B-119354, APRIL 1, 1954, 33 COMP. GEN. 425

B-119354: Apr 1, 1954

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1954: REFERENCE IS MADE TO YOUR LETTER OF MARCH 18. IT APPEARS THAT SUCH MEDICAL EXAMINATIONS ARE PERFORMED BY PERSONNEL OF THE PUBLIC HEALTH SERVICE ON REIMBURSABLE BASIS AND BY MEXICAN CONTRACT PHYSICIANS. IT IS UNDERSTOOD THAT THE COST OF SUCH EXAMINATIONS HERETOFORE HAS BEEN BORNE BY THE GOVERNMENT OUT OF ANNUAL SALARIES AND EXPENSES APPROPRIATIONS MADE AVAILABLE FOR THE BUREAU OF EMPLOYMENT SECURITY OF YOUR DEPARTMENT. - A QUESTION WAS RAISED AS TO WHETHER CERTAIN COSTS OF THE OPERATIONS OF SUCH PROGRAM COULD NOT PROPERLY BE CHARGED TO THE REVOLVING FUND AND THEREBY REDUCE THE COST THEREOF TO THE GOVERNMENT. IT IS STATED THAT. THE AMENDMENT WAS " PROVIDED. IT APPEARS THAT THE AMENDMENT WAS WITHDRAWN BY SENATOR BRIDGES WHEN A POINT OF ORDER WAS RAISED AGAINST IT.

B-119354, APRIL 1, 1954, 33 COMP. GEN. 425

PHYSICAL EXAMINATIONS - MEXICAN AGRICULTURAL WORKERS - AVAILABILITY OF "FARM LABOR SUPPLY REVOLVING FUND" THE " FARM LABOR SUPPLY REVOLVING FUND, BUREAU OF EMPLOYMENT SECURITY" ( DEPARTMENT OF LABOR) ESTABLISHED BY THE SUPPLEMENTAL APPROPRIATION ACT OF 1952, MAY BE CHARGED WITH THE COST OF PHYSICAL EXAMINATIONS OF MEXICAN AGRICULTURAL WORKERS ADMITTED TO THIS COUNTRY PURSUANT TO THE PROVISIONS OF TITLE V OF THE AGRICULTURAL ACT OF 1949, AS ADDED BY THE ACT OF JULY 12, 1951, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF LABOR, APRIL 1, 1954:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1954, REQUESTING A DECISION AS TO WHETHER THE " FARM LABOR SUPPLY REVOLVING FUND, BUREAU OF EMPLOYMENT SECURITY," ESTABLISHED BY THE SUPPLEMENTAL APPROPRIATION ACT, 1952, APPROVED NOVEMBER 1, 1951, 65 STAT. 741, MAY BE CHARGED WITH THE COST OF PHYSICAL EXAMINATIONS OF MEXICAN AGRICULTURAL WORKERS ADMITTED TO THIS COUNTRY PURSUANT TO THE PROVISIONS OF TITLE V OF THE AGRICULTURAL ACT OF 1949, AS ADDED BY PUBLIC LAW 78, 82D CONGRESS, APPROVED JULY 12, 1951, 65 STAT. 119, AND AMENDED, 7 U.S.C. SUPP. V, 1461, ET SEQ. IT APPEARS THAT SUCH MEDICAL EXAMINATIONS ARE PERFORMED BY PERSONNEL OF THE PUBLIC HEALTH SERVICE ON REIMBURSABLE BASIS AND BY MEXICAN CONTRACT PHYSICIANS. ALSO, IT IS UNDERSTOOD THAT THE COST OF SUCH EXAMINATIONS HERETOFORE HAS BEEN BORNE BY THE GOVERNMENT OUT OF ANNUAL SALARIES AND EXPENSES APPROPRIATIONS MADE AVAILABLE FOR THE BUREAU OF EMPLOYMENT SECURITY OF YOUR DEPARTMENT.

DURING THE RECENT CONSIDERATION OF H. J. RES. 461, 83D CONGRESS--- MAKING AN ADDITIONAL APPROPRIATION FOR THE DEPARTMENT OF LABOR, BUREAU OF EMPLOYMENT SECURITY, FOR THE REMAINDER OF THE FISCAL YEAR 1954, TO COVER SALARIES AND EXPENSES OF THE MEXICAN FARM LABOR PROGRAM--- A QUESTION WAS RAISED AS TO WHETHER CERTAIN COSTS OF THE OPERATIONS OF SUCH PROGRAM COULD NOT PROPERLY BE CHARGED TO THE REVOLVING FUND AND THEREBY REDUCE THE COST THEREOF TO THE GOVERNMENT. SEE SENATE HEARINGS ON H. J. RES. 461, PAGES 15 AND 21. IN CONNECTION THEREWITH, IT IS STATED THAT, TO REMOVE ANY QUESTION AS TO THE PROPRIETY OF CHARGING THE COST OF MEDICAL EXAMINATIONS TO THE REVOLVING FUND, SENATOR BRIDGES OFFERED AN AMENDMENT TO THE RESOLUTION ON THE FLOOR OF THE SENATE. THE AMENDMENT WAS " PROVIDED, THAT EMPLOYERS SHALL REIMBURSE THE UNITED STATES FOR ESSENTIAL EXPENSES INCURRED BY IT FOR THE PHYSICAL OR MEDICAL EXAMINATION OF WORKERS.' HOWEVER, IT APPEARS THAT THE AMENDMENT WAS WITHDRAWN BY SENATOR BRIDGES WHEN A POINT OF ORDER WAS RAISED AGAINST IT. CONGRESSIONAL RECORD FOR MARCH 15, 1954, PAGES 3045, 3047.

THERE ACCOMPANIED YOUR LETTER A COPY OF A LETTER DATED MARCH 16, 1954, FROM THE CHAIRMAN, COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, TO YOU, WHICH STATES, IN EFFECT, THAT, WHILE THE REFERRED-TO AMENDMENT OFFERED BY SENATOR BRIDGES HAS CONSIDERABLE MERIT, THE NEED THEREFOR TO ACCOMPLISH THE PURPOSE INTENDED WAS QUESTIONABLE. THE TENOR OF SAID LETTER IS THAT THE PROVISIONS OF SECTION 502 (2) OF THE BASIC ACT AND THE CONGRESSIONAL DEBATE THEREON ESTABLISH THE INTENT OF THE CONGRESS THAT THE EMPLOYER WOULD PAY ALL EXPENSES OF THE MEXICAN FARM LABOR PROGRAM EXCEPT THE STRICTLY ADMINISTRATIVE EXPENSES INCURRED BY THE PERSONNEL OF YOUR DEPARTMENT.

THE PERTINENT PROVISIONS OF TITLE V OF THE AGRICULTURAL ACT OF 1949 ( PUBLIC LAW 78), READ AS FOLLOWS:

SEC. 502. NO WORKERS SHALL BE MADE AVAILABLE UNDER THIS TITLE TO ANY EMPLOYER UNLESS SUCH EMPLOYER ENTERS INTO AN AGREEMENT WITH THE UNITED STATES.

(2) TO REIMBURSE THE UNITED STATES FOR ESSENTIAL EXPENSES, NOT INCLUDING SALARIES OR EXPENSES OF REGULAR DEPARTMENT OR AGENCY PERSONNEL, INCURRED BY IT FOR THE TRANSPORTATION AND SUBSISTENCE OF WORKERS UNDER THIS TITLE IN AMOUNTS NOT TO EXCEED $15 PER WORKER * * *

AND THE REVOLVING FUND, AS ESTABLISHED BY THE CITED ACT OF NOVEMBER 1, 1951, PROVIDES:

FARM LABOR SUPPLY REVOLVING FUND: FOR WORKING CAPITAL FOR THE " FARM LABOR SUPPLY REVOLVING FUND," WHICH IS HEREBY ESTABLISHED TO PROVIDE FOR PAYMENT OF TRANSPORTATION, SUBSISTENCE, AND ALL OTHER EXPENSES, FOR WHICH THE UNITED STATES IS TO BE REIMBURSED PURSUANT TO PARAGRAPHS (1) AND (2) OF SECTION 502 OF THE ACT OF JULY 12, 1951 ( PUBLIC LAW 78), $1,000,000, TO REMAIN AVAILABLE UNTIL EXPENDED: PROVIDED, THAT SAID FUND SHALL BE CREDITED WITH ALL AMOUNTS RECEIVED BY THE UNITED STATES PURSUANT TO SAID PARAGRAPHS. ( ITALICS SUPPLIED.)

IN DETERMINING WHETHER THE COST OF PHYSICAL EXAMINATIONS OF MEXICAN AGRICULTURAL WORKERS MAY BE CHARGED TO THE REVOLVING FUND, THERE FIRST IS FOR DETERMINATION WHETHER IT IS AN ITEM OF EXPENSE WITHIN THE SCOPE AND MEANING OF THE TERM "SALARIES AND EXPENSES OF REGULAR DEPARTMENT OR AGENCY PERSONNEL" AS USED IN THE QUOTED SECTION 502 (2). FOR, IF IT BE CONSIDERED AN EXPENSE WITHIN THE MEANING OF SUCH TERM, THERE WOULD BE NO SOUND BASIS FOR AUTHORIZING THE REVOLVING FUND TO BE CHARGED THEREWITH.

SECTION 502 (2) OF S. 984--- WHICH BILL WAS ENACTED INTO LAW AS TITLE V OF THE AGRICULTURAL ACT OF 1949--- AS INTRODUCED IN THE SENATE PROVIDED THAT EMPLOYERS OF MEXICAN WORKERS REIMBURSE THE UNITED STATES FOR "EXPENSES INCURRED BY IT IN THE RECRUITMENT AND TRANSPORTATION OF WORKERS" IN AMOUNTS NOT TO EXCEED $20 PER WORKER. THE SENATE COMMITTEE ON AGRICULTURE AND FORESTRY, IN REPORTING OUT THE BILL, AMENDED THIS SUBSECTION TO READ EXACTLY AS IT WAS ENACTED INTO LAW EXCEPT THAT THE AMOUNT OF $20 WAS CHANGED TO $15. IN EXPLANATION OF SUCH AMENDMENT THE COMMITTEE STATED AT PAGE 5 OF SENATE REPORT NO. 214, 82D CONGRESS, THAT " THE BILL AS INTRODUCED PROVIDED THAT THE EMPLOYER PAY FOR ALL EXPENSES UP TO $20 INCURRED BY THE GOVERNMENT IN RECRUITMENT AND TRANSPORTATION OF WORKERS. THE COMMITTEE BELIEVES NORMAL SALARY AND OTHER EXPENSES OF GOVERNMENT OFFICIALS ADMINISTERING THE PROGRAM SHOULD NOT BE CHARGED TO THE INDIVIDUAL EMPLOYER OF THE WORKERS RECRUITED BY SUCH GOVERNMENT EMPLOYEE AND RECOMMENDS AMENDING THE BILL ACCORDINGLY.' ( ITALICS SUPPLIED.) AT PAGE 7 OF SAID REPORT IT WAS FURTHER STATED THAT "THE COMMITTEE IS REPORTING A BILL WHICH WOULD MAKE THE EMPLOYER PAY PRACTICALLY ALL OF THE COST OF IMPORTING WORKERS FROM MEXICO.'

IN SUPPORT OF THE VIEWS EXPRESSED BY THE CHAIRMAN, COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, IN HIS LETTER OF MARCH 16, YOUR LETTER QUOTES A DISCUSSION ON THE FLOOR OF THE SENATE ON S. 984, BETWEEN SENATOR WATKINS AND SENATOR ELLENDER, WHO SPONSORED THE BILL ( CONGRESSIONAL RECORD, APRIL 26, 1951, PAGE 4534), AND A STATEMENT BY THE LATTER ( CONGRESSIONAL RECORD MAY 1, 1951, PAGE 4719), WHICH EXPLAIN THAT THE EMPLOYERS OF MEXICAN WORKERS ARE EXPECTED TO BEAR PRACTICALLY ALL THE EXPENSES OF THE MEXICAN FARM LABOR PROGRAM.

RETURNING TO THE ABOVE-QUOTED PROVISION OF LAW ESTABLISHING THE REVOLVING FUND, IT WILL BE NOTED THAT, IN ADDITION TO PROVIDING FOR THE USE OF SUCH FUND FOR PAYMENT OF "TRANSPORTATION AND SUBSISTENCE" OF MEXICAN WORKERS, SPECIFIC PROVISION IS CONTAINED THEREIN FOR ALL OTHER EXPENSES FOR WHICH THE UNITED STATES IS TO BE REIMBURSED PURSUANT TO THE SAID SECTION 502 (2). IN CONNECTION THEREWITH, IT WAS STATED ON PAGE 20 OF HOUSE REPORT NO. 890, 82D CONGRESS, ON H.R. 5215, WHICH BECAME THE SUPPLEMENTAL APPROPRIATION ACT 1952," THE LAW PROVIDES THAT THE GOVERNMENT SHALL BE REIMBURSED IN THE AMOUNT OF $15 PER WORKER BY THE CONTRACTING EMPLOYERS, SUCH CHARGE TO COVER COSTS OF TRANSPORTING, FEEDING, AND HOUSING WORKERS FROM POINT OF RECRUITMENT TO BORDER RECEPTION CENTERS AND RETURN. THE COMMITTEE IS OF THE OPINION THAT THE FULL COSTS OF THIS TEMPORARY PROGRAM SHOULD BE RECOUPED TO THE TREASURY AND REGRETS TO NOTE THAT THE BASIC LAW MADE NO PROVISION FOR RECAPTURING GENERAL ADMINISTRATIVE COSTS OF HANDLING THE PROGRAM.' ( ITALICS SUPPLIED.) AT PAGE 21 OF THE REPORT, IT WAS FURTHER STATED WITH RESPECT TO THE REVOLVING FUND " THE PURPOSE OF THIS FUND IS TO PROVIDE FOR PAYMENT OF TRANSPORTATION, SUBSISTENCE, AND ALL OTHER EXPENSES FOR WHICH THE UNITED STATES IS TO BE REIMBURSED BY THE $15 TO BE PAID FOR EACH WORKER BY THE EMPLOYER.' ALSO, SEE HOUSE HEARINGS, SUPPLEMENTAL APPROPRIATION ACT, 1952, PART 2, PAGE 630.

THUS, THE LEGISLATIVE PROCEEDINGS ATTENDANT UPON THE ENACTMENT OF THE STATUTES INVOLVED AFFORD AMPLE SUPPORT FOR THE VIEW THAT THE TERM "SALARIES AND EXPENSES OF REGULAR DEPARTMENT OR AGENCY PERSONNEL," WAS USED IN THE CITED SECTION 502 (2), IN THE ORDINARY SENSE AND THAT IT WAS INTENDED TO COVER THE NORMAL OR GENERAL ADMINISTRATIVE EXPENSES OF THE PERSONNEL OF YOUR DEPARTMENT IN CARRYING OUT THE MEXICAN FARM LABOR PROGRAM. I FIND NOTHING THEREIN TO INDICATE THAT THE TERM WAS INTENDED TO INCLUDE THE ITEM OF EXPENSE HERE IN QUESTION. MOREOVER, THE COST OF PHYSICAL EXAMINATIONS OF MEXICAN AGRICULTURAL WORKERS APPEARS TO BE NECESSARY TO AND DIRECTLY CONNECTED WITH THE TRANSPORTATION OF SUCH WORKERS TO THIS COUNTRY. THEREFORE, I AM OF THE OPINION THAT THE COST OF SUCH EXAMINATIONS PROPERLY MAY BE CONSIDERED AS CONSTITUTING AN ESSENTIAL EXPENSE OF TRANSPORTATION THE COST OF WHICH IS REQUIRED TO BE REIMBURSED THE UNITED STATES BY EMPLOYERS.

ACCORDINGLY, YOU ARE ADVISED THAT THE COST OF MEDICAL EXAMINATIONS OF MEXICAN AGRICULTURAL WORKERS MAY BE CHARGED TO THE REVOLVING FUND UNLESS THE CONGRESS SHOULD SPECIFY OR INDICATE CLEARLY THAT SUCH COSTS ARE TO BE BORNE FROM APPROPRIATIONS MADE FOR THE ADMINISTRATIVE EXPENSES OF THE BUREAU OF EMPLOYMENT SECURITY.