B-135138, APRIL 3, 1959, 38 COMP. GEN. 662

B-135138, APRIL 3, 1959, 38 COMP. GEN. 662

CIVILIAN PERSONNEL - COMPENSATION - OVERTIME - INSPECTIONAL SERVICE EMPLOYEES - DUTY PRIOR TO 6 A.M. ALTHOUGH THE TIME REQUIRED TO BE SPENT BY EMPLOYEES OF THE FOREIGN QUARANTINE DIVISION, PUBLIC HEALTH SERVICE, AT THE BARGE OFFICE PRIOR TO 6 A.M. EACH DAY TO OBTAIN INSTRUCTIONS AND ASSIGNMENTS BEFORE PROCEEDING TO INSPECTION POINTS FOR VESSEL INSPECTION SERVICES WHICH ARE PERFORMED BETWEEN 6 A.M. AND 6 P.M., WHEN SUCH SERVICE IS FREE TO THE CARRIERS, MAY NOT BE CONSIDERED OVERTIME DUTY TO MAKE EITHER THE VESSEL OWNER OR THE GOVERNMENT LIABLE FOR OVERTIME COMPENSATION UNDER SECTIONS 364 (D) (6) OR 364 (C) OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C. 267 (D) (1) AND (C), AND MAY NOT BE CONSIDERED UNSCHEDULED OR UNANTICIPATED SO AS TO BE COMPENSABLE AS CALL-BACK OVERTIME UNDER SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 912A, THE TIME MAY BE REGARDED AS OVERTIME UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 911, IF IT RESULTS IN DUTY IN EXCESS OF 40 HOURS A WEEK; HOWEVER, THE TRAVEL TIME BETWEEN THE BARGE OFFICE AND OTHER INSPECTION POINTS WHICH OCCURS PRIOR TO 6 A.M. MAY NOT BE REGARDED AS DUTY TIME. PROVIDED THAT THE DUTY PERFORMED BY EMPLOYEES OF THE FOREIGN QUARANTINE DIVISION OF THE PUBLIC HEALTH SERVICE AT THE BARGE OFFICE PRIOR TO 6 A.M. EACH DAY TO OBTAIN INSTRUCTIONS AND ASSIGNMENTS BEFORE REPORTING TO THE INSPECTION POINTS FOR PERFORMANCE OF VESSEL INSPECTION DUTIES BETWEEN 6 A.M. AND 6 P.M., WHEN SUCH SERVICE IS FREE TO THE CARRIERS, IS PERFORMED PURSUANT TO ADMINISTRATIVE INSTRUCTIONS WITHIN THE MEANING OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 911, THERE WOULD BE NO OBJECTION TO THE RETROACTIVE PAYMENT OVERTIME COMPENSATION FOR SUCH SERVICES.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, APRIL 3, 1959:

ON FEBRUARY 9, 1959, THE ACTING SECRETARY OF HEALTH, EDUCATION, AND WELFARE REQUESTED OUR DECISION ON SEVERAL QUESTIONS REGARDING THE PAYMENT OF OVERTIME COMPENSATION TO CERTAIN EMPLOYEES OF THE FOREIGN QUARANTINE DIVISION OF THE PUBLIC HEALTH SERVICE UNDER SECTION 364 OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C. 267, AS AMENDED BY THE ACT OF AUGUST 1, 1958, PUBLIC LAW 85-580, 72 STAT. 647.

THE QUESTIONS ARISE IN CONNECTION WITH TWELVE FOREIGN QUARANTINE INSPECTORS WHO ARE ASSIGNED TO THE BARGE OFFICE SUBSTATION OF THE NEW YORK QUARANTINE STATION LOCATED AT 45 BROADWAY, NEW YORK 6, N.Y. THE ACTING SECRETARY SAYS THAT ALTHOUGH THE OFFICIAL STATION HOURS OF THE BARGE OFFICE ARE 6 A.M. TO 6 P.M., DURING WHICH TIME QUARANTINE SERVICES ARE "FREE" TO THE CARRIER, THE INSPECTORS ASSIGNED TO THE BARGE OFFICE FREQUENTLY, BUT NOT ON A REGULARLY SCHEDULED BASIS, ARE ORDERED TO REPORT TO THE BARGE OFFICE PRIOR TO 6 A.M. (OUTSIDE THEIR REGULAR TOUR OF DUTY) FOR DUTY PRELIMINARY TO THE INSPECTION OF VESSELS WHICH IS TO OCCUR SUBSEQUENT TO 6 A.M. ALSO, THE ACTING SECRETARY SAYS THAT SUCH REPORTING TO THE BARGE OFFICE IS NECESSARY IN ORDER TO ENABLE THE INSPECTORS TO RECEIVE LAST MINUTE INFORMATION AND SPECIAL INSTRUCTIONS REGARDING ANY DETAILS AFFECTING THE ARRIVAL OR HANDLING OF ANY VESSEL, TO PICK UP NECESSARY EQUIPMENT FOR THE BOARDING OPERATION, AND TO ACCEPT ANY REASSIGNMENTS NECESSITATED BY THE ABSENCE OF INSPECTORS. WE HAVE BEEN INFORMALLY ADVISED THAT THE INSPECTORS ASSIGNED TO THE BARGE OFFICE DO NOT HAVE REGULARLY SCHEDULED TOURS OF DUTY, BUT THEIR REGULARLY SCHEDULED WORKWEEK IS CONSIDERED TO BE THE FIRST 40 HOURS EARNED BETWEEN THE HOURS OF 6 A.M. AND 6 P.M., MONDAY THROUGH SATURDAY.

THE INSPECTIONS PERFORMED BY THE INSPECTORS ATTACHED TO THE BARGE OFFICE FALL INTO TWO CATEGORIES, OUTLINED AS FOLLOWS:

(1) THE INSPECTORS IN ONE GROUP REPORT TO THE BARGE OFFICE AT 5:30 A.M. AND AFTER COMPLETION OF THEIR PRELIMINARY WORK THEY PROCEED FROM THE BARGE OFFICE TO THE DOCK AT PIER 9, EAST RIVER, A DISTANCE REQUIRING APPROXIMATELY 12 TO 15 MINUTES TO WALK. UPON ARRIVAL AT THE DOCK THE QUARANTINE INSPECTORS, ALONG WITH IMMIGRATION AND CUSTOMS INSPECTORS, BOARD A COAST GUARD CUTTER WHICH LEAVES THE DOCK AT 6 A.M. AND PROCEEDS TO THE FIRST VESSEL TO BE INSPECTED.

(2) THE INSPECTORS IN THE OTHER GROUP REPORT TO THE BARGE OFFICE AT OR PRIOR TO 5:30 A.M., AND UPON COMPLETION OF THEIR PRELIMINARY WORK THEY PROCEED BY AUTOMOBILE TO OVERLAND POINTS FROM WHICH THEY BOARD THE VESSELS TO BE INSPECTED. THE TRAVEL TIME FROM THE BARGE OFFICE TO SUCH INSPECTION POINTS VARIES FROM 30 MINUTES TO ONE HOUR OR MORE, AND IN ORDER TO BE ABLE TO BOARD THE VESSEL AT 6 A.M. OR SHORTLY THEREAFTER THE INSPECTORS MAY HAVE TO REPORT TO THE BARGE OFFICE AT 5 A.M. OR EARLIER DEPENDING UPON THE DISTANCE FROM THE BARGE OFFICE TO THE INSPECTION POINT.

THE ACTING SECRETARY SAYS THAT UNDER THE CIRCUMSTANCES OUTLINED ABOVE, SINCE NO ACTUAL INSPECTION OCCURS OUTSIDE THE OFFICIAL STATION HOURS, THE PUBLIC HEALTH SERVICE, PURSUANT TO ADMINISTRATIVE INSTRUCTIONS REGARDING THE COMPUTING OF OVERTIME ON THE BASIS OF ACTUAL INSPECTION TIME (PLUS "STANDBY OR WAITING TIME" (, HAS NOT TREATED THE SERVICES PERFORMED PRIOR TO 6 A.M. AS COMPENSABLE OVERTIME. ALSO, THE ACTING SECRETARY SAYS THAT IN VIEW OF OUR DECISIONS 37 COMP. GEN. 723 AND B 67600, SEPTEMBER 24, 1947, HOLDING THAT FOREIGN QUARANTINE DIVISION EMPLOYEES ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR TRAVEL TIME OUTSIDE THE REGULARLY ESTABLISHED HOURS OF WORK NOT INVOLVING THE PERFORMANCE OF WORK, OR NOT CARRIED OUT UNDER ARDUOUS CONDITIONS, SHE ASSUMES THAT THE TIME SPENT BY THE INSPECTORS IN TRAVELING FROM THE BARGE OFFICE TO THE DOCKS WOULD NOT BE REGARDED AS COMPENSABLE OVERTIME. HOWEVER, THE ASSISTANT SECRETARY SAYS THAT SHE IS NOT AWARE OF ANY DECISION BY OUR OFFICE WHICH WOULD EITHER AUTHORIZE OR PRECLUDE PAYMENT OF OVERTIME COMPENSATION FOR THE DUTY PERFORMED AT THE BARGE OFFICE.

QUESTIONS 1 AND 2 PRESENTED BY THE ACTING SECRETARY ARE SET FORTH IN THE SUBMISSION AS FOLLOWS, AND WILL BE CONSIDERED TOGETHER:

(1) WHERE THE FOREIGN QUARANTINE DIVISION EMPLOYEES REPORT AT THE BARGE OFFICE AT 5:30 A.M. OR EARLIER FOR DUTY PRELIMINARY TO THE INSPECTION OF VESSELS WHICH IS TO OCCUR SUBSEQUENT TO 6 A.M. WOULD YOU BE REQUIRED TO OBJECT TO TREATING SUCH EMPLOYEES AS ENGAGED IN "PERFORMING OVERTIME DUTIES * * * IN CONNECTION WITH THE INSPECTION OR QUARANTINE TREATMENT OF PERSONS * * * WHEN REQUIRED TO BE ON DUTY BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN * * * " WITHIN THE MEANING OF SECTION 364 (C) OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED?

(2) IF SUCH DUTY PRIOR TO 6 A.M. MAY BE REGARDED AS OVERTIME DUTY WITHIN THE MEANING OF SECTION 364 (C) OF THE PUBLIC HEALTH SERVICE ACT, WOULD YOU CONCUR IN THE VIEW THAT THE REQUEST OF THE CARRIER FOR INSPECTION SUBSEQUENT TO 6 A.M. BUT WHICH NECESSITATES THE PERFORMANCE OF DUTY PRIOR TO 6 A.M. CONSTITUTES A "REQUEST" FOR OVERTIME SERVICES SO AS TO MAKE THE CARRIER LIABLE FOR REIMBURSEMENT UNDER SECTION 364 (D) (1) OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, PROVIDING THAT "THE SAID EXTRA COMPENSATION SHALL BE PAID TO THE UNITED STATES BY THE OWNER * * * OR OTHER PERSON IN CHARGE OF THE CONVEYANCE, FOR WHOM, AT HIS REQUEST, SERVICES AS DESCRIBED IN THIS SUBSECTION (HEREINAFTER REFERRED TO AS OVERTIME SERVICE) ARE PERFORMED.' ? ( ITALICS SUPPLIED.)

THE ACT OF AUGUST 1, 1958, PUBLIC LAW 85-580, 72 STAT. 647, AMENDS SECTION 364 (C) OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, 42 U.S.C. 267 (C), TO READ AS FOLLOWS:

(C) THE SURGEON GENERAL SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF EMPLOYEES OF THE UNITED STATES PUBLIC HEALTH SERVICE, FOREIGN QUARANTINE DIVISION, PERFORMING OVERTIME DUTIES INCLUDING THE OPERATION OF VESSELS, IN CONNECTION WITH THE INSPECTION OR QUARANTINE TREATMENT OF PERSONS (PASSENGERS AND CREWS), CONVEYANCES, OR GOODS ARRIVING BY LAND, WATER, OR AIR IN THE UNITED STATES OR ANY PLACE SUBJECT TO THE JURISDICTION THEREOF, HEREINAFTER REFERRED TO AS "EMPLOYEES OF THE PUBLIC HEALTH SERVICE," WHEN REQUIRED TO BE ON DUTY BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN (OR BETWEEN THE HOURS OF 7 O CLOCK POST MERIDIAN AND 7 O-CLOCK ANTEMERIDIAN AT STATIONS WHICH HAVE A DECLARED WORKDAY OF FROM 7 O-CLOCK ANTEMERIDIAN TO 7 O-CLOCK POST MERIDIAN), OR ON SUNDAYS OR HOLIDAYS, SUCH RATE, IN LIEU OF COMPENSATION UNDER ANY OTHER PROVISION OF LAW, TO BE FIXED AT TWO TIMES THE BASIC HOURLY RATE FOR EACH HOUR THAT THE OVERTIME EXTENDS BEYOND 6 O-CLOCK (OR 7 O-CLOCK AS THE CASE MAY BE) POST MERIDIAN, AND TWO TIMES THE BASIC HOURLY RATE FOR EACH OVERTIME HOUR WORKED ON SUNDAYS OR HOLIDAYS. AS USED IN THIS SUBSECTION, THE TERM "BASIC HOURLY RATE" SHALL MEAN THE REGULAR BASIC RATE OF PAY WHICH IS APPLICABLE TO SUCH EMPLOYEES FOR WORK PERFORMED WITHIN THEIR REGULAR SCHEDULED TOUR OF DUTY.

SECTIONS 364 (D) (1) AND (2) OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, 42 U.S.C. 267 (D) (1) AND (2), PROVIDE AS FOLLOWS:

(D) (1) THE SAID EXTRA COMPENSATION SHALL BE PAID TO THE UNITED STATES BY THE OWNER, AGENT, CONSIGNEE, OPERATOR, OR MASTER OR OTHER PERSON IN CHARGE OF ANY CONVEYANCE, FOR WHOM, AT HIS REQUEST, SERVICES AS DESCRIBED IN THIS SUBSECTION (HEREINAFTER REFERRED TO AS OVERTIME SERVICE) ARE PERFORMED. IF SUCH EMPLOYEES HAVE BEEN ORDERED TO REPORT FOR DUTY AND HAVE SO REPORTED, AND THE REQUESTED SERVICES ARE NOT PERFORMED BY REASON OF CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEES CONCERNED, SUCH EXTRA COMPENSATION SHALL BE PAID ON THE SAME BASIS AS THOUGH THE OVERTIME SERVICES HAD ACTUALLY BEEN PERFORMED DURING THE PERIOD BETWEEN THE TIME THE EMPLOYEES WERE ORDERED TO REPORT FOR DUTY AND DID SO REPORT, AND THE TIME THEY WERE NOTIFIED THAT THEIR SERVICES WOULD NOT BE REQUIRED, AND IN ANY CASE AS THOUGH THEIR SERVICES HAD CONTINUED FOR NOT LESS THAN ONE HOUR. THE SURGEON GENERAL WITH THE APPROVAL OF THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE MAY PRESCRIBE REGULATIONS REQUIRING THE OWNER, AGENT, CONSIGNEE, OPERATOR, OR MASTER OR OTHER PERSON FOR WHOM THE OVERTIME SERVICES ARE PERFORMED TO FILE A BOND IN SUCH AMOUNTS AND CONTAINING SUCH CONDITIONS AND WITH SUCH SURETIES, OR IN LIEU OF A BOND, TO DEPOSIT MONEY OR OBLIGATIONS OF THE UNITED STATES IN SUCH AMOUNT, AS WILL ASSURE THE PAYMENT OF CHARGES UNDER THIS SUBSECTION, WHICH BOND OR DEPOSIT MAY COVER ONE OR MORE TRANSACTIONS OR ALL TRANSACTIONS DURING A SPECIFIED PERIOD: PROVIDED, THAT NO CHARGES SHALL BE MADE FOR SERVICES PERFORMED IN CONNECTION WITH THE INSPECTION OF (1) PERSONS ARRIVING BY INTERNATIONAL HIGHWAYS, FERRIES, BRIDGES, OR TUNNELS, OR THE CONVEYANCES IN WHICH THEY ARRIVE, OR (2) PERSONS ARRIVING BY AIRCRAFT OR RAILROAD TRAINS THE OPERATIONS OF WHICH ARE COVERED BY PUBLISHED SCHEDULES, OR THE AIRCRAFT OR TRAINS IN WHICH THEY ARRIVE, OR (3) PERSONS ARRIVING BY VESSELS OPERATED BETWEEN CANADIAN PORTS AND PORTS ON PUGET SOUND OR OPERATED ON THE GREAT LAKES AND CONNECTING WATERWAYS, THE OPERATIONS OF WHICH ARE COVERED BY PUBLISHED SCHEDULES, OR THE VESSELS IN WHICH THEY ARRIVE.

(2) MONEYS COLLECTED UNDER THIS SUBSECTION SHALL BE DEPOSITED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE APPROPRIATION CHARGED WITH THE EXPENSE OF THE SERVICES, AND THE APPROPRIATIONS SO CREDITED SHALL BE AVAILABLE FOR THE PAYMENT OF SUCH COMPENSATION TO THE SAID EMPLOYEES FOR SERVICES SO RENDERED.

UNDER THE ABOVE-QUOTED SUBSECTIONS OF SECTION 364 OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, THE GOVERNMENT IS LIABLE FOR OVERTIME COMPENSATION OF EMPLOYEES OF THE FOREIGN QUARANTINE SERVICE ONLY WHEN THE DUTIES, OTHERWISE ENTITLING THEM TO OVERTIME COMPENSATION UNDER THE TERMS OF SECTION 364 (C), INVOLVE THE INSPECTION OF (1) PERSONS ARRIVING BY INTERNATIONAL HIGHWAYS, FERRIES, BRIDGES, OR TUNNELS, OR THE CONVEYANCES IN WHICH THEY ARRIVE; OR (2) PERSONS ARRIVING BY AIRCRAFT OR RAILROAD TRAINS, THE OPERATIONS OF WHICH ARE COVERED BY PUBLISHED SCHEDULES, OR THE AIRCRAFT OR TRAINS IN WHICH THEY ARRIVE; OR (3) PERSONS ARRIVING BY VESSELS OPERATED BETWEEN CANADIAN PORTS AND PORTS ON PUGET SOUND OR OPERATED ON THE GREAT LAKES AND CONNECTING WATERWAYS, THE OPERATIONS OF WHICH ARE COVERED BY PUBLISHED SCHEDULES, OR THE VESSELS IN WHICH THEY ARRIVE, SO THAT UNDER SECTION 364 (D) (1) THE EXTRA COMPENSATION FOR THE OVERTIME IS NOT TO BE PAID FOR BY THE OWNER, AGENT, CONSIGNEE, OPERATOR, OR MASTER, OR OTHER PERSON IN CHARGE OF THE CONVEYANCE. SEE 10 COMP. GEN. 487, APPLYING THE SIMILAR STATUTE OF MARCH 2, 1931, 46 STAT. 1467, 8 U.S.C. 109A, TO THE IMMIGRATION SERVICE.

HERE, THE OWNER, AGENT, CONSIGNEE, OPERATOR, OR MASTER, OR OTHER PERSON IN CHARGE OF THE VESSEL DID NOT REQUEST QUARANTINE INSPECTION SERVICES PRIOR TO 6 A.M., AND THE INSPECTION OF THE VESSEL WAS PERFORMED SUBSEQUENT TO 6 A.M. WHEN SUCH SERVICE IS "FREE" TO THE CARRIER. SINCE INSPECTION SERVICES PRIOR TO 6 A.M. WERE NOT REQUESTED, AND, SINCE NO TIME PRIOR TO 6 A.M. WAS SPENT ON ACTUAL INSPECTION OF A VESSEL, THE DUTY PERFORMED BY THE INSPECTORS AT THE BARGE OFFICE PRIOR TO 6 A.M. CANNOT BE HELD TO BE OVERTIME SERVICES SO AS TO MAKE THE OWNER, AGENT, CONSIGNEE, OPERATOR, OR MASTER, OR OTHER PERSON IN CHARGE OF THE VESSEL LIABLE FOR REIMBURSEMENT FOR SUCH SERVICES UNDER SECTION 364 (D) (1) OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED.

THEREFORE, SINCE THE OWNER, AGENT, CONSIGNEE, OPERATOR, OR MASTER, OR OTHER PERSON IN CHARGE OF THE VESSEL IS NOT LIABLE FOR REIMBURSEMENT FOR THE DUTY PERFORMED AT THE BARGE OFFICE BY THE INSPECTORS PRIOR TO 6 A.M., SUCH DUTY MAY NOT BE REGARDED AS OVERTIME SERVICES FOR WHICH THE GOVERNMENT IS LIABLE WITHIN THE MEANING OF SECTION 364 (C) OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED. IN ACCORDANCE WITH THE FOREGOING VIEW, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE AND QUESTION 2 IS ANSWERED IN THE NEGATIVE.

THE THIRD QUESTION SUBMITTED BY THE ACTING SECRETARY IS AS FOLLOWS:

(3) IF IT IS YOUR VIEW THAT SUCH DUTY PRIOR TO 6 A.M. DOES NOT CONSTITUTE OVERTIME DUTY UNDER SECTION 364 OF THE PUBLIC HEALTH SERVICE ACT, AS AMENDED, WOULD YOU BE REQUIRED TO OBJECT TO TREATING SUCH DUTY AS CALL- BACK OVERTIME WORK UNDER THE FEDERAL EMPLOYEES PAY ACT, AS AMENDED, 5 U.S.C. 912A, SO AS TO ENTITLE THE EMPLOYEES TO A MINIMUM OF 2 HOURS PAY AT THE F.E.P.A. OVERTIME RATE?

SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 912A, AS ADDED BY SECTION 205 (B) OF PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, 68 STAT. 1110, IS AS FOLLOWS:

CALL-1BACK OVERTIME

FOR THE PURPOSES OF THIS CHAPTER, ANY UNSCHEDULED OVERTIME WORK PERFORMED BY ANY OFFICER OR EMPLOYEE ON A DAY WHEN NO WORK WAS SCHEDULED FOR HIM, OR FOR WHICH HE IS REQUIRED TO RETURN TO HIS PLACE OF EMPLOYMENT, SHALL BE CONSIDERED TO BE AT LEAST TWO HOURS IN DURATION.

THE PURPOSE OF THE ABOVE-QUOTED STATUTE IS SET FORTH ON PAGE 21 OF HOUSE REPORT NO. 2665, 83D CONGRESS, 2D SESSION, AS FOLLOWS: THE NEW SECTION 203 PROVIDES A MINIMUM OF 2 HOURS OF PAY AT THE OVERTIME RATE FOR ANY EMPLOYEE WHO IS CALLED BACK TO PERFORM UNSCHEDULED OVERTIME WORK EITHER ON A REGULAR WORKDAY AFTER HE HAS COMPLETED HIS REGULAR SCHEDULE OF WORK AND LEFT HIS PLACE OF EMPLOYMENT OR ON ONE OF THE DAYS WHEN HE IS OFF DUTY.

REGARDING THE REQUIREMENT THAT THE INSPECTION PERSONNEL REPORT TO THE BARGE OFFICE EARLIER THAN 6 A.M. FOR INSTRUCTIONS, ETC., WE UNDERSTAND FROM INFORMAL CONVERSATIONS WITH MEMBERS OF YOUR STAFF THAT, IN THE ABSENCE OF SPECIFIC INSTRUCTIONS TO THE CONTRARY, STANDING INSTRUCTIONS REQUIRE THE INSPECTORS ATTACHED TO THE BARGE OFFICE TO REGULARLY REPORT THERE PRIOR TO 6 A.M. BEFORE PROCEEDING TO PIER 9 OR OTHER INSPECTION POINTS. HENCE, OUR VIEW IS THAT THE STANDARD PRACTICE OF REGULARLY REPORTING TO THE BARGE OFFICE PRIOR TO 6 A.M. DOES NOT CONSTITUTE THE TYPE OF UNANTICIPATED OR UNSCHEDULED CALL-BACK OVERTIME WORK WHICH CONGRESS INTENDED TO COME WITHIN THE PURVIEW OF SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, SUPRA. THEREFORE, THE THIRD QUESTION SUBMITTED BY THE ACTING SECRETARY IS ANSWERED IN THE AFFIRMATIVE.

HOWEVER, SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 911, AS AMENDED BY SECTION 203 OF PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, 68 STAT. 1109, PROVIDES IN PERTINENT PART AS FOLLOWS:

ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK PERFORMED BY OFFICERS AND EMPLOYEES TO WHOM THIS SUBCHAPTER APPLIED SHALL BE CONSIDERED TO BE OVERTIME WORK AND COMPENSATION FOR SUCH OVERTIME WORK, EXCEPT AS OTHERWISE PROVIDED FOR IN THIS CHAPTER, SHALL BE AT THE FOLLOWING RATES. * * *

THEREFORE, IF THE WORK PERFORMED BY THE INSPECTORS AT THE BARGE OFFICE PRIOR TO 6 A.M. RESULTS IN DUTY IN EXCESS OF FORTY HOURS IN THE ADMINISTRATIVE WORKWEEK, SUCH DUTY MUST BE REGARDED AS OVERTIME WORK WITHIN THE PURVIEW OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, SUPRA. HOWEVER, TRAVEL TIME BETWEEN THE BARGE OFFICE AND PIER 9 OR BETWEEN THE BARGE OFFICE AND OTHER INSPECTION POINTS WHICH OCCURS PRIOR TO 6 A.M. MAY NOT BE REGARDED A DUTY TIME. 37 COMP. GEN. 723 AND B-67600, SEPTEMBER 24, 1947. ALSO, SEE 37 COMP. GEN. 276.

THE FOURTH QUESTION SUBMITTED BY THE ACTING SECRETARY IS IN PERTINENT PART AS FOLLOWS:

(4) IN THE EVENT THAT SUCH DUTY PRIOR TO 6 A.M. IS REGARDED AS OVERTIME DUTY * * * UNDER THE FEDERAL EMPLOYEES PAY ACT, SUPRA, THERE WOULD BE FOR CONSIDERATION THE QUESTION OF PAYING RETROACTIVELY FOR SERVICES HERETOFORE RENDERED * * *

IN LINE WITH OUR ANSWER TO QUESTION 3, AND AGAIN ASSUMING THAT THE DUTY AT THE BARGE OFFICE BEFORE 6 A.M. WAS PERFORMED PURSUANT TO ADMINISTRATIVE INSTRUCTIONS, WE WOULD HAVE NO OBJECTION TO THE RETROACTIVE PAYMENT OF OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, SUPRA, FOR SUCH SERVICES.