TITLE 19 NATURAL RESOURCES AND WILDLIFE
CHAPTER
15 OIL AND GAS
PART 107 APPLYING ADMINISTRATIVE PENALTIES
19.15.107.1 ISSUING AGENCY:
New Mexico State University, New Mexico Department of Agriculture
[7/1/97;
19.15.107.1 NMAC - Rn & A, 19 NMAC 15.107.1, 05/29/09]
[MSC 3189, P. O. Box 30005, Las Cruces, New Mexico
88003-8005, Telephone: (575) 646-3007]
19.15.107.2 SCOPE:
All parties involved in the manufacture, distribution and sale of
petroleum products as defined by the Petroleum Products Standards Act.
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19.15.107.2 NMAC - Rn, 19 NMAC 15.107.2, 05/29/09]
19.15.107.3 STATUTORY AUTHORITY:
Granted to the board of regents of New Mexico state university under the
Petroleum Products Standards Act, Chapter 57, Article 19, Sections
25 through 37, New Mexico Statutes Annotated 1978.
[7/1/97; A,
3/1/98; 19.15.107.3 NMAC - Rn,
19 NMAC 15.107.3, 05/29/09]
19.15.107.4 DURATION:
Permanent.
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19.15.107.4 NMAC - Rn, 19 NMAC 15.107.4, 05/29/09]
19.15.107.5 EFFECTIVE DATE:
July 1, 1997
[7/1/97; 19.15.107.5
NMAC - Rn, 19 NMAC 15.107.5, 05/29/09]
19.15.107.6 OBJECTIVE:
This part provides for the assessment of administrative penalties for
violations of the Petroleum Products Standards Act or rules
adopted under the act and specifies the appeal process.
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19.15.107.7 DEFINITIONS:
A. “Department” means the New Mexico department of
agriculture.
B. “Director” means the director of the New Mexico
department of agriculture.
C. “Division director” means the director of the division of
standards and consumer services within the New Mexico department of
agriculture.
D. “Inspector” means an individual employed by the New
Mexico department of agriculture who, under the direction of the director, is granted
the same authority as the director for administration of the Petroleum Products
Standards Act (PPSA) and associated rules.
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19.15.107.7 NMAC - Rn, 19 NMAC 15.107.7, 05/29/09]
19.15.107.8 [RESERVED]
19.15.107.9 ASSESSING PENALTIES: The
assessment of administrative penalties will be used as an intermediate step
between stop sale/stop use orders and court action, or when stop sale/stop use
orders are not appropriate or have proven to be ineffective in resolving a
problem, and not as a daily punitive enforcement tool. When a duly authorized agent of the director
finds, in his judgment, that a person has violated a provision of law or rules
adopted pursuant to law, he shall notify the person in writing that the
department intends to assess a penalty in accordance with the provisions of
this rule. Such penalty may be in
addition to or in lieu of administrative actions, such as stop sale orders or
stop use orders. The department also
reserves the right to file criminal charges according to the provisions of the
laws administered by the department.
A. The inspector shall notify his division director, through
his immediate supervisor, of the proposed penalty. The division director shall review the facts
in the case, and may request additional information. If the division director determines there
should be no penalty assessed, the alleged violator shall be notified in
writing.
B. If the division director, after careful review and
consideration, determines there should be a penalty assessed, he shall make
recommendation to the director as to the amount and nature of the penalty. The director shall review the facts in the
case, and may request additional information.
If the director determines there should be no penalty, the alleged
violator shall be notified in writing by the division director. If the director determines a penalty is
warranted by the facts in the case, he shall notify the alleged violator of the
amount and nature of the penalty. In
making his determination as to the nature and amount of penalty, the director
shall be guided by Sections 10, 11, 12, 13, and 16 of this part.
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19.15.107.10 CAUSE OF VIOLATION:
A. LINE 1, APPLICABLE TABLE (Classes of Violations, Section
13): Lack of Knowledge - When the person
who has committed the violation was not aware of the statutory requirements,
the penalty shall be determined from Line 1, Section 16.
B. LINE 2, APPLICABLE TABLE (Classes of Violations, Section
13): Negligence - When the violation is
due to negligence, the penalty shall be determined from Line 2, Section 16.
C. LINE 3, APPLICABLE TABLE (Classes of Violations, Section
13): Willful - When a person has
willfully committed a violation, or has committed the same violation three or
more times within a twelve (12) month period of time, all violations after the
second violation will be construed to be willful and the penalty shall be
determined from Line 3, Section 16.
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19.15.107.11 GRAVITY OF VIOLATION:
A. Factors: Any one
of the following factors may be considered in determining the gravity of a
violation.
(1) Potential monetary consequences.
(2) Potential for personal injury.
(3) Potential for property damage.
(4) Degree of inconvenience or deception to a
buyer or prospective buyer.
(5) Degree of disregard for the law.
B. COLUMN A, APPLICABLE TABLE (Classes of Violations,
Section 13): Minimal Gravity - When the
violation has a minimal gravity, the penalty shall be determined from Column A,
Section 16.
C. COLUMN B, APPLICABLE TABLE (Classes of Violations,
Section 13): Moderate Gravity - When the violation has a moderate gravity, the
penalty shall be determined from Column B, Section 16.
D. COLUMN C, APPLICABLE TABLE (Classes of Violations,
Section 13): Great Gravity - When the
violation has a great gravity, the penalty shall be determined from Column C,
Section 16.
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19.15.107.12 FREQUENCY OF VIOLATION:
The more frequently a person commits the same violation, the greater the
penalty shall be, as provided by the tables in Section 16.
A. When a person commits the same violation more than three
(3) times in twelve (12) months, double the penalty for the third violation
shall be assessed.
B. The period of time in determining frequency of violations
shall be twelve (12) months. If a person
has not committed the same offense in twelve (12) months, the next offense
shall be considered as a first offense.
C. A person who has committed the same offense three (3)
times in five (5) years shall not be protected by the twelve (12) month
limitation and shall be subject to the penalty for the third offense.
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19.15.107.13 CLASSES OF VIOLATIONS:
A. Table I will apply to the following violations: PPSA Section(s)
57-19-29, (57-19-30 A, B), (57-19-31 B), (57-19-32 A, B, C) 57-19-33.
B. Table II will apply to the following violations: PPSA Section(s)
57-19-29, (57-19-30 A, B), (57-19-32 A, B, C) 57-19-33.
C. Table III will apply to the following violations: PPSA Section(s)
57-19-29, (57-19-30 A), 57-19-33.
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19 NMAC 15.107.13, 05/29/09]
19.15.107.14 APPEALS:
A. Any person accused of a violation for which a penalty has
been assessed may request a hearing before the director to contest the amount
of the penalty or whether the violation occurred or both.
B. A request for a hearing before the director must be in
writing and must be submitted within fifteen (15) days of notification of
penalty.
C. In the event the alleged violator does not feel the
department followed the correct procedures in arriving at a decision in his/her
case, the individual may ask the district court to review the administrative
proceedings and penalty in the manner and to the extent provided by the laws of
New Mexico. If the penalty is not set
aside or abated, the original penalty is due and payable as provided in Section
16.
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19.15.107.15 PAYMENT OF PENALTY:
If no hearing is requested, the penalty is due and payable within thirty
(30) days of the issuance of notice of the violation. Failure to pay will be considered an
additional offense and the penalty originally applied will be doubled.
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19.15.107.16 PENALTY TABLES:
A. TABLE I
FIRST
OFFENSE SECOND OFFENSE THIRD OFFENSE
Gravity A B C A B C A B C
C 1 $
0 25. 50.
A
U 2 $25. 50. 75. 50. 75. 100.
S
E 3 $50. 75. 100. 75. 100. 125. 100. 200. 300.
B. TABLE II
FIRST
OFFENSE SECOND OFFENSE THIRD OFFENSE
Gravity A B C A B C A B C
C 1 $
25. 50. 75.
A
U 2 $
50. 75. 100. 75. 100. 125.
S
E 3 $100. 150. 200. 200. 250. 300. 300. 400. 500.
C. TABLE III
FIRST
OFFENSE SECOND OFFENSE THIRD OFFENSE
Gravity A B C A B C A B C
C 1 $100. 150. 200.
A
U 2 $150. 250. 400. 250. 400. 600.
S
E 3 $200. 400. 600. 400. 600. 800. 600. 800. 1,000.
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19.15.107.16 NMAC - Rn, 19 NMAC 15.107.16, 05/29/09]
19.15.107.17 [RESERVED]
HISTORY OF
19.15.107 NMAC:
Pre-NMAC History: The
material in this part was derived from that previously filed with the State
Records Center and Archives under:
NMDA Rule No. 93-7, Applying Administrative
Penalties, filed 5/28/93.
History of
Repealed Material: [RESERVED]