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ANIMAL QUARANTINE AND RELATED LAWS

DEPARTMENTAL DECISIONS

In re: HUGH TIPTON (TIP) HENNESSEY AND BERNARD JAMES VANDE BERG.

A.Q.Docket No. 95-7.

Decision and Order as to Hugh Tipton Hennessey filed October 10, 1996

Movement of cattle interstate without official health certificates - Sanction policy - Civil penalty.

Administrative Law Judge, Dorothea A. Baker, found that the Respondent moved test-eligible cattle from Oregon, a Class A State, to Idaho, a Class Free State, without testing the animals for brucellis thirty days prior to the movement and without accompanying the cattle with the required health certificates. She determined that Respondent's acts facilitated the spread of brucellosis and imposed Complainant's recommended sanction of $500 for each count set forth in the Complaint, for a total of $2,500.

Darlene M. Bolinger, for Complainant.

Respondent, Hugh Tipton (Tip) Hennessey, Pro se.

Decision and Order issued by Dorothea A. Baker, Administrative Law Judge.

Preliminary Statement

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. § 78.8) governing the interstate movement of cattle.

This disciplinary proceeding was instituted by a Complaint filed on November 3, 1994, by the Acting Administrator, Animal and Plant Health Inspection Service (APHIS), United States Department of Agriculture (USDA), seeking the assessment of a civil penalty of Three Thousand Dollars ($3,000.00)because Respondent moved cattle interstate from Oregon, a Class A State, to Idaho, a Class Free State, without an official health certificate accompanying the cattle during the interstate movement. Respondent filed an Answer on December 6, 1994, denying all material allegations of fact.

Pursuant to Complainant's Motion therefor, on April 2, 1996, Respondent Bernard James Vande Berg was dismissed from this administrative proceeding. The administrative proceeding continued with only Hugh Tipton (Tip) Hennessey as a Respondent.

A hearing was held by means of Audio-Visual Transmission on June 6, 1996, with visual transmissions in Portland, Oregon; Boise, Idaho; and Washington, D.C. before Administrative Law Judge Dorothea A. Baker. Darlene M. Bolinger, Esquire, of the Office of the General Counsel, United States Department of Agriculture, appeared on behalf of the Complainant. Hugh Tipton (Tip) Hennessey appeared pro se.

Respondent, although filing an Answer denying the material allegations of the Complaint, did not file a list of anticipated witnesses or a prospective witness list; did not adduce any documentary or testimonial evidence at the Audio-Visual Transmission hearing; did not testify in his own behalf; did not give testimony under oath and subject to cross-examination; and, did not file any post-hearing briefs.

On brief, the Complainant requested that Count VIII of the Complaint, pertaining to allegations that Respondent on December 18, 1991, moved interstate at least three test-eligible cattle from Portland, Oregon, to Notus, Idaho, be dropped from the Complaint. That request is granted and Paragraph VIII of the Complaint is no longer under consideration. The Complainant also requested a revision in a civil penalty to reflect the removal of that Count. Thus, the requested civil penalty herein is $2,500.00.

Pertinent Regulations

9 C.F.R. § 78.9 Cattle from herds not known to be affected.

Male cattle which are not test eligible and are from herds not
known to be affected may be moved interstate without further
restriction. Female cattle which are not test eligible and are
from herds not known to be affected may be moved interstate
only in accordance with § 78.10. Test-eligible cattle which are
not brucellosis exposed and are from herds not known to be
affected may be moved interstate only in accordance with §
78.10 and as follows:

(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

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moved interstate from Class A States or areas only as specified
below:

(3) Movement other than in accordance with paragraphs (b)(1) [Movement to recognized slaughtering establishments.] and (b) (2) [Movement to quarantined feedlots.] 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;

Respondent is an individual with a mailing address of Post Office Box 17626, Portland, Oregon 97217, and who does business as Hennessey Cattle Company. On or about October 29, 1991, December 4 [14], 6, 7 and 9, 1991, Respondent moved approximately nineteen head of test-eligible cattle from Oregon, a Class A State, to Idaho, a Class Free State, without the animals being tested prior to the movement and without the animals being accompanied by the required health certificate.

In determining the origin of a test-eligible cow, a method used by USDA/APHIS Veterinary Services is the backtag identification number ("backtag"). Backtag identification numbers consist of a prefix two digit numerical code signifying a particular State, followed by two letters signifying

a particular State livestock market, which, based on the sale volume for that livestock market is followed by the individual identifying three or four digit number. Three digit tags are generally used by markets which handle less than one thousand head of cattle per sale day, whereas four digit tags are used by markets which handle in excess of one thousand head of cattle per sale day. Backtags are generally laminated, oval-shaped paper applied to the hide of an animal. The backtag numbers are used on invoices, State brand inspection certificates and other documents to create a record of cattle sold and purchased at livestock markets.

Kirk Miller, Senior Investigator, APHIS, was informed that cattle were being moved interstate from Oregon livestock markets to the Marshbanks feedlot in Idaho without being qualified prior to entering Idaho. "Qualified" means the test-eligible cattle are destined for slaughter, a quarantined feedlot or have been tested thirty-days prior to moving interstate and are accompanied during the move by a health certificate, which states the test-results. (CX 2, 3; Tr. 11, 24, 40). The Marshbanks feedlot is neither a recognized slaughtering establishment, a quarantined feedlot, nor an approved intermediate handling facility. (Tr. 31, 32). Thus, cattle moving to the Idaho feedlot from the Oregon livestock markets had to be accompanied interstate by a health certificate. (Tr. 40). On December 13, 1991, Senior Investigator Miller, accompanied by Idaho's State Inspector Bill McKinster, visited the Marshbanks feedlot to determine the origin and health status of cattle located in the feedlot. (CX 1; Tr. 39, 45). They observed the backtags on the cattle and surmised that based on the prefix two digit numerical State code (92) the cattle originated in Oregon. To eliminate the risk of disease spreading from these nonqualified cattle, while investigating the health status, and the legality of the interstate movement from Oregon, Idaho Hold Order Notice No. 7785 was issued by State Inspector McKinster. (Exh. 13; Tr. 39, 40)

The health status of the cattle was determined by having them brucellosis tested by Gordon Cooper, D.V.M., an accredited veterinarian. (CX 2,8,9, 12; Tr. 42) The cattle that were healthy and met Idaho's requirements were released from the quarantine and the remaining cattle continued under quarantine pursuant to Idaho Hold Order Notice No. 5859. (Exh. 2, 8, 9, 11, 12; Tr. 42). These remaining animals were also tested by Dr. Cooper. (Exh. 8,9; Tr. 42). Although no field strain reactives were found among the cattle and thus their health status was not a problem, the legality of their interstate movement was questionable.

In determining whether these animals were legally moved into Idaho, Senior Investigator Miller used the backtag identifications to trace the cattle back to their herd of origin and to search the records of the Idaho Bureau of

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Animal Industry for health certificates that might have been issued to Respondent with respect to these cattle. No such documents were on file.

The testimony of record reflects the manner in which identification and tracing was done and how the cattle were traced to the Respondent. (Tr. 61, 62, 70, 71, 75).

Findings of Fact

1. On October 29, 1991, Respondent moved at least one head of cattle interstate from Woodburn, Oregon, to Notus, Idaho, without the cattle being accompanied by a certificate during the interstate movement in violation of 9 C.F.R. § 78.9(b)(3)(ii).

2. On December 7, 1991, Respondent moved at least three head of cattle interstate from Eugene, Oregon, to Notus, Idaho, without the cattle being accompanied by a certificate during the interstate movement in violation of 9 C.F.R. § 78.9(b)(3)(ii).

3. The Respondent on or about December 4 [14], 1991, moved interstate at least four test-eligible cattle from McMinnville, Oregon, to Notus, Idaho, in violation of 9 C.F.R.§ 78.9(b)(3)(ii) of the regulations, because the animals were moved interstate without being accompanied by a certificate, as required. 4. The Respondent on or about December 6, 1991, moved at least eleven head of cattle from Corvallis, Oregon, to Notus, Idaho, in violation of 9 C.F.R. § 78.9(b)(3)(ii) of the regulations, because the animals were moved interstate without being accompanied by a certificate as required.

5. On December 9, 1991, Respondent moved interstate at least three test-eligible cattle from Portland, Oregon, to Notus, Idaho, in violation of 9 C.F.R. § 78.9(b)(3)(ii) of the regulations, because the animals were moved interstate without being accompanied by a certificate, as required.

Discussion

Brucellosis is a contagious bacterial disease that can affect livestock and human beings. In cattle it can cause abortions, infertility, as well as reduced milk production. In human beings, the disease is known as undulant fever and can cause flu-like symptoms which can be severe.

As part of the Brucellosis Eradication Program, the United States Department of Agriculture has promulgated regulations, in Part 78, Title 9, Code of Federal Regulations, that delineate certain requirements for the interstate movement of cattle. Cattle movement interstate from a Class A