October 7, 1986, the deficiencies had not been corrected. The Inspection Report noted that shelter was inadequate for the primates, wolf, lions, albino raccoon, kinkajou, javelina and skunk. It was also pointed out that the cages were open on the southwest side. The openness of the cages can be seen in photographs taken during the inspection.

When the facility was reinspected on November 25, 1986, the same deficiencies were found. Again, the openness of the cages can be seen from the photographs. Although there were sheets of metal in one corner of some cages, this did not provide shelter because the prevailing winds would blow into the corner, preventing the metal sheets from acting as a windbreak. The cages did have roofs, but a roof cannot provide shelter from wind or blowing rain. The animal cages did not have enclosures which would have allowed the animals to conserve body heat. Although the skunk cage did contain an enclosure, it was not large enough for all the skunks. The inspection of November 25, 1986, took place after a rainstorm. Many of the cages and animals were wet. The lack of shelter for any animal is serious, but is especially serious with respect to primates such as are involved in this proceeding since they are tropical animals and must be carefully protected from dampness and cold. As the winter advanced, the temperature became colder. Dr. DeHaven contacted Respondent Gus White III in December 1986, to discuss the need to provide shelter for the primates in particular. The response thereto was that there was an intention to provide shelter for the primates by bringing them inside the trailer home. However, when the facility was reinspected on January 27, 1987, the temperature was below freezing but the primates were outside, without adequate shelter. Thus, there was a failure to provide adequate shelter for the animals on October 7 and November 25, 1986, and for the primates on January 26, 1987 (the inspection on the latter date was limited to the condition of the primates).

With respect to the failure to construct the facility in a manner appropriate for the animals involved, it is the Complainant's position that the context of section 3.135(a) of the standards (9 C.F.R. § 3.135(a)) requires an eight-foot perimeter fence in a zoo-type exhibition containing dangerous captive wild animals. The Respondent White maintains that even an eight-foot fence is not absolute insurance that an animal cannot hurdle same. In a letter dated July 8, 1986, from Dr. DeHaven to Gus White III concerning deficiencies at the facility, this was specifically addressed: "An eight-foot perimeter fence is needed around the entire facility. This fence must be at least three feet away from any primary enclosures (animal cages) and substantial enough to prevent the escape of animals from your premises. Such a fence also serves to prevent

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the entrance of predator animals. Chain link fence is commonly used as a perimeter fence."

As with the other violations, a deadline of October 1, 1986, was established for the correction of the problem. When the facility was inspected on September 3, 1986, the condition was again brought to the attention of Respondent Gus White III and there was a reminder of the October 1st deadline. None of the animals of Respondent had escaped.

When the facility was again inspected on October 7, 1986, and November 25, 1986, there was no perimeter fence. The problem was not just that the fence was not tall enough, but that there was simply not a fence all the way around the facility. This is shown by photographs of the perimeter of the facility, which although taken on a later date, depict conditions on the dates of the alleged violation, except for some improvement of the front fence.

There is also a requirement in the standards that it is necessary to provide adequate barriers to protect both the animals and the public (9 C.F.R. § 3.135(c)). In the context of the zoo-type exhibition, containing dangerous wild animals, Complainant interprets this provision as requiring barriers between the public and the animal cages to reduce the risk that children or other visitors might put their arms or fingers into the cages of dangerous animals as well as other dangers. The letter dated July 8, 1986, from Dr. DeHaven to Gus White III concerning deficiencies at the facility specifically addressed the problem thus: "Barriers are needed to keep the viewing public out of reach so as to minimize risk of harm to the public and animals alike." There was a need of assurance of safety during public display.

When the facility was inspected on September 3, 1986, the report noted the absence of any barrier around the cougar cage and when it was reinspected on October 7, 1986, Dr. Chancellor, stated on the report that: "Barriers are needed in front of animal cages to protect public from animals and protect animals from the public. Rope barriers are not acceptable."

Because an effort was made to comply with the requirement for the barriers, the Complaint did not charge the Respondents with a violation of this requirement on October 7, 1986. However, the condition was found to be uncorrected when the facility was reinspected on November 25, 1986. Respondent White testified that the rope barriers had been approved. It is possible that a misunderstanding occurred. However, the Complainant maintains that the violation is not negated. One of the photographs taken during the November 25, 1986, inspection shows the wolf cage and part of the rope barrier in the foreground. The rope barrier is in disrepair and does not constitute a meaningful barrier. Thus, even if ... Respondent White's

contention is correct, the rope barriers could not suffice, and would not excuse the violation because the rope barrier was in poor repair and would constitute a violation in any event. Further, a photograph of the cougar cage taken during the same inspection, shows a metal barrier at the front of the cage, but it would not prevent a visitor from walking up to the side of the cage. Particular notice is taken of the gap in the cage, where the gate is located. The need for barriers is amply demonstrated by a newspaper photograph of the same cage, taken at a later date, which shows a man reaching through the same gap to pet the cougar. A child visiting the facility could easily reach an entire arm into the cage, with disastrous results.

A careful consideration of the record as a whole shows that Respondent Gus White III did violate the standards and regulations applicable to the Animal Welfare Act.

The Respondent has argued that the Complainant's charges are based on indefinite guidelines and that the Complainant has assumed the authority to set up guidelines and procedures by virtue of in-house memoranda and procedures that allow the Complainant to dictate step by step what has to be done to comply with a particular regulation. However, these guidelines and procedures are not published. The Respondents maintain that such in-house memoranda, decisions, and procedures, which have the force and effect of law, should be set out in writing and notification to the public should be given in the form of publication in the Federal Register. W.C. v. Bowen, 64 Ad[min.] L. 2d 387 (9th Cir. 1987).

Of course, the failure to properly care and provide for the animals constitutes serious offenses. However, as indicated by the Respondent, compliance with some of the regulations is a matter of subjective interpretation. In this regard, it is noted that the investigating officials were not acquainted with exotic animals and, in fact, this was the only exotic animal investigation conducted by the primary investigating official. The Respondents did affirmatively aver, and offer evidence, that there were both the attempt and a sought-for achievement of compliance with the regulations and standards. As is more fully set forth herein, the weight of the evidence indicates that Respondent White did not achieve the compliance required by the APHIS people.

There is no evidence in this case that any of the animals, with the exception of the alleged sick lion, lacked veterinary care. It was also disputed as to whether or not a written program of veterinary care had been submitted to the APHIS officials. That the lion's health was of concern to Respondent White is evidenced by him sleeping near the cage of the lion during the night

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so that the lion could be provided needed care. Also the evidence shows that the Respondents did contact a veterinarian as soon as possible after they had been advised to do so by Dr. Chancellor.

Although on brief and at the hearing, the Complainant maintained that there were a variety of methods that could have been used to comply with the requirements of the standards pertaining to the removal and disposal of animal wastes, the evidence at the hearing does not disclose that ... Respondent White was aware of such alternate methods. In its Reply Brief, the Complainant maintains that it was not necessary for Respondent White to install a drainage system and that there were other methods which would suffice, but that there had to be installed a drainage system if Respondent White continued to flush animal wastes onto the ground outside the cages.

Also, in its Reply Brief, the Complainant minimizes the testimony of the Respondents pertaining to the sanitation of soil. It was claimed that bleach was used to sanitize the soil around the cages and that a flame thrower was used to kill parasites in the soil. The Complainant disregards this method inasmuch as the record does not disclose that either of the Respondents had any special training or expertise in bacteriology or parasitology or that they were relying on the advice of a veterinarian or other professionals or knowledgeable persons. Furthermore, the Complainant maintains that bleach and heat may be an acceptable sanitizing agent for hard surfaces, but that the record is devoid of evidence that such methods are accepted for the sanitization of the soil.

A disciplinary proceeding under the Animal Welfare Act, as amended (7 U.S.C. § 2131 et seq.), and the regulations and standards issued thereunder (9 C.F.R. § 1.1 et seq.), requires a consideration of a number of factors, particularly with respect to the imposition of sanction.

The Act authorizes the Secretary to assess a civil penalty of one thousand dollars ($1,000.00) for each violation. (7 U.S.C. § 2149(b)). Each violation and each day during which violation continues shall be a separate offense.

With respect to the imposition of sanctions, the Act provides that the Secretary shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person involved, the gravity of the violation, the person's good faith, and the history of previous violations. Any such civil penalty may be compromised by the Secretary.

The Complainant does not allege that the condition of the Collins Exotic Animal Orphanage was in violation of the Act prior to October 1, 1986. There were some changes made between inspections, but they fell short of compliance.

The inspecting official, Mr. Valentine, had not been involved in investigatory work from 1973 to 1984; had had no occasion to work around exotic animals; never cared for exotic animals; and, this was the only exotic animal facility he had inspected. He admitted that he was not an expert on regulations but, nevertheless, was able to testify as to some basic requirements under the Act with respect to the care, treatment, and housing of animals.

The Respondents made an effort to obtain written rules and regulations which they were supposed to follow. They were given a copy of the Animal Welfare Act. There was also some question raised during the hearing as to whether or not some of the inspecting officials had a prejudice with respect to the caging of exotic animals.

In mitigation of the circumstances, the evidence shows that Respondent White has been in the animal care field in excess of twenty-eight (28) years. During that time, he has been the holder of the United States Department of Agriculture Exhibitor's License since 1970. He has provided veterinary care and attention to his animals under the supervision of several veterinarians. The veterinarians, specifically Dr. James Eddie Gibson and Dr. Andrew Gutter, had demonstrated confidence in his ability to administer treatment and medication to the animals by instructing and allowing him to administer medication and treatment prescribed by them. Additionally, the Respondent has provided expertise and assistance to well-known, private individuals and businesses and to public agencies. He has cared for animals and assisted in the exhibition of animals at large public gatherings.

The Respondent has no prior violations cited against him under the Act and the regulations. Respondent operated an animal care facility in the State of Louisiana for 18 years and has operated the same facility in Collins, Mississippi, since June of 1986, until he was closed down by APHIS. He has had ample training and expertise in the field of exotic animals and their care. The evidence of record shows that the Respondent has great love and affection for his animals, and that he did make an effort to comply with the requirements of Complainant's inspectors, even though the Complainant describes those as being of a cosmetic compliance as opposed to actual and substantial compliance.

In the subject case, the Complainant has requested a civil penalty of $7,250.00 and explains the reasons therefore as follows:

The complainant believes that the amount of the civil penalty for each violation should be progressively higher with each repetition. Accordingly, for the first occurrence of a violation, the civil penalty