Sanction in each case is to be determined by examining nature of violations in relation to remedial purposes of regulatory statute involved, along with all relevant circumstances, giving appropriate weight to recommendations of administrative officials having responsibility for achieving congressional purpose.
**2 This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. § 2131 et seq.), and the regulations and standards issued *115 thereunder (9 C.F.R. § 1.1 et seq.). On October 14, 1994, Administrative Law Judge Edwin S. Bernstein (ALJ) issued an Initial Decision and Order assessing a civil penalty of $1,000, and suspending Respondent's license for 15 days, and thereafter until he is in full compliance with the Act, regulations and standards, because Respondent failed to keep primary enclosures sanitary and in suitable condition, failed to keep watering receptacles clean, failed to provide adequate veterinarian care, and failed to establish and maintain an appropriate plan for environmental enhancement adequate to primates.
On January 19, 1995, Complainant appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the Department's cases subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35). [FN1] Complainant appeals from the ALJ's dismissal of the allegations of the Amended Complaint relating to the failure to have a proper perimeter fence, as required by 9 C.F.R. § 3.125(a), and the failure to properly identify cats, as required by 9 C.F.R. § 2.50. Complainant seeks a $9,000 civil penalty and a 45-day suspension order. The case was referred to the Judicial Officer for decision on March 13, 1995.
Based upon a careful consideration of the record, I agree with Complainant that the ALJ erroneously dismissed the allegations referred to above. I am increasing the civil penalty to $7,500 and the suspension order to 40 days. Portions of the Initial Decision and Order are adopted 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.
*116 ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION
(AS MODIFIED)
This proceeding was instituted under the Animal Welfare Act (Act), as amended (7 U.S.C. § 2131 et seq.), by an Amended Complaint filed July 21, 1993, by the Acting Administrator, Animal and Plant Health Inspection Service, United States Department of Agriculture (USDA). The Complaint alleged that Respondent Patrick D. Hoctor willfully violated the Act and the regulations issued thereunder from January 11, 1990, through May 21, 1992. Respondent filed a timely answer denying the allegations of the Complaint.
I presided over an administrative hearing on June 1, 1994, in Terre Haute, Indiana. Complainant was represented by Sharlene A. Deskins, Esq., Office of the General Counsel, USDA. Respondent was represented by William J. Tabor, Esq., Terre Haute, Indiana.
Complainant seeks the imposition of a civil penalty, a suspension of Respondent's license and a cease and desist order. The parties filed findings of fact, proposed conclusions of law and briefs, with the last being filed on September 27, 1994. All proposed findings, proposed conclusions, and arguments have been considered. To the extent indicated, they have been adopted. Otherwise, they have been rejected as irrelevant or not supported by the evidence. 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."
**3 After considering the evidence and the applicable law, I conclude that Respondent committed willful violations as alleged in paragraphs II.B., III.B. (as it pertains to unsanitary conditions in binturong enclosures), and VII.B.1. (as it pertains to the use of expired medication) and VII.C.2.-5. of the Amended Complaint. . . .
Findings of Fact
1. Patrick D. Hoctor is an individual whose address is Rural Route 23, Box 269, Terre Haute, Indiana 46278 (Answer).
2. Respondent at all times material herein was operating as a dealer as defined in the Animal Welfare Act and regulations (Answer), and has held a license under the Animal Welfare Act for the last 13 years (CX 1, 2; Tr. 170- 71).
3. Between January 11, 1990, and May 21, 1992, USDA Veterinary Medical Officer Peter R. Kirsten inspected Respondent's facility on six *117 occasions (CX 3-5, 7, 10, 12). Dr. Kirsten is an experienced veterinarian who received his veterinary medicine degree in 1975, and who was in private practice for 10 years before entering government service with the Animal and Plant Health Inspection Service (APHIS) (Tr. 38-39). During his inspections of Respondent's facility, Dr. Kirsten noted conditions that, in his opinion, did not comply with the APHIS regulations governing such facilities, including the lack of a perimeter fence at least 8 feet in height, and deficiencies with respect to veterinary care, animal identification, and various "housekeeping" provisions with respect to cleaning and sanitation (CX 3-5, 7, 10, 12).
4. Respondent's facility lacked a perimeter fence at least 8 feet in height (CX 3-5, 7, 10-12; Tr. 245).
5. During 1991, two large cats became seriously ill as a result of uremic poisoning and were subsequently euthanized by Respondent, who shot the animals (CX 12; Tr. 131-32, 145-49, 160-63, 195-97). During 1992, two lions escaped from their primary enclosure and were shot by Respondent as they were approaching an employee who had been feeding them (Tr. 167, 189-95).
6. Respondent did not tattoo or otherwise individually identify nine exotic hybrid cats. After raising concerns with APHIS officials about the identification process as it pertained to these animals, Respondent received a letter from APHIS stating that his question would be referred to the Animal Care Staff at Hyattsville, Maryland ([R]X 12, 13; Tr. 180-87).
7. Respondent fed whole chickens, including feathers, to the large cats at his facility. As a result of this diet, the fecal matter produced by the animals was grayish in color (Tr. 164-65, 177-78). 8.On May 21, 1992, Dr. Kirsten found a bottle of Dexasone with a January 1987 expiration date that was used to provide veterinary care to animals (CX 12; Tr. 129-30, 149-55).
9. On May 21, 1992, the enclosure for a pair of ring- tailed lemurs contained a light socket without a guard to protect the animals (CX 12).
10. On May 21, 1992, Respondent did not have a plan for the environmental enhancement of nonhuman primates (CX 12).
**4 11. On March 31, 1992, the solitary lemur enclosure contained an excessive amount of excreta (CX 10). On May 21, 1992, the enclosure for a pair of lemurs was excessively dirty with feed waste and excreta (CX 12).
12. On May 21, 1992, the water receptacle for a lion and a tiger contained bright green algae (CX 12).
13. On October 15, 1991, the binturong enclosure contained an excessive amount of feces (CX 7; Tr. 108- 10, 133-35).
*118 14. Respondent received a warning letter regarding violations of the Act and regulations (RX 3; Tr. 176).
15. In 1991, Respondent grossed $49,934 from the sale of animals covered by the Act and, in 1992, grossed $16,230 from such sales (CX 6; RX 6).
Conclusions of Law
1. Respondent did not violate the Act or regulations by:
(a) . . . .
(b) Euthanizing two sick cats in 1991 and destroying two escaped lions in 1992;
(c) . . .; or
(d) Failing to clean grayish-colored feces present in enclosures housing large cats.
2. Respondent violated the Act and regulations in the following manner:
(a) On May 21, 1992, Respondent failed to provide adequate veterinary care to animals, in violation of 9 C.F.R. § 2.40, by using expired medication to treat animals;
(b) On May 21, 1992, Respondent failed to maintain primary enclosures for nonhuman primates so as to protect them from injury, in violation of 9 C.F.R. §§ 2.100(a) and 3.80(a)(2), when the enclosure for a pair of ring-tailed lemurs contained a light socket without a guard;
(c) On May 21, 1992, Respondent failed to develop and document a plan for the environmental enhancement of nonhuman primates signed by a veterinarian, in violation of 9 C.F.R. §§ 2.100(a) and 3.81;
(d) On March 31, 1992, and May 21, 1992, Respondent failed to properly clean and sanitize primary enclosures for nonhuman primates, in violation of 9 C.F.R. §§ 2.100(a) and 3.84, in that the enclosures for lemurs were excessively dirty and contained excessive waste;
(e) On May 21, 1992, Respondent failed to maintain proper sanitation of watering receptacles for animals, in violation of 9 C.F.R. §§ 2.100(a) and 3.130, in that a water container for a lion and tiger contained bright green algae; and
(f) On October 15, 1991, Respondent failed to maintain proper sanitation of primary enclosures for animals, in violation of 9 C.F.R. §§ 2.100(a) and 3.131, in that the enclosure for binturongs contained an excessive amount of feces.
*119 3. Respondent's violations were willful. A willful violation occurs when the violator either intentionally does an act which is prohibited, irrespective of evil motive or reliance on erroneous advice, or acts with careless disregard of statutory requirements. In re Arab Stock Yard, Inc., 37 Agric. Dec. 293, 306 (1978), aff'd mem., 582 F.2d 39 (5th Cir. 1978).
Discussion
This proceeding arises as a result of a series of six inspections conducted at Respondent's facility by the Department's Veterinary Medical Officer, Dr. Peter R. Kirsten, between January 11, 1990, and May 21, 1992. In addition to the testimony of the witnesses, the evidence before me consists primarily of inspection forms, known as APHIS Form 7008, which were completed by Dr. Kirsten during the inspections and which detail the conditions that he observed at Respondent's facility (CX 3-5, 7, 10, 12). In addition, nine photographs were taken at the facility during the March 31, 1992, inspection, and the May 21, 1992, inspection was videotaped by Respondent. Both the photographs and the videotape were admitted into evidence at the hearing (CX 11; RX 15).
**5 The main focus of this proceeding consists of the allegations that Respondent, on six occasions from January 11, 1990, to May 21, 1992, violated the . . . requirements of 9 C.F.R. § 3.125(a) because his facility lacked a perimeter fence at least 8 feet in height. Section 3.125(a) states as follows:
§ 3.125 Facilities, general.
(a) Structural strength. The facility must be constructed of such material and of such strength as appropriate for the animals involved. The indoor and outdoor housing facilities shall be structurally sound and shall be maintained in good repair to protect the animals from injury and to contain the animals.
. . . .
Complainant contends that Respondent failed to provide adequate veterinary care in violation of 9 C.F.R. § 2.40 when he euthanized two sick cats in 1991. Respondent's program of veterinary care for 1991 indicated that euthanasia would be carried out by the veterinarian using Beuthanasia, a type of drug (RX 5; Tr. 144). During his May 21, 1992, inspection, Dr. Kirsten cited Respondent for non-compliance with section 2.40 when it came to light *120 that Respondent had personally euthanized two seriously ill large cats by shooting them (CX 12; Tr. 131-32, 160-63). The animals were experiencing uremic poisoning due to kidney failure, which resulted in severe convulsions (Tr. 145). Dr. Shew was out of town and could not be reached, but had been involved with the treatment of the animals prior to the incident (Tr. 145-46). He had discussed with Respondent the possibility that the cats might have to be euthanized in his absence (Tr. 146), and approved of the method used as humane (Tr. 147, 149). He testified that it was an emergency situation that he felt was within the parameters of the veterinary care program (Tr. 148-49), and subsequently modified the following year's program to reflect the same (RX 6; Tr. 149). Under the circumstances, I cannot conclude that Respondent violated the Act or regulations when these two animals were euthanized.
In 1992, two lions escaped from their primary enclosure and had to be destroyed by Respondent (Tr. 189-90). Complainant argues that Respondent attempted to mislead Dr. Kirsten when he referred to the destruction of the two escaped cats as "euthanasia" in his records. Complainant also seems to contend that the manner in which these animals were destroyed was somehow improper.
Although Respondent applied the misnomer, "euthanasia," to the event, I do not find that he intentionally misled anyone, and the Complaint does not allege that Respondent violated the Act's recordkeeping provisions. Moreover, it is apparent from the circumstances surrounding the escape of the animals that Respondent was faced with an emergency situation that required quick and decisive action. The two animals had escaped simultaneously, due to a handler's error, from their primary enclosure during feeding time and were approaching within 10 to 15 feet of the handler when Respondent shot them both (Tr. 189-94). Dr. Shew testified that the action was appropriate and humane (Tr. 167). Under these circumstances, I cannot conclude that there was anything improper about the actions taken by Respondent during this unfortunate incident.
**6 . . . .
Complainant has failed to meet its burden of proof with regard to the allegations that primary enclosures for the large cats were not properly cleaned and sanitized in violation of 9 C.F.R. § 3.131. On three inspection reports, dated between January 11, 1990, and October 15, 1991, Dr. Kirsten noted accumulations of grayish- colored feces in the large cat enclosures (CX 3, 4, 7). Respondent disputed Kirsten's assessment that the feces had accumulated in some of the cages over a period of days. Respondent *121 contended that the fecal matter was fresh, yet grayish in coloration due to the animals' diet. The animals' diet consisted primarily of whole chickens, including feathers (Tr. 164-65, 178), which made the feces appear grayish in color and appear "lighter" and "fluffier," as opposed to "gooey" (Tr. 178). Respondent's testimony, which I find reliable and credible, indicates that he or members of his family cleaned the large cat enclosures daily (Tr. 177). The inspection reports that noted the gray feces in the cat enclosures indicate that the inspections took place in the morning (CX 3, 4, 7). Therefore, I accept Respondent's testimony that the feces in the large cat enclosures had not accumulated for more than 24 hours and that the inspections had taken place before he had the opportunity to clean the cages for the day.
Complainant has met its burden of proof with respect to the allegation that on May 21, 1992, Respondent violated the Act by failing to provide adequate veterinary care to animals in accordance with 9 C.F.R. § 2.40. On that date, Dr. Kirsten noted that a bottle of Dexasone with an expiration date of January 1987 was found on a table in the animal area (CX 12). Dexasone is an injectable cortisone drug product (Tr. 149-51). Dr. Shew, Respondent's veterinarian, testified that this particular drug was being used topically to treat animals for conjunctivitis, and that, in his opinion, the use of outdated medication in this manner would not be harmful to the animals (Tr. 150-51). However, Dr. Kirsten testified that Dexasone only has an indication for use as an injectable drug (Tr. 129), and that the use of any expired drug could be harmful to animals because the drug could lose its potency, become contaminated, or undergo a change in its chemical makeup (Tr. 129-30). Moreover, Dr. Shew did not know whether Dexasone was the type of drug which might lose its potency over time, and agreed that the use of outdated drugs is generally not a good veterinary practice (Tr. 130, 155). Therefore, I conclude that the use of this medication at a time over 5 years after it had expired constituted a violation of section 2.40 of the regulations.
Complainant has met its burden of proof with regard to the allegation that, on May 21, 1992, Respondent violated 9 C.F.R. § 3.80(a)(2) by failing to maintain a primary enclosure for nonhuman primates so as to protect them from injury. The inspection report for that date notes that a light socket in the enclosure for a pair of ring-tailed lemurs was not protected by a guard which would prevent injury to the animals (CX 12, p. 3).
**7 Complainant has met its burden of proof regarding the allegation that, on May 21, 1992, Respondent violated 9 C.F.R. § 3.81 by failing to develop and document an appropriate plan, signed by a veterinarian, for environmental enhancement adequate to promote the psychological well-being of nonhuman *122 primates. I note, however, that Respondent's veterinarian developed an appropriate plan subsequent to the May 21, 1992, inspection (Tr. 127-28, 153- 54).
Complainant has met its burden of proof with regard to the allegations that, on March 31, 1992, and May 21, 1992, primary enclosures for nonhuman primates were not properly cleaned and sanitized, in violation of 9 C.F.R. § 3.84(a). The inspection report for March 31, 1992, indicates that the solitary lemur enclosure contained an accumulation of excreta in a heap (CX 10, p. 3). The inspection report for May 21, 1992, indicates that an enclosure for a pair of ring-tailed lemurs was excessively dirty with feed waste and excreta (RX 12, p. 3). Respondent explained that the lemur cages contained kitty litter on the floor, and that the animals soiled the interior of the enclosure by accumulating kitty litter on their sticky paws and then bouncing off the walls of the enclosure (Tr. 220- 22). While the animals can indeed be seen jumping against the cage walls during the videotape of the May 21, 1992, inspection (RX 15), this does not relieve Respondent of the duty to keep the cages clean. Moreover, Dr. Kirsten testified that he recalled seeing excess feed waste and manure, not kitty litter on the floor of the lemur enclosure (Tr. 262). The fleeting glimpse provided by the videotape of the floor of the lemur enclosure is not helpful in determining whether the cages contained the kitty litter (RX 15). Therefore, I conclude that Complainant has met its burden of proof as to the alleged violations of section 3.84(a).
Complainant has met its burden of proof respecting the allegation that, on May 21, 1992, Respondent violated 9 C.F.R. § 3.130 by failing to provide animals with a clean and sanitary water receptacle. The inspection report for that date notes that a water pan for a lion and tiger was bright green with algae growth (CX 12, p. 3).
Complainant has met its burden of proof with respect to the allegation that, on October 15, 1991, the binturong enclosure contained an excessive amount of feces, in violation of 9 C.F.R. § 3.131. Respondent averred that the accumulation of feces in the binturong enclosure was not excessive because binturongs are unusually prolific defecators and thus would produce a large quantity of fecal matter during a 24-hour period (Tr. 223). While Dr. Kirsten's testimony indicates that binturongs indeed have a certain talent for waste production, his conclusion that the enclosure contained an excessive amount of feces took that fact into consideration (Tr. 108-10, 133-35). Dr. Kirsten testified that an "excessive" accumulation of feces in animal cages occurred, in his opinion, when fecal matter accumulated to a point where it would no longer be hygienic for the animal (Tr. 108, 133-35). He testified *123 that binturong cages need to be cleaned more often than every 24 hours (Tr. 108).
Sanction
**8 The Administrator seeks an Order requiring that Respondent cease and desist from violating the Act and the regulations, assessing civil penalties and suspending Respondent's license under the Act. The Act provides for a civil penalty of up to $2,500 per violation. 7 U.S.C. § 2149(b). According to Departmental policy, the sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, giving appropriate weight to the recommendations of the administrative officials having responsibility for achieving the Congressional purpose. In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476, 497 (1991), aff'd, 991 F.2d 803 (9th Cir. 1993), 1993 WL 128889 (not to be cited as precedent under 9th Circuit Rule 36-3).
The Act further directs that the Secretary shall give due consideration to the appropriateness of the civil penalty with respect to the size of the business, the gravity of the violation, the good faith of the Respondents, and the history of previous violations. 7 U.S.C. § 2149(b). Regarding the size of the business, Respondent grossed $49,934 in 1991, and $16,230 in 1992 (CX 6, 8). . . .
. . . .
ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER
The findings and conclusions of the ALJ set forth above are not challenged by Complainant or Respondent on appeal. Further, Respondent does not contest the ALJ's imposition of a $1,000 civil penalty and a suspension of 15 days, and thereafter until Respondent demonstrates that he is in full compliance with the Act, regulations, and standards. As stated at the outset, Complainant appeals from the ALJ's dismissal of the allegations of the Amended Complaint relating to the failure to have a proper perimeter fence, as required by 9 C.F.R. § 3.125(a), and the failure to properly identify cats, as required by 9 C.F.R. § 2.50. I agree with Complainant's appeal as to these issues.
The Secretary is authorized by the Act to "promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors" (7 U.S.C. § 2143(a)(1)). *124 Pursuant to that statutory authority, the Secretary promulgated the following standard (9 C.F.R. § 3.125(a) (emphasis added)):
§ 3.125 Facilities, general.
(a) Structural strength. The facility must be constructed of such material and of such strength as appropriate for the animals involved. The indoor and outdoor housing facilities shall be structurally sound and shall be maintained in good repair to protect the animals from injury and to contain the animals.
Although the heading of 9 C.F.R. § 3.125(a) is entitled "Structural strength," the text is broader and requires that the facilities "contain the animals." It is settled that headings and titles are not meant to take the place of the detailed provisions of the text. As stated in Brotherhood of R.R. Trainmen v. Baltimore & O.R.R., 331 U.S. 519, 528-29 (1947):
**9 But headings and titles are not meant to take the place of the detailed provisions of the text. Nor are they necessarily designed to be a reference guide or a synopsis. Where the text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner; to attempt to refer to each specific provision would often be ungainly as well as useless. As a result, matters in the text which deviate from those falling within the general pattern are frequently unreflected in the headings and titles. Factors of this type have led to the wise rule that the title of a statute and the heading of a section cannot limit the plain meaning of the text. [Citations omitted.] For interpretative purposes, they are of use only when they shed light on some ambiguous word or phrase. They are but tools available for the resolution of a doubt. But they cannot undo or limit that which the text makes plain.
The language of the standards emphasized above, viz., "and to contain the animals," has been consistently interpreted since 1983 to require an appropriate perimeter fence with respect to some types of animals in appropriate circumstances, as to both dealers and exhibitors. In re Cecil Browning, 52 Agric. Dec. 129, 132, 143-44 (1993) (exhibitor), aff'd per curiam, 15 F.3d 1097 (11th Cir. 1994) (Table); In re Pet Paradise, Inc., 51 Agric. Dec. *125 1047, 1056, 1059, 1076-78 (1992) (dealer), appeal docketed, No. 92-3740 (7th Cir. Nov. 12, 1992); In re Gus White, 49 Agric. Dec. 123, 129, 134, 139, 146-47 (1990) (exhibitor). On November 3, 1983, an interpretative memorandum headed "Clarification for Perimeter Fences" was issued by APHIS clarifying the issue as to the circumstances in which an 8- foot high perimeter fence is required (RX 1). Under the clarifying memorandum, an 8-foot high perimeter fence would be required at Respondent's location. The ALJ held that the memorandum is a substantive rule, which is invalid because it was not published in the Federal Register, rather than an interpretation of 9 C.F.R. § 3.125(a). The ALJ held that, although the perimeter fence requirement has been enforced in previous departmental decisions, citing the three cases cited above in this paragraph, "no prior case has raised or addressed the validity of the perimeter fence requirement as it pertains to the notice and comment provisions of the APA" (Initial Decision at 8).
The ALJ's view that no prior case has addressed the validity of the perimeter fence requirement as it pertains to the publication requirements of the APA is mistaken. The three cases cited above are squarely in point in holding that 9 C.F.R. § 3.125(a), which was published after notice-and-comment rulemaking, requires an 8-foot perimeter fence, in appropriate circumstances. In Browning, supra, the 8-foot perimeter fence violation was stated in the Findings of Fact as follows (52 Agric. Dec. at 132):
8. On April 26, 1990, Respondents' facility lacked a perimeter fence at least eight feet high and structurally sound enough to contain Respondents' animals. (CX 3; Tr. 147) APHIS has interpreted the structural strength requirement of the Regulations to include a perimeter fence to prevent intrusions into the facility and to contain wild and dangerous animals, should they escape their primary enclosures. (Tr. 99) The height requirement for perimeter fence is set through agency memoranda which clarify the subparts of the Code of Federal Regulations. (Tr. 63) Lack of adequate perimeter fence had been identified on previous inspections of Respondents' facility. (CX 3; RX 183, 186; Tr. 147, 226-229) USDA investigator Charles Deitz testified that a warning notice was issued to Respondents in 1987 regarding the deficiency. (Tr. 62) Dr. Dienhart discussed the significance of the problem and the necessary correction with Respondent Cecil Browning who argued that the fence was unnecessary. (Tr. 149)
**10 *126 In the conclusions in Browning, it is stated that on various dates (52 Agric. Dec. at 139, 140):
Respondents failed to maintain primary enclosures and housing facilities for nonhuman primates and other animals in good repair, so as to protect the animals from injury and contain them, in violation of 9 C.F.R. §§ 3.75(a), 3.78(a) and 3.125(a) (1990)[.]
9 C.F.R. § 3.125(a), cited immediately above, is the same section at issue here. The other two sections cited immediately above relate specifically to nonhuman primates, and contain provisions virtually identical to 9 C.F.R. § 3.125(a), involved here. Specifically, the nonhuman primate sections cited in Browning provide (9 C.F.R. §§ 3.75(a) and 3.78(a) (1990)):
§ 3.75. Facilities, general.
(a) Structural strength. The indoor and outdoor housing facilities for nonhuman primates shall be structurally sound and shall be maintained in good repair, to protect the animals from injury, to contain the animals, and to restrict the entrance of other animals.
. . . .
§ 3.78 Primary enclosures.
All primary enclosures for nonhuman primates shall conform to the following requirements:
(a) General. (1) Primary enclosures shall be structurally sound and maintained in good repair to protect the nonhuman primates from injury, to contain them, and to keep predators out.
In Browning, it is squarely held that the 8-foot perimeter fence requirement imposed there was a proper interpretation of the Act, standards and regulations, including 9 C.F.R. § 3.125(a), involved in this case. It is stated in Browning, 52 Agric. Dec. at 143-44:
Complainant also alleged that Respondents' facility was deficient with regard to the structural adequacy of housing facilities *127 to protect and contain the animals during each of the three inspections, on April 26, 1990, July 23, 1990, and March 7, 1991. Housing facilities and enclosures are required by the Regulations to be maintained in good repair to prevent injury to the animals and to contain them. (9 C.F.R. §§ 3.75(a), 3.78(a), 3.125(a); CX 2; Tr. 91, 97, 114- 115, 182, 351) APHIS has interpreted the structural strength standards to require a perimeter fence that is capable of containing wild and dangerous animals, such as many of those kept by Respondents, and able to prevent intrusion by unauthorized humans, predators, and small mammals which can carry diseases such as rabies. (Tr. 99, 114, 182) Respondents were cited at each of the three inspections for failure to provide an adequate, structurally sound, perimeter fence, at least 8 feet high. On each of the occasions Dr. Dienhart discussed the deficiency and the actions needed to correct the problem with Respondents.
Although Respondents allege (Brief for Respondents at 1) that APHIS allowed them to meet the structural requirement with a 6-foot fence at the time of their initial licensing 15 years ago, they do not allege, nor is there any evidence to suggest, any impropriety by the Administrator in making a change to the height requirement. Respondents' disagreement is with the conclusion reached by the Administrator in interpreting the Act and the Regulations to require an 8-foot fence. It is well settled that an agency's interpretation of the statute which it is charged with administering, and especially an agency's interpretation of its own regulation, is entitled to great deference unless it is clearly erroneous or inconsistent with the language it interprets. Chemical Mfrs. Ass'n v. Natural Resources Defense Council, 470 U.S. 116, 125-126 (1985); Immigration and Naturalization Service v. Stanisic, 395 U.S. 62, 72 (1969). See also Chevron, U.S.A., Inc., v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984); Bailey v. Federal Intermediate Credit Bank, 788 F.2d 498, 499-500 (8th Cir. 1986), cert. denied, 479 U.S. 915 (1986).
**11 Moreover, the evidence demonstrates that Respondents had ample notice that APHIS required an 8- foot perimeter fence and sufficient time to comply with the requirement before the inspections under consideration in this proceeding. Respondents *128 had been cited for this deficiency during two prior inspections, [footnote omitted] and issued a letter of warning in 1987. Nonetheless, they continued to argue that an 8- foot perimeter fence was unnecessary each time that Dr. Dienhart cited the deficiency. (Tr. 98, 114-115, 149) I can only conclude that Complainant correctly cited Respondents for a wilful violation with regard to this deficiency.
The foregoing quotation demonstrates that one of the issues decided in Browning was whether the 8-foot perimeter fence requirement is a valid interpretation of the agency's regulation. Accordingly, there is no need to examine the briefs in Browning. However, the briefs filed before the ALJ in Browning make it clear that the issue was squarely raised as to whether the 8-foot perimeter fence requirement is a proper interpretation of the regulations. The first paragraph of Respondents' Brief in Browning filed before the ALJ on October 22, 1992, states (Respondents' Brief at 1):
First of all, you need to find the real reason we were in a hearing in the fi [r]st place. That reason is a perimeter fence. The USDA, and Mr. Charles Deitz (Investigator with USDA) and Mr. Frank Martin (Counsel for USDA) have spent several years attempting to bring us to court for the perimeter fence issue, which has never been law, only a memorandum that was only received by USDA personnel, not the licensee. The USDA issued us a warning form in 1987 for a perimeter fence violation, but like the testimony brought out (pg. 34, Ln. 4 and on through pg. 41, Ln. 12 ) there has never been a law to back up or support the so called perimeter fence violation, and contrary to what Mr. Dienhart thinks a perimeter fence and a primary enclosure are not the same thing. When we built the Zoo 15 years ago the USDA said, we needed a 6-foot fence around the zoo, and yes the USDA knew then that we were going to house dangerous animals, before we were issued a USDA license our facility was inspected, and we have had the same 6 foot chainlink fence up ever since. And yes Your Honor the USDA, Mr. Deitz, and Mr. Martin have taken the Perimeter fence issue personally. They just needed a person to dig up any little deficiency that they could find on our facility, and that person was Mr. Dienhart.
*129 Again, on page 13 of the Respondents' Brief in Browning, it is stated:
Perimeter fence, USDA has been trying for years to make us and other facilities make there 6 foot fences 2 feet higher, which has never been law.
In the Department's Brief filed before the ALJ on October 22, 1992, in Browning, it is stated (Department's Brief at 17-18):
Dr. Dienhart testified that when dealing with wild and dangerous animals, APHIS interprets the cited structural strength provisions [of 9 C.F.R. §§ 3.75(a), 3.78(a), and 3.125(a)] as requiring an eight foot perimeter fence (Tr. 99). See In re Gus White, et al., 49 Agric. Dec. 123, 139, 146, and 155 (Feb. 8, 1990). [FN11]
**12 __________________
FN11 It is well established that the "view of the agency charged with administering the statute is entitled to considerable deference." Chemical Mfrs. Ass'n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125 (1985); See also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); Bailey v. Federal Intermediate Credit Bank, 788 F.2d 498, 499-50[0] (8th Cir.), cert. denied, 479 U.S. 915 (1986). An agency's interpretation of its own statute and regulations need not be embodied in a rule or regulation in order to be afforded deference under Chevron. See FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 439 (1986).
Hence, Browning is squarely in point for the proposition that the agency's interpretation of 9 C.F.R. § 3.125(a), requiring an 8-foot perimeter fence in the circumstances involved in Browning (and here), is a valid interpretation of the standard. Although the Eleventh Circuit's affirmance of Browning is not to be regarded as precedent, the administrative decision is binding within this agency.
Also, in Pet Paradise, Inc., supra, a dealer was held to have violated 9 C.F.R. § 3.125(a), involved here, because it did not have an appropriate perimeter fence (51 Agric. Dec. at 1056, 1059, 1076-78). In Pet Paradise, Inc., it is stated (51 Agric. Dec. at 1076- 77):
*130 At several places in Respondent's Appeal, Respondent argues that the regulations and standards, and even Dr. Gomez's testimony, are interpretive, advisory, or otherwise non-legislative. (See Respondent's Appeal, supra, at 4, 7, 10, 12). Respondent claims that this deprives the Department's actions of the force of law. However, Respondent cites cases and uses phraseology which make it apparent that Respondent has lifted this argument out of context from the ALJ's Initial Decision, page 18. In fact, the ALJ determined that the pertinent regulations and standards were properly and correctly promulgated (Initial Decision at 25), as follows:
It is appropriate to characterize each of the regulations and standards which respondent violated as being the lawful expression of legislation by the Secretary of Agriculture.
I agree with the ALJ that the pertinent regulations and standards are the lawful expression of legislation by the Secretary.
Here, again, Pet Paradise, Inc., is squarely in point on this issue.
Similarly, in Gus White, supra, the issue as to whether a perimeter fence was required by 9 C.F.R. § 3.125(a), notwithstanding the fact that the Department's internal memorandum was not published in the Federal Register, was squarely raised. Respondent's argument in Gus White was stated as follows (49 Agric. Dec. at 148):
The Respondent has argued that the Complainant's charges are based on indefinite guidelines and that the Complainant has assumed the authority to set up guidelines and procedures by virtue of in-house memoranda and procedures that allow the Complainant to dictate step by step what has to be done to comply with a particular regulation. However, these guidelines and procedures are not published. The Respondents maintain that such in-house memoranda, decisions, and procedures, which have the force and effect of law, should be set out in writing and notification to the public should be given in the form of publication in the Federal Register. W.C. v. Bowen, 64 Ad [min.] L.2d 387 [P&F)] (9th Cir. 1987).
**13 *131 In Gus White, it was held that the perimeter fence requirement was a proper interpretation of 9 C.F.R. § 3.125(a) (49 Agric. Dec. at 129, 134, 139, 146-47). Accordingly, there is no basis for the ALJ's view that the issue as to the non-publication of the internal memorandum in the Federal Register was not squarely resolved in prior precedents of this Department. I adhere to the views expressed in Browning, Pet Paradise, Inc., and Gus White, and find and conclude that Respondent violated 9 C.F.R. § 3.125(a) on the six dates alleged in the Complaint from January 11, 1990, through May 21, 1992, by not having an 8-foot high perimeter fence. (The record further shows that Respondent violated 9 C.F.R. § 3.125(a) because Respondent's fence, in addition to not being high enough, did not cover the entire perimeter and was not properly maintained to contain the animals.) The ALJ found it significant that the standards were amended in 1991, effective February 15, 1994, to expressly require perimeter fences for nonhuman primates in outdoor enclosures and for dogs on tethers. Specifically, the amended standards provide (9 C.F.R. § 3.6(c)(2)(ii)):
(ii) On and after February 15, 1994, dog housing areas where dogs are on tethers must be enclosed by a perimeter fence that is of sufficient height to keep unwanted animals out. Fences less than 6 feet high must be approved by the Administrator. The fence must be constructed so that it protects the dogs by preventing animals the size of dogs, skunks, and raccoons from going through it or under it and having contact with the dogs inside.
The amended standards for nonhuman primates in outdoor enclosures provide (9 C.F.R. § 3.77(f)):
(f) Perimeter fence. On and after February 15, 1994, the outdoor area of a sheltered housing facility must be enclosed by a fence that is of sufficient height to keep unwanted species out. Fences less than 6 feet high must be approved by the Administrator. The fence must be constructed so that it protects nonhuman primates by restricting unauthorized humans, and animals the size of dogs, skunks, and raccoons from going through it or under it and having contact with the nonhuman primates. It must be of sufficient distance from the outside wall or fence of the primary enclosure to prevent physical contact between animals *132 inside the enclosure and outside the perimeter fence. Such fences less than 3 feet in distance from the primary enclosure must be approved by the Administrator. A perimeter fence is not required if:
(1) The outside walls of the primary enclosure are made of a sturdy, durable material such as concrete, wood, plastic, metal, or glass, and are high enough and constructed in a manner that restricts contact with or entry by humans and animals that are outside the sheltered housing facility; or
(2) The housing facility is surrounded by a natural barrier that restricts the nonhuman primates to the housing facility and protects them from contact with unauthorized humans and animals that are outside the sheltered housing facility, and the Administrator gives written permission.
**14 The fact that the standards were amended so as to impose an absolute requirement for a perimeter fence for nonhuman primates and dogs in certain circumstances does not detract from the fact that the more general language of 9 C.F.R. § 3.125(a) can be, and has been for over two decades, reasonably interpreted to require a perimeter fence for all animals in appropriate circumstances. It is well settled that clarifying amendments, or amendments expressly requiring certain conduct in specific situations, do not render invalid agency interpretations of more general language. As stated in In re Wileman Bros. & Elliott, Inc. (Wileman I), 49 Agric. Dec. 705, 810-11 (1990), aff'd, No. CV F 90-473 OWW (E.D. Cal. Jan. 27, 1993), appeal docketed, No. 93-16977 (9th Cir. Oct. 13, 1993):
Finally, the fact that the Secretary decided to publish the maturity guidelines in the Federal Register in 1988, and give notice of proposed rulemaking, cannot in any manner be construed as an admission that such procedure was necessary. It is well settled that an agency may, without any admission of prior error, propose clarifying amendments to statutes or regulations, or engage in notice-and-comment rulemaking to gain information or eliminate controversy, even though such actions are not required. See, e.g., United States v. Southwestern Cable Co., 392 U.S. 157, 170-71 (1968); FTC v. Dean Foods Co., 384 U.S. 597, 609-11 (1966); *133 Wong Yang Sung v. McGrath, 339 U.S. 33, 47-48 (1950) ("Public policy requires that agencies feel free to ask legislation which will terminate or avoid adverse contentions and litigations" (id. at 47)).
Respondent was expressly notified that he was in violation of section 3.125 of the standards, because his perimeter fence was not 8 feet in height in some places, by the inspection reports which he received (and signed for) on at least six occasions, viz., January 11, 1990 (CX 3, p. 2), May 29, 1990 (CX 4, p. 2), December 12, 1990 (CX 5, p. 2), October 15, 1991 (CX 7, p. 2), March 31, 1992 (CX 10, p. 2), and May 21, 1992 (CX 12, p. 2). The first inspection report, for January 11, 1990, states that this violation was also documented on the previous inspection (CX 3, p. 2), which occurred on November 8, 1988 (CX 3, p. 1, item 6). Hence, during a period of 3 1/2 years, Respondent was repeatedly notified that he was in violation of the 8-foot perimeter fence requirement of section 3.125 of the standards, but he did not correct the violation.
With respect to the allegations involving Respondent's failure to individually identify animals on May 21, 1992, the Act provides (7 U.S.C. § 2141):
§ 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.
**15 The regulations provide (9 C.F.R. § 2.50(a)(1), (b)(1)(i)-(ii), (4)):
§ 2.50 Time and method of identification.
(a) A class "A" dealer (breeder) shall identify all live dogs and cats on the premises as follows:
(1) All live dogs and cats held on the premises, purchased, or otherwise acquired, sold or otherwise disposed of, or removed from the premises for delivery to a research facility or exhibitor or to another dealer, or for sale, through an auction sale or to any person for use as a pet, shall be identified by an official tag of the type *134 described in § 2.51 affixed to the animal's neck by means of a collar made of material generally considered acceptable to pet owners as a means of identifying their pet dogs or cats, [footnote omitted] or shall be identified by a distinctive and legible tattoo marking acceptable to and approved by the administrator.
. . . .
(b) A class "B" dealer shall identify all live dogs and cats under his or her control or on his or her premises as follows:
(1) When live dogs or cats are held, purchased, or otherwise acquired, they shall be immediately identified:
(i) By affixing to the animal's neck an official tag as set forth in § 2.51 by means of a collar made of material generally acceptable to pet owners as a means of identifying their pet dogs or cats [footnote omitted]; or
(ii) By a distinctive and legible tattoo marking approved by the Administrator.
. . . .
(4) When any dealer has made a reasonable effort to affix an official tag to a cat, as set forth in paragraphs (a) and (b) of this section, and has been unable to do so, or when the cat exhibits serious distress from the attachment of a collar and tag, the dealer shall attach the collar and tag to the door of the primary enclosure containing the cat and take measures adequate to maintain the identity of the cat in relation to the tag.
The ALJ, in dismissing the Amended Complaint as to this violation, stated (Initial Decision at 18-19):
Complainant has failed to meet its burden of proof with regard to the allegations that, on May 21, 1992, Respondent violated 7 U.S.C. § 2141 and 9 C.F.R. § 2.50 by failing to individually identify animals. On his May 21, 1992, inspection report, Dr. Kirsten noted that nine exotic hybrid cats were without individual identification. (CX 12.) The regulations require that cats receive tags or tattoos which would identify them individually for recordkeeping purposes. However, with respect to these particular animals, Respondent had raised a question regarding the appropriate method of identification in a letter to APHIS officials dated December 20, 1990 (RX 12). The cats' ears were too small to tattoo, and he felt that tattooing on *135 the cats' legs or tagging would result in a great deal of stress to the aggressive animals (RX 12; Tr. 180-86). Respondent testified that, if he had attempted to tattoo or tag one of these hybrid animals, he would be dealing with "an angry cat, not a little house, cuddly-type cat" (Tr. 187), and that he would have to tranquilize them too often as a result (Tr. 183). He raised these concerns with APHIS officials (RX 12; Tr. 182-83), who responded with a letter stating that his question would be referred to the Animal Care staff at Hyattsville, Maryland (RX 13). No evidence was presented which would indicate that Respondent received the requested direction from the Hyattsville staff with respect to the appropriate method of identifying the cats prior to the May 21, 1992, inspection. Indeed, the inspection form completed by Dr. Kirsten lists the item under the following heading: "Noncompliant standard or regulation documented previous inspections . . . that is waiting for interpretation from AC staff in Hyattsville" (CX 12, p. 2) (emphasis added). Therefore, I conclude that Complainant has failed to meet its burden of proof with regard to the alleged violation of 7 U.S.C. § 2141 and 9 C.F.R. § 2.50.
**16 The ALJ erred in dismissing the Amended Complaint as to Respondent's failure to individually identify animals. Assuming that the animals could not have been tattooed or tagged, Respondent could have attached a "collar and tag to the door of the primary enclosure containing the cat and take[n] measures adequate to maintain the identity of the cat in relation to the tag" (9 C.F.R. § 2.50(b)(4)). To be sure, Respondent wrote to APHIS on December 20, 1990, asking if he could use some method that would not involve tattooing (RX 12). The reply from APHIS dated February 25, 1991 (well before the violation involved here), advised Respondent that his problem would be forwarded to the Animal Care Staff in Hyattsville, Maryland, but the letter expressly stated: "Presently, you would be required to individually identify your hybrid cats" (RX 13). The fact that APHIS was willing to consider Respondent's compliance problem does not relieve him from the obligation to comply in some manner while awaiting further directions from APHIS. Moreover, the letter from APHIS expressly advised him that, presently, he would be required to individually identify his hybrid cats. Accordingly, Respondent's violation was proven (CX 12).
However, I am imposing only a cease and desist order with respect to this violation because the inspector recorded the violation under "II" of Item *136 7 of the Continuation Sheet for Animal Care Inspection Report(s), which is for "Non-compliant item(s) previously identified for which time remains for correction" (CX 12, p. 2). Also, as noted by the ALJ, the inspector stated in the inspection report that the matter is "waiting for interpretation from AC staff in Hyattsville" (CX 12, p. 2). Hence, the inspector's report indicated to Respondent that he still had time remaining to correct this problem after receiving a further interpretation. This is not relevant in considering whether a violation occurred. But it is relevant in considering what sanction should be imposed for this violation.
Turning to the sanction, the Department's current sanction policy is set forth in In re S.S. Farms Linn County, Inc. (Decision as to James Joseph Hickey and Shannon Hansen), 50 Agric. Dec. 476, 497 (1991), aff'd, 991 F.2d 803 (9th Cir. 1993), 1993 WL 128889 (not to be cited as precedent under 9th Circuit Rule 36-3):
It is appropriate to state expressly the practice that has been followed by the Judicial Officer in recent cases, viz., that reliance will no longer be placed on the "severe" sanction policy set forth in many prior decisions, e.g., In re Spencer Livestock Comm'n Co., 46 Agric. Dec. 268, 435-62 (1987), aff'd on other grounds, 841 F.2d 1451 (9th Cir. 1988). Rather, the sanction in each case will be determined by examining the nature of the violations in relation to the remedial purposes of the regulatory statute involved, along with all relevant circumstances, always giving appropriate weight to the recommendations of the administrative officials charged with the responsibility for achieving the congressional purpose.
**17 The Act provides (7 U.S.C. § 2149(a), (b)):
§ 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 *137 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) 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. . . . 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.
In this case, the Animal and Plant Health Inspection Service recommended on appeal that the sanction should include a 45-day continuing suspension of Respondent's license, a $9,000 civil penalty, and an Order that he cease and desist from further violations.
Respondent violated the Act, regulations and standards thereunder more than 15 times. The violations were serious. They affected, or had a strong potential to affect, the health of the animals on Respondent's premises. The premises were consistently unclean. Respondent used a drug many years beyond its expiration date. The lack of the perimeter fence was detrimental to the health of the animals as illustrated by the need to kill two escaping cats. Each of the inspection reports included numerous violations of the regulations and standards, including failure to maintain proper sanitation. The continuation of the violations from 1990 to 1992 shows that Respondent did not make serious efforts to comply with the Act. Respondent received a warning letter in 1991 (RX 3).
*138 Looking at the size of Respondent's business, Respondent's dealer business grossed $49,934 in 1991 and $16,230 in 1992 (CX 6, box 17; RX 6, p. 1, box 8). Respondent testified that the size of his fenced business is 25 acres (Tr. 247).
**18 Considering the statutory criteria and Complainant's recommendation, I believe that a civil penalty of $7,500 is appropriate, no part of which is based on Respondent's failure to identify animals, as required.
Additionally, I believe that Respondent's license should be suspended for 40 days, and thereafter until Respondent demonstrates compliance with the Act. Here, again, no part of the suspension is based on Respondent's failure to identify animals, as required. Finally, I believe that Respondent should be ordered to cease and desist from further violations.
For the foregoing reasons, the following Order should be issued.
Order
1. Respondent, his agents and employees, successors and assigns, directly or through any corporate or other device, shall cease and desist from violating the Act and the regulations and standards issued thereunder, and in particular, shall cease and desist from:
(a) failing to provide adequate veterinary care under the supervision and assistance of a doctor of veterinary medicine;
(b) failing to maintain primary enclosures for nonhuman primates so as to protect them from injury;
(c) failing to establish and maintain an appropriate plan for environmental enhancement adequate to primates that preserves the well being of the animals;
(d) failing to properly clean and sanitize primary enclosures for nonhuman primates;
(e) failing to keep water receptacles for animals clean and sanitized;
(f) failing to maintain primary enclosures for animals in a clean and sanitary condition;
(g) failing to construct and maintain housing facilities for animals so that they are structurally sound and appropriate for the safe and effective containment of the animals involved, including the construction of a perimeter fence at least 8 feet in height for carnivorous wild animals; and
(h) failing to individually identify cats, as required.
*139 2. Respondent is assessed a civil penalty of $7,500, which shall be paid by a certified check or money order within 90 days after service of this Order, made payable to the Treasurer of the United States, and shall be sent to Sharlene A. Deskins, Office of the General Counsel, Marketing Division, U.S. Department of Agriculture, Room 2014, South Building, Washington, DC 20250- 1417.
3. Respondent's license is suspended for a period of 40 days and continuing thereafter until he demonstrates to the Animal and Plant Health Inspection Service that he is in full compliance with the Act, the regulations and standards issued thereunder, and this Order, including payment of the civil penalty imposed herein. When Respondent demonstrates to the Animal and Plant Health Inspection Service that he has satisfied this condition, a Supplemental Order will be issued in this proceeding upon the motion of the Animal and Plant Health Inspection Service, terminating the suspension after the expiration of the 40-day period.
The suspension provisions shall become effective on the 35th day after service of this Order on Respondent. The cease and desist provisions shall become effective on the day after service of this Order on Respondent.
FN1 The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1280 (1988), and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994 (Pub. L. No. 103-354, § 212(a)(1), 108 stat. 3178, 3210 (1994)). The Department's present Judicial Officer was appointed in January 1971, having been involved with the Department's regulatory programs since 1949 (including 3 years' trial litigation; 10 years' appellate litigation relating to appeals from the decisions of the prior Judicial Officer; and 8 years as administrator of the Packers and Stockyards Act regulatory program).