B-140168, SEPTEMBER 24, 1959, 39 COMP. GEN. 220

B-140168: Sep 24, 1959

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WHICH IS ADMINISTRATIVELY BURDENSOME. IS NOT PERMISSIBLE UNDER 19 U.S.C. 267 AND 1451 WHICH REQUIRE THAT EACH PERSON REQUESTING THE INSPECTIONAL SERVICES BE CHARGED AN AMOUNT SUFFICIENT TO REIMBURSE THE GOVERNMENT FOR THE COST OF OVERTIME OR EXTRA COMPENSATION AND EXPENSES INCURRED FOR THE INSPECTION. WHEN AN EMPLOYEE IS ASSIGNED TO SERVICE PRIVATE AIRCRAFT DURING A PERIOD ON A SUNDAY OR HOLIDAY OR AT NIGHT (WHEN NOT ON A REGULAR TOUR OF DUTY). THE OPERATOR OF EACH PLANE IS REQUIRED TO DEPOSIT REIMBURSEMENT IN AN AMOUNT EQUAL TO WHAT HIS SHARE WILL BE IF NO ADDITIONAL PLANES ARRIVE. AFTER THE EXPIRATION OF THE OVERTIME PERIOD THE AMOUNT OF THE EMPLOYEE'S EXTRA COMPENSATION IS PRORATED AMONG ALL THE PLANES SERVICED DURING THE PERIOD AND A REFUND IS MADE TO EACH OPERATOR WHOSE DEPOSIT IS IN EXCESS OF HIS SHARE.

B-140168, SEPTEMBER 24, 1959, 39 COMP. GEN. 220

CIVILIAN PERSONNEL - CUSTOMS INSPECTIONAL SERVICES - OVERTIME CHARGES TO CARRIERS - FLAT RATE THE ESTABLISHMENT OF A UNIFORM FLAT RATE FOR INSPECTION OF PRIVATE AIRCRAFT BY THE BUREAU OF CUSTOMS DURING OVERTIME PERIODS AND ON SUNDAYS OR HOLIDAYS AT PORTS OF ENTRY FROM CANADA, MEXICO, CUBA, AND OTHER NEARBY COUNTRIES IN LIEU OF THE PRESENT SYSTEM OF CHARGING THE ACTUAL COMPENSATION EARNED BY THE EMPLOYEES RENDERING THE SERVICE, WHICH IS ADMINISTRATIVELY BURDENSOME, WOULD SUBSTITUTE A SYSTEM OF CHARGES THAT WOULD REQUIRE OVERPAYMENTS FROM SOME OPERATORS TO OFFSET UNDERPAYMENTS BY OTHERS, IS NOT PERMISSIBLE UNDER 19 U.S.C. 267 AND 1451 WHICH REQUIRE THAT EACH PERSON REQUESTING THE INSPECTIONAL SERVICES BE CHARGED AN AMOUNT SUFFICIENT TO REIMBURSE THE GOVERNMENT FOR THE COST OF OVERTIME OR EXTRA COMPENSATION AND EXPENSES INCURRED FOR THE INSPECTION.

TO THE SECRETARY OF THE TREASURY, SEPTEMBER 24, 1959:

ON AUGUST 5, 1959, THE ACTING SECRETARY REQUESTED OUR DECISION ON CERTAIN QUESTIONS CONCERNING CHARGES BY THE BUREAU OF CUSTOMS FOR INSPECTION OF PRIVATE AIRCRAFT DURING OVERTIME PERIODS AND ON SUNDAYS OR HOLIDAYS AT PORTS OF ENTRY FROM CANADA, MEXICO, CUBA, AND OTHER NEARBY COUNTRIES.

THE ACTING SECRETARY SAYS THAT:

UNDER THE PRESENT PRACTICE, WHEN AN EMPLOYEE IS ASSIGNED TO SERVICE PRIVATE AIRCRAFT DURING A PERIOD ON A SUNDAY OR HOLIDAY OR AT NIGHT (WHEN NOT ON A REGULAR TOUR OF DUTY), THE OPERATOR OF EACH PLANE IS REQUIRED TO DEPOSIT REIMBURSEMENT IN AN AMOUNT EQUAL TO WHAT HIS SHARE WILL BE IF NO ADDITIONAL PLANES ARRIVE. AFTER THE EXPIRATION OF THE OVERTIME PERIOD THE AMOUNT OF THE EMPLOYEE'S EXTRA COMPENSATION IS PRORATED AMONG ALL THE PLANES SERVICED DURING THE PERIOD AND A REFUND IS MADE TO EACH OPERATOR WHOSE DEPOSIT IS IN EXCESS OF HIS SHARE. THIS SYSTEM IS BURDENSOME BOTH TO THE PARTIES IN INTEREST AND TO THE GOVERNMENT.

HE INDICATES THAT SINCE THE EARLY PART OF THIS YEAR THIS PRACTICE HAS BEEN THE SUBJECT OF MANY COMPLAINTS FROM OPERATORS OF PRIVATE AIRCRAFT BASED ON:

(1) THE FREE SERVICE RENDERED BY CANADIAN CUSTOMS DURING OVERTIME HOURS TO PRIVATE AIRCRAFT ARRIVING IN THAT COUNTRY, (2) THE FREE SERVICE RENDERED BY THE U.S. IMMIGRATION AND NATURALIZATION SERVICE TO RETURNING PRIVATE AIRCRAFT, (3) THE FREE SERVICE RENDERED TO PRIVATE AUTOMOBILES AT BORDER CROSSINGS, AND (4) THE UNCERTAINTY OF THE OVERTIME CHARGE, WHICH ON A SUNDAY OR HOLIDAY CAN VARY FROM TWO DAYS' PAY APPROXIMATING $50 DOWN TO AN AMOUNT LESS THAN $5 DEPENDING ON THE NUMBER OF ARRIVALS IN A 8-HOUR PERIOD SERVICED BY ONE CUSTOMS OFFICER.

TO PROVIDE SOME IMMEDIATE RELIEF TO PRIVATE AIRCRAFT OPERATORS AND TO ELIMINATE THE ADMINISTRATIVE BURDEN INVOLVED IN THE PRESENT PRACTICE, THE ACTING SECRETARY PROPOSES, IN LIEU OF THE PRESENT SYSTEM, THE ESTABLISHMENT OF A FIXED FLAT RATE CHARGE WHICH "WOULD BE BASED ON THE AVERAGE ANNUAL REIMBURSABLE COMPENSATION AND EXPENSES PAID BY PRIVATE AIRCRAFT OPERATORS THROUGHOUT THE SERVICE AND WOULD BE ADJUSTED AT THE BEGINNING OF EACH FISCAL YEAR, EITHER UP OR DOWN, TO MEET CHANGING CONDITIONS.' HE ASKS TWO SPECIFIC QUESTIONS:

(1) MAY A FLAT RATE CHARGE BE ASSESSED FOR THE INSPECTION OF A PRIVATE AIRCRAFT AT NIGHT OR ON A SUNDAY OR HOLIDAY IN LIEU OF CHARGING THE ACTUAL COMPENSATION EARNED BY THE CUSTOMS OFFICER OR EMPLOYEE RENDERING THE SERVICE? SUCH A FLAT RATE CHARGE WOULD BE CALCULATED TO RECOVER THE DIRECT COST OF EXTRA COMPENSATION AND WOULD BE REVIEWED ANNUALLY TO DETERMINE WHETHER ADJUSTMENTS UPWARD OR DOWNWARD WERE NECESSARY.

(2) MAY THE FLAT RATE CHARGE REFERRED TO IN (1) ABOVE BE CALCULATED TO RECOVER ALSO ANY TRANSPORTATION AND TRAVEL EXPENSES INCURRED IN OVERTIME ASSIGNMENTS?

THE CHARGES ASSESSED FOR THE COSTS OF OVERTIME OR EXTRA PAY ON SUNDAY AND HOLIDAYS OCCASIONED BY CUSTOMS INSPECTIONS ARE AUTHORIZED IN 19 U.S.C. 267, AND 1451, WHICH SECTIONS PROVIDE IN PERTINENT PART AS FOLLOWS:

SECTION 267. COMPENSATION FOR OVERTIME SERVICES; FIXING WORKING HOURS * * * 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. * * *

SECTION 1451. * * * UPON A REQUEST MADE BY THE OWNER, MASTER, OR PERSON IN CHARGE OF A VESSEL OR VEHICLE, OR BY OR ON BEHALF OF A COMMON CARRIER OR BY OR ON BEHALF OF THE OWNER OR CONSIGNEE OF ANY MERCHANDISE OR BAGGAGE, FOR OVERTIME SERVICES OF CUSTOMS OFFICERS OR EMPLOYEES AT NIGHT OR ON A SUNDAY OR HOLIDAY, THE COLLECTOR SHALL ASSIGN SUFFICIENT CUSTOMS OFFICERS OR EMPLOYEES IF AVAILABLE TO PERFORM ANY SUCH SERVICES WHICH MAY LAWFULLY BE PERFORMED BY THEM DURING REGULAR HOURS OF BUSINESS, BUT ONLY IF THE PERSON REQUESTING SUCH SERVICES DEPOSITS SUFFICIENT MONEY TO PAY, OR GIVES A BOND IN AN AMOUNT TO BE FIXED BY THE COLLECTOR, CONDITIONED TO PAY THE COMPENSATION AND EXPENSES OF SUCH CUSTOMS OFFICERS AND EMPLOYEES, WHO SHALL BE ENTITLED TO RATES OF COMPENSATION FIXED ON THE SAME BASIS AND PAYABLE IN THE SAME MANNER AND UPON THE SAME TERMS AND CONDITIONS AS IN THE CASE OF CUSTOMS OFFICERS AND EMPLOYEES ASSIGNED TO DUTY IN CONNECTION WITH LADING OR UNLADING AT NIGHT OR ON SUNDAY OR A HOLIDAY. * * *

UNDER THE FLAT FEE SYSTEM PROPOSED, THE CHARGE TO AN INDIVIDUAL PRIVATE AIRCRAFT OWNER OR OPERATOR WOULD NOT BE MEASURED DIRECTLY BY THE EXTRA COST TO THE GOVERNMENT FOR THAT PARTICULAR INSPECTION. FOR EXAMPLE, A PRIVATE AIRPLANE ARRIVING AT A BUSY AIRPORT, WHERE ARRIVALS NECESSITATING OVERTIME OR SUNDAY OR HOLIDAY INSPECTIONS ARE FREQUENT, WOULD BE REQUIRED TO PAY MORE THAN THE EXACT COST TO THE GOVERNMENT OF HIS INSPECTION; AND THE PLANE ARRIVING AT THE LEAST USED AIRPORTS WOULD PAY LESS. UNDERSTAND THAT WOULD BE A NATURAL RESULT OF THE PROPOSED UNIFORM FLAT FEE SYSTEM IF THE GOVERNMENT IS TO BE FULLY REIMBURSED FOR ALL SUCH INSPECTIONS.

IN VIEW OF THE NATURE OF THE AUTHORIZED CHARGES, WHICH THE SUPREME COURT HAS CHARACTERIZED A TAX ( INTERNATIONAL RAILWAY COMPANY V. DAVIDSON, 257 U.S. 506), THE STATUTES MUST BE STRICTLY CONSTRUED AS GRANTING NO BROADER AUTHORITY IN CONNECTION WITH THOSE CHARGES THAN THAT SPECIFICALLY EXPRESSED. BY PRECISE LANGUAGE, THE STATUTES CLEARLY REQUIRE THAT, WHEN APPLICABLE, EACH PERSON REQUESTING THE SERVICES SHALL BE CHARGED AN AMOUNT SUFFICIENT TO REIMBURSE THE GOVERNMENT THE COST OF OVERTIME OR EXTRA COMPENSATION AND EXPENSES INCURRED FOR THE INSPECTION REQUESTED. THERE IS NO AUTHORITY FOR CHARGING ANY MORE OR LESS THAN THAT AMOUNT.

WHILE WE READILY RECOGNIZE THE HEAVY ADMINISTRATIVE BURDEN INVOLVED AND THE INCONVENIENCE TO SOME AIRCRAFT OPERATORS IN THE OPERATION OF THE PRESENT SYSTEM, WE DO NOT VIEW THE LAW IN ITS PRESENT STATE AS PERMITTING THE SUBSTITUTION OF A SYSTEM OF CHARGES NECESSARILY REQUIRING OVERPAYMENTS FROM SOME TO OFFSET UNDERPAYMENTS BY OTHERS.

THEREFORE, THE FIRST QUESTION PRESENTED MUST BE ANSWERED IN THE NEGATIVE WHICH RENDERS UNNECESSARY ANY ANSWER TO THE SECOND QUESTION.