A-32620, SEPTEMBER 2, 1930, 10 COMP. GEN. 105

A-32620: Sep 2, 1930

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BONDS - ASSISTANT DISBURSING OFFICERS - CUSTOMS SERVICE THERE IS NOTHING IN SECTION 2631 OF THE REVISED STATUTES. A COPY OF WHICH IS INCLOSED. THE DISBURSING AGENT IS AUTHORIZED TO DESIGNATE. THE SECRETARY OF THE TREASURY IS AUTHORIZED TO PRESCRIBE THE DUTIES OF CUSTOMS OFFICERS AND EMPLOYEES. THE PROVISIONS OF THE TWO LAWS ARE NOT ALTOGETHER HARMONIOUS. IT IS DESIRABLE. IT IS PERTINENT TO INQUIRE WHETHER IN YOUR OPINION AUTHORITY TO DESIGNATE SUCH ASSISTANTS IS WITHIN THE SCOPE OF THE POWERS VESTED IN THE SECRETARY OF THE TREASURY BY SECTION 2 OF THE ACT OF MARCH 4. IT IS DESIRABLE. IS SUFFICIENT FOR BOTH PURPOSES. THERE IS ALSO SUBMITTED HEREWITH A DRAFT OF A FORM SUGGESTED FOR USE IN DESIGNATING CUSTOMS OFFICERS TO ACT AS ASSISTANT.

A-32620, SEPTEMBER 2, 1930, 10 COMP. GEN. 105

BONDS - ASSISTANT DISBURSING OFFICERS - CUSTOMS SERVICE THERE IS NOTHING IN SECTION 2631 OF THE REVISED STATUTES, NOR IN SECTION 2 OF THE ACT OF MARCH 4, 1923, AS AMENDED BY THE ACT OF JANUARY 13, 1925, 43 STAT. 748, INCONSISTENT WITH THE PROCEDURE STATED IN TREASURY DEPARTMENT CIRCULAR NO. 423, DATED JUNE 2, 1930, FOR THE DESIGNATION, APPOINTMENT, AND BONDING OF ASSISTANT DISBURSING OFFICERS, AND THE PROCEDURE STATED IN SAID CIRCULAR SHOULD BE FOLLOWED WITH RESPECT TO ASSISTANT DISBURSING OFFICERS IN THE CUSTOMS SERVICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, SEPTEMBER 2, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 14, 1930, AS FOLLOWS:

FROM TIME TO TIME IT BECOMES NECESSARY TO DESIGNATE SUBSTITUTE DISBURSING AGENTS IN THE CUSTOMS SERVICE, TO ACT IN THE ABSENCE OF THE DISBURSING AGENT. HERETOFORE SECTION 2631, REVISED STATUTES, HAS BEEN INVOKED FOR THIS PURPOSE AND THE DESIGNATION HAS BEEN MADE ON TREASURY DEPARTMENT (DIVISION OF APPOINTMENTS) FORM NO. 351, A COPY OF WHICH IS INCLOSED.

SECTION 2631, REVISED STATUTES, HAS BEEN OMITTED FROM THE UNITED STATES CODE, AND THE SOLICITOR OF THE TREASURY HAS ADVISED IN HIS OPINION OF APRIL 15, 1929, COPY INCLOSED, THAT THE STATUTE MUST BE ACCEPTED AND TREATED AS HAVING BEEN SUPERSEDED. IT HAS ALSO BEEN SUGGESTED THAT SECTION 2631, REVISED STATUTES, HAS BEEN SUPERSEDED BY THE ACT OF MARCH 4, 1923 (CH. 251, SEC. 2, 42 STAT., 1453), AS AMENDED BY THE ACT OF JANUARY 13, 1925 (CH. 76, SEC. 2, 43 STAT. 748), WHICH VESTS IN THE SECRETARY OF THE TREASURY VERY BROAD POWERS IN RESPECT TO PRESCRIBING THE DUTIES OF CUSTOMS OFFICERS AND EMPLOYEES.

INASMUCH AS UNDER THE PROVISIONS OF SECTION 2631, REVISED STATUTES, THE DISBURSING AGENT IS AUTHORIZED TO DESIGNATE, WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY, AN EMPLOYEE TO ACT IN HIS ABSENCE WHEREAS UNDER THE PROVISIONS OF THE LATER ACT OF MARCH 4, 1923, THE SECRETARY OF THE TREASURY IS AUTHORIZED TO PRESCRIBE THE DUTIES OF CUSTOMS OFFICERS AND EMPLOYEES, THE PROVISIONS OF THE TWO LAWS ARE NOT ALTOGETHER HARMONIOUS.

AS THE VOLUME OF CUSTOMS BUSINESS GROWS IT BECOMES INCREASINGLY DIFFICULT FOR A SINGLE DISBURSING AGENT TO HANDLE THE ENTIRE DISBURSEMENTS OF SOME OF THE CUSTOMS COLLECTION DISTRICTS, AND IT IS DESIRABLE, EVEN ESSENTIAL IN SOME INSTANCES, THAT ASSISTANTS BE DESIGNATED WITH FULL POWERS AND AUTHORITY TO ACT EITHER IN THE PRESENCE OR IN THE ABSENCE OF THE DISBURSING AGENT. THEREFORE, IT IS PERTINENT TO INQUIRE WHETHER IN YOUR OPINION AUTHORITY TO DESIGNATE SUCH ASSISTANTS IS WITHIN THE SCOPE OF THE POWERS VESTED IN THE SECRETARY OF THE TREASURY BY SECTION 2 OF THE ACT OF MARCH 4, 1923, AS AMENDED, AND, IF NOT, UNDER AUTHORITY OF WHAT STATUTES SUCH ASSISTANTS MAY BE DESIGNATED.

IN THE INTEREST OF SIMPLICITY AND UNIFORMITY OF PRACTICE, IT IS DESIRABLE, THOUGH NOT ESSENTIAL, THAT A SINGLE STATUTORY AUTHORITY BE INVOKED IN DESIGNATING ACTING OR SUBSTITUTE DISBURSING AGENTS AND ASSISTANT DISBURSING AGENTS, AND I AM, THEREFORE, LED TO INQUIRE FURTHER WHETHER IN YOUR OPINION THE AUTHORITY VESTED IN THE SECRETARY OF THE TREASURY BY SECTION 2 OF THE ACT OF MARCH 4, 1923, IS SUFFICIENT FOR BOTH PURPOSES.

THERE IS ALSO SUBMITTED HEREWITH A DRAFT OF A FORM SUGGESTED FOR USE IN DESIGNATING CUSTOMS OFFICERS TO ACT AS ASSISTANT, ACTING, OR SUBSTITUTE DISBURSING AGENTS AND I HAVE TO REQUEST AN EXPRESSION OF YOUR VIEWS AS TO THE SUFFICIENCY OF THE SAME.

SECTION 2631, REVISED STATUTES, PROVIDES:

IN CASE OF THE SICKNESS OR UNAVOIDABLE ABSENCE OF ANY COLLECTOR OR SURVEYOR OF CUSTOMS FROM HIS OFFICE, HE MAY, WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY, AUTHORIZE SOME OFFICER OR CLERK UNDER HIM TO ACT IN HIS PLACE, AND TO DISCHARGE ALL THE DUTIES REQUIRED BY LAW OF SUCH COLLECTOR OR SURVEYOR IN HIS CAPACITY AS DISBURSING AGENT; AND THE OFFICIAL BOND GIVEN BY THE PRINCIPAL OF THE OFFICE SHALL BE HELD TO COVER AND APPLY TO THE ACTS OF THE PERSON APPOINTED TO ACT IN HIS PLACE IN SUCH CASES.

SECTION 2 OF THE ACT OF MARCH 4, 1923, AS AMENDED BY THE ACT OF JANUARY 13, 1925, 43 STAT. 748, PROVIDES IN PART AS FOLLOWS:

THAT THE SECRETARY OF THE TREASURY IS HEREBY FURTHER AUTHORIZED AND DIRECTED TO APPOINT DEPUTY COLLECTORS, DEPUTY COMPTROLLERS, DEPUTY SURVEYORS, DEPUTY AND ASSISTANT APPRAISERS, EXAMINERS OF MERCHANDISE, INSPECTORS AND SUCH OTHER CUSTOMS OFFICERS, LABORERS, AND OTHER EMPLOYEES AS HE SHALL DEEM NECESSARY, PRESCRIBE THEIR DESIGNATIONS AND DUTIES WHEN NOT OTHERWISE DEFINED BY LAW, AND FIX THEIR COMPENSATION. * * * THE APPOINTMENT OF SUCH CUSTOMS OFFICERS AND EMPLOYEES SHALL BE MADE PURSUANT TO THE CIVIL-SERVICE LAWS AND REGULATIONS UPON THE NOMINATION OF THE PRINCIPAL OFFICER IN CHARGE OF THE OFFICE TO WHICH SUCH APPOINTMENTS ARE TO BE MADE.

BY THIS LAW, THE SECRETARY OF THE TREASURY IS GIVEN AUTHORITY TO APPOINT ALL OFFICERS AND EMPLOYEES OF THE CUSTOMS SERVICE EXCEPT AS PROVIDED IN SECTION 3 OF THE ACT OF MARCH 4, 1923, WHICH IS AS FOLLOWS:

THAT THE COLLECTORS OF CUSTOMS, COMPTROLLERS OF CUSTOMS, SURVEYORS OF CUSTOMS, AND APPRAISERS OF MERCHANDISE SHALL EACH, WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY, APPOINT A CUSTOMS OFFICER FAMILIAR WITH THE CUSTOMS LAWS AND PROCEDURE, TO ACT AND BE KNOWN AS THE ASSISTANT COLLECTOR, THE ASSISTANT COMPTROLLER, THE ASSISTANT SURVEYOR, AND THE CHIEF ASSISTANT APPRAISER (IN LIEU OF THE SPECIAL DEPUTIES), AND THE SECRETARY OF THE TREASURY SHALL FIX THEIR COMPENSATION. THE COLLECTOR OF CUSTOMS AT THE PORT OF NEW YORK SHALL ALSO, WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY, APPOINT A CUSTOMS OFFICER QUALIFIED IN THE LAW AND FAMILIAR WITH CUSTOMS PROCEDURE, TO ACT AND BE KNOWN AS SOLICITOR TO THE COLLECTOR, WHOSE COMPENSATION SHALL LIKEWISE BE FIXED BY THE SECRETARY OF THE TREASURY.

THE SECRETARY OF THE TREASURY IS GIVEN AUTHORITY, ALSO, BY SECTION 2 OF THE SAID ACT, AS AMENDED, TO PRESCRIBE THE DESIGNATION AND DUTIES OF SUCH OFFICERS AND EMPLOYEES AS ARE APPOINTED BY HIM UNDER SAID SECTION, UNLESS SUCH DESIGNATION AND DUTIES ARE OTHERWISE DEFINED BY LAW.

I UNDERSTAND FROM YOUR SUBMISSION THAT NOTWITHSTANDING THE PROVISIONS OF THE ACTS OF MARCH 4, 1923, AND JANUARY 13, 1925, THE PRACTICE HERETOFORE HAS BEEN TO PROCEED WITH THE DESIGNATION OF SUBSTITUTE DISBURSING AGENTS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2631, REVISED STATUTES. OTHER WORDS, THE ADMINISTRATIVE PROCEDURE HAS NOT HERETOFORE CONSIDERED THE PROVISIONS OF SECTION 2631, REVISED STATUTES, AS EITHER SUPERSEDED OR REPEALED BY THE PROVISIONS OF THE CITED ACTS OF 1923 AND 1925. KEEPING THIS IN MIND, IT APPEARS UNNECESSARY TO DETERMINE THAT SECTION 2631 HAS BEEN EITHER SUPERSEDED OR REPEALED, AND PARTICULARLY, IF A PROCEDURE IN HARMONY WITH THE THREE ACTS CAN BE ADOPTED.

IT WILL BE OBSERVED THAT THE PROVISIONS OF SECTION 2631 SPECIFICALLY PROVIDE FOR THE DESIGNATION OF A DISBURSING AGENT IN THE PLACE OF THE COLLECTOR OR SURVEYOR OF CUSTOMS. THE PROVISIONS OF THE ACTS OF MARCH 4, 1923, AND JANUARY 13, 1925, DO NOT SPECIFICALLY ENUMERATE A DISBURSING OFFICER WITHIN THEIR PROVISIONS. THEY ARE PROVISIONS MAINLY CONCERNED WITH THE ADMINISTRATION OF THE CUSTOMS LAWS BY GENERAL CUSTOMS PERSONNEL RATHER THAN THE FISCAL MATTERS WHICH COME UNDER A DISBURSING AGENT. ITIS TRUE THE ACTS GIVE THE SECRETARY OF THE TREASURY THE AUTHORITY TO PRESCRIBE THE DESIGNATIONS AND DUTIES WHERE NOT OTHERWISE DEFINED BY LAW, BUT THEY APPARENTLY ALL HAVE RELATION TO WHAT I REFER TO AS AN ADMINISTRATION OF THE CUSTOMS LAWS RATHER THAN THE FISCAL TRANSACTIONS OF THE COLLECTOR'S OFFICE IN THE SENSE OF DISBURSEMENTS.

THERE IS NOTHING IN EITHER STATUTE WHICH NEGATIVES THE PROCEDURE STATED IN TREASURY DEPARTMENT CIRCULAR NO. 423, DATED JUNE 2, 1930, FOR THE DESIGNATION OF NECESSARY ASSISTANTS TO A SPECIFIED DISBURSING OFFICER TO SIGN OFFICIAL CHECKS DRAWN ON THE TREASURER OF THE UNITED STATES IN THE NAME OF SUCH DISBURSING OFFICER "WITH THE APPROVAL OF THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT UNDER WHICH HE SERVES.' IN FACT, THE PROCEDURE IN SAID CIRCULAR FOR THE ASSISTANT DISBURSING OFFICERS TO BE DESIGNATED BY THE DISBURSING OFFICER--- THE COLLECTOR IN THIS CASE--- WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY IS SUBSTANTIALLY THE PROCEDURE PRESCRIBED IN SECTION 2631, REVISED STATUTES, AND WITH RESPECT TO ASSISTANT DISBURSING OFFICERS, WILL GIVE THAT CENTRALIZED CONTROL CONTEMPLATED BY SECTION 2 OF THE ACT OF MARCH 4, 1923, AS AMENDED BY THE ACT OF JANUARY 13, 1925, 43 STAT. 748, IS NOT BEING UNDERSTOOD THAT IT IS MATERIAL WHETHER THE DESIGNATION OF THE ASSISTANT DISBURSING OFFICERS FOR THE CUSTOMS SERVICE ORIGINATES WITH THE COLLECTOR OR WITH THE TREASURY DEPARTMENT HERE IN WASHINGTON SO LONG AS THE SECRETARY OF THE TREASURY RETAINS THE AUTHORITY TO APPROVE OR DISAPPROVE THE DESIGNATION.

ANSWERING YOUR QUESTIONS SPECIFICALLY, IT IS CONCLUDED THAT SINCE THERE IS NOTHING IN SECTION 2631, REVISED STATUTES, NOR IN THE 1923 ACT, AS AMENDED, CONTRARY TO THE PROCEDURE PRESCRIBED IN TREASURY DEPARTMENT CIRCULAR NO. 423, DATED JUNE 2, 1930, FOR THE APPROVED DESIGNATION AND BONDING OF ASSISTANT DISBURSING OFFICERS, THE PROCEDURE STATED IN SAID CIRCULAR SHOULD BE FOLLOWED IN THE DESIGNATION, ETC., OF NECESSARY ASSISTANT DISBURSING OFFICERS FOR THE CUSTOMS SERVICE.