B-125810, DECEMBER 8, 1955, 35 COMP. GEN. 349

B-125810: Dec 8, 1955

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AS APPLICABLE TO MEMBERS OF INTERNATIONAL ADVISORY COMMITTEES AND COMMISSIONS IN THE ABSENCE OF ANY INDICATION OF CONGRESSIONAL INTENT THAT SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 COMPRISES THE SOLE AUTHORITY FOR PAYMENT OF PER DIEM TO ALL PERSONS SERVING WITHOUT COMPENSATION OR THAT THE PER DIEM RATES SPECIFICALLY AUTHORIZED IN OTHER STATUTES WERE TO BE INCREASED BY THE AMENDATORY ACT OF JULY 28. WHICH WAS THE ONLY AUTHORITY FOR PAYMENT OF PER DIEM TO MEMBERS OF THE BOARD OF FOREIGN SCHOLARSHIPS AT THE TIME OF ENACTMENT OF THE UNITED STATES INFORMATION AND EDUCATIONAL EXCHANGE ACT OF 1948. IS APPLICABLE TO THE MEMBERS OF THIS BOARD. 1955: REFERENCE IS MADE TO LETTER DATED OCTOBER 14.

B-125810, DECEMBER 8, 1955, 35 COMP. GEN. 349

SUBSISTENCE - PER DIEMS - INCREASES IN ACT OF JULY 28, 1955, AS APPLICABLE TO MEMBERS OF INTERNATIONAL ADVISORY COMMITTEES AND COMMISSIONS IN THE ABSENCE OF ANY INDICATION OF CONGRESSIONAL INTENT THAT SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 COMPRISES THE SOLE AUTHORITY FOR PAYMENT OF PER DIEM TO ALL PERSONS SERVING WITHOUT COMPENSATION OR THAT THE PER DIEM RATES SPECIFICALLY AUTHORIZED IN OTHER STATUTES WERE TO BE INCREASED BY THE AMENDATORY ACT OF JULY 28, 1955, SUCH INADVERTENT OMISSION BY CONGRESS OF LANGUAGE CANNOT BE SUPPLIED BY IMPLICATION OR BY CONSTRUCTION AND, THEREFORE, THE ACT OF JULY 28, 1955, DOES NOT INCREASE THE PER DIEM RATES ESTABLISHED IN OTHER ACTS FOR SPECIAL COMMISSION OR COMMITTEE MEMBERS WHO SERVE WITHOUT COMPENSATION. SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, WHICH WAS THE ONLY AUTHORITY FOR PAYMENT OF PER DIEM TO MEMBERS OF THE BOARD OF FOREIGN SCHOLARSHIPS AT THE TIME OF ENACTMENT OF THE UNITED STATES INFORMATION AND EDUCATIONAL EXCHANGE ACT OF 1948, MAY NOT BE REGARDED AS SUPERSEDED BY THE GENERAL LANGUAGE IN SECTION 1009 OF THE 1948 ACT, WHICH CONSOLIDATED THE ADMINISTRATION OF INTERNATIONAL EXCHANGE ACTIVITIES AND, THEREFORE, THE INCREASE IN PER DIEM RATES AUTHORIZED BY THE AMENDMENT OF SECTION 5 BY THE ACT OF JULY 28, 1955, IS APPLICABLE TO THE MEMBERS OF THIS BOARD.

TO THE SECRETARY OF STATE, DECEMBER 8, 1955:

REFERENCE IS MADE TO LETTER DATED OCTOBER 14, 1955, FROM THE ASSISTANT SECRETARY-1CONTROLLER, DEPARTMENT OF STATE, PRESENTING FOR OUR DECISION A QUESTION WHETHER ANY OF THE PROVISIONS OF SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, PUBLIC LAW 600, AS AMENDED BY SECTION 2 OF THE ACT OF JULY 28, 1955, PUBLIC LAW 189, 68 STAT. 394, 5 U.S.C. 73B-2, APPLY TO CERTAIN PERSONS WHO SERVE WITHOUT COMPENSATION, NAMELY---

1. MEMBERS OF THE NATIONAL COMMISSION ON EDUCATIONAL, SCIENTIFIC,

AND CULTURAL COOPERATION AND EXPERTS ATTENDING SPECIAL

CONFERENCES CALLED BY THE COMMISSION (SECTIONS 3 AND 5 OF THE ACT

OF JULY 30, 1946, PUBLIC LAW 565, 60 STAT. 713, 22 U.S.C.

287O AND 287Q);

2. MEMBERS OF THE UNITED STATES ADVISORY COMMISSIONS ON

INFORMATION AND ON EDUCATIONAL EXCHANGE (SECTIONS 601, 602

(F), AND 801 (6) OF THE ACT OF JANUARY 27, 1948, PUBLIC LAW

402, 62 STAT. 10, 11, 22 U.S.C. 1466, 1467 (F), AND 1471 (6) );

3. MEMBERS OF THE ADVISORY COMMITTEES CREATED WITH APPROVAL OF THE

COMMISSION ON INFORMATION AND THE COMMISSION ON EDUCATIONAL

EXCHANGE, IN ACCORDANCE WITH SECTION 801 (6) OF THE ACT OF

JANUARY 27, 1948, PUBLIC LAW 402, 22 U.S.C. 1471 (6);

4.MEMBERS OF THE BOARD OF FOREIGN SCHOLARSHIPS APPOINTED IN

ACCORDANCE WITH SECTION 32 (B) (2) OF THE ACT OF OCTOBER 3, 1944,

58 STAT. 782, AS AMENDED, 50 U.S.C. APP. 1641 (B) (2).

CONCERNING THE FIRST THREE CATEGORIES LISTED ABOVE, THE APPLICABLE PROVISIONS OF LAW EXPRESSLY AUTHORIZE A PER DIEM IN LIEU OF SUBSISTENCE NOT IN EXCESS OF $10 PER DAY FOR THE MEMBERS AND EXPERTS OF SUCH COMMISSIONS AND ADVISORY COMMITTEES, PAYABLE UNDER THE CIRCUMSTANCES DESCRIBED IN EACH SUCH SECTION.

AS INDICATED IN THE ASSISTANT SECRETARY'S LETTER OF OCTOBER 14, 1955, THE MAXIMUM RATES OF REGULAR PER DIEM IN LIEU OF SUBSISTENCE AUTHORIZED UNDER SECTION 5 OF THE ADMINISTRATIVE EXPENSES ACT WERE INCREASED FROM $10 TO $15 BY PUBLIC LAW 189 AND, IN CERTAIN CIRCUMSTANCES NOT TO EXCEED $25 FOR EACH DAY AN EMPLOYEE SERVING WITHOUT COMPENSATION IS IN A TRAVEL STATUS. PUBLIC LAW 189, HOWEVER, CONTAINS NO GENERAL OR SPECIAL REPEAL PROVISION, OR ANY OTHER LANGUAGE WHICH WOULD EVIDENCE ANY CONFLICT WITH THE ABOVE- CITED PROVISIONS OF PUBLIC LAW 565 OF 1946 OR OF PUBLIC LAW 402 OF 1948.

GENERALLY, REPEALS OR MODIFICATIONS OF STATUTES BY IMPLICATION ARE NOT FAVORED UNLESS THE STATUTES IN QUESTION ARE IN IRRECONCILABLE CONFLICT, OR UNLESS THE INTENT OF THE LATER LAW CLEARLY IS TO COVER THE WHOLE GROUND OCCUPIED BY THE EARLIER STATUTE AND IS TO BE A SUBSTITUTE FOR IT.THE LEGISLATIVE HISTORY OF SECTION 5 OF PUBLIC LAW 1 AND ITS AMENDMENT BY SECTION 2 OF PUBLIC LAW 189 DOES NOT REVEAL ANY CONGRESSIONAL INTENT THAT SUCH SECTION COMPRISES THE SOLE AUTHORITY FOR THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO "ALL PERSONS" SERVING THE UNITED STATES WITHOUT COMPENSATION. NOR CAN WE FIND ANY INDICATION IN THE LEGISLATIVE HISTORY, AS SUGGESTED IN THE LETTER OF OCTOBER 14, 1955, THAT PUBLIC LAW 189 WAS INTENDED TO INCREASE THE PER DIEM RATES SPECIFICALLY AUTHORIZED UNDER OTHER STATUTES FOR CERTAIN CLASSES OF PERSONS EMPLOYED WITHOUT COMPENSATION. ANY INADVERTENT OMISSION BY THE CONGRESS OF LANGUAGE IN THE ACTS IN QUESTION CANNOT BE SUPPLIED BY IMPLICATION OR BY CONSTRUCTION BY OUR OFFICE.

ACCORDINGLY, IT MUST BE CONCLUDED THAT SECTION 5 OF THE ACT OF AUGUST 2, 1946, AS AMENDED, SUPRA, IS NOT APPLICABLE TO THE PERSONS DESCRIBED IN THE CATEGORIES 1 THROUGH 3.

AS TO THE FOURTH CATEGORY, THE STATUTE AUTHORIZING THE APPOINTMENT OF MEMBERS OF THE BOARD OF FOREIGN SCHOLARSHIPS MAKES NO PROVISION FOR THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE. HOWEVER, THE LETTER OF OCTOBER 14, 1955, REFERS TO SECTION 1009 OF PUBLIC LAW 402, APPROVED JANUARY 27, 1948, 22 U.S.C. 1440, WHICH READS " ALL PROVISIONS IN THIS ACT REGULATING THE ADMINISTRATION OF INTERNATIONAL INFORMATION ACTIVITIES AND EDUCATIONAL EXCHANGES PROVIDED HEREIN, SHALL APPLY TO ALL SUCH INTERNATIONAL ACTIVITIES UNDER JURISDICTION OF THE DEPARTMENT OF STATE.' SECTIONS 601, 602 (F), AND 801 (6) OF THE ACT OF JANUARY 27, 1948, ARE THE SECTIONS UNDER WHICH VARIOUS ADVISORY COMMITTEES AND COMMISSIONS ON INTERNATIONAL INFORMATION ACTIVITIES AND EDUCATIONAL EXCHANGES WERE CREATED AND WHICH SPECIFICALLY PRESCRIBE A PER DIEM IN LIEU OF SUBSISTENCE OF NOT TO EXCEED $10 PER DAY FOR THE MEMBERS THEREOF. APPARENTLY, THE PURPOSE OF THE REFERENCE TO SECTION 1009 WAS TO INDICATE THE POSSIBILITY OF THAT SECTION HAVING HAD THE EFFECT OF MAKING SECTIONS 601, 602 (F), AND 801 (6) APPLICABLE TO THE BOARD OF FOREIGN SCHOLARSHIPS SO AS TO AUTHORIZE THE SAME PER DIEM IN LIEU OF SUBSISTENCE FOR MEMBERS OF THE BOARD AS AUTHORIZED THEREIN FOR MEMBERS OF THE VARIOUS COMMITTEES AND COMMISSIONS.

IT INFORMALLY HAS BEEN ASCERTAINED FROM YOUR DEPARTMENT THAT PRIOR TO THE ACT OF JANUARY 27, 1948, MEMBERS OF THE BOARD OF FOREIGN SCHOLARSHIPS WERE PAID PER DIEM IN LIEU OF SUBSISTENCE IN ACCORDANCE WITH SECTION 5 OF THE ACT OF AUGUST 2, 1946, THERE BEING NO OTHER SPECIFIC STATUTORY AUTHORITY THEREFOR. SINCE SECTION 5 OF THE ACT OF AUGUST 2, 1946, WAS CONTROLLING AT THE TIME OF THE ENACTMENT OF THE ACT OF JANUARY 27, 1948, WE DO NOT FEEL THAT THE GENERAL LANGUAGE OF SECTION 1009--- IN THE ABSENCE OF ANY INDICATION IN THE LEGISLATIVE HISTORY THEREOF TO THE CONTRARY--- IS A SUFFICIENT BASIS FOR THE VIEW THAT SECTION 5 OF THE ACT OF AUGUST 2, 1946, WAS IN EFFECT SUPERSEDED BY SECTION 1009. IT MUST BE HELD, THEREFORE, THAT SECTION 5 OF THE ACT OF AUGUST 2, 1946, CONTINUED TO BE AND IS STILL THE AUTHORITY FOR PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE TO MEMBERS OF THE BOARD OF FOREIGN SCHOLARSHIPS. UPON THAT CONCLUSION IT FOLLOWS THAT THE INCREASES IN THE PER DIEM RATES AUTHORIZED BY THE AMENDMENT OF SECTION 5 BY THE ACT OF JULY 28, 1955, PUBLIC LAW 189, ARE APPLICABLE TO THIS GROUP.