As used in this part:

1. (1) “Base civil penalty” means the midpoint of a civil penalty range; Example: The civil penalty range for a minor violation (first level of enforcement) is one hundred dollars ($100) to five hundred dollars ($500). The base penalty is three hundred dollars ($300).

2. (2)

   1. (A) “Covered produce” means produce that is subject to the requirements of 21 C.F.R. pt. 112, in accordance with 21 C.F.R. §§ 112.1 and 112.2.
   2. (B) The term “covered produce” refers to the harvestable or harvested part of the crop, see 21 C.F.R. § 112.3;
3. (3) “Covered produce farm” means any farm engaged in the growing, harvesting, packing, or holding of produce for human consumption which is subject to the requirements of the United States Food and Drug Administration Food Safety Modernization Act Produce Safety Rule, 21 C.F.R. pt. 112;

4. (4)

   1. (A) “Level of enforcement” means a category by which a violative incident is considered a first, second, third, or fourth offense.
   2. (B) For a violation to be considered as a second or subsequent offense, it must be a repeat of a violation for which a previous enforcement action has been taken by the Department of Agriculture.
   3. (C) The previous violation or violations must have occurred within the past three (3) years;
5. (5) “Level 1 violation” means a violative incident which does not involve human health and/or safety, e.g., conditions that will not cause contamination of covered produce, or other incidents of noncompliance which do not create a competitive disadvantage for covered farms in full compliance;
6. (6) “Level 2 violation” means a violative incident which affects human health and/or safety, e.g., conditions that may cause contamination of covered produce if conditions or practices continue, or other incidents of noncompliance which create a competitive advantage over covered farms in full compliance, or a history of repetitive violative incidents;

7. (7) “Level 3 violation” means a violative incident involving a practice, condition, or situation on a covered farm that is reasonably likely to lead to:

   1. (A) Serious adverse health consequences or death from the consumption of or exposure to covered produce; and
   2. (B) An imminent public health hazard is posed if corrective action is not taken immediately; Example: Edible portions of produce contacting a potential source of contamination.

8. (8)

   1. (A) “Produce” means any fruit or vegetable (including mixes of intact fruits and vegetables) and includes:

      1. (i) Mushrooms;
      2. (ii) Sprouts (irrespective of seed source);
      3. (iii) Peanuts;
      4. (iv) Tree nuts; and
      5. (v) Herbs.
   2. (B) A fruit is the edible reproductive body of a seed plant or tree nut (such as apple, orange, and almond) such that “fruit” means the harvestable or harvested part of a plant developed from a flower.

   3. (C) A vegetable is the edible part of an herbaceous plant (such as cabbage or potato) or fleshy fruiting body of a fungus (such as white button or shiitake) grown for an edible part such that “vegetable” means the harvestable or harvested part of any plant or fungus whose fruit, fleshy fruiting bodies, seeds, roots, tubers, bulbs, stems, leaves, or flower parts are used as food and includes:

      1. (i) Mushrooms;
      2. (ii) Sprouts; and
      3. (iii) Herbs (such as basil or cilantro).

   4. (D)

      1. (i) Produce does not include food grains, meaning the small, hard fruits or seeds of arable crops, or the crops bearing these fruits or seeds, that are primarily grown and processed for use as meal, flour, baked goods, cereals, and oils rather than for direct consumption as small, hard fruits or seeds (including cereal grains, pseudocereals, oilseeds, and other plants used in the same fashion).

      2. (ii) Examples of food grains include:

         1. (a) (a) Barley;
         2. (b) (b) Dent corn or flint corn;
      3. (c) (c) Sorghum;

      4. (d) (d) Oats;

         1. (e) (e) Rice;
         2. (f) (f) Rye;
         3. (g) (g) Wheat;
         4. (h) (h) Amaranth;

      5. (i) (i) Quinoa;

         1. (j) (j) Buckwheat; and
         2. (k) (k) Oilseeds (e.g., cotton seed, flax seed, rapeseed, soybean, and sunflower seed); and
9. (9) “Respondent” means a covered produce farm charged with a violation of the Arkansas Produce Safety Law, as amended, and the rules written pursuant thereto.

Codification Notes: The reference to the Arkansas Produce Safety Law in this section includes the Arkansas Plant Act of 1917, Arkansas Code § 2-16-201 et seq., and the Arkansas Emergency Plant Act of 1921, Arkansas Code § 2-16-301 et seq.