Mont. Admin. R. 4.12.404 - SIGNIFICANCE OR GRAVITY OF A VIOLATION
(1) The
department in determining the amount of a civil penalty will consider the
significance and gravity of a violation as required by
80-9-303,
MCA. Examples of significance and gravity factors that may increase or decrease
a penalty follow; they are neither inclusive or necessarily additive in
substance, order presented, or number:
(a) a
history of inspections with no violations may decrease a penalty. No inspection
history and no record of violations may have a neutral effect on the penalty
amount. A history of violations or failure to correct past violations may
increase the penalty;
(b) a penalty
may be decreased when a person agrees to correct a violation and follows
through on an agreed upon schedule;
(c) the presence of multiple violations at an
inspection may increase a penalty;
(d) a person's cooperation during an
inspection or investigation may decrease a penalty. Otherwise, this factor will
have a neutral effect on penalty determination;
(e) widespread scope of a violation may
increase a penalty. Examples of considerations in determining scope include
geographic distribution of the violation, number of persons or animals
affected, the number of products involved, and the amount or number of lots
involved;
(f) a person's timely and
voluntary settlement of damages may decrease a penalty. This factor will be
considered when written documentation of settlement is received in the
department from the charged person and the person suffering damage;
(g) a penalty may be increased upon
demonstration that a person benefited economically from the
violation;
(h) violations that
result in harm to animals may be cause for increasing a penalty;
(i) violations that result in or have the
potential to result in illegal residues in food, commodities or food-producing
animals may increase the penalty amount;
(j) label violations that result in the
actual or potential failure of a commercial feed to perform according to claims
may increase a penalty. Examples of such label violations include deficiency in
any ingredient or composition of ingredients represented by the label,
misleading, incomplete or incorrect label directions, or misbranding;
(k) a violation that results in condemnation
or destruction due to adulteration or other inability to utilize a feed for its
intended purpose may be cause for increasing a penalty; and
(l) the amount of deviation as a result of
official analytical results from an official sample beyond the action level as
compared to the guaranteed claim may increase or decrease the penalty,
respective to the amount of the deviation.
(i) This subsection will be applied effective
July 1, 2002.
Notes
Sec. 80-9-103 and 80-9-303, MCA; IMP, Sec. 80-9-303, MCA;
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