B-102235, MARCH 30, 1951, 30 COMP. GEN. 391

B-102235, MARCH 30, 1951, 30 COMP. GEN. 391

PURCHASES - FOREIGN PRODUCTS - PERISHABLE FOOD EXEMPTION THE AUTHORITY TO PURCHASE PERISHABLE FOODS CONTAINED IN THE DEFENSE APPROPRIATION ACT, 1951, WHICH IS AN EXCEPTION TO THE PROHIBITION THEREIN AGAINST THE USE OF APPROPRIATED FUNDS FOR THE PROCUREMENT OF ANY ARTICLE OF FOOD OR CLOTHING NOT GROWN OR PRODUCED IN THE UNITED STATES OR ITS POSSESSIONS DOES NOT PERMIT OFF-SHORE PURCHASES OF BEEF BY ARMY ESTABLISHMENTS LOCATED OUTSIDE THE UNITED STATES AS LONG AS BEEF OF SATISFACTORY QUALITY AND SUFFICIENT QUANTITY CAN BE OBTAINED IN THE UNITED STATES AT UNITED STATES MARKET PRICES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, MARCH 30, 1951:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 23, 1951, REQUESTING AN OPINION OF THIS OFFICE WITH RESPECT TO TWO QUESTIONS PRESENTED AS FOLLOWS:

1. MAY FUNDS APPROPRIATED FOR THE SUBSISTENCE OF THE ARMY UNDER THE DEFENSE APPROPRIATION ACT, 1951, AND ANY ADDITIONAL APPROPRIATIONS SUPPLEMENTAL THERETO BE USED FOR THE PROCUREMENTS OF OFF-SHORE BEEF BY ARMY ESTABLISHMENTS LOCATED OUTSIDE THE CONTINENTAL UNITED STATES, EXCEPT THE TERRITORIES OF HAWAII AND ALASKA, FOR THE PERSONNEL ATTACHED THERETO?

2. IF THE DEFENSE APPROPRIATION ACT, 1951, CONSIDERED THE LIGHT OF ITS LEGISLATURE HISTORY INCLUDING THE PERTINENT COMMITTEE HEARINGS, DOES PERMIT THE FUNDS THEREIN OR THEREAFTER IN SUPPLEMENTARY LEGISLATION APPROPRIATED FOR THE SUBSISTENCE OF THE ARMY, TO BE USED FOR THE PROCUREMENTS BY OVERSEAS ESTABLISHMENTS OF SUCH OFF-SHORE BEEF FOR PERSONNEL ATTACHED THERETO, MAY BEEF BE PROCURED IN ONE AREA, SOUTH AMERICA, FOR EXAMPLE, BY AN ARMY ESTABLISHMENT LOCATED IN A DIFFERENT OVERSEAS AREA, WESTERN EUROPE, FOR EXAMPLE, AND BE CONSUMED BY THE PERSONNEL ATTACHED TO SUCH ESTABLISHMENT?

WITH RESPECT TO THE USE OF THE FUNDS IN QUESTION, THE DEFENSE APPROPRIATION ACT, 1951, APPROVED SEPTEMBER 6, 1950, 64 STAT. 734, PROVIDES AS FOLLOWS:

* * * PROVIDED FURTHER, THAT NO PART OF THIS OR ANY OTHER APPROPRIATION CONTAINED IN THIS CHAPTER SHALL BE AVAILABLE FOR THE PROCUREMENT OF ANY ARTICLE OF FOOD OR CLOTHING NOT GROWN OR PRODUCED IN THE UNITED STATES OR ITS POSSESSIONS, EXCEPT TO THE EXTENT THAT THE SECRETARY OF THE DEPARTMENT CONCERNED SHALL DETERMINE THAT A SATISFACTORY QUALITY AND SUFFICIENT QUANTITY OF ANY ARTICLES OF FOOD OR CLOTHING GROWN OR PRODUCED IN THE UNITED STATES OR ITS POSSESSIONS CANNOT BE PROCURED AS AND WHEN NEEDED AT UNITED STATES MARKET PRICES AND EXCEPT PROCUREMENTS BY VESSELS IN FOREIGN WATERS AND EMERGENCY PROCUREMENTS OR PROCUREMENTS OF PERISHABLE FOODS BY ESTABLISHMENTS LOCATED OUTSIDE THE CONTINENTAL UNITED STATES, EXCEPT THE TERRITORIES OF HAWAII AND ALASKA, FOR THE PERSONNEL ATTACHED THERETO: * *

IT IS STATED IN YOUR LETTER THAT BECAUSE OF THE SUBSTANTIAL SAVINGS WHICH CAN BE EFFECTED IN VIEW OF THE HIGH PRICES OF BEEF CURRENTLY PREVAILING IN THE UNITED STATES AND THE PRESENT GENERALLY TIGHT UNITED STATES MARKET FOR THAT ITEM, THE ARMY IS CONSIDERING USING PART OF THE MONEY APPROPRIATED BY THE DEFENSE APPROPRIATION ACT, 1951, IN CONNECTION WITH THE PROCUREMENT OF OFF-SHORE BEEF BY ARMY ESTABLISHMENTS LOCATED OUTSIDE THE CONTINENTAL UNITED STATES, EXCEPT THE TERRITORIES OF ALASKA AND HAWAII, FOR THE PERSONNEL ATTACHED TO SUCH ESTABLISHMENTS. HOWEVER, BEFORE REACHING ANY FINAL DECISION IN THE MATTER YOU DESIRE AN OPINION OF THIS OFFICE ON THE TWO QUESTIONS STATED ABOVE.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE LIMITATION IN QUESTION DISCLOSES THAT FOR A NUMBER OF YEARS PRIOR TO THE FISCAL YEAR 1950, THE LIMITATION WAS NOT APPLICABLE TO ARTICLES OF FOOD AND CLOTHING WHICH COULD NOT BE PROCURED IN THE UNITED STATES AT REASONABLE PRICES, AND, EXCEPT FOR THE TERRITORIES OF ALASKA AND HAWAII, WAS NOT APPLICABLE TO PROCUREMENTS BY ESTABLISHMENTS LOCATED OUTSIDE THE UNITED STATES. DURING THIS PERIOD OFF-SHORE BEEF WAS PROCURED BY THE ARMY AT VARIOUS TIMES.

THE LANGUAGE OF THE LIMITATION WAS CHANGED IN THE APPROPRIATION FOR THE FISCAL YEAR 1950 TO READ AS FOLLOWS:

* * * PROVIDED FURTHER, THAT NO PART OF THIS OR ANY OTHER APPROPRIATION CONTAINED IN THIS ACT SHALL BE AVAILABLE FOR THE PROCUREMENT OF ANY ARTICLE OF FOOD OR CLOTHING NOT GROWN OR PRODUCED IN THE UNITED STATES OR ITS POSSESSIONS, EXCEPT TO THE EXTENT THAT THE SECRETARY OF THE ARMY SHALL DETERMINE THAT A SATISFACTORY QUALITY AND SUFFICIENT QUANTITY OF ANY ARTICLE OF FOOD OR CLOTHING GROWN OR PRODUCED IN THE UNITED STATES OR ITS POSSESSIONS CANNOT BE PROCURED AS AND WHEN NEEDED AT UNITED STATES MARKET PRICES AND WITHOUT UNDULY INCREASING FUTURE UNITED STATES MARKET PRICES AND EXCEPT PROCUREMENTS BY VESSELS IN FOREIGN WATERS AND EMERGENCY PROCUREMENTS OR PROCUREMENTS OF HIGHLY PERISHABLE FOODS BY ESTABLISHMENTS LOCATED OUTSIDE THE CONTINENTAL UNITED STATES, EXCEPT THE TERRITORIES OF HAWAII AND ALASKA, FOR THE PERSONNEL ATTACHED THERETO: * * * (ITALICS SUPPLIED). SEE THE NATIONAL MILITARY ESTABLISHMENT APPROPRIATION ACT, 1950, APPROVED OCTOBER 29, 1949, 63 STAT. 992.

SUCH PROVISION PERMITTED, GENERALLY,"OFF-SHORE" PROCUREMENTS OF ARTICLES OF FOOD FOR ESTABLISHMENTS OUTSIDE THE UNITED STATES ONLY IF SUCH ARTICLES COULD NOT BE OBTAINED AT UNITED STATES MARKET PRICES OR IF THE ARTICLES COULD BE CLASSIFIED AS "HIGHLY PERISHABLE.' ONE OF THE PRIMARY PURPOSES OF THE CHANGE IN LANGUAGE WAS TO PREVENT OFF-SHORE PROCUREMENTS OF BEEF, IT WAS SO UNDERSTOOD BY THE CONGRESS AND THE DEPARTMENT OF THE ARMY, AND IT APPEARS THAT OFF-SHORE PROCUREMENTS OF BEEF WERE NOT MADE BY THE DEPARTMENT OF THE ARMY DURING THE FISCAL YEAR 1950. IT IS MY UNDERSTANDING, ALSO, THAT OFF-SHORE PROCUREMENTS OF BEEF HAVE NOT THUS BEEN MADE DURING THE FISCAL YEAR 1951.

SO FAR AS INVOLVES THE QUESTION HERE UNDER CONSIDERATION THE ONLY MATERIAL CHANGE IN THE LANGUAGE IN THE APPROPRIATION FOR 1951 FROM THAT APPEARING IN THE ACT OF 1950 IS THE ELIMINATION OF THE WORD "HIGHLY" BEFORE PERISHABLE. THUS, WHILE OFF-SHORE PROCUREMENTS DURING THE FISCAL YEAR 1950 WERE LIMITED TO "HIGHLY PERISHABLE" ITEMS, THEY ARE LIMITED DURING THE FISCAL YEAR 1951 SIMPLY TO "PERISHABLE" ITEMS. THE SOLE QUESTION, THEREFORE, IN ITS SIMPLEST FORM, IS WHETHER THE ELIMINATION OF THE WORD "HIGHLY" PERMITS OFF-SHORE PROCUREMENTS OF BEEF WHICH ADMITTEDLY WERE NOT THEREFORE AUTHORIZED.

THE WORD "PERISHABLE" IS NOT A WORD OF ART; ITS MEANING HAS BEEN INTERPRETED IN VARIOUS WAYS, DEPENDING UPON THE SENSE IN WHICH IT WAS USED, ITS PURPOSES, ETC. IN ITS BROAD, GENERAL SENSE I HAVE NO DOUBT THAT IT MAY BE APPLIED TO BEEF. BUT TO DETERMINE ITS PROPER MEANING I THINK IT IS NECESSARY TO LOOK AT THE LEGISLATIVE HISTORY OF THE PROVISION IN QUESTION. IN DOING THAT I MUST CONCLUDE THAT THE CONGRESS DID NOT INTEND THE TERM TO APPLY TO BEEF.

AN EXAMINATION OF PART 5 OF THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, PAGES 2501 2507 AND 2514-2520, IN CONNECTION WITH THE DEPARTMENT OF DEFENSE APPROPRIATIONS FOR 1951, DISCLOSES THAT THE DEPARTMENT OF THE ARMY DESIRED TO HAVE THE ENTIRE PROVISION DELETED FROM THE 1951 BILL PRIMARILY BECAUSE IT WAS DIFFICULT TO DETERMINE THE EFFECT OF PURCHASES ON FUTURE MARKET PRICES IN THE UNITED STATES AND WHETHER SUGAR USED IN THE PREPARATION OF CERTAIN FOOD PRODUCTS WAS OF DOMESTIC ORIGIN. CERTAIN REPRESENTATIVES OF THE DEPARTMENT OF THE ARMY TESTIFIED THAT MANY FOOD PRODUCTS COULD BE PURCHASED ABROAD AT CONSIDERABLE SAVINGS, BUT THAT THE WORDS "HIGHLY PERISHABLE" NOT ONLY PROHIBITED PURCHASES OF BEEF FROM ARGENTINA AND FROZEN OR CANNED FISH IN EUROPE AND THE FAR EAST BUT ALSO LOCAL PURCHASES OF EGGS AND CERTAIN FRESH FRUITS AND VEGETABLES. SUCH HEARINGS DISCLOSE FURTHER THAT NO OFF-SHORE PURCHASES OF BEEF WERE MADE DURING THE FISCAL YEAR 1950 AND THAT, AS THE FOLLOWING STATEMENTS INDICATE, THE DEPARTMENT OF THE ARMY DID NOT REQUEST THE CHANGE IN LANGUAGE FOR THE PURPOSE OF AUTHORIZING SUCH PURCHASES.

MR. MAHON. THIS OCCURS TO ME: IF OVER IN EUROPE FISH ARE PLENTIFUL AND ARE PROCURABLE AT A REASONABLE PRICE AND IF A SIMILAR SITUATION EXISTS IN JAPAN, THAT IS ONE THING. NOW I WONDER IF YOU HAVE BEEF PRODUCED IN EUROPE AND PRODUCED IN JAPAN THAT IS EQUALLY PROCURABLE IN THE SAME MANNER AS FISH.

GENERAL HOPPING. NO SIR. WE HAVE NOT IN THIS FISCAL YEAR NOR IN PAST FISCAL YEARS, OR IN ANY FISCAL YEAR SINCE THE WAR, BOUGHT ANY OFF SHORE BEEF FOR TROOP CONSUMPTION IN THE UNITED STATES. WE HAVE BOUGHT SOME FOR EUROPEAN CONSUMPTION LAST YEAR ON A FINDING OF THE SECRETARY OF THE ARMY THAT IT WAS ECONOMICAL TO DO SO.

MR. MAHON. IN OTHER WORDS, I TAKE IT THAT YOU ARE NOT CONCERNED ABUT THE BEEF PROBLEM.

GENERAL HOPPING. NO SIR.

MR. MAHON. IT IS THESE OTHER THINGS?

GENERAL HOPPING. WE ARE MAKING NO BATTLE FOR THE PROCUREMENT OF ARGENTINE BEEF FOR TROOP USE.

APPARENTLY, AS A RESULT OF SUCH HEARINGS, THE HOUSE SUBCOMMITTEE ON APPROPRIATIONS DELETED THE WORDS "AND WITHOUT UNDULY INCREASING FUTURE UNITED STATES MARKET PRICES" AND THE WORD "HIGHLY" FROM THE TERM "HIGHLY PERISHABLE.' SUCH ACTION OF THE COMMITTEE IS EXPLAINED AT PAGE 293-294 OF REPORT NO. 1797, HOUSE OF REPRESENTATIVES, 81ST CONGRESS, AS FOLLOWS:

THE PURPOSE OF THESE CHANGES IS TO MAKE POSSIBLE FOR THE MILITARY SERVICES TO PURCHASE FRESH PERISHABLE ITEMS SUCH AS FISH, FRUIT, AND VEGETABLES LOCALLY IN FOREIGN AREAS FOR CONSUMPTION BY PERSONNEL IN SUCH AREAS, AND ALSO TO MAKE POSSIBLE THE PURCHASE IN THE UNITED STATES OF PROCESSED PRODUCTS WHICH CONTAIN COMPONENTS MATERIALS NOT PRODUCED IN THE UNITED STATES SUCH AS SUGAR OR COCOA. EXPERIENCE HAS SHOWN THAT CHANGES ARE NECESSARY IN THIS PROVISION BECAUSE IT HAS CREATED DIFFICULT ADMINISTRATIVE PROBLEMS. THE CLAUSE RELATING TO UNDUE INCREASE OF FUTURE UNITED STATES MARKET PRICES HAS BEEN DELETED, SINCE THIS DETERMINATION IS ALMOST IMPOSSIBLE TO MAKE BECAUSE OF THE MANY FACTORS INFLUENCING SUCH PRICES. (ITALICS SUPPLIED.)

IN VIEW OF THE HEARINGS CONSIDERED ABOVE, I BELIEVE IT CANNOT BE SERIOUSLY CONTENDED THAT, HAD THE COMMITTEE INTENDED THAT THE DELETION OF THE WORD "HIGHLY" SHOULD HAVE THE EFFECT OF AUTHORIZING THE OFF SHORE PURCHASE OF SUCH AN IMPORTANT AND CONTROVERSIAL FOOD ITEM AS BEEF, ITS REPORT WOULD HAVE SPECIFICALLY INCLUDED SUCH ITEM ALONG WITH THE OTHER ITEMS MENTIONED THEREIN.

ACCORDINGLY, IN VIEW OF THE LEGISLATIVE HISTORY OF THE ENTIRE PROVISION IN QUESTION, FROM ITS INCEPTION YOU ARE ADVISED THAT WITH RESPECT TO YOUR FIRST QUESTION, AS LONG AS BEEF OF SATISFACTORY QUALITY AND SUFFICIENT QUANTITY CAN BE SECURED IN THE UNITED STATES AS UNITED STATES MARKET PRICES, THE PRESENCE OF THE WORD "PERISHABLE" IN SUCH PROVISION DOES NOT AUTHORIZE OFF-SHORE PURCHASES OF BEEF BY ARMY ESTABLISHMENTS LOCATED OUTSIDE THE UNITED STATES, AND CONSEQUENTLY, FUNDS CONTAINED IN THE DEFENSE APPROPRIATION ACT, 1951, OR IN ANY ADDITIONAL APPROPRIATIONS SUPPLEMENTAL THERETO, IF SUBJECT TO SUCH PROVISION, PROPERLY MAY NOT BE EXPENDED FOR THAT PURPOSE.