B-222686, JUN 11, 1986

B-222686, JUN 11, 1986

APPROPRIATIONS - TRANSFERS - BETWEEN APPROPRIATIONS DIGEST: THE SECRETARY OF AGRICULTURE WAS AUTHORIZED BY 7 U.S.C. SEC. 150DD(B)(2) AND 7 U.S.C. SEC. 147A(F) TO MAKE INDEMNITY PAYMENTS TO PRODUCERS AND OTHERS UNDER CERTAIN CIRCUMSTANCES. UNDER 7 U.S.C. SEC. 147B, THE TRANSFER OF $11.1 MILLION FROM THE APPROPRIATIONS OF THE AGRICULTURAL RESEARCH SERVICE TO THOSE OF THE ANIMAL AND PLANT HEALTH INSPECTION SERVICE, TO PAY OUTSTANDING CITRUS CANKER CLAIMS ARISING FROM EMERGENCY EFFORTS TO ERADICATE THIS PLANT PEST, WAS NOT LEGALLY OBJECTIONABLE. SUCH PAYMENTS ARE PROPERLY CLASSIFIED AS "EXPENSES IN ACCORDANCE WITH SECTION 147A" FOR WHICH PAYMENT MAY BE MADE FROM TRANSFERRED FUNDS.

THE HONORABLE CHARLES E. GRASSLEY:

CHAIRMAN, SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND PROCEDURE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

THIS IS IN REPLY TO YOUR LETTER OF MARCH 20, 1986, REQUESTING THIS OFFICE TO DETERMINE WHETHER THE SECRETARY OF AGRICULTURE WAS LEGALLY AUTHORIZED TO TRANSFER $11.1 MILLION FROM AGRICULTURE RESEARCH SERVICE (ARS) APPROPRIATIONS TO THOSE OF THE ANIMAL AND PLANT HEALTH INSPECTION SERVICE (APHIS) TO PAY OUTSTANDING CITRUS CANKER CLAIMS.

ON THE BASIS OF OUR REVIEW OF RELEVANT STATUTORY PROVISIONS AND LEGISLATIVE HISTORIES, AND DOCUMENTS YOU PROVIDED, AS WILL BE DISCUSSED MORE FULLY BELOW, WE CONCLUDE THAT THE TRANSFER OF APPROPRIATIONS AT ISSUE HERE WAS AUTHORIZED.

BACKGROUND

IN MARCH 1986, THE SECRETARY OF AGRICULTURE ADVISED YOU THAT HE WAS EXERCISING HIS EMERGENCY AUTHORITY UNDER PUB.L. NO. 97-46, 95 STAT. 953 (1981), 7 U.S.C. SEC. 147B, (SECTION 147B) TO TRANSFER $11.1 MILLION FROM THE ARS APPROPRIATION FOR BUILDINGS AND FACILITIES (AND INTENDED FOR CONSTRUCTION OF THE NATIONAL SOIL TILTH CENTER AT AMES, IOWA, S. REPT. NO. 98-566, 98TH CONG., 2D SESS. 28 (1984)) TO APHIS TO PAY FOR "CURRENTLY OUTSTANDING CITRUS CANKER CLAIMS." (LETTER OF THE SECRETARY, MARCH 13, 1986.)

THESE CLAIMS AROSE FROM AN OUTBREAK OF CITRUS CANKER DISEASE IN FLORIDA, WHICH ULTIMATELY RESULTED IN THE QUARANTINE AND DESTRUCTION OF A NUMBER OF CITRUS NURSERIES BEGINNING IN 1984. SEE, CITRUS CANKER: HEARING BEFORE THE SENATE COMMITTEE ON AGRICULTURE, NUTRITION AND FORESTRY, 98TH CONG., 2D SESS. 1984. ACCORDING TO THE SECRETARY'S MARCH 13 LETTER, THE CLAIMS AMOUNT TO $11 MILLION AND "REPRESENT THE FEDERAL SHARE OF INDEMNITY COSTS UNDER OUR AGREEMENT WITH FLORIDA."

AT ISSUE HERE IS NOT WHETHER THE SECRETARY IS AUTHORIZED TO INDEMNIFY CITRUS GROWERS FOR ECONOMIC LOSSES SUFFERED AS A RESULT OF EFFORTS TO ERADICATE THE DISEASE. HE IS SO AUTHORIZED, AS WILL BE DISCUSSED BELOW. THE QUESTION IS WHETHER HE MAY USE HIS AUTHORITY UNDER SECTION 147B TO TRANSFER THE ARS FUNDS TO APHIS FOR THESE INDEMNITY PAYMENTS.

SECTION 147B PROVIDES:

"THE SECRETARY OF AGRICULTURE MAY, IN CONNECTION WITH EMERGENCIES WHICH THREATEN ANY SEGMENT OF THE AGRICULTURE PRODUCTION INDUSTRY OF THIS COUNTRY, TRANSFER FROM OTHER APPROPRIATIONS OR FUNDS AVAILABLE TO THE AGENCIES OR CORPORATIONS OF THE DEPARTMENT OF AGRICULTURE SUCH SUMS AS THE SECRETARY MAY DEEM NECESSARY, TO BE AVAILABLE ONLY IN SUCH EMERGENCIES FOR THE ARREST AND ERADICATION OF PLANT PESTS OR CONTAGIOUS OR INFECTIOUS DISEASES OF ANIMALS OR POULTRY, AND FOR EXPENSES IN ACCORDANCE WITH SECTION 147A OF THIS TITLE AND SECTION 114B OF TITLE 21."

THE UNDERSCORED LANGUAGE IS CRITICAL TO AN ANALYSIS OF THIS QUESTION, SINCE IT REQUIRES THAT THE FUND TRANSFERS BE MADE ONLY IN PARTICULAR EMERGENCIES AND FOR SPECIFIC PURPOSES. THE SECRETARY IS AUTHORIZED TO TRANSFER FUNDS BETWEEN DIFFERENT LUMP SUM APPROPRIATIONS AVAILABLE TO HIM TO ATTACK EMERGENCY THREATS TO THE AGRICULTURAL PRODUCTION INDUSTRY, BUT THE FUNDS MAY BE USED ONLY FOR EXPENSES ALLOWED UNDER 7 U.S.C. SEC. 147A (SECTION 147A), AND UNDER 21 U.S.C. SEC. 114B, WHICH IS NOT RELEVANT IN THIS CASE. INDEMNITY PAYMENTS ARE NOT ADDRESSED SPECIFICALLY IN SECTION 147B.

SECTION 147A PROVIDES IN RELEVANT PART THAT THE SECRETARY "IS AUTHORIZED TO CARRY OUT OPERATIONS OR MEASURES TO DETECT, ERADICATE, SUPPRESS, CONTROL, OR TO PREVENT OR RETARD THE SPREAD OF PLANT PESTS." WITH RESPECT TO INDEMNITY PAYMENTS TO AFFECTED PROPERTY OWNERS, SECTION 147A(F) /1/ PROVIDES:

"THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED SUCH SUMS AS THE CONGRESS MAY ANNUALLY DETERMINE TO BE NECESSARY TO ENABLE THE SECRETARY OF AGRICULTURE TO CARRY OUT THE PROVISIONS OF THIS SECTION. UNLESS OTHERWISE SPECIFICALLY AUTHORIZED, OR PROVIDED FOR IN APPROPRIATIONS, NO PART OF SUCH SUMS SHALL BE USED TO PAY THE COST OR VALUE OF PROPERTY INJURED OR DESTROYED."

SPECIFIC AUTHORITY TO COMPENSATE PRODUCERS AND OTHERS FOR ECONOMIC LOSSES INCURRED AS A RESULT OF EMERGENCY ACTIONS BY THE SECRETARY AGAINST THREATS FROM CERTAIN PLANT PESTS IS PROVIDED IN 7 U.S.C. SEC. 150DD(B), ENACTED BY SECTION 1119(1) OF PUB.L. NO., 97-98, 95 STAT. 1272 (1981). THIS IS A SEPARATE GRANT OF AUTHORITY FOR EMERGENCY REMEDIAL ACTIONS AGAINST NEW OR NEWLY-PREVALENT PLANT PEST THREATS (SUBSECTION 150DD(B)(1)) /2/, AND THE AUTHORITY TO PAY COMPENSATION IS PROVIDED BY PARAGRAPH (2) OF THIS SUBSECTION, WHICH STATES IN PART:

"THE SECRETARY MAY PAY COMPENSATION TO PRODUCERS AND OTHER PERSONS FOR ECONOMIC LOSSES INCURRED BY THEM AS A RESULT OF THE QUARANTINE, DESTRUCTION, OR OTHER ACTION TAKEN UNDER THE AUTHORITY OF PARAGRAPH (1) OF THIS SUBSECTION."

PARAGRAPH 3 OF THE SUBSECTION PROVIDES A SEPARATE AUTHORIZATION OF APPROPRIATIONS FOR PAYMENTS MADE UNDER SUBSECTION 150DD(B). (FUNDS FOR EXPENSES TO PREVENT, CONTROL AND ERADICATE PESTS AND PLANT AND ANIMAL DISEASES GENERALLY ARE APPROPRIATED TO APHIS. SEE, FOR EXAMPLE, H.R. REPT. NO. 99-211, 99TH CONG., 1ST SESS. 40-42 (1985)).

DISCUSSION

SECTIONS 147A AND 147B.

IN A MARCH 18, 1986 MEMORANDUM, WHICH YOU PROVIDED TO US, AGRICULTURE'S ACTING GENERAL COUNSEL STATES THAT THE PROVISION IN SUBSECTION 147A(F) CONCERNING THE USE OF FUNDS FOR INDEMNITY PAYMENTS "CANNOT FAIRLY BE READ AS LIMITING THE BROAD AUTHORITY CLEARLY INTENDED BY CONGRESS TO BE CONFERRED UPON THE SECRETARY BY SECTION 147B."

AS NOTED ABOVE, THE SECRETARY MAY TRANSFER FUNDS UNDER SECTION 147B ONLY FOR EXPENSES "IN ACCORDANCE WITH SECTION 147A," AND SUBSECTION 147A(F) SPECIFICALLY LIMITS PAYMENTS FOR THE COST OR VALUE OF PROPERTY INJURED OR DESTROYED TO SITUATIONS "OTHERWISE SPECIFICALLY AUTHORIZED, OR PROVIDED FOR IN APPROPRIATIONS."

THE LEGISLATIVE HISTORY OF H.R. 4416, WHICH BECAME PUBLIC LAW NO. 97 46 (SECTION 147B), IS QUITE BRIEF. WE AGREE WITH AGRICULTURE THAT THE LEGISLATIVE HISTORY INDICATES THAT SECTION 147B WAS "DESIGNED TO GIVE BROAD DISCRETIONARY AUTHORITY TO THE SECRETARY TO TRANSFER FUNDS *** FOR USE IN EMERGENCIES TO ERADICATE ANIMAL DISEASES AND PLANT PESTS" (MARCH 18 MEMORANDUM), AND TO TAKE IMMEDIATE ACTION TO DO SO WHEN NECESSARY.

THE LEGISLATIVE HISTORY IS SILENT, HOWEVER, ON THE SPECIFIC ISSUE OF THE USE OF THIS TRANSFER AUTHORITY TO PROVIDE FUNDS TO PAY CLAIMS FOR ECONOMIC LOSS. THE EMPHASIS OF DEBATE ON THE BILL WAS THE NEED TO PROVIDE AUTHORITY TO ENABLE THE SECRETARY TO IMMEDIATELY GIVE EMERGENCY ASSISTANCE IN CALIFORNIA TO COMBAT THE MEDITERRANEAN FRUIT FLY OUTBREAK THERE, AND TO DO SO IN FUTURE POTENTIAL EMERGENCIES INVOLVING PLANT PESTS. (THE SECRETARY ALREADY HAD SUCH AUTHORITY WITH REGARD TO ANIMAL AND POULTRY DISEASES.) DISCUSSIONS OF THE BILL WERE DIRECTED AT THE NEED FOR SUFFICIENT RESOURCES TO DETECT, CONTROL AND ERADICATE PLANT PESTS DURING EMERGENCIES, AND NOT WITH CLAIMS FOR COMPENSATION WHICH SUBSEQUENTLY MIGHT ARISE.

SECTION 150DD

AGRICULTURE'S MARCH 18 MEMORANDUM STATED AS FOLLOWS WITH RESPECT TO 7 U.S.C. SEC. 150DD:

"WE CONCLUDE, THEREFORE THAT THE SECRETARY'S AUTHORITIES TO CONTROL AND ERADICATE PLANT PESTS AND DISEASES OF ANIMALS, AND SPECIFICALLY 7 U.S.C. SEC. 150DD, WHEN READ JOINTLY WITH SECTION 147B, AUTHORIZE TRANSFERS IN EMERGENCY CIRCUMSTANCES AND THAT FUNDS SO TRANSFERRED ARE AVAILABLE FOR ALL ASPECTS OF THE CONTROL AND ERADICATION EFFORT-- INCLUDING THE PAYMENT OF INDEMNITIES IN CIRCUMSTANCES SUCH AS THOSE ARISING OUT OF THE CITRUS CANKER OUTBREAK IN THE STATE OF FLORIDA."

AS DISCUSSED EARLIER, PARAGRAPH (2) OF SUBSECTION 150DD(B) PROVIDES AUTHORITY TO PAY COMPENSATION FOR ECONOMIC LOSSES RESULTING FROM ACTIONS BY THE SECRETARY AGAINST PLANT PEST THREATS TO AGRICULTURE. WHEN READ JOINTLY WITH SECTION 147B, PARAGRAPH (2) PROVIDES THE EXPRESS AUTHORIZATION NECESSARY TO COMPLY WITH THE SUBSECTION 147A(F) REQUIREMENT WITH RESPECT TO INDEMNITY PAYMENTS, AND THEREFORE PROVIDES LEGAL AUTHORITY FOR THE SECRETARY'S TRANSFER OF ARS FUNDS TO THOSE OF APHIS FOR THE PAYMENT OF CITRUS CANKER CLAIMS.

IT IS NOT CLEAR THAT THE AUTHORITY PROVIDED BY SUBSECTION 147A(F) TO PAY INDEMNITIES WHICH ARE "OTHERWISE SPECIFICALLY AUTHORIZED, OR PROVIDED FOR IN APPROPRIATIONS" WAS CONSIDERED DURING THE DELIBERATIONS LEADING TO PASSAGE OF SUBSECTION 150DD(B). IN THIS RESPECT, REPRESENTATIVE PANETTA, A SPONSOR OF THE PROVISION, RESPONDED TO A QUESTION ABOUT THE COST IMPACT OF PARAGRAPH (2) AS FOLLOWS:

*** I MIGHT SAY THAT IF THE SECRETARY DOES DECIDE HE WANTS COMPENSATION HE WOULD THEN HAVE TO SEEK APPROPRIATIONS FROM THE CONGRESS IN ORDER TO JUSTIFY THE PAYMENT UNDER THIS AUTHORITY." 127 CONG. REC. H7556 (DAILY ED., OCTOBER 21, 1985).

NEVERTHELESS, THE PRE-EXISTING AUTHORITY OF SUBSECTION 147A(F) TO USE FUNDS APPROPRIATED FOR CONTROL AND ERADICATION OF PLANT PESTS TO PAY INDEMNITIES WHERE SPECIFICALLY AUTHORIZED, COUPLED WITH THE SPECIFIC AUTHORIZATION TO PAY INDEMNITIES PROVIDED IN SUBSECTION 150DD(B)(2), WHEN READ TOGETHER, ARE SUFFICIENT TO RENDER SUCH PAYMENTS PROPER WITHOUT THE NEED FOR A SPECIAL APPROPRIATION FOR THAT PURPOSE.

CONCLUSION

ON THE BASIS OF THE FOREGOING DISCUSSION, WE CONCLUDE THAT THE SECRETARY OF AGRICULTURE WAS AUTHORIZED BY 7 U.S.C. SEC. 150DD(B)(2) AND 7 U.S.C. SEC. 147A(F) TO MAKE INDEMNITY PAYMENTS IN APPROPRIATE CIRCUMSTANCES. ACCORDINGLY, THE TRANSFER OF $11.1 MILLION FROM THE APPROPRIATIONS OF THE AGRICULTURAL RESEARCH SERVICE TO THOSE OF THE ANIMAL AND PLANT HEALTH INSPECTION SERVICE PURSUANT TO 7 U.S.C. SEC. 147B TO PAY OUTSTANDING CITRUS CANKER CLAIMS ARISING FROM EMERGENCY EFFORTS TO ERADICATE THIS PLANT PEST WAS NOT LEGALLY OBJECTIONABLE, BECAUSE SUCH PAYMENTS ARE PROPERLY CLASSIFIED AS "EXPENSES IN ACCORDANCE WITH SECTION 147A" FOR WHICH PAYMENT MAY BE MADE FROM TRANSFERRED FUNDS.

IN ACCORDANCE WITH DISCUSSIONS WITH KEN CUNNINGHAM OF YOUR STAFF, COPIES OF THIS OPINION WILL NOT BE MADE AVAILABLE TO INTERESTED PARTIES WHO MAY REQUEST THEM UNTIL 30 DAYS FROM THE DATE OF ITS ISSUANCE.

/1/ A SIMILAR PROHIBITION AGAINST PAYMENTS FOR PROPERTY INJURED OR DESTROYED AS A RESULT OF THE SECRETARY'S ACTIONS TO CONTROL OR ERADICATE INSECT PESTS AND PLANT DISEASES IS SET FORTH IN 7 U.S.C. SEC. 148D.

/2/ SUBSECTION 150DD(B)(1) ALSO ESTABLISHES CERTAIN PROCEDURAL REQUIREMENTS WHICH MUST BE SATISFIED BEFORE THE SECRETARY MAY ACT UNDER THE SUBSECTION, OR WITHIN 5 BUSINESS DAYS AFTER IMPLEMENTING THESE EMERGENCY ACTIONS. THE STATEMENT REQUIRED BY THIS PROVISION WAS ISSUED BY THE SECRETARY CONCERNING ACTIONS AGAINST CITRUS CANKER ON OCTOBER 17, 1984, AND PUBLISHED IN THE FEDERAL REGISTER ON OCTOBER 22, 49 FED.REG. 41268 (1984). ALSO INCLUDED IN THIS PUBLISHED NOTICE (ALTHOUGH NOT REQUIRED BY OR MENTIONED IN SUBSECTION 150DD(B)) WAS A STATEMENT THAT THE SECRETARY AUTHORIZED THE TRANSFER OF FUNDS UNDER SECTION 147B FOR SUMS NECESSARY FOR THE DETECTION, CONTROL AND ERADICATION OF CITRUS CANKER.