B-130460, MAY 17, 1957

B-130460: May 17, 1957

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OPNAV INSTRUCTION 4900.31 WHICH WERE THE SUBJECT OF OUR LETTER OF FEBRUARY 28. PARAGRAPH 13 (A) (3) OF THESE REGULATIONS PROVIDES: "WHERE AMERICAN REGISTERED CARRIERS WILL NOT ACCEPT AVAILABLE LOCAL CURRENCIES TRAVEL MAY BE ON FOREIGN FLAG CARRIERS THROUGH THE USE OF CONTRIBUTED CURRENCY.'. PROVIDES: "ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED. INSOFAR AS TRAVEL BY SHIP IS CONCERNED.

B-130460, MAY 17, 1957

TO THE SECRETARY OF DEFENSE:

WE AGAIN REFER TO JOINT REGULATIONS ISSUED ON SEPTEMBER 4, 1956, UNDER AIR FORCE REGULATION 65-11, ARMY REGULATION 1-75, AND OPNAV INSTRUCTION 4900.31 WHICH WERE THE SUBJECT OF OUR LETTER OF FEBRUARY 28, 1957, AND REPLY DATED APRIL 12, 1957, OF MAURICE H. LANMAN, JR., ASSISTANT GENERAL COUNSEL (FISCAL MATTERS).

PARAGRAPH 13 (A) (3) OF THESE REGULATIONS PROVIDES:

"WHERE AMERICAN REGISTERED CARRIERS WILL NOT ACCEPT AVAILABLE LOCAL CURRENCIES TRAVEL MAY BE ON FOREIGN FLAG CARRIERS THROUGH THE USE OF CONTRIBUTED CURRENCY.'

SECTION 901/A) OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, 68 STAT. 832, 46 U.S.C. 1241/A), PROVIDES:

"ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR.'

PARAGRAPH 13 (A) (3), SUPRA, INSOFAR AS TRAVEL BY SHIP IS CONCERNED, IS IN DIRECT CONFLICT WITH THE PROVISIONS OF SECTION 901/A) OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, AND IN THE ABSENCE OF STATUTORY AUTHORITY OR AN EXECUTIVE ORDER ISSUED PURSUANT THERETO AUTHORIZING THE DEPARTMENT OF DEFENSE TO DISREGARD SECTION 901 (A), SUPRA, MUST BE HELD TO BE INVALID.

THE PRESIDENT MAY AUTHORIZE THE PERFORMANCE OF FUNCTIONS UNDER THE MUTUAL SECURITY ACT OF 1954 WITHOUT REGARD TO CERTAIN LAWS RELATING TO THE MAKING OF CONTRACTS AND THE EXPENDITURE OF FUNDS. 22 U.S.C. 1793. UNDER THAT AUTHORITY OR SIMILAR AUTHORITY IN EARLIER ACTS, EXECUTIVE ORDER 10519, DATED MARCH 5, 1954, 19 F.R. 1333, AUTHORIZED THE DISREGARDING OF SECTION 901/A), SUPRA, IN THE PERFORMANCE OF FUNCTIONS AUTHORIZED BY THE MUTUAL SECURITY ACT OF 1951, AS AMENDED,"EXCEPT THOSE EXERCISED BY THE DEPARTMENT OF DEFENSE UNDER AUTHORITY OF SECTION 506 OF THE SAID ACT OR THE MUTUAL DEFENSE ASSISTANCE ACT OF 1949, AS AMENDED.' THE MUTUAL SECURITY FUNCTIONS OF THE DEPARTMENT OF DEFENSE ARE THUS SPECIFICALLY EXCLUDED FROM THIS EXECUTIVE ORDER.

SECTION 107 (A) (3) OF EXECUTIVE ORDER 10575, NOVEMBER 6, 1954, 19 F.R. 7249, RESERVED TO THE PRESIDENT HIS FUNCTIONS UNDER SECTION 533 OF THE MUTUAL SECURITY ACT OF 1954 (22 U.S.C. 1793), AND SECTION 302/C) OF SAID EXECUTIVE ORDER CONTINUED IN EFFECT PRIOR EXECUTIVE ORDERS. NEITHER THIS EXECUTIVE ORDER NOR EXECUTIVE ORDER 10625, DATED AUGUST 2, 1955, 20 F.R. 557, WHICH MADE EXECUTIVE ORDERS ISSUED PRIOR TO THE MUTUAL SECURITY ACT OF 1954, APPLICABLE TO THE MUTUAL SECURITY ACT OF 1954, AS AMENDED, AUTHORIZED THE DEPARTMENT OF DEFENSE TO DISREGARD THE PROVISION OF SECTION 901/A), SUPRA, IN CARRYING OUT ITS MUTUAL SECURITY FUNCTIONS.

THE FACT THAT "FAILURE TO USE LOCAL CURRENCIES FOR TRANSPORTATION COSTS WOULD RESULT IN LOSS OF USE OF SUCH CURRENCIES TO THE UNITED STATES GOVERNMENT," REFERRED TO IN MR. LANMAN'S LETTER OF APRIL 12, DOES NOT WARRANT THE DEPARTMENT'S DISREGARDING THE PROVISIONS OF SECTION 901/A), SUPRA. WE HELD IN 31 COMP. GEN. 351, 353,"IN VIEW OF THE PURPOSE OF SECTION 901, ECONOMY ALONE GENERALLY MAY NOT BE RELIED UPON AS A BASIS FOR USING FOREIGN VESSELS.' NOR DOES SECTION 411/A) OF THE MUTUAL SECURITY ACT OF 1954, AS AMENDED, 68 STAT. 846, AUTHORIZE TRAVEL ON FOREIGN VESSELS CONTRARY TO THE PROVISIONS OF SECTION 901/A), SUPRA. THERE IS NOTHING IN THE LANGUAGE OF SECTION 411/A) NOR IN ITS LEGISLATIVE HISTORY WHICH INDICATES IT WAS THE INTENT OF CONGRESS TO ABROGATE OR REPEAL SECTION 901/A) OF THE MERCHANT MARINE ACT OF 1936.

SINCE STATUTORY AUTHORITY IS LACKING AND SINCE THERE APPEARS TO BE NO EXECUTIVE ORDER AUTHORIZING THE DEPARTMENT OF DEFENSE TO DISREGARD THE PROVISIONS OF SECTION 901/A) OF THE MERCHANT MARINE ACT OF 1936, WE ARE OF THE OPINION THAT PARAGRAPH 13 (A) (3) OF JOINT REGULATIONS ISSUED SEPTEMBER 4, 1956, IS INVALID. ACCORDINGLY, UNLESS THE PRESIDENT BY EXECUTIVE ORDER EXEMPTS TRAVEL OF THE MILITARY ASSISTANCE ADVISORY GROUPS AND THEIR DEPENDENTS FROM COMPLYING WITH SECTION 901/A) OF THE MERCHANT MARINE ACT, IT APPEARS THAT THE PARAGRAPH INSOFAR AS TRAVEL BY SHIP IS CONCERNED IS UNAUTHORIZED AND SHOULD BE MODIFIED.

IT IS REQUESTED THAT WE BE KEPT ADVISED OF THE ACTION TAKEN IN THE MATTER.