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VIEWS EXPRESSED BY SUBSEQUENT LEGISLATURE AS TO MEANING OF ACT PASSED BY PREVIOUS LEGISLATURE ARE NOT PART OF THAT ACT'S LEGISLATIVE HISTORY. 1977: "PER DIEM ALLOWANCE "IF CIVILIAN PERSONNEL WHO ARE ON TDY (TEMPORARY DUTY) AT VARIOUS MILITARY INSTALLATIONS FOR SCHOOL. TRAINING AND OTHER WORK ASSIGNMENTS WERE DIRECTED TO USE BACHELOR OFFICER QUARTERS AND/OR BACHELOR ENLISTED QUARTERS OR SIMILAR TRANSIT FACILITIES WHEN THESE FACILITIES ARE AVAILABLE. THE COMMITTEE DESIRES THAT THE DEPARTMENT OF DEFENSE TAKE STEPS TO INSURE THAT CIVILIANS UTILIZE SUCH FACILITIES WHEN THESE FACILITIES ARE AVAILABLE. THE COMMITTEE DOES NOT BELIEVE THAT THIS GUIDANCE WILL CONFLICT WITH 5 U.S.C. 3125 (PUBLIC LAW 88-459).

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B-187112, SEP 16, 1976

NOTWITHSTANDING SUGGESTION IN HOUSE REPORT 94-1231 PERTAINING TO THE DEPARTMENT OF DEFENSE APPROPRIATION FOR 1977 THAT CIVILIAN EMPLOYEES SHOULD BE REQUIRED TO OCCUPY GOVERNMENT QUARTERS IN CONNECTION WITH EDUCATION, TRAINING AND OTHER WORK ASSIGNMENTS, THE DEPARTMENT OF DEFENSE MAY NOT MAKE ORDERS FOR CIVILIAN ATTENDANCE AT TRAINING COURSES CONTINGENT UPON OCCUPANCY OF GOVERNMENT QUARTERS INASMUCH AS FORCED OCCUPANCY OF GOVERNMENT QUARTERS VIOLATES 5 U.S.C. 5911(E). VIEWS EXPRESSED BY SUBSEQUENT LEGISLATURE AS TO MEANING OF ACT PASSED BY PREVIOUS LEGISLATURE ARE NOT PART OF THAT ACT'S LEGISLATIVE HISTORY.

EMPLOYEES ON TEMPORARY DUTY - REQUIRED OCCUPANCY OF GOVERNMENT QUARTERS:

BY LETTER OF JULY 16, 1976, (PDTATAC/76-15) THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE FORWARDED A REQUEST BY THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) FOR AN OPINION REGARDING THE EFFECT OF THE FOLLOWING LANGUAGE ON PAGES 102-103 OF HOUSE REPORT 94-1231, 94TH CONG., 2D. SESS., TO ACCOMPANY H.R. 14262 RELATING TO THE DEPARTMENT OF DEFENSE APPROPRIATION BILL, 1977:

"PER DIEM ALLOWANCE

"IF CIVILIAN PERSONNEL WHO ARE ON TDY (TEMPORARY DUTY) AT VARIOUS MILITARY INSTALLATIONS FOR SCHOOL, TRAINING AND OTHER WORK ASSIGNMENTS WERE DIRECTED TO USE BACHELOR OFFICER QUARTERS AND/OR BACHELOR ENLISTED QUARTERS OR SIMILAR TRANSIT FACILITIES WHEN THESE FACILITIES ARE AVAILABLE, MANY THOUSANDS OF DOLLARS COULD BE SAVED. THE COMMITTEE DESIRES THAT THE DEPARTMENT OF DEFENSE TAKE STEPS TO INSURE THAT CIVILIANS UTILIZE SUCH FACILITIES WHEN THESE FACILITIES ARE AVAILABLE. THE COMMITTEE DOES NOT BELIEVE THAT THIS GUIDANCE WILL CONFLICT WITH 5 U.S.C. 3125 (PUBLIC LAW 88-459), AUGUST 20, 1964) WHICH PRECLUDED AN AGENCY HEAD FROM REQUIRING AN EMPLOYEE OR MEMBER OF A UNIFORMED SERVICE TO OCCUPY QUARTERS ON A RENTAL BASIS, UNLESS THE AGENCY HAD DETERMINED THAT NECESSARY SERVICE CANNOT BE RENDERED OR THAT PROPERTY OF GOVERNMENT CANNOT ADEQUATELY BE PROTECTED OTHERWISE. IT SEEMS REASONABLE AND POSSIBLE TO MAKE TRAVEL ORDERS FOR CIVILIAN PERSONNEL WHO DESIRE TO ATTEND VARIOUS EDUCATION AND TRAINING COURSES FOR THEIR PERSONAL ADVANCEMENT AND GROWTH CONTINGENT UPON THE USE OF GOVERNMENT FACILITIES IF THESE FACILITIES ARE AVAILABLE. THE COMMITTEE HAS NOT REDUCED THE TRAVEL REQUESTS OF THE DEPARTMENT OF DEFENSE DESPITE THE FACT THAT IMPLEMENTATION OF THIS GUIDANCE WILL SAVE TRAVEL FUNDS. THE COMMITTEE EXPECTS THE DEPARTMENT OF DEFENSE TO PROVIDE A REPORT BY JANUARY 15, 1977 AS TO THE PROCEDURES TO BE APPLIED BY ALL ELEMENTS OF THE DEPARTMENT OF DEFENSE TO INSURE COMPLIANCE WITH THE ABOVE GUIDANCE AND ESTIMATE OF THE SAVINGS TO BE ATTAINED IN FISCAL YEARS 1977 AND 1978."

THE ASSISTANT SECRETARY POINTS OUT THAT THE PROVISIONS OF 5 U.S.C. 3125, REFERENCED IN THE ABOVE EXCERPT, ARE NOW CODIFIED AT 5 U.S.C. 5911(E) (1970) AND RESTRICT THE CONDITIONS UNDER WHICH AN EMPLOYEE MAY BE REQUIRED TO OCCUPY GOVERNMENT QUARTERS AS FOLLOWS:

"(E)THE HEAD OF AN AGENCY MAY NOT REQUIRE AN EMPLOYEE OR MEMBER OF A UNIFORMED SERVICE TO OCCUPY QUARTERS ON A RENTAL BASIS, UNLESS THE AGENCY HEAD DETERMINES THAT NECESSARY SERVICE CANNOT BE RENDERED, OR THAT PROPERTY OF THE GOVERNMENT CANNOT ADEQUATELY BE PROTECTED, OTHERWISE."

IN ACCORDANCE WITH 5 U.S.C. 5911, SUPRA, PARAGRAPH C1057 OF THE JOINT TRAVEL REGULATIONS, VOLUME II, RESTRICTS THE CIRCUMSTANCES UNDER WHICH CIVILIAN EMPLOYEES MAY BE REQUIRED TO OCCUPY GOVERNMENT QUARTERS. WITH TWO EXCEPTIONS IT PROVIDES THAT MANDATORY USE OF GOVERNMENT QUARTERS WHILE ON TEMPORARY DUTY WILL NOT BE REQUIRED. BY EXCEPTION OCCUPANCY OF GOVERNMENT QUARTERS MAY BE REQUIRED IN CONNECTION WITH SPECIAL PROJECTS AND MISSIONS WHEN A DETERMINATION IS MADE BY THE SECRETARY OF A SEPARATE MILITARY DEPARTMENT OR THE HEAD OF AN AGENCY OF THE DEPARTMENT OF DEFENSE THAT THE EXIGENCIES OF THE SERVICE REQUIRE OCCUPANCY OF SUCH QUARTERS TO ASSURE ACCOMPLISHMENT OF THE PROJECT OR MISSION. THE OTHER EXCEPTION, PERTAINING SPECIFICALLY TO TRAINING COURSES, IS CONTAINED AT SUBPARAGRAPH C1057-2:

"2. TRAINING COURSE REQUIREMENT. OFFICIALS RESPONSIBLE FOR THE ADMINISTRATION OF TRAINING PROGRAMS ARE DELEGATED AUTHORITY TO DETERMINE WHEN THE USE OF AVAILABLE ADEQUATE GOVERNMENT QUARTERS BY EMPLOYEES ATTENDING A TRAINING COURSE IS REQUIRED AS A NECESSARY ADJUNCT TO THE SUCCESSFUL COMPLETION OF THE TRAINING INVOLVED OR NECESSARY TO THE PROPER PROTECTION OF GOVERNMENT PROPERTY OR DOCUMENTS. SUCH DETERMINATIONS WILL BE MADE ON A SCHOOL-TO-SCHOOL BASIS AND IF NEED BE, ON A COURSE-TO-COURSE BASIS. MERE ADMINISTRATIVE OR ACADEMIC CONVENIENCE OR DESIRE FOR UNIFORMITY WITH MEMBERS OF THE UNIFORMED SERVICES IS NOT SUFFICIENT REASON IN ITSELF TO REQUIRE USE OF GOVERNMENT FACILITIES. LIKEWISE, SHORTAGE OF TRAINING FUNDS AND FULL UTILIZATION OF TRANSIENT QUARTERS ARE NOT TO BE USED AS A BASIS FOR REQUIRED USE OF SUCH FACILITIES. WHEN IT IS DETERMINED THAT SPECIFIC COURSES AND LOCATIONS REQUIRE THE USE OF AVAILABLE GOVERNMENT QUARTERS, SUCH REQUIREMENT WILL BE PUBLISHED IN AN APPROPRIATE TRAINING COURSE ANNOUNCEMENT, CATALOG, OR IN SOME OTHER MEDIUM BY THE DEPARTMENT CONCERNED, AND WILL BE BINDING ON ALL ATTENDEES. DETERMINATIONS WHICH REQUIRE THE USE OF AVAILABLE GOVERNMENT QUARTERS MAY BE MADE WHEN:

"1. HIGHLY VALUABLE GOVERNMENT EQUIPMENT IS ISSUED TO STUDENTS AND THE COMMANDER OF THE TRAINING FACILITY DETERMINES THAT SUCH EQUIPMENT SHOULD REMAIN IN THE PERSONAL POSSESSION OF THE STUDENT DURING THE COURSE BUT THAT SUCH EQUIPMENT NOT BE TAKEN OFF THE MILITARY INSTALLATION,

"2. CLASSIFIED MATERIALS ARE ISSUED TO STUDENTS FOR THEIR USE THE SECURITY OF WHICH IS UNDULY ENDANGERED IF TRANSPORTED TO QUARTERS OFF THE MILITARY INSTALLATION.

"3. THE NATURE OF THE COURSE IS SUCH THAT THE READY ACCESSIBILITY OF THE STUDENTS TO THE TRAINING SITE IS REQUIRED ON AN AROUND-THE-CLOCK BASIS OR CLASSES ARE HELD ON SUCH AN ERRATIC SCHEDULE THAT COMMUTING TO AND FROM LOCAL COMMERCIAL QUARTERS WOULD SEVERELY LESSEN THE EFFECTIVENESS OF THE TRAINING,

"4. COMMERCIAL QUARTERS ARE SO FAR REMOVED FROM THE TRAINING SITE THAT THEIR USE WOULD BE CONSIDERED IMPRACTICABLE,

"5. FREQUENT CHANGES OF CLOTHING ARE REQUIRED ON SHORT NOTICE SO THAT TRAVEL TO AND FROM COMMERCIAL QUARTERS AWAY FROM THE TRAINING SITE FOR THAT PURPOSE WOULD NOT BE FEASIBLE.

"THE PER DIEM ALLOWANCES PAYABLE WHEN THE USE OF AVAILABLE GOVERNMENT QUARTERS IS NECESSARY UNDER THE CONDITIONS IN THIS SUBPARAGRAPH WILL BE DETERMINED AS PROVIDED IN CHAPTER 8 AS THOUGH SUCH QUARTERS WERE ACTUALLY USED."

IN LIGHT OF THE STATEMENTS CONTAINED IN HOUSE REPORT 94-1231, THE ASSISTANT SECRETARY ASKS WHETHER THE ABOVE-DISCUSSED EXCEPTIONS TO THE PROHIBITION AGAINST MANDATORY OCCUPANCY OF GOVERNMENT QUARTERS MAY, IN EFFECT, BE EXPANDED BY MAKING ORDERS FOR VARIOUS EDUCATION AND TRAINING COURSES CONTINGENT UPON THE USE OF GOVERNMENT FACILITIES, WHERE AVAILABLE.

IN CONSIDERING THE EFFECT OF THE LANGUAGE OF THE HOUSE REPORT, WE NOTE PARTICULARLY THE COMMITTEE'S EXPRESSION OF ITS BELIEF THAT THE REQUIRED USE OF GOVERNMENT QUARTERS IN CONNECTION WITH EDUCATION AND TRAINING COURSES AND OTHER WORK ASSIGNMENTS WOULD NOT CONFLICT WITH THE STATUTORY REQUIREMENTS NOW CODIFIED IN 5 U.S.C. 5911(A) SUPRA. THE COMMITTEE CITES THE CONSIDERABLE SAVINGS TO BE EFFECTED BY THE REQUIRED USE OF GOVERNMENT QUARTERS AND CONCLUDES THAT IT SEEMS REASONABLE TO MAKE TRAVEL ORDERS FOR CIVILIAN PERSONNEL WHO DESIRE TO ATTEND VARIOUS EDUCATION AND TRAINING COURSES FOR THEIR "PERSONAL ADVANCEMENT AND GROWTH" CONTINGENT UPON THE USE OF AVAILABLE GOVERNMENT FACILITIES.

THE STATUTORY PROHIBITION AGAINST MANDATORY OCCUPANCY OF GOVERNMENT QUARTERS (5 U.S.C. 5911(E), SUPRA) HAS BEEN BROADLY CONSTRUED IN THE CASE OF ITS APPLICATION TO CIVILIAN EMPLOYEES. IN 44 COMP.GEN. 626 (1965), WE REVIEWED THE LEGISLATIVE HISTORY OF THAT PROVISION AND CONCLUDED THAT THE PROHIBITION IS INTENDED TO APPLY TO ALL GOVERNMENT QUARTERS AVAILABLE FOR TEMPORARY DUTY OF CIVILIAN EMPLOYEES. IN SO CONCLUDING WE RELIED IN PART ON THE FOLLOWING EXPLANATION OF THAT SECTION AS CONTAINED AT PAGE 6 OF HOUSE REPORT NO. 1459 ACCOMPANYING S. 1833:

"SECTION 5 RESTATES THE PROHIBITION AGAINST FORCING EMPLOYEES TO OCCUPY GOVERNMENT QUARTERS ON A RENTAL BASIS. IT CONTINUES THE PROHIBITION PREVIOUSLY STATED IN APPROPRIATION ACTS AND INCLUDES AN EXCEPTION FOR CASES WHERE THE HEAD OF THE AGENCY DETERMINES THAT NECESSARY SERVICE CANNOT BE RENDERED OR PROPERTY OF THE UNITED STATES CANNOT BE ADEQUATELY PROTECTED OTHERWISE. THE SECTION DIFFERS FROM THE EARLIER APPROPRIATION ACTS IN TWO RESPECTS. FIRST, IT IS BROADER, IN THAT IT AFFORDS MEMBERS OF THE UNIFORMED SERVICES WHO OCCUPY QUARTERS ON A RENTAL BASIS THE SAME PROTECTION AS CIVILIAN EMPLOYEES HAVE AGAINST BEING REQUIRED TO OCCUPY RENTAL QUARTERS (WHICH, IN THE CASE OF RENTAL QUARTERS FOR THE MILITARY, ARE FREQUENTLY INADEQUATE) AGAINST THEIR WILL. THIS DOES NOT IN ANY WAY INTERFERE WITH THE AUTHORITY TO REQUIRE MILITARY PERSONNEL TO LIVE IN FREE 'PUBLIC QUARTERS' IN ACCORDANCE WITH THE NORMAL MILITARY PRACTICE. SECOND, SECTION 5 IS APPLICABLE TO ALL QUARTERS FOR WHICH THE OCCUPANTS ARE CHARGED A RENTAL (WHETHER GOVERNMENT-OWNED OR GOVERNMENT-LEASED), BUT IS NOT APPLICABLE TO FREE QUARTERS. SECTION 5 WOULD NOT APPLY TO QUARTERS FOR CIVILIAN EMPLOYEES HAVING PERMANENT STATIONS IN FOREIGN COUNTRIES, SINCE SUCH QUARTERS ARE FURNISHED WITHOUT COST UNDER TITLE 5, U.S.C. SECTION 118A."

BASED ON OUR REVIEW OF THE LEGISLATIVE HISTORY AS DETAILED IN THAT DECISION, WE FOUND THAT THE PRIMARY CONCERN AND MOTIVATION FOR ENACTMENT OF 5 U.S.C. 5911(E) SUPRA, WAS THAT CIVILIAN EMPLOYEES ON TEMPORARY DUTY SHOULD NOT BE REQUIRED TO OCCUPY GOVERNMENT QUARTERS UNLESS THE HEAD OF THE AGENCY DETERMINES THAT NECESSARY SERVICE CANNOT BE RENDERED OR PROPERTY OF THE UNITED STATES CANNOT ADEQUATELY BE PROTECTED OTHERWISE. WE FURTHER FOUND THAT THE PHRASE "RENTAL BASIS" HAD BEEN INSERTED ONLY FOR THE PURPOSE OF RENDERING THE PROHIBITION INAPPLICABLE TO PERMANENT LIVING QUARTERS FURNISHED OVERSEAS EMPLOYEES AND, HENCE, WITH RESPECT TO CIVILIAN EMPLOYEES, THE PROHIBITION AT 5 U.S.C. 5911(E), WAS INTENDED TO APPLY TO ALL GOVERNMENT QUARTERS AVAILABLE FOR TEMPORARY DUTY WHETHER FURNISHED WITH OR WITHOUT CHARGE. IN THE CASE OF MEMBERS OF THE UNIFORMED SERVICES, THE PROHIBITION HAS BEEN MORE NARROWLY CONSTRUED AND DOES NOT PRECLUDE THE MILITARY SERVICES FROM REQUIRING THEIR MEMBERS TO OCCUPY FREE "PUBLIC QUARTERS."

THE SPECIFIC SUBJECT OF REQUIRED OCCUPANCY OF GOVERNMENT QUARTERS BY CIVILIAN EMPLOYEES ATTENDING TRAINING COURSES WAS CONSIDERED IN B 17[618, OCTOBER 15, 1970. THE CIRCUMSTANCE GIVING RISE TO THAT DECISION WAS A REQUEST FOR A DECISION REGARDING THE PROPRIETY OF AN ARMY PROPOSAL TO ESTABLISH A PER DIEM RATE OF $13.80 FOR TRAINING COURSES, INCLUDING A FIXED CHARGE OF RATE OF $13.80 FOR TRAINING COURSES, INCLUDING A FIXED CHARGE OF $2 PER DAY FOR GOVERNMENT QUARTERS, WITH AUTHORIZATION FOR PAYMENT OF A $25 PER DIEM ALLOWANCE IN THE EVENT GOVERNMENT QUARTERS WERE NOT AVAILABLE. THIS PROPOSAL IS SIMILAR IN NATURE TO THAT SUGGESTED BY THE COMMITTEE IN HOUSE REPORT 94 1231. IN B-170618, SUPRA, WE RECOGNIZED THAT THE PAYMENT OF EXPENSES OF TRAINING UNDER 5 U.S.C. 4109 (1970) IS A PERMISSIVE MATTER AND FURTHER THAT IT MIGHT BE ARGUED THAT THE FIXING OF A REDUCED PER DIEM RATE IN TRAINING SITUATIONS IS MERELY A DETERMINATION TO PAY ONLY A PART OF THE NECESSARY EXPENSES OF TRAINING. HOWEVER, WE CONSIDERED THE FACT THAT THE PROPOSAL CALLED FOR PAYMENT OF A HIGHER PER DIEM RATE FOR TRAINING WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE AND CONCLUDED THAT THE ULTIMATE EFFECT OF THE REDUCED PER DIEM RATE WOULD BE TO COERCE EMPLOYEES TOWARD UTILIZATION OF GOVERNMENT QUARTERS IN VIOLATION OF 5 U.S.C. 5911(E).

BASED ON THE FOREGOING DECISIONS, WE ARE UNABLE TO CONCUR WITH THE COMMITTEE'S SUGGESTION THAT REQUIRED OCCUPANCY OF GOVERNMENT QUARTERS IN CONNECTION WITH "SCHOOL, TRAINING AND OTHER WORK ASSIGNMENTS" FOR THE "PERSONAL ADVANCEMENT AND GROWTH" OF THE EMPLOYEES WOULD NOT CONTRAVENE THE PROSCRIPTION OF 5 U.S.C. 5911(E), SUPRA. IN FACT, WE ARE OF THE OPINION THAT THE CONSTRUCTION URGED BY THE COMMITTEE WOULD RENDER THE STATUTE WHOLLY INEFFECTUAL IN ITS APPLICATION TO CIVILIAN EMPLOYEES. INASMUCH AS 5 U.S.C. 4109 (1970) AUTHORIZES THE EXPENDITURE OF FUNDS FOR TRAINING AND UNDER 5 U.S.C. 4103 (1970) TRAINING PROGRAMS ARE TO BE SET UP TO INCREASE ECONOMY AND EFFICIENCY IN GOVERNMENT OPERATIONS AND RAISE THE STANDARDS OF PERFORMANCE BY GOVERNMENT EMPLOYEES, IT APPEARS TO BE INAPPROPRIATE TO ATTEMPT TO SINGLE OUT THOSE TRAINING SITUATIONS WHICH RESULT IN THE "PERSONAL GROWTH AND ADVANCEMENT" OF THE INDIVIDUAL EMPLOYEE. ALTHOUGH ADVANCEMENT MAY BE A BY-PRODUCT OF MANY TRAINING PROGRAMS, THE USE OF PUBLIC FUNDS FOR TRAINING MUST BE JUSTIFIED ON THE BASIS OF THE ULTIMATE BENEFIT TO THE GOVERNMENT. FOR THIS REASON WE DO NOT BELIEVE THAT AN EXCEPTION TO THE GENERAL PROHIBITION AGAINST FORCED OCCUPANCY OF GOVERNMENT QUARTERS BY CIVILIAN EMPLOYEES CAN BE JUSTIFIED ON THE BASIS OF INCIDENTAL PERSONAL BENEFIT TO THE EMPLOYEE.

WITH RESPECT TO THE EFFECT OF THE COMMITTEE'S STATEMENT IN HOUSE REPORT 94-1231, QUOTED ABOVE, WE NOTE THAT THE VIEWS EXPRESSED BY A SUBSEQUENT LEGISLATURE AS TO THE MEANING OF AN ACT PASSED BY A PREVIOUS LEGISLATURE ARE NOT CONSIDERED PART OF THE LEGISLATIVE HISTORY OF THAT ACT AND ARE TO BE ACCORDED LESS PROBATIVE FORCE THAN THE LEGISLATIVE HISTORY. SUTHERLAND, STATUTORY CONSTRUCTION, 4TH EDITION, SECTION 49.11; WATERMAN S.C. CORP. V. UNITED STATES, 381 U.S. 252, 269 (1965); UNITED STATES V. PHILADELPHIA NATIONAL BANK, 374 U.S. 321, 348 (1963); BOBSEE CORPORATION V. UNITED STATES, 411 F.2D 231 (1969). WHERE, AS IN THIS INSTANCE, THE LEGISLATIVE STATEMENT WITH RESPECT TO A PREVIOUS ENACTMENT IS MADE IN THE CONTEXT OF NONAMENDATORY LEGISLATION AND WHERE A CONSTRUCTION OF THE PREVIOUS ENACTMENT IN ACCORDANCE WITH THAT STATEMENT WOULD SUBSTANTIALLY DEFEAT ITS PURPOSE AND EFFECT, THE STATEMENT SHOULD BE GIVEN LITTLE WEIGHT FOR PURPOSES OF STATUTORY CONSTRUCTION. FOR THE FOREGOING REASONS, WE ARE OF THE OPINION THAT THE DEPARTMENT OF DEFENSE MAY NOT REQUIRE THE OCCUPANCY OF GOVERNMENT QUARTERS BY CIVILIAN EMPLOYEES IN CONNECTION WITH ATTENDANCE AT EDUCATION AND TRAINING COURSES FOR THE REASONS SPECIFIED IN HOUSE REPORT 94-1231, SINCE TO DO SO WOULD BE INCONSISTENT WITH THE PROHIBITION CONTAINED AT 5 U.S.C. 5911(E), SUPRA.

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