Application of Animal Welfare Act to Instrastate Activity

August 22, 1979 79-61 MEMORANDUM OPINION FOR THE SECRETARY OF AGRICULTURE Animal Welfare Act (7 U.S.C. § 2131 et seq.)— Commerce—Application to Intrastate Activity This is in response to your request for the opinion o f the Department of Justice on the scope o f coverage o f the Animal Welfare Act, 7 U.S.C. § 2131 et seq. Specifically, you inquire whether the Act applies to activities that are entirely intrastate. The occasion for your question is the recent refusal by the U.S. Attorneys for the Eastern District o f Pennsylvania and the Eastern District o f Illinois to prosecute cases referred to them by your Department on the ground that the Act extends only to interstate transac­ tions. For reasons stated hereafter, we believe that Congress intended the Act to cover purely intrastate activities otherwise falling within its provisions.' The Animal Welfare Act was enacted in 1966 as Pub. L. No. 89-544, 80 Stat. 350. As stated in its preamble, its purpose was “ to prevent the sale or use o f dogs and cats which have been stolen, and to insure that certain animals intended for use in research facilities are provided humane care and treatm ent,” by regulating certain activities “ in com m erce.” This term was defined in § 2(c) o f the Act as follows: The term “ commerce” means commerce between any State, ter­ ritory, possession, or the District o f Columbia, or the Com m on­ wealth o f P uerto Rico, and any place outside thereof; or between points within the same State, territory, or possession, or the District o f Columbia, or the Commonwealth o f Puerto Rico, but through any place outside thereof; or within any territory, possession, or the District o f Columbia. 'N othing in this opinion should be viewed as expressing our views on any question other than the narrow legal issue regarding the general application o f the Animal Welfare Act to purely intrastate activities. 326 In 1970, the definitional section o f the Act was amended. The definition of “ commerce” in § 2(c) was expanded to include “ trade traffic * * * [and] transportation,” as well as “ commerce.” A new § 2(d) added a new definition for “ affecting commerce:” The term “ affecting commerce” means in commerce or burden­ ing or obstructing or substantially affecting commerce or the free flow of commerce, or having led or tending to lead to the in­ humane care o f animals used or intended for use for purposes of research, experimentation, exhibition, or held for sale as pets by burdening or obstructing or substantially affecting commerce or the free flow o f commerce. According to the House report accompanying the 1970 bill, this addition was intended to broaden the authority under the Act to regulate per­ sons who supply animals which are intended for use in research facilities, for exhibition, or as pets. [H. Rept. 1651, 91st Cong., 2d sess. 9 (1970).] More im portant, subsequent sections o f the Act regulating specific ac­ tivities were revised to cover activities “ affecting com m erce,” rather than simply those “ in com m erce.” See, e.g., § 4, 7 U.S.C. § 2134 (transporta­ tion o f animals); § 11, 7 U.S.C. § 2140 (identification of animals for transportation). We believe these amendments reflect Congress’ intention to expand the A ct’s coverage beyond those activities that are “ in com­ merce” in the strict sense and to reach activities that merely “ affect” in­ terstate commerce. This expanded coverage in turn reflects Congress’ determination that certain specified activities have a sufficient effect on commerce among the States to require regulation, even if they take place entirely within one State. The 1976 Amendments to the Animal Welfare Act confirm Congress’ intent that the Act should extend to intrastate activities. Its preamble, § 1(b), 7 U.S.C. § 2131(b), was revised to incorporate the specific congres­ sional findings underlying the regulatory system imposed by the Act. It now reads in pertinent part as follows: The Congress finds that animals and activities which are regulated under this A ct are either in interstate or foreign com­ merce or substantially affect such commerce or the free flow thereof, and that regulation o f animals and activities as provided in this Act is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such com ­ merce * * *. [Emphasis added.] If there had been any doubt o f the coverage o f the Act prior to 1976, the amended preamble makes clear that all activities regulated under the Act, including those confined to a single State, are governed by its provisions. 327 In further clarification o f this point, the definition o f “ commerce” itself now found in 7 U .S.C . § 2132(c) was revised to consolidate former §§ 2(c) and 2(d), so that the term “ commerce” as used in the Act includes both traffic between States and.traffic that merely “ affects” such inter­ state traffic generally: The term “ commerce” means trade, traffic, transportation, or other commerce— (1) between a place in a State and any place outside o f such State, or between points within the same State but through any place outside thereof, or within any territory, possession, or the District o f Columbia; (2) which affects trade, traffic, transportation, or other com ­ merce described in paragraph (1). We believe that this provision, read in the context o f the other provi­ sions o f the Act and its legislative history, must be construed to provide two distinct definitions o f “ commerce” for purposes o f the A ct’s coverage.2 Any other construction would make meaningless, or at best redundant, the 1970 and 1976 amendments to the Act. We are, therefore, o f the opinion that the Animal Welfare Act applies to activities that take place entirely within one State, as well as to those that involve traffic across State lines. L a r r y L . S im m s D eputy Assistant A ttorney General Office o f Legal Counsel 'I f Congress had used the conjunction “ a n d ” between subparagraphs (1) and (2), it would be at least arguable that it would not have succeeded in carrying out its plain intent to expand coverage o f the Act to purely intrastate activities that affect interstate commerce. Congress, however, did not use “ a n d ” to conjoin subparagraphs (1) and (2) but rather did not use a connective word.