B-120742, JUNE 21, 1956, 35 COMP. GEN. 703

B-120742, JUNE 21, 1956, 35 COMP. GEN. 703

MARITIME ADMINISTRATOR - DELEGATION OF AUTHORITY - CLOTHING ALLOWANCES - ENROLLEES OF MARITIME SERVICE THE AUTHORITY DELEGATED BY THE SECRETARY OF COMMERCE TO THE MARITIME ADMINISTRATOR TO ESTABLISH CLOTHING MAINTENANCE ALLOWANCES FOR ENROLLEES OF THE MARITIME SERVICE MAY BE REDELEGATED TO SUBORDINATES. 34 COMP. GEN. 281, MODIFIED.

TO THE SECRETARY OF COMMERCE, JUNE 21, 1956:

REFERENCE IS MADE TO LETTER OF MAY 3, 1956, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTING REVIEW OF THAT PORTION OF OUR DECISION OF DECEMBER 9, 1954, TO YOU, B-120742, 34 COMP. GEN. 281, IN WHICH WE STATED THAT THE SECRETARY OF COMMERCE WAS NOT AUTHORIZED TO DELEGATE TO SUBORDINATES THE AUTHORITY VESTED IN HIM TO ESTABLISH CLOTHING MAINTENANCE ALLOWANCES FOR ENROLLEES OF THE MARITIME SERVICE BELOW OFFICER RANK WHILE ON ACTIVE ADMINISTRATIVE DUTY.

THE DECISION IN THAT CASE WAS BASED ON THE RULE STATED AT 39 COMP. GEN. 151 TO THE EFFECT THAT DISCRETIONARY AUTHORITY MAY NOT BE DELEGATED--- IN THE ABSENCE OF A CLEAR EXPRESSION TO THE CONTRARY--- TO OTHER THAN OFFICIALS AUTHORIZED BY LAW TO ACT IN PLACE OF THE HEAD OF THE AGENCY.

IT IS NOW URGED IN THE LETTER OF MAY 3 THAT SECTION 204 OF REORGANIZATION PLAN NO. 21 OF 1950, 64 STAT. 1276, DOES CONSTITUTE "A CLEAR EXPRESSION TO THE CONTRARY" AND THAT IN VIEW OF OUR DECISION APPEARING AT 30 COMP. GEN. 366, THE SECRETARY PROPERLY MAY NOT ONLY DELEGATE TO THE MARITIME ADMINISTRATOR THE AUTHORITY TO ESTABLISH CLOTHING MAINTENANCE ALLOWANCES BUT THAT HE ALSO MAY AUTHORIZE THE REDELEGATION OF SUCH AUTHORITY.

THE DECISION AT 30 COMP. GEN. 366 INVOLVED THE QUESTION WHETHER SECTION 2 OF REORGANIZATION PLAN NO. 3 OF 1950, 64 STAT. 1262, CONTEMPLATED REDELEGATION BY SUBORDINATES OF AUTHORITY DELEGATED TO THEM. THAT SECTION PROVIDES---

THE SECRETARY OF THE INTERIOR MAY FROM TIME TO TIME MAKE SUCH PROVISIONS AS HE SHALL DEEM APPROPRIATE AUTHORIZING THE PERFORMANCE BY ANY OTHER OFFICER, OR BY ANY OTHER AGENCY OR EMPLOYEE, OF THE DEPARTMENT OF THE INTERIOR OF ANY FUNCTION OF THE SECRETARY, INCLUDING ANY FUNCTION TRANSFERRED TO THE SECRETARY BY THE PROVISIONS OF THIS REORGANIZATION PLAN.

AFTER REVIEWING THE LEGISLATIVE HISTORY OF REORGANIZATION PLAN NO. 5 OF 1950, 64 STAT. 1263, WHICH EXPLAINED THE PURPOSE OF LANGUAGE VESTING SIMILAR AUTHORITY IN THE SECRETARY OF COMMERCE, THE QUESTION WAS ANSWERED IN THE AFFIRMATIVE.

SECTION 204 OF REORGANIZATION PLAN NO. 21 OF 1950 READS AS FOLLOWS:

SEC. 204. TRANSFER OF FUNCTIONS.--- EXCEPT AS OTHERWISE PROVIDED IN PART I OF THIS REORGANIZATION PLAN, ALL FUNCTIONS OF THE UNITED STATES MARITIME COMMISSION AND OF THE CHAIRMAN OF SAID COMMISSION ARE HEREBY TRANSFERRED TO THE SECRETARY OF COMMERCE. THE SECRETARY OF COMMERCE MAY FROM TIME TO TIME MAKE SUCH PROVISIONS AS HE SHALL DEEM APPROPRIATE AUTHORIZING THE PERFORMANCE BY THE MARITIME ADMINISTRATOR OF ANY FUNCTION TRANSFERRED TO SUCH SECRETARY BY THE PROVISIONS OF THIS REORGANIZATION PLAN.

IT IS TO BE NOTED THAT THE LANGUAGE OF SECTION 204 DIFFERS FROM THE LANGUAGE OF SECTION 2 OF REORGANIZATION PLAN NO. 3 OF 1950 IN THAT THE SECRETARY OF THE INTERIOR BY REORGANIZATION PLAN NO. 3 WAS AUTHORIZED TO PROVIDE FOR THE PERFORMANCE OF HIS FUNCTIONS BY ANY OTHER OFFICER, AGENCY, OR EMPLOYEE OF HIS DEPARTMENT WHEREAS SECTION 204 OF PLAN NO. 21 PROVIDES THAT THE SECRETARY OF COMMERCE MAY PROVIDE FOR THE PERFORMANCE OF HIS FUNCTIONS BY THE MARITIME ADMINISTRATOR.

IN VIEW OF THE PROVISIONS OF SECTION 204 IT IS CLEAR THAT THE SECRETARY OF COMMERCE MAY DELEGATE AUTHORITY TO THE MARITIME ADMINISTRATOR TO PERFORM THE FUNCTIONS CONFERRED UPON THE SECRETARY OF COMMERCE BY SUCH REORGANIZATION PLAN. QUESTION REMAINS, HOWEVER, WHETHER THE SECRETARY MAY AUTHORIZE REDELEGATION OF SUCH DELEGATED AUTHORITY.

REORGANIZATION PLAN NO. 21 WAS SUBMITTED BY THE PRESIDENT TO THE CONGRESS TOGETHER WITH PLANS 1 THROUGH 20. EXCEPT FOR PLAN NO. 21 THOSE PLANS CONTAIN PROVISIONS, GENERALLY, SIMILAR TO THOSE CONTAINED IN PLANS 3 AND 5 MENTIONED HEREIN. QUESTION THUS ARISES WHETHER THE PARTICULAR WORDING OF SECTION 204 WAS INTENDED TO PRECLUDE REDELEGATION OF DELEGATED AUTHORITY WHICH IS PERMITTED GENERALLY UNDER THE PROVISIONS OF THE OTHER REORGANIZATION PLANS SUBMITTED ALONG WITH PLAN 21. IT WOULD SEEM THAT IF IT WERE INTENDED THAT THE AUTHORITY IN THIS RESPECT WAS TO BE DIFFERENT THATN THAT CONTEMPLATED IN THE OTHER PLANS SUBMITTED BY THE PRESIDENT SOME INDICATION THEREOF WOULD BE FOUND IN THE PRESIDENT'S LETTER ACCOMPANYING THE PLAN OR REFLECTED IN ITS LEGISLATIVE HISTORY. NO SUCH INDICATION HAS BEEN FOUND. HOWEVER, THERE IS NOTED THE STATEMENT IN STAFF MEMORANDUM NO. 81-2-44, DATED MARCH 28, 1950, OF THE SENATE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS (PAGE 11 OF THE HEARINGS BEFORE SUCH COMMITTEE ON THE PLAN) AS FOLLOWS:

THE FUNCTIONS TRANSFERRED TO THE MARITIME ADMINISTRATION WOULD BE VESTED IN THE SECRETARY OF COMMERCE WITH AUTHORITY TO REDELEGATE SUCH RESPONSIBILITY TO THE NEW ADMINISTRATOR OR ANY OTHER SUBORDINATE.

SECTION 204 IS EXPLAINED IN THE PRESIDENT'S LETTER WHICH ACCOMPANIED THE PLAN AS FOLLOWS:

THE OTHER FUNCTIONS OF THE MARITIME COMMISSION, INCLUDING CARRYING OUT THE SUBSIDY AGREEMENTS MADE BY THE BOARD AND ADMINISTERING THE VARIOUS OPERATING PROGRAMS, ARE TRANSFERRED TO THE SECRETARY OF COMMERCE FOR ADMINISTRATION THROUGH THE MARITIME ADMINISTRATION.

THE DIRECTOR OF THE BUREAU OF THE BUDGET ALSO EXPLAINED THAT---

IN BRIEF, THIS REORGANIZATION PLAN PROVIDES FOR A SMALL FEDERAL MARITIME BOARD AND A MARITIME ADMINISTRATION IN THE DEPARTMENT OF COMMERCE, AND VESTS IN THE BOARD THE REGULATORY FUNCTIONS OF THE MARITIME COMMISSION AND THE DETERMINATION AND AWARD OF SUBSIDIES. ALL OTHER FUNCTIONS OF THE EXISTING AGENCY ARE TRANSFERRED TO THE SECRETARY OF COMMERCE FOR ADMINISTRATION THROUGH THE MARITIME ADMINISTRATOR. * * *

SEE PAGE 26 OF THE SENATE HEARINGS ENTITLED REORGANIZATION PLAN NO. 21 OF 1950, HELD IN CONNECTION WITH S. RES. 265 WHICH WOULD HAVE DISAPPROVED THE PLAN.

THUS THE PURPOSE OF SECTION 204 APPEAR TO HAVE BEEN TO INSURE THAT THE FUNCTIONS TRANSFERRED TO THE SECRETARY AND NOT CARRIED OUT BY HIM WOULD BE PERFORMED BY THE MARITIME ADMINISTRATOR AND NO OTHER AGENCY OF THE DEPARTMENT OF COMMERCE. THIS OFFERS A REASONABLE EXPLANATION FOR THE DIFFERENCE IN LANGUAGE IN SECTION 204 AND THE PROVISIONS IN THE OTHER PLANS RELATING TO PERFORMANCE OF FUNCTIONS. ACCORDINGLY, AND SINCE YOUR DEPARTMENT, AS EVIDENCED BY THE NOTES SET FORTH FOLLOWING SECTION 1111 OF TITLE 46, U.S. CODE, LONG HAS CONSTRUED THE PROVISIONS OF SECTION 204 AS PERMITTING REDELEGATION OF DELEGATED AUTHORITY BY THE MARITIME ADMINISTRATOR WHEN AUTHORIZED BY THE SECRETARY, WE WILL NOT FURTHER QUESTION THE AUTHORITY OF THE MARITIME ADMINISTRATOR TO REDELEGATE TO A SUBORDINATE THE AUTHORITY TO ESTABLISH THE CLOTHING MAINTENANCE ALLOWANCES FOR ENROLLEES OF THE MARITIME SERVICE. 34 COMP. GEN. 281 IS MODIFIED ACCORDINGLY.