Respondent failed to handle a lechwe that died on June 10, 1994, as expeditiously and carefully as possible in a manner that did not cause trauma, behavioral stress, physical harm, and unnecessary discomfort, in violation of section 2.131(a)(1) of the Regulations (9 C.F.R. § 2.131(a)(1)); (2) assessing Respondent a civil penalty of $1,500; and (3) ordering Respondent to cease and desist from failing to handle animals as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort. In re Peter A. Lang, 57 Agric. Dec.

43-44 (Jan. 13, 1998).

slip op. at 16,

On March 12, 1998, Respondent filed Petition for Reconsideration, and on May 1, 1998, Complainant filed Complainant's Reply to Respondent's Petition for Reconsideration. On May 5, 1998, the Hearing Clerk transmitted the record of this proceeding to the Judicial Officer for reconsideration of the Decision and Order issued January 13, 1998.

Applicable Statutory Provisions, Regulations, and Standards

7 U.S.C.:

TITLE 7-AGRICULTURE

CHAPTER 54-TRANSPORTATION, SALE, AND HANDLING
OF CERTAIN ANIMALS

§ 2132. Definitions

When used in this chapter

(f) The term "dealer" means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of, (1) any dog or other animal whether alive or dead for research, teaching, exhibition, or

57 Agric. Dec. 91

use as a pet, or (2) any dog for hunting, security, or breeding purposes, except that this term does not include

(i) a retail pet store except such store which sells any animals to a research facility, an exhibitor, or a dealer; or

(ii) any person who does not sell, or negotiate the purchase or sale of any wild animal, dog, or cat, and who derives no more than $500 gross income from the sale of other animals during any calendar year[.]

7 U.S.C. § 2132(f).

9 C.F.R.:

TITLE 9—ANIMALS AND ANIMAL PRODUCTS

CHAPTER I-ANIMAL AND PLANT HEALTH
INSPECTION SERVICE,

DEPARTMENT OF AGRICULTURE

SUBCHAPTER A-ANIMAL WELFARE

PART 1-DEFINITION OF TERMS

§ 1.1 Definitions.

For the purposes of this subchapter, unless the context otherwise requires, the following terms shall have the meanings assigned to them in this section. The singular form shall also signify the plural and the masculine form shall also signify the feminine. Words undefined in the following paragraphs shall have the meaning attributed to them in general usage as reflected by definitions in a standard dictionary.

Dealer means any person who, in commerce, for compensation or profit, delivers for transportation, or transports, except as a carrier, buys, or sells, or negotiates the purchase or sale of: Any dog or other animal whether alive or dead (including unborn animals, organs, limbs, blood, serum, or other parts) for research, teaching, testing, experimentation, exhibition, or for use as a pet; or any dog for hunting, security, or breeding

purposes. This term does not include: A retail pet store, as defined in this section, unless such store sells any animals to a research facility, an exhibitor, or a dealer (wholesale); or any person who does not sell, or negotiate the purchase or sale of any wild or exotic animal, dog, or cat and who derives no more than $500 gross income from the sale of animals other than wild or exotic animals, dogs, or cats, during any calendar year.

PART 2-REGULATIONS

SUBPART H-COMPLIANCE WITH STANDARDS AND HOLDING PERIOD

§ 2.100 Compliance with standards.

(a) Each dealer, exhibitor, operator of an auction sale, and intermediate handler shall comply in all respects with the regulations set forth in part 2 and the standards set forth in part 3 of this subchapter for the humane handling, care, treatment, housing, and transportation of animals.

SUBPART I-MISCELLANEOUS

§2.131 Handling of animals.

(a)(1) Handling of all animals shall be done as expeditiously and carefully as possible in a manner that does not cause trauma, overheating, excessive cooling, behavioral stress, physical harm, or unnecessary discomfort.

PART 3-STANDARDS

57 Agric. Dec. 91

SUBPART F-SPECIFICATIONS FOR THE HUMANE HANDLING, CARE, TREATMENT, AND TRANSPORTATION OF WARMBLOODED ANIMALS OTHER THAN DOGS, CATS, RABBITS, HAMSTERS, GUINEA PIGS, NONHUMAN PRIMATES, AND MARINE MAMMALS

TRANSPORTATION STANDARDS

§3.140 Care in transit.

(a) During surface transportation, it shall be the responsibility of the driver or other employee to visually observe the live animals as frequently as circumstances may dictate, but not less than once every 4 hours, to assure that they are receiving sufficient air for normal breathing, their ambient temperatures are within the prescribed limits, all other applicable standards are being complied with and to determine whether any of the live animals are in obvious physical distress and to provide any needed veterinary care as soon as possible. . . . No animal in obvious physical distress shall be transported in commerce.

9 C.F.R. §§ 1.1; 2.100(a), .131(a)(1); 3.140(a).

Prior to addressing the specific issues raised by Respondent in his Petition for Reconsideration, there are two general aspects of Respondent's Petition for Reconsideration that must be addressed. First, Respondent requests reconsideration of the Initial Decision and Order issued by the Chief ALJ on May 20, 1997, as well as the Decision and Order issued on January 13, 1998 (Pet. for Recons. at 2).

Section 1.143(a) and (b)(1) of the Rules of Practice requires a ruling on all motions and requests, as follows:

§1.143 Motions and requests.

(a) General. All motions and requests shall be filed with the Hearingf Clerk, and served upon all the parties, except (1) requests for extensions of time pursuant to § 1.147, (2) requests for subpoenas pursuant to § 1.149, and (3) motions and requests made on the record during the oral hearing. The Judge shall rule upon all motions and requests filed or made prior to

filing an appeal of the Judge's decision pursuant to § 1.145, except motions directly relating to the appeal. Thereafter, the Judicial Officer will rule on any motions and requests, as well as the motions directly relating to the appeal.

(b) Motions entertained. (1) Any motion will be entertained other than a motion to dismiss on the pleading.

7 C.F.R. § 1.143(a), (b)(1).

Section 1.143(b)(1) of the Rules of Practice (7 C.F.R. § 1.143(b)(1)) provides that any motion will be entertained other than a motion to dismiss on the pleading. Generally, the word any is broadly inclusive.2 Section 1.143(a) of the Rules of Practice (7 C.F.R. § 1.143(a)) provides that the administrative law judge shall rule upon all motions and requests filed or made prior to filing an appeal of the administrative law judge's decision pursuant to 7 C.F.R. § 1.145, except motions directly relating to the appeal. Thereafter, the Judicial Officer will rule on any motions or requests. As commonly used, the word all does not permit an

'See United States v. Rosenwasser, 323 U.S. 360, 363 (1945) (the use of the words each and any to modify employee which, in turn, is defined to include any employed individual, discloses congressional intention to include all employees within the scope of the Fair Labor Standards Act, unless specifically excluded); Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 115 (3d Cir. 1992) (the word any is generally used in the sense of all or every and its meaning is most comprehensive), cert. denied sub nom. Doughboy Recreational, Inc. v. Fleck, 507 U.S. 1005 (1993); Kalmbach, Inc. v. Insurance Company of the State of Pennsylvania, Inc., 529 F.2d 552, 556 (9th Cir. 1976) (the common understanding of the word any is that it means all or every; generally, though not necessarily, the word any serves to enlarge the noun it modifies); FDIC v. Winton, 131 F.2d 780, 782 (6th Cir. 1942) (the word any modifying the word deposits in a provision of the Federal Reserve Act means one indiscriminately of whatever kind or quantity'); Kuhlman v. W. & A. Fletcher Co., 20 F.2d 465, 468 (3d Cir. 1927) (an Act giving any seaman authority to sue, applies to every seaman); Kmart Corp. v. Key Industries, Inc., 877 F. Supp. 1048, 1051 (E.D. Mich. 1994) (the word any in a provision of the Michigan long-arm statute includes each and every); In re Far West Meats, 55 Agric. Dec. 1033, 1036-37 (1996) (Ruling on Certified Questions) (generally, the word any is broadly inclusive; as commonly used the word all does not permit an exception or exclusion not specified; and the context in which the words all and any are used in 7 C.F.R. § 1.143(a) and (b)(1), respectively, provides no basis for reading the words all and any narrowly); In re Billy Gray, 52 Agric. Dec. 1044, 1090 (1993) (the word any is a broad and comprehensive term), aff'd, 39 F.3d 670 (6th Cir. 1994); In re Beef Nebraska, Inc., 44 Agric. Dec. 2786, 2830 (1985) (the word any is a broad and comprehensive term), aff'd, 807 F.2d 712 (8th Cir. 1986); In re Ben Gatz Co., 38 Agric. Dec. 1038, 1043 (1979) (the word any is a broad and comprehensive term); In re Mountainside Butter & Egg Co., 38 Agric. Dec. 789, 792 (1978) (Remand Order) (the word any is a broad and comprehensive term, and there is no basis for engrafting an exception not stated), final decision, 39 Agric. Dec. 862 (1980), aff'd, No. 80-3898 (D.N.J. June 23, 1982), aff'd mem., 722 F.2d 733 (3d Cir. 1983), cert. denied, 465 U.S. 1066 (1984).