B-147977, JAN. 31, 1962

B-147977: Jan 31, 1962

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NOT TO EXCEED THE RATES OF PER DIEM ESTABLISHED PURSUANT TO SECTION 836 OF THIS TITLE IN LIEU OF SUBSISTENCE EN ROUTE AND AT PLACE OF SUCH SERVICE OR EMPLOYMENT UNLESS A HIGHER RATE IS SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT * * *.'. YOU SAY THE PHRASE "UNLESS A HIGHER RATE IS SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT" SEEMS TO IMPLY THAT A LOWER CEILING THAT IS SPECIFICALLY PROVIDED IN AN ACT. THIS AMENDATORY STATUTE WAS COMPARABLE IN PURPOSE TO PUBLIC LAW 87- 139 HERE IN QUESTION. 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.

B-147977, JAN. 31, 1962

TO DIRECTOR, OFFICE OF EMERGENCY PLANNING:

YOUR LETTER OF JANUARY 16, 1962, REQUESTS OUR DECISION UPON THE QUESTION WHETHER "PERSONS RECEIVING PER DIEM IN LIEU OF SUBSISTENCE UNDER SUBSECTIONS 710 (B), 710 (C), AND 710 (E) OF THE DEFENSE PRODUCTION ACT MAY BE PAID $16 PER DIEM IN LIEU OF SUBSISTENCE UNDER SECTION 5 OF THE ADMINISTRATION EXPENSES ACT OF 1946.'

YOU POINT OUT THAT PERSONS APPOINTED AND EMPLOYED UNDER SUBSECTIONS 710 (B), (C), AND (E) OF THE DEFENSE PRODUCTION ACT, 69 STAT. 582, 64 STAT. 819, AND 69 STAT. 583, RESPECTIVELY, MAY BE ALLOWED NOT TO EXCEED $15 PER DIEM IN LIEU OF SUBSISTENCE AS PRESCRIBED THEREIN, AND THAT PUBLIC LAW 87- 139 APPROVED AUGUST 14, 1961, 75 STAT. 339, INCREASED THE MAXIMUM PER DIEM RATE IN SEVERAL STATUTES TO $16 BUT DID NOT SPECIFICALLY AMEND THE ABOVE- REFERRED-TO SUBSECTIONS OF THE DEFENSE PRODUCTION ACT.

5 U.S.C. 73B-2, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 14, 1961, 75 STAT. 339, PUBLIC LAW 87-139, READS, IN PERTINENT PART, AS FOLLOWS:

"PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SECTIONS 73A, 821-823 AND 827-833 OF THIS TITLE, AND PERSONS SERVING WITHOUT COMPENSATION OR AT $1 PER ANNUM MAY BE ALLOWED, WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, TRANSPORTATION IN ACCORDANCE WITH SAID REGULATIONS AND SECTION 73A OF THIS TITLE, AND NOT TO EXCEED $16 PER DIEM WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES AND BEYOND SUCH LIMITS, NOT TO EXCEED THE RATES OF PER DIEM ESTABLISHED PURSUANT TO SECTION 836 OF THIS TITLE IN LIEU OF SUBSISTENCE EN ROUTE AND AT PLACE OF SUCH SERVICE OR EMPLOYMENT UNLESS A HIGHER RATE IS SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT * * *.'

YOU SAY THE PHRASE "UNLESS A HIGHER RATE IS SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT" SEEMS TO IMPLY THAT A LOWER CEILING THAT IS SPECIFICALLY PROVIDED IN AN ACT--- THE DEFENSE PRODUCTION ACT- - WOULD NO LONGER BE APPLICABLE BUT, IN EFFECT, WOULD GIVE WAY TO THE HIGHER RATE.

THE ACT OF JULY 28, 1955, 69 STAT. 393, PUBLIC LAW 189, INCREASED THE MAXIMUM PER DIEM ALLOWANCE AND SPECIFICALLY AMENDED ONLY CERTAIN OTHER ACTS. THIS AMENDATORY STATUTE WAS COMPARABLE IN PURPOSE TO PUBLIC LAW 87- 139 HERE IN QUESTION. IN OUR DECISION 35 COMP. GEN. 349, INTERPRETING PUBLIC LAW 189, WE SAID:

"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 600 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 * * *. NOR CAN WE FIND ANY INDICATION IN THE LEGISLATIVE HISTORY * * * THAT PUBLIC LAW 189 WAS INTENDED TO INCREASE THE PER DIEM RATES SPECIFICALLY AUTHORIZED UNDER OTHER STATUTES FOR CERTAIN CLASSES OF PERSONS * * *. ANY INADVERTENT OMISSION BY THE CONGRESS OF LANGUAGE IN THE ACTS IN QUESTION CANNOT BE SUPPLIED BY IMPLICATION OR BY CONSTRUCTION BY OUR OFFICE.'

WHAT WE SAID IN THAT PART OF THE DECISION JUST QUOTED IS EQUALLY APPLICABLE HERE. WHILE PUBLIC LAW 87-139 EXPRESSLY AMENDED 5 U.S.C. 73B- 2, AS WELL AS PARTS OF OTHER SPECIFIC ACTS, IT CONTAINS NO GENERAL OR SPECIFIC REPEAL PROVISIONS, NOR DOES IT CONTAIN ANY LANGUAGE WHICH WOULD EVIDENCE ANY INTENT TO CHANGE THE $15 PER DIEM IN LIEU OF SUBSISTENCE PRESCRIBED IN THE FOREGOING SUBSECTIONS OF THE DEFENSE PRODUCTION ACT. MOREOVER, THOSE PROVISIONS WERE ENACTED SUBSEQUENT TO THE ORIGINAL AUTHORITY IN 5 U.S.C. 73B-2 AND ARE COMPLETELY INDEPENDENT OF SUCH AUTHORITY. WE FIND NO LEGAL BASIS FOR ALLOWING INDIVIDUALS WHO ARE SUBJECT TO THE DEFENSE PRODUCTION ACT PROVISIONS TO USE THE AUTHORITY CONTAINED IN 5 U.S.C. 73B-2. B-147212, OCTOBER 4, 1961.