                                                                       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.

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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.

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    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.
