A-12387, FEBRUARY 1, 1926, 5 COMP. GEN. 567

A-12387: Feb 1, 1926

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WHERE SUCH CUSTOMS AGENTS ARE GIVEN FOREIGN SERVICE ASSIGNMENTS THEY MAY NOT BE PAID ADDITIONAL COMPENSATION THEREFOR. 1926: I HAVE YOUR LETTER OF DECEMBER 7. PROVIDES AS FOLLOWS: THAT THE SECRETARY OF THE TREASURY IS HEREBY FURTHER AUTHORIZED AND DIRECTED TO APPOINT DEPUTY COLLECTORS. HE IS AUTHORIZED TO APPOINT SPECIAL AGENTS OF THE CUSTOMS SERVICE IN NUMBER. " WHICH IS 30. THE OFFICE IS ADVISED THAT THEY ARE EMPLOYED ON THE SAME CHARACTER OF WORK UNDER THE SPECIAL-AGENCY SERVICE. WHICH IS A MOBILE FORCE OF OFFICERS SUBJECT TO TRANSFER WHENEVER THE INTERESTS OF THE SERVICE REQUIRE. THE TWO QUESTIONS ARE ANSWERED AS FOLLOWS: 1. WHETHER THIS STATUTE MEANT THE FIXING WAS TO BE WITHIN THE LIMITATIONS SPECIFIED BY THE ACT OF MARCH 4.

A-12387, FEBRUARY 1, 1926, 5 COMP. GEN. 567

COMPENSATION OF CUSTOMS OFFICERS THE COMPENSATION OF THE 30 SPECIAL AGENTS OF THE CUSTOMS SERVICE AUTHORIZED BY LAW MAY BE FIXED ON A PER ANNUM BASIS UNDER THE PROVISIONS OF THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AS EXTENDED DURING THE FISCAL YEAR 1926, BY THE ACT OF JANUARY 22, 1925, 43 STAT. 764, WITHOUT REGARD TO THE SALARY LIMITATIONS FOUND IN THE ACT OF MARCH 4, 1911, 36 STAT. 1393. THE SECRETARY OF THE TREASURY MAY, UNDER AUTHORITY OF THE ACT OF JANUARY 13, 1925, 43 STAT. 748, AMENDING SECTION 2 OF THE ACT OF MARCH 4, 1923, 42 STAT. 1453, ASSIGN CUSTOMS AGENTS TO THE DUTIES OF CUSTOMS ATTACHES FOR SERVICE IN FOREIGN COUNTRIES UNDER CERTAIN CONDITIONS, BUT WHERE SUCH CUSTOMS AGENTS ARE GIVEN FOREIGN SERVICE ASSIGNMENTS THEY MAY NOT BE PAID ADDITIONAL COMPENSATION THEREFOR. UNLESS THE DUTIES PRESCRIBED FOR CUSTOMS ATTACHES CONSIST SOLELY "IN THE PREVENTION AND DETECTION OF FRAUDS ON THE CUSTOMS REVENUE," SPECIAL AGENTS CAN NOT LEGALLY BE ASSIGNED TO THE DUTIES OF CUSTOMS ATTACHES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, FEBRUARY 1, 1926:

I HAVE YOUR LETTER OF DECEMBER 7, 1925, REQUESTING DECISION OF THE TWO FOLLOWING QUESTIONS:

1.MAY THE SECRETARY OF THE TREASURY APPOINT AND FIX THE COMPENSATION OF SPECIAL AGENTS APPOINTED UNDER THE PROVISIONS OF THE ACTS OF MARCH 4, 1911, AND JANUARY 13, 1925, SUPRA, ON A PER ANNUM BASIS RATHER THAN A PER DIEM BASIS, PROVIDED THE NUMBER WITHIN THE GRADES SPECIFIED DOES NOT EXCEED THE COMPENSATION THAT WOULD BE PAID SUCH AGENTS ON A PER DIEM BASIS?

2. DOES THE ACT LAST ABOVE QUOTED AUTHORIZE THIS DEPARTMENT TO EMPLOY A PERSON HOLDING APPOINTMENT AS A SPECIAL AGENT OR A CUSTOMS AGENT OF THIS DEPARTMENT ON WORK ORDINARILY PERFORMED BY A CUSTOMS ATTACHE OR AN ASSISTANT CUSTOMS ATTACHE? IF SO, MAY THIS DEPARTMENT APPOINT SUCH SPECIAL AGENT OR CUSTOMS AGENT FOR FOREIGN DUTY AS SUCH CUSTOMS ATTACHE WITHOUT ADDITIONAL COMPENSATION?

THE ACT OF MARCH 4, 1911, 36 STAT. 1393, AUTHORIZES THE SECRETARY OF THE TREASURY, UNDER SECTION 2649, REVISED STATUTES, TO APPOINT 30 SPECIAL AGENTS IN THE CUSTOMS SERVICE IN THREE GRADES OF 10 EACH, TO RECEIVE, RESPECTIVELY, NOT TO EXCEED $12 PER DAY, NOT TO EXCEED $10 PER DAY, AND NOT TO EXCEED $8 PER DAY. THE ACT OF JANUARY 13, 1925, 43 STAT. 748, AMENDING SECTION 2 OF THE ACT OF MARCH 4, 1923, 42 STAT. 1453, PROVIDES AS FOLLOWS:

THAT THE SECRETARY OF THE TREASURY IS HEREBY FURTHER AUTHORIZED AND DIRECTED TO APPOINT DEPUTY COLLECTORS, DEPUTY COMPTROLLERS, DEPUTY SURVEYORS, DEPUTY AND ASSISTANT APPRAISERS, EXAMINERS OF MERCHANDISE, INSPECTORS AND SUCH OTHER CUSTOMS OFFICERS, LABORERS, AND OTHER EMPLOYEES AS HE SHALL DEEM NECESSARY, PRESCRIBE THEIR DESIGNATIONS AND DUTIES WHEN NOT OTHERWISE DEFINED BY LAW, AND FIX THEIR COMPENSATION. HE IS AUTHORIZED TO APPOINT SPECIAL AGENTS OF THE CUSTOMS SERVICE IN NUMBER, AS NOW PROVIDED BY LAW, AND FIX THEIR COMPENSATION, AND TO APPOINT AND FIX THE COMPENSATION OF SUCH NUMBER OF CUSTOMS ATTACHES FOR DUTY IN FOREIGN COUNTRIES AND OF CUSTOMS AGENTS AS HE MAY DEEM NECESSARY, ALL OF WHOM SHALL PERFORM THEIR DUTIES AS DEFINED BY EXISTING LAW OR PRESCRIBED BY THE SECRETARY OF THE TREASURY, UNDER THE IMMEDIATE SUPERVISION OF THE DIRECTOR, SPECIAL AGENCY SERVICE OF THE CUSTOMS; * * *.

YOUR SUBMISSION RELATES TO THREE CLASSES OF OFFICERS OF THE CUSTOMS SERVICE MENTIONED IN THIS STATUTE, VIZ, SPECIAL AGENTS, CUSTOMS AGENTS, AND CUSTOMS ATTACHES FOR DUTY IN FOREIGN COUNTRIES. THE STATUTE LIMITS SPECIAL AGENTS TO THE NUMBER "AS NOW PROVIDED BY LAW," WHICH IS 30, BUT THERE APPEARS NO STATUTORY LIMITATION, WITHIN THE AVAILABILITY OF APPROPRIATIONS AND THE NEEDS OF THE SERVICE, ON THE NUMBER OF CUSTOMS AGENTS AND CUSTOMS ATTACHES THAT MAY BE APPOINTED. SPECIAL AGENTS AND CUSTOMS AGENTS APPEAR TO BE EMPLOYED IN THIS COUNTRY AND CUSTOMS ATTACHES IN FOREIGN COUNTRIES EXCLUSIVELY. THERE APPEARS NO WELL-DEFINED DISTINCTION BETWEEN THE DUTIES OF SPECIAL AGENTS AND CUSTOMS AGENTS IN THIS COUNTRY, AND THE OFFICE IS ADVISED THAT THEY ARE EMPLOYED ON THE SAME CHARACTER OF WORK UNDER THE SPECIAL-AGENCY SERVICE, WHICH IS A MOBILE FORCE OF OFFICERS SUBJECT TO TRANSFER WHENEVER THE INTERESTS OF THE SERVICE REQUIRE. SEE ARTICLES 1245 TO 1258, CUSTOMS REGULATIONS, 1923.

THE TWO QUESTIONS ARE ANSWERED AS FOLLOWS:

1. THE ACT OF JANUARY 13, 1925, AUTHORIZES THE SECRETARY OF THE TREASURY TO FIX THE COMPENSATION OF SPECIAL AGENTS. WHETHER THIS STATUTE MEANT THE FIXING WAS TO BE WITHIN THE LIMITATIONS SPECIFIED BY THE ACT OF MARCH 4, 1911, SUPRA, OR REGARDLESS THEREOF, NEED NOT NOW BE CONSIDERED. THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AS EXTENDED DURING THE FISCAL YEAR 1926 BY THE ACT OF JANUARY 22, 1925, 43 STAT. 764, AUTHORIZED THE HEADS OF THE SEVERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO ADJUST THE COMPENSATION OF CIVILIAN EMPLOYEES IN CERTAIN FIELD SERVICES, INCLUDING THE CUSTOMS SERVICE, TO CORRESPOND SO FAR AS MAY BE PRACTICABLE TO THE RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923 FOR POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA. THE STATUTES SPECIFICALLY PROVIDE THAT SUCH ADJUSTMENTS MAY BE MADE NOTWITHSTANDING THE SALARY RESTRICTIONS APPEARING IN STATUTES WHICH LIMIT SALARIES TO RATES IN CONFLICT WITH THE RATES FIXED BY THE CLASSIFICATION ACT OF 1923 FOR THE DEPARTMENTAL SERVICE. THE CLASSIFICATION ACT PROVIDES FOR NO PER DIEM RATE OF COMPENSATION. UNDER THESE PROVISIONS OF LAW, FOR THE PRESENT FISCAL YEAR, THE SALARY OF THE 30 SPECIAL AGENTS OF THE CUSTOMS SERVICE AUTHORIZED BY LAW MAY BE FIXED ON A PER ANNUM BASIS AT THE RATE SPECIFIED IN THE CLASSIFICATION ACT FOR CORRESPONDING POSITIONS IN THE DISTRICT OF COLUMBIA WITHOUT REGARD TO THE SALARY RESTRICTIONS CONTAINED IN THE ACT OF MARCH 4, 1911, SUPRA. SEE 4 COMP. GEN. 625, 626 AND 5 COMP. GEN. 77. IS UNDERSTOOD THAT THE SALARIES OF CUSTOMS AGENTS AND CUSTOMS ATTACHES ARE NOW FIXED ON A PER ANNUM BASIS.

2. WHILE THE ACT OF JANUARY 13, 1925, SUPRA, AUTHORIZES THE APPOINTMENT OF CUSTOMS ATTACHES FOR DUTY IN FOREIGN COUNTRIES, IT DID NOT DEFINE THEIR DUTIES, AND THERE APPEARS TO BE NO EXISTING LAW DEFINING THE DUTIES OF CUSTOMS ATTACHES OR CUSTOMS AGENTS. THEREFORE, IF THE COMPENSATION FIXED FOR CUSTOMS ATTACHES EQUALS OR EXCEEDS THE COMPENSATION FIXED FOR CUSTOMS AGENTS, AND IF THE DUTIES PRESCRIBED BY THE SECRETARY OF THE TREASURY FOR CUSTOMS ATTACHES ARE OF AS HIGH CLASS AS THE DUTIES PRESCRIBED FOR CUSTOMS AGENTS, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION, UNDER THE PROVISIONS OF THE SAID ACT OF JANUARY 13, 1925, TO THE ASSIGNMENT OF A CUSTOMS AGENT TO THE DUTIES OF CUSTOMS ATTACHE,PROVIDED THE SECRETARY OF THE TREASURY SHALL PRESCRIBE SUCH DUTIES AS THE DUTIES OF SAID CUSTOMS AGENT. AND IF SUFFICIENT ADMINISTRATIVE NECESSITY EXISTS THEREFOR, THERE WOULD APPEAR TO BE NO REASON WHY SUCH CUSTOMS AGENT COULD NOT ALSO BE DESIGNATED AS CUSTOMS ATTACHE WITHOUT ADDITIONAL COMPENSATION. THE DUTIES OF SPECIAL AGENTS ARE FIXED BY LAW. SEE SECTION 2649, REVISED STATUTES. THEREFORE, UNLESS THE DUTIES PRESCRIBED FOR CUSTOMS ATTACHES CONSIST SOLELY "IN THE PREVENTION AND DETECTION OF FRAUDS ON THE CUSTOMS REVENUE," SPECIAL AGENTS CAN NOT LEGALLY BE ASSIGNED TO THE DUTIES OF CUSTOMS ATTACHES.