B-146030, JUL. 24, 1961

B-146030, JUL. 24, 1961

TO THE SECRETARY OF STATE:

ON JUNE 1, 1961, YOUR ASSISTANT SECRETARY FOR ADMINISTRATION INFORMED US THAT THE DEPARTMENT OF STATE HAS ESTABLISHED IN THE CANAL ZONE AN OFFICE OF POLITICAL ADVISER TO THE COMMANDER-IN-CHIEF, CARIBBEAN COMMAND, AND THAT THE OFFICE WILL CONSIST OF A FOREIGN SERVICE OFFICER AND POSSIBLY A FOREIGN SERVICE STAFF EMPLOYEE. IN THAT CONNECTION THE ASSISTANT SECRETARY REQUESTS OUR ANSWERS TO TWO QUESTIONS, AS FOLLOWS:

1. IS THERE STATUTORY AUTHORITY TO INCLUDE FOREIGN SERVICE OFFICERS AND EMPLOYEES ASSIGNED TO THE CANAL ZONE AMONG THOSE EMPLOYEES ENTITLED TO THE "TROPICAL POST DIFFERENTIAL" PROVIDED BY SECTION 7 (A) (2) OF PUBLIC LAW 85-550, 72 STAT. 405, 407?

2. IF THE ANSWER TO QUESTION NO. 1 IS YES, WOULD THE DEPARTMENT OF STATE BE AUTHORIZED TO PAY SUCH DIFFERENTIAL AS OF THE DATE OF ARRIVAL OF PERSONNEL IN THE CANAL ZONE?

AS STATED IN THE ASSISTANT SECRETARY'S LETTER, THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS) ISSUED BY THE DEPARTMENT OF STATE, DO NOT PRESCRIBE ALLOWANCES OR DIFFERENTIALS FOR GOVERNMENT EMPLOYEES STATIONED IN UNITED STATES POSSESSIONS AND TERRITORIES. IN THAT REGARD WE NOTE THAT IN SECTION 111 (6) OF PUBLIC LAW 86-707, 74 STAT. 792, 5 U.S.C. 3032 (6), THE TERM "FOREIGN AREA" MEANS ANY AREA "* * * SITUATED OUTSIDE THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, AND THE POSSESSIONS OF THE UNITED STATES.' ALSO, WHILE THE PANAMA CANAL ZONE IS LISTED IN PART 326, TITLE 5, CODE OF FEDERAL REGULATIONS--- ISSUED AS FOREIGN SERVICE REGULATION NO. S-52, 13 F.R. 8725, DECEMBER 30, 1948--- THE CIVIL SERVICE COMMISSION'S REGULATIONS ENTITLED "TERRITORIAL POST DIFFERENTIALS AND COST-OF-LIVING ALLOWANCES," 5 C.F.R. 350.4 AND 350.10 (FEDERAL PERSONNEL MANUAL Z1-452 AND 455), DO NOT PROVIDE A TERRITORIAL POST DIFFERENTIAL FOR THE PANAMA CANAL ZONE. HOWEVER, SECTION 350.9 SUGGESTS THAT REQUESTS FOR THE ESTABLISHMENT OF RATES OF TERRITORIAL DIFFERENTIALS OR ALLOWANCES FOR PLACES FOR WHICH SUCH DIFFERENTIALS OR ALLOWANCES HAVE NOT BEEN ESTABLISHED BY THOSE REGULATIONS SHOULD BE SUBMITTED IN WRITING TO THE COMMISSION BY THE DEPARTMENTS AND AGENCIES CONCERNED.

CONCERNING THE "OVERSEAS (TROPICAL) DIFFERENTIAL" AUTHORIZED TO CERTAIN EMPLOYEES IN THE CANAL ZONE BY SECTION 7 (A) (2) OF PUBLIC LAW 85-550, THE ASSISTANT SECRETARY SAYS THAT:

"THAT DEPARTMENT OF STATE WOULD LIKE TO PAY THE OVERSEAS (TROPICAL) DIFFERENTIAL PROVIDED BY PUBLIC LAW 85-550 TO ITS EMPLOYEES ASSIGNED IN THE CANAL ZONE. IT IS BELIEVED THAT THE OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF STATE WOULD BE ELIGIBLE FOR THIS BENEFIT FOR THE FOLLOWING REASONS: (1) THEY ARE PERFORMING DUTIES IN THE CANAL ZONE UNDER THE JURISDICTION OF THE DEPARTMENT OF STATE; AND (2) THEY ARE EXPERIENCING THE SAME CONDITIONS WHICH WARRANT PAYMENT OF THE DIFFERENTIAL TO EMPLOYEES OF OTHER AGENCIES WHO ARE OTHERWISE COVERED BY PL 85-550 AND ARE STATIONED IN THE CANAL ZONE. NO PAYMENT OTHER THAN BASIC SALARY AND THE TROPICAL DIFFERENTIAL TO FOREIGN SERVICE EMPLOYEES STATIONED IN THE CANAL ZONE WOULD BE CONTEMPLATED.'

THE ABOVE-STATED REASON (1), THAT THE FOREIGN SERVICE OFFICER AND STAFF EMPLOYEE WOULD BE ,PERFORMING DUTIES IN THE CANAL ZONE," APPARENTLY LOOKS TO SUBSECTION 2 (2) (A) OF PUBLIC LAW 85-550 WHICH PARTLY DEFINES "POSITION" AS MEANING "DUTIES AND RESPONSIBILITIES OF A CIVILIAN NATURE" UNDER THE JURISDICTION OF A DEPARTMENT,"WHICH ARE PERFORMED IN THE CANAL ZONE.' WE NOTE THAT THE REGULATIONS OF THE SECRETARY OF THE ARMY, TO WHOM THE PRESIDENT BY EXECUTIVE ORDER NO. 10794, SECTION 2, DELEGATED THE REGULATORY AUTHORITY CONTAINED IN SECTIONS 3AND 15 OF PUBLIC LAW 85-550, DO NOT EXPRESSLY EXCLUDE FOREIGN SERVICE OFFICERS AND STAFF EMPLOYEES FROM THE PROVISIONS OF THE ACT AND REGULATIONS. SEE 24 F.R. 347, 5 C.F.R. 201 TO 210. THEREFORE, WE CONCLUDE THAT PUBLIC LAW 85-550, APPLIES IN ITS ENTIRETY TO EMPLOYEES OF THE DEPARTMENT OF STATE STATIONED IN THE CANAL ZONE UNLESS EXCLUDED ENTIRELY THEREFROM OR FROM ANY PROVISION THEREOF AS AUTHORIZED BY SECTION 3 (B) OF THE ACT.

WE ASSUME THAT THE DEPARTMENT DOES NOT DESIRE THAT THE FOREIGN SERVICE OFFICERS IN QUESTION BE DENIED THE COVERAGE OF THE STATUTES PERTAINING TO FOREIGN SERVICE OFFICERS IN GENERAL. WHILE IT MIGHT BE POSSIBLE TO EXCLUDE THE FOREIGN SERVICE OFFICERS STATIONED IN THE CANAL ZONE FROM ALL PROVISIONS OF PUBLIC LAW 85-550 EXCEPT SECTIONS 5 AND 7, WHICH PERTAIN TO THE FIXING OF BASIC COMPENSATION PLUS A TROPICAL DIFFERENTIAL, WE DO NOT BELIEVE SUCH PARTIAL EXCLUSION WOULD BE PRACTICABLE AND POSSIBLY NOT OTHERWISE CONSISTENT WITH THE VARIOUS PROVISIONS OF THE FOREIGN SERVICE ACT, PARTICULARLY SINCE IT IS POSSIBLE FOR THE CIVIL SERVICE COMMISSION TO PRESCRIBE A DIFFERENTIAL FOR EMPLOYEES OF THE DEPARTMENT IN THE CANAL ZONE.

WE SUGGEST THAT THE DEPARTMENT REQUEST THE SECRETARY OF THE ARMY TO EXCLUDE THE FOREIGN SERVICE OFFICER POSITIONS IN THE CANAL ZONE ENTIRELY FROM THE PROVISIONS OF PUBLIC LAW 85-550, AND THEN PETITION THE CIVIL SERVICE COMMISSION TO PRESCRIBE A TROPICAL DIFFERENTIAL FOR APPLICATION TO POSITIONS OF THE DEPARTMENT IN THE CANAL ZONE WHICH ARE THUS EXCLUDED.

IN LIGHT OF THE VIEWS EXPRESSED ABOVE NO SPECIFIC ANSWERS TO THE QUESTIONS PRESENTED ARE DEEMED NECESSARY.