Section 25-13-013 - Assessment of Administrative FinesIf any person fails to comply with the Act and the regulations adopted and promulgated pursuant to the Act, the Department may impose an administrative fine pursuant to Neb. Rev. Stat. § 2-10,103.02 and this section.
013.01 In addition to the definitions set forth in 25 NAC 13-001, the following shall apply to this section: 013.01A LEVEL OF VIOLATION shall mean the alleged violation is a first or subsequent violation. 013.01B FIRST VIOLATION shall mean the alleged violator has not been found by an order of the Director or any court, or by the violator's own admission in a settlement agreement, to have committed a violation of the Act or these regulations in the three years immediately preceding the date of the alleged violation. 013.01C SUBSEQUENT VIOLATION shall mean the alleged violator has committed the same violation of the Act or these regulations one or more times within the three years immediately preceding the date of committing the current alleged violation as determined by an order of the Director or any court, or the alleged violator has entered into a settlement agreement admitting to the facts establishing the previous violation. 013.01D BASE FINE shall mean the amount of the administrative fine set by regulation for a particular violation of the Act or these regulations prior to any adjustments for gravity or size of the operation. 013.02 When it is determined that an administrative fine is an appropriate penalty for a violation of the Act or these regulations, the actual amount of such administrative fine shall be calculated by determining the base fine and making the necessary adjustments for gravity and the size of business as set forth in this section. An alleged violator shall be subject to the assessment of a fine for each violation, but may not be fined for any lesser included violations arising out of the same act, if the alleged violator has been fined for the greater violation. The Department may, however, issue any fine at the statutory maximum for any egregious violation. The base fines established for the specific violations are as follows: 013.02A Distributing nursery stock without a nursery stock distributor license or receiving nursery stock for further distribution from any person who has not been duly licensed or approved under the Act. 013.02A(1) Base fine for a first violation is $600. 013.02A(2) Base fine for a subsequent violation is $1,000.013.02B Using any license issued by the Department after it has been revoked or expired, while the licensee was under suspension or for purposes other than those authorized by the Act. 013.02B(1) Base fine for a first violation is $600. 013.02B(2) Base fine for a subsequent violation is $1,000. 013.02C Fraudulently using any certificate, license or similar document issued by the Department, falsifying information provided on an application or other document submitted to the Department or allowing a license to be used by any person other than the person to whom it was issued. 013.02C(1) Base fine for a first violation is $600. 013.02C(2) Base fine for a subsequent violation is $1,000. 013.02D Moving any regulated article into the state from a quarantined area or area identified by the Department in a harmonization plan of any other state when such article has not been treated or handled as provided by the requirements of the quarantine or harmonization plan. 013.02D(1) Base fine for a first violation is $600. 013.02D(2) Base fine for a subsequent violation is $1,000. 013.02E Distributing nursery stock which has been withdrawn from distribution. 013.02E(1) Base fine for a first violation is $600. 013.02E(2) Base fine for a subsequent violation is $1,000. 013.02F Distributing nursery stock that is not free from quarantined or other regulated plant pests. 013.02F(1) Base fine for a first violation is $600. 013.02F(2) Base fine for a subsequent violation is $1,000. 013.02G Planting seed potatoes in violation of 25 NAC 13015.03 or distributing biological control agents or genetically engineered plant organisms without a permit, if a permit is required by the Act. 013.02G(1) Base fine for a first violation is $600. 013.02G(2) Base fine for a subsequent violation is $1,000. 013.02H Offers any hindrance or resistance to the department in the carrying out of the Act, including, but not limited to, denying or concealing information or denying access to any property relevant to the proper enforcement of the Act. 013.02H(1) Base fine for a first violation is $600 013.02H(2) Base fine for a subsequent violation is $1,000. 013.02I Failing to comply with an order of the Director or violating an agreement with the Department entered pursuant to the Act. 013.02I(1) Base fine for a first violation is $600. 013.02I(2) Base fine for a subsequent violation is $1,000. 013.02J Failing to maintain a complete and accurate list with the Department of all sources from which nursery stock is obtained. 013.02J(1) Base fine for a first violation is $400. 013.02J(2) Base fine for a subsequent violation is $800. 013.02K Failing to comply with a withdrawal-from-distribution order. 013.02K(1) Base fine for a first violation is $400. 013.02K(2) Base fine for a subsequent violation is $800. 013.02L Distributing nursery stock not labeled correctly. 013.02L(1) Base fine for a first violation is $400. 013.02L(2) Base fine for a subsequent violation is $800. 013.02M Failing to pay all fees required by the Act or the rules and regulations promulgated pursuant to the Act. 013.02M(1) Base fine for a first violation is $400. 013.02M(2) Base fine for a subsequent violation is $800. 013.02N Distributing nursery stock that is not sound, healthy, and reasonably capable of growth. 013.02N(1) Base fine for a first violation is $400. 013.02N(2) Base fine for a subsequent violation is $800. 013.02O Failing to keep and make available for examination by the Department all books, papers, and other information necessary for the enforcement of the Act. 013.02O(1) Base fine for a first violation is $400. 013.02O(2) Base fine for a subsequent violation is $800. 013.02P Failing to maintain nursery stock in a manner accessible to the Department. 013.02P(1) Base fine for a first violation is $400. 013.02P(2) Base fine for a subsequent violation is $800. 013.02Q Failing to post a nursery stock distributor's license in a conspicuous place at the distribution location. 013.02Q(1) Base fine for a first violation is $120. 013.02Q(2) Base fine for a subsequent violation is $400. 013.02R Failing to report to the Department in writing the amount and type of plants treated or destroyed under the requirements of a withdrawal-from-distribution order or other compliance requirement of a withdrawal-from-distribution order. 013.02R(1) Base fine for a first violation is $120. 013.02R(2) Base fine for a subsequent violation is $400. 013.02S Distributing nursery stock that is not stored or displayed under conditions which maintain its vigor according to the standards set forth in 25 NAC 13-006. 013.02S(1) Base fine for a first violation is $120. 013.02S(2) Base fine for a subsequent violation is $400. 013.02T Distributing nursery stock containing actively growing weeds. 013.02T(1) Base fine for a first violation is $120. 013.02T(2) Base fine for a subsequent violation is $400. 013.02U Failing to delineate sections of nursery stock with sign markers. 013.02U(1) Base fine for a first violation is $120. 013.02U(2) Base fine for a subsequent violation is $400. 013.02V Violating any other provision of the Act or the rules and regulations promulgated pursuant to the Act. 013.02V(1) Base fine for a first violation is $120. 013.02V(2) Base fine for a subsequent violation is $400. 013.03 Gravity adjustment criteria The base administrative fine may be changed by considering the gravity of harm of the violation and the gravity of misconduct of the person committing the violation. The specific numerical value will be assigned to each category as set forth in the following charts:
013.03A Gravity of harm. | Violation | Circumstances | Value |
| Department's Ability to Enforce the Act |
| Violation significantly interfered with Department's ability to enforce the Act | 5 |
| Violation moderately interfered with Department's ability to enforce the Act | 3 |
| Violation slightly interfered with Department's ability to enforce the Act | 1 |
| Violation did not interfere with Department's ability to enforce the Act | 0 |
| Harm to Plant Industry |
| Actual harm which is both serious and widespread to plant industry. | 5 |
| Actual harm which is either serious or widespread to plant industry. | 4 |
| Potential serious or widespread harm to plant industry. | 3 |
| Minor actual harm to plant industry. | 2 |
| Minor potential harm to plant industry. | 1 |
| No potential harm to plant industry. | 0 |
| Extent of Distributor's Violations |
| Violations so widespread and pervasive the quality of all plants controlled by the distributor is affected | 5 |
| Numerous and widespread violations greatly affecting the quality of distributor's operation | 4 |
| Moderately widespread violations moderately affecting the quality of the distributor's operation | 3 |
| Less widespread violations, slightly affecting the quality of the distributor's operation | 2 |
| Only a few minor violations, not affecting the quality of the distributor's operation | 1 |
| No violations affecting the quality of the distributor's operation | 0 |
013.03B Gravity of misconduct. For the purposes of this subsection prior violation means a violation which was committed within the last three years. | Violation | Circumstances | Value |
| Compliance History |
| Two or more prior violations, either similar or unrelated to current violation | 3 |
| One prior violation similar to current violation | 2 |
| One prior violation unrelated to current violation | 1 |
| No prior violations | 0 |
| Culpability |
| Knowing or willful violation. | 5 |
| Violation resulting from faulty, careless, or negligent action | 3 |
| Violation was neither knowing or willful and did not result from faulty, careless, nor negligent action | 0 |
| Failure to Take Remedial Efforts |
| Violator failed to cooperate with Department's investigation; and additionally, failed to notify the Department of the violation and failed to take reasonable and timely steps to correct the violation | 3 |
| Violator cooperated after the Department discovered the violation but failed to notify the Department of the violation and failed to take reasonable and timely steps to correct the violation | 2 |
| Violator cooperated after the Department discovered the violation but either failed to notify the Department of the violation or failed to take reasonable and timely steps to correct the violation | 1 |
| Financial Gain |
| Violation has or would have resulted in financial gain for violator. | 3 |
| No financial gain to violator as a result of violation | 0 |
013.03C To determine the adjusted fine, the base fine shall be adjusted based on the total number of points calculated from 25 NAC 13 013.03A and 013.03B and multiplying the base fine by the gravity adjustment percentage of base value set forth below. Adjustments for Gravity
| Total Gravity Value | Adjustment |
| 3 or below | 25% of base value |
| 4-6 | 50% of base value |
| 7-10 | 75% of base value |
| 11 or above | 100% of base value |
013.04 To determine the actual administrative fine, the adjusted fine as determined in 25 NAC 013.03C shall be multiplied by the appropriate value corresponding with the size of size of business criteria set forth below. In determining the amount of any fine, there shall be a rebuttal presumption that the gross revenue of any violator is over $600,000. Size of Business Criteria
| Gross Revenue | Multiplier Value |
| $ 0-25,000 | 0.2 |
| $25,001-100,000 | 0.4 |
| $100,001-250,000 | 0.6 |
| $250,001-500,000 | 0.8 |
| over $500,001 | 1.0 |
013.05 Nothing in these regulations shall prevent the Department from entering into a settlement agreement with any person violating the Act or these regulations which specifies a different fine or other compliance action.25 Neb. Admin. Code, ch. 13, § 013
Amended effective 7/7/2015.