Complainant argues, Respondent was derelict in two respects: for filing the appeal late, and for filing it with the wrong person. In Complainant's view, summary dismissal of the appeal is justified. I disagree.

The consolidated rules at 40 CFR § 22.30(a) state that an appeal must be filed "with the Hearing Clerk *** within twenty (20) days after the initial decision is served upon the parties." (Emphasis added.) This language does not mean, as Complainant evidently believes it does, that Respondent had twenty days from receipt of the initial decision to file an appeal. First, § 22.30(a) clearly states that the time runs from the date the initial decision is served, which, unless the decision happened to have been delivered by hand (which is not the case here), ordinarily refers to the date it was mailed. Second, when the initial decision is served by mail, § 22.07(c) allows "five (5) days * ** [to] be added to the time allowed" for the filing of the appeal. Therefore, in this case, where the initial decision was served by mail on August 26, 1983, Respondent had a total of 25 days from that date to file its appeal, that is, until September 20, 1983—which, of course, is the date of actual filing, albeit with the Regional hearing clerk, not the Headquarters hearing clerk.

Since the appeal was filed on time, I see no reason to penalize Respondent for filing it with the wrong hearing clerk. Even though the rules do indeed make a clear distinction between Regional and Headquarters hearing clerks, and, therefore, with whom the appeal should be filed, Respondent's error is harmless since no prejudice resulted from it. Moreover, I note that the distinction, while engraved in the rules, has not left a very deep imprint on EPA. The file stamp used by the Regional hearing clerk to mark receipt of Respondent's appeal does not bear even faint witness to the distinction; it says, "Received, September 20, 1983, Environmental Protection Agency Hearing Clerk." (Emphasis added.) Therefore, I conclude that the merits of Respondent's appeal should be heard, and Complainant's request to dismiss is denied.

The merits can be dealt with fairly easily. Examination of the record supports the presiding officer's finding that Respondent consented to the inspection of the invoices: the inspector asked to look at Respondent's records of restricted use pesticides (Tr. 27); no objection to this request was made by Respondent (Tr. 31); and copies of the invoice were made available to the inspector (Tr. 34). Nothing in the record suggests that this evidence was obtained by threats or coercion, either express or implied; indeed, Respondent had a policy of allowing EPA inspectors to examine its records upon presentation

of proper credentials (Tr. 31), thus further negating any idea of the inspection being performed against Respondent's will. The facts here are unlike those in Bumper v. North Carolina, 391 U.S. 543, 20 L.Ed. 2d 797, 88 S.Ct. 1788 (1968), cited by Respondent, where four law enforcement officers-the county sheriff, two of his deputies, and a state investigator-claiming to have a search warrant, searched a rape suspect's home after gaining entry with the "consent" of the suspect's grandmother. The Supreme Court rejected the State's contention that the consent was voluntary: "When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion-albeit colorably lawful coercion. Where there is coercion there cannot be consent." Bumper v. North Carolina, 20 L.Ed. 2d at 803. Here, the EPA inspector did not represent that he had a search warrant, and Respondent did not ask for one.3 This latter fact is not surprising, for, as the Supreme Court has noted, "the great majority of businessmen can be expected in normal course to consent to inspection without warrant Marshall v. Barlow's, Inc., 436 U.S. 703, 56 L.Ed. 2d 305, 314, 98 S.Ct. 1816 (1973) (referring to administrative inspections by officials of the Occupational Safety and Health Administration). Therefore, under the totality of the circumstances, I conclude that the search conducted by the EPA inspector was the product of voluntary consent, not coercion.4 See Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed. 2d 854, 863, 93 S.Ct. 2041 (1973). Consequently, Respondent's rights under the Fourth Amendment were not violated.

*

Putting the question of consent aside, there is still another reason to uphold the penalty assessed against Respondent. Even if the evi

3 An examination of the notice of inspection shows that it is not a search warrant, nor does it otherwise purport to be one. See Complainant's Exhibit 1 (notice of inspection).

4 Had Respondent not consented to the search, it would be necessary to decide two other questions: (i) whether the EPA inspector's search was in fact unauthorized under FIFRA and therefore violative of Respondent's rights under the Fourth Amendment, and (ii) if so, whether exclusion of the evidence obtained as a result of the illegal search is the appropriate remedy. Although I believe there is a strong chance that both questions would be answered in the affirmative, closer examination of the issues and facts might call for the opposite conclusion. The judge-made exclusionary rule, which prohibits the use of evidence obtained through illegal searches and seizures, is a doctrine which was developed to protect the rights of criminal defendants; it is not clear from the case law that such protection is available in civil proceedings, or, if it is, that the appropriate remedy would be to exclude the evidence. Immigration and Naturalization Service v. Adan Lopez-Mendoza, U.S. 82 L.Ed. 2d 778, 104 S.Ct. 3479, 3485 (1984) ("The reach of the exclusionary rule beyond the context of a criminal prosecution, however, is less clear."). In any event, for the reasons previously stated, it is unnecessary to decide these questions.

dence which Respondent seeks to have suppressed were excluded from the record, the record still supports the conclusion that Respondent committed the violation as alleged in the complaint, for Respondent's own manager, Mr. Alan R. Holcomb, testified to the events essentially as they were alleged in the complaint. He testified that the paraquat was sold to Mr. Johnson; that Mr. Johnson did not have his EPA certification card at the time of the sale; that the number was subsequently provided by telephone; and that no request was made by Respondent for the expiration date of the certification (Tr. 28-29). This testimony was elicited by Respondent on direct examination of Mr. Holcomb; therefore, there is no basis for Respondent to object to its admissibility. The evidence was part of Respondent's case in defense of the charges alleged in the complaint and is tantamount to an admission of those charges. Accordingly, Respondent's grounds for reversal of the initial decision are rejected. The initial decision is affirmed.

FINAL ORDER

A civil penalty of $500.00 is assessed against Respondent, Agland Incorporated, for selling a restricted use pesticide in violation of FIFRA § 12(a)(2)(F), as alleged in the complaint. Payment shall be made within sixty (60) days of this final order, unless otherwise agreed to by the parties. A cashier's check or certified check payable to the Treasurer, United States of America, for the full amount shall be forwarded to the Regional hearing clerk.

So ordered.

IN THE MATTER OF HOLMQUIST GRAIN & LUMBER CO.

FIFRA Appeal No. 83-3

FINAL DECISION

Decided April 25, 1985

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Ronald L. McCallum, Chief Judicial Officer:

This is an appeal by Complainant, U.S. Environmental Protection Agency, Region VII, from an initial Agency decision by Administrative Law Judge Marvin E. Jones in which a $1,080.00 civil penalty was assessed against Respondent, Holmquist Grain & Lumber Company, for violating sections 12(a)(1)(A) and 12(a)(2)(L) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136j(a)(1)(A) and 136j(a)(2)(L). The former section makes it unlawful for any person to distribute or sell any pesticide which is not registered with the Administrator under section 3 of FIFRA; the latter section makes it unlawful to produce a pesticide at an establishment which is not registered with the Administrator under section 7 of FIFRA. Respondent was charged with violating these sections after it was discovered that Respondent had been mixing a registered pesticide, d-Con Concentrate, with six parts rolled oats, to produce an unregistered pesticide product, which Respondent named d-CON Rat and Mice Bait. Respondent originally produced the product for its own use, but later, as an accommodation to some of its customers, sold it to them, without profit.

Complainant appeals the initial decision on the grounds that the presiding officer erred in concluding that a single offense was committed even though Respondent violated both provisions of the Act. The following statement in the presiding officer's decision sets the foundation for the appeal:

I have further concluded that a single offense is
shown by this record. The sale of said mixture is
the offense here complained of and, though it is viola-
tive of both Subsections (1)(A) and 2(L) of Section
12(a) of the Act, the first violation charged is not
substantially distinguishable from the second. Both
subsections merely characterize the subject sale as
unauthorized and thus unlawful.

It is conceded that it was not unlawful for Respond-
ent to formulate said mixture for its "own use." It
was its action in "sharing" said mixture, its sale,
for the accommodation of its patrons, that was un-
lawful [footnote omitted], in that it was not reg-
istered, and was violative of Section 12(a)(2)(L), for
the reason that the establishment producing the mix-
ture was not registered with EPA * * *. The two
charges are not substantially distinguishable, as both
violations characterize one instance of "holding for
sale" as being unlawful. (Initial Decision at 8-9)
(Emphasis in original.)

Complainant does not argue that correction of the alleged error would call for any increase in the $1,080.00 penalty assessed against Respondent; instead, Complainant's aim is to have the error corrected so that the Agency's final decision reflects the fact that both sections of the Act were violated, that two separate offenses were committed by Respondent, and that the offenses are clearly distinguishable.

In response to Complainant's appeal, Respondent filed a short letter supporting the presiding officer's decision, but without any accompanying analysis or argument; at the same time, Respondent also expressed its desire to bring this particular controversy to a close and to pay the $1,080.00 penalty to achieve that end.

On consideration of the record, I conclude that Complainant is correct in asserting that the presiding officer erred; two offenses, not one, were proved. The rule announced in Blockburger v. United States, 284 U.S. 299, 76 L.Ed. 306, 52 S.Ct. 180 (1932), and subsequently applied by the Supreme Court on numerous other occasions, e.g., Albernaz v. United States, 450 U.S. 333, 67 L.Ed. 2d 275, 101 S.Ct. 1137 (1981); Whalen v. United States, 445 U.S. 684, 63 L.Ed. 2d 715, 100 S.Ct. 1432 (1980); Brown v. Ohio, 432 U.S. 161, 166, 53 L.Ed. 2d 187, 97 S.Ct. 2221 (1977); Iannelli v. United States,