60 Agric. Dec. 637 Hass avocados from Chicago, Illinois to Marshalltown, Iowa. Discussion Geronimo Sevilla is the owner of Respondent Geronimo's Mexican Produce, 96 South Water Market, Chicago, Illinois. On February 24, 1999, Respondent legally purchased Mexican Hass avocados, an imported regulated product under 7 C.F.R. § 319.56-2ff, from Blue Island Wholesale Produce, Chicago, Illinois. On March 3, 1999, it sold four boxes of Mexican Hass avocados to La Michoacana, which is located in Marshalltown, Iowa. The avocados were then moved from Illinois to Iowa on March 3. Geronimo Sevilla stated in June 2001 that he did not know when he sold the avocados to La Michoacana, that it was located in Iowa. However, La Michoacana's owner, Angel Banuelos-Sorvia, made the statement that: "The market in Chicago knows I am from Iowa because they have my sales tax # and permit # on file. I have been doing business with Geronimo's for about 10 months." (CX 8, 9, 11, 12, 13.) On March 20, 1999, Mike Booth, an APHIS Investigator, observed boxes of Mexican Hass avocados from Geronimo's in Alden, Iowa. (Tr. 12.) The boxes containing the avocados were clearly labeled as Mexican produce and carried the following warning: "Distribution or sale is prohibited outside of and limited to the following states: CT, DC, IL, IN, KY, MA, MD, ME, MI, NH, NJ, NY, OH, PA, RI, VA, VT, WV, and WI." (Tr. 14; CX 2.) On March 22, 1999, APHIS representatives seized the Mexican Hass avocados at La Michoacana. (Tr. 13, 16, 22; CX 3, 5.) Gabriel Villanuva, Respondent's representative at the hearing, stated, "What has been spoken is true and we know that we're supposed to go their way. They're correct, the boxes are marked. All the boxes are marked and the states they're not supposed to go." (Tr. 43.) While Respondent did not itself move the avocados from Illinois to Iowa, it allowed them to be moved within the meaning of 7 C.F.R. § 301.10. In Robert W. Watts, Jr., et al., 53 Agric. Dec. 1419, 1427 (1994), it was held that when a person, such as Respondent, sells a regulated product that is later moved, the seller has engaged in the first step in the movement of the product and is thus considered to have moved the regulated product. Respondent therefore violated the Act and sections 7 C.F.R. §§ 301.11(b) and 319.56-2ff of the regulations when Mexican Hass avocados were moved from Chicago, Illinois, to Marshalltown, Iowa, on March 3, 1999. On February 5, 1997, APHIS amended the regulations governing the importation of fruits and vegetables to allow Hass avocado fruit grown in approved orchards in municipalities in Michoacana, Mexico, to be imported into certain areas of the United States, subject to certain conditions. The conditions required for the importation of Hass avocado fruit included inspection and shipping procedures, restrictions on the time of year when shipments can be imported into the United States, and restrictions on the states in which avocados can be distributed. (Tr. 36; 62 FR 5293, February 5, 1997.) Using a systems approach, APHIS established a series of measures to prevent the introduction of such destructive pests as weevils, seed moths, and fruit flies that can infest avocados and other fruits and vegetables. (Tr. 36; 60 FR 34834, July 3, 1995.) One measure limited the importation of Mexican Hass avocados into the United States from November through February. Under this measure the avocados could be distributed only in 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. Iowa was not one of the states in which the avocados could be distributed. APHIS believed that the cold climate and a lack of suitable host material during the winter months would prevent pests from becoming established. (7 C.F.R. § 319.562ff(a)(2).) In the United States, Hass avocados are raised in California, Florida, and Texas. (Tr. 38.) A 1995 risk assessment estimated that if weevils were introduced and became established in only California through the importation of infested Mexican Hass avocados it would cause damage of $123 million. (Tr. 38.) In addition to the weevil threat to the avocado crop, fruit flies can spread from avocados to citrus, with the potential damage of $1.4 billion to just citrus crops in Florida, Georgia, Louisiana, Texas, and California. (Tr. 38.) Sanction "[T]he 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." S.S. Farms Linn County, Inc., 50 Agric. Dec. 476 (1991). The success of programs to protect America's agriculture by the prevention, control and eradication of plant pests is dependent upon the compliance of individuals such as the Respondent. Without their adherence to federal regulations concerned with the prevention of the spread of plant pests, the risk of the undetected spread of destructive plant pests is greatly increased. The imposition of sanctions 60 Agric. Dec. 637 in cases such as this are important to prevent spread of such pests by insuring that not only a particular respondent will not again violate Federal Regulations, but also that the sanction will deter others in similar situations. Complainant states that the United States citrus industry is annually valued at over 2 billion dollars. Past eradication of fruit fly infestations in Florida in 1956, in Texas in the 1950's, and in California in 1975, cost more than 30 million dollars. In 1983, a Medfly pest eradication program conducted in California cost over 100 million dollars. These costs do not take into account increased consumer prices, lost exports, and other indirect costs which could total more than 10 times the direct costs. In re Lopez, 44 Agric. Dec. 2201 (1985). It is conceivable that just one infested Mexican Hass avocado could devastate domestic avocados and other fruits and vegetables. Complainant believes that compliance and deterrence can be achieved only with the imposition of a civil penalty of four thousand dollars. Complainant's recommendation "as to the appropriate sanction is entitled to great weight, in view of the experience gained by the [Complainant] during [his] day-to-day supervision of the regulated industry." In re S.S. Farms Linn County, Inc., et al., 50 Agric. Dec. 476 (1991). It is found that a civil penalty of four thousand dollars ($4,000.00) is an appropriate sanction in this case. Conclusion of Law Respondent Geronimo's Mexican Produce violated the Plant Quarantine Act (7 U.S.C. § 151), the Federal Plant Pest Act (7 U.S.C. § 150aa) and the regulations promulgated thereunder by moving Mexican Hass avocados to a state where they are prohibited. Order Respondent Geronimo's is assessed a civil penalty of four thousand dollars ($4,000.00). Respondent shall send a certified check or money order for four thousand dollars ($4,000.00), payable to "Treasurer of the United States," to USDA, APHIS Field Servicing Office, Accounting Section, P.O. Box 3334, Minneapolis, Minnesota 55403, within 30 days from the effective date of this Order. The certified check or money order should include the docket number of this proceeding. This Decision and Order will become final and effective 35 days after service hereof, unless there is an appeal to the Judicial Officer within 30 days after service pursuant to section 1.145 of the Rules of Practice applicable to this proceeding. (7 C.F.R. § 1.145).) [This Decision and Order became final and effective September 18, 2001.Editor] 60 Agric. Dec. 645 MISCELLANEOUS ORDERS In re: BOGHOSIAN RAISIN PACKING CO. AND LION RAISINS, INC. 2001 AMA Docket No. F&V 989-1. Order Dismissing Petition. Filed July 25, 2001. Show cause. Gregory Cooper, for Respondent. Brian C. Leighton, for Petitioner. Order issued James W. Hunt, Chief Administrative Law Judge. Petitioners were directed on June 13, 2001, to file a response to an order to show cause by June 25, 2001. Section 900-69 of the Rules of Practice (7 C.F.R. § 900.69) require that all documents be filed by the parties with the Hearing Clerk. A response to the order to show cause was not filed with the Hearing Clerk. Accordingly, as a timely response to the order was not filed, the petition and amended petition filed herein are dismissed. In re: DUNAJSKI DAIRY, INC. 2000 AMA Docket No. M-1-1. Order Dismissing Case. Filed August 15, 2001. Motion to Dismiss. Sharlene A. Deskins, for Respondent. John A. McNiff, for Petitioner Order issued by Jill S. Clifton, Administrative Law Judge. The parties have jointly moved to dismiss the Petition in this case with prejudice. John A. McNiff, Esq., apparently executed the Joint Motion on or about May 8, 2001, prior to his death on May 27, 2001. Accordingly, this case is dismissed. Copies hereof, and of the parties' Joint Motion received August 14, 2001, shall be served by the Hearing Clerk upon each of the parties. Petitioner's copies shall be served at the following addresses: |