53 Agric. Dec. 1024 It is through non-compliance that livestock diseases like brucellosis may be spread and cause economic losses to our nation and to individual livestock owners. Steven Thompson and Darrell Moore, 50 Agric. Dec. 392, 405 (1991). It is a well established policy that "the sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose." S.S. Farms Linn County, Inc., 50 Agric. Dec. 476 (1991). In discussing the evidence presented at the hearing and determining whether the $2,000 penalty requested by Complainant was appropriate, Dr. Hester emphasized that Respondent had previous violations, the cost to livestock producers, and the risks associated with brucellosis. (Tr. 113-115). Dr. Hester testified that, considering the circumstances in this case, the requested amount was appropriate. He argued that this was not one isolated incident, but that Respondent moved bulls through three states without health certificates and also moved several cows without the required health certificates through two states. I conclude that the civil penalties of $1,000 per violation requested in this proceeding are consistent with civil penalties requested and assessed in similar circumstances. See In re Billy Rowan, 50 Agric. Dec. 369 (1991); In re Steven Thompson and Darrell Moore, 50 Agric. Dec. 392 (1991); In re David C. Ellison, d/b/a Palmetto Livestock Market, 50 Agric. Dec. 408 (1991); In re Eddie Benton, 50 Agric. Dec. 428 (1991); and In re Terry Horton and Johnny Horton, 50 Agric. Dec. 430 (1991). Order Respondent Zane Shackelford is assessed a civil penalty of $2,000. Respondent shall send a certified check or money order payable to "Treasurer of the United States" which shall be forwarded to: United States Department of Agriculture Accounting Section Butler Square West, 5th Floor 100 North Sixth Street Minneapolis, Minnesota 55403 within 30 days from the effective date of this Order. This Order shall be final and effective 35 days after the date of service of this Order on Respondent unless there is an appeal to the Judicial Officer pursuant to section 1.145 of the Rules of Practice applicable to this proceeding (7 C.F.R. § 1.145). [This Decision and Order became final August 30, 1994.-Editor] In re: MYLES C. CULBERTSON, JEFF WEBER, EUGENE J. MILLER, M.S. "BUDDY" MAJOR, JR., and STUART MAJOR. A.Q. Docket No. 91-2. Decision and Order as to Myles C. Culbertson, M.S. "Buddy" Major, Jr., and Stuart Major filed September 21, 1994. Civil penalties - Interstate Interstate movement of cattle without the required certificate movement of cattle without brucellosis test — Ignorance of law not mitigating — Sanction policy "Moved" Agency interpretation of regulation Preponderance of the evidence Admission by failure to appear at hearing. - The Judicial Officer reversed the Decision by Judge Kane (ALJ) dismissing the Complaint against Respondent Culbertson, which alleged that Respondent Culbertson and other Respondents moved cattle interstate on two occasions which were not accompanied by the required certificate, and, also, on one of the occasions they were not found negative to an official brucellosis test within 30 days prior to movement. The Judicial Officer held that Respondent Culbertson "moved" the cattle, and assessed a civil penalty against Culbertson of $1,500. The Judicial Officer affirmed the ALJ's Decision assessing a $1,500 civil penalty against Stuart Major and $2,000 against M.S. "Buddy" Major, Jr., for their part in the violations. There is much more than a preponderance of the evidence that each Respondent committed the respective violations charged in the Complaint, which is all that is required. The definition of moved includes "otherwise aided, induced, or caused to be moved." An agency's interpretation of its own regulation is entitled to great deference, unless it is clearly erroneous or inconsistent with the language it interprets. Cases not appealed to the Judicial Officer are not controlling or persuasive. A person who relies on others, including accredited veterinarians, to comply with the regulatory requirements does so at his or her peril. The failure of the Respondents Major to appear at the hearing constitutes an admission of the facts presented at the hearing and of the material allegations of fact contained in the Complaint. The excuses offered by Respondents Major for not appearing at the hearing are insufficient, and, moreover, they did not contact the ALJ, the Hearing Clerk, or Complainant to request a continuance. Ignorance of the law is not a mitigating circumstance in determining the civil penalty for violations of the Brucellosis Eradication Program. Department's sanction policy explained. Sheila Hogan Novak, for Complainant. M. Karen Kilgore, Santa Fe, NM, Kevin Sweazea, Los Lunas, NM, for Respondents. Decision and Order issued by Donald A. Campbell, Judicial Officer. 53 Agric. Dec. 1030 This is an administrative proceeding for the assessment of civil penalties under the Act of February 2, 1903, as amended (21 U.S.C. §§ 111, 120, and 122), for violations of the Act and the regulations promulgated thereunder (9 C.F.R. § 78.1 et seq.), governing the interstate movement of cattle. An Initial Decision and Order was filed April 12, 1994, by Administrative Law Judge Paul Kane (ALJ) dismissing the amended (at the hearing) Complaint against Myles C. Culbertson, which alleged (Count II) that on March 7, 1987, Respondents Culbertson and Stuart Major moved at least 15 cattle, 2 years of age or older, interstate, from a ranch near Magdalena, New Mexico, to a nonquarantined feedlot in Hitchcock, South Dakota, in violation of 9 C.F.R. § 78.9(b)(3)(ii) because they were not accompanied by the required certificate; and, which alleged (Counts VIII and IX) that on April 13, 1987, Respondents moved at least 20 cattle, 2 years of age or older, interstate, from a ranch near Los Lunas, New Mexico, to a pasture in Gordon, Nebraska, in violation of the regulations (9 C.F.R. § 78.9(b)(3)(ii)) in that the cattle were not accompanied interstate by a certificate, and were not found negative to an official brucellosis test within 30 days prior to such interstate movement, as required. The ALJ held that Complainant failed to prove that Respondent Culbertson "moved" the cattle, within the meaning of the regulations (9 C.F.R. § 78.1). However, the ALJ decided that Respondent Stuart Major had committed the violations in Counts II, VIII, and IX, and assessed a civil penalty of $1,500, and M.S. "Buddy" Major, Jr., was liable for the violations in Counts VIII and IX, and was assessed a civil penalty of $2,000. On May 13, 1994, Complainant appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the Department's cases subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35),' in which appeal, Complainant requested oral argument. On June 17, 1994, Respondents Buddy Major and Stuart Major filed an appeal in which they requested, inter alia, oral argument and a new evidentiary hearing. On June 24, 1994, Respondent Myles C. Culbertson filed a "Response in Opposition to Complainant's Petition of Appeal as to Myles C. Culbertson." On July 14, 1994, Complainant The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1280 (1988). The Department's present Judicial Officer was appointed in January 1971, having been involved with the Department's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' appellate litigation relating to appeals from the decisions of the prior Judicial Officer; and 8 years as administrator of the Packers and Stockyards Act regulatory program). filed a reply to the petition of the Respondents Major. The case was referred to the Judicial Officer for decision on July 15, 1994. The requests for oral argument and a new evidentiary hearing are both denied: (1) inasmuch as the case has been thoroughly briefed, with a complete hearing transcript, and the issues are not complex, nothing would appear to be gained by granting oral argument now; and (2) the Respondents Major failed to appear at the hearing without good cause, which by operation of the Rules of Practice (7 C.F.R. § 1.141(e)), means that the Respondents Major are deemed to have waived the right to an oral hearing and to have admitted the facts in the Complaint and the facts presented at the hearing. Based upon a careful consideration of the record, I agree with Complainant that Respondent Culbertson "moved," as that term is defined in the regulations, the cattle from New Mexico to both South Dakota and Nebraska, and I am assessing a civil penalty of $1,500 against Respondent Culbertson ($500 per violation). However, I agree with the ALJ's decision as to the Respondents Major, and with the ALJ's sanction, which I affirm. For convenience, I am adopting portions of the Initial Decision, with deletions shown by dots, additions shown by brackets, and with a few trivial editorial changes not specified. Additional findings, conclusions, and the Order by the Judicial Officer follow the ALJ's conclusions. ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION This decision is promulgated pursuant to the Administrative Procedure Act, Pub. L. 89-554, September 6, 1966, 80 Stat. 384, as amended,' the Rules of Practice governing proceedings under certain Acts, 9 C.F.R. §§ 70.1-.10 (1993), and the Rules of Practice of the Department of Agriculture Governing Formal Adjudicatory Administrative Proceedings, 7 C.F.R. §§ 1.130-.151 (1993). This is a sanction proceeding pursued under the Department's regulations issued through the authority of the Cattle Contagious Disease Act of 1903, and Amendments of 1928, 1954, 1965 and 1983, February 2, 1903, c. 349, 32 Stat. 791; February 7, 1928, c. 30, 45 Stat. 59; July 22, 1954, c. 558, 68 Stat. 'Particular reference is made to 5 U.S.C.A. §§ 554, 557 (West 1977 & Supp. 1993). [Unofficial codifications of statutes are cited herein.] [Brackets by the ALJ.] 53 Agric. Dec. 1030 510; January 28, 1956, c. 12, 70 Stat. 5; Pub. L. 97-461, January 12, 1983,2 hereinafter referred to as the Act. The Administrator of the Animal and Plant Health Inspection Service ("APHIS") of the Department of Agriculture ("USDA"), by Complaint filed October 19, 1990, and amended June 3, 1993,3 alleges that on two occasions, on or about March 7, 1987, and April 13, 1987, respondents Stuart Major, Jeff Weber, and Myles C. Culbertson carried out the interstate movement of cattle in violation of the Act and the regulations promulgated thereunder, 9 C.F.R. §§ 78.1-.41, hereinafter referred to as the regulations, which pertain to the Department's Brucellosis Eradication Program. The allegations respecting the events on or about April 13, 1987, also assert the culpability of respondents Eugene J. Miller and M.S. "Buddy" Major, Jr. The Administrator seeks the imposition of civil penalties. Respondents Myles C. Culbertson, Jeff Weber and Eugene J. Miller deny the essential allegations of the complaint. Complaint counsel filed a motion for adoption of default decisions against respondents M.S. "Buddy" Major, Jr., and Stuart Major on October 17, 1991, based upon their failure to file answers within the time allowed by the Rules of Practice. The Messrs. Major timely filed meritorious objections to complaint counsel's motions which were denied on October 27, 1992. A consent decision was entered as to Jeff Weber on May 24, 1993, and a consent decision was entered as to Eugene J. Miller on June 3, 1993. Messrs. Weber and Miller are thus not parties involved in this Initial Decision. A public hearing was held on June 3, and June 4, 1993, in Santa Fe, New Mexico. Respondents M.S. "Buddy" Major, Jr., and Stuart Major were notified of the hearing, but were not in attendance. In accordance with section 1.141(e) of the Rules of Practice, 7 C.F.R. § 1.141(e) (1993), their failure to appear at the hearing, without good cause, constitutes admissions of all facts presented against them at the hearing and all material allegations of 221 U.S.C.A. §§ 111, 120, 122 (West 1972 & Supp. 1993). 'At the hearing complaint counsel moved to dismiss Counts III, IV, V, VI, and VII relating to the interstate movement of brucellosis reactor and brucellosis exposed cattle, inasmuch as the cattle had been reclassified as stabilized suspects at the time of interstate movement and were neither exposed nor reactors. Counsel also moved to dismiss Count X, which alleged a violation by Eugene J. Miller, who had entered into a consent decision. Additionally, counsel moved to alter Count XI to request that civil penalties of $1,500 be assessed against Stuart Major, $1,500 against Myles C. Culbertson and $400 against M.S. "Buddy" Major, Jr. Counsel thereafter proceeded as if these motions were granted. [The ALJ apparently proceeded as if he had granted the motions, as well.] |