fact contained in the complaint. Those allegations are, therefore, set forth below in the Findings of Fact and form a basis for the conclusion that respondents M.S. "Buddy" Major, Jr., and Stuart Major violated the Act and the regulations as alleged and for the assessment of civil penalties.

Proposed findings, briefs and reply briefs were subsequently filed by complaint counsel and by counsel to Mr. Culbertson. To the extent indicated, counsels' proposals are adopted herein. All other proposed findings, conclusions or arguments are rejected as irrelevant or lacking legal or evidentiary bases. As used herein, "Tr." refers to the transcript of the public hearing. "CX" refers to the numbered exhibits offered by complaint counsel. Counsel to respondent offered and there was received without objection documents marked as RX "A" and CX 16. The interests of the Department are represented by Jaru Ruley, Esq., Washington, D.C. Respondent is represented by M. Karen Kilgore, Esq., Santa Fe, New Mexico.

Upon consideration of all matters of record, the following Findings of Fact and Conclusions of Law are reached. As a result thereof, there is entered an order assessing civil penalties against Stuart Major and M.S. "Buddy" Major, Jr., . . . [and] Myles C. Culbertson.

Statutes

The Cattle Contagious Disease Act of 1903 was amended in 1983 to provide for the imposition of civil penalties upon violations of the statute, or regulations of the Secretary issued pursuant to the Act.

21 U.S.C.A. § 122 provides in relevant part that:

Any person, company, or corporation knowingly violating the provisions of this Act or the orders or regulations made in pursuance thereof shall be guilty of a misdemeanor. . . . Any person, company, or corporation violating such provisions, orders, or regulations may be assessed a civil penalty by the Secretary of Agriculture of not more than one thousand dollars. (emphasis added)

*A letter filed October 26, 1993, purportedly from M.S. "Buddy" Major is in this public record. It is not an exhibit, nor was it considered in the preparation of this Initial Decision.

[

"The ALJ stated, "The complaint is dismissed as to Myles C. Culbertson."]

53 Agric. Dec. 1030

Regulations

The Department has not identified by the rulemaking proceedings[**] required by the Administrative Procedure Act, 5 U.S.C.A. §§ 551, 553 (West 1977 & Supp. 1993), those regulations that it would enforce by the imposition of civil penalties. However, the regulations which pertain to the events under consideration in this proceeding, 9 C.F.R. §§ 78.1 (1987) and 78.9(b)(3)(ii) (1987), were issued upon completion by the Secretary of certain rulemaking activities and upon the Secretary's policy to adhere to the Administrative Procedure Act. The specific rulemaking proceeding which presented 9 C.F.R. §§ 78.1 (1987) and 78.9(b)(3)(ii) (1987) to the public, commenced in 1985, and was completed in 1986.' Amendments to 9 C.F.R. §§ 78.18 and 78.99 have no bearing on this case, as such were promulgated subsequent to the dates violations were alleged to have occurred, March 7, 1987 (Count II), and April 13, 1987 (Counts VIII and IX).

6

[ "I find the ALJ's upcoming catalogue of Federal Register citations unnecessary. I nonetheless leave them intact, with the proviso that I do not vouchsafe accuracy. Furthermore, I disagree with the ALJ's view, expressed at length in other cases, that the Department is required to engage in notice and comment rulemaking after statutes are amended to provide for administrative civil penalties. See, e.g., In re Harris, 50 Agric. Dec. 683 (1991) (Ruling on Certified Questions).]

$36 Fed. Reg. 13804 (July 24, 1971).

650 Fed. Reg. 37201-37229 (September 12, 1985).

'51 Fed. Reg. 32574-32600 (September 12, 1986).

$52 Fed. Reg. 33798 (September 8, 1987); 53 Fed. Reg. 16246 (May 6, 1988); 53 Fed. Reg. 32602 (August 26, 1988); 53 Fed. Reg. 34037 (September 2, 1988); 53 Fed. Reg. 40386 (October 4, 1988); 53 Fed. Reg. 40406 (October 17, 1988); 55 Fed. Reg. 28599 (July 12, 1990); 56 Fed. Reg. 55803 (October 30, 1991); 56 Fed. Reg. 58637-58639 (November 21, 1991). The amendments expressed at 53 Fed. Reg. 40406 (October 17, 1988) modified the prior definitions under consideration at 9 C.F.R. § 78.1.

954 Fed. Reg. 1925 (January 18, 1989); 56 Fed. Reg. 54533, 54534 (October 21, 1991); 56 Fed. Reg. 58638, 58639 (November 21, 1991). The amendments expressed at 56 Fed. Reg. 54533, 54534 (October 21, 1991) modified the prior regulations under consideration at 9 C.F.R. § 78.9.

The definitions associated with the 1987 regulations, 9 C.F.R. § 78.1 (1987), provide, in relevant part, that:

As used in this part, the following terms shall have the meanings set forth in this section:

Brucellosis. The contagious, infectious, and communicable disease caused by bacteria of the genus Brucella. It is also known as Bangs disease, undulant fever, and contagious abortion.

Certificate. An official document issued by a Veterinary Services representative, State representative, or accredited veterinarian at the point of origin of a movement of animals. It must show the official eartag number, . . . or similar individual identification of each animal to be moved; the number of animals covered by the document; the purpose for which the animals are to be moved; the points of origin and destination; the consignor; and the consignee. . . .

Certified brucellosis-free herd. A herd of cattle or bison which has qualified for and whose owner has been issued a certified brucellosis-free herd certificate signed by the appropriate State animal health official and the Veterinarian in Charge.

(a) Certification. Either of the following two methods may be used to qualify a herd:

(1) In the case of dairy cattle, .

(2) By conducting at least two consecutive negative herd blood tests not less than 10 months nor more than 14 months apart.

(b) Maintaining certification. Certified brucellosis-free herd status will remain in effect for 1 year beginning with the date of issuance of the certified brucellosis-free herd certificate. A negative herd blood test must be conducted within 10 to 12 months of the last certification date

53 Agric. Dec. 1030

for continuous status. Lapsed certification may be reinstated....

Moved. Shipped, transported, delivered, or received for movement, or otherwise aided, induced or caused to be moved.

Official adult vaccinate. (a) (1) Female cattle or female bison older than the specified ages defined for official calfhood vaccinate and vaccinated by a Veterinary Services representative, State representative, or accredited veterinarian with a reduced dose approved brucella vaccine, ...; and

(b) (1) Permanently identified by a "V" hot brand ...; and (2) Identified with an official eartag or individual animal registered breed association registration brand or individual animal registered breed association tattoo.

Test-eligible cattle and bison. For purposes of interstate movement, test-eligible cattle and bison are:

(a) Cattle and bison which are not official vaccinates and which have lost their first pair of temporary incisors (18 months of age or over), except steers and spayed heifers;

(b) Official calfhood vaccinates 18 months of age or over which are parturient or postparturient;

(c) Official calfhood vaccinates of beef breeds or bison with the first pair of permanent incisors fully erupted (2 years of age or over); and

(d) Official calfhood vaccinates of dairy breeds . . . .

The regulation alleged to have been violated, 9 C.F.R. § 78.9(b) (1987), provides, in relevant part, that:

(b) Class A States/areas. Test-eligible cattle which originate in Class A States or areas, are not brucellosis exposed, and are from a herd not known to be affected may be moved interstate from Class A States or areas only as specified below:

(3) Movement other than in accordance with paragraphs (b)(1) and (2) of this section. Such cattle may be moved interstate other than in accordance with paragraphs (b)(1) and (2) of this section only if:

(ii) Such cattle are negative to an official test within 30 days prior to such interstate movement and are accompanied interstate by a certificate which states, in addition to the items specified in § 78.1, the test dates and results of the official tests;

Findings of Fact

1. Respondent Myles C. Culbertson is an individual whose business mailing address is 505 South Main, Suite 145, Las Cruces, New Mexico 88001. (Tr. 225)

2. Respondent M.S. "Buddy" Major, Jr., is an individual whose mailing address is Box 1299, Los Lunas, New Mexico 87031.

3. Respondent Stuart Major is an individual whose mailing address is 0707 Louis Street, Belen, New Mexico 87002.

4. Brucellosis is a contagious bacterial disease of cattle. Brucellosis can cause abortions, drop in milk production, and decreased weaning weight in calves. Brucellosis poses a substantial economic threat to the cattle industry. (Tr. 13-17)

5. The United States Department of Agriculture, through the Animal and Plant Health Inspection Service, pursues a Brucellosis Eradication Program. It relies heavily upon individual identification of cattle and blood testing at livestock markets to identify and eliminate vectors. Permits and certificates reflecting test results, which must accompany cattle when they are moved interstate, are crucial to the success of the program. (Tr. 17-22, 27) Identification of cattle is accomplished by eartags or backtags bearing unique numbers, which can be used to trace an animal to its herd of origin. (Tr. 19