                                                               June 2 0 , 1978



78-34     MEMORANDUM OPINION FOR THE GENERAL
          COUNSEL, DEPARTMENT OF AGRICULTURE

          Advisory Committees— Federal Meat Inspection Act
          (21 U.S.C. § 661(a)(4))— Poultry Products Inspection
          Act (21 U.S.C. § 454(a)(4))


   This responds to your Department’s request for our opinion regarding the
role and composition of certain advisory committees provided for under the
Federal Meat Inspection Act and Poultry Products Inspection Act. Two issues
are presented: (1) whether the Secretary of Agriculture must appoint and
consult with advisory committees prior to undertaking certain kinds of actions
under the Acts; and (2) whether committee membership must be limited to
members of State agencies as expressly provided in the Acts, or whether the
Federal Advisory Committee Act would permit a more broadly representative
membership. We conclude that, despite the language of discretion used in
connection with the appointment of advisory committees under the two Acts,
where specific reference is made in mandatory terms to consultation by the
Secretary with such committees, creation and subsequent consultation is a
necessary predicate to the specified action by the Secretary. We also conclude
that so long as State agencies are adequately represented, membership may be
broadened in keeping with the Federal Advisory Committee Act to insure
balanced representation of pertinent interest in light of the functions of the
committees. We do not, however, believe that Title XVIII of the Food and
Agriculture Act of 1977 is applicable.

                    I. Need for Advisory Committees
  Section 301(a)(4) of the Federal Meat Inspection Act (FMIA) (81 Stat. 597,
21 U.S.C. § 661(a)(4)), enacted in 1967, reads as follows:
    (4) The Secretary [of Agriculture] may appoint advisory commit­
    tees consisting of such representatives of appropriate State agencies
    as the Secretary and the State agencies may designate to consult with
    him concerning State and Federal programs with respect to meat
    inspection and other matters within the scope of this Act, including

                                     135
       evaluating State programs for purposes of this Act and obtaining,
       better coordination and more uniformity among the State programs
       and between the Federal and State programs and adequate protection
       of consumers.
  Its counterpart, § 5(a)(4) of the Poultry Products Inspection Act (PPIA) (82
 Stat. 797, 21 U.S.C. § 454(a)(4)), enacted the following year, contains
 identical language with respect to poultry product inspection programs. Various
 provisions of the two Acts are, however, formulated in language which on its
 face appears to require the Secretary to consult with an appropriate advisory
 committee concerning the following matters: prescription of labeling and
 definitional standards relating to covered articles,1 issuance of regulations
 concerning handling of meat and meat products by retail establishments with
 minimal involvement in interstate commerce2 imposition of inspection,
 recordkeeping, and registration requirements and regulations on persons not
 engaged in commerce concerning transportation and importation of dead,
 dying, disabled, or diseased animals,3 provision of advice, technical and
 financial assistance to State programs,4 and Federal action to prevent produc­
 tion of adulterated meat or poultry for distribution within a State.5 Two
 interpretations of this mixture of discretionary and mandatory language are
 nevertheless possible: (1) creation of and consultation with such a committee is
a condition precedent to undertaking actions by the Secretary of the sort
specified; or (2) consultation is required only where a committee has, in the
Secretary’s discretion, been created. While the former view derives support
from the Acts’ structure and legislative history, no comparable case can be
made for the latter.
     At the outset, no practical explanation is apparent to support the latter
interpretation, which assumes that Congress intended the mandatory use of an
optional committee only if the committee has been created. Indeed, it seems
clear that no important policy objective would be served on a uniform basis by
such a haphazard approach, if the latter interpretation is adopted. It is,
moreover, noteworthy that a rational pattern may be discerned from the
scattered references to mandatory use of advisory committees; Congress
apparently intended to insure proper inspection of meat and poultry where
interstate commerce was implicated, but also endeavored to limit Federal
intrusion where the States themselves had matters under control. To the extent
that it does not impede necessary Federal action, such mandatory use of
advisory committees is in keeping with this goal.
    The legislative history supports this view. For the most part the committee
reports simply track the language of the statutes as enacted. See H. Rept. No.
653, 90th Cong., 1st sess. 7, 17, 26 (1967); S. Rept. No.799, 90th Cong., 1st
sess. 16, 17 (1967) (FMIA); H. Rept. No. 1333, 90th Cong., 2d sess. 18, 22,

  'See   FMIA    §   7(c), 21 U .S .C . § 607(c); PPIA § 8(b), 21 U .S .C . § 457(b).
 2See    FM IA   §   24, 21 U .S .C . § 624; (no PPIA counterpart).
 3See    FM IA   §   205, 21 U .S .C . § 645; PPIA § 11(e), 21 U .S.C.. § 460(e).
 *See    FM IA   §   301(a)(3), 21 U .S .C . § 661(a)(3); PPIA § 5(a)(3), 21 U .S .C . § 454(a)(3).
 sSee    FM IA   §   301(c)(1), 21 U .S .C . § 661(c)(1); PPIA § 5(c)(1), 21 U .S .C . § 454(c)(1).

                                                    136
25 (1968); S. Rept. No. 1449, 90th Cong., 2d sess. 15 (1968) (PPIA). At
some points, however, they are more revealing. Thus, referring to § 11(e) of
the Poultry Products Inspection Act, the House committee stated:
        The inclusion of interstate operations within these surveillance
     programs is possible when it is determined that the State does not
     have and does not exercise authority at least equal to that of the
     Federal Government over records, registrations, and distribution of
     ‘4-D’ poultry, its parts or carcasses. This action could be taken only
     after consultation with appropriate State authorities.
A similar concern that the Federal Government do what was necessary without
preempting the jurisdiction of the States over interstate commerce is apparent in
the House committee report on the Federal Meat Inspection Act. See H. Rept.
No. 653, supra, at 5. Based on this evidence, we believe that the provisions of
the two Acts should be read literally so as to require consultation with State
advisory committees before the Secretary undertakes the specified actions.

                 II. Composition of Advisory Committees
   As the previously quoted language of § 301(a)(4) of the Federal Meat
Inspection Act and its counterpart, § 5(a)(4) of the Poultry Products Inspection
Act, reveals, advisory committees are to be composed of “ such representatives
of appropriate State agencies as the Secretary and the State agencies may
designate.” While this language on its face appears to contemplate committees
comprised of official State representatives, it should also be noted that the
statute is rather general in its terms and does not specify the number of
committee members or reveal any special concern for the manner of their
selection so long as the States’ interests are represented.
   It is our view that this statutory mandate may be observed while at the same
time complying with the spirit of the Federal Advisory Committee Act. It
should first be noted that the Act’s rather fragmented structure provides
grounds for some doubt as to whether, on its face, it is to apply in the rather
unusual circumstances here presented. Section 5(c), 5 U.S.C. App. I § 5(c)
(1976), provides that the guidelines regarding balanced membership contained
in subsection (b) of that section are to be followed, to the extent they are
applicable, by the President, agency heads, and other Federal officials in
“ creating” advisory committees. Since, as we have previously concluded, the
advisory committees here in question must be available for mandatory
consultation by the Secretary, they have, in effect, a duration provided by law,
and should not have been subject to the termination provisions of § 14(a)(2)(B)
of the Act. Thus, the Secretary will, in effect, need to reconstitute, rather than
“ create,” the committees, and § 5(c) of the Federal Advisory Committee Act,
on its face, would not appear to control.
   Nevertheless, the intent of Congress in enacting the Advisory Committee Act
leads us to believe that allowing for more broad-based membership while
retaining adequate representation of State agencies would be appropriate.
Section 4(a) of the Act provides: “ The provisions of this Act. . . shall apply to

                                       137
each advisory committee except to the extent that any Act of Congress
establishing any such advisory committee specifically provides otherwise.”
 Coupled with this intent that the Act be given a broad and uniform application
 is Congress’ repeatedly stated concern that committees henceforth are to
provide balanced representation. See H. Rept. No. 1017, 92d Cong., 2d sess.
6, 10, 15 (1972); S. Rept. No. 1098, 92d Cong., 2d sess. 5 (1972).
    The spirit of the Advisory Committee Act and its requirement of balanced
membership ‘‘in terms of the points of view represented and the functions to be
performed by the advisory committee,” 5 U.S.C. App. I § 5(b)(2), in no way
conflict with the provisions of the FMIA and PPIA with regard to committee
composition and function. Therefore, in our judgment, when the committees
are reconstituted, more broadly representative members might properly be
included in addition to representatives of State agencies.
   There is the further question whether advisory committees under the FMIA
and PPIA would be subject to Title XVIII of the Food and Agriculture Act of
1977, 7 U.S.C. § 2281 et seq. Since the definition of “ advisory committee”
for purposes of title XVIII excludes committees “ established by statute” and
since nothing in that A ct’s legislative history suggests a contrary reading (see S.
Rept. No. 180, 95th Cong., 1st sess. 182 (1977); H. Rept. No. 599, 95th
Cong., 1st sess. 247 (1977)), we conclude that the provisions of § 1805(c), 7
U.S.C. § 2285(c), relating to membership balance on Department of Agricul­
ture “ advisory committees,” do not apply.

                                                 John M . H   arm on

                                             Assistant Attorney General
                                                        Office o f Legal Counsel




                                       138
