B-218923, MAY 28, 1986

B-218923, MAY 28, 1986

AGRICULTURE DEPARTMENT - INSPECTIONAL SERVICES - MEAT AND POULTRY INSPECTION PROGRAM - CONSOLIDATED WITH STATE SYSTEM DIGEST: WE THINK THAT THE AUTHORITY THE SECRETARY OF AGRICULTURE HAS UNDER THE TALMADGE-AIKEN ACT, 7 U.S.C. SEC. 450, TO ALLOW STATE INSPECTORS TO PERFORM FEDERAL MEAT INSPECTION, TOGETHER WITH THE AUTHORITY ALL AGENCY HEADS HAVE UNDER 31 U.S.C. SEC. 6505, FORMERLY KNOWN AS THE INTERGOVERNMENTAL COOPERATION ACT, TO PROVIDE SERVICES TO STATES, WOULD ALLOW USDA TO IMPLEMENT AN ARRANGEMENT WHICH WOULD INVOLVE THE HOUR-FOR HOUR EXCHANGE OF SERVICES BETWEEN FEDERAL AND STATE MEAT INSPECTORS ON A NONREIMBURSABLE BASIS. NO REIMBURSEMENT WOULD BE REQUIRED BECAUSE THE MONEY USDA SAVES BY NOT PAYING FEDERAL INSPECTORS TO PERFORM FEDERAL INSPECTIONS WOULD OFFSET THE COST OF HAVING FEDERAL INSPECTORS PERFORM STATE INSPECTIONS.

THE HONORABLE LAWTON CHILES:

UNITED STATES SENATOR

FEDERAL BUILDING

LAKELAND, FLORIDA 33801

THIS IN RESPONSE TO YOUR LETTER, DATED MAY 9, 1985, REQUESTING OUR OPINION ON THE LEGALITY OF A PROPOSAL MADE BY THE FLORIDA DEPARTMENT OF AGRICULTURE REGARDING THE CROSS-UTILIZATION OF FEDERAL AND STATE MEAT INSPECTORS.

AS STATED IN YOUR LETTER, THE FLORIDA DEPARTMENT OF AGRICULTURE HAS PROPOSED THAT FEDERAL AND STATE MEAT INSPECTORS PERFORM INSPECTION SERVICES FOR EACH OTHER WHERE IT MAY BE MORE EFFICIENT AND ECONOMICAL FOR THEM TO DO SO. UNDER THE STATE'S PROPOSAL, THIS CROSS-UTILIZATION OF STATE AND FEDERAL MEAT INSPECTORS WOULD BE BASED ON AN "HOUR-FOR HOUR EXCHANGE." THE UNITED STATES DEPARTMENT OF AGRICULTURE (USDA) MAINTAINS THAT ALTHOUGH SUCH AN HOUR-FOR-HOUR EXCHANGE COULD BE MUTUALLY BENEFICIAL, IT DOES NOT HAVE THE STATUTORY AUTHORITY TO IMPLEMENT THIS TYPE OF ARRANGEMENT.

FOR THE REASONS SET FORTH HEREAFTER, WE THINK THAT THE AUTHORITY THE SECRETARY OF AGRICULTURE HAS UNDER THE SO-CALLED TALMADGE-AIKEN ACT, 7 U.S.C. SEC. 450, TO ALLOW STATE INSPECTORS TO PERFORM FEDERAL MEAT INSPECTIONS, TOGETHER WITH THE AUTHORITY ALL AGENCY HEADS HAVE UNDER 31 U.S.C. SEC. 6505 TO PROVIDE SERVICES TO STATE AND LOCAL GOVERNMENTS, WOULD ALLOW USDA TO AGREE TO THE HOUR-FOR-HOUR EXCHANGE OF SERVICES BETWEEN FEDERAL AND STATE INSPECTORS ON A NON-REIMBURSABLE BASIS.

ISSUE

THE FLORIDA DEPARTMENT OF AGRICULTURE SUGGESTS THAT THE FEDERAL GOVERNMENT AND FLORIDA COULD SAVE MONEY BY ADOPTING A CROSS-UTILIZATION ARRANGEMENT IN WHICH STATE MEAT INSPECTORS WOULD PERFORM FEDERAL MEAT INSPECTIONS IN FEDERAL PLANTS IN RETURN FOR FEDERAL INSPECTORS PERFORMING STATE INSPECTIONS IN STATE PLANTS, WHERE GEOGRAPHICAL AND OTHER FACTORS MAKE SUCH ARRANGEMENTS MUTUALLY BENEFICIAL. SINCE THE SALARIES OF FEDERAL MEAT INSPECTORS ARE APPROXIMATELY TWICE THOSE OF STATE INSPECTORS, THE FLORIDA DEPARTMENT OF AGRICULTURE INSISTS THAT ANY SUCH ARRANGEMENT WOULD HAVE TO BE BASED ON AN HOUR-FOR-HOUR EXCHANGE IN ORDER TO BE ECONOMICALLY FEASIBLE FROM THE STATE PERSPECTIVE.

VARIOUS STATUTORY PROVISIONS, INCLUDING SECTION 301 OF THE FEDERAL MEAT INSPECTION ACT, 21 U.S.C. SEC. 661, SECTION 5 OF THE POULTRY PRODUCTS INSPECTION ACT, 21 U.S.C. SEC. 454, AND THE SO-CALLED TALMADGE AIKEN ACT, 7 U.S.C. SEC. 450, SPECIFICALLY AUTHORIZE THE FEDERAL GOVERNMENT TO COOPERATE WITH STATE AGENCIES RESPONSIBLE FOR THE ADMINISTRATION OF STATE MEAT AND POULTRY INSPECTION PROGRAMS. HOWEVER, IT IS USDA'S POSITION, AS SET FORTH IN A LETTER TO OUR OFFICE DATED AUGUST 6, 1985, THAT THESE PROVISIONS DO "NOT AUTHORIZE THE SECRETARY OF AGRICULTURE TO PROVIDE FEDERAL INSPECTORS TO THE STATES TO PERFORM STATE INSPECTIONS." USDA MAINTAINS THAT THE ONLY STATUTE WHICH AUTHORIZES THE USE OF FEDERAL MEAT INSPECTORS TO PERFORM INSPECTIONS SERVICES AT STATE INSPECTED ESTABLISHMENTS IS 31 U.S.C. SEC. 6505. USDA STATES THAT UNDER THAT STATUTE, THE FEDERAL AGENCY INVOLVED MUST RECEIVE COMPLETE REIMBURSEMENT FOR THE COST OF PROVIDING SUCH SERVICES TO THE STATE.

ANALYSIS

ALL OF THE PARTIES TO THIS DISPUTE, INCLUDING USDA, AGREE THAT UNDER THE TALMADGE-AIKEN ACT, 7 U.S.C. SEC. 450, "STATES MAY ASSIST THE SECRETARY OF AGRICULTURE IN ADMINISTERING AND ENFORCING THE MEAT AND POULTRY INSPECTION PROGRAM BY PROVIDING STATE INSPECTORS TO PERFORM FEDERAL INSPECTIONS." /1/ WHILE CONSIDERABLE DOUBT MAY EXIST AS TO WHETHER THE TALMADGE-AIKEN ACT OR THE FEDERAL MEAT INSPECTION ACT ALLOWS FEDERAL INSPECTORS TO PERFORM MEAT INSPECTIONS FOR THE STATES, WE BELIEVE THAT AN ALTERNATIVE STATUTORY BASIS EXISTS UNDER WHICH USDA CLEARLY HAS THE AUTHORITY TO CARRY OUT THIS CRITICAL ELEMENT OF THE PROPOSED ARRANGEMENT. AS USDA ITSELF STATED IN ITS LETTER OF AUGUST 6, 1985, 31 U.S.C. SEC. 6505, FORMERLY KNOWN AS THE INTERGOVERNMENTAL COOPERATION ACT, "AUTHORIZES THE USE OF FEDERAL MEAT INSPECTORS TO PERFORM INSPECTION SERVICES AT STATE-INSPECTED ESTABLISHMENTS."

UNDER 31 U.S.C. SEC. 6505, THE HEAD OF AN EXECUTIVE AGENCY IS AUTHORIZED TO PROVIDE STATE AND LOCAL GOVERNMENTS WITH A BROAD RANGE OF SERVICES PRESCRIBED BY THE PRESIDENT. THESE SERVICES INCLUDE TECHNICAL TESTS AND EVALUATIONS, TECHNICAL INFORMATION, SURVEYS, REPORTS AND OTHER SERVICES THAT THE AGENCY IS ESPECIALLY COMPETENT AND AUTHORIZED BY LAW TO PROVIDE. HOWEVER, THE AGENCY HEAD CAN ONLY AUTHORIZE SERVICES TO BE PROVIDED TO A STATE OR LOCALITY IF "PAYMENT OF PAY AND ALL OTHER IDENTIFIABLE COSTS OF PROVIDING THE SERVICES IS MADE TO THE EXECUTIVE AGENCY BY THE STATE OR LOCAL GOVERNMENT MAKING THE REQUEST." ALTHOUGH USDA AGREES THAT IT WOULD HAVE THE AUTHORITY UNDER THIS PROVISION TO PROVIDE INSPECTION SERVICES TO FLORIDA, IT MAINTAINS THAT IT CAN ONLY DO SO IF IT RECEIVES FULL REIMBURSEMENT OF EMPLOYEE SALARIES AND ALL RELATED COSTS INCURRED IN PROVIDING THESE SERVICES.

WHILE WE DO NOT DISAGREE WITH USDA'S ASSESSMENT THAT 31 U.S.C. SEC. 6505 REQUIRES A FEDERAL AGENCY THAT FURNISHES SERVICES TO A STATE TO RECEIVE COMPLETE REIMBURSEMENT FOR ANY COSTS IT INCURS IN DOING SO, USDA COULD PARTICIPATE IN THE PROPOSED ARRANGEMENT WITHOUT INCURRING ANY ADDITIONAL EXPENSES FOR EMPLOYEE SALARIES OR OTHER RELATED COSTS. IN OUR VIEW, AND HOUR-FOR-HOUR EXCHANGE OF SERVICES WOULD RESULT IN A "WASH" WITH RESPECT TO COSTS. WHAT USDA "SAVES" BECAUSE IT NEED NOT PAY FEDERAL INSPECTORS TO INSPECT ITS OWN FACILITIES (SINCE FLORIDA WOULD PERFORM THOSE INSPECTIONS FOR IT) WOULD OFFSET THE COST OF SENDING ITS INSPECTORS TO INSPECT STATE FACILITIES UNDER 31 U.S.C. SEC. 6505. THUS, THERE WOULD BE NO OUT-OF- POCKET EXPENSES FOR THE STATE TO REIMBURSE, PARTICULARLY SINCE THE RATIONALE FOR EXCHANGING SERVICES IN THE FIRST PLACE IS THAT IT WOULD RESULT IN ECONOMIES FOR BOTH FEDERAL AND STATE INSPECTION AUTHORITIES.

IN ACCORDANCE WITH THE FOREGOING, WE THINK THAT USDA DOES HAVE THE AUTHORITY UNDER 7 U.S.C. SEC. 450 AND 31 U.S.C. SEC. 6505 TO IMPLEMENT THE PROPOSED ARRANGEMENT, IF USDA WISHES TO DO SO. OUR CONCLUSION, HOWEVER, DOES NOT MEAN THAT WE ARE NECESSARILY ENDORSING THE PROPOSED ARRANGEMENT FROM A POLICY STANDPOINT OR THAT USDA MUST AGREE TO ITS IMPLEMENTATION. WE FIND ONLY THAT THE PROPOSED EVEN EXCHANGE OF STATE AND FEDERAL INSPECTION SERVICES ON A NON-REIMBURSABLE BASIS IS WITHIN USDA'S ADMINISTRATIVE DISCRETION.

IN ACCORDANCE WITH THE AGREEMENT REACHED WITH A MEMBER OF YOUR STAFF, WE WILL MAKE THIS OPINION GENERALLY AVAILABLE IN 10 DAYS.

/1/ ORDINARILY, SUCH INSPECTIONS BY STATE INSPECTORS UNDER THE TALMADGE- AIKEN ACT WOULD BE PERFORMED ON A REIMBURSABLE BASIS. SEE B-163450, JANUARY 16, 1975; AND B-163450, JUNE 1, 1976.