On October 30, 1997, the ALJ issued a Decision and Order [hereinafter Initial Decision and Order] assessing Respondent a civil penalty of $600 and ordering Respondent to cease and desist from violating the Animal Welfare Act and the Regulations and Standards. On December 1, 1997, Respondent appealed to, and requested oral argument before, the Judicial Officer to whom the Secretary of Agriculture has delegated authority to act as final deciding officer in USDA's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35). On January 14, 1998, Complainant filed Complainant's Appeal Petition, Brief in Support of Its Appeal Petition and Opposition to the Respondent's Appeal Petition [hereinafter Complainant's Appeal Petition], in which Complainant opposes Respondent's request for oral argument. Oral argument, which the Judicial Officer may grant, limit, or refuse (7 C.F.R. § 1.145(d)), is refused, since the issues have been well briefed, and no useful purpose would be served by oral argument. On March 24, 1998, Respondent filed a response to Complainant's Appeal [hereinafter Respondent's Reply]. On March 26, 1998, the Hearing Clerk transmitted the record of this proceeding to the Judicial Officer for decision. Based upon a careful consideration of the record in this proceeding, I agree with the ALJ that Respondent violated" the Animal Welfare Act and the Regulations and Standards, as alleged in paragraphs II(3); III(1)-(3), (5)-(6), (9)(11); IV(1)-(2), (4); V(1), (3); VI(B)(1)-(3); VII; and VIII(A), (B), (C) of the Complaint. Therefore, pursuant to the Rules of Practice (7 C.F.R. § 1.145(i)), 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. Additional conclusions by the Judicial Officer follow the ALJ's conclusions of law. Complainant's exhibits are referred to as "CX"; Respondent's exhibits are referred to as "RX"; and the hearing transcript is referred to as "Tr." "The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g); section 4(a) of Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219, 3221 (1953), reprinted in 5 U.S.C. app. § 4(a) at 1491 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. § 6912(a)(1)). "The ALJ did not find that Respondent's violations of the Animal Welfare Act and the Regulations and Standards were willful. As discussed in this Decision and Order, infra, I find that Respondent's violations were willful. 57 Agric. Dec. 242 APPLICABLE STATUTORY PROVISIONS, 7 U.S.C.: TITLE 7-AGRICULTURE CHAPTER 54-TRANSPORTATION, SALE, AND HANDLING § 2131. Congressional statement of policy The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce, in order (1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment; (2) to assure the humane treatment of animals during transportation in commerce; and (3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen. The Congress further finds that it is essential to regulate, as provided in this chapter, the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use. § 2132. Definitions When used in this chapter (f) The term "dealer" means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or use as a pet, or (2) any dog for hunting, security, or breeding purposes.... § 2141. Marking and identification of animals All animals delivered for transportation, transported, purchased, or sold, in commerce, by a dealer or exhibitor shall be marked or identified at such time and in such humane manner as the Secretary may prescribe: Provided, That only live dogs and cats need be so marked or identified by a research facility. § 2149. Violations by licensees (a) Temporary license suspension; notice and hearing; revocation If the Secretary has reason to believe that any person licensed as a dealer, exhibitor, or operator of an auction sale subject to section 2142 of this title, has violated or is violating any provision of this chapter, or any of the rules or regulations or standards promulgated by the Secretary hereunder, he may suspend such person's license temporarily, but not to exceed 21 days, and after notice and opportunity for hearing, may suspend for such additional period as he may specify, or revoke such license, if such violation is determined to have occurred. (b) 57 Agric. Dec. 242 Civil penalties for violation of any section, etc.; separate offenses; notice and hearing; appeal; considerations in assessing penalty; compromise of penalty; civil action by Attorney General for failure to pay penalty; district court jurisdiction; failure to obey cease and desist order Any dealer, exhibitor, research facility, intermediate handler, carrier, or operator of an auction sale subject to section 2142 of this title, that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder, may be assessed a civil penalty by the Secretary of not more than $2,500 for each such violation, and the Secretary may also make an order that such person shall cease and desist from continuing such violation. Each violation and each day during which a violation continues shall be a separate offense. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing with respect to the alleged violation, and the order of the Secretary assessing a penalty and making a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary's order with the appropriate United States Court of Appeals. The Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of 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. §§ 2131, 2132(f), 2141, 2149(a), (b). 9 C.F.R.: TITLE 9-ANIMALS AND ANIMAL PRODUCTS CHAPTER I-ANIMAL AND PLANT HEALTH DEPARTMENT OF AGRICULTURE SUBCHAPTER A—ANIMAL WELFARE PART 1-DEFINITION OF TERMS § 1.1 Definitions For the purposes of this subchapter, unless the context otherwise requires, the following terms shall have the meanings assigned to them in this section. The singular form shall also signify the plural and the masculine form shall also signify the feminine. Words undefined in the following paragraphs shall have the meaning attributed to them in general usage as reflected by definitions in a standard dictionary. .... Dealer means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet; or any dog for hunting, security, or breeding purposes. This term does not include: A retail pet store, as defined in this section, unless such store sells any animals to a research facility, an exhibitor, or a dealer (wholesale); or any person who does not sell, or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats, during any calendar year. PART 2-REGULATIONS SUBPART D-ATTENDING VETERINARIAN AND ADEQUATE VETERINARY CARE § 2.40 Attending veterinarian and adequate veterinary care (dealers and exhibitors). (a) Each dealer or exhibitor shall have an attending veterinarian who shall provide adequate veterinary care to its animals in compliance |