IMPORTATION OF MEATS AND ANIMALS THAT HAVE TRANSITED COUNTRIES INFECTED WITH FOOT-ANDMOUTH DISEASE OR RINDERPEST

Under section 306(a) of the Tariff Act of 1930 (46 Stat. 689, 19 U.S.C. 1306(a)), the Secretary of Agriculture need not ban the importation of all meats and animals covered by the act that have transited a country in which foot-and-mouth disease or rinderpest exists, but he may ban those meats or animals that have transited an infected country under conditions that in his judgment present an undue risk of infection.

THE SECRETARY OF AGRICULTURE.

DECEMBER 30, 1965.

MY DEAR MR. SECRETARY: This is in reply to the request of Acting Secretary John A. Schnittker of November 24, 1965, for my opinion on the proper interpretation of section 306(a) of the Tariff Act of 1930 (June 30, 1930, c. 497, 46 Stat. 689, 19 U.S.C. 1306(a)). Section 306 (a) requires that you inform the Secretary of the Treasury and give public notice of the existence of rinderpest or foot-and-mouth disease in any foreign country, and provides that thereafter the "importation into the United States of *** ruminants, or swine, or *** [the] meat of such animals, from such foreign country," shall be prohibited, with certain narrowly defined exceptions.* It is understood, and not here questioned, that the phrase, "importation * * * from such foreign country," includes the country in which the shipment

*The text of the section (19 U.S.C. 1306) reads as follows: "(a) Rinderpest and foot-and-mouth disease.

"If the Secretary of Agriculture determines that rinderpest or foot-andmouth disease exists in any foreign country, he shall officially notify the Secretary of the Treasury and give public notice thereof, and thereafter, and until the Secretary of Agriculture gives notice in a similar manner that such disease no longer exists in such foreign country, the importation into the

to the United States originated. Your Department has advised me that in its view the quoted phrase includes not only such countries, but also any countries through which the animal or meat has passed or at whose ports it has touched on its way to the United States, however brief the period of transit may have been and without regard to the manner in which the animal or meat was carried or handled. Your General Counsel states that with only unimportant exceptions the Department of Agriculture has consistently followed this interpretation of section 306 (a) ever since its enactment.

The Department of State and the Special Representative for Trade Negotiations urge a different interpretation. They argue that either section 306 (a) should be construed as limited to the country in which the shipment originated, in which case your authority to ban animals and meats that might have become contaminated en route would have to be found, if at all, in other laws that you administer, or alter

United States of cattle, sheep, or other ruminants, or swine, or of fresh, chilled, or frozen meat of such animals, from such foreign country, is prohibited: Provided, That wild ruminants or swine may be imported from any such country upon such conditions, including post entry conditions, to be prescribed in import permits or in regulations, as the Secretary may impose for the purpose of preventing the dissemination of said diseases into or within the United States: And provided further, That the subsequent distribution, maintenance, and exhibition of such animals in the United States shall be limited to zoological parks approved by said Secretary as meeting such standards as he may by regulation prescribe for the purpose of preventing the dissemination of said diseases into or within the United States. The Secretary may at any time seize and dispose of any such animals which are not handled in accordance with the conditions imposed by him or which are distributed to or maintained or exhibited at any place in the United States which is not then an approved zoological park, in such manner as he deems necessary for said purpose.

"(b) Meats unfit for human food.

"No meat of any kind shall be imported into the United States unless such meat is healthful, wholesome, and fit for human food and contains no dye, chemical, preservative, or ingredient which renders such meat unhealthful, unwholesome, or unfit for human food, and unless such meat also complies with the rules and regulations made by the Secretary of Agriculture. All imported meats shall, after entry into the United States in compliance with such rules and regulations, be deemed and treated as domestic meats within the meaning of and subject to the provisions of the Act of June 30, 1906, commonly called the 'Meat Inspection Amendment,' and the Act of June 30, 1906, commonly called the 'Food and Drugs Act,' and Acts amendatory of, supplementary to, or in substitution for such Acts.

"(c) Regulations.

"The Secretary of Agriculture is authorized to make rules and regulations to carry out the purposes of this section, and in such rules and regulations the Secretary of Agriculture may prescribe the terms and conditions for the destruction of all cattle, sheep, and other ruminants, and swine, and of all meats, offered for entry and refused admission into the United States, unless such cattle, sheep, ruminants, swine, or meats be exported by the consignee within the time fixed therefor in such rules and regulations."

natively, that section 306 (a) should be construed as directly conferring on you the discretionary authority to define those kinds of transits that would or would not constitute a prohibited importation. As part of their argument they maintain that until very recently your Department has, for some carriers at least, consistently permitted properly stowed meat to be carried on ships that stopped at ports of infected countries.

It is my opinion that the second of the two interpretations put forward by the Department of State and the Special Representative for Trade Negotiations is the proper one, and that section 306 (a) confers on you the authority to ban those kinds of transits that would involve an undue risk of introducing rinderpest or foot-and-mouth disease into the United States and to permit those kinds of transits that do not carry such risks.

Your General Counsel has informed me that from 1900 to 1929 there were six outbreaks of foot-and-mouth disease among livestock in the United States and that one of them, occurring in 1914 and 1915, spread through 22 States and the District of Columbia. Its eradication cost the Federal Government four and one-half million dollars. Its cost in destroyed animals and restricted food production was never measured, but was undoubtedly substantial. I am also informed that rinderpest is a highly toxic disease found principally among cattle. It is common in Europe but has never yet occurred in the United States. Both diseases are highly virulent and capable of severely damaging our domestic cattle and swine industries if they should become established in this country.

The history of section 306(a) of the Tariff Act of 1930 and the several acts preceding it shows clearly the concern of Congress to prevent the occurrence of further outbreaks of foot-and-mouth disease or the introduction of rinderpest in the United States by prohibiting the importation of infected animals or meats. See 71 Cong. Rec. 3569-70 (1929); H. Rept. 7, 71st Cong., 1st. sess. 160 (1929); S. Rept. 2388, 57th Cong., 2d sess. (1903). The continued concern of Congress was demonstrated over a ten-year period beginning in 1947 when it appropriated more than $135 million to your Department to engage in foot-and-mouth disease eradication

operations in southern Mexico. See act of February 28, 1947, c. 8, 61 Stat. 7, and Department of Agriculture Appropriations for 1957, Hearings before the Subcommittee on Department of Agriculture and Related Agencies Appropriations of the Committee on Appropriations, House of Representatives, 84th Cong., 2d sess. (1956), Part II, p. 525. The existence of the contagion even several hundred miles from our borders was thus considered too great a risk to be tolerated. From all this it is obvious that construing section 306 (a) as barring imports only when animals or meats originate in an infected foreign country, irrespective of the risks of contagion they may have encountered en route to the United States, would contravene the purpose of the statute. Congress clearly intended a more effective defense than that.

On the other hand, there are also persuasive arguments for not giving section 306 (a) as broad an interpretation as your General Counsel has urged. Statutory language should be interpreted in accord with its common meaning whenever possible, and the common meaning of the words, "importation * * * from," would not seem to encompass so extreme a situation as the mere touching-in at a port by a vessel carrying properly sealed and refrigerated meat, with no unloading and reloading or other handling within the port area. Moreover, the purpose of the statute also argues against giving it an extremely broad interpretation. Since the intent of Congress was to prevent the introduction of rinderpest and foot-and-mouth disease into the United States, there is a presumption that Congress did not intend the statute to apply to situations in which the risk of contagion was absent or so small as to be insignificant. For example, I see no reason to believe that Congress meant the statute to extend to a point at which the risk of the offending virus' attaching to animals or meat on board a vessel was no greater than its attaching to other foodstuffs on board, or even to the decks and cargo holds of the vessel itself. Such a broad application would reduce much of the enforcement program to the status of a mere nuisance.

I do not dispute that under some circumstances the shipment of animals or meat through a country would involve an undue risk of infection and that section 306(a), alone or in conjunction with other laws, ought to be interpreted to au

thorize you to ban all animals or meats that were so shipped. It is my opinion that the necessary discretionary authority is to be found in section 306 (a) itself, and that it can be exercised through the issuance of regulations, interpretive bulletins, formal opinions or other proper techniques of the administrative process. The Supreme Court has recognized that an agency given the authority and responsibility to enforce a statute in which the details have not been spelled out by the legislature is impliedly given the power to issue implementing regulations. The statute need not expressly grant the rulemaking power; the power is implied when the task of enforcement requires it. Skidmore v. Swift & Co., 323 U.S. 134, 137–38, 139–40 (1944); Overnight Motor Co. v. Missel, 316 U.S. 572, 580-81 (1942); Davis, Administrative Law Treatise (1958, Vol. 1, sec. 5.03, pp. 300-01. Section 306 (a) plainly presents a task of enforcement which requires the kind of clarity and forewarning that can be provided only by rules. Shippers of meat and livestock must receive guidance on the kinds of situations in which their goods will or will not be denied entry into the United States long before those goods reach American ports. Decisions on the loading and routing of vessels are made well in advance and, once made, can ordinarily be reversed only at considerable expense.

The power to issue regulations under section 306 (a), inherent in the section itself, is also expressly conferred by section 306 (c), which authorizes the Secretary of Agriculture to "make rules and regulations to carry out the purposes of this section *** [italics added]." The quoted phrase follows three separate references to regulations in sections 306(a) and (b) (concerning wild animals in zoos and imported meat) and is followed by a fourth in section 306 (c) (concerning the destruction or removal of improperly imported meat), thus presenting the possibility that it was intended only to authorize the issuance of regulations to which reference was expressly made elsewhere in the same section. It seems to me evident, however, that it was not intended to be so limited. If it were, it would be superfluous, for the four references already carry within themselves the implied authority to issue the regulations to which they expressly refer. The quoted phrase, which is cast in the broadest