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 of the Department of 

Justice on the scope of coverage of 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 of Pennsylvania and 

the Eastern District of Illinois to prosecute cases referred to them by your 

Department on the ground that the Act extends only to interstate transactions. 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 of 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 commerce.” This term 

was defined in § 2(c) of the Act as follows:

The term “ commerce” means commerce between any State, territory, possession, or the District o f Columbia, or the Commonwealth of Puerto Rico, and any place outside thereof; or between 

points within the same State, territory, or possession, or the 

District of Columbia, or the Commonwealth of Puerto Rico, 

but through any place outside thereof; or within any territory, 

possession, or the District of Columbia.

'Nothing in this opinion should be viewed as expressing our views on any question other 

than the narrow legal issue regarding the general application of the Animal Welfare Act to 

purely intrastate activities.

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In 1970, the definitional section of 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 burdening or obstructing or substantially affecting commerce or the free 

flow of commerce, or having led or tending to lead to the inhumane care of 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 of commerce.

According to the House report accompanying the 1970 bill, this addition 

was

intended to broaden the authority under the Act to regulate persons 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 important, subsequent sections of the Act regulating specific activities were revised to cover activities “ affecting commerce,” rather than 

simply those “ in commerce.” See, e.g., § 4, 7 U.S.C. § 2134 (transportation of animals); § 11, 7 U.S.C. § 2140 (identification of animals for 

transportation). We believe these amendments reflect Congress’ intention 

to expand the Act’s coverage beyond those activities that are “ in commerce” in the strict sense and to reach activities that merely “ affect” interstate 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 congressional 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 Act are either in interstate or foreign commerce or substantially affect such commerce or the free flow 

thereof, and that regulation of animals and activities as provided 

in this Act is necessary to prevent and eliminate burdens upon 

such commerce and to effectively regulate such commerce * * *. [Emphasis added.]

If there had been any doubt of the coverage of 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 of this point, the definition of “ 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 interstate traffic generally:

The term “ commerce” means trade, traffic, transportation, or 

other commerce—

(1) between a place in a State and any place outside of such 

State, or between points within the same State but through any 

place outside thereof, or within any territory, possession, or the 

District of Columbia;

(2) which affects trade, traffic, transportation, or other commerce described in paragraph (1).

We believe that this provision, read in the context of the other provisions o f the Act and its legislative history, must be construed to provide 

two distinct definitions of “ commerce” for purposes of the Act’s 

coverage.2 Any other construction would make meaningless, or at best 

redundant, the 1970 and 1976 amendments to the Act. We are, therefore, 

of 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 i m m s

Deputy Assistant Attorney General

Office o f Legal Counsel

'If Congress had used the conjunction “ and” 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 “ and” to conjoin subparagraphs (1) and (2) but rather did not use a 

connective word.