This is a disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. s 2131 et seq.), and the regulations issued thereunder (9 C.F.R. s 1.1 et seq.). On June 13, 1994, Chief Administrative Law Judge Victor W. Palmer (Chief ALJ) issued an Initial Decision and Order assessing civil penalties of $140,000, with $60,000 held in abeyance for 1 year, for transporting 108 dogs and cats in a cargo space that was without sufficient air, causing the death of 32 dogs. The Order also directs Respondent to cease and desist from violating the Act, regulations and standards, and, in particular, to cease and desist from failing to ensure that dogs and cats have a supply of air sufficient for normal breathing.
On July 29, 1994, Complainant, seeking a civil penalty of $140,000, with no part thereof held in abeyance, appealed to the Judicial Officer, to whom final administrative authority has been delegated to decide the Department's cases *1077 subject to 5 U.S.C. ss 556 and 557 (7 C.F.R. s 2.35). [FNa1] Respondent filed a Cross-Appeal seeking reduced civil penalties, and a Petition to Reopen Hearing to introduce evidence showing Respondent's participation in a study with USDA and the Federal Aviation Administration to enhance the knowledge necessary for improving the conditions for safe and humane transport of animals in aircraft cargo compartments. The case was referred to the Judicial Officer for decision on October 13, 1994.
**2 Oral argument before the Judicial Officer, which is discretionary (7 C.F.R. s 1.145(d)), was requested by Respondent, but is denied inasmuch as the issues are not complex, the case has been thoroughly briefed, and oral argument would seem to serve no useful purpose.
Based upon a careful consideration of the entire record, I am adopting the Initial Decision and Order as the final Decision and Order, with deletions shown by dots, changes or additions shown by brackets, and trivial changes not specified. The effective date of the Order is changed in view of the appeal, and directions as to payment are added. Additional conclusions by the Judicial Officer follow the Chief ALJ's conclusions.
ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION
(AS MODIFIED)
This is a proceeding under the Animal Welfare Act, as amended (7 U.S.C. ss 2131-2157; the Act). The Administrator of the Animal and Plant Health Inspection Service (APHIS) initiated this proceeding by filing a complaint on January 3, 1991, which charges that, on June 6, 1990, Delta Air Lines, Inc. (Delta), wilfully violated the Act and pertinent regulations and standards under the Act, by transporting 108 dogs and cats in a cargo space that was without sufficient air. The complaint alleges all of the animals suffered harm from deprivation of oxygen which resulted in the death of 32 dogs. Delta answered the complaint on April 3, 1991, and admitted that 32 dogs died following their transportation by Delta on June 6, 1990, but denied any wilful *1078 violation of the Act or Departmental regulations or standards.
A motion that the case was ready for hearing was filed on July 28, 1993, and a telephonic prehearing conference was held on October 6, 1993.
I held an oral hearing in Atlanta, Georgia, on April 5, 1994. Complainant was represented by its attorney, Robert A. Ertman. Delta was represented by its attorneys, Karen L. Abrahams and Jason R. Archambeau. Briefing was completed on June 1, 1994.
Upon consideration of the evidence of record and the arguments of the parties as set forth at the hearing and in their proposed findings, conclusions and supporting briefs, an Order is being entered requiring Delta to cease and desist from placing live animals in any cargo space which does not have a supply of air sufficient for their normal breathing. Delta is also being assessed a civil penalty of $140,000.00 for its [serious] violations of the Act, the regulations and the standards. However, $80,000.00 of the civil penalty shall be held in abeyance for one year, at which time it will be abrogated if Delta implements new animal handling guidelines determined by APHIS to be adequate, to assure that animals transported will have sufficient air for normal breathing.
Findings of Fact
1. Delta Air Lines, Inc., is a corporation organized under the laws of the State of Delaware with its principal place of business located at Hartsfield Atlanta International Airport, Atlanta, Georgia 30320.
**3 2. Delta is, and at all times material herein was, a registered carrier within the meaning of sections 2 and 6 of the Act (7 U.S.C. ss 2132 and 2136).
3. On June 6, 1990, Delta transported 106 dogs and 2 cats contained in 58 primary enclosures (kennels); one dog was accompanying a passenger; the rest were being shipped Air Express by animal dealers. They were placed in the aft cargo compartment of a Boeing 737 and flown from Lambert Field, St. Louis, Missouri, to Salt Lake City International Airport, Utah. Upon arrival, many of the puppies contained in the kennels appeared to be dead or ill and all of the animals were sent by Delta to a veterinary clinic. Twenty-five of the puppies were dead-on-arrival at the veterinary clinic and 7 others died after arrival (CX 1). Fifty-two other animals received treatment for various degrees of depression, dehydration and abdominal distention and some for vomiting and diarrhea; symptoms consistent with oxygen deprivation and stress responses. (CX 6 and RX 1). Twenty-four of the animals recovered and did not require treatment, but had been deprived of requisite air for normal *1079 breathing and are found to have necessarily suffered discomfort while confined in the cargo compartment (Tr. 18-22).
4. An histologic examination of the lungs of the dead puppies was performed by a veterinary pathologist who diagnosed the likely cause of their deaths to be hypoxia (deficiency of oxygen). (CX 7).
5. The animals were transported on Delta Flight #1431, which was delayed for 2 hours and 12 minutes in departing St. Louis because of weather problems. (CX 1 and RX 5).
6. During the entire 2 hour and 12 minute delay, the aft cargo compartment was not opened. The cargo compartment on this aircraft had "no air ventilation other than a small amount caused by leakage around the cargo seals during flight. Tight sealing of the 737 compartments is required because they are Class .D' compartments, which are designed to control cargo fires by limiting available oxygen." (Boeing document identified as Exhibit A which was submitted with Respondent's Proposed Findings, Conclusions and Brief.)
7. Upon the closing of the cargo compartment doors, the only supply of air for the animals was the air already contained in the compartment which would not be replenished until the doors were reopened. This fact was unknown to Delta's station master at St. Louis, who had control over the loading and transporting of the animals; he believed there were air inlets into the cargo bin (Tr. 43, 55).
8. Delta's station master had decided the aft cargo compartment of the airplane would provide the 108 animals with a sufficient supply of air for their normal breathing. He based this decision upon calculations he made in accordance with a Delta Standard Practice Manual which specified guidelines respecting the carbon dioxide various types and sizes of animals are likely to generate in replacement of the oxygen the cargo compartment would contain. The Practice Manual had been used for 25 years before the June 6, 1990, flight, and during the 2 prior years, Delta had regularly transported 55 to 60 kennels, containing up to 2 animals per kennel, on one of its planes every Wednesday. Delta did not furnish any evidence to show that its guidelines were scientifically correct or were developed in collaboration with a veterinarian or any other appropriate expert.
Conclusions
**4 1. The Department of Agriculture has jurisdiction in this matter.
2. Respondent, Delta Air Lines, Inc., is a licensed carrier as defined in the Act.
*1080 3. On June 6, 1990, Delta placed 108 animals in a cargo space that did not have a supply of air sufficient for normal breathing for each live animal. As a result, the animals did not receive the requisite humane transportation it was incumbent upon Delta to provide, and the animals suffered harm from the deprivation of oxygen which caused 32 puppies to die and the rest to suffer stressful effects in varying degrees.
4. Delta's actions on June 6, 1990, constituted [serious] violations of the Act, the regulations ([9] C.F.R. s 2.100), and the standards ([9] C.F.R. s 3.13(c)), issued pursuant to the Act.
5. It is appropriate under the Act (7 U.S.C. s 2149(b)), for an order to be issued requiring respondent to cease and desist from the described violations and to pay a civil penalty of $140,000.00. However, $80,000.00 of the penalty should be held in abeyance for one year from the effective date of the order, at which time the $80,000.00 shall be abrogated if respondent has implemented new animal handling guidelines, developed in collaboration with recognized veterinarians and other appropriate experts, which are determined by APHIS, shall adequately assure that animals transported by Delta in the future, will have a sufficient supply of air for normal breathing.
Discussion
On June 6, 1990, Delta loaded 108 animals consisting mainly of puppies, into the aft cargo compartment of a Boeing 737. Delta's station manager in St. Louis testified that he did so on the basis of calculations specified in the guidelines of a "Standard Practice Manual" developed by Delta, for determining the adequacy of the air supply for transported dogs and cats. He was unaware that fresh air could not enter the cargo compartment after it was closed and no effort was made to reopen the cargo compartment during the 2 hours and 12 minutes the plane awaited weather conditions to clear for its flight.
The guidelines specified the amount of carbon dioxide animals of various types and sizes were likely to generate in displacement of available oxygen. To determine the weights of the animals, they were weighed together with their primary transport enclosures. Having earlier weighed empty specimen primary transport enclosures, the station master deducted its weight from that of each enclosure housing an animal to find each animal's weight and then applied Delta's guidelines. He may have miscalculated a lower than actual gross weight for the animals. (See his testimony compared with CX 4). Delta argues that its guidelines had been used for over 25 years and, without *1081 incident, it had regularly loaded 55 to 60 kennels of animals onto a plane every Wednesday for at least 2 years prior to June 6, 1990. It should therefore not be found to have wilfully violated the Act this day when things went wrong.
**5 No evidence was introduced by Delta to show that the guidelines were scientifically accurate or were developed in collaboration with a veterinarian or other expert on the subject. At any rate, the amount of air in the aft cargo compartment proved to be inadequate on June 6, 1990, and 108 animals suffered the effects of oxygen deprivation and 32 of the puppies died.
. . . .
As explained by Dr. Ron De Haven, who holds a degree in veterinary medicine and is the APHIS sector supervisor who administers and enforces the Act in 13 western states, Delta violated a performance standard which is phrased in terms of its goal rather than specific engineering or design terms. It was so written because of the many variables in aircraft design, environmental conditions, and the amount of inanimate cargo transported with animals on a given flight. (Tr. 12). The performance standard stated ([9] C.F.R. s 3.13(c) (1990)):
No live dog or cat shall be placed in an animal cargo space that does not have a supply of air sufficient for normal breathing for each live animal contained therein, and the primary enclosures shall be positioned in the animal cargo space in such a manner that each dog or cat has access to sufficient air for normal breathing.
The cross-examination of Dr. De Haven by Delta's counsel (Tr. 15-18) illustrates the fact that Delta's "Standard Practice Manual," which its employees were instructed to follow, required correct measurements of animal weights and cargo space which left virtually no room for error and became meaningless in the eventuality of a lengthy delay between the closing of the cargo compartment and actual takeoff. Moreover, Delta's station master in charge of loading the 108 animals at St. Louis had apparently not been instructed that new air could not enter the cargo compartment after it was closed for flight.
In these circumstances, Delta's violation of the standard and thereby the pertinent regulation ([9] C.F.R. s 2.100) must be construed as [serious]. . . .
A carrier that violates a regulation or standard under the Act:
*1082 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. . . . 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. Any such civil penalty may be compromised by the Secretary. (7 U.S.C. s 2149(b)).
Consistent with established Departmental policy, when a regulated entity fails to comply with the Act, the regulations or the standards, there is a separate violation for each animal consequently harmed or placed in danger. See Mary Bradshaw, 50 Agric. Dec. 499, 504 (1991); Jerome Johnson, 51 Agric. Dec. 209, 212 (1992); James W. Hickey, 47 Agric. Dec. 840, 848 (1988), aff'd, 878 F.2d 385 (9th Cir. 1989) (Table) (text in WESTLAW) (not to be cited as precedent under 9th Circuit Rule 36 3), printed in 48 Agric. Dec. 107 (1989); and James Petersen and Patricia Petersen, d/b/a Windy Hills Exotic Animal Farm, 53 Agric. Dec. ___ (May 6, 1994) (AWA Docket No. 93-13; page 20 of slip opinion).
**6 In accordance with that policy, APHIS has recommended a $1,000.00 civil penalty for each of the 108 animals exposed to the oxygen deprived environment, and an additional $1,000.00 penalty for each of the 32 puppies who died, or a total of $140,000.00.
In light of the seriousness of the harm caused by Delta's violation of the standard, its [serious] nature, the size of Delta's business, and its history of previous violations, [FN1] the recommended penalty is appropriate. In a somewhat similar case, a $60,000.00 consent decision and order was entered on March 3, 1994. See TransWorld Airlines, Inc., AWA Docket No. 93-35 (Complaint alleged that 81 dogs were transported without sufficient air and 56 died as a result). However, I have no reason to doubt Delta's good faith in wanting to meet its obligations under the Act. For that reason, part of the penalty will be abrogated upon Delta's implementation of new animal handling guidelines it develops in collaboration with recognized veterinarians and other appropriate experts, that are satisfactory to APHIS, which shall ensure that *1083 the animals Delta transports in the future will indeed have sufficient air for normal breathing.
Shipping animals in the unventilated cargo compartments of airplanes is inherently dangerous. Its akin to being locked inside a bank vault. Eventually there is no air to breathe. Even before that moment is reached, as available oxygen becomes seriously depleted, emotional stress and physical discomfort becomes more and more intense.
The surest way to prevent such suffering in the future is to prohibit the transport of animals in an airplane cargo compartment unless it is constantly supplied with new oxygen in maintenance of the levels needed by animals for normal breathing. It is uncertain, however, whether requisite airplane modifications would meet Federal Aviation Administration safety regulations for passenger and crew. The fresh oxygen could help fuel fires ignited in these least accessible, least monitored regions of airplanes. The pragmatic response to the requirement might be the cessation of animal transport by airplanes.
Then animals might well be subjected to possibly greater traumas inherent in being transported long distances by rail or truck; and owners traveling by plane could not take their pets with them.
The best source of requisite data for formulating workable, economically feasible standards for the protection of animals transported by air, is a concerned air carrier. Delta is now in precisely that position. It has all the resources needed to bring together veterinarians, engineers and those familiar with acceptable freight costs to develop these sorely needed standards. In requiring APHIS to first approve them, I leave it to the Administrator's regulatory wisdom to determine whether this process should be expanded into industry-wide rulemaking, or is best developed with Delta ad hoc.
If Delta develops a satisfactory new methodology, it will not only avoid the payment of the majority of the assessed penalty, it will also effectively demonstrate to the public its commitment to the safe, humane transport of animals.
**7 Accordingly, the following order shall be entered.
ADDITIONAL CONCLUSIONS BY THE JUDICIAL OFFICER
Complainant's Response to Respondent's Petition to Reopen Hearing states (Complainant's Response at 2):
There is no basis for Delta's claim that the hearing should be reopened *1084 to receive further evidence on a newly raised question. Nevertheless, in order to avoid any later posturing that the finding of wilful violations was sustained only because respondent's attorneys failed to timely offer exonerating evidence, Complainant does not object to supplementing the record with the attachments to Delta's request to reopen the hearing. The documents must, however, be viewed in context.
In the circumstances, the documents attached to Respondent's Petition to Reopen Hearing are received as part of the evidence in this case. However, they have not affected my decision as to the sanction.
The Chief ALJ held that Respondent's violations were "willful," stating (Initial Decision at 6):
The Secretary considers a violation to be wilful if regulatory requirements have been carelessly disregarded. The Norinsberg Corporation, 52 Agric. Dec. 1617, 1624 (1993)[, appeal docketed, No. 93 4264 (D.C. Cir. Dec. 10, 1993)]; and Arab Stock Yard, Inc., 37 Agric. Dec. 293, 306 (1978); aff'd sub nom. Arab Stock Yard v. United States, 582 F.2d 39 (5th Cir. 1978). Under that standard, Delta's violations were clearly wilful.
I have omitted that paragraph from the portions of the Chief ALJ's Initial Decision adopted as the final decision, and I have changed the Chief ALJ's adjective "willful" to "serious" not because of any disagreement with the Chief ALJ but, rather, to avoid an unnecessary issue on appeal. There is no need to determine whether Respondent's violations were willful since no license is being suspended or revoked. See 5 U.S.C. s 558(c). Although this Department and some courts take the position that a violation is willful if regulatory requirements have been carelessly disregarded, other courts apply a stricter standard. [FN2] It is sufficient for the purposes of this case that Respondent's violations were serious. The harm to the animals could have been avoided if Respondent had taken corrective action in the face of a 2-hour plus delay in the departure of the aircraft. Also, Respondent's station master at St. Louis should have been informed that no air could enter the *1085 compartment once the cargo compartment doors were closed.
As 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, No. 91 70169 (9th Cir. Apr. 23, 1993) (Table) (text in WESTLAW) (not to be cited as precedent under 9th Circuit Rule 36 3), as follows:
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.
**8 I am in complete agreement with the views of the Chief ALJ. Although Respondent entered into five prior consent decisions (see note 1, supra), these prior consent orders do not show prior violations by Respondent. [FN3] However, the fact that the five prior consent orders did not deter the violations at issue here "could be used to determine what kind of sanction is needed to deter [Respondent] from conduct prohibited by the statute." Spencer Livestock Comm'n Co. v. USDA, 841 F.2d 1451, 1458 (9th Cir. 1988).
In closing, it should be noted that Respondent erroneously argues that the Judicial Officer is subject to the same limitations in reviewing a sanction imposed by an ALJ as a court in reviewing a sanction imposed by the Judicial Officer (Respondent's Appeal at 13 14). That argument is erroneous. "On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule." 5 U.S.C. s 557(b). See, e.g., In re Blackfoot Livestock Comm'n Co., 45 Agric. Dec. 590, 634 44 (1986), aff'd, 810 F.2d 916 (9th Cir. 1987) (35-day suspension order imposed by ALJ increased by Judicial *1086 Officer sua sponte to 6 months, notwithstanding Complainant's continuing recommendation for a 35-day suspension order).
For the foregoing reasons, the following Order should be issued.
Order
1. Respondent, Delta Air Lines, Inc., its 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 failing to ensure that no live dog or cat shall be placed in an animal cargo space that does not have a supply of air sufficient for normal breathing for each live animal contained therein.
2. Respondent is assessed a civil penalty of $140,000 of which $60,000 shall be paid within 60 days after service of this order on Respondent, by a certified check or money order made payable to the Treasurer of the United States and sent to the following address:
United States Department of Agriculture
Office of the General Counsel
Marketing Division
14th and Independence Ave., S.W.
Room 2014 - South Building
Washington, D.C. 20250-1417
The remaining $80,000 shall be held in abeyance for 1 year from the effective date of this Order. At the expiration of the 1-year period, the remaining $80,000 shall be paid by certified check or money order made payable to the Treasurer of the United States and mailed to the above address; unless, before the 1-year period ends, the Animal Plant and Health Inspection Service files a statement attesting to its receipt of written animal handling guidelines developed by Delta Air Lines in collaboration with recognized veterinarians and other appropriate experts, which APHIS has determined will satisfactorily ensure that animals transported by Delta in the future shall have a sufficient supply of air for normal breathing. Upon APHIS filing such a statement, $80,000 of the $140,000 civil penalty shall be abrogated.
**9 The cease and desist provisions of this Order shall become effective on the first day after service of this Order on Respondent.
FNa1 The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g), and Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219 (1953), reprinted in 5 U.S.C. app. at 1280 (1988). 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).
FN1 Delta has entered into five consent orders in prior cases: 39 Agric. Dec. 558 (1980); 42 Agric. Dec. 14 (1983); 42 Agric. Dec. 1053 (1983); 44 Agric. Dec. 157 (1985); and 49 Agric. Dec. 1017 (1990) (a civil penalty of $10,000.00 was assessed in the most recent order).
FN2 Capital Produce Co. v. United States, 930 F.2d 1077, 1079 81 (4th Cir. 1991); Capitol Packing Co. v. United States, 350 F.2d 67, 78 79 (10th Cir. 1965). See also Parchman v. USDA, 852 F.2d 858, 864 65 (6th Cir. 1988).
FN3 In re Jackie McConnell, 52 Agric. Dec. 1156, 1171 (1993), aff'd, 23 F.3d 407 (Table) (6th Cir. 1994) (text in WESTLAW); In re Dr. Wade Markham, 51 Agric. Dec. 419, 429 n.6 (1992).