I’ve been notified that I am under investigation. What does this mean?
IES investigates alleged violations of APHIS-administered laws and issues enforcement actions. If one of our Investigators notifies you that you are the subject of an investigation, IES generally has preliminary information indicating that you may have been involved in a regulatory violation involving animal or plant health. IES conducts an investigation (or, fact-finding process) to determine the facts relating to the alleged violation through interviews, photographs, witness statements, etc. An Investigator will ask you to participate in this process to assist IES in gaining a full understanding of the facts and circumstances surrounding the alleged violation.
Who should I contact for information about the status of an investigation?
Because the investigative process is fluid, we typically cannot discuss the facts of an investigation while the case remains open. The Investigator who visited with you can refer you to the enforcement staff for additional information involving the investigation; or tell you when an investigation is closed, as appropriate.
What types of enforcement actions can APHIS take?
APHIS has several enforcement options, including issuing an official warning, offering a pre-litigation settlement agreement, referring the matter to the Office of the General Counsel for litigation, or referring the matter to other external authorities, such as the USDA Office of the Inspector General for criminal investigation or U.S. Department of Justice for civil or criminal action.
What is an official warning (APHIS Form 7060), and what does it mean?
An official warning is regulatory correspondence notifying an individual or business that APHIS believes that an alleged violation of a Federal law or regulation has occurred. It is intended to notify the individual or business of the alleged violation, and thereby provide an opportunity to ensure future compliance. The official warning also advises that APHIS may seek civil penalties, criminal prosecution, or other sanctions if APHIS obtains evidence of any future violation of Federal regulations. An official warning is not to be construed as a final agency action, or as an adjudicated finding of a violation, and therefore there is no requirement for notice and opportunity for a hearing.
How does APHIS determine penalty amounts for settlements?
If APHIS determines that a civil penalty is appropriate, it calculates the penalty according to the applicable APHIS civil penalty guidelines. APHIS’s animal and plant health laws include penalty provisions, which often include the minimum or maximum civil penalty amount and specific factors that the agency should consider when determining the appropriate penalty. Depending on the applicable law, these factors may (or may not) include the nature, circumstance, extent, seriousness, and gravity of the alleged violation; the degree of culpability of the person involved; the person’s history of violations; the size or nature of the person’s business; whether the person involved demonstrated good faith and/or cooperated with the investigation; the person’s ability to pay; the effect of the penalty on the person’s ability to continue business; and other appropriate factors. APHIS’s civil penalty guidelines ensure that the agency takes into account the minimum and/or maximum penalty amount and the specific factors listed in the applicable statute. They also ensure that penalties are calculated fairly and consistently. It is APHIS’s practice to periodically review its penalty guidelines to assess whether they are functional, equitable, and effective in discouraging violations of APHIS’s animal and plant health laws; to incorporate new developments in the Department’s agriculture decisions; and to be consistent with adjustments for inflation and statutory changes.
What are the general terms of pre-litigation settlements?
In general, a pre-litigation settlement agreement offers an alleged violator the opportunity to resolve alleged violations of APHIS’s animal and plant health laws by paying a monetary civil penalty or agreeing to specific non-monetary terms within the specified time period. The alleged violator agrees to waive his or her right to a hearing.
For monetary settlement agreements, APHIS typically offers to settle for a civil penalty that is much lower than the maximum civil penalty authorized in the relevant statute. The alleged violator can pay the penalty by check, money order, or credit card, following the instructions provided with the settlement agreement. If someone is unable to pay the full amount by the due date provided on the settlement agreement, he or she may be eligible for a payment plan. To request a payment plan, the alleged violator should use the form enclosed with the settlement agreement to submit a written response, indicating that he or she wishes to pay the penalty and waive his or her right to a hearing.
For non-monetary settlement agreements, APHIS may offer to settle based on the alleged violator’s agreement to specific terms that generally involve abstaining from APHIS-regulated activities. For example, for non-monetary settlement agreements issued under the Animal Welfare Act (AWA), an alleged violator may agree to the revocation of his or her AWA license; and/or to sell, donate, or transfer ownership of his or her regulated animals.
If you receive a pre-litigation settlement agreement (either a monetary or non-monetary settlement agreement), you should review the information carefully for the specific terms.
I do not agree with the settlement terms. What are my other options?
If you do not agree with the terms of the settlement agreement, submit a request for a hearing, with your Reference Number, to our office by the due date provided on the settlement agreement, at 4700 River Rd., Unit 85, Riverdale, MD 20737, or call the enforcement staff member assigned to your case. You can find his or her name in the cover letter that accompanied the settlement agreement. You are also welcome to call our main office at (301) 851-2948.
I have questions about the enforcement action that I received. Who should I call?
If you have any questions concerning an enforcement action, you should contact the IES staff member assigned to your case. You can find his or her name in the cover letter that accompanied your official warning or settlement agreement. You are also welcome to call our main office at (301) 851-2948.
What happens if I do not respond to a settlement agreement?
If we do not receive a payment or hearing request from you by the due date provided on the settlement agreement, we will forward the matter to our Office of the General Counsel for litigation. APHIS may file an administrative complaint through the Office of the General Counsel. The Rules of Practice Applicable to Proceedings Pending Before the Secretary of Agriculture govern the proceeding.
I am a small business owner and have comments or concerns regarding APHIS’s enforcement of animal and plant health laws. Who should I contact?
APHIS always welcomes comments on how it can better assist small businesses. If you have comments about APHIS’s enforcement of animal and plant health laws, please contact Michon Oubichon, the APHIS Small Business Ombudsperson, at 301-851-2948. If you would prefer to comment to someone outside APHIS, you may contact the Small Business Regulatory Enforcement Ombudsman at http://sba.gov/ombudsman, email firstname.lastname@example.org, or toll free at 1-888-REG-FAIR. The Ombudsman’s office receives comments from small businesses, and annually evaluates federal agency enforcement activities for their responsiveness to the special needs of small businesses.
Does IES have any system of quality control for its work?
IES’ QMS receives annual external audits from an independent audit services firm. Since 2011, IES external audits have all resulted in findings of “no nonconformities” with the ISO standard.