a certified check or money order made payable to the Treasurer of United States and sent to the following address:

3. Respondent's license is revoked. Respondent is prohibited permanently from seeking or obtaining a license under the Animal Welfare Act and from operating as a dealer or in any other capacity for which a license is required by the Act.

The provisions of this order shall become effective on the first day after service of this decision on the respondent.

Pursuant to the Rules of Practice, this decision becomes final without further proceedings 35 days after service unless appealed to the Judicial Officer as provided in section 1.142 and 1.145 of the Rules of Practice, 7 C.F.R. §§ 1.142 and 1.145.

Copies of this decision shall be served upon the parties.

[This Decision and Order became final October 31, 1994.-Editor]

53 Agric. Dec. 1523

HORSE PROTECTION ACT

In re: BILLY MARTIN JAKES and WILLIAM M. RAINS.

HPA Docket No. 94-50.

Decision and Order as to William M. Rains filed July 13, 1994.

Failure to file answer - Owner - Soring - Allowing entry - Civil penalty - Disqualification.

Tejal Mehta, for Complainant.

Respondent, pro se.

Decision and Order issued by James Hunt, Administrative Law Judge.

Preliminary Statement

This proceeding was instituted under the Horse Protection Act ("Act"), as amended (15 U.S.C. § 1821 et seq.), by a complaint filed by the Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture, alleging that the respondent William B. Rains willfully violated the Act.

Copies of the complaint and the Rules of Practice governing proceedings under the Act, 7 C.F.R. §§1.130-1.151, were served on said respondent by the Hearing Clerk by certified mail on April 22, 1994. The Respondent was informed in the accompanying letter of service that an answer should be filed pursuant to the Rules of Practice and that failure to answer any allegation in the complaint would constitute an admission of that allegation.

Said respondent has failed to file an answer within the time prescribed in the Rules of Practice, and the material facts alleged in the complaint, which are admitted by respondent's failure to file an answer, are adopted and set forth herein as Findings of Fact.

This decision and order, therefore, is issued pursuant to section 1.139 of the Rules of Practice, 7 C.F.R. §1.139.

(1)

Findings of Fact

Respondent William M. Rains is an individual whose mailing address is 4842 Ash Hill Road, Spring Hill, Tennesse 37174.

(2) At all times material herein, respondent William M. Rains was the owner of the horse known as "Mr. Smith's Jumping Jack" which was entered as Entry No. 108, Class No. 22, on April 3, 1993, at the Professional Spotted Saddle Horse Trainers Association Horse Show at Shelbyville, Tennessee.

(3) On April 3, 1993, respondent William M. Rains, in violation of section 5(2)(D) of the Act (15 U.S.C. § 1824(2)(D)), allowed the entry for the purpose of showing or exhibiting of "Mr. Smith's Jumping Jack" as Entry No. 108, in Class No. 22, at the Professional Spotted Saddle Horse Trainers Association Horse Show at Shelbyville, Tennessee, while the horse was sore.

Conclusions

1. The Secretary of Agriculture has jurisdiction in this matter.

2. By reason of the facts set forth in the Findings of Fact above, said respondent has violated section 5(2)(D) of the Act (15 U.S.C. § 1824(2)(D)). 3. The following Order is authorized by the Act and warranted under the circumstances.

1.

Order

Respondent William M. Rains is assessed a civil penalty of $2,000 which shall be paid by a certified check or money order made payable to the Treasurer of the United States.

2. Respondent William M. Rains is disqualified for one year from showing, exhibiting, or entering any horse, directly or

indirectly through any agent, employee, or otherwise, and from judging, managing or otherwise participating in any horse show, horse exhibition, or horse sale or auction.

The provisions of this order shall become effective on the first day after this decision becomes final.

Pursuant to the Rules of Practice, this decision becomes final without further proceedings 35 days after service as provided in section 1.142 and 1.145 of the Rules of Practice,

7 C.F.R. §§ 1.142 and 1.145.

Copies of this decision shall be served upon the parties.

[This Decision and Order became final August 23, 1994.-Editor]

53 Agric. Dec. 1525

PLANT QUARANTINE ACT

In re: ALMA BURUCA.

P.Q. Docket No. 93-33.

Decision and Order filed May 4, 1994.

Failure to file an answer - Importation of prohibited fruits and vegetable from El Salvador Civil penalty.

Cynthia Koch, for Complainant.

Respondent, Pro se.

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

On December 17, 1993, Complainant filed a Motion for Adoption of Proposed Decision and Order based upon Respondent's failure to file an Answer to Complainant's January 6, 1993, Complaint. On February 23, 1993, Respondent filed a letter which was written in Spanish. An official translation was obtained of that letter (attachment 1).

The Complaint had requested that Respondent be assessed a fine of $750.00 for transporting nine mangoes, fourteen hard plums and one sack of black beans from El Salvador to Houston, Texas, in violation of 7 C.F.R. § 319.56(c). Complainant's Motion for Adoption of Proposed Decision and Order reduced the requested penalty to $375.00 in accordance with In re Kaplinsky, 47 Agric. Dec. 613 (1988). Since it was not clear whether Respondent was stating that she could not afford to pay a fine of $375.00, I issued an Order to Show Cause which was mailed to Respondent by ordinary mail on April 4, 1994, after difficulties were encountered in serving it by certified mail.

In response to the Order to Show Cause, I received a letter from Rev. Isaias A. Rodriguez, filed April 28, 1994 (attachment 2).

In In re Heywood, the Judicial Officer stated the criteria with respect to inability to financially pay a civil penalty as follows:

.in situations where a respondent presents documentation to prove that they do not have the ability to pay the civil penalty, the civil penalty will be reduced.

...The burden will be on respondents to produce documentation regarding a lack of ability to pay.

Respondent should be required to submit documentation to prove whether he has the present ability to pay the civil penalty, including whether he has the ability to pay in installments over time.

In the Order to Show Cause I communicated these criteria in quoting the following portion of In re Heywood:

... The fact that the Respondent was unemployed at some time would not be a sufficient basis upon which to reduce the civil penalty under the agency's proposed revisions to the Department's sanction policy. Respondent should be required to submit documentation to prove whether he has the present ability to pay the civil penalty, including whether he has the ability to pay in installments over time. Examples of acceptable documentation, would include a statement of the value of respondent's cash and liquid assets, net worth, liabilities, public assistance forms, income tax records, and information on his present employment status and any additional sources of income.

Respondent has failed to submit any documentation to prove that she is unable to pay a civil penalty of $375.00. Therefore, despite any sympathies that I may have for Respondent, I am bound by the Department's decisions to assess the requested civil penalty of $375.00. I, therefore, make the following Findings of Fact, Conclusion and Order as requested by Complainant in its motion.

Findings of Fact

1. Respondent Alma Buruca is an individual whose mailing address is 3383 Cumberland Drive, Apartment #1-C, Chamblee, Georgia 30341.

2. On or about March 14, 1992, Respondent imported into the United States at Houston, Texas, from El Salvador, approximately nine mangoes, approximately fourteen hog plums, and one sack of black beans in violation of 7 C.F.R. § 319.56(c), because the importation of mangoes, hog plums, and black beans into the United States is prohibited.