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(continued) of 2,4-D, or any other ester of equal or higher volatility with regard to plant damage as determined by the department, without first obtaining a permit for such use as provided in ORS 634.322(10); 634.372(21));

(U) Sell, use or remove any pesticide or device subjected to a "stop sale, use or removal" order until the pesticide or device has been released there-from as provided in ORS 634.322(3) (ORS 634.372(22)).

(b) Category II (Moderate):

(A) Operate a faulty or unsafe spray apparatus, aircraft or other application device or equipment (ORS 634.372(3));

(B) As a pesticide dealer refuse or neglect to prepare required records of restricted use and highly toxic pesticide product sales and to maintain those records for at least three years prior to the date of inspection, which include the purchaser's name, address and certification number, sale date, and identification and quantity of product sold (ORS 634.372(5); OAR 603-057-0140). Two or three items of required information missing and/or incorrect;

(C) As a pesticide operator, public applicator or pesticide applicator not employed by a pesticide operator, refuse or neglect to prepare required pesticide application records, and to maintain those records for at least three years prior to the date of inspection, which include the name of the employer or customer, the location, date, approximate time application was made, supplier and identity of product applied, amount of product applied, the specific property or the crop to which application was made, type of application equipment used, and the full name of the applicator or trainee who made the application (ORS 634.372(5); ORS 634.146(1); OAR 603-057-0130). Two or three items of required information missing and/or incorrectly recorded;

(D) As a pesticide applicator, work or engage in the application of any classes of pesticides without applicator's license, or apply pesticides which are not specifically authorized by such license (ORS 634.372(8)). Inappropriate license;

(E) As a pesticide operator, engage in the business of, or represent or advertise as being in the business of, applying pesticides on the property of another, without first obtaining and maintaining a pesticide operator's license, nor shall such person engage in a class of pesticide application business which is not specifically authorized by the license issued by the department. Further, no such person shall employ or use any person to apply or spray pesticides who is not a licensed pesticide applicator or pesticide trainee (ORS 634.372(9)):

(i) Firm licensing -- Inappropriate license;

(ii) Employee licensing -- Inappropriate license.

(F) As a pesticide trainee, work or engage in the application of any class of pesticides without first obtaining and maintaining a pesticide trainee's certificate and is otherwise in compliance with the provisions of this chapter (ORS 634.372(10)). Inappropriate license;

(G) Formulate, deliver, distribute, sell or offer for sale any pesticide which has not been registered as required by ORS 634.016 (ORS 634.372(17));

(H) Formulate, deliver, distribute, sell or offer for sale any powdered pesticide containing arsenic or any highly toxic fluoride which is not distinctly colored (ORS 634.372(18));

(I) Distribute sell or offer for sale any pesticide except in the manufacturers original unbroken package (ORS 634.372(19)).

(c) Category III (Minor):

(A) As a pesticide dealer refuse or neglect to prepare required records of restricted use and highly toxic pesticide product sales and to maintain those records for at least three years prior to the date of inspection, which include the purchaser's name, address and certification number, sale date, and identification and quantity of product sold (ORS 634.372(5); OAR 603-057-0140). One item of required information missing and/or incorrectly recorded;

(B) As a pesticide operator, public applicator or pesticide applicator not employed by a pesticide operator, refuse or neglect to prepare required pesticides application records, and to maintain those records for at least three years prior to the date of inspection, which include the name of the employer or customer, the location, date, approximate time application was made, supplier and identity of product applied, amount of product applied, the specific property or the crop to which application was made, type of application equipment used, and the full name of the applicator or trainee who made the application (ORS 634.372(5); 634.146(1); OAR 603-057-0130). One item of required information missing and/or incorrectly recorded.

(3) Gravity of Violation: In consideration of a civil penalty for any violation of ORS Chapter 634, the Director shall evaluate the violation as to its gravity of effect. Such evaluation shall include, but not be limited to the threat posed to human health and/or the environment, the type of pesticide used or distributed, and if the pesticide was applied, its condition of usage. Following are the factors that may be considered in assigning a gravity ranking to a specific violation. The existence of one or more factors determined to be of high level shall constitute the gravity being considered to be of high level. Lacking any factor determined to be high level, the existence of one or more factors determined to be of medium level shall constitute the gravity being of medium level. Lacking any factor determined to be of high or medium level shall constitute the gravity being of low level:

(a) Gravity of Effect -- High Level:

(A) Human Threat Injury or illness occurred which was confirmed by medical evaluation conducted through the Oregon Pesticide Analytical And Response Center to have been caused by the pesticide exposure;

(B) Environmental Threat:

(i) Evidence of injury to crops, wildlife, and/or livestock documented by the department or other appropriate federal or state agency;

(ii) Evidence of surface or groundwater contamination documented by the department or other appropriate federal or state agency.

(C) Pesticide:

(i) Designated as restricted use or highly toxic;

(ii) Use or distribution halted due to emergency suspension.

(D) Conditions of Usage:

(i) Wide area of application;

(ii) Use in area of high population density (e.g., urban, suburban).

(b) Gravity of Effect -- Medium Level:

(A) Human Threat Physical irritation occurred which was confirmed by medical evaluation conducted through the Oregon Pesticide Analytical And Response Center to have been caused by pesticide exposure;

(B) Environmental Threat Symptoms of exposure visible in crops, wildlife, and/or livestock documented by the department or other appropriate federal or state agency;

(C) Condition of Usage:

(i) Moderate area of application;

(ii) Use in area of medium population density.

(c) Gravity of Effect -- Low Level:

(A) Human Threat No injury, illness or physical irritation was confirmed by medical evaluation conducted through the Oregon Pesticide Analytical and Response Center;

(B) Environmental Threat:

(i) No evidence of injury to crops, wildlife, or livestock documented by the department or other appropriate federal or state agency;

(ii) No evidence of surface water or groundwater contamination documented by the department or other appropriate federal or state agency.

(C) Pesticide not Designated as Restricted Use or Highly Toxic;

(D) Conditions of Usage:

(i) Small area of application;

(ii) Use in area of low population density (e.g., remote).

Stat. Auth.: ORS 561 & ORS 634
Stats. Implemented: ORS 634.306, ORS 634.900 & ORS 634.915
Hist.: AD 4-1990, f. & cert. ef. 3-16-90

603-057-0530

Civil Penalty Determination Procedure

In determining the amount of civil penalty to be assessed for any violation of ORS Chapter 634 the Director shall apply the following procedure:

(1) Determine the magnitude of the violation, as specified in OAR 603-57-525(2).

(2) Determine the gravity of effect pertinent to the violation, as specified in OAR 603-057-0525(3).

(3) Using the magnitude identified and the gravity of effect identified, determine the base penalty (B) utilizing the matrix contained in OAR 603-057-0525(1).

(4) Calculate the amount of the civil penalty to be assessed utilizing the formula:

NB + [(.1 x NB)(P + H + R + C)] = Penalty Amount
where:

(a) N = the number of times, within a period of three years prior to and including the date of the current violative act, that the person has been determined by the department to have committed that violative act;

(b) B = Base fine is the primary fine for a given violation derived from the matrix contained in OAR 603-057-0525(1).

(c) P = Past occurrence of unrelated violations under ORS Chapter 634 for a period of three years prior to the date of the current violative act. P will be weighted from O to 6 in the following manner:

(A) O = no prior violation or insufficient evidence on which to base a finding;

(B) 1 = past occurrence of an unrelated Category III violation;

(C) 2 = past occurrence of an unrelated Category II violation or two unrelated Category III violations;

(D) 3 = past occurrence of an unrelated Category I violation, two unrelated Category II violations or three unrelated Category III violations;

(E) 4 = past occurrence of two unrelated Category I violations, three unrelated Category II violations or four unrelated Category III violations;

(F) 5 = past occurrence of three unrelated Category I violations, four unrelated Category II violations, or five or more unrelated Category III violations;

(G) 6 = past occurrence of three or more unrelated Category I violations or five or more unrelated Category II violations.

(d) H = History of the person in taking all feasible steps or procedures necessary and appropriate to prevent or correct a violative action. H will be weighted from -2 to 2 in the following way:

(A) -2 = the person took all feasible steps to correct any prior violations;

(B) O = there is no prior history or insufficient information on which to base a finding;

(C) 1 = the person took some, but not all feasible steps to correct prior violations;

(D) 2 = the person took no action to correct prior violations.

(e) R = Preventability of violation and whether negligence or misconduct was involved. R will be weighted from -2 to 7 in the following way:

(A) -2 = the person's actions determined to be violative were unavoidable;

(B) O = information is insufficient to make any finding;

(C) 3 = the person's actions determined to be violative were reasonably avoidable;

(D) 7 = the person's actions were flagrant.

(f) C = Cooperativeness on the part of the person to assist the department in its investigation and to the extent possible, rectify the violation. C will be weighted from -2 to 2 in the following way:

(A) -2 = the person is cooperative;

(B) -1 = the person provides limited cooperation;

(C) O = the person is neither cooperative nor uncooperative;

(D) 1 = the person is generally uncooperative;

(E) 2 = the person is uncooperative.

Stat. Auth.: ORS 561 & ORS 634
Stats. Implemented: ORS 634.306, ORS 634.900 & ORS 634.915
Hist.: AD 4-1990, f. & cert. ef. 3-16-90; AD 16-1990(Temp), f. & cert. ef. 8-10-90; AD 22-1990, f. & cert. ef. 12-17-90

603-057-0535

Pesticide Use on Crops Grown for Seed Production

(1) For purposes of pesticide product registration, labeling, distribution and use, certain crops when grown exclusively for seed production with the sole intent of the seed being planted, or with the sole intent of the seed being processed to produce nonedible industrial or nonedible cosmetic oil, shall be considered nonfood/nonfeed sites. If certain conditions are met as specified in this rule, a pesticide residue tolerance is not required to obtain a pesticide registration on the crop. These crops include, but are not limited to: [Table not included. See ED. NOTE.]

(2) Certain crops which may be grown for seed production, shall be considered food/feed sites, and not eligible to obtain a nonfood/nonfeed status. These crops include, but are not limited to: Cereal Grains: including barley, buckwheat, corn, millet, oats, rye, sorghum, triticale, and wheat; Legume Vegetables (succulent and dried): including all peas, beans, chickpeas, and lentils; canola (as defined in OAR 603-052-0860(a)); garlic; potatoes; pumpkins; sunflower.

(3) If the Department receives an application for a FIFRA Section 24(c) registration or a FIFRA Section 18 authorization, and the pesticide product is intended to be used on a seed crop not listed in (1) or (2) above, additional information must be provided to the Department to support a nonfood/nonfeed designation. The Department shall make or deny the nonfood/nonfeed designation based upon evaluation of available information.

(4) In order for a pesticide product to be registered, labeled, distributed and used on a crop grown exclusively for seed production, as identified in (1) above, the following conditions must be met:

(a) The seed conditioner shall maintain a record of each pesticide applied to the seed crop for which there is no established pesticide residue tolerance. This record shall include the date of each application.

(b) No seed produced in Oregon utilizing a pesticide product for which there is no established pesticide residue tolerance on the seed crop may be distributed for human or animal consumption.

(c) All screenings resulting from a seed crop identified in (1) above shall be disposed of in such a manner that the screenings cannot be distributed or used for food or feed purposes.

(d) No portion of the seed crop to which a pesticide product having no established pesticide residue tolerance for the seed crop has been applied shall be used or distributed for food or feed. This restriction pertains to, but is not limited to, green chop, hay, pellets, meal, whole seed, cracked seed, straw, roots, bulbs, foliage or seed screenings, and to the grazing of the crop field, stubble or regrowth.

(e) The seed conditioner shall keep records of all seed screening disposals for at least three years from the date of disposal and shall furnish these records to the department upon request.

(f) The disposal records required in section (e) above shall consist of documentation verifying shipment to the controlled site where disposal occurred, and shall identify each of the following:

(A) The name, if applicable, and location of the disposal site;

(B) Method of disposal (i.e., burial, composting, or incineration);

(C) Amount and type of material disposed of; and

(D) The date of shipment to the disposal site.

(5) Administrative rules enacted and administered by the Oregon Department of Environmental Quality, contained in OAR 340-100-0010, specify that any portion of a seed crop grown in this state, its foliage, seed chaff, screenings or other crop by-products treated with a pesticide according to label instructions shall not be considered a hazardous waste. Therefore, the requirements for disposal of hazardous waste shall not apply to the disposal of a pesticide treated seed crop or its by-products.

(6) Refusing or neglecting to prepare and maintain the records required to be kept by (4)(a) and (4)(e) of this section shall be considered a prohibited act according to ORS 634.372(5).

(7) Making false, misleading or fraudulent records required by (4)(a) and (4)(e) of this section shall be considered a prohibited act according to ORS 634.372(6).

(8) Any seed from a field treated with a pesticide product having no pesticide residue tolerance shall bear specific and conspicuous container labeling, or if shipped in bulk, on the shipment invoice or bill of lading. Said labeling shall contain the following statement: "This seed was produced using one or more products for which the United States Environmental Protection Agency has not established pesticide residue tolerances. This seed, in whole, as sprouts, or in any form, may not be used for human consumption or animal feed. Failure to comply with this condition may violate requirements of the Federal Food and Drug Administration, the Oregon Department of Agriculture and other regulatory agencies."

(9) All possessors of seed labeled as specified in (8) above, including brokers and dealers, shall prepare and maintain records which include a copy of the seed labeling.

(10) The conditions contained in (1) through (9) of this rule shall not apply to a seed crop, or its by-products, grown in Oregon under the following conditions:

(a) Having no pesticide(s) applied to it; or

(b) Utilizing only pesticides registered and labeled for application to the crop, and having established residue tolerances for the specific crop and its by-products.

(11) The requirements specified in (8) and (9) of this rule shall not apply if the seed is sold or distributed in consumer packets weighing less than 5.0 oz., and is intended for retail sale and noncommercial use.

(12) The restrictions contained in (4)(d) of this rule may be modified by the Department if residue data are provided, and the data and modification are considered acceptable by both the Department and the U.S. Environmental Protection Agency.

(13) If the conditioner has not been provided information as to what pesticides were applied to a field producing a seed crop specified in (1) above, the field will be considered to have been treated with a pesticide not having a tolerance. In such situations, the seed conditioner will be exempt from the requirements of (4)(a) above. All other requirements of (4)(b) through (9) shall apply.

(14) Any seed grown in Oregon, and conditioned in another state which has a labeling requirement for seed conditioned in that state similar to (8) above, shall be exempt from the labeling requirements contained in (8) above. Seed exported from Oregon under conditions specified in this subsection must be labeled as required in (8) above by the grower, broker or other responsible party.

(15) Any "treated seed" as defined in OAR 603-56-431(1)(a), and meeting the labeling requirements of OAR 603-56-431(1), shall be exempt from the labeling requirements contained in (8) above. Prior to treatment, the seed must be labeled as required in (8) above.

[ED. NOTE: Tables referenced in this rule are available from the agency.]

Stat. Auth.: ORS 561.190 & ORS 634
Stats. Implemented: ORS 634.306 & ORS 634.322
Hist.: AD 4-1993, f. & cert. ef. 2-12-93; DOA 17-2001, f. 8-16-01, cert. ef. 1-1-02


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