: 1999 OL 390
Stats. Implemented: 1999 OL 390
Hist.: DOA 3-2001, f. & cert. ef. 1-5-01; DOA 10-2005, f. & cert. ef. 2-15-05

603-054-0045

Definitions

In addition to the definitions set forth in ORS 561.005, 570.005, 570.105, and 571.005, the following will apply:

(1) "Abatement": Action by a person to comply with a cited violation of the rules or statutes.

(2) "Director": The Director of the Department of Agriculture, or the Director's designee.

(3) "Good cause": Means a cause beyond the reasonable control of the person. "Good cause" exists when it is established by satisfactory evidence that factors or circumstances are beyond the control of a rational and prudent person of normal sensitivity, exercising ordinary common sense.

(4) "Magnitude of Violation": Means the seriousness of a violation with respect to how it is categorized. The prohibited acts shall be categorized as a Major violation, Moderate violation, or Minor violation.

(5) "Repeat violation": A violation that has not been fully corrected by the date ordered or subsequent violation of the same rule, order or statute.

(6) "Violation": The breach of a person's duty to comply with ORS chapters 561, 570, or 571 or any regulation, rule or order issued thereunder.

Stat. Auth.: 1999 OL 390
Stats. Implemented: 1999 OL 390
Hist.: DOA 3-2001, f. & cert. ef. 1-5-01; DOA 10-2005, f. & cert. ef. 2-15-05

603-054-0050

Consolidation of Proceedings

Each and every violation is a separate and distinct offense. In cases of continuing violations, proceedings for the assessment of multiple civil penalties for multiple violations against a person may be consolidated into a single hearing.

Stat. Auth.: 1999 OL 390
Stats. Implemented: 1999 OL 390
Hist.: DOA 3-2001, f. & cert. ef. 1-5-01; DOA 10-2005, f. & cert. ef. 2-15-05

603-054-0055

Notice of Violation and Assessment of Civil Penalties

(1) Notice of a violation shall inform the person of the existence of a violation, the actions required to resolve the violation and the consequences of continued non-compliance.

(2) The Director shall prescribe a reasonable time for the abatement of a violation of ORS 561, 570 or 571. Upon timely request, the Director may extend this time for good cause shown. The request should state any good cause that supports the request.

(3) Violations occurring after the time prescribed for the elimination of the violation shall be considered repeat violations.

(4) Persons receiving a notice of proposed civil penalty under these rules shall have twenty (20) calendar days to request a hearing. If a request is not received on the 20th day after the notice is served, the Department may issue a default order. The Department file is designated as the record in cases of default.

(5) Notice of violation shall be in writing and shall be sent by registered or certified mail to the last known address on file with the Department of Agriculture. The notice shall include, but not be limited to:

(a) A reference to the particular section of the statute and/or administrative rule involved;

(b) A short and plain statement of the matters asserted or charged;

(c) A statement of the amount of the penalty or penalties assessed, and how it was calculated;

(d) A person's right to request a hearing within twenty (20) days of receipt of the notice and explanation of how a hearing may be requested;

(e) A statement that the notice becomes a final order unless the Department receives a written request for a hearing from the person whom the civil penalty is addressed within twenty (20) days from the receipt of the notice;

(f) A statement that the person is entitled to an informal conference with the Department to attempt resolution of the violation and penalty prior to commencement of a formal contested case hearing.

(6) Civil penalties shall be due and payable within twenty (20) days of receipt of the final order of violation or when the notice is converted to a final order because the person has defaulted.

(7) Any time after the service of the written notice of assessment of a civil penalty, the Director may compromise, reduce or settle any unpaid civil penalty at any amount that the Director deems appropriate in his or her discretion. As provided by ORS 183.415(5), any compromise, reduction or settlement authorized by the Director shall be final and not subject to judicial review.

Stat. Auth.: 1999 OL 390

Stats. Implemented: 1999 OL 390

Hist.: DOA 3-2001, f. & cert. ef. 1-5-01; DOA 10-2005, f. & cert. ef. 2-15-05

603-054-0060

Hearing Procedures

All hearings shall be conducted pursuant to the applicable contested case procedures as outlined in ORS 183.310 to 183.550 and the Attorney General's Uniform and Model Rules of Procedure (OAR Chapter 137, 1999).

Stat. Auth.: 1999 OL 390
Stats. Implemented: 1999 OL 390
Hist.: DOA 3-2001, f. & cert. ef. 1-5-01; DOA 10-2005, f. & cert. ef. 2-15-05

603-054-0065

Entry of Order and Appeal Rights

(1) If a person, having received a notice of violation(s), fails to request a hearing as specified in OAR 603-054-0055(5)(d), or if after the hearing the person is found to be in violation of the provisions of these rules, a final order may be entered by the department assessing a civil penalty.

(2) The Director or his/her designate shall sign the order.

(3) The final order, if not appealed or not sustained on appeal, shall constitute a judgement and may be recorded with the county clerk in any county of this state. The penalty provided in the order so recorded becomes a lien upon the title of any interest and real property in the county owned by the person against whom the order is entered.

Stat. Auth.: 1999 OL 390
Stats. Implemented: 1999 OL 390
Hist.: DOA 3-2001, f. & cert. ef. 1-5-01; DOA 10-2005, f. & cert. ef. 2-15-05

603-054-0070

Civil Penalty Schedule Matrix

(1) In addition to any other penalty provided by law, the Director may assess a civil penalty for violation of any provision of ORS Chapters 561, 570 and 571 relating to agricultural orders, quarantine rules and regulations, director's exemptions, compliance agreements, control area orders, failure to pay imported timber inspection fee, unlicensed activity as grower, dealer or agent for the plant nursery, and unlicensed activity as a Christmas tree grower. The amount of any civil penalty shall be determined using the following matrix. The amount of an initial civil penalty shall not exceed $5,000 and any subsequent civil penalties for a repeat occurrence of the same prohibited act shall not exceed $10,000 per violation. [Matrix not included. See ED. NOTE.]

(2) Magnitude of violation: The commission of any prohibited act specified below has been determined to be a violation of ORS Chapter 561, 570 or 571 and is subject to a civil penalty. The commission of each prohibited act has been categorized as to its magnitude of violation as follows:

(a) Major:

(A) Knowingly importing or transferring infested or infected plant material, or other regulated items or regulated organisms into or within Oregon in violation of an agricultural quarantine order, quarantine rules and regulations, director's exemption, compliance agreement, or control area order.

(B) Using falsified or altered certificates or other official documents issued by a federal, state or county phytosanitary official.

(C) Tampering with, altering, misrepresenting or falsifying in any manner official documents issued by a plant regulatory official.

(D) Providing false information required for issuance of documents or official certificates as required under agricultural quarantine orders, quarantine rules and regulations, director's exemptions, compliance agreements, control area orders, or imported timber products inspection program.

(E) Substituting uninspected plant material or regulated items for plant material or regulated items covered by a Department inspection.

(F) Willful violation: a violation that is committed knowingly by a person, or the person's agent, who intentionally or knowingly disobeys or recklessly disregards the requirements of a statute, regulation, rule, or order.

(G) Repeat violations.

(b) Moderate:

(A) Failure to license or refusal to license as a Christmas Tree Grower; Nursery Stock Grower or Collector of Native Plants; Greenhouse Grower of Herbaceous Plants; Nursery Dealer, Florist or Landscape Contractor.

(B) Importing or transferring infested or infected plant material, or other regulated items or regulated organisms into or within Oregon in violation of an agricultural quarantine order, quarantine rules and regulations, director's exemption, compliance agreement, or control area order.

(C) Knowingly falsifying all or part of any application for registration or licensing.

(D) Failure to pay imported timber products program inspection fees.

(E) Growing plants or conducting other activities requiring a compliance agreement with the Department, without entering into said compliance agreement.

(c) Minor:

(A) Failure to maintain proper certificates or paperwork as required by an agricultural quarantine order, quarantine rules and regulations, director's exemption, compliance agreement, control area order, or the timber products inspection program.

(B) Failure to notify the Department as required by an agricultural quarantine order, quarantine rules and regulations, director's exemption, compliance agreement, control area order, or the timber products inspection program.

(C) Transporting or accepting for transportation plant material or regulated items that do not carry the official inspection documents required by the Department.

[ED. NOTE: Matrices referenced are available from the agency.]

Stat. Auth.: 1999 OL 390
Stats. Implemented: 1999 OL 390
Hist.: DOA 3-2001, f. & cert. ef. 1-5-01; DOA 10-2005, f. & cert. ef. 2-15-05

603-054-0075

Mitigating Circumstances

During the process of determining the amount of civil penalty to be assessed, the Director may take into consideration any factors which may have an influence on the particular case. Such factors may include whether the violation appears to be accidental or willful and repeated, whether the violation is a first time offense or if there is a history of violations and the degree of cooperation shown by the person involved in the violation.

Stat. Auth.: 1999 OL 390

Stats. Implemented: 1999 OL 390

Hist.: DOA 3-2001, f. & cert. ef. 1-5-01; DOA 10-2005, f. & cert. ef. 2-15-05

603-054-0080

License Requirement for Persons Doing Landscaping Business

The Department, as required by ORS 571.045(2), hereby establishes that any person doing landscaping business that stores plants for more than one year, operates as a grower, dealer or agent, keeps plants for propagation, advertises nursery stock for sale, or sells nursery stock, must obtain a nursery license.

Stat. Auth.: ORS 561 & ORS 571
Stats. Implemented: ORS 571.045
Hist.: DOA 2-2003, f. & cert. ef. 1-7-03

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