SECTION 3.2-4810. Assessments for variance from guaranteed analysis, misbranding, and adulteration  

A. If the Commissioner determines that a commercial feed fails to meet the label guarantee within the analytical variations specified in § 3.2-4801 , the Commissioner shall make an assessment against the guarantor on each pound of the lot of commercial feed represented by the sample and that any person sold as follows:

1. For deficient protein, two and one-half times the value of the deficiency;

2. For deficient fat, two times the value of the deficiency; and

3. For excessive fiber, 10 percent of the sales invoice price of the feed.

B. If the Commissioner determines that any commercial feed is misbranded as provided in § 3.2-4801 or adulterated as provided in § 3.2-4801 , the Commissioner shall assess 10 percent of the sales invoice price of the feed against the guarantor on each pound of the lot of commercial feed represented by the sample and that any person sold.

C. If the Commissioner finds a commercial feed in violation of subsection A or § 3.2-4801 or 3.2-4801 , the Commissioner shall:

1. Assess the manufacturer or guarantor based on the violations that occur in a 90-day period, such period to begin on the date when the Commissioner sends notification of the violation to the manufacturer or guarantor. The 90-day period restarts upon each notification of violation to the manufacturer;

2. Assess the manufacturer or guarantor on violative commercial feeds that bear the same label and are from the same manufacturing location;

3. Not make more than one assessment against the manufacturer or guarantor for the same manufacturing lot of commercial feed when the lot identification information is listed on the label of the commercial feed;

4. Not assess the manufacturer or guarantor in excess of $5,000 per occurrence;

5. Assess a minimum of $200 for the first violation;

6. Assess a minimum of $400 for the second violation;

7. Assess a minimum of $800 for the third violation;

8. Assess a minimum of $1,600 for the fourth violation;

9. Assess a minimum of $3,200 for the fifth violation;

10. Assess a minimum of $5,000 for the sixth violation, and for each ensuing violation, without limitation;

11. Waive the initial $200 minimum assessment if the Commissioner finds that the violation of the commercial feed variance provision has not occurred within the 90-day period; and

12. Have the discretion not to make an assessment if the value of the deficiency of the initial violation is $5 or less, but shall notify the manufacturer or guarantor and shall apply all further assessments on additional violations.

D. The manufacturer or guarantor shall pay all assessments to the Commissioner within 60 days of notice of payment due. Any person who fails to pay the assessment within the specified time shall pay to the Commissioner a late fee as specified in § 3.2-4801 . The Commissioner shall revoke the license of such person who fails to pay the assessment.

E. The Commissioner shall compute the approximate value per pound of protein and fat and this computation shall be used to establish the relative value of deficiencies on commercial feed sold or offered for sale in the Commonwealth. The Commissioner may furnish, and upon application shall furnish, such relative values to any person engaged in the manufacture or sale of feed in the Commonwealth.

F. As used in this section, the term "value of the deficiency" means the monetary value of the deficiency in protein or fat of the lot of commercial feed from which the Commissioner collected a sample. The Commissioner shall determine the value of the deficiency by calculating the number of pounds of commercial feed deficient in protein or fat, as compared to the label guarantee, in the sample lot and multiplying those pounds by the relative value per pound of protein or fat.

1994, c. 3.2-4801 , § 3.1-828.11; 2008, c. 3.2-4801 .