WSR 98-02-023

PERMANENT RULES

DEPARTMENT OF AGRICULTURE

[Filed December 31, 1997, 9:16 a.m.]

Date of Adoption: December 31, 1997.

Purpose: To establish fair, uniform and equitable means for assessing civil penalties and licensing actions for violations of chapters 16.49, 19.32, 69.04, 69.07, and 69.10 RCW.

Statutory Authority for Adoption: RCW 16.49.680, 19.32.030, 69.04.730, 69.07.020, and 69.10.055.

Adopted under notice filed as WSR 97-22-031 on October 30, 1997.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 8, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 8, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 8, amended 0, repealed 0.

Effective Date of Rule: Thirty-one days after filing.

December 31, 1997

James M. Jesernig

Director

PENALTIES

NEW SECTION

WAC 16-139-001 Promulgation and purpose. This chapter is promulgated by the director of agriculture for the purpose of establishing fair, uniform and equitable means for assessing civil penalties and licensing actions authorized under RCW 16.49.444, 19.32.060, 69.04.880, 69.07.060, 69.07.110, 69.07.150(2), 69.10.030 and 69.10.050. The rules adopted in WAC 16-139-005 through 16-139-060 apply to violations of chapters 16.49 RCW (Custom slaughtering), 19.32 RCW (Food lockers), 69.04 RCW (Intrastate commerce in food, drugs, and cosmetics), 69.07 RCW, (Washington Food Processing Act) and 69.10 RCW (Food storage warehouses). The director also declares:

(1) Education and technical assistance play an important role in the prevention, correction or abatement of food safety violations and are the department's preferable alternative to regulatory action. However, at times regulatory action is 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 initiates such actions when educational measures, technical assistance, warning letters, compliance agreements or other remedial measures fail to achieve compliance; and

(2) Any regulatory action taken by the department against any person who violates the provisions of chapters 16.49, 19.32, 69.04, 69.07 and 69.10 RCW, and rules adopted thereunder shall be commensurate with the seriousness of the violation under the circumstances; and

(3) Each person shall be treated fairly in accordance with the rules set forth in this chapter.

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NEW SECTION

WAC 16-139-005 Definitions. (1) Definitions:

(a) "Violation" means commission of an act or acts prohibited by chapter 16.49, 19.32, 69.04, 69.07 or 69.10 RCW, including rules adopted under them.

(b) "Prior violation" means the same or a similar violation committed by a person within the previous three years.

(c) "Critical violation" means a violation resulting in food adulteration that could cause injury or illness in consumers or that has the potential to contribute to conditions resulting in such adulteration.

(d) "Significant violation" means a violation resulting in food adulteration or food being prepared under unsanitary conditions not apparently related to a public health danger or that has the potential to contribute to conditions resulting in such adulteration and if not corrected could lead to a critical violation.

(e) "Economic violation" means a violation which affects the purchaser economically, either due to misbranding or adulteration where inferior or substandard quality product is substituted, by hiding defects or by false or misleading labeling.

(f) "Other violation" means a violation of chapter 16.49, 19.32, 69.04, 69.07 or 69.10 RCW, not covered under the penalty schedules in WAC 16-139-020 or 16-139-030, including, but not limited to, violation of embargo, mutilation of embargo notices, sale of food from an unlicensed processor, operating without a required license, refusal of inspection or access, interference with the director or the director's designee, or economic and labeling violations.

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

(h) "Similar," with respect to violations, means related in appearance or nature; alike though not identical.

(i) "Knowingly" means that the alleged violator had previous warning, knew or reasonably should have known that a condition could result in adverse effects or that a violation would occur.

(j) "Potential," with respect to violations, means that a violation may result in food adulteration or a risk to health or that the violation supports conditions that may contribute to food adulteration or a risk to health.

(k) "Probable," with respect to violations, means that a violation is reasonably likely to result in food adulteration or a risk to health.

(2) Additional definitions for terms used in this chapter are found in the following provisions of law:

(a) Washington Food, Drug and Cosmetic Act, chapter 69.04 RCW.

(b) Washington Food Processing Act, chapter 69.07 RCW.

(c) Current Good Manufacturing Practice in Manufacturing, Packing or Holding Human Food, Title 21, Code of Federal Regulations, Chapter 1, Subchapter B, Part 110.

(d) Food storage warehouses, chapter 69.10 RCW.

(e) Custom Slaughter Act, chapter 16.49 RCW.

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NEW SECTION

WAC 16-139-010 Calculation of penalty. (1) Median penalty selection. In the disposition of administrative cases, the department shall determine the penalty as follows:

(a) The department shall first determine the correct penalty assignment schedule table listed in either WAC 16-139-020 (critical violations), WAC 16-139-030 (significant violations), or WAC 16-139-040 (economic and other violations), that is applied based on the type of violation alleged.

(b) The department shall then determine the penalty range based on whether there have been prior violations in last three years.

(c) The department shall then determine:

(i) The probability of a violation causing a risk to health under WAC 16-139-020 (critical violations); or

(ii) The probability of a violation resulting in food adulteration under WAC 16-139-030 (significant violations); or

(iii) Whether the violation was knowing under WAC 16-139-040 (economic and other violations).

(d) The scheduled penalty is then applied unless a proportionate adjustment is made. In no case will a penalty less than the minimum penalty listed for the violation be applied.

(2) Proportionate adjustment of median penalty. The department reserves the right to proportionately increase the civil penalty and proportionately decrease the licensing action under certain circumstances. Such circumstances include situations where licensing action as a deterrent is ineffective and includes but is not limited to violations by persons who are not licensed. Likewise, the department reserves the right to proportionately decrease the civil penalty and proportionately increase the licensing action when circumstances in a particular case demonstrate the ineffectiveness of a civil penalty action as a deterrent.

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NEW SECTION

WAC 16-139-020 Penalty assignment schedule--Critical violations.

LEVEL DEGREE OF RISK PENALTY

TO HEALTH

1st Violation in a 3-year period A. POTENTIAL $200 and 2-day license suspension

B. PROBABLE $1000 and 7-day license suspension

2nd Violation in a 3-year period A. POTENTIAL $400 and 4-day license suspension

B. PROBABLE $1000 and 14-day license suspension

3rd Violation in a 3-year period A. POTENTIAL $800 and 8-day license suspension

B. PROBABLE $1000 and 30-day license suspension

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WAC 16-139-030 Penalty assignment schedule--Significant violations.

LEVEL POTENTIAL FOR FOOD PENALTY

ADULTERATION

1st Violation in a 3-year period A. POTENTIAL $100 and 1-day license suspension

B. PROBABLE $200 and 2-day license suspension

2nd Violation in a 3-year period A. POTENTIAL $200 and 2-day license suspension

B. PROBABLE $400 and 4-day license suspension

3rd Violation in a 3-year period A. POTENTIAL $400 and 4-day license suspension

B. PROBABLE $800 and 8-day license suspension

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NEW SECTION

WAC 16-139-040 Penalty assignment schedule--Economic and other violations of chapters 16.49, 19.32, 69.04, 69.07, and 69.10 RCW.

LEVEL DEGREE OF KNOWLEDGE OF PENALTY

VIOLATION

1st Violation in a 3-year period A. UNKNOWING $100 and 1-day license suspension

B. KNOWING $200 and 2-day license suspension

2nd Violation in a 3-year period A. UNKNOWING $200 and 2-day license suspension

B. KNOWING $400 and 4-day license suspension

3rd Violation in a 3-year period A. UNKNOWING $300 and 3-day license suspension

B. KNOWING $1000 and 10-day license suspension

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NEW SECTION

WAC 16-139-050 Other dispositions of alleged violations. Nothing herein shall prevent the department from:

(1) Choosing not to pursue a case administratively.

(2) Issuing a notice of correction in lieu of pursuing administrative action.

(3) Negotiating settlement(s) of cases on such terms and for such reasons as it deems appropriate. Prior violation(s) covered by a prior settlement agreement may be used by the department for the purpose of determining the appropriate penalty for the current alleged violation(s) if not prohibited by the agreement.

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NEW SECTION

WAC 16-139-060 Disposition of collected penalty money. Money collected by the department as civil penalties for violation of chapters 16.49, 69.04, and 69.10 RCW shall be directed to the state general fund. Money collected by the department as civil penalties for violations of chapter 69.07 RCW shall be utilized for food processing industry technical advisement and assistance in meeting food safety regulations and requirements and food safety education and training of food safety program personnel.