After USDA Antideficiency Act violation, lawmakers push bill for more relocation oversight

Although USDA met its obligations to notify Congress about a transfer of funds to support NIFA’s relocation, the department did not meet the same requirements...

Alongside staff attrition and lost productivity, the Department of Agriculture’s relocation of the National Institute of Food and Agriculture (NIFA) and the Economic Research Service (ERS) in 2019 had yet another consequence — prior to the move, USDA violated the Antideficiency Act (ADA) by failing to meet congressional notification requirements.

The Government Accountability Office, in a decision issued earlier this month, found that although USDA met its obligations to notify Congress about a transfer of funds to support NIFA’s relocation, the department did not meet the same requirements for ERS’ relocation.

The GAO review, which Reps. Jennifer Wexton (D-Va.), Gerry Connolly (D-Va.) and Don Beyer (D-Va.) requested, came after USDA’s planning and subsequent relocation of both NIFA and ERS facilities from the Washington, D.C. area to Kansas City, Missouri, during the Trump administration.

In light of the ADA violation, the three Virginia lawmakers are pushing Congress to take up the Conducting Oversight to Secure Transparency (COST) of Relocations Act, a bill that would require any agency that plans to relocate to conduct and publish a comprehensive cost-benefit analysis of the proposed move before executing it.

“The new GAO legal review of the relocation emphasizes the need to implement additional common-sense guardrails to ensure due diligence is conducted before any agency relocation,” the lawmakers said in a press release.

The bill has not been scheduled for committee markup, but it’s “certainly something we’re continuing to push for, especially considering this new legal review,” a Wexton staff member said in an email to Federal News Network.

The COST of Relocations Act currently has six Democratic co-sponsors, and Sen. Chris Van Hollen (D-Md.) initially introduced the companion legislation.

For USDA, the new GAO decision deals with the funding associated with the relocations and considers whether USDA properly notified the House and Senate Appropriations Committees, before transferring appropriated funding from the Office of the Secretary to a vendor contract to support the relocation.

The Antideficiency Act, in its most recent version from 1982, intends to prevent agencies from spending money either in excess of, or in advance of, Congress’ appropriations. It also imposes criminal penalties on any federal employee, officer or executive who violates the ADA.

Under the ADA, agencies are required to notify both the House and Senate Appropriations Committees before transferring appropriated funds from one area to another. The notification requirement came up for USDA when, in October 2018, the department obligated close to $340,000 of its appropriated funds in the Office of the Secretary to a contract with a private sector vendor for relocation planning assistance.

After announcing the two relocations in 2018, USDA sent letters to both the House and Senate Agriculture Appropriations Subcommittees of its proposal, GAO said. Those letters detailed the funding amount that USDA planned to transfer.

But the timing of the congressional notifications complicated the issue. USDA had notified the two committees of its planned appropriations transfer in the fiscal year prior to the actual transfer of the funds. That led to a violation of the Antideficiency Act for ERS, but not for NIFA, GAO said.

Because the amount transferred to NIFA was available to USDA without time-sensitive limitations, the 2018 notification from USDA still satisfied the ADA’s legal requirements, GAO said. But the funding that USDA transferred to ERS was appropriated under a fiscal 2019 continuing resolution, diverting from USDA’s outline in its initial congressional notification. USDA’s failure to send the two committees an update violated the ADA, GAO said, since the initial notice only concerned since-expired funding from the 2018 Agriculture Appropriations Act.

“The only written notification that USDA provided was in its Aug. 9, 2018, letter to the Appropriations Committees, approximately 50 days prior to the enactment of the 2019 continuing resolution,” GAO said in the decision. “This notification referred only to amounts appropriated in the 2018 Agriculture Appropriations Act and made no mention of the 2019 continuing resolution.”

USDA, though, asserted in response to GAO that the initial letter was sufficient notification to the committees.

GAO disagreed with USDA’s assertion and said that the timeline of events — the enactment of the fiscal 2019 continuing resolution, followed by the expiration of USDA’s previous appropriations and the subsequent start of fiscal 2019 — made USDA’s initial notification “insufficient” to fulfill the ADA’s legal obligations. GAO said USDA should report its violation of the Antideficiency Act.

A spokesperson for USDA emphasized that the relocation decision occurred during the previous administration.

“USDA remains committed to making the department a great place to work for our employees across the nation and positioning them to continue producing the science and data that our nation’s agriculture industry depends on,” the spokesperson said in an email to Federal News Network.

The new decision from GAO follows several other reports on the 2019 relocations of NIFA and ERS. In 2022, GAO found that although USDA had outlined a plan for narrowing down its selection to Kansas City, Missouri, the department ultimately strayed from that plan and didn’t follow its own criteria. USDA also didn’t account for staff attrition when considering the costs of relocating.

The move resulted in massive workforce attrition and loss of productivity at the two research facilities. Ultimately, between 40% and 60% of employees at ERS and NIFA left their agencies due to the relocation.

After years of struggling to rebuild, USDA largely recovered its staff numbers by September 2021. But the staff rebuilding also meant the new employees were less experienced and less diverse, GAO found in a report published earlier this year. At NIFA, for example, the percentage of Black employees dropped from 47% to 19% following the relocation.

“We’re trying to get USDA to be a little bit more forward-thinking,” GAO Director of Natural Resources and Environment Steve Morris told Federal News Network in January. “USDA really didn’t consider the impact of attrition, and what that might mean in terms of diversity. That’s one thing they should consider, especially moving forward.”

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