61 Agric. Dec. 99 ANIMAL QUARANTINE AND RELATED LAWS DEPARTMENTAL DECISION In re: SALVADOR SANCHEZ-GOMEZ. A.Q. Docket No. 01-0010. Decision and Order. Filed May 28, 2002. AQ – Default - Birds - Pet birds - Importation – Certificate – Port of entry – Sanction policy -Civil penalty. The Judicial Officer (JO) affirmed the Default Decision issued by Administrative Law Judge Dorothea A. Baker (ALJ): (1) concluding that Respondent imported a pet canary into the United States in violation of 9 C.F.R. §§ 101(a), .104(a), and .105(b); and (2) assessing Respondent a $1,000 civil penalty. The JO rejected Respondent's assertion that he did not import a pet canary, but rather imported a cheap pet parakeet. The JO stated that the complaint alleged Respondent imported a pet canary and Respondent is deemed by his failure to file a timely answer to the complaint to have admitted the allegations in the complaint (7 C.F.R. § 1.136(c)). Moreover the JO stated that 9 C.F.R. §§ 93.101(a), .104(a), and .105(b) apply equally to pet canaries and pet parakeets; thus, the disposition of the proceeding would not be altered even if the JO found that respondent imported a pet parakeet. The JO also rejected Respondent's contention that his confusion regarding the instructions he received concerning the return of his pet bird to Mexico was a meritorious basis for Respondent's failure to file a timely answer to the complaint and timely objections to Complainant's motion for adoption of a proposed decision and order and Complainant's proposed decision and order. Finally, the JO rejected Respondent's offer to pay a civil penalty equal to the price of the pet parakeet Respondent asserted he imported into the United States. The JO stated that a $1,000 civil penalty was warranted in law, justified by the facts, and consistent with the United States Department of Agriculture's sanction policy. Darlene Bolinger, for Complainant. Respondent, Pro se. Initial decision issued by Dorothea A. Baker, Administrative Law Judge. PROCEDURAL HISTORY Bobby R. Acord, Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture [hereinafter Complainant], instituted this disciplinary administrative proceeding by filing a “Complaint" on August 6, 2001. Complainant instituted this proceeding under sections 4 and 5 of the Act of May 29, 1884, as amended (21 U.S.C. § 120) [hereinafter the Act of May 29, 1884]; regulations issued under the Act of May 29, 1884 (9 C.F.R. §§ 93.100.107); 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] (Compl. at 1). Complainant alleges that: (1) on or about September 25, 2000, Salvador Sanchez-Gomez [hereinafter Respondent] brought a pet canary into the United States in violation of 9 C.F.R. § 93.101(a) in that the pet bird was not brought into the United States in accordance with the regulations in 9 C.F.R. pt. 93, as required; (2) on or about September 25, 2000, Respondent imported a pet canary into the United States from Mexico in violation of 9 C.F.R. § 93.104(a) in that the pet bird was not accompanied by a certificate, as required; and (3) on or about September 25, 2000, Respondent imported a pet canary into the United States from Mexico in violation of 9 C.F.R. § 93.105(b) in that the pet bird was not offered for entry at one of the ports of entry designated in 9 C.F.R. § 93.102(a), as required (Compl. ¶ II-IV).' On August 21, 2001, the Hearing Clerk served Respondent with the Complaint, the Rules of Practice, and the Hearing Clerk's service letter dated August 6, 2001.2 Respondent failed to answer the Complaint within 20 days after service, as required by section 1.136(a) of the Rules of Practice (7 C.F.R. § 1.136(a)). On October 10, 2001, the Hearing Clerk sent a letter to Respondent informing him that his answer to the Complaint had not been received within the time required in the Rules of Practice.' On November 26, 2001, the Hearing Clerk again served Respondent with the Complaint, the Rules of Practice, and the Hearing Clerk's service letter dated August 6, 2001. Respondent failed to answer the Complaint within 20 days after service, as required by section 1.136(a) of the Rules of Practice (7 C.F.R. § 'Sections 4 and 5 of the Act of May 29, 1884 (21 U.S.C. § 120), do not provide the Secretary of Agriculture with authority to regulate the importation of birds into the United States, and the authority citation for 9 C.F.R. pt. 93 does not include a reference to section 4 or 5 of the Act of May 29, 1884 (21 U.S.C. § 120). Therefore, I find Complainant's institution of this proceeding under sections 4 and 5 of the Act of May 29, 1884 (21 U.S.C. § 120), is error. However, Respondent does not contend he was misled by the reference in the Complaint to sections 4 and 5 of the Act of May 29, 1884 (21 U.S.C. § 120). Moreover, the Secretary of Agriculture has authority under other statutes to regulate the importation of birds into the United States. (See, e.g., section 2 of the Act of February 2, 1903, as amended (21 U.S.C. § 111) [hereinafter the Act of February 2, 1903]). Therefore, I find Complainant's erroneous reference in the Complaint to sections 4 and 5 of the Act of May 29, 1884 (21 U.S.C. § 120), harmless error. 2See Memorandum to File dated August 22, 2001, from Regina A. Paris. 'See letter dated October 10, 2001, from Joyce A. Dawson, Hearing Clerk, to Salvador SanchezGomez. *See Domestic Return Receipt for Article Number 7099 3400 0014 4581 5419. 61 Agric. Dec. 99 1.136(a)). On January 15, 2002, the Hearing Clerk sent a letter to Respondent informing him that his answer to the Complaint had not been received within the time required in the Rules of Practice." On January 16, 2002, 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" and a "Proposed Default Decision and Order." On February 4, 2002, the Hearing Clerk served Respondent with Complainant's Motion for Adoption of Proposed Default Decision and Order, Complainant's Proposed Default Decision and Order, and the Hearing Clerk's service letter dated January 17, 2002. Respondent failed to file objections to Complainant's Motion for Adoption of Proposed Default Decision and Order and Complainant's Proposed Default Decision and Order within 20 days after service, as required by section 1.139 of the Rules of Practice (7 C.F.R. § 1.139). On March 19, 2002, the Hearing Clerk sent a letter to Respondent informing him that he failed to file timely objections to Complainant's Motion for Adoption of Proposed Default Decision and Order and Complainant's Proposed Default Decision and Order and that the file was being referred to an administrative law judge for consideration and decision." On March 22, 2002, pursuant to section 1.139 of the Rules of Practice (7 C.F.R. § 1.139), Administrative Law Judge Dorothea A. Baker [hereinafter the ALJ] issued a "Default Decision and Order" [hereinafter Initial Decision and Order]: (1) finding that on or about September 25, 2000, Respondent imported a pet canary into the United States from Mexico in violation of 9 C.F.R. §§ 93.101(a), .104(a), and .105(b) because the pet bird was not brought into the United States in accordance with 9 C.F.R. pt. 93, as required, the pet bird was not accompanied by the required certificate, and the pet bird was not offered for entry at a designated port of entry; (2) concluding that Respondent violated section 2 of the Act of February 2, 1903 (21 U.S.C. § 111), and the regulations "See letter dated January 15, 2002, from Joyce A. Dawson, Hearing Clerk, to Salvador Sanchez Gomez. "See Domestic Return Receipt for Article Number 7099 3400 0014 4581 5112. 'See letter dated March 19, 2002, from Joyce A. Dawson, Hearing Clerk, to Salvador Sanchez Gomez. 8 issued under the Act of February 2, 1903 "(9 C.F.R. § 100 et seq)."; and (3) assessing Respondent a $1,000 civil penalty (Initial Decision and Order at 2). On April 30, 2002, Respondent appealed to the Judicial Officer. On May 17, 2002, Complainant filed "Response to Respondent's Appeal." On May 22, 2002, the Hearing Clerk transmitted the record to the Judicial Officer to consider Respondent's appeal petition and issue a decision. Based upon a careful consideration of the record, I agree with the ALJ's Initial Decision and Order, except that I issue an Order that provides for Respondent's payment of the civil penalty in installments. Therefore, pursuant to section 1.145(i) of the Rules of Practice (7 C.F.R. § 1.145(i)), I adopt with minor modifications the Initial Decision and Order as the final Decision and Order. Additional conclusions by the Judicial Officer follow the ALJ's conclusion of law, as restated.· APPLICABLE STATUTORY AND REGULATORY PROVISIONS 21 U.S.C.: TITLE 21-FOOD AND DRUGS CHAPTER 4-ANIMALS, MEATS, AND MEAT AND SUBCHAPTER III-PREVENTION OF INTRODUCTION § 111. Regulations to prevent contagious diseases The Secretary of Agriculture shall have authority to make such regulations and take such measures as he may deem proper to prevent the introduction or dissemination of the contagion of any contagious, infectious, or communicable disease of animals and/or live poultry from a foreign country into the United States or from one State or Territory of the United States or the District of Columbia to another, and to seize, quarantine, and dispose of any hay, straw, forage, or similar material, or any meats, hides, or other animal products coming from an infected foreign country to the United States, or from one State or Territory or the The ALJ's reference to 9 C.F.R. § 100 et seq. appears to be a typographical error. Based on the record before me, I infer the ALJ concluded that Respondent violated 9 C.F.R. § 93.100 et seq. The ALJ's incorrect citation of the Code of Federal Regulations is harmless error. 61 Agric. Dec. 99 District of Columbia in transit to another State or Territory or the District of Columbia whenever in his judgment such action is advisable in order to guard against the introduction or spread of such contagion. § 120. Regulation of exportation and transportation of infected livestock and live poultry In order to enable the Secretary of Agriculture to effectually suppress and extirpate contagious pleuropneumonia, foot-and-mouth disease, and other dangerous contagious, infectious, and communicable diseases in cattle and other livestock and/or live poultry, and to prevent the spread of such diseases, he is authorized and directed from time to time to establish such rules and regulations concerning the exportation and transportation of livestock and/or live poultry from any place within the United States where he may have reason to believe such diseases may exist into and through any State or Territory, and into and through the District of Columbia and to foreign countries as he may deem necessary, and all such rules and regulations shall have the force of law. § 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 Secretary may issue an order assessing such civil penalty only after notice and an opportunity for an agency hearing on the record. Such order shall be treated as a final order reviewable under chapter 158 of title 28. The validity of such order may not be reviewed in an action to collect such civil penalty. 21 U.S.C. §§ 111, 120, 122. 28 U.S.C.: |