For the foregoing reasons, the following Order should be issued. Order Respondent Garland E. Samuel is assessed a civil penalty of $2,000. The civil penalty shall be paid by certified checks or money orders made payable to the "Treasurer of the United States," and sent to: United States Department of Agriculture Minneapolis, Minnesota 55403 The civil penalty assessed in this Order shall be paid by Respondent in 80 equal monthly payments of $25 each. The initial $25 monthly payment must be received by the United States Department of Agriculture, APHIS Field Servicing Office, Accounting Section, within 90 days after service of this Order on Respondent. After the initial $25 monthly payment, Respondent shall pay $25 in each of the next succeeding 79 months, and the payments must be received by the United States Department of Agriculture, APHIS Field Servicing Office, Accounting Section, on or before the 15th day of each of those 79 months. If Respondent fails to make any payment in full or if any payment is received by the United States Department of Agriculture, APHIS Field Servicing Office, Accounting Section, after the date on which the payment is due, all remaining payments shall become due and payable in full immediately. Respondent shall indicate on each certified check or money order that payment is in reference to A.Q. Docket No. 98-0002. In re: JERRY LYNN STOKES, d/b/a TAYLOR CATTLE. Decision and Order filed October 6, 1998. Default — Failure to answer — Intent — Ability to pay — Civil penalty. Sheila Hogan Novak, for Complainant. Respondent, Pro se. Initial decision issued by Victor W. Palmer, Chief Administrative Law Judge. 57 Agric. Dec. 914 Decision and Order issued by William G. Jenson, Judicial Officer. The Acting Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding under section 2 of the Act of February 2, 1903, as amended (21 U.S.C. § 111), and sections 4 and 5 of the Act of May 29, 1884, as amended (21 U.S.C. § 120) [hereinafter the Animal Quarantine Acts]; regulations issued under the Animal Quarantine Acts (9 C.F.R. §§ 71.1-.20, 78.1.43); and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice], by filing a Complaint on April 6, 1998. The Complaint alleges that: (1) on or about July 23, 1997, Jerry Lynn Stokes, d/b/a Taylor Cattle [hereinafter Respondent], moved approximately two cows interstate from Garrison, Texas, to Coushatta, Louisiana, in violation of 9 C.F.R. § 71.18(a)(1)(i), because the cattle were not accompanied interstate by a statement or other document containing required information (Compl. ¶ II); (2) on or about July 23, 1997, Respondent moved a brucellosis exposed cow from Garrison, Texas, to Coushatta, Louisiana, in violation of 9 C.F.R. § 78.8, because the brucellosis exposed cow was not moved to a recognized slaughtering establishment, a quarantined feedlot, or otherwise, as required (Compl. ¶ III); (3) on or about July 23, 1997, Respondent moved approximately one cow from Garrison, Texas, to Coushatta, Louisiana, in violation of 9 C.F.R. § 78.9(b)(3)(ii), because the cow was not accompanied interstate by a certificate, as required (Compl. ¶ IV). Respondent was served with the Complaint on April 13, 1998.' Respondent failed to answer the Complaint within 20 days after service of the Complaint, as provided by section 1.136(a) of the Rules of Practice (7 C.F.R. § 1.136(a)). On June 24, 1998, in accordance with section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), Complainant filed a Motion for Adoption of Proposed Default Decision and Order [hereinafter Motion for Default Decision] and a Proposed Default Decision and Order [hereinafter Proposed Default Decision]. Respondent was served with Complainant's Motion for Default Decision and Complainant's 'The Domestic Return Receipt for Article Number [P] 368421006 indicates that the Complaint was delivered to Respondent on April 13, 1994. However, the violations alleged in the Complaint are alleged to have occurred on or about July 23, 1997; the Complaint was not filed until April 6, 1998; the letter from the Hearing Clerk accompanying the Complaint is dated April 6, 1998; and the Domestic Return Receipt for Article Number [P] 368421006 was returned to the Hearing Clerk on April 20, 1998. I find that the Complaint was not served on Respondent on April 13, 1994, as indicated on the Domestic Return Receipt for Article Number [P] 368421006, and I infer that the Complaint was served on Respondent on April 13, 1998. Proposed Default Decision on July 6, 1998. Respondent failed to file objections to Complainant's Motion for Default Decision or Complainant's Proposed Default Decision within 20 days after service, as provided by section 1.139 of the Rules of Practice (7 C.F.R. § 1.139). On August 12, 1998, Chief Administrative Law Judge Victor W. Palmer [hereinafter Chief ALJ] filed a Default Decision and Order [hereinafter Initial Decision and Order] in accordance with section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), in which the Chief ALJ: (1) concluded that Respondent violated 9 C.F.R. §§ 71.18(a)(1)(i), 78.8, and 78.9(b)(3)(ii), as alleged in the Complaint; and (2) assessed Respondent a $3,000 civil penalty (Initial Decision and Order at 4). On August 25, 1998, Respondent appealed to the Judicial Officer to whom the Secretary of Agriculture has delegated authority to act as final deciding officer in the United States Department of Agriculture's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35). On September 18, 1998, Complainant filed Complainant's Response to Respondent's Appeal, and on October 1, 1998, the Hearing Clerk transmitted the record of this proceeding to the Judicial Officer for a decision. Based upon a careful consideration of the record in this proceeding, I adopt the Initial Decision and Order as the final Decision and Order. Additions or changes to the Initial Decision and Order are shown by brackets, deletions are shown by dots, and minor editorial changes are not specified. Additional conclusions by the Judicial Officer follow the Chief ALJ's conclusion. CHIEF ADMINISTRATIVE LAW JUDGE'S [R]espondent failed to file an answer within the time prescribed in [section 1.136(a) of the Rules of Practice] (7 C.F.R. § 1.136(a)). Section 1.136(c) of the Rules of Practice (7 C.F.R. § 1.136(c)) provides that the failure to file an answer within the time provided under [section 1.136(a) of the Rules of Practice] (7 C.F.R. § 1.136(a)) shall be deemed an admission of the allegations in the complaint. '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)). 57 Agric. Dec. 914 Further, the failure to file an answer constitutes a waiver of hearing. (7 C.F.R. § 1.139.) Accordingly, the material allegations in the Complaint are adopted and set forth... [in this Decision and Order] as the Findings of Fact, and this Decision [and Order] is issued pursuant to section 1.139 of the Rules of Practice . . . (7) C.F.R. § 1.139). Findings of Fact 1. Jerry Lynn Stokes is an individual who does business as Taylor Cattle with a mailing address of P.O. Box 545, Garrison, Texas 75946. 2. On or about July 23, 1997, Respondent moved interstate approximately two cows from Garrison, Texas, to Coushatta, Louisiana, in violation of...9 C.F.R. § 71.18(a)(1)(i), because the cattle were not accompanied interstate by a statement or other document containing required information. 3. On or about July 23, 1997, Respondent moved a brucellosis exposed cow from Garrison, Texas, to Coushatta, Louisiana, in violation of 9 C.F.R. § 78.8, because the brucellosis exposed cow was not moved to a recognized slaughtering establishment, a quarantined feedlot, or otherwise, as required. 4. On or about July 23, 1997, Respondent moved approximately one cow from Garrison, Texas, to Coushatta, Louisiana, in violation of 9 C.F.R. § 78.9(b)(3)(ii), ...because the cow was not accompanied interstate by a certificate, as required. Conclusion By reason of the facts contained in the Findings of Fact [in this Decision and Order], Respondent has violated 9 C.F.R. §§ 71.18(a)(1)(i), 78.8, and 78.9(b)(3)(ii).... ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER Respondent raises two issues in Respondent's untitled August 25, 1998, filing [hereinafter Appeal Petition]. First, Respondent contends that the civil penalty assessed by the Chief ALJ is excessive because the brucellosis exposed cow that was moved from Garrison, Texas, to Coushatta, Louisiana, on or about July 23, 1997, was moved "across the state line [by] accident," and he violated 9 C.F.R. § 78.8 by "mistake" (Respondent's Appeal Pet. at 1-2). Civil penalties may be imposed for violations of the brucellosis regulations (9 C.F.R. §§ 78.1-.43) even under circumstances in which the violations are unintentional and result from a "mistake" or "accident," as Respondent contends occurred in this case.3 Section 3 of the Act of February 2, 1903, as amended, sets forth the sanctions that may be imposed for violations of the regulations at issue in this proceeding, 9 C.F.R. §§ 71.18(a)(1)(i), 78.8, and 78.9(b)(3)(ii), as follows: § 122. Offenses; penalty 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, and on conviction shall be punished by a fine of not less than one hundred dollars nor more than five thousand dollars, or by imprisonment not more than one year, or by both such fine and imprisonment. 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. The 'See In re John Casey, 54 Agric. Dec. 91, 102 (1995) (stating that it is well settled that civil penalties may be imposed for violations of the brucellosis regulations irrespective of whether the violations are committed knowingly or with intent); In re Myles C. Culbertson (Decision as to Myles C. Culbertson, M.S. "Buddy" Major, Jr., and Stuart Major), 53 Agric. Dec. 1030, 1056 (1994) (concluding that respondents violated a provision of the brucellosis regulations (9 C.F.R. § 78.9(b)(3)(ii) (1987)) and stating that respondents M.S. "Buddy" Major, Jr., and Stuart Major erroneously imply in their appeal petition that complainant must prove that the violations were knowing), rev'd on other grounds, 69 F.3d 465 (10th Cir. 1995); In re Dean Reed (Decision as to Dean Reed and Pete Donathan), 52 Agric. Dec. 90, 108 (1993) (concluding that respondents violated numerous provisions of the brucellosis regulations and stating that civil penalties are routinely imposed without proof that respondents "knowingly" committed the violations), aff'd, 39 F.3d 1192 (10th Cir. 1994); In re Howard Eastland, 51 Agric. Dec. 1033, 1045 (1992) (concluding that respondent violated provisions of the brucellosis regulations (9 C.F.R. § 78.7(a)-(c) (1987)) and stating that intent is not an element of the violation of the regulations); In re Bob Smith (Decision as to Charles Reed), 50 Agric. Dec. 356, 367 (1991) (concluding that respondent Charles Reed violated provisions of the brucellosis regulations (9 C.F.R. §§ 78.7 (1986), 78.7(b) (1986), 78.9(b)(3)(ii) (1988)) and stating that intent is not an element of a violation of the regulations); In re Basil L. Burns, 48 Agric. Dec. 881, 882 (1989) (concluding that respondent violated provisions of the brucellosis regulations (9 C.F.R. § 78.8(a)(2)-(a)(3) (1986)); rejecting respondent's contention that the civil penalties should be reduced because the violations were not intentional; and stating that intent is not an element of respondent's violations of administrative regulations); In re Harry L. Floyd, 48 Agric. Dec. 94, 97 (1989) (concluding that respondent violated provisions of the brucellosis regulations (9 C.F.R. §§ 78.7(a)(1), 78.8(a)(1)(i), 78.9(c)(3) (1986)); rejecting respondent's contention that the civil penalties should be reduced because the violations were not intentional; and stating that intent is not an element of respondent's violations of the administrative regulations); In re Roy Carter, 46 Agric. Dec. 207, 211 (1987) (concluding that respondent violated 9 C.F.R. §§ 71.18, and 78.9(d)(3) (1984) and rejecting respondent's contention that complainant must show that the violations were willful or knowing). |