B-47368, FEBRUARY 12, 1945, 24 COMP. GEN. 610

B-47368, FEBRUARY 12, 1945, 24 COMP. GEN. 610

OFFICERS AND EMPLOYEES TEMPORARILY STATIONED IN FOREIGN COUNTRIES - QUARTERS AND LIVING ALLOWANCES WHILE THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED MAY DETERMINE, PURSUANT TO SECTION 13B (4) OF THE STANDARDIZED REGULATIONS GOVERNING THE PAYMENT OF LIVING AND QUARTERS ALLOWANCES TO CIVILIAN EMPLOYEES TEMPORARILY STATIONED IN FOREIGN COUNTRIES ( BUREAU OF THE BUDGET CIRCULAR A-8, PART II), THAT AN EMPLOYEE IS INELIGIBLE TO RECEIVE ANY ALLOWANCE, IF AN EMPLOYEE OTHERWISE HAS THE STATUS TO BRING HIM WITHIN THE SCOPE OF THE REGULATIONS, THERE IS NO ADMINISTRATIVE DISCRETION TO PAY A RATE LESS THAN THAT SPECIFICALLY PRESCRIBED BY THE REGULATIONS, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THE REGULATIONS.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, FEBRUARY 12, 945:

I HAVE YOUR LETTER OF JANUARY 25, 1945, AS FOLLOWS:

FOR THE PAST FEW YEARS, THE COMMISSION HAS EMPLOYED AMERICAN CITIZENS WITH TEMPORARY STATION IN LONDON, ENGLAND, ON A PROJECT THAT IS NOT EXPECTED TO CONTINUE AFTER THE WAR.

PRIOR TO JULY 1, 1944, THESE EMPLOYEES RECEIVED ALLOWANCES AUTHORIZED BY A PROVISION OF THE COMMISSION'S NATIONAL DEFENSE APPROPRIATION AS FOLLOWS: "ALLOWANCES FOR LIVING QUARTERS, INCLUDING HEAT, FUEL, AND LIGHT (NOT EXCEEDING $1,700 FOR ANY ONE PERSON), AS AUTHORIZED BY THE ACT APPROVED JUNE 26, 1930 (5 U.S.C. 118A).' SEE THE INDEPENDENT OFFICES APPROPRIATIONS ACT, 1944, APPROVED JUNE 26, 1943 ( PUBLIC LAW 90-78TH CONGRESS). IT WAS ADMINISTRATIVELY DETERMINED, PURSUANT TO THE APPLICABLE REGULATION, THAT PERSONS WITHOUT DEPENDENTS WOULD RECEIVE AN ALLOWANCE OF $1,000 A YEAR AND PERSONS HAVING DEPENDENTS $1,500.

THE PROVISION QUOTED ABOVE WAS STRICKEN FROM THE NATIONAL DEFENSE APPROPRIATION OF THE COMMISSION FOR THE FISCAL YEAR 1945 FOR THE REASON THAT THE MATTER WAS COVERED BY THE GENERAL PROVISION OF SEC. 209 OF THE INDEPENDENT OFFICES APPROPRIATIONS ACT, 1945, APPROVED JUNE 27, 1944 ( PUBLIC LAW 358-78TH CONGRESS). THE APPLICABLE PART OF SEC. 209 READS AS FOLLOWS:

"APPROPRIATIONS OF THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS FOR THE FISCAL YEAR 1945, AVAILABLE FOR EXPENSE OF TRAVEL ARE HEREBY MADE AVAILABLE (1) FOR ALLOWANCES FOR LIVING AND QUARTERS IN ACCORDANCE WITH STANDARDIZED REGULATIONS PRESCRIBED BY THE PRESIDENT FOR CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT TEMPORARILY STATIONED IN FOREIGN COUNTRIES, * * *"

IT IS UNDERSTOOD THAT THE REGULATIONS TO CARRY OUT THIS PROVISION OF LAW ARE TO BE FOUND IN PART II, PAGE 6, OF BUDGET CIRCULAR NO. A-8. THE CIRCULAR WAS ISSUED AUGUST 1, 1943, BUT PART II DID NOT BECOME APPLICABLE TO THE COMMISSION UNTIL JULY 1, 1944. PARAGRAPH 14 OF PART II OF THE CIRCULAR READS AS FOLLOWS:

"ALLOWANCES AUTHORIZED.--- AN EMPLOYEE WHOSE OFFICIAL HEADQUARTERS IS LOCATED AT A FOREIGN POST, WITH THE EXCEPTIONS SPECIFIED IN PARAGRAPH 13 HEREOF, SHALL RECEIVE A LIVING AND QUARTERS ALLOWANCE WHICH SHALL BE SPECIFICALLY AUTHORIZED OR APPROVED IN ACCORDANCE WITH THESE REGULATIONS BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED OR BY SUCH OFFICIAL AS HE MAY DESIGNATE.'

ON THE UNDERSTANDING THAT THE ALLOWANCES PRESCRIBED BY THE BUREAU OF THE BUDGET IN ACCORDANCE WITH THIS REGULATION WERE MAXIMUM ALLOWANCES, IT WAS ADMINISTRATIVELY DECIDED NOT TO INCREASE THE ALLOWANCES AS OF JULY 1, 1944. ON JANUARY 16, 1945, HOWEVER, THE COMMISSION RECONSIDERED THE MATTER AND INCREASED THE ALLOWANCES AS OF THAT DATE TO THE AMOUNTS PRESCRIBED BY THE BUREAU OF THE BUDGET AS FOLLOWS:

PERSONS WITH PERSONS WITHOUT

BASE SALARY: DEPENDENTS DEPENDENTS

BELOW $3,200---------------------- $1,612.80 $1,134.00

$3,200 TO $4,599------------------- 2,016.00 1,411.20

$4,600 AND OVER-------------------- 2,520.001,764.00

THE QUESTION SUBMITTED FOR DECISION IS WHETHER THE ALLOWANCES PRESCRIBED BY THE BUREAU OF THE BUDGET IN CONNECTION WITH PART II OF BUDGET CIRCULAR NO. A-8 ARE SPECIFIC ALLOWANCES AND OBLIGATE THE COMMISSION TO PAY AMERICAN EMPLOYEES STATIONED IN LONDON THE DIFFERENCE BETWEEN THE ALLOWANCES RECEIVED BY THEM AND THE ALLOWANCES SO PRESCRIBED FOR THE PERIOD JULY 1, 1944 THROUGH JANUARY 15, 1945.

IN DECISION OF DECEMBER 16, 1939, 19 COMP. GEN. 591, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHILE SECTION 1 (B) (3) OF REORGANIZATION PLAN NO. II PROVIDES THAT THE SECRETARY OF AGRICULTURE MAY DESIGNATE ANY OFFICER IN HIS DEPARTMENT TO RENDER "TEMPORARY SERVICE" IN A FOREIGN COUNTRY, WHERE THE FOREIGN PLACE TO WHICH AN OFFICER IS SO DETAILED IS ADMINISTRATIVELY FIXED AS HIS PERMANENT STATION FOR THE PERIOD OF DETAIL WITHOUT ALLOWANCE FOR SUBSISTENCE UNDER THE SUBSISTENCE ACT OF 1926, 44 STAT. 688, HE MAY BE REGARDED AS "HAVING PERMANENT STATION IN A FOREIGN COUNTRY" WITHIN THE MEANING OF THE ACT OF JUNE 26, 1930, 46 STAT. 818, PROVIDING A QUARTERS ALLOWANCE FOR EMPLOYEES SO STATIONED.

IT IS UNDERSTOOD, PURSUANT TO THAT RULE, THE EMPLOYEES MENTIONED IN THE FIRST PARAGRAPH OF YOUR LETTER WERE REGARDED AS "HAVING PERMANENT STATION IN A FOREIGN COUNTRY" AND THAT UNDER AUTHORITY CONTAINED IN THE 1944 APPROPRIATION ACT, CITED IN YOUR LETTER, 57 STAT. 174, AND THE EARLIER APPROPRIATION ACT OF OCTOBER 26, 1942, 56 STAT. 988, SUCH EMPLOYEES WERE PAID PRIOR TO JULY 1, 1944, A QUARTERS ALLOWANCE UNDER THE ACT OF JUNE 26, 1930, 46 STAT. 818 (5 U.S.C. 118A), WHICH AUTHORIZES SUCH ALLOWANCE "ONLY WITHIN THE LIMITS OF SUCH APPROPRIATIONS AS MAY BE MADE THEREFOR.' UNDER SAID STATUTES AND THE APPLICABLE REGULATIONS (SECTION 8, PART I, OF BUDGET CIRCULAR NO. A-B) THE AMOUNT OF THE ALLOWANCE WAS SUBJECT TO THE DISCRETION OF THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT AND SUBJECT ALSO, TO AVAILABLE APPROPRIATIONS AND MAXIMUM RATES FIXED BY THE REGULATION.

HOWEVER, BY VIRTUE OF THE OMISSION IN THE APPROPRIATION ITEM FOR THE FEDERAL COMMUNICATIONS COMMISSION FOR THE FISCAL YEAR 1945, CITED IN YOUR LETTER, OF THE AUTHORITY TO PAY ALLOWANCES FOR QUARTERS UNDER THE ACT OF JUNE 26, 1930, AND BY VIRTUE OF THE PROVISIONS OF SECTION 219 OF THE SAME APPROPRIATION ACT, QUOTED IN YOUR LETTER, THE INVOLVED EMPLOYEES, ON AND AFTER JULY 1, 1944 (EFFECTIVE DATE OF THE APPROPRIATIONS ACT), AUTOMATICALLY CAME WITHIN THE PURVIEW OF THE PRESIDENT'S REGULATIONS, BUREAU OF THE BUDGET CIRCULAR A-8, PART II, WHICH, EXCEPT AS OTHERWISE INDICATED, WERE MADE EFFECTIVE FROM FEBRUARY 1, 1943, UNDER AUTHORITY OF SECTION 304 OF THE ACT OF DECEMBER 23, 1943, 57 STAT. 642.

SECTION 13 OF SAID REGULATIONS PROVIDES, IN PERTINENT PART, AS FOLLOWS:

13. SCOPE OF THESE REGULATIONS.--- THESE REGULATIONS SHALL GOVERN ALL PAYMENTS OR ALLOWANCES FOR QUARTERS AND LIVING EXPENSES TO THE FOLLOWING EMPLOYEES ASSIGNED TO A FOREIGN POST OR TO THE PHILIPPINE ISLANDS FOR ONE YEAR OR LESS OR FOR THE DURATION OF THE WAR, EXCEPT AS EXCLUDED HEREIN, AND EXCEPT AS MAY BE OTHERWISE REQUIRED BY STATUTE.

A. THE FOLLOWING EMPLOYEES ARE COVERED:

(1) EMPLOYEES OF ALL DEPARTMENTS AND ESTABLISHMENTS NOW AUTHORIZED BY TITLE II OF THE ACT OF OCTOBER 26, 1942, PUBLIC NO. 763, 77TH CONGRESS, OR WHICH MAY HEREAFTER BE AUTHORIZED BY LAW, TO PAY A LIVING AND QUARTERS ALLOWANCE TO EMPLOYEES ASSIGNED FOR ONE YEAR OR LESS OR FOR THE DURATION OF THE WAR TO OFFICIAL HEADQUARTERS LOCATED OUTSIDE THE CONTINENTAL UNITED STATES. (ITALICS SUPPLIED.) * * * * * ** *

B. THE FOLLOWING EMPLOYEES ARE EXCLUDED: * * * * * *

(4) EMPLOYEES WHO MAY BE DETERMINED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT CONCERNED OR BY HIS DESIGNATE, TO BE INELIGIBLE FOR LIVING AND QUARTERS ALLOWANCES BECAUSE NO EXTRA OR HIGHER COSTS FOR QUARTERS, SUBSISTENCE, ETC., ARE OCCASIONED BY AN ASSIGNMENT IN A FOREIGN COUNTRY (EFFECTIVE MAY 7, 1943).

YOU EXPRESS NO DOUBT THAT THE EMPLOYEES MENTIONED IN THE FIRST PARAGRAPH OF YOUR LETTER COME WITHIN THE PURVIEW OF SECTION 13A (1) OF THE ABOVE- QUOTED REGULATION, AND NO STATEMENT IS MADE THAT THEY WOULD BE EXCEPTED BY SUBPARAGRAPH B (4) OF THE REGULATIONS ABOVE QUOTED.

I FIND NO PROVISION IN PART II OF THE REGULATION CORRESPONDING TO SECTION 8 OF PART I RELATIVE TO FIXING RATES WITHIN THE DISCRETION OF THE HEAD OF DEPARTMENT OR ESTABLISHMENT AND WITHIN PRESCRIBED MAXIMA. THERE APPEARS NOTHING IN SECTION 14, OF PART II OF BUREAU OF THE BUDGET CIRCULAR A-8, QUOTED IN YOUR LETTER, TO INDICATE ANY INTENTION OTHERWISE THAN THAT THE SECRETARY OF STATE IS AUTHORIZED TO FIX SPECIFIC RATES IN ACCORDANCE WITH A PRESCRIBED FORMULA FOR UNIFORM APPLICATION THROUGHOUT THE FEDERAL SERVICE AND TO PROVIDE FOR EXCEPTIONS OR REDUCTIONS FROM SUCH SPECIFIC RATES TO BE MADE "BY THE THE HEAD OF THE DEPARTMENTS OR ESTABLISHMENTS CONCERNED, OR BY SUCH OFFICIAL AS HE MAY DESIGNATE" (QUOTING FROM SECTION 14) ONLY IN ACCORDANCE WITH THE TERMS AND OF THE REGULATIONS. SEE, FOR INSTANCE, SECTION 14A PROVIDING THE FORMULA FOR FIXING THE RATES UPON THE BASIS OF COST OF LIVING AT DIFFERENT STATIONS, CLASSIFICATION OF POSITIONS AND DEPENDENCY STATUS, AND SECTION 16 PROVIDING FOR A REDUCTION WHERE QUARTERS IN KIND ARE FURNISHED FREE OF CHARGE. COMPARE THE AMENDMENT OF SEPTEMBER 29, 1944, TO SECTION 14A OF THE REGULATIONS AUTHORIZING SPECIAL INCREASED ALLOWANCES IN LIBERATED AREAS CONTAINING THE FOLLOWING PROVISION:

SUITABLE ADJUSTMENT BELOW THE MAXIMUM ALLOWANCE SHALL BE MADE BY THE DEPARTMENT OR ESTABLISHMENT WHEN THE UNUSUAL OR EXTRAORDINARY CONDITIONS ARE MODIFIED TO THE EXTENT THAT MAXIMUM ALLOWANCES ARE NOT NECESSARY.

WHILE YOU HAVE AUTHORITY PURSUANT TO SECTION 13B (4) OF THE REGULATIONS TO DETERMINE AN EMPLOYEE INELIGIBLE TO RECEIVE ANY ALLOWANCE, IT MUST BE HELD THAT, IF AN EMPLOYEE OTHERWISE HAS THE STATUS TO BRING HIM WITHIN THE SCOPE OF THE REGULATION, THERE IS NO ADMINISTRATIVE DISCRETION TO PAY A RATE LESS THAN THAT SPECIFICALLY PRESCRIBED BY THE REGULATION OTHERWISE THAN IN ACCORDANCE WITH THE PROVISIONS OF THE REGULATIONS.

ACCORDINGLY, AS THE EMPLOYEES MENTIONED IN THE FIRST PARAGRAPH OF YOUR LETTER AUTOMATICALLY, THAT IS, BY OPERATION OF LAW, CAME WITHIN THE SCOPE OF THE REGULATIONS ON JULY 1, 1944, AND AS THE RATES FOR LIVING ALLOWANCES AT LONDON ARE SPECIFIC--- ALTHOUGH I HAVE A QUESTION REGARDING THE PROPRIETY OF THE USE OF "BASIC RATES PRESCRIBED FOR EXCHANGE RELIEF PURPOSES" IN THE FORMULA SET OUT IN SECTION 14A OF THE REGULATIONS--- THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE, BUT THIS DECISION IS NOT TO BE CONSTRUED AS PASSING UPON THE CORRECTNESS OF THE COMPUTATIONS AS MADE IN YOUR LETTER.