B-6323, OCTOBER 20, 1939, 19 COMP. GEN. 448

B-6323, OCTOBER 20, 1939, 19 COMP. GEN. 448

OFFICERS AND EMPLOYEES - TRAINING - NATIONAL CANCER INSTITUTE ACT - WORD "PERSONS" AS APPLYING TO GOVERNMENT EMPLOYEES THE WORD "PERSONS" AS USED IN SECTION 5 (B) OF THE NATIONAL CANCER INSTITUTE ACT, 50 STAT. 561, PROVIDING FOR TRAINING, ETC., OF PERSONS DESIGNATED BY THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE, DOES NOT INCLUDE OFFICERS AND EMPLOYEES OF THE GOVERNMENT FOR THE REASON, AMONG OTHERS, THAT IT IS CUSTOMARY WHEN THE CONGRESS ENACTS LEGISLATION INTENDED TO APPLY TO GOVERNMENT OFFICERS AND EMPLOYEES TO DESCRIBE THEM AS "OFFICERS AND EMPLOYEES" AND NOT AS "PERSONS.' IN VIEW OF THE GENERAL PURPOSES OF THE NATIONAL CANCER INSTITUTE ACT, 50 STAT. 559, AND THE BROAD PROVISIONS OF SECTIONS 2 (A) AND 5 (F) THEREOF, THE SURGEON GENERAL MAY DESIGNATE GOVERNMENT OFFICERS AND EMPLOYEES FOR COURSES IN CANCER PREVENTION, ETC., THE TUITION TO BE PAID AS A PART OF THE ADMINISTRATIVE EXPENSES OF THE NATIONAL CANCER INSTITUTE, AND WHILE SO DETAILED SUCH EMPLOYEES MAY BE PAID THEIR REGULAR COMPENSATION AND, IF TEMPORARILY AWAY FROM OFFICIAL HEADQUARTERS, MAY BE REIMBURSED ACTUAL TRAVELING EXPENSES AND PAID PER DIEM IN LIEU OF SUBSISTENCE, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, BUT THEY MAY NOT BE ALLOWED THE $10 PER DIEM ALLOWANCE AUTHORIZED TO BE PAID TO "PERSONS" DESIGNATED UNDER SECTION 5 (B) OF THE ACT.

COMPTROLLER GENERAL BROWN TO THE FEDERAL SECURITY ADMINISTRATOR, OCTOBER 20, 1939:

I HAVE YOUR LETTER OF SEPTEMBER 29, 1939, AS FOLLOWS:

YOUR ATTENTION IS INVITED TO SECTION 5 (B) OF THE NATIONAL CANCER INSTITUTE ACT, APPROVED AUGUST 5, 1939 (1937) (42 U.S.C., 137 D (B), WHICH READS AS FOLLOWS:

"SEC. 5. IN CARRYING OUT THE PROVISIONS OF SECTION 2, THE SURGEON GENERAL IS AUTHORIZED--- (B) TO PROVIDE THE NECESSARY FACILITIES WHERE TRAINING AND INSTRUCTION MAY BE GIVEN IN ALL TECHNICAL MATTERS RELATING TO DIAGNOSIS AND TREATMENT OF CANCER TO SUCH PERSONS AS IN THE OPINION OF THE SURGEON GENERAL HAVE PROPER TECHNICAL TRAINING AND SHALL BE DESIGNATED BY HIM FOR SUCH TRAINING OR INSTRUCTION; SUCH PERSONS WHILE RECEIVING TRAINING OR INSTRUCTION MAY, WITH THE APPROVAL OF THE SURGEON GENERAL, RECEIVE A PER DIEM ALLOWANCE TO BE FIXED BY THE SURGEON GENERAL BUT NOT TO EXCEED $10.'

UNDER THIS PROVISION OF LAW THE SCHOOL OF HYGIENE, HARVARD UNIVERSITY, HAS BEEN SELECTED AS A SUITABLE FACILITY WHERE TRAINING AND INSTRUCTION MAY BE GIVEN IN TECHNICAL MATTERS RELATING TO DIAGNOSIS AND TREATMENT OF CANCER AND A TRAINEE HAS BEEN DESIGNATED TO RECEIVE SUCH TRAINING AND INSTRUCTION, BEING REQUIRED, HOWEVER, TO PAY HIS TUITION FEES FROM HIS PER DIEM ALLOWANCES RECEIVED UNDER THE ABOVE QUOTED PROVISION OF LAW. THE TRAINEE RECEIVES NO COMPENSATION FROM THE GOVERNMENT OTHER THAN THE PER DIEM ALLOWANCE.

IT IS DESIRED TO KNOW WHETHER OFFICERS AND EMPLOYEES OF THE GOVERNMENT, PARTICULARLY OF THE PUBLIC HEALTH SERVICE, MAY BE DESIGNATED AS TRAINEES.

IF GOVERNMENT OFFICERS AND EMPLOYEES MAY BE DESIGNATED AS TRAINEES, THE FOLLOWING QUESTIONS ARE FOR CONSIDERATION:

1. MAY THEY CONTINUE TO RECEIVE THEIR SALARIES, AND IN THE CASE OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE THEIR SALARIES AND ALLOWANCES, WHILE AT THE SCHOOL?

2. MAY THEIR TRAVELING EXPENSES TO AND FROM THE SCHOOL BE PAID BY THE GOVERNMENT?

3. MAY THEY BE PAID PER DIEM ALLOWANCE OF NOT TO EXCEED $10 WHILE UNDERGOING TRAINING?

4. MAY THE TUITION FEES BE PAID BY THE GOVERNMENT EITHER IN LIEU OF PER DIEM OR IN ADDITION THERETO?

YOUR EARLY CONSIDERATION OF THIS MATTER WILL BE APPRECIATED.

AS INDICATED IN SECTION 5 (B) OF THE ACT OF AUGUST 5, 1937, 50 STAT. 561, THAT SECTION IS FOR THE PURPOSE OF CARRYING OUT THE PROVISIONS OF SECTION 2 OF THE SAME ACT, 50 STAT. 559, WHICH PROVIDES:

SEC. 2. THE SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE (HEREINAFTER REFERRED TO AS THE " SURGEON GENERAL") IS AUTHORIZED AND DIRECTED FOR THE PURPOSES OF THIS ACT AND SUBJECT TO ITS PROVISIONS, THROUGH THE INSTITUTE AND IN COOPERATION WITH THE NATIONAL CANCER ADVISORY COUNCIL HEREINAFTER ESTABLISHED---

(A) TO CONDUCT, ASSIST, AND FOSTER RESEARCHES, INVESTIGATIONS, EXPERIMENTS, AND STUDIES RELATING TO THE CAUSE, PREVENTION, AND METHODS OF DIAGNOSIS AND TREATMENT OF CANCER;

(B)TO PROMOTE THE COORDINATION OF RESEARCHES CONDUCTED BY THE INSTITUTE AND SIMILAR RESEARCHES CONDUCTED BY OTHER AGENCIES, ORGANIZATIONS, AND INDIVIDUALS;

(C) TO PROCURE, USE, AND LEND RADIUM AS HEREINAFTER PROVIDED;

(D) TO PROVIDE TRAINING AND INSTRUCTION IN TECHNICAL MATTERS RELATING TO THE DIAGNOSIS AND TREATMENT OF CANCER;

(E) TO PROVIDE FELLOWSHIPS IN THE INSTITUTE FROM FUNDS APPROPRIATED OR DONATED FOR SUCH PURPOSE;

(F) TO SECURE FOR THE INSTITUTE CONSULTATION SERVICES AND ADVICE OF CANCER EXPERTS FROM THE UNITED STATES AND ABROAD; AND

(G) TO COOPERATE WITH STATE HEALTH AGENCIES IN THE PREVENTION, CONTROL, AND ERADICATION OF CANCER.

IT IS CUSTOMARY WHEN THE CONGRESS ENACTS LEGISLATION INTENDED TO APPLY TO OFFICERS OR EMPLOYEES OF THE GOVERNMENT TO DESCRIBE THEM IN SUCH LEGISLATION AS "OFFICERS AND EMPLOYEES" AND NOT AS ,PERSONS.' FURTHERMORE, OFFICERS AND EMPLOYEES OF THE UNITED STATES ARE IN RECEIPT OF COMPENSATION, SUBSISTENCE, AND TRAVEL EXPENSES IN PROPER CASES FIXED FOR THE MOST PART BY STATUTE WHICH WOULD BE INCONSISTENT WITH THE PAYMENT TO THEM OF A $10 PER DIEM ALLOWANCE. CONSEQUENTLY, IT MUST BE HELD THAT THE PROVISIONS OF SECTION 5 (B) ARE NOT APPLICABLE TO OFFICERS OR EMPLOYEES OF THE GOVERNMENT.

HOWEVER, SECTION 5 (F) OF THE ABOVE ACT OF AUGUST 5, 1937, 50 STAT. 561, AUTHORIZES THE SURGEON GENERAL "TO ADOPT, UPON RECOMMENDATION OF THE COUNCIL AND WITH THE APPROVAL OF THE SECRETARY OF TREASURY, SUCH ADDITIONAL MEANS AS THE SURGEON GENERAL MAY DEEM NECESSARY OR APPROPRIATE TO CARRY OUT THE PROVISIONS OF SECTIONS 1 AND 2 OF THIS ACT.'

ACCORDINGLY, IN VIEW OF THE GENERAL PURPOSES SOUGHT TO BE ACCOMPLISHED BY THE STATUTE AS SET FORTH IN SECTION 1 OF THE ACT, AND PARTICULARLY IN VIEW OF THE PROVISIONS OF SECTIONS 2 (A) AND 5 (F), SUPRA, IT MAY BE CONSIDERED THAT THE STATUTE VESTS IN THE SURGEON GENERAL AUTHORITY TO DETAIL OFFICERS AND EMPLOYEES OF THE PUBLIC HEALTH SERVICE FOR TRAINING AND INSTRUCTION COURSES TENDING TO INCREASE THEIR KNOWLEDGE OF THE CAUSE, PREVENTION, AND TREATMENT OF CANCER, THE TUITION FOR SUCH COURSES TO BE PAID AS A PART OF THE ADMINISTRATIVE EXPENSES OF THE NATIONAL CANCER INSTITUTE. WHILE SO DETAILED SUCH EMPLOYEES MAY BE PAID THEIR REGULAR COMPENSATION AND, IF TEMPORARILY AWAY FROM OFFICIAL HEADQUARTERS, MAY BE REIMBURSED ACTUAL TRAVELING EXPENSES AND PAID PER DIEM IN LIEU OF SUBSISTENCE IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, BUT THEY MAY NOT BE ALLOWED THE $10 PER DIEM MENTIONED IN SECTION 5 (B), SUPRA. ..END :