A-78953, AUGUST 22, 1936, 16 COMP. GEN. 177

A-78953: Aug 22, 1936

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ARE NOT ENTITLED TO THE OVERTIME COMPENSATION PROVIDED FOR SUCH COMMISSIONERS. 1936: THERE WAS RECEIVED YOUR LETTER OF JULY 23. THE AMOUNT OF THE RECEIPTS SO COVERED DURING THE FISCAL YEAR 1936 IS HEREBY AUTHORIZED TO BE APPROPRIATED AND MADE AVAILABLE FOR PAYMENT OF EXTRA COMPENSATION FOR OVERTIME SERVICES TO THE SEVERAL EMPLOYEES ENTITLED THERETO ACCORDING TO RATES FIXED THEREFORE BY THE SECRETARY OF COMMERCE: " SECTION 4503 R.S. (46 U.S.C. 543) PROVIDES THAT. - "IN ANY PORT IN WHICH NO SHIPPING COMMISSIONER SHALL HAVE BEEN APPOINTED. THE QUESTION AT ISSUE IS WHETHER COLLECTORS AND DEPUTY COLLECTORS OF CUSTOMS. AN EXPRESSION OF YOUR OPINION IN THE PREMISES AT YOUR EARLIEST CONVENIENCE WILL BE GREATLY APPRECIATED.

A-78953, AUGUST 22, 1936, 16 COMP. GEN. 177

COMPENSATION - OVERTIME - CUSTOMS OFFICERS ACTING AS SHIPPING COMMISSIONERS COLLECTORS OF CUSTOMS OR THEIR DEPUTIES ACTING AS UNITED STATES SHIPPING COMMISSIONERS UNDER THE PROVISIONS OF SECTION 4503, REVISED STATUTES, ARE NOT ENTITLED TO THE OVERTIME COMPENSATION PROVIDED FOR SUCH COMMISSIONERS, THEIR DEPUTIES, AND ASSISTANTS, BY SECTION 6 OF THE ACT OF MAY 27, 1936, 49 STAT. 1385.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF COMMERCE, AUGUST 22, 1936:

THERE WAS RECEIVED YOUR LETTER OF JULY 23, 1936, AS FOLLOWS:

SECTION 6 OF THE ACT APPROVED MAY 27, 1936, PUBLIC, NO. 622, 74TH CONGRESS (H.R. 8599), IN SO FAR AS PERTINENT TO THE QUESTION AT ISSUE, READS AS FOLLOWS:

"SEC. 6. THAT THE SECRETARY OF COMMERCE SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF LOCAL INSPECTORS OF STEAM VESSELS AND THEIR ASSISTANTS, UNITED STATES SHIPPING COMMISSIONERS AND THEIR DEPUTIES AND ASSISTANTS, WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF 5 O-CLOCK POST MERIDIAN AND 8 O CLOCK ANTEMERIDIAN OR ON SUNDAYS OR HOLIDAYS TO PERFORM SERVICES IN CONNECTION WITH THE INSPECTION OF VESSELS OR THEIR EQUIPMENT, SUPPLYING OR SIGNING ON OR DISCHARGING CREWS OF VESSELS ON THE BASIS OF ONE-HALF DAY'S ADDITIONAL PAY FOR EACH TWO HOURS OR FRACTION THEREOF AT LEAST ONE HOUR THAT THE OVERTIME EXTENDS BEYOND 5 O-CLOCK POST MERIDIAN (BUT NOT TO EXCEED TWO AND ONE-HALF DAYS' PAY FOR THE FULL PERIOD FROM 5 O-CLOCK POST MERIDIAN TO 8 O-CLOCK ANTEMERIDIAN) AND TWO ADDITIONAL DAYS' PAY FOR SUNDAY OR HOLIDAY DUTY. THE SAID EXTRA COMPENSATION FOR OVERTIME SERVICES SHALL BE PAID BY THE MASTER, OWNER, OR AGENT OF SUCH VESSEL TO THE LOCAL UNITED STATES COLLECTOR OF CUSTOMS OR HIS REPRESENTATIVE WHO SHALL DEPOSIT SUCH COLLECTION INTO THE TREASURY OF THE UNITED STATES TO AN APPROPRIATELY DESIGNATED RECEIPT ACCOUNT. THE AMOUNT OF THE RECEIPTS SO COVERED DURING THE FISCAL YEAR 1936 IS HEREBY AUTHORIZED TO BE APPROPRIATED AND MADE AVAILABLE FOR PAYMENT OF EXTRA COMPENSATION FOR OVERTIME SERVICES TO THE SEVERAL EMPLOYEES ENTITLED THERETO ACCORDING TO RATES FIXED THEREFORE BY THE SECRETARY OF COMMERCE: "

SECTION 4503 R.S. (46 U.S.C. 543) PROVIDES THAT---

"IN ANY PORT IN WHICH NO SHIPPING COMMISSIONER SHALL HAVE BEEN APPOINTED, THE WHOLE OR ANY PART OF THE BUSINESS OF A SHIPPING COMMISSIONER SHALL BE CONDUCTED BY THE COLLECTOR OR DEPUTY COLLECTOR OF CUSTOMS OF SUCH PORT; AND IN RESPECT OF SUCH BUSINESS SUCH CUSTOMHOUSE SHALL BE DEEMED A SHIPPING OFFICE, AND THE COLLECTOR OR DEPUTY COLLECTOR OF CUSTOMS TO WHOM SUCH BUSINESS SHALL BE COMMITTED SHALL FOR ALL PURPOSES BE DEEMED A SHIPPING COMMISSIONER WITHIN THE MEANING OF THIS TITLE (R.S. 4501-4612).'

THE QUESTION AT ISSUE IS WHETHER COLLECTORS AND DEPUTY COLLECTORS OF CUSTOMS, WHEN ACTING IN THE CAPACITY OF SHIPPING COMMISSIONERS AS PROVIDED BY SECTION 4503 SUPRA, WOULD BE ENTITLED TO EXTRA COMPENSATION FOR OVERTIME SERVICES RENDERED IN CONNECTION WITH THE SHIPMENT AND DISCHARGE OF SEAMEN, AND AN EXPRESSION OF YOUR OPINION IN THE PREMISES AT YOUR EARLIEST CONVENIENCE WILL BE GREATLY APPRECIATED.

THE ACT OF MAY 27, 1936, 49 STAT. 1385, QUOTED IN YOUR LETTER AUTHORIZES OVERTIME PAY ONLY FOR ,LOCAL INSPECTORS OF STEAM VESSELS AND THEIR ASSISTANTS, UNITED STATES SHIPPING COMMISSIONERS AND THEIR DEPUTIES AND ASSISTANTS.' IT IS TO BE PRESUMED THE CONGRESS IN ENACTING THIS STATUTE WAS COGNIZANT OF THE FACT THAT IT HAD BEEN MADE A STATUTORY DUTY OF COLLECTORS OF CUSTOMS AND THEIR DEPUTIES TO SERVE AS UNITED STATES SHIPPING COMMISSIONERS AT PORTS WHERE NO SHIPPING COMMISSIONERS HAD BEEN APPOINTED AND THAT IF OVERTIME PAY HAD BEEN INTENDED FOR THEM THEY WOULD HAVE BEEN SPECIFICALLY NAMED IN THE STATUTE. THE TERMS "ONE-HALF DAY'S ADDITIONAL PAY" AND "TWO ADDITIONAL DAYS' PAY" PROVIDED FOR IN THE ACT COULD HAVE BEEN INTENDED TO BE COMPUTED ONLY ON THE REGULAR PAY OF THE OFFICERS NAMED IN THE ACT. IF NO SHIPPING COMMISSIONER HAS BEEN APPOINTED, AT A PARTICULAR PORT THERE IS NO BASIS ON WHICH THE STATUTE MAY OPERATE, THE RATES OF PAY PROVIDED FOR SHIPPING COMMISSIONERS BEING DIFFERENT FROM THE RATES PROVIDED FOR COLLECTORS OF CUSTOMS AND THEIR DEPUTIES.

YOU ARE ADVISED, THEREFORE, THAT IN THE ABSENCE OF MORE SPECIFIC LANGUAGE IN THE STATUTE IT MUST BE CONCLUDED THAT CUSTOMS OFFICERS ARE NOT ENTITLED TO OVERTIME COMPENSATION WHILE SERVING OVERTIME AS SHIPPING COMMISSIONERS.