B-160307, DECEMBER 5, 1966, 46 COMP. GEN. 548

B-160307, DECEMBER 5, 1966, 46 COMP. GEN. 548

AMERICAN BATTLE MONUMENTS COMMISSION - CONTRACT AUTHORITY - OUTSIDE THE UNITED STATES THE AMERICAN BATTLE MONUMENTS COMMISSION UNDER ITS AUTHORITY TO CONTRACT FOR SERVICES AND SUPPLIES OUTSIDE OF, OR FOR USE OUTSIDE THE UNITED STATES MAY CONSIDER THE ISLAND OF GUAM--- DEFINED IN 48 U.S.C. 1421A AS AN "INCORPORATED TERRITORY OF THE UNITED STATES"--- AND OKINAWA--- ONE OF THE RYUKYU ISLANDS WHICH IS UNDER THE ADMINISTRATION OF THE UNITED STATES--- TO BE OUTSIDE THE UNITED STATES, THE LEGISLATIVE HISTORIES PERTAINING TO THE COMMISSION INDICATING THAT HAD CONGRESS INTENDED TO INCLUDE THE ISLANDS IN THE TERM "UNITED STATES," IT WOULD HAVE USED THE QUALIFYING PHRASE "ITS TERRITORIES AND POSSESSIONS.' STATUTORY CONSTRUCTION - PRESUMPTION AGAINST SUPERFLUITY THE CONGRESS IN THE ACT OF MARCH 4, 1923, AS AMENDED, WHICH ESTABLISHED THE AMERICAN BATTLE MONUMENTS COMMISSION, USING THE TERM "UNITED STATES" ALONE IN SOME INSTANCES AND TOGETHER WITH THE PHRASE "TERRITORIES AND POSSESSIONS" IN OTHERS, IF THE TERM "UNITED STATES" WAS INTENDED TO INCLUDE THE PHRASE "TERRITORIES AND POSSESSIONS," THE USE IN SOME INSTANCES OF THE PHRASE "TERRITORIES AND POSSESSIONS" WOULD BE SUPERFLUOUS. THEREFORE, AS A STATUTE SHOULD BE CONSTRUED SO NO PART WILL BE SUPERFLUOUS, UNLESS THE PROVISION IS THE RESULT OF OBVIOUS MISTAKE OR ERROR, UNDER THE AUTHORITY OF THE COMMISSION TO CONTRACT FOR SUPPLIES AND SERVICES OUTSIDE OF, OR FOR USE OUTSIDE THE UNITED STATES (36 U.S.C. 138B), WITHOUT THE USE OF THE QUALIFYING PHRASE "TERRITORIES AND POSSESSIONS," THE ISLAND OF GUAM AND THE ISLAND OF OKINAWA MAY BE CONSIDERED OUTSIDE THE UNITED STATES.

TO THE CHAIRMAN, THE AMERICAN BATTLE MONUMENTS COMMISSION, DECEMBER 5, 1966:

LETTER DATED OCTOBER 24, 1966, FROM THE SECRETARY OF THE AMERICAN BATTLE MONUMENTS COMMISSION REQUESTS A DECISION AS TO WHETHER THE ISLAND OF GUAM AND THE ISLAND OF OKINAWA ARE "OUTSIDE * * * THE UNITED STATES" WITHIN THE MEANING OF THAT PHRASE AS USED IN THE SECOND PARAGRAPH OF SECTION 12 OF THE ACT OF MARCH 4, 1923, AS AMENDED, 36 U.S.C. 138B.

GUAM IS AN ISLAND LOCATED 5,100 MILES WEST OF SAN FRANCISCO, CALIFORNIA, AND IS DEFINED IN 48 U.S.C. 1421A AS AN "UNINCORPORATED TERRITORY OF THE UNITED STATES.' OKINAWA IS THE LARGEST ISLAND OF THE RYUKYU ISLANDS, A GROUP WHICH EXTENDS FROM SOUTHERN JAPAN TO FORMOSA. OKINAWA, IN ACCORDANCE WITH ARTICLE 3 OF THE PEACE TREATY WITH JAPAN, 3 U.S.T. 3169 (TIAS 2490), IS PRESENTLY UNDER THE ADMINISTRATION OF THE UNITED STATES AND IS BEING ADMINISTERED BY THE DEPARTMENT OF THE ARMY.

SECTION 14 OF THE ACT OF MARCH 4, 1923, AS ADDED THERETO BY THE ACT OF JUNE 26, 1946, 60 STAT. 317, WAS RENUMBERED SECTION 12 AND AMENDED BY THE ACT OF JULY 25, 1956, 70 STAT. 640 (36 U.S.C. 138B) TO READ, IN PERTINENT PART, AS FOLLOWS--- QUOTING FROM THE CODE:

NOTWITHSTANDING THE REQUIREMENTS OF EXISTING LAWS OR REGULATIONS, UNDER SUCH TERMS AND CONDITIONS AS THE COMMISSION MAY IN ITS DISCRETION DEEM NECESSARY AND PROPER, THE COMMISSION MAY CONTRACT FOR WORK, SUPPLIES, MATERIALS, AND EQUIPMENT OUTSIDE OF, OR FOR USE OUTSIDE THE UNITED STATES AND ENGAGE, BY CONTRACT OR OTHERWISE, THE SERVICES OF ARCHITECTS, FIRMS OF ARCHITECTS, AND OTHER TECHNICAL AND PROFESSIONAL PERSONNEL. THE ACT OF JUNE 26, 1946, AMENDED GENERALLY THE 1923 ACT AND FOR PURPOSES OF THE QUESTION RAISED MAY BE CONSIDERED THE BASIC ACT.

THE TERM "UNITED STATES" IS NOT DEFINED IN THE 1946 ACT OR IN THE 1956 AMENDING ACT (36 U.S.C. 121-138B), NOR IS THERE ANYTHING IN THE LEGISLATIVE HISTORIES OF SUCH ACTS TO INDICATE THE INTENDED SCOPE OF SUCH TERM. WE NOTE, HOWEVER, THAT IN THE 1946 ACT, AS AMENDED, THE TERM ,UNITED STATES" IS, IN SOME INSTANCES, FOLLOWED BY THE PHRASE "ITS TERRITORIES AND POSSESSIONS," WHILE IN ANOTHER INSTANCE THE PHRASE "OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES" IS USED (36 U.S.C. 125). HOWEVER, IN OTHER INSTANCES THE TERM "OUTSIDE THE UNITED STATES" IS USED WITHOUT A FURTHER QUALIFYING PHRASE, INCLUDING SUCH USE IN 36 U.S.C. 138B.

THE USE OF THE TERM "UNITED STATES" ALONE IN SOME INSTANCES, AND THE PHRASE "UNITED STATES, ITS TERRITORIES AND POSSESSIONS," IN OTHERS, WOULD INDICATE THAT THE CONGRESS DID NOT INTEND TO INCLUDE "TERRITORIES AND POSSESSIONS" AS BEING WITHIN THE SCOPE OF THE TERM "UNITED STATES," AS USED IN THE STATUTE IN QUESTION. IN OTHER WORDS, IF CONGRESS HAD INTENDED THAT WHEREVER USED IN THE ACT INVOLVED, THE TERM "UNITED STATES" WOULD INCLUDE "TERRITORIES AND POSSESSIONS," IT WOULD NOT HAVE CONSIDERED IT NECESSARY TO EXPRESSLY ADD SUCH LATTER PHRASE AFTER "UNITED STATES" IN ANY INSTANCE. IN SUCH A CASE THE ADDITION OF THE PHRASE "TERRITORIES AND POSSESSIONS" WOULD HAVE BEEN SUPERFLUOUS. IT IS WELL ESTABLISHED THAT A STATUTE SHOULD BE CONSTRUED SO THAT NO PART WILL BE SUPERFLUOUS, UNLESS THE PROVISION IS THE RESULT OF OBVIOUS MISTAKE OR ERROR. SEE SECTION 4705, SUTHERLAND, STATUTORY CONSTRUCTION,3RD EDITION.

IN LIGHT OF THE FOREGOING IT IS OUR VIEW THAT THE ISLAND OF GUAM AND THE ISLAND OF OKINAWA MAY BE CONSIDERED "OUTSIDE * * * THE UNITED STATES" WITHIN THE MEANING OF THAT PHRASE AS USED IN THE SECOND PARAGRAPH OF 36 U.S.C. 138B.