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(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.

History: Sec. 80-9-103 and 80-9-303, MCA; IMP, Sec. 80-9-303, MCA; NEW, 2000 MAR p. 3333, Eff. 12/8/00; AMD, 2002 MAR p. 778, Eff. 3/15/02.

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