§ 2.131(a)(1)), and my determination that Respondent violated 9 C.F.R. § 2.131(a)(1) is not based upon a finding that Respondent's actions or inaction caused the death of the male lechwe in question.

Fourth, Respondent, citing pages 443 and 444 of the transcript, contends that:

D. Judge Palmer did not allow the admission of USDA material showing the lead investigator could not find where the Respondent had violated the C.F.R.

Judge Palmer did not allow the admission of USDA materials showing that Lupe Aguilar, the lead investigator for the case, could not find any where in the 9 CFR sections where the Respondent had violated the Animal Welfare Regulations. . . . The USDA personnel were Ms. Lupe Aguilar, Dr. Homer Malaby, and Ms. Diane Ward. None of these individuals could find a violation of the C.F.R....

Respondent's Appeal at 4 (footnote omitted).

The record reveals that the Chief ALJ did exclude the introduction of evidence concerning a "file," as follows:

BY MR. LANG:

Q. After your investigation -- and you were the only USDA investigator I saw or spoke to -- to your knowledge, did I willfully violate any USDA laws?

[BY MS. WARD:]

A. From the facts of the case that I had -- and I never saw the completed case

I did not feel there were any violations of the 9 CFR.

Q. Were -- did your file have other people's statements?

Do you feel it was a complete file?

MS. CARROLL: Objection. I think we need some clarification about what file this is. Is this a personal file that this witness had -

BY MR. LANG:

Q. Did your file -

57 Agric. Dec. 59

MS. CARROLL: -- or, the official file?

BY MR. LANG:

Q. Did your file that was given to you to do this investigation -- was it complete, in that it had other witnesses' statements?

MS. CARROLL: And -

JUDGE PALMER: I'm going to sustain the objection. I don't know what was in that file. And, I don't know that I really want to revive the whole file.

-

He's [sic] stated, based upon being told to go out there and investigate, and based upon some statements she had she indicated whose statements she had. And from her observation, she didn't find a violation.

Tr. 442-44.

The Chief ALJ excluded questions concerning the "file" referenced by Respondent on the ground that Respondent had already established that Ms. Diane Ward, based on her knowledge of the investigation, did not "find a violation." I infer that the Chief ALJ found that Respondent's inquiry into the "file" referenced on pages 442 through 444 of the transcript would have been unduly repetitious. The Administrative Procedure Act and the Rules of Practice both provide for the exclusion of unduly repetitious evidence," and I do not find that the Chief ALJ

'The Administrative Procedure Act provides, as follows:

§ 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision

(d) ... Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.

5 U.S.C. § 556(d).

(continued...)

erred by excluding evidence concerning the "file" referenced on pages 442 through 444 of the transcript.

Fifth, Respondent contends that "[t]he [Initial] Decision and Order and the hearing were based on sections of the C.F.R. that the Respondent was not notified of until the hearing started...." (Respondent's Appeal at 5.)

Complainant did introduce evidence at the hearing of violations of the Regulations and Standards that were not alleged in the Complaint. Specifically, Complainant introduced evidence regarding veterinary care, feeding and watering, and unloading animals. Complainant stated that Complainant was considering an amendment to the Complaint in order to conform to the proof presented. However, the Chief ALJ advised Complainant that an amendment of the Complaint would not be allowed, as follows:

JUDGE PALMER: I note your objection, and I share your concern. Because, I did review the complaint just now, and the only charges in the complaint -- they're very specific deal with the lechwes.

MS. CARROLL: Yes.

-

JUDGE PALMER: And, they also specify regulations other than those that she's been citing.

MS. CARROLL: Well, we do include -- 3.140 and the 2.131 are the specified regulations. And the government is considering moving to amend the complaint to conform to proof -

(...continued)

Section 1.141(h)(1)(iv) of the Rules of Practice provides:

§ 1.141 Procedure for hearing.

(h) Evidence. (1) In general... ... ....

(iv) Evidence which is immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely, shall be excluded insofar as practicable.

7 C.F.R. § 1.141(h)(1)(iv).

57 Agric. Dec. 59

JUDGE PALMER: Well, I'll deny it. I must tell you this, that I reviewed another one of your cases recently while writing a decision, and I know that there's some law out there that says you can amend a complaint to match evidence. But, I do think the government -- in all this time, with all the statements that it has, and all the resources it has as [sic] its hands -should have the case in a posture, at the time we come to a hearing, that a respondent -- particularly one who's representing himself pro se, or any respondent -- should know exactly what it is he's got to face.

And, if he's now going to be asked to talk about how he handled the monkeys -- I'm going to call them monkeys, it's easier for me than tamarins -- and so forth, when the complaint only specified lechwes or how he's supposed to water other animals, other than the lechwes and so forth, I just don't think that's fair.

Tr. 339-40.

that:

So, I'm not going to permit that amendment.

Further, the Chief ALJ specifically states in the Initial Decision and Order

Complainant addressed issues at the hearing and in post-hearing submissions that were not part of the Complaint. Specifically, assertions were made about veterinary care, feeding and watering, and unloading animals. At the hearing Complainant expressed an intent to amend the Complaint in order to conform to the proof presented. I advised Complainant that such an amendment would not be allowed. (Tr. 340). All of the activities in question took place during the same three day period; therefore, there was sufficient time to include any additional allegations in the original complaint, or in an amended complaint filed prior to the hearing. Despite relaxed pleading requirements in administrative proceedings, Respondent has a right to notice of the allegations against him in order to properly prepare a defense prior to the hearing. . . .

I have, therefore, only considered evidence pertaining to feeding and watering and veterinary care to the extent that it is relevant to the handling of the lechwes. The procedures used to unload animals other than the lechwes is not relevant to the allegations charged in the Complaint, and

have not been considered.

Initial Decision and Order at 9-10.

Moreover, the Chief ALJ only concluded, and I only conclude, that Respondent violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)) as alleged in paragraph 5 of the Complaint. Respondent has not been found to have violated the Regulations or Standards that were not cited in the Complaint. Under these circumstances, I do not find that Respondent was harmed by Complainant's introduction of evidence of violations of the Regulations and Standards that were not alleged in the Complaint.

Sixth, Respondent contends that "[t]he Respondent's expertise was critical in determining the best and most suitable course of action during the transportation of the animals." (Respondent's Appeal at 13.)

I do not find Respondent's level of expertise relevant to the issue of whether, with respect to the lechwe that died on June 10, 1994, Respondent violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)). Complainant did stipulate to the fact that Respondent had successfully transported exotic animals in the past without incident (Tr. 18, 446), and there is some evidence that Respondent is an experienced handler of exotic animals (Tr. 504, 831-32). However, Complainant's stipulation and the evidence of Respondent's experience is not relevant to whether, on a particular occasion, June 8, 1994, through June 10, 1994, Respondent violated section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)). Even if I found that Respondent is an experienced handler of exotic animals and generally uses good judgment with respect to the handling of exotic animals, those findings would not affect the outcome of this proceeding.

Seventh, Respondent contends that "Judge Palmer's suggestions for alleviation. of stress and death in the male lechwe are incorrect and are situations that would have been stressful or dangerous to the lechwes and other animals or were unnecessary." (Respondent's Appeal at 14.)

Respondent is required by section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)) to handle animals as expeditiously as possible and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort. The Chief ALJ found that, with respect to the male lechwe that died on June 10, 1994, Respondent failed to comply with 9 C.F.R. § 2.131(a)(1). The Chief ALJ discusses some of the actions that Respondent could have taken to avoid the violation, as follows:

The lechwes in question were not transported in a manner which subjected them to the least amount of stress possible. The animals