A-21716, MARCH 19, 1928, 7 COMP. GEN. 582

A-21716: Mar 19, 1928

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SUCH APPOINTEES ARE OFFICERS WHO EXERCISE A FUNCTION OF GOVERNMENT IN THEIR OWN RIGHT AND UPON THEIR OWN RESPONSIBILITY WITHIN THE MEANING OF GENERAL REGULATION NO. 62 AND THE ACT OF DECEMBER 11. IN WHICH CREDIT WAS DISALLOWED IN THE ACCOUNTS OF H. IN YOUR SUBMISSION ATTENTION IS CALLED TO THE DEFINITION OF OFFICER AS CONTAINED IN GENERAL REGULATION NO. 62 OF THIS OFFICE. THE FOLLOWING STATEMENT IS MADE: COMMERCIAL ATTACHES. ARE APPOINTED BY THE SECRETARY OF COMMERCE AFTER QUALIFYING THROUGH EXAMINATIONS HELD BY THE CIVIL SERVICE COMMISSION AND THE DEPARTMENT IN COORDINATION. SUCH OFFICERS SERVE UNDER THE DIRECTION OF THE SECRETARY OF COMMERCE AND ARE RESPONSIBLE TO HIM. CONGRESS' INTENTION IN THIS RESPECT IS CLEARLY SHOWN BY THE PROVISIONS OF PARAGRAPH 5B OF THE ACT "NO OFFICER OF THE FOREIGN COMMERCE SERVICE SHALL BE CONSIDERED AS HAVING THE CHARACTER OF A PUBLIC MINISTER.'.

A-21716, MARCH 19, 1928, 7 COMP. GEN. 582

APPOINTMENTS, AFFIDAVITS - FOREIGN COMMERCE OFFICERS THE APPOINTMENT OF COMMERCIAL ATTACHES, ASSISTANT COMMERCIAL ATTACHES, TRADE COMMISSIONERS, AND ASSISTANT TRADE COMMISSIONERS, BEING MADE BY THE SECRETARY OF COMMERCE, AND THEIR DUTIES SPECIFICALLY PRESCRIBED BY THE ACT OF MARCH 3, 1927, 44 STAT. 1394, SUBJECT ONLY TO SUPERVISION BY THE SECRETARY OF COMMERCE, SUCH APPOINTEES ARE OFFICERS WHO EXERCISE A FUNCTION OF GOVERNMENT IN THEIR OWN RIGHT AND UPON THEIR OWN RESPONSIBILITY WITHIN THE MEANING OF GENERAL REGULATION NO. 62 AND THE ACT OF DECEMBER 11, 1926, 44 STAT. 918, AND MUST FILE THE AFFIDAVIT REQUIRED BY THAT ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, MARCH 19, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 6, 1928, REQUESTING REVIEW OF SETTLEMENT K-18489-C, IN WHICH CREDIT WAS DISALLOWED IN THE ACCOUNTS OF H. M. HOYT FOR COMPENSATION PAID TO FOREIGN COMMERCE OFFICERS WHO HAD NOT EXECUTED THE AFFIDAVIT REQUIRED BY THE ACT OF DECEMBER 11, 1926, 44 STAT. 918. IN YOUR SUBMISSION ATTENTION IS CALLED TO THE DEFINITION OF OFFICER AS CONTAINED IN GENERAL REGULATION NO. 62 OF THIS OFFICE, AND THE FOLLOWING STATEMENT IS MADE:

COMMERCIAL ATTACHES, ASSISTANT COMMERCIAL ATTACHES, TRADE COMMISSIONERS, AND ASSISTANT TRADE COMMISSIONERS, ALLOCATED TO CERTAIN CLASSES UNDER THE PROVISIONS OF THE FOREIGN COMMERCE ACT OF MARCH 3, 1927, ARE APPOINTED BY THE SECRETARY OF COMMERCE AFTER QUALIFYING THROUGH EXAMINATIONS HELD BY THE CIVIL SERVICE COMMISSION AND THE DEPARTMENT IN COORDINATION. SUCH OFFICERS SERVE UNDER THE DIRECTION OF THE SECRETARY OF COMMERCE AND ARE RESPONSIBLE TO HIM. THE ACT DOES NOT VEST IN THEM ANY FUNCTION OF GOVERNMENT NOR ANY AUTHORITY TO ACT AS A REPRESENTATIVE OF THE GOVERNMENT OR UPON THEIR OWN RESPONSIBILITY. CONGRESS' INTENTION IN THIS RESPECT IS CLEARLY SHOWN BY THE PROVISIONS OF PARAGRAPH 5B OF THE ACT "NO OFFICER OF THE FOREIGN COMMERCE SERVICE SHALL BE CONSIDERED AS HAVING THE CHARACTER OF A PUBLIC MINISTER.'

THESE OFFICERS ARE ENGAGED IN OBSERVING BUSINESS CONDITIONS--- MAINTAINING ALSO A CLOSE FAMILIARITY WITH OTHER CONDITIONS IN SO FAR AS THEY AFFECT THE TRADE OF THE COUNTRY--- WITH THE OBJECT OF PROMOTING THE EXPORT TRADE OF THE UNITED STATES. SUCH CONTACT AS IS HAD WITH FOREIGN GOVERNMENTS AND OFFICIALS IS IN THE FORM OF INFORMAL NEGOTIATIONS AND HAS NO OFFICIAL SIGNIFICANCE IN SO FAR AS THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, AND NO ACTION OF A FOREIGN-COMMERCE OFFICER IS BINDING UPON THE UNITED STATES GOVERNMENT. IN SHORT, THEY DO NOT REPRESENT THE GOVERNMENT OF THE UNITED STATES BUT RENDER ASSISTANCE TO INDUSTRY OF THE UNITED STATES IN GENERAL.

IT IS NOT BELIEVED, IN VIEW OF THE ABOVE EXPLANATION, THAT YOUR OFFICE WILL HOLD THAT YOUR DECISION OF MAY 9, 1927, ADDRESSED TO THE SECRETARY OF STATE, APPLIES IN ANY WAY TO THE FOREIGN COMMERCE SERVICE OF THE UNITED STATES, AS CREATED BY THE ACT OF MARCH 3, 1927.

THE ACT OF MARCH 3, 1927, 44 STAT. 1394, WHICH ESTABLISHED THE FOREIGN COMMERCE SERVICE IN THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE, DEPARTMENT OF COMMERCE, PROVIDES AS FOLLOWS:

THAT THERE IS HEREBY ESTABLISHED IN THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE OF THE DEPARTMENT OF COMMERCE, THE FOREIGN COMMERCE SERVICE OF THE UNITED STATES * * * CONSISTING OF OFFICERS TO BE GRADED IN THE FOLLOWING ORDER AND TO BE KNOWN AS COMMERCIAL ATTACHES, ASSISTANT COMMERCIAL ATTACHES, TRADE COMMISSIONERS, AND ASSISTANT TRADE COMMISSIONERS.

SEC. 2. UNDER THE DIRECTION OF THE SECRETARY OF COMMERCE * * * THE OFFICERS OF THE FOREIGN COMMERCE SERVICE SHALL---

(A) PROMOTE THE FOREIGN COMMERCE OF THE UNITED STATES;

(B) INVESTIGATE AND REPORT UPON COMMERCIAL AND INDUSTRIAL CONDITIONS AND ACTIVITIES IN FOREIGN COUNTRIES, WHICH MAY BE OF INTEREST TO THE UNITED STATES;

(C) PERFORM SUCH OTHER DUTIES AS THE SECRETARY MAY DIRECT IN CONNECTION WITH THE PROMOTION OF THE INDUSTRIES, TRADE, OR COMMERCE OF THE UNITED STATES;

(D) MAKE SUCH INSPECTIONS OF THE FOREIGN COMMERCE SERVICE, AS THE SECRETARY MAY DIRECT.

SEC. 3. (A) THE SECRETARY IS AUTHORIZED TO APPOINT OFFICERS OF THE FOREIGN COMMERCE SERVICE * * *

SEC. 4. (A) SUBJECT TO THE REQUIREMENTS OF THE CIVIL SERVICE LAWS AND RULES, THE SECRETARY IS AUTHORIZED TO APPOINT, FIX THE COMPENSATION OF, PROMOTE, DEMOTE, AND SEPARATE FROM THE SERVICE SUCH CLERKS AND OTHER ASSISTANTS FOR OFFICERS OF THE FOREIGN COMMERCE SERVICE AS HE MAY DEEM NECESSARY.

(B) WHEN AUTHORIZED BY THE SECRETARY AND IN ACCORDANCE WITH THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, OFFICERS OF THE FOREIGN COMMERCE SERVICE MAY EMPLOY IN A FOREIGN COUNTRY, FROM TIME TO TIME, FIX THE COMPENSATION OF, AND SEPARATE FROM THE SERVICE SUCH CLERICAL AND SUBCLERICAL ASSISTANTS AS MAY BE NECESSARY.

SEC. 5. * * *

(B)NO OFFICER OF THE FOREIGN COMMERCE SERVICE SHALL BE CONSIDERED AS HAVING THE CHARACTER OF A PUBLIC MINISTER.

THE ABOVE ACT OF MARCH 3, 1927, DENOMINATES COMMERCIAL ATTACHES, ASSISTANT COMMERCIAL ATTACHES, TRADE COMMISSIONERS, AND ASSISTANT TRADE COMMISSIONERS AS "OFFICERS" AND PRESCRIBES THE DUTIES WHICH THEY ARE TO PERFORM UNDER THE DIRECTION OF THE SECRETARY OF COMMERCE. THE FACT THAT THE DUTY TO BE PERFORMED BY SUCH APPOINTEES IS SUBJECT TO THE DIRECTION OF THE SECRETARY OF COMMERCE DOES NOT NECESSARILY ESTABLISH THAT THEY ARE NOT PUBLIC OFFICERS WHO EXERCISE A FUNCTION OF GOVERNMENT IN THEIR OWN RIGHT AND UPON THEIR OWN RESPONSIBILITY, WITHIN THE MEANING OF THE DEFINITION OF OFFICERS IN GENERAL RESOLUTION NO. 62, AS PRACTICALLY EVERY OFFICER OF THE GOVERNMENT IS SUBJECT TO MORE OR LESS SUPERVISION. THE FOREIGN COMMERCE SERVICE ACT MAKES A CLEAR DISTINCTION BETWEEN OFFICERS AND OTHER EMPLOYEES OF THE FOREIGN COMMERCE SERVICE, AS WILL BE SEEN FROM A COMPARISON OF SECTIONS 1 AND 4 OF THE ABOVE-QUOTED ACT. IN VIEW OF THE PROVISIONS OF SAID ACT, IT APPEARS BEYOND QUESTION THAT COMMERCIAL ATTACHES, ASSISTANT COMMERCIAL ATTACHES, TRADE COMMISSIONERS, AND ASSISTANT TRADE COMMISSIONERS ARE OFFICERS WITHIN THE PURVIEW OF THE ACT OF DECEMBER 11, 1926, SUPRA, AND MUST FILE THE AFFIDAVIT REQUIRED BY THAT ACT BEFORE BECOMING ENTITLED TO COMPENSATION. A-16787, JANUARY 15, JANUARY 21, FEBRUARY 2, AND APRIL 8, 1927; A-21249, MARCH 9, 1928.