B-163450, FEBRUARY 24, 1970, 49 COMP. GEN. 510

B-163450, FEBRUARY 24, 1970, 49 COMP. GEN. 510

HOLIDAYS -- CREATED BY EXECUTIVE ORDER -- INSPECTIONAL SERVICES -- REIMBURSEMENT ESTABLISHMENTS THAT RECEIVED MEAT AND POULTRY INSPECTION SERVICES ON FRIDAY, DECEMBER 26, 1969, DECLARED A HOLIDAY BY EXECUTIVE ORDER, NOTWITHSTANDING THE INADEQUACY OF THE NOTICE CONCERNING THE HOLIDAY STATUS OF THE 26TH, MAY NOT BE RELIEVED OF THE OBLIGATION IMPOSED BY 21 U.S.C. 468 AND 7 U.S.C. 394, TO REIMBURSE THE DEPARTMENT OF AGRICULTURE FOR THE HOLIDAY PAY RECEIVED BY THE INSPECTION EMPLOYEES AT THE PREMIUM RATES PRESCRIBED IN 5 U.S.C. 5541-5549, AS THERE IS NO INDICATION IN THE LEGISLATIVE HISTORIES OF THE POULTRY PRODUCTS INSPECTION ACT AND THE MEAT INSPECTION ACT OF THE INTENT TO SHIFT HOLIDAY AND OVERTIME COSTS FROM THE INDUSTRY TO THE GOVERNMENT, OTHERWISE RESPONSIBLE FOR THE OPERATION OF THE INSPECTION SERVICES, AND, FURTHERMORE, NO APPROPRIATED FUNDS ARE AVAILABLE TO PAY THE COST OF OVERTIME AND HOLIDAY WORK. STATUTORY CONSTRUCTION -- ADMINISTRATIVE CONSTRUCTION WEIGHT THE LONGSTANDING INTERPRETATION BY THE DEPARTMENT OF AGRICULTURE THAT THE REFERENCE IN THE MEAT INSPECTION ACT (7U.S.C. 394), TO REIMBURSEMENT BY THE MEAT INDUSTRY FOR THE OVERTIME COSTS INCURRED BY THE GOVERNMENT, INCLUDES THE COST OF FURNISHING HOLIDAY SERVICES, IS ENTITLED TO GREAT WEIGHT IN THE CONSTRUCTION OF THE ACT AND, THEREFORE, THE MEAT ESTABLISHMENTS THAT WERE RENDERED INSPECTION SERVICES ON FRIDAY, DECEMBER 26, 1969, A DAY DECLARED A HOLIDAY BY EXECUTIVE ORDER, MAY NOT BE RELIEVED OF THE LIABILITY TO REIMBURSE THE DEPARTMENT FOR THE HOLIDAY PREMIUM PAY THAT WAS MADE TO INSPECTORS.

REFERENCE IS MADE TO THE LETTER DATED JANUARY 12, 1970, FROM THE ASSISTANT SECRETARY OF AGRICULTURE WHICH REQUESTS A DECISION AS TO WHETHER THE DEPARTMENT CAN RELIEVE ESTABLISHMENTS WHICH RECEIVED MEAT AND POULTRY INSPECTION ON FRIDAY, DECEMBER 26, 1969, FROM REIMBURSING THE DEPARTMENT FOR HOLIDAY PAY MADE TO MEAT AND POULTRY INSPECTORS FOR SERVICES PERFORMED ON THAT DATE.

THE LETTER STATES THAT THE AMERICAN MEAT INSTITUTE AND OTHERS HAVE PROTESTED MAKING REIMBURSEMENT BECAUSE THE NOTICE GIVEN TO THE OFFICIAL ESTABLISHMENTS WAS ENTIRELY INADEQUATE TO PERMIT THEM TO MAKE PLANS FOR THEIR OPERATIONS ON DECEMBER 26, 1969, AND ALSO BECAUSE IT IS QUESTIONABLE WHETHER AN EXECUTIVE ORDER DECLARING AN UNUSUAL HOLIDAY CAN AUTOMATICALLY CREATE AN OBLIGATION FOR THE INDUSTRY.

REPRESENTATIVES OF THE MEAT AND POULTRY INDUSTRIES HAVE PRESENTED THEIR VIEWS TO THIS OFFICE BOTH ORALLY AND IN WRITING. VIEWS HAVE ALSO BEEN RECEIVED THROUGH AND FROM MEMBERS OF THE SENATE AND OF THE HOUSE OF REPRESENTATIVES. THESE VIEWS HAVE BEEN FULLY CONSIDERED IN ARRIVING AT OUR DECISION.

FRIDAY, DECEMBER 26, 1969, WAS DECLARED A HOLIDAY WITHIN THE MEANING OF EXECUTIVE ORDER NO. 10358 OF JUNE 9, 1952, AS AMENDED, AND OF ALL STATUTES SO FAR AS THEY RELATE TO THE COMPENSATION AND LEAVE OF EMPLOYEES OF THE UNITED STATES BY EXECUTIVE ORDER NO. 11503, DATED DECEMBER 23, 1969, WHICH PROVIDES IN PERTINENT PART:

EMPLOYEES OF THE SEVERAL EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENTS, AND OTHER GOVERNMENTAL AGENCIES, INCLUDING THE GENERAL ACCOUNTING OFFICE AND THE GOVERNMENT PRINTING OFFICE, AND THEIR FIELD SERVICES (EXCEPT THOSE EMPLOYEES OF THE DEPARTMENT OF STATE, THE DEPARTMENT OF DEFENSE, OR OTHER AGENCIES WHO IN THE JUDGMENT OF THEIR AGENCY HEADS SHOULD BE AT THEIR POSTS OF DUTY FOR NATIONAL SECURITY OR OTHER PUBLIC REASONS, AND THOSE EMPLOYEES WHOSE ABSENCE FROM DUTY WOULD BE INCONSISTENT WITH THE PROVISIONS OF EXISTING LAW) SHALL BE EXCUSED FROM DUTY ON FRIDAY, DECEMBER 26, 1969, THE DAY FOLLOWING CHRISTMAS DAY. SUCH DAY SHALL BE CONSIDERED A HOLIDAY WITHIN THE MEANING OF EXECUTIVE ORDER NO. 10358 OF JUNE 9, 1952, AS AMENDED, AND OF ALL STATUTES SO FAR AS THEY RELATE TO THE COMPENSATION AND LEAVE OF EMPLOYEES OF THE UNITED STATES.

SECTION 19 OF THE "POULTRY PRODUCTS INSPECTION ACT," PUBLIC LAW 85 172, APPROVED AUGUST 28, 1957, 71 STAT. 441, 448 (RENUMBERED AS SECTION 25 BY &1BLIC LAW 90-492, SECTION 17, AUG. 18, 1968, 82 STAT. 805) 21 U.S.C. 468 IS APPLICABLE TO THE POULTRY INSPECTION PROGRAM. IT PROVIDES (QUOTING FROM UNITED STATES CODE):

THE COST OF INSPECTION RENDERED UNDER THE REQUIREMENTS OF THIS CHAPTER, SHALL BE BORNE BY THE UNITED STATES, EXCEPT THAT THE COST OF OVERTIME AND HOLIDAY WORK PERFORMED IN ESTABLISHMENTS SUBJECT TO THE PROVISIONS OF THIS CHAPTER AT SUCH RATES AS THE SECRETARY MAY DETERMINE SHALL BE BORNE BY SUCH ESTABLISHMENTS. SUMS RECEIVED BY THE SECRETARY IN REIMBURSEMENT FOR SUMS PAID OUT BY HIM FOR SUCH PREMIUM PAY WORK SHALL BE AVAILABLE WITHOUT FISCAL YEAR LIMITATION TO CARRY OUT THE PURPOSES OF THIS SECTION.

THE ACT OF JULY 24, 1919, CH. 26, 41 STAT. 241, 7 U.S.C. 394, APPLICABLE TO THE MEAT INSPECTION PROGRAM PROVIDES:

THE SECRETARY OF AGRICULTURE IS AUTHORIZED, IN HIS DISCRETION, TO PAY EMPLOYEES OF THE BUREAU OF ANIMAL INDUSTRY EMPLOYED IN ESTABLISHMENTS SUBJECT TO THE PROVISIONS OF THE MEAT INSPECTION ACT, FOR ALL OVERTIME WORK PERFORMED AT SUCH ESTABLISHMENTS, AT SUCH RATES AS HE MAY DETERMINE, AND TO ACCEPT FROM SUCH ESTABLISHMENTS WHEREIN SUCH OVERTIME WORK IS PERFORMED REIMBURSEMENT FOR ANY SUMS PAID OUT BY HIM FOR SUCH OVERTIME WORK. AS NOTED IN THE LETTER, THE FUNCTIONS OF THE BUREAU OF ANIMAL INDUSTRY WERE TRANSFERRED TO THE SECRETARY OF AGRICULTURE BY REORGANIZATION PLAN NO. 1, SECTION 301, EFFECTIVE JULY 1, 1947, 12 F. R. 4534, 61 STAT. 952.

THE ACT OF JUNE 5, 1948, CH. 423, 62 STAT. 344, 21 U.S.C. 98, ALSO APPLICABLE TO THE MEAT INSPECTION PROGRAM, PROVIDES (QUOTING FROM UNITED STATES CODE):

THE COST OF INSPECTION RENDERED ON AND AFTER JULY 1, 1948, UNDER THE REQUIREMENTS OF LAWS RELATING TO FEDERAL INSPECTION OF MEAT AND MEAT FOOD PRODUCTS SHALL BE BORNE BY THE UNITED STATES EXCEPT THE COST OF OVERTIME PURSUANT TO SECTION 394 OF TITLE 7.

THE LETTER ALSO STATES THAT:

*** EMPLOYEES GENERALLY RECEIVE PREMIUM PAY FOR OVERTIME AND HOLIDAY WORK PURSUANT TO 5 U.S.C. 5541-5549 (ORIGINALLY ENACTED AS THE FEDERAL EMPLOYEES PAY ACT OF 1945). 5 U.S.C. 5546(B) PROVIDES THAT AN EMPLOYEE WHO PERFORMS WORK ON A HOLIDAY DESIGNATED BY STATUTE OR EXECUTIVE ORDER IS ENTITLED TO TWICE HIS REGULAR PAY. SECTION 5549 EXPRESSLY PROVIDES THAT SECTIONS 5541-5549 SHALL NOT PREVENT PAYMENT FOR OVERTIME SERVICES OR HOLIDAY WORK UNDER SPECIFIED STATUTES, INCLUDING 7 U.S.C. 394, BUT THAT AN EMPLOYEE MAY NOT RECEIVE PREMIUM PAY UNDER SECTIONS 5541-5549 FOR THE SAME SERVICES FOR WHICH HE IS PAID UNDER 7 U.S.C. 394. WHILE 7 U.S.C. 394 AUTHORIZES THE SECRETARY TO SET OVERTIME AND HOLIDAY PAY FOR MEAT INSPECTION EMPLOYEES AT SUCH RATES AS HE MAY DETERMINE (WHICH COULD BE DIFFERENT FROM THOSE PROVIDED IN 5 U.S.C. 5541-5549), THE SECRETARY HAS DETERMINED TO MAKE THE PROVISIONS IN 5 U.S.C. 5541-5549 APPLICABLE TO MEAT INSPECTOR EMPLOYEES, WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE. DEPARTMENT PERSONNEL MANUAL, CHAPTER 550, SUBCHAPTER 1 5.5. THERE IS NO COMPARABLE PROVISION PERMITTING THE SECRETARY TO PAY PREMIUM PAY TO POULTRY INSPECTORS AT SUCH RATES AS HE MAY DETERMINE, AND SUCH EMPLOYEES ARE TREATED AS OTHER FEDERAL EMPLOYEES AND ARE PAID PREMIUM PAY IN ACCORDANCE WITH 5 U.S.C. 5541-5549. IN EFFECT, THEN, MEAT INSPECTORS AND POULTRY INSPECTORS ARE TREATED ALMOST IDENTICALLY FOR PREMIUM PAY PURPOSES.

WE AGREE WITH YOUR CONCLUSIONS THAT SINCE MEAT AND POULTRY INSPECTORS WERE REQUIRED TO WORK ON DECEMBER 26, 1969, THEY ARE ENTITLED TO PREMIUM PAY IN ACCORDANCE WITH THE ABOVE.

IN CONSIDERING WHETHER THE DEPARTMENT CAN RELIEVE ESTABLISHMENTS WHICH RECEIVED POULTRY INSPECTION ON FRIDAY, DECEMBER 26, 1969, FROM REIMBURSING THE DEPARTMENT THE LETTER REFERRED TO THE ABOVE-QUOTED PROVISIONS OF 21 U.S.C. 468 RELATIVE TO POULTRY INSPECTION WHICH SPECIFICALLY PROVIDES THAT "THE COST OF OVERTIME AND HOLIDAY WORK PERFORMED IN ESTABLISHMENTS *** AT SUCH RATES AS THE SECRETARY MAY DETERMINE SHALL BE BORNE BY SUCH ESTABLISHMENTS." THE LETTER ALSO REFERRED TO THAT PART OF H. REPT. NO. 465, 85TH CONG., 1ST SESS., MAY 20, 1957, WHICH REPORTS ON SECTION 19 OF H. R. 6814:

SECTION 19 PROVIDES THAT THE COST OF INSPECTION, EXCEPT OVERTIME, PERFORMED IN OFFICIAL ESTABLISHMENTS SHALL BE BORNE BY THE UNITED STATES. OVERTIME MAY BE PAID TO EMPLOYEES BY THE SECRETARY, BUT THE SECRETARY WILL BE REIMBURSED BY THE ESTABLISHMENT IN WHICH THE OVERTIME OCCURRED. THIS REIMBURSEMENT SHALL BE AVAILABLE TO THE SECRETARY WITHOUT FISCAL YEAR LIMITATION TO CARRY OUT THE PURPOSES OF THE SECTION. THIS WILL PROVIDE CONTINUITY IN THE AVAILABILITY OF FUNDS TO MEET THE OVERTIME DEMANDS OF INDUSTRY AT THE BEGINNING OF THE FISCAL YEAR. APPROPRIATIONS FOR REGULAR INSPECTION WILL NOT BE AUGMENTED BY THIS PROVISION.

LANGUAGE SIMILAR TO THAT APPEARING IN SECTION 19 OF H. R. 6814 HAD APPEARED IN EARLIER VERSIONS OF PROPOSED LEGISLATION RELATING TO INSPECTION OF POULTRY AND POULTRY PRODUCTS. SEE FOR EXAMPLE THAT PART OF S. REPT. NO. 2622, 84TH CONG., 2ND SESS., JULY 18, 1956, WHICH REPORTED ON SECTION 20 OF S. 4243 IN LANGUAGE ALMOST IDENTICAL TO THE ABOVE. STATED IN THE LETTER SIMILAR LANGUAGE IS ALSO CONTAINED IN S. REPT. NO. 195, 85TH CONG., 1ST SESS., MARCH 28, 1957, IN CONNECTION WITH SIMILAR PROVISIONS IN S. 1747, WHICH, WITH MODIFICATIONS, PASSED IN LIEU OF H. R. 6814. THE STATEMENT OF THE MANAGERS ON THE PART OF THE HOUSE IN CONNECTION WITH THE CONFERENCE REPORT ON S. 1747 AS REPORTED IN H. REPT. NO. 1170, 85TH CONG., 1ST SESS., AUGUST 14, 1957, IS:

THE CONFERENCE BILL FOLLOWS SUBSTANTIALLY THE WORDING OF THE HOUSE AMENDMENT WITH THE ADDITION OF LANGUAGE TO MAKE IT CLEAR THAT THE RATES OF OVERTIME AND HOLIDAY PAY TO BE CHARGED PROCESSING ESTABLISHMENTS MAY BE ESTABLISHED AT A REASONABLE UNIFORM RATE INSTEAD OF BEING FIGURED ON AN INDIVIDUAL BASIS. THE HOLIDAYS TO BE COUNTED WITH RESPECT TO FEDERAL EMPLOYEES ARE THOSE WHICH APPLY TO FEDERAL CIVIL-SERVICE EMPLOYEES EITHER BY LAW OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. HOLIDAYS TO BE COUNTED WITH RESPECT TO STATE EMPLOYEES WILL BE THOSE LEGALLY OBSERVED BY EMPLOYEES OF THAT STATE.

NOTHING FURTHER SPECIFIC HAS BEEN FOUND IN THE LEGISLATIVE HISTORY OF 21 U.S.C. 468 WHICH WOULD BE HELPFUL.

CURRENT REGULATIONS BASED UPON 21 U.S.C. 468 AND FOUND IN 7 CFR 81.171(A) AND (B) PROVIDE IN PERTINENT PART:

(A) WHEN AN OFFICIAL ESTABLISHMENT REQUIRES INSPECTION SERVICE ON A HOLIDAY, SUCH SERVICE IS CONSIDERED HOLIDAY WORK. THE OFFICIAL ESTABLISHMENT SHALL, IN ADVANCE OF SUCH HOLIDAY WORK, REQUEST THE INSPECTOR IN CHARGE TO FURNISH INSPECTION SERVICE DURING SUCH PERIOD AND SHALL PAY THE SECRETARY THEREFOR AT THE RATE OF $8.00 PER HOUR. SERVICE IN EXCESS OF 8 HOURS FOR THAT DAY IS CONSIDERED OVERTIME AND SHALL BE PAID FOR AT THE OVERTIME RATE.

(B) HOLIDAYS FOR FEDERAL EMPLOYEES SHALL BE THE 1ST DAY OF JANUARY, 22ND OF FEBRUARY, 30TH DAY OF MAY, 4TH OF JULY, 1ST MONDAY OF SEPTEMBER, 11TH DAY OF NOVEMBER, 4TH THURSDAY OF NOVEMBER, 25TH DAY OF DECEMBER, AND ANY OTHER CALENDAR DAY DESIGNATED AS A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER. *** SO FAR AS IS HERE MATERIAL, THE SUBSTANCE OF 7 CFR 81.171(A) AND (B) AS QUOTED ABOVE HAS READ SUBSTANTIALLY THE SAME SINCE THE NOTICE OF THE PROPOSED REGULATIONS TO BE ISSUED BY THE SECRETARY OF AGRICULTURE UNDER AUTHORITY CONTAINED IN THE POULTRY PRODUCTS INSPECTION ACT WERE PUBLISHED IN THE FEDERAL REGISTER ON NOVEMBER 22, 1957, 32 F. R. 9351, 9366.

CLEARLY UNDER THE APPLICABLE PROVISIONS OF LAW AND THE LEGISLATIVE HISTORY QUOTED ABOVE, CONGRESS INTENDED THAT THE COSTS OF OVERTIME AND HOLIDAY WORK PERFORMED IN ESTABLISHMENTS SUBJECT TO THE PROVISIONS OF THE POULTRY PRODUCTS INSPECTION ACT MUST BE BORNE BY THE ESTABLISHMENTS IN WHICH THE WORK WAS PERFORMED. IT IS ALSO CLEAR THAT WITH RESPECT TO FEDERAL EMPLOYEES THE HOLIDAYS INTENDED INCLUDE THOSE WHICH APPLY TO FEDERAL CIVIL-SERVICE EMPLOYEES EITHER BY LAW OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. THE PROVISIONS OF THE PRESIDENTIAL REGULATIONS NOW AND CONTINUOUSLY HAVE BEEN IN ACCORDANCE THEREWITH. THERE IS NO INDICATION THAT CONGRESS INTENDED THAT THE COSTS OF PUOLTRY INSPECTION ON A HOLIDAY MAY BE SHIFTED FROM THE ESTABLISHMENT IN WHICH THE WORK IS PERFORMED AND BE BORNE BY THE GOVERNMENT OF THE UNITED STATES NOR ARE WE AWARE OF ANY FEDERAL FUNDS BEING BUDGETED OR APPROPRIATED THEREFOR.

WE ARE NOT AWARE OF ANY AUTHORITY OF LAW WHEREBY THE DEPARTMENT OF AGRICULTURE CAN RELIEVE ESTABLISHMENTS WHICH RECEIVED POULTRY INSPECTION ON FRIDAY, DECEMBER 26, 1969, FROM REIMBURSING THE DEPARTMENT FOR HOLIDAY PAY MADE TO PUOLTRY INSPECTORS FOR SERVICES PERFORMED ON THAT DATE.

WITH REFERENCE TO 7 U.S.C. 394 GOVERNING REIMBURSEMENT FOR MEAT INSPECTION THE LETTER POINTS OUT THAT THE LANGUAGE DIFFERS IN CERTAIN RESPECTS FROM THE STATUTORY PROVISIONS OF 21 U.S.C. 468 GOVERNING REIMBURSEMENT FOR POULTRY INSPECTION AS FOLLOWS:

FIRST 7 U.S.C. 394 PROVIDES FOR REIMBURSEMENT FOR "OVERTIME" WORK WHEREAS 21 U.S.C. 468 SPEAKS OF REIMBURSEMENT FOR "OVERTIME AND HOLIDAY" WORK. HOWEVER, WHILE 7 U.S.C. 394 USES ONLY THE TERM "OVERTIME", THE DEPARTMENT HAS BILLED MEAT PACKERS FOR "HOLIDAY" SERVICE AS WELL AS "OVERTIME" SERVICE FOR A NUMBER OF YEARS (AT LEAST BACK TO 1945) AND *** THE PRESENT REGULATIONS ISSUED UNDER 7 U.S.C. 394 CONSTRUE THE TERM TO INCLUDE "HOLIDAY" WORK AS WELL AS "OVERTIME" WORK.

SECOND, 7 U.S.C. 394 PROVIDES THAT THE SECRETARY "IS AUTHORIZED, IN HIS DISCRETION *** TO ACCEPT FROM SUCH ESTABLISHMENTS *** REIMBURSEMENT" WHILE 21 U.S.C. 468 STATES THAT REIMBURSEMENTS FOR POULTRY INSPECTION "SHALL BE BORNE BY SUCH ESTABLISHMENTS." THE PROVISIONS OF 7 U.S.C. 394 WERE ENACTED INTO LAW IN 1919. FROM SUCH TIME UNTIL 1947, THE COST OF INSPECTION, EXCEPT FOR THE OVERTIME WORK, HAD BEEN BORNE BY THE GOVERNMENT. IN 1947, CONGRESS INCLUDED A PROVISION IN THE DEPARTMENT OF AGRICULTURE APPROPRIATIONS ACT OF 1948, PUBLIC LAW 80-266, WHICH PROVIDED FOR THE PAYMENT OF ALL MEAT INSPECTION COSTS BY PACKERS ON A FEE BASIS. THIS PROVISION WAS IN EFFECT FOR ONLY ONE YEAR. IN 1948, THE PROVISIONS OF PUBLIC LAW 80-610 (21 U.S.C. 98, QUOTED ABOVE) WERE ENACTED. WHEN S. 2256, WHICH LATER WAS ENACTED AS PUBLIC LAW 80-610 (21 U.S.C. 98), WAS FIRST INTRODUCED, IT DID NOT CONTAIN THE LANGUAGE "EXCEPT THE COST OF OVERTIME PURSUANT TO THE ACT OF JULY 24, 1919 (7 U.S.C. 394)." THE DEPARTMENT OF AGRICULTURE IN ITS REPORT TO SENATE COMMITTEE ON AGRICULTURE AND FORESTRY ON S. 2256, STATED AS FOLLOWS:

"THE MAINTENANCE OF AN EFFECTIVE FEDERAL MEAT-INSPECTION SERVICE DEPENDS PRIMARILY ON THE EXISTENCE OF ADEQUATE FUNDS TO EMPLOY A SUFFICIENT NUMBER OF INSPECTORS TO COVER PROPERLY ALL MEAT-PACKING PLANTS ENGAGED IN INTERSTATE COMMERCE. WHETHER FUNDS ARE OBTAINED BY APPROPRIATIONS MADE BY THE CONGRESS OR FROM FEES COLLECTED FROM PACKERS WHOSE PRODUCTS ARE INSPECTED IS OF SECONDARY IMPORTANCE TO THE SERVICE. "THE MEAT-INSPECTION SERVICE HAS FUNCTIONED QUITE SATISFACTORILY UNDER THE PACKER-PAYING ARRANGEMENT. ENACTMENT OF S. 2256 MIGHT HAVE THE UNFORTUNATE RESULT OF MAKING THE METHOD TO BE USED IN FINANCING THE MEAT-INSPECTION PROGRAM A POINT OF CONTROVERSY FROM YEAR TO YEAR. HOWEVER, THIS DEPARTMENT HAS FUNDAMENTALLY NO OBJECTION TO EITHER OF THE TWO METHODS OF FINANCING MET- INSPECTION ACTIVITIES.

"SHOULD THE CONGRESS DETERMINE THAT THE MEAT-INSPECTION SERVICE SHOULD BE RESTORED TO AN APPROPRIATION BASIS, THE BILL OF S. 2256 SHOULD BE AMENDED TO ASSURE CONTINUATION OF THE AUTHORITY OF THE ACT OF JULY 24, 1919 (7 U.S.C. 394), WHICH PROVIDES FOR PACKER PAYMENT OF OVERTIME SERVICES, AND THUS PLACE THE INSPECTION ON THE SAME BASIS AS IN FISCAL YEAR 1947, AND PRIOR YEARS. THIS MAY BE ACCOMPLISHED BY ADDING AT THE END OF THE BILL AS A PART OF THE SENTENCE, THE FOLLOWING:

"EXCEPT THE COST OF OVERTIME PURSUANT TO THE ACT OF JULY 24, 1919 (7 U.S.C. 394)." THIS LANGUAGE SUGGESTED BY THE DEPARTMENT WAS ADOPTED AND INCLUDED IN THE BILL AS ENACTED.

CURRENT REGULATIONS BASED UPON 7 U.S.C. 394 AND FOUND IN 9 CFR 307.4 PROVIDE:

THE MANAGEMENT OF AN OFFICIAL ESTABLISHMENT, AN IMPORTER, OR AN EXPORTER DESIRING TO WORK UNDER CONDITIONS WHICH WILL REQUIRE THE SERVICES OF AN EMPLOYEE OF THE PROGRAM ON ANY SATURDAY, SUNDAY, OR HOLIDAY, OR FOR MORE THAN 8 HOURS ON ANY OTHER DAY SHALL, SUFFICIENTLY IN ADVANCE OF THE PERIOD OF OVERTIME, REQUEST THE OFFICER IN CHARGE OR HIS ASSISTANT TO FURNISH INSPECTION SERVICE DURING SUCH OVERTIME PERIOD, AND SHALL PAY THE ADMINISTRATOR THEREFOR $8 PER HOUR TO REIMBURSE THE SERVICE FOR THE COST OF THE INSPECTION SERVICES SO FURNISHED. IT WILL BE ADMINISTRATIVELY DETERMINED FROM TIME TO TIME WHICH DAYS CONSTITUTE HOLIDAYS.

AS STATED IN YOUR LETTER, 7 U.S.C. 394 USES ONLY THE TERM "OVERTIME" AND MAKES NO REFERENCE TO "HOLIDAY" PAY. HOWEVER, WHEN THE RULES AND REGULATIONS OF THE GIVERNMENT WERE CODIFIED AS OF JUNE 1, 1938, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11 OF THE FEDERAL REGISTER ACT, AS AMENDED BY THE ACT OF JUNE 19, 1937, 50 STAT. 304, 9 CFR 7.5, WITH REFERENCE TO OVERTIME WORK OF MEAT INSPECTION EMPLOYEES PROVIDED IN PART:

(B) ALL WORK ON SUNDAYS AND ON NEW YEAR'S DAY, WASHINGTON'S BIRTHDAY, MEMORIAL DAY, INDEPENDENCE DAY, LABOR DAY, THANKSGIVING DAY, CHRISTMAS, OR THE DAYS LEGALLY CELEBRATED IN LIEU OF SAID NATIONAL HOLIDAYS, OR ON NATIONAL HOLIDAYS SO DECLARD BY EXECUTIVE ORDER, SHALL BE PAID FOR AS OVERTIME; *** THE SECTION ALSO PRESCRIBED THE PROCEDURE FOR EFFECTING REIMBURSEMENT FROM AN ESTABLISHMENT. SO FAR AS IS HERE MATERIAL, SUBSTANTIALLY THE PRESENT LANGUAGE OF 9 CFR 307.4 WAS PRESCRIBED ON MARCH 29, 1945. SEE 10 F. R. 3319. SUCH LANGUAGE HAS BEEN USED CONTINUOUSLY SINCE THAT TIME.

CHAPTER 550, SUBCHAPTER 1-5.5C(2) OF THE DEPARTMENT PERSONNEL MANUAL OF THE DEPARTMENT OF AGRICULTURE PROVIDES:

WHEN THE MANAGEMENT OF AN ESTABLISHMENT DESIRES TO OPERATE ON SATURDAY OR SUNDAY OR A HOLIDAY, OR FOR MORE THAN 8 WORKING HOURS OF ANY DAY, MONDAY THROUGH FRIDAY, UNDER CONDITIONS WHICH WILL REQUIRE THE SERVICES OF MEAT INSPECTION EMPLOYEES OR VIRUS-SERUM INSPECTORS, IT SHALL GIVE SUFFICIENT ADVANCE NOTICE TO THE INSPECTOR IN CHARGE OR HIS ASSISTANT, REQUESTING SUCH SERVICE. UPON RECEIPT OF NOTICE FROM AN AUTHORIZED OFFICIAL OF THE DEPARTMENT, THE ESTABLISHMENT SHALL REIMBURSE THE SECRETARY OF AGRICULTURE FOR THE COST OF ALL OVERTIME AND SHALL PAY FOR THE COST OF ALL HOLIDAY WORK TO THE EXTENT THAT THE COST OF SUCH HOLIDAY WORK MAY BE IN EXCESS OF STRAIGHT TIME.

CHAPTER 550, SUBCHAPTER 1-5.5E OF THAT MANUAL PROVIDES:

"HOLIDAY" HAS THE SAME MEANING UNDER THESE RULES AS IT HAS IN EXECUTIVE ORDER 10358 AND 5 U.S.C. 6103. THE PROVISIONS OF THAT ORDER AND OF THE CODE SHALL BE FOLLOWED WITH RESPECT TO THE OBSERVANCE OF HOLIDAYS.

THE LONGSTANDING INTERPRETATION OF THE STATUTE BY THE DEPARTMENT OF AGRICULTURE AS EXPRESSED IN ITS REGULATIONS ARE ENTITLED TO GREAT WEIGHT. SEE UDALL V TALLMAN, 380 U.S. 1, 16, 85 S. CT. 792, 13 L. ED. 2D 616 (1965); NORWEGIAN NITROGEN PRODUCTS CO. V UNITED STATES, 288 U.S. 294, 315, 53 S. CT. 350, 77 L. ED. 512 (1933); CRAWFORD V UNITED STATES, 179 CT. CL. 128, 376 F. 2D 266 (1967); PHILADELPHIA TELEVISION BROADCASTING CO. V FEDERAL COMMUNICATIONS COMMISSION, 123 U.S. APP. D. C. 298, 359 F. 2D 282 (1966); DEUSING V UDALL, 121 U.S. APP. D. C. 370, 350 F. 2D 748 (1965); HUNT FOOD AND INDUSTRIES, INC. V FEDERAL TRADE COMMISSION, 286 F. 2D 803 (9 CIR. 1961).

IN UDALL V TALLMAN, SUPRA, THE SUPREME COURT STATED:

WHEN FACED WITH A PROBLEM OF STATUTORY CONSTRUCTION, THIS COURT SHOWS GREAT DEFERENCE TO THE INTEPRETATION GIVEN THE STATUTE BY THE OFFICERS OR AGENCY CHARGED WITH ITS ADMINISTRATION. "TO SUSTAIN THE COMMISSION'S APPLICATION OF THIS STATUTORY TERM, WE NEED NOT FIND THAT ITS CONSTRUCTION IS THE ONLY REASONABLE ONE, OR EVEN THAT IT IS THE RESULT WE WOULD HAVE REACHED HAD THE QUESTION ARISEN IN THE FIRST INSTANCE IN JUDICIAL PROCEEDINGS." UNEMPLOYMENT COMM'N V ARAGON, 329 U.S. 143, 153. SEE ALSO, E.G., GRAY V POWELL 314 U.S. 402; UNIVERSAL BATTERY CO. V UNITED STATES, 281 U.S. 580, 583. "PARTICULARLY IS THIS RESPECT DUE WHEN THE ADMINISTRATIVE PRACTICE AT STAKE 'INVOLVES A CONTEMPORANEOUS CONSTRUCTION OF A STATUTE BY THE MEN CHARGED WITH THE RESPONSIBILITY OF SETTING ITS MACHINERY IN MOTION, OF MAKING THE PARTS WORK EFFICIENTLY AND SMOOTHLY WHILE THEY ARE YET UNTRIED AND NEW.'" POWER REACTOR CO. V ELECTRICIANS, 367 U.S. 396, 408. WHEN THE CONSTRUCTION OF AN ADMINISTRATIVE REGULATION RATHER THAN A STATUTE IS IN ISSUE, DEFERENCE IS EVEN MORE CLEARLY IN ORDER.

"SINCE THIS INVOLVES AN INTERPRETATION OF AN ADMINISTRATIVE REGULATION A COURT MUST NECESSARILY LOOK TO THE ADMINISTRATIVE CONSTRUCTION OF THE REGULATION O REGULATION IF THE MEANING OF THE WORDS USED IS IN DOUBT. *** (THE ULTIMATE CRITERION IS THE ADMINISTRATIVE INTERPRETATION, WHICH BECOMES OF CONTROLLING WEIGHT UNLESS IT IS PLAINLY ERRONEOUS OR INCONSISTENT WITH THE REGULATION. BOWLES V SEMINOLE ROCK CO., 325 U.S. 410, 413-414.

"IT MAY BE ARGUED THAT WHILE THESE FACTS AND RULINGS PROVE A USAGE THEY DO NOT ESTABLISH ITS VALIDITY. BUT GOVERNMENT IS A PRACTICAL AFFAIR INTENDED FOR PRACTICAL MEN. BOTH OFFICERS, LAW-MAKERS AND CITIZENS (ATURALLY ADJUST THEMSELVES TO ANY LONG-CONTINUED ACTION OF THE EXECUTIVE DEPARTMENT--ON THE PRESUMPTION THAT UNAUTHORIZED ACTS WOULD NOT HAVE BEEN ALLOWED TO BE SO OFTEN REPEATED AS TO CRYSTALLIZE INTO A REGULAR PRACTICE. THAT PRESUMPTION IS NOT REASONING IN A CIRCLE BUT THE BASIS OF A WISE AND QUIETING RULE THAT IN DETERMINING THE MEANING OF A STATUTE OR THE EXISTENCE OF A POWER, WEIGHT SHALL BE GIVEN TO THE USAGE ITSELF--EVEN WHEN THE VALIDITY OF THE PRACTICE IS THE SUBJECT OF INVESTIGATION." UNITED STATES V MIDWEST OIL CO., 236 U.S. 459, 472-473.

ANY OBJECTIONS WHICH MAY HAVE BEEN MADE BY THOSE CONCERNED TO REIMBURSING THE DEPARTMENT OF AGRICULTURE FOR PAYMENTS MADE BY THE DEPARTMENT ON ACCOUNT OF HOLIDAY SERVICES PERFORMED FOR MEAT INSPECTION IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE DEPARTMENT DO NOT APPEAR TO HAVE BEEN PURSUED TO THE POINT OF DECISION.

IN VIEW OF THE ABOVE IT IS CONCLUDED THAT THE COST OF HOLIDAY SERVICES, PERFORMED FOR MEAT INSPECTION INCLUDING THE COST OF SERVICES PERFORMED ON A HOLIDAY BY EXECUTIVE ORDER MUST BE BORNE BY THE ESTABLISHMENTS IN WHICH THE WORK WAS PERFORMED. AS IN THE CASE OF POULTRY INSPECTION, THERE IS NO INDICATION THAT CONGRESS INTENDED THAT THE COSTS OF MEAT INSPECTION ON A HOLIDAY MAY BE SHIFTED FROM THE ESTABLISHMENT IN WHICH THE WORK IS PERFORMED AND BE BORNE BY THE GOVERNMENT OF THE UNITED STATES. ALSO AS IN THE CASE OF POULTRY INSPECTION, WE DO NOT KNOW OF ANY AUTHORITY OF LAW WHEREBY THE DEPARTMENT OF AGRICULTURE CAN RELIEVE ESTABLISHMENTS WHICH RECEIVED INSPECTION ON FRIDAY, DECEMBER 26, 1969, FROM REIMBURSING THE DEPARTMENT FOR HOLIDAY PAY MADE TO MEAT INSPECTORS FOR SERVICES PERFORMED ON THAT DATE.

IN ARRIVING AT OUR CONCLUSION AS TO REIMBURSEMENT FOR THE COST OF BOTH MEAT AND POULTRY INSPECTION WE ARE NOT UNMINDFUL OF THE FACT THAT THE SHORT PERIOD OF NOTICE IN THIS INSTANCE MAY HAVE PRECLUDED A CHOICE OF CLOSING OR KEEPING OPEN AN ESTABLISHMENT WHICH CHOICE MIGHT HAVE BEEN AVAILABLE IF A LONGER PERIOD OF NOTICE HAD BEEN GIVEN. HOWEVER, IN THE ABSENCE OF ANY OTHER AUTHORITY TO GRANT RELIEF, RELIEF IF ANY SHALL NECESSARILY HAVE TO BE BY WAY OF CONGRESSIONAL ENACTMENT.