B-163654, JAN 26, 1971, 50 COMP GEN 519

B-163654, JAN 26, 1971, 50 COMP GEN 519

COMPENSATION - OVERTIME - INSPECTIONAL SERVICE EMPLOYEES - TRAVEL TIME IN THE ADMINISTRATION OF INSPECTION AND GRADING PROGRAMS, WHEN EVENTS ARE NOT WITHIN THE CONTROL OF THE DEPARTMENT OF AGRICULTURE, AND AN AGRICULTURAL COMMODITY GRADER IS REQUIRED TO TRAVEL 8-1/2 HOURS ON SUNDAY TO REPORT FOR DUTY 8 A.M. ON MONDAY TO INSPECT AND CHECK LOAD A SHIPMENT OF PEANUT BUTTER BEING PURCHASED BY THE DEPARTMENT, THE TRAVEL IS COMPENSABLE AT THE OVERTIME RATES PRESCRIBED IN 5 U.S.C. 5542(B)(2)(B), AS THE TRAVEL COULD NOT HAVE BEEN SCHEDULED WITHIN THE EMPLOYEE'S REGULAR HOURS. THE FACT THAT THE GOVERNMENT IS REIMBURSED FOR ALL THE COSTS INCURRED IN PROVIDING THE INSPECTION AND CHECK LOADING SERVICES HAS NO BEARING ON THE EMPLOYEE'S ENTITLEMENT TO THE PAYMENT OF OVERTIME FOR THE SERVICES PERFORMED. COMPENSATION - OVERTIME - TRAVEL TIME - ADMINISTRATIVELY CONTROLLABLE WHEN AN EMPLOYEE OF THE DAIRY DIVISION OF THE DIVISION OF CONSUMER AND MARKETING SERVICES OF THE DEPARTMENT OF AGRICULTURE IS ORDERED TO TRAVEL ON SUNDAY IN ORDER TO ATTEND TWO NATIONAL MILK HEARINGS SCHEDULED DURING THE WEEK, ONE ON MONDAY MORNING AND THE OTHER ON FRIDAY, THE REQUIREMENT IN THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. 554(B), WHICH PROVIDES THAT THE CONVENIENCE OF PARTICIPANTS SHOULD BE CONSIDERED IN FIXING THE TIME AND PLACE FOR HEARINGS, DOES NOT REMOVE THE SCHEDULING OF HEARINGS FROM THE DEPARTMENT'S CONTROL; FOR WHILE THE PROVISION IMPOSES A RULE OF REASONABLENESS UPON THE AGENCY'S FREEDOM IN SCHEDULING THE HEARINGS, IT DOES NOT REQUIRE THE HEARINGS TO BE SCHEDULED AT ANY PARTICULAR TIME. THEREFORE, THE TRAVEL TIME OF THE EMPLOYEE IS NOT TRAVEL TIME WITHIN THE MEANING OF 5 U.S.C. 5542(B)(2)(B) THAT IS COMPENSABLE AS OVERTIME. COMPENSATION - OVERTIME - TRAVEL TIME STATUS - WAITING FOR TRANSPORTATION A DEPARTMENT OF AGRICULTURE EMPLOYEE RETURNING FROM PERFORMING THE TEMPORARY DUTIES OF AN AGRICULTURE COMMODITY GRADER, WHOSE AIR FLIGHT WAS DELAYED, IS ENTITLED UNDER 5 U.S.C. 5542 TO COMPENSATION FOR THE "USUAL WAITING TIME" FOR THE INTERRUPTED TRAVEL THAT IS PRESCRIBED BY THE FEDERAL PERSONNEL MANUAL, WHICH MEANS THE TIME NECESSARY TO MAKE CONNECTIONS IN THE ORDINARY TRAVEL SITUATION, CONSISTENT WITH THE PERFORMANCE OF TRAVEL AS EXPEDITIOUSLY AS POSSIBLE, WITH AN EXTENSION OF TIME FOR HEAVY HOLIDAY TRAFFIC AND INCLEMENT WEATHER, MINUS TIME FOR EATING AND REST. AS TRAVEL TIME THAT CANNOT BE SCHEDULED OR CONTROLLED QUALIFIES FOR WORK, THE EMPLOYEE WHOSE REGULAR TOUR OF DUTY IS 8 A.M. UNTIL 4:30 P.M., HAVING TRAVELED FROM 3:10 A.M. TO 10:30 A.M. ON THANKSGIVING DAY, IS ENTITLED TO PAYMENT AT HIS OVERTIME RATE FROM 3:10 A.M. TO 8 A.M. AND AT THE HOLIDAY PREMIUM PAY RATE FROM 8 A.M. TO 10:30 A.M. COMPENSATION - OVERTIME - INSPECTIONAL SERVICE EMPLOYEES - TRAVEL TIME UNDER THE AGRICULTURAL MARKETING ACT OF 1946 (7 U.S.C. 1622), THE DEPARTMENT OF AGRICULTURE IS REQUIRED TO PERFORM INSPECTION AND GRADING SERVICES WHEN PRODUCTS ARE SHIPPED OR RECEIVED IN INTERSTATE COMMERCE; AND, THEREFORE, THE REQUIRED SERVICES ARE NOT WITHIN THE CONTROL OF THE DEPARTMENT TO ENABLE THE SCHEDULING OF AN INSPECTOR'S TRAVEL DURING HIS REGULAR DUTY HOURS. THEREFORE, AN AGRICULTURAL COMMODITY GRADER WHOSE TRAVEL COULD NOT BE SCHEDULED DURING HIS REGULAR DUTY HOURS IS ENTITLED TO BE COMPENSATED FOR HIS TRAVEL AT THE OVERTIME RATES PRESCRIBED BY 5 U.S.C. 5542(B)(2)(B). COMPENSATION - OVERTIME - TRAVEL TIME - ADMINISTRATIVELY CONTROLLABLE THE TRAVEL TIME OF A FOOD INSPECTOR IN THE CONSUMER PROTECTION PROGRAM OF THE DIVISION OF CONSUMER AND MARKETING SERVICES OF THE DEPARTMENT OF AGRICULTURE, PERFORMED FROM 9 P.M. SUNDAY UNTIL 4 A.M. MONDAY - HOURS OUTSIDE HIS REGULAR TOUR OF DUTY - IN ORDER TO RELIEVE AN INSPECTOR WHO HAD BEEN GRANTED NONEMERGENCY ANNUAL LEAVE, IS NOT COMPENSABLE AS OVERTIME SINCE IN SCHEDULING THE ANNUAL LEAVE THE NEED FOR A RELIEF INSPECTOR SHOULD HAVE BEEN CONSIDERED AND THE TRAVEL OF THE RELIEF INSPECTOR SCHEDULED WITHIN HIS REGULAR DUTY HOURS. ALSO, THE RETURN TRAVEL OF THE RELIEF INSPECTOR OUTSIDE HIS REGULAR TOUR OF DUTY WAS NOT REQUIRED BY AN EVENT THAT COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY; AND, THEREFORE, THE RETURN TRAVEL FROM THE INSPECTION SITE IS NOT COMPENSABLE UNDER 5 U.S.C. 5542(B)(2)(B) AS OVERTIME.

TO THE SECRETARY OF AGRICULTURE, JANUARY 26, 1971:

THIS REFERS TO THE LETTER OF OCTOBER 6, 1970, FROM YOUR ASSISTANT SECRETARY FOR ADMINISTRATION, MR. JOSEPH M. ROBERTSON, REGARDING APPLICATION OF THE PROVISIONS OF PUBLIC LAW 90-206, FEDERAL SALARY ACT OF 1967, APPROVED DECEMBER 16, 1967, WHICH AMENDED 5 U.S.C. 5542 TO PROVIDE:

(A) HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK OR *** IN EXCESS OF 8 HOURS IN A DAY, PERFORMED BY AN EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR, EXCEPT AS OTHERWISE PROVIDED BY THIS SUBCHAPTER, AT THE FOLLOWING RATES:

(B) FOR THE PURPOSE OF THIS SUBCHAPTER -

(2) TIME SPENT IN A TRAVEL STATUS AWAY FROM THE OFFICIAL-DUTY STATION OF AN EMPLOYEE IS NOT HOURS OF EMPLOYMENT UNLESS -

(B) THE TRAVEL *** (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.

FEDERAL PERSONNEL MANUAL LETTER 550-52, CONTAINING IMPLEMENTING INSTRUCTION AND INFORMATION, PROVIDES IN PERTINENT PART:

TRAVEL WHICH RESULTS FROM AN EVENT WHICH CANNOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY IS ALSO A NEW CONDITION UNDER WHICH TRAVEL IS CONSIDERED HOURS OF WORK. THE PHRASE "COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY" REFERS TO THE ABILITY OF AN EXECUTIVE AGENCY *** AND THE GOVERNMENT OF THE DISTRICT OF COLUMBIA TO CONTROL THE EVENT WHICH NECESSITATES AN EMPLOYEE'S TRAVEL. THE CONTROL IS ASSUMED TO BE THE AGENCY'S WHETHER THE AGENCY HAS SOLE CONTROL, OR THE CONTROL IS ACHIEVED THROUGH A GROUP OF AGENCIES ACTING IN CONCERT, SUCH AS A TRAINING PROGRAM OR CONFERENCE SPONSORED BY A GROUP OF FEDERAL AGENCIES, OR SPONSORED BY ONE IN THE INTEREST OF ALL, OR THROUGH SEVERAL AGENCIES PARTICIPATING IN AN ACTIVITY OF MUTUAL CONCERN, SUCH AS AN AGENCY HEARING ON AN AIRCRAFT ACCIDENT.

ON THE OTHER HAND, TRAVEL WILL BE CONSIDERED HOURS OF WORK WHEN IT RESULTS FROM UNFORESEEN CIRCUMSTANCES (E.G., A BREAKDOWN OF EQUIPMENT) OR FROM AN EVENT WHICH IS SCHEDULED OR CONTROLLED BY SOMEONE OR SOME ORGANIZATION OUTSIDE OF GOVERNMENT. ***

THE ASSISTANT SECRETARY SUGGESTS THAT THE CONCEPT OF ADMINISTRATIVE CONTROL BY THE GOVERNMENT SET OUT IS NOT FULLY REALISTIC AS IT RELATES TO CERTAIN INSPECTION AND GRADING SERVICES WHICH THE DEPARTMENT OF AGRICULTURE IS REQUIRED TO RENDER UNDER 7 U.S.C., SECTIONS 71-87 AND 1621- 1627. HE STATES:

WHILE THE STATUTES REQUIRE THE PROVISION OF SERVICES, THEY DO NOT SPECIFICALLY ESTABLISH THE TIMES AT WHICH SUCH SERVICES MUST BE PROVIDED. IN PRACTICE, HOWEVER, THE DEGREE OF ADMINISTRATIVE CONTROL WHICH THE AGENCY MAY HAVE IN THE STRICT LANGUAGE OF THE LAW DOES NOT EXIST IN ANY REALISTIC ADMINISTRATION OF THE INSPECTION AND GRADING PROGRAMS. FREQUENTLY, IF THE SERVICES *** ARE NOT FURNISHED AT THE TIMES THEY SPECIFY, THEY WOULD SUFFER SEVERE ECONOMIC LOSSES. FOR EXAMPLE, IF A SHIP IN PORT REQUESTS A GRAIN APPEAL INSPECTION, THIS MUST BE DONE BEFORE LONGSHOREMEN CAN PROCEED WITH LOADING ITS CARGO. IF C&MS (DIVISION OF CONSUMER AND MARKETING SERVICES OF THE DEPARTMENT OF AGRICULTURE) WERE TO DENY THIS SERVICE UNTIL AN EMPLOYEE COULD BE ORDERED TO TRAVEL WITHIN HIS REGULAR HOURS OF WORK, THE SHIP COULD BE TIED UP IN DOCK AND FACED WITH POSSIBLE DEMURRAGE COSTS OF THREE TO FOUR THOUSAND DOLLARS A DAY FOR EACH DAY OF DELAY IN PORT.

THE LETTER POSES SEVERAL CASES AS BEING TYPICAL OF THOSE ENCOUNTERED BY THE AGRICULTURE DEPARTMENT. THE FIRST IS THE CASE OF MR. RAY E. TANNEHILL, WHO IS EMPLOYED AS AN AGRICULTURAL COMMODITY GRADER OF THE FRUIT AND VEGETABLE DIVISION OF C&MS. MR. TANNEHILL WAS ORDERED TO TRAVEL FOR 8-1/2 HOURS ON A SUNDAY FROM FAYETTEVILLE, ARKANSAS, TO DALLAS, TEXAS, IN ORDER TO REPORT FOR DUTY AT 8 A.M. ON MONDAY TO INSPECT AND CHECK LOAD A SHIPMENT OF PEANUT BUTTER BEING PURCHASED BY THE AGRICULTURE DEPARTMENT. THE APPLICABLE PURCHASE AGREEMENT FOR THE PEANUT BUTTER PROVIDES FOR CERTAIN INSPECTION AND CHECK LOADING FUNCTIONS TO BE PROVIDED BY THE GOVERNMENT. WITH REGARD TO THIS CONTRACT REQUIREMENT, THE LETTER STATES:

*** BEFORE THE CONTRACTOR CAN SHIP THE CAR LOTS REQUIRED, HE MUST HAVE COMPLIED WITH THE REQUIREMENT FOR INSPECTION AND CHECK LOADING *** . IF SERVICES ARE NOT PROVIDED WHEN HE REQUESTS THEM, THE CONTRACTOR COULD BE ASSESSED LIQUIDATED DAMAGES FOR LATE DELIVERY OF A PRODUCT BY THE SAME AGENCY THAT WOULD NOT FURNISH HIM THE INSPECTION AND CHECK LOADING SERVICES IN TIME TO PERMIT HIM TO MEET HIS DEADLINE.

*** WE BELIEVE THAT WHEN REQUIREMENTS ARE IMPOSED ON CONTRACTORS TO OBTAIN INSPECTION OR CHECK LOADING SERVICES FROM USDA BEFORE THEY CAN MAKE DELIVERY OF THE COMMODITIES, THE FURNISHING OF THESE SERVICES AT TIMES REQUESTED BY THE CONTRACTORS BECOMES AN EVENT WHICH USDA CANNOT REALISTICALLY SCHEDULE OR CONTROL. ***

WE RECOGNIZE THAT WHILE CERTAIN INSPECTIONS ARE OF SUCH A NATURE THAT TO BE OF ANY VALUE, THEY MUST BE ON A "SURPRISE" BASIS AND ARE SCHEDULABLE BY THE GOVERNMENT, MANY OTHERS CAN BE PERFORMED ONLY AT CERTAIN STAGES OF PRODUCTION OR WHEN CERTAIN EVENTS OCCUR WHICH, AS A PRACTICAL MATTER, ARE NOT WITHIN THE CONTROL OF THE GOVERNMENT. WHERE AN EMPLOYEE'S TRAVEL IS OCCASIONED BY THE NECESSITY FOR AN INSPECTION OF THE LATTER TYPE, AND HIS TRAVEL CANNOT BE SCHEDULED WITHIN HIS REGULAR WORKING HOURS, AS IN MR. TANNEHILL'S CASE, HIS TRAVEL WOULD BE COMPENSABLE AT OVERTIME RATES AS PRESCRIBED BY 5 U.S.C. 5542(B)(2)(B).

IT IS FURTHER INQUIRED WHETHER THE FACT THAT THE GOVERNMENT IS REIMBURSED FOR ALL COSTS INCURRED IN PROVIDING THE INSPECTION AND CHECK LOADING SERVICES MAKES IT PROPER TO COMPENSATE THE EMPLOYEES PERFORMING TRAVEL. WE DO NOT BELIEVE THIS FACTOR IS MATERIAL, SINCE ENTITLEMENT TO OVERTIME COMPENSATION UNDER THE STATUTE PREVIOUSLY REFERRED TO IS IN NO WAY RELATED TO REIMBURSEMENT TO THE UNITED STATES FOR THE COST OF SERVICES BY ITS EMPLOYEES.

THE SECOND CASE POSED IS THAT OF MR. DUNN, AN EMPLOYEE OF THE DAIRY DIVISION OF C&MS, WHO WAS ORDERED TO TRAVEL ON SUNDAY IN ORDER TO ATTEND TWO NATIONAL MILK HEARINGS IN WASHINGTON SCHEDULED DURING THE WEEK, ONE ON MONDAY MORNING AND THE OTHER ON FRIDAY. THE LETTER STATES THAT IF THE FIRST MEETING HAD NOT BEEN SCHEDULED ON MONDAY, THE WORK NECESSARY FOR THE SECOND MEETING WOULD NOT HAVE BEEN COMPLETED BEFORE SATURDAY, THEREBY REQUIRING THE PARTIES INVOLVED TO STAY THE WEEKEND TO RESUME THE FOLLOWING WEEK. FOR THIS REASON, IT APPEARS TO BE THE OPINION OF YOUR AGENCY THAT THE DECISION TO CONVENE THE HEARING ON MONDAY MORNING WAS REQUIRED BY THE ADMINISTRATIVE PROCEDURE ACT (5 U.S.C. 554(B)), WHICH PROVIDES:

*** IN FIXING THE TIME AND PLACE FOR HEARINGS, DUE REGARD SHALL BE HAD FOR THE CONVENIENCE AND NECESSITY OF THE PARTIES OR THEIR REPRESENTATIVES.

THE QUESTION IS ASKED WHETHER THE EXISTENCE OF A LAW SUCH AS THIS, WHICH INFLUENCES WHERE AND WHEN MEETINGS AND HEARINGS ARE TO BE SCHEDULED BY THE GOVERNMENT, REMOVES SUCH SCHEDULING FROM AGENCY CONTROL AND WHETHER, UNDER THE CIRCUMSTANCES DESCRIBED, MR. DUNN'S TRAVEL TIME IS THUS COMPENSABLE.

WHILE THE CITED STATUTE IMPOSES A RULE OF REASONABLENESS UPON THE AGENCY'S FREEDOM TO SCHEDULE HEARINGS, NEVERTHELESS IT DOES NOT REQUIRE THE HEARING TO BE SCHEDULED AT ANY PARTICULAR TIME. THE FACT THAT ECONOMY OR OTHER REASONS MAY BE RESPONSIBLE FOR SCHEDULING A MEETING ON MONDAY DOES NOT PROVIDE A BASIS FOR CONCLUDING THAT SUCH A MEETING IS BEYOND THE ADMINISTRATIVE CONTROL OF THE AGENCY INVOLVED. WE NOTE THAT HEARINGS AND CONFERENCES ARE SINGLED OUT IN THE FPM LETTER AS BEING AMONG THE ACTIVITIES OVER WHICH AN AGENCY OR GROUP OF AGENCIES ORDINARILY HAS CONTROL:

*** THE PHRASE "COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY" REFERS TO THE ABILITY OF AN EXECUTIVE AGENCY *** TO CONTROL THE EVENT WHICH NECESSITATES AN EMPLOYEE'S TRAVEL. THE CONTROL IS ASSUMED TO BE THE AGENCY'S WHEN THE AGENCY HAS CONTROL, OR THE CONTROL IS ACHIEVED THROUGH A GROUP OF AGENCIES ACTING IN CONCERT, SUCH AS A TRAINING PROGRAM OR CONFERENCE SPONSORED BY A GROUP OF FEDERAL AGENCIES, OR SPONSORED BY ONE IN THE INTEREST OF ALL, OR THROUGH SEVERAL AGENCIES PARTICIPATING IN AN ACTIVITY OF MUTUAL CONCERN SUCH AS AN AGENCY HEARING ON AN AIRCRAFT ACCIDENT.

UNDER THE CIRCUMSTANCES DESCRIBED, MR. DUNN'S TRAVEL TIME WOULD NOT BE COMPENSABLE AS OVERTIME.

THE THIRD CASE POSED IS THAT OF MR. GERALD R. SAVITZ, AN AGRICULTURAL COMMODITY GRADER WITH THE GRAIN DIVISION OF C&MS, WHO WAS RELEASED FROM TEMPORARY DUTY IN NEW ORLEANS, LOUISIANA, AND ORDERED TO RETURN TO SPOKANE, WASHINGTON. HE LEFT NEW ORLEANS ON A FLIGHT WHICH DEPARTED AT 11:05 A.M., CST, ON NOVEMBER 27, 1968, AND ARRIVED IN SEATTLE AT 2:45 P.M., PST, THE SAME DAY. MR. SAVITZ HAD STANDBY RESERVATIONS ON THE NEXT FLIGHT TO SPOKANE, BUT SINCE SPACE WAS NOT AVAILABLE, HE WAITED FOR THE NEXT FLIGHT, WHICH DEPARTED SEATTLE AT 8:15. THE SPOKANE AIRPORT WAS CLOSED BY FOG, AND AFTER CIRCLING FOR NEARLY 2 HOURS, THE FLIGHT RETURNED TO SEATTLE AT 11:45 P.M. THERE HAVING BEEN NO FLIGHTS TO SPOKANE UNTIL 2 P.M. ON THE FOLLOWING DAY, WHICH WAS THANKSGIVING, MR. SAVITZ TOOK A CHARTERED BUS PROVIDED BY THE AIRLINE, WHICH LEFT SEATTLE AT 3:10 A.M. AND ARRIVED IN SPOKANE AT 10:30 A.M.

FEDERAL PERSONNEL MANUAL, SUPPLEMENT 990-2, BOOK 550, SUBCHAPTER S1 3, PAGE 550-8.01 PROVIDES:

IN DETERMINING THE AMOUNT OF TIME IN A TRAVEL STATUS WHICH WOULD BE INCLUDED AS HOURS OF EMPLOYMENT, AN EMPLOYEE IS CONSIDERED TO BE IN A TRAVEL STATUS ONLY FOR THOSE HOURS ACTUALLY SPENT TRAVELING BETWEEN HIS OFFICIAL DUTY STATION AND HIS POINT OF DESTINATION, OR BETWEEN TWO TEMPORARY DUTY POINTS, AND FOR USUAL WAITING TIME WHICH INTERRUPTS TRAVEL.

WE HAVE NOT BEEN GIVEN ANY INDICATION OF THE REASON FOR MR. SAVITZ' RETURN TRAVEL TO SPOKANE. WE WOULD STRESS IN THIS CONNECTION THAT THE FACT THAT HIS TRAVEL TO NEW ORLEANS MIGHT HAVE BEEN OCCASIONED BY AN ADMINISTRATIVELY UNCONTROLLABLE EVENT WOULD NOT OF ITSELF SERVE TO QUALIFY THE RETURN TRAVEL AS OVERTIME WITHIN THE REQUIREMENTS OF 5 U.S.C. 5542(B)(2)(B). THE RETURN TRAVEL MUST ALSO HAVE BEEN IN CONNECTION WITH AN UNCONTROLLABLE EVENT, IN ORDER TO BE COMPENSABLE AS HOURS OF WORK. HOWEVER, FOR PURPOSES OF CONSIDERING THE QUESTION OF WHAT IS "USUAL WAITING TIME" WITHIN THE MEANING OF THE QUOTED FPM PROVISION, IT WILL BE ASSUMED THAT THE RETURN TRAVEL FALLS WITHIN THE REQUIREMENT OF 5 U.S.C. 5542.

MR. SAVITZ SPENT 5-1/2 HOURS WAITING FOR THE SPOKANE FLIGHT FROM SEATTLE, AND AN ADDITIONAL 3-1/2 HOURS AWAITING THE BUS. YOUR AGENCY'S QUESTION CONCERNS HIS ENTITLEMENT TO COMPENSATION FOR THESE WAITING PERIODS. THE TERM "USUAL WAITING TIME" REFERS TO THE TIME NECESSARY TO MAKE CONNECTIONS IN THE ORDINARY TRAVEL SITUATION, CONSISTENT WITH THE OVERRIDING MANDATE THAT TRAVEL SHOULD BE PERFORMED AS EXPEDITIOUSLY AS PRACTICABLE. IN MR. SAVITZ' CASE, THE TIME WHICH HE WAS REQUIRED TO WAIT BETWEEN CONNECTIONS WAS EXTENDED BECAUSE OF HEAVY HOLIDAY TRAFFIC AND INCLEMENT WEATHER. WHILE THE FULL AMOUNT OF SUCH WAITING TIME MAY NOT BE REGARDED AS "USUAL," WE BELIEVE THAT IT WOULD NOT BE UNREASONABLE TO ALLOW UP TO 3 HOURS OF WAITING TIME BEYOND MR. SAVITZ' REGULAR TOUR OF DUTY, REIMBURSABLE AT OVERTIME RATES IN ACCORDANCE WITH 5 U.S.C. 5542. THUS ON NOVEMBER 27, MR. SAVITZ WOULD BE ENTITLED TO 6 1/2 HOURS OVERTIME COMPUTED AS FOLLOWS: WAITING TIME - 4:30 P.M. TO 8:30 P.M., MINUS 1 HOUR FOR REST AND EATING EQUALS 3 HOURS, PLUS 3-1/2 HOURS TRAVEL TIME FROM 8:15 P.M. TO 11:45 P.M.

FURTHER INQUIRY IS MADE AS TO HOW MUCH OF THE TRAVEL TIME ON NOVEMBER 28, THANKSGIVING DAY, SHOULD BE PAID AT THE OVERTIME RATE AND HOW MUCH IS COMPENSABLE AS HOLIDAY PREMIUM PAY. FOR PURPOSES OF SUBCHAPTER 5, 5 U.S.C. 5542(B) DEFINES AS "HOURS OF EMPLOYMENT" TIME SPENT IN A TRAVEL STATUS AS A RESULT OF AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY. SUBCHAPTER 5, AT 5546(B) MAKES PROVISION FOR HOLIDAY PREMIUM PAY AS FOLLOWS:

AN EMPLOYEE WHO PERFORMS WORK ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE, EXECUTIVE ORDER *** IS ENTITLED TO PAY AT THE RATE OF HIS BASIC PAY, PLUS PREMIUM PAY AT A RATE EQUAL TO THE RATE OF HIS BASIC PAY, FOR THAT HOLIDAY WORK WHICH IS NOT -

(1) IN EXCESS OF 8 HOURS; OR

(2) OVERTIME WORK AS DEFINED BY SECTION 5542(A) OF THIS TITLE.

THUS, TIME SPENT IN A TRAVEL STATUS MEETING THE REQUIREMENT OF 5542(B)(2)(B) WOULD QUALIFY AS WORK WITHIN THE MEANING OF 5546(B). SEE B- 168726, JANUARY 28, 1970, WHEREIN HOURS OF TRAVEL WERE COMPENSATED AT HOLIDAY PREMIUM PAY RATES.

ON THANKSGIVING DAY, FOR THE TIME FROM MIDNIGHT UNTIL 3:10 A.M., NO WAITING TIME IS ALLOWABLE, SINCE THE MAXIMUM OF 3 HOURS PER TRIP WAS USED ON NOVEMBER 27. MR. SAVITZ DID, HOWEVER, PERFORM TRAVEL WHICH CONSTITUTED WORK FROM 3:10 A.M. UNTIL 10:30 A.M. SINCE HIS REGULAR TOUR OF DUTY WAS FROM 8 A.M. UNTIL 4:30 P.M., TRAVEL TIME FROM 8 A.M. UNTIL 10:30 A.M. WOULD BE COMPENSABLE AS HOLIDAY PREMIUM PAY, WHILE TRAVEL PERFORMED BETWEEN 3:10 A.M. AND 8 A.M. WOULD BE COMPENSABLE AT THE OVERTIME RATE. SEE 37 COMP. GEN. 1 (1957); 38 ID. 560, (1959). THE THIRD QUESTION PRESENTED IN CONNECTION WITH MR. SAVITZ' TRAVEL IS WHETHER ANY DEDUCTION OUGHT TO BE MADE FOR SLEEPING AND EATING TIME. IN THIS CONNECTION, NOTE THE TREATMENT OF EATING TIME IN THE COMPUTATION OF OVERTIME FOR NOVEMBER 27. WITH REGARD TO NOVEMBER 28, WE FEEL, IN LIGHT OF THE FACT THAT THE TRAVEL WAS NOT PERFORMED OVER AN EXTENDED PERIOD OF TIME AND BECAUSE THERE APPARENTLY WERE NO ACCOMMODATIONS ON THE BUS FOR SLEEPING, THAT NO TIME NEED BE DEDUCTED FOR SLEEPING. NOR, IN VIEW OF THE PARTICULAR CIRCUMSTANCES OF MR. SAVITZ' TRAVEL, NEED EATING TIME BE DEDUCTED FOR THE 28TH.

THE FOURTH CASE POSED IS THAT OF MR. ALBERT W. CHUMLEY, AN AGRICULTURAL COMMODITY GRADER WITH THE LIVESTOCK DIVISION, C&MS, WHO WAS ORDERED TO TRAVEL ON TWO SUNDAYS IN ORDER TO PERFORM MEAT GRADING DUTIES ON MONDAY MORNING AT APPROXIMATELY 6 A.M.

THE AGRICULTURAL MARKETING ACT OF 1946 (7 U.S.C. 1622) PROVIDES:

THE SECRETARY OF AGRICULTURE IS DIRECTED AND AUTHORIZED *** (H) TO INSPECT, CERTIFY, AND IDENTIFY THE CLASS, QUALITY, QUANTITY AND CONDITIONS OF AGRICULTURAL PRODUCTS WHEN SHIPPED OR RECEIVED IN INTERSTATE COMMERCE, UNDER SUCH RULES AND REGULATIONS AS THE SECRETARY OF AGRICULTURE MAY PRESCRIBE ***

THE USDA REGULATIONS IMPLEMENTING THIS SECTION WHICH ARE FOUND IN 7 CFR, PART 53, PROVIDE:

SEC 53.8 HOW TO OBTAIN SERVICE.

(A) APPLICATION. ANY PERSON MAY APPLY TO THE DIRECTOR OR CHIEF FOR SERVICE UNDER THE REGULATIONS WITH RESPECT TO LIVESTOCK OR PRODUCTS IN WHICH THE APPLICANT IS FINANCIALLY INTERESTED ***

(B) NOTICE OF ELIGIBILITY FOR SERVICE. THE APPLICANT FOR SERVICE AT ANY ESTABLISHMENT WILL BE NOTIFIED WHETHER HIS APPLICATION IS APPROVED. ***

SEC 53.9 ORDER OF FURNISHING SERVICE.

SERVICE UNDER THE REGULATIONS SHALL BE FURNISHED TO APPLICANTS IN THE ORDER IN WHICH REQUESTS THEREFOR ARE RECEIVED, INSOFAR AS CONSISTENT WITH GOOD MANAGEMENT, EFFICIENCY AND ECONOMY. ***

IN PRACTICE, APPLICANTS REQUEST GRADING SERVICES AT SPECIFIC HOURS, AND YOU STATE THAT IT HAS BEEN THE POLICY OF YOUR AGENCY TO MEET THEIR REQUESTS EVEN THOUGH DOING SO REQUIRES TRAVEL BY YOUR EMPLOYEES OUTSIDE THEIR REGULAR HOURS OF WORK.

THE STATUTE UNDER WHICH THE AGRICULTURE DEPARTMENT IS REQUIRED TO PERFORM INSPECTION AND GRADING SERVICES CONTEMPLATES THAT SUCH SERVICES AS ARE REQUIRED WILL BE PROVIDED WHEN THE AGRICULTURAL PRODUCTS ARE SHIPPED OR RECEIVED IN INTERSTATE COMMERCE, WHICH IS A MATTER OVER WHICH THE GOVERNMENT IS WITHOUT CONTROL. IN ORDER FOR INSPECTION AND GRADING TO SERVE THE PURPOSE INTENDED BY THE STATUTE, THE SERVICES MUST BE PROVIDED WHEN REQUESTED, AND TO THE EXTENT THAT ON THIS ACCOUNT AN EMPLOYEE'S TRAVEL CANNOT BE SCHEDULED DURING HIS REGULAR DUTY HOURS, HIS TRAVEL IS COMPENSABLE AT OVERTIME RATES. WE VIEW THE NEEDS OF THE APPLICANTS FOR INSPECTION AND GRADING SERVICES AS EVENTS OVER WHICH THE AGENCY HAS NO ADMINISTRATIVE CONTROL, GIVING RISE TO AN OFFICIAL NECESSITY FOR THE TRAVEL. THIS SHOULD OBVIATE THE NECESSITY FOR AN ANSWER TO THE QUESTION OF WHETHER THE REQUIREMENT OF APPLICANTS FOR GRADING SERVICES CONSTITUTES A VALID REASON FOR ORDERING YOUR EMPLOYEES TO PERFORM NONCOMPENSABLE TRAVEL.

THE FINAL EXAMPLE CONCERNING THE NEED FOR REPLACING AN EMPLOYEE GRANTED LEAVE IS SIMILAR TO EXAMPLE NO. 2 IN THE FEDERAL PERSONNEL MANUAL, EXCEPT THAT TRAVEL IN THE CASE WHICH YOU POSE WAS INCURRED TO RELIEVE AN EMPLOYEE WHO HAD BEEN GRANTED NONEMERGENCY ANNUAL LEAVE RATHER THAN EMERGENCY ANNUAL LEAVE. MR. BUDDY SEBASTIAN, A FOOD INSPECTOR IN THE CONSUMER PROTECTION PROGRAM OF C&MS, TRAVELED OUTSIDE OF HIS REGULAR DUTY HOURS FROM 9 P.M. SUNDAY UNTIL 4:30 A.M. ON MONDAY MORNING, FROM DALLAS, TEXAS, TO RUSSELLVILLE, ARKANSAS, TO RELIEVE AN INSPECTOR THERE WHO HAD BEEN GRANTED NONEMERGENCY ANNUAL LEAVE. HIS ASSIGNMENT WAS TO PERFORM THE INSPECTION REQUIRED BY 21 U.S.C. 455(B) WHICH PROVIDES:

THE SECRETARY, WHENEVER PROCESSING OPERATIONS ARE BEING CONDUCTED, SHALL CAUSE TO BE MADE BY INSPECTORS, POST MORTEM INSPECTION OF THE CARCASSES OF EACH BIRD PROCESSED *** MR. SEBASTIAN RETURNED TO DALLAS THE FOLLOWING SUNDAY, TRAVELING FROM 12:30 A.M. TO 8:30 P.M. IT IS ASKED WHETHER MR. SEBASTIAN IS ENTITLED TO OVERTIME COMPENSATION FOR THE HOURS SPENT TRAVELING TO AND FROM HIS TEMPORARY DUTY ASSIGNMENT IN RUSSELLVILLE.

WITH RESPECT TO MR. SEBASTIAN'S TRAVEL TO RUSSELLVILLE, IT IS CLEAR THAT THE LEAVE IN QUESTION AND THE REQUIRED TRAVEL INVOLVED COULD HAVE BEEN ADMINISTRATIVELY ARRANGED TO AVOID THE NECESSITY FOR SUCH TRAVEL OUTSIDE OF MR. SEBASTIAN'S REGULAR WORKWEEK. ABSENCE OF THE INSPECTOR AT RUSSELLVILLE BECAUSE OF NONEMERGENCY ANNUAL LEAVE BEGINNING ON A MONDAY WAS AN EVENT WHICH COULD HAVE BEEN AVOIDED BY PROPER ADMINISTRATIVE SCHEDULING. FOR EXAMPLE, THE LEAVE COULD HAVE BEEN SCHEDULED TO BEGIN ON A TUESDAY OR WEDNESDAY, AND MR. SEBASTIAN'S TRAVEL TIME COULD HAVE BEEN SCHEDULED WITHIN HIS REGULAR WORKING HOURS. FEDERAL PERSONNEL MANUAL, CHAPTER 630, SUBCHAPTER 3, PROVIDES:

3.4(B) AGENCY AUTHORITY

(1) GENERAL: ANNUAL LEAVE PROVIDED BY LAW IS A BENEFIT AND ACCRUES AUTOMATICALLY. HOWEVER, SUPERVISORS HAVE THE RESPONSIBILITY TO DECIDE WHEN THE LEAVE MAY BE TAKEN. THIS DECISION WILL GENERALLY BE MADE IN LIGHT OF THE NEEDS OF THE SERVICE RATHER THAN SOLELY ON THE DESIRES OF THE EMPLOYEE. SUPERVISORS SHOULD INSURE THAT ANNUAL LEAVE IS SCHEDULED FOR USE SO AS TO PREVENT ANY UNINTENDED LOSS AT THE END OF THE LEAVE YEAR.

IN VIEW OF THE STATUTORY INSPECTION REQUIREMENT CITED ABOVE, ONE FACTOR WHICH SHOULD HAVE BEEN TAKEN INTO CONSIDERATION IN SCHEDULING ANNUAL LEAVE WAS THE INSTALLATION'S NEED FOR A RELIEF INSPECTOR, GIVING DUE REGARD TO THE POLICY OF SCHEDULING THE RELIEF INSPECTOR'S TRAVEL WITHIN HIS REGULAR DUTY HOURS. SINCE THERE WAS ADMINISTRATIVE CONTROL OVER THE SCHEDULING OF LEAVE AT THE RUSSELLVILLE INSTALLATION, AS WELL AS MR. SEBASTIAN'S TRAVEL THERETO, THE HOURS OF SUCH TRAVEL ARE NOT COMPENSABLE AS OVERTIME WORK.

AS IN EXAMPLES NO. 1 AND NO. 5 OF THE FEDERAL PERSONNEL MANUAL, THE CIVIL SERVICE REGULATIONS OR INSTRUCTIONS PROVIDE THAT UNLESS RETURN TRAVEL OUTSIDE OF DUTY HOURS IS REQUIRED BY AN EVENT WHICH ITSELF COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY, IT IS NOT HOURS OF WORK. IN MR. SEBASTIAN'S CASE, NO REASON FOR THE PERFORMANCE OF THE RETURN TRAVEL AT THE TIME IT WAS IN FACT PERFORMED WAS INDICATED. APPARENTLY MR. SEBASTIAN'S RETURN TRAVEL ON SATURDAY MORNING WAS BECAUSE THE RUSSELLVILLE INSPECTOR'S LEAVE TERMINATED AT THAT TIME.

WE TRUST THAT THE FOREGOING ADEQUATELY COVERS THE QUESTIONS PRESENTED.