Appeal of April 28, 1980

MICHAEL D. JACOBSON
4340 West Ajo
Tucson, AZ 85706
From a Non-Mailability Ruling
re Certain Spiders

P.S. Docket No. 7/135

Duvall, William A.

APPEARANCE FOR COMPLAINANT:
Thom as A. Ziebarth, Esq.
Law Department
United States Postal Service
Washington, D.C. 20260

APPEARANCE FOR RESPONDENT:
Thomas A. Ziebarth, Esq.

Grant, Quentin E.

APPEARANCE FOR COMPLAINANT:
Gera rd Anderson, Esq.
7225 N. Oracle Road Suite 200
Tucson, Arizona 85704
Law Department
U. S. Postal Service
475 L'Enfant Plaza West
S.W. Washington, D. C. 20260

INITIAL DECISION

Appellant, Michael D. Jacobson, appeals the ruling of the Office of Mail Classification, U.S. Postal Service (USPS), that tarantula spiders which Appellant proposes to mail are nonmailable under Postal regulations.

A hearing in the matter was held in Tucson, Arizona on January 30, 1980. The parties have filed proposed findings of fact and conclusions of law. The matter stands ready for decision.

FINDINGS OF FACT

1. Appellant, Michael D. Jacobson, is a resident of Tucson, Arizona. He is self-employed, doing business as Pet Ranch Imports, in importing and exporting birds, reptiles, and amphibians which he wholesales and retails to the pet trade, zoological gardens, scientific institutions and research laboratories (Tr. 6, 7). He has been involved in the pet industry for 18 years (Tr. 7).

2. Currently, Appellant also sells tarantulas which he obtains from the southwestern United States, and the States of Colima and Sonora in Mexico. He has dealt with tarantulas for 18 years. He physically handles up to 10,000 tarantulas a month, packing them for shipment (Tr. 9).

3. In the United States the term tarantula is applied to spiders (arachnids) belonging to the family Theraphosidae, also called "bird spiders." About 30 species live within the continental limits of the United States, mostly in the southwest (USPS Ex. 2). Accordingly to Appellant, he ships two species of tarantula; aphonopelma s.p. and dugesiella s.p., commonly called the Mexican Red-Legged or Red-Legged, tarantula and the Sonora tarantula (Tr. 14). He testified that seventy-five percent of the tarantulas he ships are the Red-Legged variety (Tr. 15).

4. For shipment in his retail trade, Appellant places a tarantula in a plastic cup resembling a cottage cheese container as sole in grocery stores but slightly heavier; the cup is taped shut. The cup is placed in excelsior material inside a 200-pound test strength cardboard box which is taped shut with fiberglass reinforced packing tape. The shipping label states that there is a live animal inside (Tr. 10, 11). Appellant has never had one of the containers break open or come loose. He has never received complaints of such occurrence (Tr. 11; App. Exs. 1 & 3). Quantities of tarantulas shipped in Appellant's wholesale trade are shipped via air freight (Tr. 16).

5. Approximately 18 months ago Appellant developed the idea of selling tarantulas on a retail, mail-order basis. He inquired of a USPS information telephone number if tarantulas were mailable. Receiving an affirmative reply, he started advertising the tarantulas or pets in magazines such as Playboy and Saturday Evening Post. Thereafter he began to receive orders and started mailings. About eight months thereafter, the main Post Office in Tucson advised Appellant that the tarantulas were no longer mailable. Appellant then initiated a protest which culminated in the ruling by the Office of Mail Classification from which this appeal was taken. The ruling reads in pertinent part as follows:

"*** Postal regulations covering the mailability of live animals are based on four areas of consideration:

* * *

2. The health hazards which they may present to postal employees.

3. Possible damage to other mail or equipment and the disruption of postal activities in a work area.

* * *

"Poisonous insects and spiders are non mailable as per Section 124.293c.2 of the Domestic Mail Manual. The only exception to this is live scorpions which are to be used for purposes of medical research or for the manufacture of antivenin. According to our information, all tarantulas are venomous which means that they inflict a poisoned bit which is not necessarily deadly, but is at least harmful to human beings. We also know that certain species are more poisonous than others. For instance, there are tropical varieties which are much more dangerous than are species indigenuous to the Southwestern United States. In our opinion, it is unreasonable to expect Postal Service employees to be able to differentiate one species of tarantula from another. This is the same reasoning behind Postal Service regulations which prohibit the mailing of snakes under any conditions. The ruling of tarantulas is directly related to items 2 and 3 above, and is consistent with mail rulings on this same issue. In other words, there is a historical precedent for our decision.

* * *

6. The relevant section of the Domestic Mail Manual is 124.2 which provides in pertinent part as follows:

124.2 Harmful Matter (18 U.S.C. 1716)

* * *

.211 Except as provided below, any article, composition, or material which may kill or injure another, or injure the mail or other property, is nonmailable. Harmful matter includes, but is not limited to:

* * *

b. All poisonous animals, except scorpions (see 124.293d) all poisonous insects, all poisonous reptiles and all kinds of snakes;

* * *

7. Section 124.2, supra, implements 18 U.S.C. § 1716 the pertinent part of which provides:

"? 1716. Injurious articles as nonmailable

*** all poisonous animals *** are nonmailable matter and shall not be conveyed in the mails ***"

The statute makes an exception for live scorpions used for the purposes of medical research or for the manufacture of antivenin. The statute provides significant penalties for violation thereof.

8. Appellant argues that § 124.293c(2) of the Manual controls in this matter. The pertinent part of that section read as follows:

"c. Insects

(1) Bees are acceptable in the continental surface mail when shipped in accordance with Federal and State regulations to assure that they are free of disease. Packages of honey bees must bear special delivery or special handling postage. Queen honey bees only may be shipped by aircraft.

(2) Other live, nonpoisonous and nondisease-

conveying insects may be sent through the mail, when properly prepared for mailing and when shipped in accordance with regulations of the U.S. Department of Agriculture. When such insects are mailed into the Trust Territory of the Pacific Islands, they are also subject to regulations of the Director of Agriculture of that Territory.

d. Live Scorpions

Live scorpions which are to be used for purposes of medical research or for the manufacture of anti-

venin will be accepted only in the continental sur-

face mail when packaged in a double mailing container, both parts of which are closed or fastened to prevent escape of the scorpions. The inner container must be of material which cannot be punctured by the scorpions and must be plainly marked Live Scorpions. Cushioning material must be used when necessary to prevent shifting of the inner container. The outer container must be of sufficient strength to prevent crushing of the package or exposure of the contents during normal handling in the mail, and also must be plainly marked Live Scorpions."

9. Tarantulas are animals (Tr. 34, 86). They are not insects (Tr. 19, 33). They are arachnids (Tr. 33). They have venom glands and are venomous (Tr. 30, 71). Venom is a substance produced by an animal that will cause some harm if injected or expelled on another animal (Tr. 71). Tarantulas employee their venom mainly to kill prey (Tr. 30). Technically, all tarantulas are poisonous although most species pose a minor threat to man (Tr. 83, 94). Some tropical species of tarantula are seriously poisonous to man (Tr. 32, 104; USPS Ex. 2 (p. 445). The species aphonopelma emilia may be quite poisonous to man (USPS Ex. 2 (p. 445).

10. It is difficult to differentiate poisonous species of tarantula from nonpoisonous (Tr. 35, 36). Tanonomically the genus aphonopelma is in a very confused state. The range of variation in appearance between one species and another would not allow a lay person to distinguish one species from another (Tr. 35, 36, 75-77).

11. Urticating (stinging) hairs are borne on the back of many New World tarantulas, including the majority of tarantulas sold in pet shops in the United States. These hairs appear to be the primary line of defense for tarantulas who rub them off with a rapid, brushing action when irritated. Contact with these hairs can cause intense itching, papular lesions, and acute respiratory symptoms (Tr. 80, 81, 95, 97; USPS Ex. 2 (p. 445); USPS Ex. 4 (p. 130)).

12. A large number of people have an inordinate fear of spiders, in particular tarantulas because of their large size and hairiness (USPS Ex. 2 (p. 445); Tr. 33, 44, 45, 98, 99). If live tarantulas were to get loose accidentally in a postal facility in vicinity of machinery, the fear experienced by Postal employees could result in personal injury. Thus, the tarantulas could constitute a safety hazard (Tr. 57, 99).

13. 200 lb. test weight boxes of the type used by Appellant for shipping tarantulas can be broken open by mail handling machinery in Postal facilities (Tr. 60, 61).

ARGUMENTS OF THE PARTIES

Appellant says that the Domestic Mail Manual, Section 124.293(c)(2) is the only portion of the manual which relates to mailability of spiders and provides that poisonous spiders are non-mailable; that USPS accepts for mailing bees and scorpions, both of which may be harmful to human beings; that spiders are not harmful to human beings; that the word "poisonous" for mailability purposes means capable of causing harm to human beings. Appellant argues that the ruling of nonmailability should be reversed.

USPS argues that the tarantula is properly classified as a "poisonous animal" or as a "natural article, composition or material which may kill or injure another" within the intent and meaning of 18 U.S.C. § 1716; that, consequently, the ruling of nonmailability of Appellant's tarantulas was a reasonable and proper interpretation of 18 U.S.C. § 1716 and the implementing regulations in the Domestic Mail Manual. USPS says the ruling should be affirmed and the appeal dismissed.

DISCUSSION

Appellant is incorrect in its argument that § 124.293(c)(2) of the Domestic Mail Manual is the only provision of the manual pertinent to this matter. That provision pertains to insects. As found above, tarantulas are not insects. They are arachnids. Therefore § 124.293(c)(2) has no bearing on the correctness of the nonmailability ruling. With that determination Appellant's argument based on the mailability of bees and scorpions also falls. Both are insects. 18 U.S.C. § 1716 specifically directs USPS to permit the mailing of live scorpions, which are poisonous insects, for specified of address.

18 U.S.C. § 1716(a) and the implementing regulation, § 124.211 of the Domestic Mail Manual, govern the determination to be made here.

CONCLUSIONS OF LAW

1. Tarantulas are poisonous animals within the meaning of 18 U.S.C. § 1716(a) and Section 124.211 of the Domestic Mail Manual although the venom of most species poses a minor threat to human beings. Moreover, the average Postal Service employee could not differentiate the dangerously poison species from the not-so-dangerous.

2. Tarantulas are also material which may injure human beings within the meaning of the same statutory and Domestic Mail Manual provisions because of their defensive capability to disperse stinging hairs into the air which on contact with human beings can cause intense itching, popular lesions, and acute respiratory symptoms.

3. It follows that tarantulas are nonmailable material under 18 U.S.C. § 1716(a) and Domestic Mail Manual Section 124.211.

The ruling of nonmailability appealed from should be affirmed.