will be tolerated only so long as the impact on the inspected's property and business operations is no more than that necessary to further the overall regulatory scheme. 482 U.S. at 700-02, 107 S.Ct. at 2642-44. While a uniform number of inspections conducted in the due course of the regulatory scheme may be tolerated without a warrant, once an individual begins to receive distinctive treatment without apparent justification (such as more inspections than the regular schedule would indicate) oversight such as that provided by the warrant process may be required to assure that the inspected's Fourth Amendment guarantees are met. Id.

Finally, as to the Lessers' allegation that the inspectors disregarded the safety of LSR's rabbits we respond that as was the case with the prior inspector (Leonard's wearing soiled coveralls to LSR provided the petitioners with enough cause for concern justifying their refusal of inspection), had a hearing showed that Goldentyer's conduct unnecessarily impacted LSR's operations, then of course the Lessers would not have been admonished. In this case, however, no evidence established that Goldentyer actually endangered the Lessers' animals with the possibility of contamination. Therefore the Lesssers had no proven excuse for denying Goldentyer access.

The Lessers also argue that the civil penalty of a $9250 fine and a 30-day suspension of their license was excessive. Our review of the sanctions imposed by the Secretary is limited. Where, like here, Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy, "the relation of remedy to policy is peculiarly a matter for administrative competence." Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 185, 93 S.Ct. 1455, 1457-58, 36 L.Ed.2d 142 (1973) (quoting American Power Co. v. SEC, 329 U.S. 90, 112,, 67 S.Ct. 133, 145-46, 91 L.Ed. 103 (1949)). Thus, we will overturn the Secretary's choice of sanction only if we find it unwarranted in law or without justification in fact. Id., 411 U.S at 185-86, 93 S.Ct. at 1457-58.

The Lessers do not challenge the Secretary's determination that they failed to comply with six standards and that they committed five violations of the Act by refusing to allow inspections. They challenge the severity of the penalty for these eleven violations. The Act provides that "[t]he Secretary shall give due consideration to the appropriateness of the penalty with respect to the size the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations." 7 U.S.C. § 2149. We accept that

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the Judicial Officer gave due consideration to these factors before imposing the penalty. Before imposing the penalty, the Judicial Officer noted that the Lesser rabbitry sold 15,000 to 20,000 rabbits each year, that the rabbits had a reputation for being clean, and the Lessers had a history of compliance with the Act. He also found, however, that the failure to remove animal waste and the blocked cage ventilation violation were serious deficiencies that could have resulted in serious harm to the rabbits. And he found that the Lessers had made no attempt to correct the lighting violation. As to the overcrowding violation and the existence of unsealed wood in the rabbitry, the Judicial Officer found that these were deficiencies that the Lessers had willfully allowed to exist for a long period of time. With respect to the Lessers' repeated refusals to allow inspections, the Judicial Officer found that these refusals were "manifestly willful" and in bad faith.

The Lessers argue that most of the deficiencies were trivial and, as such, did not justify such harsh sanctions. To this we must respond that it is not our role to assess the triviality or seriousness of the deficiencies. That role belongs to the Secretary. Our limited function is to determine whether there is factual support for the sanctions and, if so, whether the sanctions imposed by the Secretary for the deficiencies are lawful. Here, the Lessers do not dispute the factual basis for the sanctions, and the Secretary acted within his authority under the Act in imposing the sanctions that he imposed.

The Judicial Officer affirmed the Decision by Chief Judge Palmer (Chief ALJ) assessing civil penalties of $140,000, with $60,000 held in abeyance for 1 year, for transporting 108 dogs and cats in a cargo space that was without sufficient air, causing the death of 32 dogs. The Order also directs Respondent to cease and desist from violating the Act, regulations and standards, and, in particular, to cease and desist from failing to ensure that dogs and cats have a supply of air sufficient for normal breathing. Both parties filed appeals. When a regulated entity fails to comply with the Animal Welfare Act, there is a separate violation for each animal harmed or placed in danger. A violation is willful if regulatory requirements have been carelessly disregarded, but it is unnecessary to make a finding of willfulness here because no license is being suspended or revoked. The civil penalties are based primarily on the serious nature of Respondent's violations. The Judicial Officer is not subject to the same limitations in reviewing a sanction imposed by an ALJ as a court in reviewing a sanction imposed by the Judicial Officer.

Robert A. Ertman, for Complainant.

Karen L. Abrahams, Esq., Atlanta, GA, for Respondent.

Initial decision issued by Victor W. Palmer, Chief Administrative Law Judge.
Decision and Order issued by Donald A. Campbell, Judicial Officer.

This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. § 2131 et seq.), and the regulations issued thereunder (9 C.F.R. § 1.1 et seq.). On June 13, 1994, Chief Administrative Law Judge Victor W. Palmer (Chief ALJ) issued an Initial Decision and Order assessing civil penalties of $140,000, with $60,000 held in abeyance for 1 year, for transporting 108 dogs and cats in a cargo space that was without sufficient air, causing the death of 32 dogs. The Order also directs Respondent to cease and desist from violating the Act, regulations and standards, and, in particular, to cease and desist from failing to ensure that dogs and cats have a supply of air sufficient for normal breathing.

On July 29, 1994, Complainant, seeking a civil penalty of $140,000, with no part thereof held in abeyance, appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the Department's cases

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subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35). Respondent filed a Cross-Appeal seeking reduced civil penalties, and a Petition to Reopen Hearing to introduce evidence showing Respondent's participation in a study with USDA and the Federal Aviation Administration to enhance the knowledge necessary for improving the conditions for safe and humane transport of animals in aircraft cargo compartments. The case was referred to the Judicial Officer for decision on October 13, 1994.

Oral argument before the Judicial Officer, which is discretionary (7 C.F.R. § 1.145(d)), was requested by Respondent, but is denied inasmuch as the issues are not complex, the case has been thoroughly briefed, and oral argument would seem to serve no useful purpose.

Based upon a careful consideration of the entire record, I am adopting the Initial Decision and Order as the final Decision and Order, with deletions shown by dots, changes or additions shown by brackets, and trivial changes not specified. The effective date of the Order is changed in view of the appeal, and directions as to payment are added. Additional conclusions by the Judicial Officer follow the Chief ALJ's conclusions.

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION
(AS MODIFIED)

This is a proceeding under the Animal Welfare Act, as amended (7 U.S.C. §§ 2131-2157; the Act). The Administrator of the Animal and Plant Health Inspection Service (APHIS) initiated this proceeding by filing a complaint on January 3, 1991, which charges that, on June 6, 1990, Delta Air Lines, Inc. (Delta), wilfully violated the Act and pertinent regulations and standards under the Act, by transporting 108 dogs and cats in a cargo space that was without sufficient air. The complaint alleges all of the animals suffered harm from deprivation of oxygen which resulted in the death of 32 dogs. Delta answered the complaint on April 3, 1991, and admitted that 32 dogs died following their transportation by Delta on June 6, 1990, but denied any wilful

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).

violation of the Act or Departmental regulations or standards.

A motion that the case was ready for hearing was filed on July 28, 1993, and a telephonic prehearing conference was held on October 6, 1993.

I held an oral hearing in Atlanta, Georgia, on April 5, 1994. Complainant was represented by its attorney, Robert A. Ertman. Delta was represented by its attorneys, Karen L. Abrahams and Jason R. Archambeau. Briefing was completed on June 1, 1994.

Upon consideration of the evidence of record and the arguments of the parties as set forth at the hearing and in their proposed findings, conclusions and supporting briefs, an Order is being entered requiring Delta to cease and desist from placing live animals in any cargo space which does not have a supply of air sufficient for their normal breathing. Delta is also being assessed a civil penalty of $140,000.00 for its [serious] violations of the Act, the regulations and the standards. However, $80,000.00 of the civil penalty shall be held in abeyance for one year, at which time it will be abrogated if Delta implements new animal handling guidelines determined by APHIS to be adequate, to assure that animals transported will have sufficient air for normal breathing.

Findings of Fact

1. Delta Air Lines, Inc., is a corporation organized under the laws of the State of Delaware with its principal place of business located at Hartsfield Atlanta International Airport, Atlanta, Georgia 30320.

2. Delta is, and at all times material herein was, a registered carrier within the meaning of sections 2 and 6 of the Act (7 U.S.C. §§ 2132 and 2136).

3. On June 6, 1990, Delta transported 106 dogs and 2 cats contained in 58 primary enclosures (kennels); one dog was accompanying a passenger; the rest were being shipped Air Express by animal dealers. They were placed in the aft cargo compartment of a Boeing 737 and flown from Lambert Field, St. Louis, Missouri, to Salt Lake City International Airport, Utah. Upon arrival, many of the puppies contained in the kennels appeared to be dead or ill and all of the animals were sent by Delta to a veterinary clinic. Twenty-five of the puppies were dead-on-arrival at the veterinary clinic and 7 others died after arrival (CX 1). Fifty-two other animals received treatment for various degrees of depression, dehydration and abdominal distention and some for vomiting and diarrhea; symptoms consistent with oxygen deprivation and stress responses. (CX 6 and RX 1). Twenty-four of the animals recovered and did not require treatment, but had been deprived of requisite air for normal