IN THE MATTER OF EXSTEREX, INC. FIFRA Appeal No. 85-3 FINAL DECISION Decided December 13, 1985 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: This is an appeal from an initial decision (accelerated decision) 2 of an Administrative Law Judge (presiding officer) assessing $500 in civil penalties against Exsterex, Inc. (Respondent), for violations of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). As the Administrator's delegatee, the Chief Judicial Officer has the authority to decide this appeal. See 40 CFR Part 22 (1985). After considering the entire record, I conclude that Respondent has shown no error of fact or law or abuse of discretion in the initial decision. The initial decision is, therefore, affirmed in all respects, and the findings of fact, conclusions of law and reasons therefor are adopted and incorporated by reference in this final decision.3 Throughout this proceeding Respondent has been represented by its president, Mr. 140 CFR § 22.30 provides in pertinent part: Any party may appeal any adverse ruling or order of the presiding In addition to filing an appeal, Respondent also filed a Motion to Vacate Judgement, October 23, 1985, and a proposed Order Vacating Judgement, November 25, 1985. 2 An accelerated decision constitutes an initial decision if it addresses all issues and claims in the proceeding. 40 CFR § 22.20(b). 3 That an appellate administrative tribunal may adopt the findings, conclusions, and rationale of a subordinate tribunal without extensive restatement is well-settled. United States v. Orr, 474 F.2d 1365 (2d Cir. 1973); Carolina Freight Carrier Corporation v. United States, 323 F.Supp. 1290 (W.D.N.C. 1971); In re Chemical Waste Management, Inc., RCRA (3008) Appeal No. 84-8, Order Adopting the Presiding Officer's Initial Decision as Final Agency Action (September 5, 1984); and cases cited in Ciba Geigy v. Farmland Industries, FIFRA Comp. Dkt. Nos. 33, 34 and 41 (Op. of the Judicial Officer, April 30, 1981). John L. Daud. Mr. Daud is not an attorney. The fact that Mr. Daud is not an attorney may help to explain the arguments he put forth on Respondent's behalf. These arguments are based on a misconception of FIFRA's requirements and the Agency's enforcement procedures. Although the presiding officer's decision is complete, I am nevertheless providing the following brief discussion in a further attempt to eliminate any misunderstanding. DISCUSSION Respondent is in the business of producing and selling a pesticide, "Bug Drug," designed to control and eliminate roaches. FIFRA and the Agency's implementing regulations require that pesticides be registered, that the establishment producing the pesticide be registered and that the pesticide not be "misbranded," i.e., the pesticide label must be accurate and truthful (no false and misleading information), it must contain directions regarding restrictions on the pesticide's uses, and it must contain the percentages of active and inert ingredients, among other things. 7 U.S.C. § 136 and 40 CFR § 162.10. Complainant, Director, Air and Waste Management Division, U.S. Environmental Protection Agency, Region VI, charged in the complaint that Respondent did not register "Bug Drug," did not register its establishment and misbranded the pesticide, all in violation of FIFRA and the implementing regulations. Complainant requested a penalty of $5,640.4 In the initial decision, the presiding officer found Respondent had violated the statute and regulations as charged, but reduced the penalty to $500 in light of "Respondent's fragile financial condition." Initial Decision at 3. This appeal followed. On appeal, Respondent argues, among other things, that (1) “Bug Drug" is a drug, not a pesticide, and therefore is exempt from the requirements of FIFRA; (2) only the Administrator, not Complainant or the presiding officer, can determine what constitutes a pesticide, so the complaint and initial decision are void; and (3) "Bug Drug's" labels are protected by copyrights and therefore do not have to contain the information required by FIFRA. Notwithstanding these arguments, the record clearly establishes that "Bug Drug" is a pesticide 5 4 Complainant originally requested a penalty of $6,850, but reduced the request based on a recalculation of the penalty taking into account the size of Respondent's company. 5 A pesticide is "any substance or mixture of substances intended for preventing, destroying, repelling or mitigating any pest.* * *" 7 U.S.C. § 136(u). This definition also states that "new animal drugs," as defined in sections 201 (g) and (w) of the Federal Food, Drug, and Cosmetic Act, are not pesticides. Respondent's claim that "Bug Drug" is a "new animal drug" is not supported in the record. The legislative Continued because it is meant to kill cockroaches; Complainant, Director, Air and Waste Management Division, has been duly delegated the authority to issue a complaint to persons alleged to be in violation of the Act, 40 CFR § 22.03 (definition of complainant); 6 the presiding officer, pursuant to the rules governing this proceeding, has the authority to render an initial decision, which includes determining whether the product in question is a pesticide as defined in FIFRA, 40 CFR §22.04(c)(7) (authorizing the presiding officer to hear and decide all questions of fact, law, or discretion); and finally, with respect to Respondent's argument that a copyright somehow provides a shield against the misbranding prohibition contained in FIFRA and the regulations, suffice it to say that copyright laws are unrelated to FIFRA requirements and provide no such defense.7 ORDER Respondent is ordered to pay the civil penalty of $500 assessed in the initial decision. Payment shall be made within 60 days of service of this final decision by sending a cashier's check or a certified history indicates that the term "new animal drug" refers to products which promote growth and prevent disease in animals. The Animal Drug Amendments of 1968, S. Rep. No. 1308, reprinted in 1968 U.S. Code Cong. and Ad. News 2607, 2608. No such claims were or could be made for "Bug Drug.” G Respondent claims that "the Complainant and the presiding officer have, (1) Usurped the authority of the Administrator" under FIFRA Section 25(c)(2) to determine what constitutes a pesticide. Of course, Section 25 of FIFRA refers to the authority of the Administrator to promulgate rules for the regulation of pesticides, not to take individual enforcement action. In either case, rulemaking or enforcement, the Administrator may delegate his authority. 7 In addition to the arguments discussed in the text, Respondent makes numerous other arguments in its appeal and motion to vacate, ranging from contending that Complainant was required to provide a warning notice before filing a complaint to implying that the presiding officer was engaged in some sort of deception or fraud. All Respondent's arguments have been considered and rejected. Respondent also requested attorneys fees and $52.5 million in damages. Of course, under the Equal Access to Justice Act only prevailing parties are entitled to attorneys fees and Respondent has not prevailed in this case. Regarding Respondent's claim for $52.5 million in damages, it can only be termed ludicrous. In 1984, Respondent had sales of $781 and suffered a net operating loss of $2,100. Initial Decision at 3. Even if a claim for damages was appropriate in this case, and it is not, Respondent's claim bears no relationship to the size of its business, and Respondent has provided nothing to support its claim. Moreover, neither FIFRA nor the regulations governing this proceeding provide the authority or jurisdiction to award damages. Therefore, Respondent's motion to vacate is denied and Respondent's requests for attorneys fees and damages are likewise denied. check, payable to the Treasurer, United States of America, to EPARegion VI (Regional Hearing Clerk), P.O. Box 360582M, Pittsburgh, PA 15251. So ordered. IN THE MATTER OF KATZSON BROTHERS, INC. FIFRA Appeal No. 85-2 ORDER ON RECONSIDERATION Decided March 3, 1986 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: On December 3, 1985, Katzson Brothers, Inc. (Petitioner) moved for reconsideration of the Administrator's Final Decision dated November 13, 1985. That Decision affirmed entry of a default order against Petitioner and imposed a penalty of $4,200 for failure to file a 1983 Pesticide Report. The Final Decision correctly concluded that Complainant's service of process of the complaint underlying this matter comported with the requirements of Federal law and constitutional due process. Nevertheless, Petitioner raises one matter in the Final Decision that warrants reconsideration and clarification. On page 3, at footnote 3, of the Final Decision, reference is made to an affidavit by an Assistant Regional Counsel for Complainant which stated that Petitioner had not registered an agent for service of process with the Colorado Secretary of State.1 Counsel stated that inquiry was made of the Secretary of State on December 27, 1984. With its Motion for Reconsideration, Petitioner has submitted a certificate, signed by the Colorado Secretary of State, which states that Seymour M. Katzson has been Petitioner's registered agent since December 12, 1984. After a thorough re-examination of the record, I conclude that the Final Decision must stand. Although I am concerned about the 1 Assistant Regional Counsel, Jerry W. Goad, is no longer employed by U.S. EPA. |