*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-60081

Summary Calendar

 

FRANCISCO ESCOBAR, JR.,

Petitioner,

versus

UNITED STATES DEPARTMENT

OF AGRICULTURE,

Respondent.

 

Petition for Review of the Decision of the

United States Department of Agriculture

(93-68)

 

 August 23, 1995 

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Returning to Nogales, Arizona from a fishing trip in Mexico,

Francisco Escobar, Jr., was stopped by agents of the U.S. Customs

Service and APHIS PPQ officers. The officers asked him whether he

was bringing any agricultural products back from Mexico. Escobar

answered that he had some filets of fish and some wooden statues,

but nothing more. Subsequently, the agents searched the motor home
 

1 7 C.F.R. § 321.3(b) forbids "entry" of potatoes without "an

original certificate." 

 

2 7 C.F.R. § 321.3(c) provides that potatoes may not be

"admitted" without a permit designating the port of entry. 

 

3 7 C.F.R. § 321.7 requires notification of the Secretary

upon the "arrival" of the potatoes. 

 

4 9 C.F.R. § 94.9(b) forbids "import[ing]" into the United

States any pork or pork products from a country where hog cholera

is known to exist unless certain specified requirements are met. 

2

he was driving and found some potatoes and chorizo that Escobar had

purchased in the United States before going on his fishing trip.

The agents offered Escobar the opportunity to pay an on-the-spot

fine of $25 to $50 for bringing banned food products over the

border from Mexico. Escobar refused. 

The Acting Administrator of the Animal and Plant Health

Inspection Service subsequently filed a complaint against him

seeking a $2,000 civil penalty and alleging violations of four

federal regulations -- 7 C.F.R. § 321.3(b),1 7 C.F.R. § 321.3(c),2

7 C.F.R. § 321.7,3 and 9 C.F.R. § 94.9(b).4 After a hearing, an ALJ

found that Escobar had indeed brought the potatoes and chorizo into

the United States without declaring them, but that the potatoes and

chorizo were of United States origin. She found that Escobar had

violated only one of the four cited regulations, and ordered a $250

civil penalty. Both APHIS and Escobar appealed to the Judicial

Officer. The JO determined that Escobar had violated all four

regulations, and ordered a $2,000 civil penalty. Escobar now

appeals. We affirm.
3

Escobar's principal argument is that he did not violate the

regulations. He argues that the regulations were promulgated to

control the importation of foreign products, not the return of

American products such as his over the border from Mexico. This

interpretation of the regulations, he argues, is the only one that

makes sense, and it is supported by the ALJ's finding that one of

the government's expert witnesses stated that the regulations would

not be violated if the potatoes and chorizo came from the United

States. (The witness, the assistant officer-in-charge in El Paso,

conceded that he was not an expert on legal questions.)

However, the plain language of the regulations is against

Escobar. Although he may well be correct that the regulations were

drafted in order to prevent the importation of foreign agricultural

products, nothing in the clear language of the regulations limits

them to that function. The potato quarantine regulation imposes a

broad ban on the "admi[ssion]" or "entry" of potatoes over the

border from Mexico without proper documentation and notification.

7 C.F.R. §§ 321.3(a)-(c), 321.7(a). The broad ban grants some

limited exceptions, for example, for the importation of potatoes

from Bermuda, or from parts of Canada. 7 C.F.R. §§ 321.8, 321.9.

There is no exception in the regulations for potatoes grown in the

United States. Similarly, the regulatory ban against importing

pork or pork products into the United States provides for no

applicable exception for chorizo that originates in the United

States. 9 C.F.R. § 94.9(a)-(c). In short, we cannot accept

Escobar's invitation to search for the intent of regulations'
4

drafters where the regulations are as clear and unambiguous as they

are here.

To counter the text of the three potato regulations, Escobar

relies upon the title of the potato regulations: "Subpart --

Foreign Potatoes." 7 C.F.R. § 321.1 (heading). Headings can be

useful interpretative guides when the text of a regulation is

ambiguous, but here the regulations are clear. "[T]he title of a

statute and the heading of a section cannot limit the plain meaning

of the text." Brotherhood of R.R. Trainmen v. Baltimore & O.R.R.,

331 U.S. 519, 528-29 (1947). Escobar also protests that he could

not have complied with the regulations' commands to obtain a

certificate of inspection or a permit, because those are available

only to importers of foreign products. We agree, but this does not

mean Escobar could not have complied with the regulations. Since

the regulations prohibited the entry of his potatoes and chorizo

without proper documentation, and since he could not obtain that

documentation, the regulations in effect banned his potatoes and

chorizo from being brought across the border and required him to

simply dispose of them at the border. 

The Department of Agriculture's interpretation of its own

regulations is entitled to great deference if it is not

unconstitutional or in conflict with a federal statute. See

Chevron U.S.A. v. Natural Res. Def. Counsel, 467 U.S. 837 (1984).

Without such a strict construction of its regulations, the

Department of Agriculture would have difficulty preventing the

spread of hog cholera or potato pests, because once American
5

potatoes or chorizo enter countries like Mexico, it is impossible

to tell whether those American products have become contaminated,

commingled with, or exchanged for other potatoes or pork products,

either intentionally or not. Accordingly, we defer to the

Department of Agriculture's reading of its own regulations. 

Escobar also raises four other arguments. First, he argues

that the JO found him guilty of all the violations charged because

he failed to declare his potatoes and sausage. Escobar

mischaracterizes the JO's decision. The JO found that Escobar

violated the regulations by bringing the potatoes and chorizo into

the Unites States, whether or not Escobar declared them. The JO

simply noted that had Escobar declared them, that might have been

a mitigating circumstance in Escobar's favor. 

Second, Escobar argues that he was not properly notified of

the government's intent to prosecute him for violating the potato

regulations. The citation he received at the border stated that he

had violated 7 C.F.R. § 319.56. Because he was not found in

violation of this section, but was instead found in violation of

other, related potato regulations, he argues that he was never

given sufficient notice. 

We find the notice in this case sufficient. The regulation

that the agents cited at the border is the opening regulation in

the section regulating the quarantine on fruits and vegetables,

including potatoes. Although not exact, the citation was

sufficient to ensure that Escobar could reasonably understand the

nature of the charges. See Aloha Airlines, Inc. v. Civil
6

Aeronautics Bd., 598 F.2d 250, 262 (D.C. Cir. 1979) ("Pleadings in

administrative proceedings are not judged by the standards applied

to the indictment at common law.") (citing 2 K. Davis,

Administrative Law Treatise § 8.04 at 525 (1958)). In any event,

the formal complaint issued after the border stop informed Escobar

of the exact regulations at issue. 

Third, Escobar challenges the size of the sanction. The JO

improperly based the $2,000 penalty assessment on the damage that

Escobar's potatoes and chorizo could have caused, Escobar argues.

Because Escobar was able to prove to the ALJ that his American

potatoes and chorizo could not have caused any damage and that they

did not in fact commingle with any Mexican food products, Escobar

argues that the $2,000 penalty assessed against him is unwarranted.

However, the JO's point was not that the potatoes and chorizo

actually caused any damage. The Department of Agriculture concedes

that they were harmless. Rather, the point is that the border

agents could not have known at the time of the border stop whether

Escobar's food was harmless or infested. Even if the border agents

had known that the potatoes and chorizo were of American origin,

they could not have known at the border whether Escobar had

commingled his food with Mexican food products, contaminated his

food, or exchanged his food for Mexican food products,

intentionally or not. A single piece of infested pork or a single

infested potato can start an infestation in America, imposing on

this country the extremely high costs of controlling and

eradicating the spread of the disease. 
7

The acts that the regulations at issue administer authorize a

$1,000 maximum civil penalty for each violation. 7 U.S.C. § 163;

21 U.S.C. § 122. In this case, the Secretary assessed Escobar a

$500 civil penalty for each of the violated regulations, only one

half of the maximum statutory penalty. "[W]here Congress has

entrusted an administrative agency with the responsibility of

selecting the means of achieving the statutory policy the relation

of the remedy to policy is peculiarly a matter for administrative

competence." Butz v. Glover Livestock Comm'n Co., 411 U.S. 182,

185 (1973) (internal quotations omitted). Because the sanction was

neither unwarranted in law nor without factual justification, we

defer to the Department of Agriculture's appropriate assessment of

the sanction. 

Finally, Escobar challenges the regulations as void for

vagueness. If even the government's own expert witness could, on

the stand, erroneously interpret the regulations so as not to cover

Escobar's conduct, the regulations are fatally vague, he argues. 

Yet we find the regulations clear, and the expert witness's

and Escobar's interpretations clearly wrong. Although the

regulations never explicitly state that they apply to American

products returning from Mexico, they do impose a clear uniform

prohibition on the entry or admission of potatoes and chorizo from

Mexico without proper documentation and notification. They state

no applicable exceptions. Regulations, like statutes, "are not

automatically invalidated as vague simply because difficulty is

found in determining whether certain marginal offenses fall within
8

their language." United States v. National Dairy Products Corp.,

372 U.S. 29, 32 (1963). 

Accordingly, we AFFIRM.