1024

ANIMAL QUARANTINE ACT AND RELATED LAWS

DEPARTMENTAL DECISIONS

In re: MIKE GENTRY and ZANE SHACKELFORD.

A.Q. Docket No. 93-04.

Decision and Order as to Zane Shackelford filed July 22, 1994.

Civil penalties - Interstate movement of livestock without required certificates - Ignorance of law not mitigating - Sanction policy.

Judge Bernstein assessed a $2,000 civil penalty against respondent, who admitted moving bulls interstate without a certificate and moving cows interstate with certificates or "S" brand permits. Ignorance of the law is not a mitigating circumstance under this regulatory program. Movement of cattle interstate without the necessary certificates undermines the efforts of USDA to detect and trace brucellosis back to the herd of origin. Requested sanction amount was appropriate, because respondent's violations were not the result of one isolated incident.

Lance T. Mason, for Complainant.

Respondent, Pro se.

Decision and Order issued by Edwin S. Bernstein, Administrative Law Judge.

This is an administrative proceeding for the assessment of civil penalties for violations of the Act of February 2, 1903, as amended (21 U.S.C. §§ 111, 120), and the regulations promulgated thereunder (9 C.F.R. § 78.1 et seq.). This proceeding was instituted by a Complaint filed on November 5, 1992, by the Acting Administrator, Animal and Plant Health Inspection Service ("APHIS"), United States Department of Agriculture ("USDA"). Respondent Zane Shackelford' filed an Answer on December 1, 1992, denying the material allegations. Respondent Mike Gentry entered into a consent agreement and a Consent Decision was entered in accordance with that agreement on May 12, 1994. This Decision and Order, therefore, does not apply to Mike Gentry. The Complaint, as amended at the hearing (Tr. 86-87), alleges that on or about September 19, 1989, Respondent Zane Shackelford moved at least one bull from Fayette, Alabama, to Pontotoc, Mississippi, in violation of § 78.9(b)(3)(ii) of the regulations (9 C.F.R. § 78.9(b)(3)(ii)), because the bull

'The caption of this proceeding is amended to correct the spelling of Respondent's last name. The correct spelling is Shackelford, not Shackleford.

53 Agric. Dec. 1024

was not accompanied by a certificate, as required. It also alleges that on or about September 19, 1989, Respondent Shackelford moved at least one cow from Pontotoc, Mississippi, to Palestine, Texas, in violation of § 78.9(c)(1)(vi) of the regulations (9 C.F.R. § 78.9(c)(1)(vi)), because the cow was not accompanied by a certificate or "S" brand permit, as required.

I presided over a hearing on May 18, 1994, in Columbus, Mississippi. Lance T. Mason appeared on behalf of Complainant and Zane Shackelford appeared pro se.

Findings of Fact

1. Respondent Zane Shackelford is an individual whose mailing address is Route 2, Box 445, Millport, Alabama 35576.

2. On or about September 19, 1989, Respondent moved at least one bull from Fayette, Alabama, to Pontotoc, Mississippi, to Palestine, Texas, without a certificate.

3. On or about September 19, 1989, Respondent moved at least one cow from Pontotoc, Mississippi, to Palestine, Texas, without a certificate or "S" brand permit.

Conclusion of Law

Respondent Zane Shackelford, on or about September 19, 1989, moved at least one bull from Fayette, Alabama, to Pontotoc, Mississippi, and Palestine, Texas, and moved at least one cow from Pontotoc, Mississippi, to Palestine, Texas, without health certificates, in violation of the regulations.

Discussion

Brucellosis is a highly contagious bacterial disease of cattle, bison and humans which primarily causes breeding problems, such as abortions in affected cattle. (Tr. 97-99). Thus, brucellosis can have a significant effect on the livestock industry. (Tr. 99-100). USDA has a cooperative program with the states for the control and eradication of brucellosis. This program relies very heavily on identification and detection of the disease at markets and at slaughter. (Tr. 100-102, 106-107). Based on information required to be on Certificates of Veterinary Inspection, commonly referred to as health certificates, USDA is able to trace outbreaks of brucellosis back to their herd of origin. (Tr. 109-111). That herd of origin is then put under quarantine and

a plan developed to eliminate the disease from that herd. This plan includes restricting the movement of animals from that herd until the herd is declared free of brucellosis. (Tr. 106-109). USDA will also attempt to determine the source of infection for that herd, as well as trace any other animal that had previously left that herd and may have spread brucellosis to other locations and animals. (Tr. 106-109). As a part of the brucellosis control and eradication program, USDA has promulgated regulations in Part 78, Title 9, Code of Federal Regulations, that impose requirements for interstate movement of cattle. The regulations require that certificates accompany certain interstate movements of cattle. (9 C.F.R. §§ 78.9(b)(3)(ii), 78.9(c)(1)(vi)(A)). Health certificates play an important role in the Department's cooperative brucellosis control and eradication program at the market surveillance level. (Tr. 110-111). "Brucellosis testing of certain cattle, particularly those moving from one state to another, is a cornerstone of the Department's concerted effort to detect and eliminate this disease. The specific requirements set forth in Part 78, Title 9, Code of Federal Regulations, must be followed and adhered to by all segments of the cattle industry if the United States is to successfully eradicate brucellosis." Steven Thompson and Darrell Moore, 50 Agric. Dec. 392, 404 (1991).

Federal regulations (9 C.F.R. § 78.9(b)(3)(ii)) require that certain testeligible bulls which originate in a Class A State and are from a herd not known to be affected with brucellosis may be moved interstate from Class A States when accompanied by a certificate. Alabama is a Class A State. Similarly, Federal regulations (9 C.F.R. § 78.9(c)(1)(vi)(A)) require that certain test-eligible cattle which originate in a Class B State may be moved interstate when accompanied by a certificate or "S" brand permit. Mississippi is a Class B State.

Respondent admitted under oath that he moved four or five bulls from Fayette, Alabama, and unloaded the bulls at his house in Millport, Alabama. The bulls in question are identified on a brucellosis test record issued in Fayette, Alabama (CX-2), which corresponds to the bulls tested in Palestine, Texas, and contained on a brucellosis test record. (CX-2). The bulls are designated and numbered as follows:

Respondent admitted that he subsequently moved the bulls to Pontotoc, Mississippi, where he picked up nine cows and then moved both the cows and the bulls to Palestine, Texas. (Tr. 120-121). The cattle in question were tested in Palestine, Texas, and are identified on a brucellosis test record (CX-4) as follows:

Mr. Shackelford also admitted under oath that neither the movement of bulls from Millport, Alabama, to Pontotoc, Mississippi, and Palestine, Texas, nor the movement of cows from Pontotoc, Mississippi, to Palestine, Texas,

were accompanied by health certificates. (Tr. 123). Mr. Stephen Fuller, a USDA investigator, confirmed this. (Tr. 13, 16).

When Respondent was asked whether he had any defense he responded: "No, sir, I just didn't know no better . . ." (Tr. at 124). Assuming that Mr. Shackelford did not know that these movements of bulls and cows were required by regulation to be accompanied by health certificates, which seems unlikely since he had extensive experience in moving cattle and some prior violations (Tr. 131-132), ignorance of the law is not a mitigating circumstance under this regulatory program. In re Richard Duran Lopez, 44 Agric. Dec. 2201, 2209 (1985).

Mr. Shackelford also appeared to argue that the nine cows were all "Ocular Carcinoma" or cancer-eye cows and as such, were covered under the VS Form 1-27. (Tr. 71-72). However, Mr. Fuller testified with the support of the Brucellosis Test Record, VS Forms 4-54, (CX-4), that the veterinarian who examined the cows only identified two animals as cancer-eye. (Tr. 82-86). The animal with back tag number 64XB0023 (tube 28 in CX-10) and the metal ear tag number 64BAD3598 was diagnosed by the veterinarian on duty as "Ocular Carcinoma." Similarly, the animal with back tag number 64XB0457 and the metal ear tag number 64AMK7944 (Tube 177) was also identified as "Ocular Carcinoma." (Tr. 83). Mr. Fuller also stated that these two animals were identified on the VS Form 1-27 permit (CX-9) which would allow the two animals to move directly from the market in Alabama to Calhoun Packing, also known as V. C. Packing Company, in Palestine, Texas. (Tr. 8386). Therefore, as Mr. Fuller testified, the other seven animals would be required by the regulations to be accompanied by a health certificate. (Tr. 86).

Therefore, Respondent, on or about September 19, 1989, moved at least one bull from Fayette, Alabama, to Pontotoc, Mississippi, and moved at least one cow from Pontotoc, Mississippi to Palestine, Texas without health certificates, in violation of section 78.9(b)(3)(ii) of the regulations. (9 C.F.R. § 78.9(b)(3)(ii)).

The brucellosis eradication program is important to the national welfare and to date has cost the people of the United States in excess of $1 billion dollars. In re Grady, 45 Agric. Dec. 66, 109 (1986). Respondent's actions in moving cattle interstate without the necessary certificates undermine the efforts of USDA to detect the existence of brucellosis and to trace back to the herd of origin cattle which are found to be affected with, or exposed to brucellosis. Such failures to act responsibly impede the efforts of USDA to eliminate or prevent the further spread of the disease in the United States.