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based on the number of trees Respondent imported. This approach to the assessment of civil penalties for violations of the Plant Quarantine Act and the regulations issued under the Plant Quarantine Act is authorized by section 10 of the Plant Quarantine Act (7 U.S.C. § 163). Further, this approach to the assessment of civil penalties for violations of the Federal Plant Pest Act and the regulations issued under the Federal Plant Pest Act is authorized by section 108(b) of the Federal Plant Pest Act (7 U.S.C. § 150gg(b)). Moreover, this per-tree approach to the assessment of civil penalties is similar to the per-box approach I have taken in cases involving the interstate movement of boxes of Mexican Hass avocados in violation of regulations issued under the Plant Quarantine Act and the Federal Plant Pest Act."1 Finally, I find the approach to the assessment of civil penalties taken by the ALJ reflects the gravity of Respondent's violations. While the importation or offer for entry of a single tree in violation of regulations issued under the Plant Quarantine Act and the Federal Plant Pest Act could cause the introduction into the United States of plant pests, plant diseases, and injurious insects, the risk of the introduction into the United States of plant pests, plant diseases, and injurious insects increases with each additional prohibited or restricted article that is imported or offered for entry into the United States in violation of the regulations issued under the Plant Quarantine Act and the Federal Plant Pest Act.

Section 108(b) of the Federal Plant Pest Act (7 U.S.C. § 150gg(b)) provides that any person violating the Federal Plant Pest Act or any regulation promulgated under the Federal Plant Pest Act may be assessed by the Secretary of Agriculture a civil penalty not exceeding $1,000. Section 10 of the Plant Quarantine Act (7 U.S.C. § 163) provides that any person violating the Plant Quarantine Act or any regulation promulgated under the Plant Quarantine Act may be assessed by the Secretary of Agriculture a civil penalty not exceeding $1,000. Respondent committed 128 violations of the regulations issued under the Plant Quarantine Act and the Federal Plant Pest Act: viz., 32 violations of 7 C.F.R. § 319.37-3(a), 32 violations of 7 C.F.R. § 319.37-7, 32 violations of 7 C.F.R. § 319.37-8(a), and 32 violations of 7 C.F.R. § 319.37-14(a). Thus, Respondent could be assessed a maximum civil penalty of $128,000.

For the foregoing reasons, the following Order should be issued.

ORDER

Respondent is assessed a $9,600 civil penalty. The civil penalty shall be paid

"In re Rafael Dominguez, 60 Agric. Dec. 210 (2001); In re Calzado Leon, 59 Agric. Dec. 770 (2000); In re La Fortuna Tienda, 58 Agric. Dec. 833 (1999).

60 Agric. Dec. 637

by a certified check or money order, made payable to the "Treasurer of the United States," and sent to:

United States Department of Agriculture

APHIS Field Servicing Office

Accounting Section

P.O. Box 3334

Minneapolis, Minnesota 55403

The certified check or money order shall be sent to, and received by, the United States Department of Agriculture, APHIS Field Servicing Office, Accounting Section, within 60 days after service of this Order on Respondent. Respondent shall state on the certified check or money order that payment is in reference to P.Q. Docket No. 99-0054.

In re: GERONIMO'S AND LA MICHOACANA.

P.Q. Docket No. 99-0055.

Decision and Order.

Filed August 6, 2001.

PQ - Moving, offer for re-shipment - Knowledge of intended destination - Sanctions, purpose of, to deter others.

Respondent filed a timely request for hearing. The Administrative Law Judge (ALJ) found that Respondent knew or should have known by prior business transactions, invoices, sales tax numbers and permit numbers that the re-sale/re-shipment of imported produce (Mexican Hass Avocados) to a recipient in another state (where importation was restricted) was prohibited by Federal Regulations. The consequences of wrongful movement (re-shipment/transportation) of imported produce to a nonpermitted state/agriculture region could result in serious financial damages to U.S. agriculture interests due to importation of non-native pests and disease. Sanctions may be assessed as more than nominal or actual damages in order to deter others.

James D. Holt, for Complainant.

Gabriel Villanuva, for Respondent Geronimo's.

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

This proceeding was instituted under the Plant Quarantine Act of August 20, 1912, as amended (7 U.S.C. §§ 151-167), and the Federal Plant Pest Act, as amended (7 U.S.C. §§ 150aa-150jj) ("Acts") by a complaint filed by the Administrator of the Animal and Plant Health Inspection Service ("APHIS") on

September 9, 1999.' The complaint alleges that Respondent Geronimo's Mexican Produce ("Geronimo's") violated the Acts and regulations promulgated under the Acts (7 C.F.R. §§ 301.11(b) and 319.56-2ff) on or about March 3, 1999, by moving four boxes of Mexican Hass avocados from Chicago, Illinois, to Marshalltown, Iowa. Respondent filed a timely answer on September 24, 1999. A hearing was held on April 4, 2001, in Chicago, Illinois. James D. Holt, Esq., Office of the General Counsel, U.S. Department of Agriculture ("USDA"), appeared on behalf of the Complainant. Mr. Gabriel Villanuva appeared on behalf of Respondent Geronimo's.

Law

The Plant Quarantine Act, which was in force at the time of the alleged violation in 1999, provides that the Secretary of Agriculture ("Secretary") may promulgate regulations restricting the importation of fruit into the United States to prevent the introduction of injurious insects and diseases. The Secretary may assess a civil penalty not exceeding $1,000 for each violation (7 U.S.C. §§ 160, 163). On June 20, 2000, the Plant Protection Act (7 U.S.C. § 7701) was enacted repealing the 1912 Plant Quarantine Act and the Federal Plant Pest Act. However, section 7758(c) of the Plant Protection Act provides that "Regulations issued under the authority of a provision of law repealed by [the Plant Protection Act] shall remain in effect until such time as the Secretary issues a regulation under section 7754 [of the Plant Protection Act] that supersedes the earlier regulation." The following regulations promulgated by the Secretary under the Plant Quarantine Act have not been superseded and are therefore applicable to this proceeding:

Title 7--Code of Federal Regulations, Part 301--Imported Plants and Plant Parts § 301.10 (Definitions)

Move (moved, movement). Shipped, offered to a common carrier for shipment, received for transportation or transported by a common carrier, or carried, transported, moved, or allowed to be moved.

§ 301.11 (Notice of quarantine; prohibitions on the interstate movement of certain imported plants and plant parts)

'The proceeding as to Respondent La Michoacana was terminated by the entry of a Consent Decision on March 31, 2000.

60 Agric. Dec. 637

(a) In accordance with part 319 of this chapter, some plants and plant parts may only be imported into the United States subject to certain destination restrictions. That is, under part 319, some plants and plant parts may be imported into some States or areas of the United States but are prohibited from being imported into, entered into, or distributed within other States or areas, as an additional safeguard against the introduction and establishment of foreign plant pests and diseases.

(b) Under this quarantine notice, whenever any imported plant or plant part is subject to destination restrictions under part 319:

(1) The State(s) or area(s) into which the plant or plant part is allowed to be imported is quarantined with respect to that plant or plant part; and

(2) No person shall move any plant or plant part from any such quarantined State or area into or through any State or area not quarantined with respect to that plant or plant part.

Title 7--Code of Federal Regulations, Part 319--Foreign Quarantine Notices, Sub-part--Fruit and Vegetables (Quarantine)

§ 319.56 (Notice of quarantine)

(a) The fact has been determined by the Secretary of Agriculture, and notice is hereby given:

(1) That there exist in Europe, Asia, Africa, Mexico, Central America, and South America, and other foreign countries and localities, certain injurious insects, including fruit and melon flies (Tephritidae), new to and not heretofore widely distributed within and throughout the United States, which affect and may be carried by fruits and vegetables commercially imported into the United States or brought to the ports of the United States as ships' stores or casually by passengers or others, and

(2) That the unrestricted importation of fruits and vegetables from the countries and localities enumerated may result in the entry into the United States of injurious insects, including fruit and melon flies (Tephritidae).

(b) The Secretary of Agriculture, under authority conferred by the act of

Congress approved August 20, 1912 (37 Stat. 315; 7 U.S.C. 151-167), does hereby declare that it is necessary, in order to prevent the introduction into the United States of certain injurious insects, including fruit and melon flies (Tephritidae), to forbid, except as provided in the rules and regulations supplemental hereto, the importation into the United States of fruits and vegetables from the foreign countries and localities named and from any other foreign country or locality, and of plants or portions of plants used as packing material in connection with shipments of such fruits and vegetables.

(c) On and after November 1, 1923, and until further notice, the importation from all foreign countries and localities into the United States of fruits and vegetables, and of plants or portions of plants used as packing material in connection with shipments of such fruits and vegetables, except as provided in the rules and regulations supplemental hereto, is prohibited:

§ 319.56-2ff (Administrative instructions governing movement of Hass avocados from Mexico to the Northeastern United States)

Fresh Hass variety avocados (Persea americana) may be imported from
Mexico into the United States for distribution in the northeastern United
States only under a permit. . .and only under the following conditions:

(a) Shipping restrictions.

(3) The avocados may be distributed only in the following northeastern
States: Connecticut, Delaware, the District of Columbia, Illinois, Indiana,
Kentucky, Maine, Maryland, Massachusetts, Michigan, New Hampshire,
New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont,
Virginia, West Virginia, and Wisconsin.

Findings of Fact

1. The mailing address of Respondent Geronimo's Mexican Produce is 96 South Water Market, Chicago, Illinois 60608.

2. On March 3, 1999, Respondent Geronimo's moved four boxes of Mexican

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