B-132126, OCTOBER 24, 1957, 37 COMP. GEN. 276

B-132126: Oct 24, 1957

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WHO HAVE A REGULAR DAILY TOUR OF DUTY OTHER THAN BETWEEN THE HOURS OF 8 A.M. ARE NOT ENTITLED TO PREMIUM PAYMENTS OF FOUR HOURS "REMAIN ON DUTY" TIME IN ADDITION TO ACTUAL SERVICE TIME COMMENCING FOUR HOURS OR LESS BETWEEN 5 P.M. - ARE ENTITLED TO EXTRA COMPENSATION COMPUTED AS THOUGH THE BEGINNING OF THE REGULAR TOUR OF DUTY MARKED THE END OF A NIGHT PERIOD AND THE CLOSE OF SUCH TOUR MARKED THE BEGINNING OF ANOTHER NIGHT PERIOD. EMPLOYEES WHOSE REGULAR DAILY TOUR OF DUTY IS FROM 4 P.M. ARE DATED JULY 30. ARE DATED AUGUST 14. ACCOMPANYING THE LETTER IS A MEMORANDUM DISCUSSING THE SEVERAL TYPES OF QUESTIONED PAYMENTS INVOLVED AND THE PRESENT SYSTEM OF REPAYMENT THEREOF. ALSO ENCLOSED IS A MEMORANDUM OF A FORMER COLLECTOR OF CUSTOMS DATED DECEMBER 5.

B-132126, OCTOBER 24, 1957, 37 COMP. GEN. 276

CUSTOMS EMPLOYEES - OVERTIME - NIGHT WORK - CONSTRUCTIVE TIME - TRAVEL CUSTOMS EMPLOYEES, WHO HAVE A REGULAR DAILY TOUR OF DUTY OTHER THAN BETWEEN THE HOURS OF 8 A.M. AND 5 P.M., ARE NOT ENTITLED TO PREMIUM PAYMENTS OF FOUR HOURS "REMAIN ON DUTY" TIME IN ADDITION TO ACTUAL SERVICE TIME COMMENCING FOUR HOURS OR LESS BETWEEN 5 P.M. AND 9 P.M. UNDER 19 U.S.C. 267, 1451 AND THE REGULATIONS IN 19 C.F.R. 2416, WHICH INDICATE THAT COMPENSABLE TIME CANNOT BE MORE THAN THE TIME ELAPSING BETWEEN 5 P.M. AND THE CONCLUSION OF SERVICE WHEN THE EMPLOYEE CEASES TO ,REMAIN ON DUTY.' IN VIEW OF THE PROVISIONS OF SECTION 24.16 (G) OF THE CUSTOMS REGULATIONS, 19 C.F.R. 2416, EMPLOYEES WHOSE REGULAR DAILY TOUR OF DUTY COVERS ANY PART OF THE NIGHT (5 P.M. TO 8 A.M./--- COMPENSABLE TIME FOR EXTRA COMPENSATION PURPOSES UNDER 19 U.S.C. 267--- ARE ENTITLED TO EXTRA COMPENSATION COMPUTED AS THOUGH THE BEGINNING OF THE REGULAR TOUR OF DUTY MARKED THE END OF A NIGHT PERIOD AND THE CLOSE OF SUCH TOUR MARKED THE BEGINNING OF ANOTHER NIGHT PERIOD, AND EMPLOYEES WHOSE REGULAR DAILY TOUR OF DUTY IS FROM 4 P.M. TO 12 P.M. MAY BE CREDITED WITH THE FOUR-HOUR COMPENSABLE TIME ALLOWANCE EVEN THOUGH EMPLOYEES ON THE REGULAR DAYTIME TOUR (8 A.M. TO 5 P.M.) WOULD BE ENTITLED ONLY TO A TWO-HOUR ALLOWANCE FOR REPORTING TO DUTY BETWEEN SUCH HOURS. COMMENCEMENT OF TRAVEL FROM HONOLULU, HAWAII, TO OUTLYING POINTS--- PEARL HARBOR AND BARBER'S POINT--- AT WHICH CUSTOMS INSPECTIONS TAKE PLACE DURING THE NIGHT HOURS (BETWEEN 5 P.M. AND 8 A.M.) OUTSIDE OF THE EMPLOYEE'S REGULAR TOUR OF DUTY HOURS DOES NOT CONSTITUTE A REPORTING FOR DUTY TO ENTITLE THE EMPLOYEE TO EXTRA COMPENSATION UNDER 19 U.S.C. 267 AND SECTION 24.16 (G) OF THE CUSTOMS REGULATIONS, 19 C.F.R. 24.16, SO AS TO AUTHORIZE THE INCLUSION OF THE TRAVEL TIME IN THE COMPENSABLE TIME FOR ACTUAL PERFORMANCE OF DUTY IN ADDITION TO FOUR HOURS OR OTHER CONSTRUCTIVE COMPENSABLE TIME UNDER THE REGULATIONS. MERE PERFORMANCE OF TRAVEL IMMEDIATELY PRIOR TO 8 A.M. (END OF "NIGHT") IN REPORTING FOR DUTY AT THE PLACE OF INSPECTIONAL WORK AT 8 A.M. OR LATER DOES NOT ENTITLE THE CUSTOMS EMPLOYEES TO EXTRA COMPENSATION FOR OVERTIME SERVICES UNDER 19 U.S.C. 267 AND SECTION 24.16 (G) OF THE CUSTOMS REGULATIONS.

TO THE SECRETARY OF THE TREASURY, OCTOBER 24, 1957:

THE ACTING SECRETARY'S LETTER OF JANUARY 7, 1957, REFERS TO GENERAL ACCOUNTING OFFICE NOTICES OF EXCEPTION NOS. 400006 TO 400011 AND 400013 TO 400021, INCLUSIVE, CODE 101121, SYM. 1321, ADDRESSED TO WARDE C. HIBERLY AND NO. 400012, CODE 101121, SYM. 1321, ADDRESSED TO ANTHONY J. SCHIMMER ALL RELATING TO CUSTOMS ACTIVITIES IN CUSTOMS COLLECTION DISTRICT 32, HONOLULU, T.H. NOTICES NOS. 400006 TO 400011, INCLUSIVE, ARE DATED JULY 30, 1953, AND NOTICES NOS. 400012 TO 400021, INCLUSIVE, ARE DATED AUGUST 14, 1953.

THE NOTICES OF EXCEPTION RELATE TO PAYMENTS OF EXTRA COMPENSATION TO CUSTOMS EMPLOYEES UNDER THE CUSTOMS OVERTIME LAWS, 19 U.S.C. 267, 1451, AND THE CUSTOMS OVERTIME REGULATIONS, 19 CFR 24.16.

ACCOMPANYING THE LETTER IS A MEMORANDUM DISCUSSING THE SEVERAL TYPES OF QUESTIONED PAYMENTS INVOLVED AND THE PRESENT SYSTEM OF REPAYMENT THEREOF. ALSO ENCLOSED IS A MEMORANDUM OF A FORMER COLLECTOR OF CUSTOMS DATED DECEMBER 5, 1944, INTERPRETING THE REGULATIONS AS CONTAINED IN T.D. 51149, APPROVED NOVEMBER 18, 1944, TOGETHER WITH A LETTER FROM THE COLLECTOR DATED NOVEMBER 27, 1953, SETTING FORTH THAT THE PAYMENTS WERE MADE IN ACCORDANCE WITH ESTABLISHED INTERPRETATIONS AND PRACTICES OF HIS OFFICE.

OUR RECORDS SHOW THAT THE 16 EXCEPTIONS ORIGINALLY ISSUED TOTALED $4,945.40, AND INVOLVED PAYMENTS TO 35 EMPLOYEES. ADMINISTRATIVE EXCEPTIONS HAVE RAISED THE TOTAL OF $6,497.56, INVOLVING 40 EMPLOYEES. THE PRINCIPAL REASON FOR THE DIFFERENCE IN AMOUNTS IS THAT EXCEPTIONS COULD NOT BE STATED BY OUR OFFICE AGAINST SOME OF THE PAYMENTS BECAUSE OF THE THREE-YEAR STATUTORY PERIOD FOR SETTLEMENT OF ACCOUNTS. ALSO, THE RECORDS SHOW THAT AS OF MARCH 1, 1957, COLLECTIONS HAVE BEEN MADE AMOUNTING TO $2,855.39. PAYMENTS IN FULL HAVE BEEN RECEIVED FROM 26 EMPLOYEES AND PARTIAL PAYMENTS HAVE BEEN MADE BY 6 OF THE 14 EMPLOYEES FROM WHOM AMOUNTS ARE STILL OUTSTANDING.

AS TO THE OVERPAYMENTS INCLUDED IN REIMBURSEMENTS FROM CARRIERS, A TOTAL OF $4,934.56 HAS BEEN REFUNDED BY THE BUREAU OF CUSTOMS FROM APPROPRIATION ACCOUNTS, AND CLAIMS TOTALING $668.18 WERE FORWARDED TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT BECAUSE THE APPROPRIATIONS INVOLVED HAD LAPSED. THE FORWARDING LETTERS, BEARING VARIOUS DATES IN 1954, STATED THAT THE CLAIMS HAD BEEN ADMINISTRATIVELY EXAMINED AND WERE APPROVED FOR PAYMENT. NO MENTION IS MADE OF ANY EXTENUATING CIRCUMSTANCES AND SINCE THE SUPPORTING STATEMENTS OF THE TIME OF SERVICE, ETC., INDICATED OVERPAYMENTS TO THE EMPLOYEES, THE REFUND CLAIMS OF THE CARRIERS WERE ALLOWED IN ACCORDANCE WITH THE ADMINISTRATIVE RECOMMENDATIONS.

THE THREE CLASSES OF QUESTIONED PAYMENTS ARE:

1. PREMIUM PAY FOR HOURS OF "BACK-UP TIME" WHICH OCCURRED BETWEEN 8 A.M. AND 5 P.M.

2. TRAVEL TIME TO AND FROM THE ASSIGNED POST OF DUTY.

3. OVERTIME FOR PERIOD PRIOR TO 8 A.M. WHEN NO WORK WAS PERFORMED AND ESTIMATED TIME OF ARRIVAL OF AIRCRAFT WAS 8 A.M. OR LATER.

THE STATUTORY AUTHORITY FOR PAYMENT OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF CUSTOMS EMPLOYEES IS CONTAINED IN SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, 19 U.S.C. 267, READING AS FOLLOWS:

THE SECRETARY OF THE TREASURY SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS, STOREKEEPERS, WEIGHERS, AND OTHER CUSTOMS OFFICERS AND EMPLOYEES 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 LADING OR UNLADING OF CARGO, OR THE LADING OF CARGO OR MERCHANDISE FOR TRANSPORTATION IN BOND OR FOR EXPORTATION IN BOND OR FOR EXPORTATION WITH BENEFIT OF DRAWBACK, OR IN CONNECTION WITH THE RECEIVING OR DELIVERY OF CARGO ON OR FROM THE WHARF, OR IN CONNECTION WITH THE UNLADING, RECEIVING, OR EXAMINATION OF PASSENGERS' BAGGAGE, SUCH RATES TO BE FIXED ON THE BASIS OF ONE-HALF DAY'S ADDITIONAL PAY FOR EACH 2 HOURS OR FRACTION THEREOF OF AT LEAST 1 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 SHALL BE PAID BY THE MASTER, OWNER, AGENT OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE WHENEVER SUCH SPECIAL LICENSE OR PERMIT FOR IMMEDIATE LADING OR UNLADING OR FOR LADING OR UNLADING AT NIGHT OR ON SUNDAYS OR HOLIDAYS SHALL BE GRANTED TO THE COLLECTOR OF CUSTOMS, WHO SHALL PAY THE SAME TO THE SEVERAL CUSTOMS OFFICERS AND EMPLOYEES ENTITLED THERETO ACCORDING TO THE RATES FIXED THEREFOR BY THE SECRETARY OF THE TREASURY. SUCH EXTRA COMPENSATION SHALL BE PAID IF SUCH OFFICERS OR EMPLOYEES HAVE BEEN ORDERED TO REPORT FOR DUTY AND HAVE SO REPORTED, WHETHER THE ACTUAL LADING, UNLADING, RECEIVING, DELIVERY, OR EXAMINATION TAKES PLACE OR NOT. IN THOSE PORTS WHERE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HEREINABOVE MENTIONED, THE COLLECTOR OF CUSTOMS IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF CUSTOMS EMPLOYEES SO AS TO AGREE WITH PREVAILING WORKING HOURS IN SAID PORTS, BUT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR CUSTOMS' EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED. FEB. 13, 1911, CH. 46, SEC. 5, 36 STAT. 901; FEB. 7, 1920, CH. 61, 41 STAT. 402.) UNDER THE TERMS OF 19 U.S.C. 1451, NONEXEMPT PRIVATE INTERESTS ARE REQUIRED TO GIVE BOND TO INSURE, AMONG OTHER THINGS, PAYMENT OF EXTRA COMPENSATION PROVIDED BY THE ABOVE QUOTED LAW WHEN SPECIAL LICENSE IS GRANTED PURSUANT TO 19 U.S.C. 1450 TO UNLADE ON SUNDAY, A HOLIDAY, OR AT NIGHT. THE WORD "NIGHT" IS DEFINED IN 19 U.S.C. 1401 (G) AS MEANING THE TIME FROM 5 P.M. TO 8 A.M. SEE GENERALLY 24 COMP. GEN. 140; ID. 483; 27 ID. 655.

THE PROVISIONS OF THE REGULATIONS ISSUED IN PURSUANCE OF THE 1911 ACT, AS AMENDED, WHICH ARE PARTICULARLY PERTINENT TO THE MATTERS IN QUESTION, ARE THE SECOND AND THIRD SENTENCES OF SECTION 24.16 (G) AS CARRIED IN THE ISSUE APPROVED DECEMBER 16, 1948, 13 FR 8108. THOSE TWO SENTENCES READ AS FOLLOWS:

* * * THE COMPENSABLE TIME SHALL BE THE PERIOD BETWEEN THE BEGINNING OF THE NIGHT AND THE CONCLUSION OF THE SERVICES IF THE EMPLOYEE IS ASSIGNED AND REPORTS FOR DUTY BEFORE THE EXPIRATION OF THE FIRST 4 HOURS OF THE NIGHT; THE PERIOD BETWEEN THE TIME THE EMPLOYEE IS ASSIGNED AND REPORTS FOR DUTY AND THE CONCLUSION OF THE SERVICES, PLUS 4 HOURS, IF THE TIME OF ASSIGNMENT IS AFTER THE EXPIRATION OF THE FIRST 4 AND BEFORE THE BEGINNING OF THE LAST 2 HOURS OF THE NIGHT; OR 2 HOURS IF THE EMPLOYEE IS ASSIGNED AND REPORTS FOR DUTY 2 HOURS OR LESS BEFORE THE END OF THE NIGHT. THE COMPENSABLE TIME FOR OVERTIME SERVICE PERFORMED BY A CUSTOMS EMPLOYEE ASSIGNED TO A REGULAR TOUR OF DUTY COVERING ANY PART OF A NIGHT SHALL BE COMPUTED IN ACCORDANCE WITH THIS NIGHT RATE AS THOUGH THE BEGINNING OF THE REGULAR TOUR OF DUTY OF SUCH EMPLOYEE MARKED THE END OF A NIGHT PERIOD AND THE CLOSE OF SUCH TOUR MARKED THE BEGINNING OF ANOTHER NIGHT PERIOD, BUT EXTRA COMPENSATION IS NOT PAYABLE IN ACCORDANCE WITH THIS SECTION FOR OVERTIME SERVICES PERFORMED BY ANY CUSTOMS EMPLOYEE ON A REGULAR WORKDAY DURING OTHER THAN THE NIGHT HOURS OF THE PORT OR STATION. * * *

THE FIRST CATEGORY OF PAYMENTS COVERS (1) ALLOWANCE OF 4 HOURS' COMPENSABLE TIME, IN ADDITION TO THE TIME OF ACTUAL SERVICE, WHEN THE ASSIGNMENT BEGAN BEFORE THE EXPIRATION OF THE FIRST 4 HOURS OF THE NIGHT, THAT IS, BETWEEN 5 P.M. AND 9 P.M., AND (2) AN ALLOWANCE OF 4 HOURS COMPENSABLE TIME WHEN THE ASSIGNMENT BEGAN WITHIN 2 HOURS OF THE EXPIRATION OF THE NIGHT, THAT IS, BETWEEN 6 A.M. AND 8 A.M. THE PARTICULAR EMPLOYEES INVOLVED APPEAR TO HAVE BEEN THOSE WHOSE REGULAR TOURS OF DUTY EMBRACED HOURS OTHER THAN THOSE BETWEEN 8 A.M. AND 5 P.M. THE SECOND SENTENCE OF THE REGULATIONS, SUPRA, ALLOWS ONLY THE TIME FROM 5 P.M. (THE BEGINNING OF THE NIGHT) UNTIL THE CONCLUSION OF THE SERVICES, IN THE FIRST CIRCUMSTANCE, AND 2 HOURS IN THE SECOND. HOWEVER, THE COLLECTOR OF CUSTOMS SAYS IN HIS LETTER OF NOVEMBER 27, 1953, THAT HIS OFFICE CONSIDERED THAT THE LANGUAGE OF THE THIRD SENTENCE OF THE REGULATIONS AUTHORIZED THE ADDITION OF THE 4 HOURS' COMPENSABLE TIME TO THE TIME ACTUALLY WORKED AND THAT SUCH 4 HOURS ADDITIONAL COMPENSABLE TIME WHEN ADDED TO TIME ACTUALLY WORKED FOR ASSIGNMENTS BEGUN 4 HOURS OR LESS SUBSEQUENT TO 5 P.M., DID NOT CONSTITUTE PAYMENT FOR OVERTIME SERVICES PERFORMED BETWEEN 8 A.M. AND 5 P.M. SIMILARLY, HE SAYS, IT WAS FELT THAT THE ADDITION OF 4 HOURS' COMPENSABLE TIME TO THE TIME ACTUALLY WORKED FOR ASSIGNMENTS BEGUN 2 HOURS OR LESS PRIOR TO 8 A.M. DID NOT CONSTITUTE PAYMENT FOR OVERTIME SERVICES PERFORMED BETWEEN 8 A.M. AND 5 P.M., AND THAT THE TIME FROM 6 A.M. TO 8 A.M. FOR EMPLOYEES ASSIGNED TO A TOUR OF DUTY FROM 4 P.M. TO 12 P.M. DID NOT CONSTITUTE THE LAST 2 HOURS OF THEIR NIGHT. THOSE VIEWS APPEAR TO HAVE BEEN BASED, IN PART, UPON COLLECTOR'S MEMORANDUM NO. 9, DATED DECEMBER 5, 1944, ISSUED BY A PREDECESSOR COLLECTOR.

THE MEMORANDUM ACCOMPANYING THE ACTING SECRETARY'S LETTER STATES THAT SUCH INTERPRETATION WAS NOT IN ACCORDANCE WITH THE INTENT OF THE REGULATIONS, AND THE COLLECTOR WAS SO ADVISED BY A RADIOGRAM DATED OCTOBER 24, 1951, FROM THE BUREAU OF CUSTOMS. THE MEMORANDUM ALSO STATES THAT IT IS CLEAR FROM THE EXPLANATION OF THE COLLECTOR THAT THE PAYMENTS IN QUESTION WERE MADE IN ACCORDANCE WITH THE OFFICIAL VIEW OF THE COLLECTOR'S OFFICE AS TO THE MEANING OF THE REGULATION.

COMPENSABLE TIME UNDER THE 1911 ACT, AS AMENDED, IS PRESCRIBED AS THE TIME DURING WHICH THE EMPLOYEE IS "REQUIRED TO REMAIN ON DUTY" BETWEEN 5 P.M. AND 8 A.M. THEREFORE, THE ALLOWANCE AUTHORIZED BY THE SECOND SENTENCE OF THE REGULATIONS OF NONDUTY TIME AS COMPENSABLE TIME ONCE WAS THE SUBJECT OF DOUBT AS TO ITS VALIDITY. IN THE AUDIT AND SETTLEMENT OF ACCOUNTS AND CLAIMS, HOWEVER, WE HAVE RESOLVED THE DOUBT IN FAVOR OF THE VALIDITY OF SUCH PROVISIONS OF THE REGULATIONS UPON THE BASIS THAT IT IS WITHIN THE DISCRETION OF THE SECRETARY OF THE TREASURY UNDER THE STATUTE TO MAKE A REASONABLE ALLOWANCE FOR WAITING TIME DURING WHICH THE EMPLOYEE MIGHT BE SAID TO "REMAIN ON DUTY" ALTHOUGH NOT ENGAGED IN THE ACTUAL PERFORMANCE OF INSPECTIONS, ETC. HOWEVER, IN VIEW OF THE PHRASE IN THE LAW QUOTED ABOVE, AS WELL AS THE PROVISION THAT THE COMPUTATION OF EXTRA COMPENSATION IS TO BE BASED ON THE NUMBER OF 2-HOUR PERIODS (OR DESIGNATED FRACTION) THAT THE ,OVERTIME EXTENDS BEYOND" 5 P.M., THE TERMS OF THE STATUTE CLEARLY ARE SUCH THAT THERE CANNOT POSSIBLY OCCUR MORE COMPENSABLE TIME THAN THE TIME ELAPSING BETWEEN 5 P.M. AND THE CONCLUSION OF THE SERVICE WHEN THE EMPLOYEE CEASES TO "REMAIN ON DUTY.' IT FOLLOWS THAT PAYMENT FOR MORE TIME THAN THAT ELAPSING BETWEEN 5 P.M. AND THE CONCLUSION OF THE SERVICE (WHICH IS THE RESULT WHEN A 4-HOUR WAITING TIME ALLOWANCE IS ADDED TO THE TIME OF ACTUAL SERVICE COMMENCING LESS THAN 4 HOURS AFTER 5 P.M.) IS CONTRARY TO LAW. IN OUR VIEW THE SUGGESTION THAT THE SO- CALLED "BACK UP TIME" IS PREMIUM PAY RATHER THAN PAYMENT FOR PARTICULAR HOURS OF SERVICE IS WITHOUT MERIT.

AS TO THE SECOND CLASS OF CASES UNDER THE FIRST CATEGORY INVOLVING EMPLOYEES ON THE 4 P.M. TO 12 P.M. TOUR REPORTING FOR DUTY BETWEEN THE HOURS OF 6 A.M. AND 8 A.M., THE STATUTE ITSELF DOES NOT PRECLUDE A 4 HOUR CONSTRUCTIVE COMPENSABLE TIME ALLOWANCE AS FOR WAITING TIME, SINCE THE TIME THUS ALLOWED DOES NOT "BACK UP" INTO THE DAYTIME HOURS OR INTO THE HOURS OF THE EMPLOYEE'S REGULAR TOUR OF DUTY. THE THIRD SENTENCE OF SECTION 24.16 (G) OF THE REGULATIONS IS SUSCEPTIBLE OF THE INTERPRETATION PLACED UPON IT IN THESE CASES AND NO OTHER PROVISION OF THE REGULATIONS PRECISELY PRECLUDES SUCH INTERPRETATION. WHILE AS PREVIOUSLY MENTIONED THE MEMORANDUM ACCOMPANYING THE ACTING SECRETARY'S LETTER STATES THAT THIS INTERPRETATION WAS NOT IN ACCORDANCE WITH THE INTENT OF THE REGULATIONS, NEVERTHELESS, WE FIND NO BASIS FOR HOLDING THAT THE PAYMENTS OF EXTRA COMPENSATION WERE ERRONEOUS UNDER THE REGULATIONS AS WORDED. WE SUGGEST THAT, IN ORDER TO AVOID FUTURE OCCURRENCES OF THIS KIND, THE REGULATIONS BE RESTATED TO REFLECT THE ADMINISTRATIVE INTENTION. WE WOULD ESPECIALLY RECOMMEND THE USE OF LANGUAGE WHICH AVOIDS THE FICTION OF A "NIGHT" EMBRACING HOURS OTHER THAN THOSE BETWEEN 5 P.M. AND 8 A.M. CONTRARY TO THE DEFINITION IN 19 U.S.C. 1401 (G) SUPRA. CF. 24 COMP. GEN. 483; 27 ID. 655, SUPRA.

THE EXCEPTIONS TO PAYMENTS OF THE CLASS LAST DISCUSSED WILL BE REMOVED AND UPON ADMINISTRATIVE REAUDIT (MAKING SURE THAT THE REGULAR TOUR OF DUTY INVOLVED WAS FROM 4 P.M. TO 12 P.M. AS REPRESENTED), PAYMENTS OF SUCH CLASS WHICH HAVE BEEN RECOVERED MAY BE REFUNDED TO THE EMPLOYEES. WHILE WE ARE NOT UNMINDFUL OF THE DIFFICULTIES WHICH MAY BE ENCOUNTERED, OUR VIEW AT THIS TIME IS THAT YOUR DEPARTMENT SHOULD MAKE AN EFFORT TO COLLECT BACK FROM THE CARRIERS THE AMOUNTS IN THIS CLASS WHICH HAVE BEEN REFUNDED TO THEM, INCLUDING THE AMOUNTS PAID ON SETTLEMENTS OF OUR OFFICE FROM LAPSED APPROPRIATIONS. UNITED STATES V. WURTS, 303 U.S. 414. SUBJECT TO VERIFICATION OF THE TOUR OF DUTY OF THE EMPLOYEES INVOLVED, PAYMENTS OF THE SUBJECT CLASS APPEAR TO HAVE BEEN INCLUDED IN REFUNDS ON OUR SETTLEMENTS TO PAN AMERICAN WORLD AIRWAYS, INC., CERTIFICATE NO. 2244644, DATED SEPTEMBER 16, 1954; AMERICAN PRESIDENT LINES, TD., CERTIFICATE NO. 2244926, DATED SEPTEMBER 20, 1954; CASTLE AND COOKE, LTD., CERTIFICATE NO. 2243947, DATED SEPTEMBER 14, 1954; AND THEO. H. DAVIES AND CO., LTD., AGENTS, CERTIFICATE NO. 2242878, AUGUST 24, 1954. WE SHOULD APPRECIATE YOUR DEPARTMENT'S ADVISING OUR CLAIMS DIVISION OF THE RESULTS OF THE COLLECTION EFFORTS IN THE CASES MENTIONED. CONCERNING THE SECOND CATEGORY OF QUESTIONED PAYMENTS, THE EXPLANATION OF THE COLLECTOR OF CUSTOMS IN HIS LETTER OF NOVEMBER 27, 1953, IS AS FOLLOWS:

DURING THE PERIOD FOR WHICH EXCEPTIONS RELATIVE TO THE INCLUSION OF TRAVEL TIME IN THE COMPUTATION OF OVERTIME CHARGES WERE CITED IT WAS THE PRACTICE THAT EMPLOYEES ASSIGNED TO DUTY, EITHER ON A REGULAR TOUR OF DUTY OR IN AN OVERTIME STATUS, AT PEARL HARBOR AND THE BARBER'S POINT NAVAL AIR STATION, WOULD BE CONSIDERED AS BEING ON DUTY AT THE HONOLULU AIRPORT STATION. IF THEY REPORTED FOR DUTY AT THE HONOLULU AIRPORT PRIOR TO TRAVELING TO AN OVERTIME ASSIGNMENT AT PEARL HARBOR OR BARBER'S POINT THEY SIGNED IN ON CUSTOMS FORM 3013 AS BEING ON DUTY AT THE HONOLULU AIRPORT AT THE TIME THEY ARRIVED THERE. IF THEY REPORTED DIRECTLY TO PEARL HARBOR OR BARBER'S POINT, THEY SIGNED IN AS BEING ON DUTY AT THE HONOLULU AIRPORT FROM THE TIME THEY ARRIVED AT PEARL HARBOR OR BARBER'S POINT WHEN ARRIVING AT THE HONOLULU AIRPORT SUBSEQUENT TO COMPLETING THEIR ASSIGNMENTS AT PEARL HARBOR OR BARBER'S POINT. NO WRITTEN INSTRUCTIONS PRESCRIBING THIS PRACTICE WERE ISSUED, BUT THE PROCEDURE WAS AUTHORIZED BY THE DEPUTY COLLECTOR IN CHARGE OF THE OUTSIDE DIVISION, AND CONCURRED IN BY THE ASSISTANT COLLECTOR. THE DEPUTY COLLECTOR IN CHARGE OF THE OUTSIDE DIVISION HELD THAT PEARL HARBOR AND BARBER'S POINT WERE A PART OF THE HONOLULU AIRPORT STATION, AND THAT AN EMPLOYEE ASSIGNED TO OVERTIME DUTY AT PEARL HARBOR OR BARBER'S POINT WAS ON DUTY AT HIS OVERTIME POST AS SOON AS HE ARRIVED AT THE HONOLULU AIRPORT STATION, REGARDLESS OF WHEN HE SUBSEQUENTLY ACTUALLY ARRIVED AT PEARL HARBOR OR BARBER'S POINT TO PERFORM HIS OVERTIME ASSIGNMENT THERE. IT WAS ALSO HELD THAT THE EMPLOYEE CONTINUED TO REMAIN IN AN OVERTIME STATUS FROM THE TIME HE COMPLETED HIS OVERTIME ASSIGNMENT AT PEARL HARBOR OR BARBER'S POINT UNTIL HE RETURNED TO THE HONOLULU AIRPORT STATION, COMPLETED INCIDENTAL CLERICAL WORK THERE, AND THEN LEFT THE HONOLULU AIRPORT. THIS PRACTICE WAS FOLLOWED REGULARLY UNTIL THE RECEIPT OF BUREAU LETTER DATED APRIL 8, 1952, FILE 129.15, AT WHICH TIME INSTRUCTIONS DISCONTINUING THE PRACTICE WERE ISSUED BY THIS OFFICE.

OUR DECISIONS CONSISTENTLY HAVE HELD THAT TRAVEL, WITHOUT MORE, DOES NOT ENTITLE A PER ANNUM EMPLOYEE TO REGULAR OR OVERTIME COMPENSATION BEYOND HIS REGULAR TOUR OF DUTY, 24 COMP. GEN. 456; 25 ID. 399. COMPARE SECTION 204 OF PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, 5 U.S.C. 912, NOW CONTROLLING. THE CIRCUMSTANCES INVOLVED IN THE FIRST CITED DECISION, WHICH IS DATED DECEMBER 16, 1944, ARE ANALOGOUS TO THOSE HERE PRESENTED. THE DECISION HELD THAT EMPLOYEES WHO WERE ORDERED TO PERFORM REPEATED DAILY TRAVEL BETWEEN THEIR HEADQUARTERS CITY AND A TEMPORARY DUTY STATION WERE NOT ENTITLED TO OVERTIME COMPENSATION UNDER SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 76, FOR TRAVEL TIME OUTSIDE OF THEIR REGULAR HOURS OF DUTY. SIMILARLY, IN THE PRESENT CASE THERE IS NO BASIS FOR REGARDING THE COMMENCEMENT OF TRAVEL FROM HONOLULU AIRPORT TO PEARL HARBOR OR BARBER'S POINT DURING THE NIGHT HOURS (BETWEEN 5 P.M. AND 8 A.M.) AS A REPORTING FOR OVERTIME DUTY WITHIN THE MEANING OF THE SECOND SENTENCE OF SECTION 24.16 (G) OF THE REGULATIONS SO AS TO AUTHORIZE THE INCLUSION OF THE TRAVEL TIME IN THE COMPENSABLE TIME FOR ACTUAL PERFORMANCE OF SERVICES IN ADDITION TO THE FOUR-HOUR OR OTHER CONSTRUCTIVE COMPENSABLE TIME ALLOWANCE UNDER SAID SENTENCE. THE LANGUAGE "THE INTERVENING WAITING TIME, INCLUDING ANY TIME FOR TRAVEL BETWEEN POSTS OF OVERTIME DUTY * * *" APPEARING IN SECTION 2416 (F) OF THE REGULATIONS, CONCERNING BROKEN PERIODS, INDICATES THAT TRAVEL TIME IS ADMINISTRATIVELY REGARDED AS OF THE SAME NATURE AS ORDINARY WAITING TIME RATHER THAN ACTUAL DUTY. THE TIME CONSUMED IN TRAVELING BACK TO THE HONOLULU AIRPORT FROM PEARL HARBOR OR BARBER'S POINT LIKEWISE MAY NOT BE INCLUDED IN THE TIME OF ACTUAL SERVICE.

AS TO THE THIRD CATEGORY OF ERRONEOUS PAYMENTS, THE COLLECTOR REPORTED IN HIS LETTER OF NOVEMBER 27, 1953, AS FOLLOWS:

THE EXCEPTIONS IN CONNECTION WITH NO SERVICES RENDERED PRIOR TO 8 A.M. ARE ALSO THE RESULT OF EXCEPTIONS CITED IN CONNECTION WITH THE INCLUSION OF TRAVEL TIME IN THE COMPUTATION OF CHARGES. IN THOSE PARTICULAR ASSIGNMENTS THE EMPLOYEES ARRIVED AT THEIR OVERTIME POSTS OF DUTY AT OR SUBSEQUENT TO 8 A.M., AND NO OVERTIME COMPENSATION WAS, ACCORDINGLY, DUE THEM, ALTHOUGH THEY HAD CLAIMED REIMBURSEMENT ON CUSTOMS FORM 3853-A FROM THE TIME THEY HAD LEFT THE HONOLULU AIRPORT STATION TO TRAVEL TO EITHER PEARL HARBOR OR BARBER'S POINT PRIOR TO 8 A. M. THEY WERE IN A TRAVEL STATUS TO THEIR OVERTIME ASSIGNMENTS AT PEARL HARBOR AND BARBER'S POINT PRIOR TO 8 A.M., BUT DID NOT ARRIVE AT SUCH OVERTIME DUTY POSTS UNTIL 8 A.M. OR LATER, AND NO SERVICES IN CONNECTION WITH THE ASSIGNMENTS WERE PERFORMED PRIOR TO 8 A.M. THIS PRACTICE WAS THE RESULT OF THE SAME GENERAL INTERPRETATION HELD BY THE DEPUTY COLLECTOR IN CHARGE OF THE OUTSIDE DIVISION THAT PEARL HARBOR AND BARBER'S POINT WERE A PART OF THE HONOLULU AIRPORT STATION, THOUGH LOCATED AT SOME DISTANCE THEREFROM. BARBER'S POINT IS LOCATED TWENTY EIGHT MILES FROM THE HONOLULU AIRPORT.

FOR THE REASONS STATED ABOVE IN CONNECTION WITH THE SECOND CATEGORY WE MUST CONSIDER THAT MERE TRAVEL DURING THE HOURS OF THE NIGHT DOES NOT CONSTITUTE A REPORTING FOR DUTY ENTITLING THE EMPLOYEE TO EXTRA COMPENSATION FOR OVERTIME SERVICES UNDER THE LAW AND REGULATIONS. ACCORDINGLY, WE MUST HOLD THAT PAYMENTS IN THE THIRD CATEGORY WERE NOT AUTHORIZED.

WE NOTE THAT THERE IS PENDING BEFORE THE 85TH CONGRESS, H.R. 5848, BUT THAT THE RELIEF PROPOSED THEREIN WOULD RUN ONLY TO A PART OF THE 40 EMPLOYEES CONCERNED.

REFERENCE HAS BEEN MADE TO OUR DECISION OF AUGUST 11, 1955, B 122743, B- 123036, REMOVING EXCEPTIONS AGAINST CERTIFYING OFFICERS FOR CERTAIN PAYMENTS OF MILEAGE TO CUSTOMS EMPLOYEES FOR USE OF THEIR AUTOMOBILES IN TRAVELING BETWEEN THEIR HOMES AND POSTS OF DUTY. WE DO NOT REGARD OUR ACTION IN THAT DECISION AS CONSTITUTING A BASIS FOR REMOVING THE EXCEPTIONS TO THE PAYMENTS HERE IN QUESTION.

UNDER THE WELL-ESTABLISHED RULE THAT PAYMENTS MADE BY THE LEGAL MISTAKES OF OFFICERS OF THE UNITED STATES ARE RECOVERABLE ( UNITED STATES V. BENTLEY, 107 F.2D 382, AND CASES THERE CITED), THE EMPLOYEES WHO RECEIVED THE OVERPAYMENTS ARE OBLIGATED TO REFUND THE EXCESS, AND ADMINISTRATIVE COLLECTION EFFORTS SHOULD CONTINUE.