In the Matter of the Appeal by GONE TO THE BIRDS, 17365 21 Mile Road, Big Rapids, MI 49307-9328, Mailability - Shipping of Bobwhite Quail P.S. Docket No. 25/150 January 12, 1987 Edwin S. Bernstein Administrative Law Judge APPEARANCE FOR PETITIONER: Thomas Proefrock 17365 21 Mile Road Big Rapids, MI 49307-9328 APPEARANCES FOR RESPONDENT: Nan K. McKenzie, Esq. Thomas A. Ziebarth, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 BEFORE: Judge Edwin S. Bernstein
This is an appeal by Petitioner from a decision by the Postal Service that adult bobwhite quail and chukar partridge are not mailable.
In a letter dated September 26, l986, Michael G. Szatkowski, Acting Manager, Mailing Requirements in Detroit advised Petitioner Thomas Proefrock doing business as "Gone to the Birds" that adult bobwhite quail and chukar partridges "are not acceptable in the mail." Petitioner appealed from this decision by letter dated October 6, l986. A hearing was held in Chicago, Illinois on November 13, l986. Mr. Proefrock testified for Petitioner while Francis Gardner and Dr. Earl Grass testified for Respondent.
The parties were given the opportunity to file proposed findings of fact, proposed conclusions of law and memoranda following the hearing. Respondent filed proposed findings and conclusions while Petitioner filed several letters. All of those have been considered.
Following the hearing, many letters from third parties were filed on Petitioner's behalf. Those letters can not be considered as evidence since the record was closed at the conclusion of the November 13, l986 hearing. Additionally, they are hearsay and would be excluded pursuant to rulings made at the hearing. However, even if they were considered, they would not alter this decision.
Following the hearing, Petitioner moved that the testimony of Mr. Gardner and Dr. Grass be excluded as irrelevant. As the parties were advised in a December 31, l986 telephone conference, the motion to exclude this testimony is denied.
Based upon the evidence adduced in this case and the applic- able law and upon consideration of the arguments of the parties, I make the following findings of fact, conclusions of law and deci- sion.
FINDINGS OF FACT
Petitioner, Thomas Proefrock does business under the name "Gone to the Birds." Since 1982, he has mailed live birds through the mail. Except for a few chukar partridges, the birds that he mails are adult bobwhite quails. He mails approximately 20,000 quails each year to sportsmen and dog trainers (Tr. 40-41).
No more than 26 birds are placed in a mailing carton. The cartons contain a deotized pad, cedar shavings and a cut head of lettuce. The lettuce provides food and moisture (Tr. 45-46). The birds are placed in the cartons between 12 noon and 2 p.m. The cartons are brought to the post office around 3 p.m. and are dispatched around 4:45 p.m. (Tr. 45-47). In most cases, the birds are delivered to the customers during the next morning (Tr. 46- 47). The cartons have holes in their sides to provide ventila- tion. As a further aid to ventilation, the cartons have trapezoid rather than rectangular shaped sides, resembling pyramids, so that there will be space between the sides of cartons even if the bottoms of the cartons are placed next to each other (Tr. 59-60).
The Postal Service contends that its regulations prohibit the mailing of these birds because mailing these birds presents health hazards.
Mr. Francis Gardner, Program Manager of Classification Support for the Postal Service, who is responsible for the administration of mailability regulations for hazardous, restricted and perish- able matter, stated that the Postal Service prohibited the mailing of most birds through its regulations to avoid transmission of diseases to other animals and human beings and because the Postal Service is concerned about the safety of the birds themselves and about damage to the mail (Tr. 73). He stated that about 10 years earlier when the Postal Service permitted parakeets to be sent through the mail, the postal clerks who handled the birds became infected with little bugs or mites and the Postal Service had a labor relations problem. The postal workers' unions complained that the Postal Service was not adequately protecting its employees (Tr. 76-77).
Mr. Gardner stated that the Postal Service is currently con- sidering allowing pigeons to be mailed in connection with an experimental program developed in cooperation with the American Racing Pigeons Association. As a part of this program, a "bio- secure" container for live birds was developed which would confine the birds in a germ proof container that would allow sufficient ventilation to permit the birds to breathe normally (Tr. 78-79). A copy of the specifications for this container was received in evidence as RX-1. An evaluation of tests done on the container was received as RX-2. Mr. Gardner stated that if the experimental program involving pigeons is successful it would apply to most other birds, including bobwhite quail.
Mr. Gardner stated that in addition to exposing Postal Workers and other animals to possible disease, the holes in Petitioner's container allow light into the containers and this light disturbs the birds (Tr. 100).
Dr. Earl Grass, Chief Staff Veterinarian for Poultry Diseases with the U. S. Department of Agriculture stated that diseases that birds such as bobwhite quail can transmit to humans include coccidiosis, salmonellosis, fungal diseases, erysipelas and some parasites (Tr. 105) and a person could become infected through handling boxes containing infected birds (Tr. 118). These birds could also transmit to baby chicks diseases such as salmonelis, newcastle disease, and avian influenza (Tr. 106). He stated that biosecure containers prevent the transmission of diseases but, because the holes in Petitioner's container are not covered, Petitioner's container would not qualify as a biosecure container (Tr. 108). He also stated that it would be less stressful to the birds themselves to transport them in total darkness rather than in the containers through which light can enter that Petitioner uses (Tr. 109).
In response to the assertion that his birds could transmit disease, Mr. Proefrock testified that he performs periodic examinations of his birds before shipments. This includes visual examination of the birds for signs of mites and microscopic examinations of scrapings from the birds' skin, fur and feces to check for the existence of communicable diseases. These examina- tions are often performed with the help of a veterinarian (Tr. 124-127).
CONCLUSIONS OF LAW
1. 18 U.S.C. 1716 provides in pertinent part: 1716. Injurious articles as nonmailable
(a) All kinds of poison, and all articles and compositions containing poison, and all poisonous animals, insects, reptiles, and all explosives, inflammable materials, infernal machines, and mechanical, chemical, or other devices or compositions which may ignite or explode, and all disease germs or scabs, and all other natural or artificial articles, composi- tions, or materials which may kill or injure another, or injure the mails or other property, whether or not sealed as first-class matter, are nonmailable matter and shall not be conveyed in the mails or delivered from any post office or station thereof, nor by any officer or employee of the Postal Service.
(b) The Postal Service may permit the transmission in the mails, under such rules and regulations as it shall prescribe as to prepara- tion and packing, of any such articles which are not outwardly or of their own force dangerous or injurious to life, health, or property.
2. Live, adult birds, including bobwhite quail, are susceptible to a number of diseases, infections and parasites many of which can be readily transmitted to humans or other animals. As a result, live, adult birds were classified as matter which may kill or injure another or injure the mails or other property.
3. Domestic Mail Manual (DMM) Section 124.63a. permits the mailing of live day-old poultry. Section 124.63b(1) permits the mailing of certain small harmless cold blooded animals. However, Section 124.63b(2) specifically prohibits the mailing of birds such as bobwhite quails and partridges. That section reads:
(2) Nonmailable. No warm-blooded animals except day-old poultry are acceptable. The following are examples of animals which are not mailable: Hamsters, white mice, rats, guinea pigs, rabbits, kittens, puppies, chickens, flying squirrels, parakeets, canaries and pigeons.
4. DMM 124.6 does not nullify or contradict the prohibition in Section 124.63b(2). Section 124.6 reads:
.61 Time Factor. Harmless live animals, perishable foods, and game may be sent through the mail only if they can reach their destination in good condition in the normal transit time between the mailing and address points. Perish- able foods may be shipped at the mailer's risk, provided they are not subject to rapid decay and the generating of obnoxious odors. Priority Mail, special handling, or special delivery service is recommended. (see also 124.141b).
The language "harmless live animals" in the above section would appear to refer to harmless cold blooded animals which can be mailed under section 124.63b(1) as well as live day old poultry which can be mailed pursuant to section 124.63a.
5. The fact that Petitioner's birds were erroneously accepted for mailing between 1982 and l986 does not create any right to continue the practice.
6. Therefore, the Postal Service's decision that Petitioner's birds are nonmailable was correct and Petitioner's appeal is denied.