B-147556, MAR. 18, 1963

B-147556: Mar 18, 1963

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THE 1919 STATUTE IS CODIFIED AT 7 U.S.C. 394. AS FOLLOWS: "THE SECRETARY OF AGRICULTURE IS AUTHORIZED. TO ACCEPT FROM SUCH ESTABLISHMENTS WHEREIN SUCH OVERTIME WORK IS PERFORMED REIMBURSEMENT FOR ANY SUMS PAID OUT BY HIM FOR SUCH OVERTIME WORK.'. WERE AS FOLLOWS: "188. AT ANY PLACE WHERE SUCH SERVICES ARE PERFORMED. "188.1. INSERTED THE PHRASE "WHOSE BASIC WORKWEEK IS 8 HOURS A DAY. WHO ARE" AFTER THE WORD "EMPLOYEES" IN SECTION 188A. OF ALL EMPLOYEES ENGAGED IN THE ENFORCEMENT OF THE MEAT INSPECTION ACT AND NECESSARY AUXILIARY SERVICES "AT ANY PLACE" WHERE SUCH SERVICES ARE PERFORMED. THE REASONS FOR THE BROAD INTERPRETATION GIVEN THE STATUTE BY YOUR DEPARTMENT ARE STATED BY THE ADMINISTRATIVE ASSISTANT SECRETARY AS FOLLOWS: "THE MEAT INSPECTION ACT (21 U.S.C. 71-98).

B-147556, MAR. 18, 1963

TO THE SECRETARY OF AGRICULTURE:

WE REFER TO OUR LETTER OF APRIL 17, 1962, TO YOU, AND TO THE REPLY OF THE ADMINISTRATIVE ASSISTANT SECRETARY DATED JULY 16, 1962, CONCERNING THE LEGALITY OF CERTAIN PROVISIONS OF YOUR REGULATIONS, HEREINAFTER QUOTED AND DISCUSSED, DEALING WITH OVERTIME COMPENSATION UNDER THE ACTS OF JULY 24, 1919 (7 U.S.C. 394), AND AUGUST 4, 1949 (7 U.S.C. 394A).

THE 1919 STATUTE IS CODIFIED AT 7 U.S.C. 394, AS FOLLOWS:

"THE SECRETARY OF AGRICULTURE IS AUTHORIZED, IN HIS DISCRETION, TO PAY EMPLOYEES OF THE BUREAU OF ANIMAL INDUSTRY EMPLOYED IN ESTABLISHMENTS SUBJECT TO THE PROVISIONS OF THE MEAT INSPECTION ACT OF JUNE 30, 1906 (21 U.S.C. 71-91), FOR ALL OVERTIME WORK PERFORMED AT SUCH ESTABLISHMENTS, AT SUCH RATES AS HE MAY DETERMINE, AND TO ACCEPT FROM SUCH ESTABLISHMENTS WHEREIN SUCH OVERTIME WORK IS PERFORMED REIMBURSEMENT FOR ANY SUMS PAID OUT BY HIM FOR SUCH OVERTIME WORK.'

THE PERTINENT PROVISIONS OF THE REGULATIONS IN QUESTION, 8 AR 188A AND 188.1A, AS AMENDED TO AUGUST 29, 1961, WERE AS FOLLOWS:

"188. EMPLOYEE COVERAGE. * * *

"A. EMPLOYEES ENGAGED IN THE ENFORCEMENT OF THE MEAT INSPECTION ACT, AND NECESSARY AUXILIARY SERVICES, AT ANY PLACE WHERE SUCH SERVICES ARE PERFORMED.

"188.1. MEAT INSPECTION EMPLOYEES * * *. A. PREMIUM PAY. THE EMPLOYEES COVERED UNDER 8 AR 188A * * * ABOVE, SHALL BE PAID AT HOURLY OVERTIME RATES OR SHALL RECEIVE EXTRA HOLIDAY PAY, AS THE CASE MAY BE, FOR WORK PERFORMED ON SATURDAY OR SUNDAY OR A HOLIDAY, OR FOR MORE THAN 8 WORKING HOURS OF ANY DAY, MONDAY THROUGH FRIDAY, IN ACCORDANCE WITH THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, WITH THE FOLLOWING EXCEPTION:

"THE 1945 PAY ACT PROVISIONS PERTAINING TO THE BASIC ADMINISTRATIVE WORKWEEK AND TO THE LIMITATION ON PREMIUM COMPENSATION SHALL NOT BE APPLICABLE. EMPLOYEES WHO WORK OVERTIME BETWEEN THE HOURS OF 6 P.M. AND 6 A.M. SHALL RECEIVE ADDITIONAL COMPENSATION OF 10 PERCENT OF THEIR BASIC HOURLY RATE FOR SUCH NIGHT WORK IN ADDITION TO THEIR OVERTIME RATE. ALSO, IN THE CASE OF THE EMPLOYEE CONCERNED IN THE MEAT INSPECTION DIVISION ONLY, THE PROVISIONS OF THAT ACT PERTAINING TO THE ORDERING OR APPROVING OF OVERTIME SHALL NOT BE APPLICABLE.'

AMENDMENT NO. 327, AUGUST 10, 1962, INSERTED THE PHRASE "WHOSE BASIC WORKWEEK IS 8 HOURS A DAY, MONDAY THROUGH FRIDAY, AND WHO ARE" AFTER THE WORD "EMPLOYEES" IN SECTION 188A.

BECAUSE, AS INDICATED BY THE UNDERSCORED PORTIONS OF THE STATUTE, QUOTED ABOVE, THE EXCEPTIONAL PREMIUM COMPENSATION AUTHORITY APPLIES TO EMPLOYEES EMPLOYED "IN ESTABLISHMENTS" SUBJECT TO THE INSPECTION LAW AND TO OVERTIME WORK PERFORMED "AT SUCH ESTABLISHMENTS," WE RAISED A QUESTION CONCERNING THE REGULATIONS' BLANKET EXCLUSION FROM CERTAIN PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, OF ALL EMPLOYEES ENGAGED IN THE ENFORCEMENT OF THE MEAT INSPECTION ACT AND NECESSARY AUXILIARY SERVICES "AT ANY PLACE" WHERE SUCH SERVICES ARE PERFORMED.

THE REASONS FOR THE BROAD INTERPRETATION GIVEN THE STATUTE BY YOUR DEPARTMENT ARE STATED BY THE ADMINISTRATIVE ASSISTANT SECRETARY AS FOLLOWS:

"THE MEAT INSPECTION ACT (21 U.S.C. 71-98), PROVIDES THAT FOR THE PURPOSE OF PREVENTING THE USE IN INTERSTATE OR FOREIGN COMMERCE OF MEAT AND MEAT FOOD PRODUCTS WHICH ARE UNSOUND, UNHEALTHFUL, UNWHOLESOME OR OTHERWISE UNFIT FOR HUMAN FOOD, THE SECRETARY OF AGRICULTURE MAY EXAMINE AND INSPECT CATTLE, SHEEP, SWINE AND GOATS AND THEIR CARCASSES AT ANY SLAUGHTERING, MEAT CANNING, SALTING, PACKING, RENDERING OR SIMILAR ESTABLISHMENT IN ANY STATE, TERRITORY OR THE DISTRICT OF COLUMBIA. THESE ARE THE OFFICIAL ESTABLISHMENTS WHERE INSPECTION GENERALLY IS PERFORMED. HOWEVER, BEGINNING IN 1919 AND CONTINUING UP TO THE PRESENT TIME, THE AUTHORITY TO PERFORM OVERTIME SERVICES ON A REIMBURSABLE BASIS HAS NOT BEEN RESTRICTED TO SUCH ESTABLISHMENTS.

"IN 1919, AFTER THE ENACTMENT OF 7 U.S.C. 394, THE QUESTION WAS RAISED AS TO OVERTIME SERVICES WITH RESPECT TO PRODUCTS STORED IN VARIOUS COLD STORAGE PLANTS AWAITING EXPORTATION UNDER THE SUPERVISION OF THE BUREAU OF ANIMAL INDUSTRY (NOW THE MEAT INSPECTION DIVISION). IT WAS CONSIDERED THAT SINCE THE MEAT INSPECTION ACT REQUIRES THE SECRETARY TO MAKE INSPECTION OF CARCASSES AND PARTS THEREOF INTENDED AND OFFERED FOR EXPORT TO ANY FOREIGN COUNTRY AT SUCH TIMES AND PLACES AND IN SUCH MANNER AS HE MAY DEEM PROPER, THE COLD STORAGE PLANTS ARE "PLACES" WHERE THE BAI INSPECTED THE MEAT AND MEAT FOOD PRODUCTS AS PART OF THE MEAT INSPECTION SERVICE RENDERED BY THE BUREAU. THEREFORE, UPON AN ADMINISTRATIVE DETERMINATION THAT OVERTIME WORK IN THE COLD STORAGE PLANTS WAS ESSENTIAL TO THE PROMPT AND EFFECTIVE ADMINISTRATION OF THE MEAT INSPECTION LAW, IT WAS CONCLUDED THAT BUREAU EMPLOYEES IN THE COLD STORAGE PLANTS COULD RECEIVE OVERTIME UNDER THE SAME TERMS AND CONDITIONS AS APPLIED TO BUREAU EMPLOYEES AT THE OFFICIAL ESTABLISHMENTS.

"A SIMILAR CONCLUSION WAS REACHED IN 1920 WITH RESPECT TO INSPECTORS ASSIGNED TO SCALES IN PUBLIC STOCKYARDS, WHERE THEY PERFORMED ANTE MORTEM INSPECTION OF ANIMALS TO BE SLAUGHTERED IN OFFICIAL ESTABLISHMENTS. ALSO, IT WAS HELD THAT IF THE SECRETARY DETERMINES THAT IT IS ADVANTAGEOUS TO THE EFFICIENT CONDUCT OF THE MEAT INSPECTION WORK TO HAVE INSPECTORS RE- LABEL ,INSPECTED AND PASSED" PRODUCTS AT PLACES OTHER THAN UPON THE IMMEDIATE PREMISES OF THE OFFICIAL ESTABLISHMENT, HE COULD ALLOW OVERTIME PAY FOR THE PERFORMANCE OF SUCH RE-LABELING WORK.

"THUS, IT IS CLEAR THAT FROM 1919 ON, THE BASIS FOR DETERMINING THE APPLICABILITY OF 7 U.S.C. 394 WAS NOT WHETHER INSPECTION WAS PERFORMED IN AN OFFICIAL ESTABLISHMENT, BUT WHETHER THE SERVICE RENDERED ON AN OVERTIME BASIS WAS NECESSARY AND PROPER IN CONNECTION WITH THE ENFORCEMENT OF THE MEAT INSPECTION ACT. THESE PRINCIPLES HAVE BEEN APPLIED IN MORE RECENT YEARS TO SERVICES, SUCH AS LABORATORY TESTS, WHICH HAVE BECOME ESSENTIAL IN THE ENFORCEMENT OF THE MEAT INSPECTION ACT. THE QUESTION WAS AGAIN RAISED IN 1948, AND THERE IS ENCLOSED A COPY OF A MEMORANDUM DATED JUNE 28, 1948, WHICH CONTAINS A DISCUSSION OF THE AUTHORITY OF THE DEPARTMENT UNDER THE 1919 ACT. IN THIS CONNECTION, IT IS BELIEVED THAT THE AUTHORITY OF THE 1919 ACT IS AVAILABLE FOR USE AT SUCH PLACE OR PLACES AS MAY BE ADMINISTRATIVELY DETERMINED TO BE NECESSARY TO CARRY OUT THE PURPOSES OF THE ACT. CF. 20 COMP. GEN. 399.

"WE FEEL THAT THE TERM THAT IS USED IN THE LAW MUST HAVE THE MEANING WE HAVE GIVEN IT IN OUR REGULATIONS TO AVOID ARTIFICIAL AND UNREASONABLE DISTINCTIONS FROM ARISING WITH RESPECT TO THE PLANTS OR ESTABLISHMENTS SUBJECT TO INSPECTION. SOME ESTABLISHMENTS FURNISH OFFICE SPACE WITHIN THE ESTABLISHMENT FOR USE BY THE INSPECTOR-IN CHARGE AND HIS SUPERVISORY AND CLERICAL ASSISTANTS. SOMETIMES, HOWEVER, THE INSPECTOR-IN-CHARGE AND HIS ASSISTANTS ARE STATIONED IN COMMERCIAL OR GSA SPACE. TO DISTINGUISH, IN THE MANNER SUGGESTED IN YOUR LETTER, BETWEEN THESE TWO SITUATIONS WOULD MEAN THAT WE COULD COMPENSATE UNDER THE 1919 ACT FOR THE SERVICES OF THE EMPLOYEES INVOLVED IN THE FIRST INSTANCE BUT NOT FOR THE IDENTICAL SERVICES PERFORMED BY THOSE INVOLVED IN THE SECOND.

"OTHER COMPLICATIONS WOULD RESULT FROM TOO LITERAL AN INTERPRETATION OF THE TERM "IN ESTABLISHMENTS" OR "IN SUCH ESTABLISHMENTS.' FOR EXAMPLE, SPACE FURNISHED BY THE PACKER IN SOME CASES WILL BE IN AN OFFICE BUILDING OWNED BY HIM NEAR, BUT NOT PHYSICALLY ATTACHED TO, THE OFFICIAL MEAT PACKING ESTABLISHMENT. SOMETIMES THE INSPECTION FORCE WILL BE SPLIT BETWEEN TWO SUCH LOCATIONS AND MANAGEMENT MAY THEN ASSIGN AN EMPLOYEE STATIONED AT ONE OF THEM TO PERFORM WORK IN THE OTHER.

"IT WAS IN CONSIDERATION OF ARRANGEMENTS AND CONDITIONS LIKE THOSE MENTIONED ABOVE THAT WE DECIDED SOME YEARS AGO THAT THE ONLY REASONABLE INTERPRETATION OF THE LAW WAS ONE THAT WOULD PERMIT US TO COMPENSATE ON THE BASIS OF THE KIND OF WORK PERFORMED, WHEREVER IT WAS PERFORMED, RATHER THAN REQUIRE US TO APPLY ANY NARROWER DEFINITION OR INTERPRETATION OF "ESTABLISHMENTS.' THIS DECISION HAS BEEN SUPPORTED BY THE DIRECTION TAKEN BY TECHNOLOGICAL CHANGES IN THE MEAT PACKING INDUSTRY. ONLY A LIMITED NUMBER OF MEAT FOOD PRODUCTS WERE PRODUCED AND VERY FEW CHEMICAL ADDITIVES WERE USED AT THE TIME THE 1919 ACT WAS APPROVED. AT THAT TIME, THE INSPECTOR COULD PERFORM HIS WORK THROUGH PRACTICALLY THE ENTIRE INSPECTION PROCESS WITHOUT THE AID OF CHEMISTS. TODAY, HOWEVER, A MULTIPLICITY OF NEW PRODUCTS, THE USE OF NUMEROUS CHEMICAL ADDITIVES, AND THE DEVELOPMENT OF THE FROZEN FOOD INDUSTRY, COMBINE TO MAKE THE EMPLOYMENT OF TRAINED CHEMISTS ABSOLUTELY ESSENTIAL FOR THE OPERATION OF AN EFFECTIVE MEAT INSPECTION PROGRAM. IT WOULD BE POSSIBLE TO PROVIDE PORTABLE LABORATORIES WHICH COULD BE USED IN THE OFFICIAL ESTABLISHMENT. HOWEVER, THIS IS NOT DEEMED FEASIBLE AND WOULD INCREASE THE ADMINISTRATIVE COSTS OF INSPECTION. HENCE THE MEAT INSPECTION DIVISION, UNDER CURRENT CONDITIONS, IS UNABLE TO DISTINGUISH BETWEEN THE INSPECTOR WHO TAKES A SAMPLE AT AN ESTABLISHMENT AND THE CHEMIST TO WHOM THE SAMPLE IS SENT FOR ANALYSIS IN A LABORATORY. BOTH OPERATIONS ARE INTEGRAL PARTS OF THE MEAT INSPECTION PROGRAM.'

ALSO, THE REGULATION COVERING "OVERTIME WORK OF MEAT INSPECTION EMPLOYEES," 9 CFR 7.4, PROVIDES FOR RECOVERY FROM THE ESTABLISHMENTS OF AN AMOUNT SUFFICIENT TO REIMBURSE THE GOVERNMENT FOR "THE COST" OF THE OVERTIME INSPECTION SERVICES.

THE MEMORANDUM OF JUNE 28, 1948, FROM THE SOLICITOR OF YOUR DEPARTMENT TO THE SECRETARY, REFERRED TO IN THE FOURTH PARAGRAPH OF THE PORTION OF THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER QUOTED ABOVE, EXPRESSED CONCURRENCE IN A PROPOSED CHANGE IN THE REGULATIONS (NOW IN 9 CFR 7.4 ABOVE-MENTIONED) WHEREBY THE "FEE" FOR OVERTIME WOULD INCLUDE NOT ONLY THE OVERTIME SALARY OF THE INSPECTOR AT THE PLANT REQUESTING THE OVERTIME WORK BUT, ALSO, THE COST OF SUPERVISION, CLERICAL HELP, AND LABORATORY SERVICES, WHETHER AT THE PLANT, ELSEWHERE IN THE CITY WHERE THE PLANT IS LOCATED, IN WASHINGTON, OR WHEREVER WORK INCIDENTAL TO THE OVERTIME INSPECTION SERVICE IS PERFORMED.

THE SOLICITOR'S CONCURRENCE IN THE PROPOSAL TO INCLUDE THE COST OF AUXILIARY SERVICES IN THE AMOUNT TO BE BILLED THE PACKING ESTABLISHMENTS WAS BASED UPON A CONSTRUCTION OF THE WORD "FOR," AS USED IN THE EXPRESSION "REIMBURSEMENT FOR ANY SUMS PAID OUT BY HIM FOR SUCH OVERTIME WORK" IN THE 1919 STATUTE, AS GIVING THE EXPRESSION THE FORCE OF INCLUDING SUMS PAID OUT FOR SUPERVISORY OR CLERICAL WORK "ON ACCOUNT" OR "IN ORDER TO EFFECT" THE OVERTIME EMPLOYMENT AT THE ESTABLISHMENTS. TO MAKE PAYMENTS FOR OVERTIME SERVICES IN WASHINGTON AND OVERTIME LABORATORY SERVICES WAS SAID TO BE A "DEPARTURE IN DEGREE ONLY" FROM THE FIRST CONCLUSION. IT ALSO WAS CONCLUDED BY THE SOLICITOR THAT THERE COULD BE INCLUDED EXPENDITURES FOR CLERICAL, LABORATORY, OR SUPERVISORY SERVICES WHEREVER RENDERED, WHICH, THOUGH NOT THEMSELVES RENDERED OUTSIDE OF WORKING HOURS, ARE NEVERTHELESS NECESSARILY INCIDENTAL TO THE EFFECTUATION OF OVERTIME EMPLOYMENT AT THE ESTABLISHMENTS.

IF THE WORDS "IN," "AT," AND "WHEREIN" USED IN THE STATUTE IN RELATION TO "ESTABLISHMENTS" ARE TO BE GIVEN THEIR LITERAL MEANING, THE AUTHORITY TO PAY OVERTIME COMPENSATION IS LIMITED TO THOSE EMPLOYEES WHO ARE EMPLOYED WITHIN THE BOUNDARIES OF AN ESTABLISHMENT REQUIRED TO SUBMIT TO INSPECTION AND WHO PERFORM OVERTIME SERVICES WITHIN SUCH BOUNDARIES. THEREFORE, IF THE STATUTE IS TO BE CONSTRUED AS COVERING SERVICES PERFORMED "AT ANY PLACE," IT WOULD BE NECESSARY TO FIND THAT THE LITERAL MEANING OF THE STATUTE IS NARROWER THAN INTENDED BY THE CONGRESS.

LIKEWISE, THE EXPRESSION "REIMBURSEMENT FOR ANY SUMS PAID OUT BY HIM FOR SUCH OVERTIME WORK" ORDINARILY WOULD BE LIMITED TO AMOUNTS PAID TO EMPLOYEES FOR OVERTIME WORK PERFORMED IN THE ESTABLISHMENTS.

IT SEEMS EVIDENT TO US FROM YOUR DEPARTMENT'S VIEWS IN THESE MATTERS, SET FORTH ABOVE, THAT THE REGULATIONS HERE IN QUESTION ARE TO SOME EXTENT DESIGNED TO PREVENT OR LESSEN INEQUITIES AND DIFFICULTIES OF ADMINISTRATION. NOTHING HAS BEEN SHOWN BY YOUR DEPARTMENT INDICATING THAT THE REGULATIONS HAVE BEEN CALLED TO THE ATTENTION OF THE CONGRESS OR ANY OF ITS COMMITTEES.

WE ARE OF THE OPINION THAT SOME BASIS EXISTS FOR THE VIEW THAT THE BROAD SCOPE OF THE REGULATIONS AMOUNTS TO AN UNWARRANTED EXTENSION OF THE STATUTORY LANGUAGE BY ADMINISTRATIVE ACTION. WE POINT OUT TOO THAT THE LEGISLATIVE HISTORY OF THE ACT--- SEE HEARINGS BEFORE THE HOUSE COMMITTEE ON AGRICULTURE ON THE AGRICULTURE APPROPRIATION BILL, 1920 (H.R. 15018, 65TH CONGRESS, 3RD SESSION) AT PAGES 218-224--- SHOWS THE PURPOSE OF THE PROPOSAL WAS TO PAY MEAT INSPECTORS FOR OVERTIME IN THE SAME MANNER AS BUTCHERS WERE BEING PAID BY THEIR EMPLOYERS; AND TO PERMIT THE SECRETARY OF AGRICULTURE TO ACCEPT "FROM THE ESTABLISHMENTS WHERE THE OVERTIME WORK IS PERFORMED" AN APPROPRIATE REIMBURSEMENT FOR OVERTIME MONEY TO BE PAID TO MEAT INSPECTORS. ALSO, THE TESTIMONY BEFORE THE COMMITTEE, PAGE 220 OF THE SAME HEARINGS, SAYS "WE CHARGE THE PACKERS FOR OVERTIME OF OUR EMPLOYEES AND WHEN THE PACKERS SEND IN THE MONEY WE WILL PAY THE INSPECTORS THE MONEY THE PACKERS HAVE PAID TO US.' CONCERNING THE ACT OF JUNE 5, 1948, 62 STAT. 344, 21 U.S.C. 98, THE SECRETARY OF AGRICULTURE IN HIS REPORT OF APRIL 1, 1948, ON THE BILL SHOWS THAT THERE WAS NO INTENT IN REQUESTING THE OVERTIME REIMBURSEMENT AMENDMENT TO THE BILL TO ENLARGE THE SCOPE OF THE REIMBURSEMENT PROVISIONS OF THE 1919 STATUTE. SEE PAGE 5, SENATE REPORT NO. 1107, S. 2256, 80TH CONGRESS. ON THE OTHER HAND, WE RECOGNIZE THAT THE LONG-CONTINUED INTERPRETATION OF A STATUTE BY THE DEPARTMENT EMPOWERED TO ADMINISTER IT IS ENTITLED TO GREAT WEIGHT. ALSO, WE ARE NOT UNMINDFUL OF THE FACT THAT THE ADOPTION OF A CONTRARY INTERPRETATION OF THE STATUTES AT THIS TIME COULD HAVE SIGNIFICANT IMPLICATIONS. IN THIS INSTANCE, THEREFORE, WE RECOMMEND THAT YOUR INTERPRETATION OF THE STATUTORY PROVISIONS HEREIN DISCUSSED, TOGETHER WITH THE PURPORT OF THE IMPLEMENTING REGULATIONS AND PRACTICES FOLLOWED, BE EXPLAINED TO THE INTERESTED COMMITTEES OF CONGRESS IN ORDER THAT THEY MAY BE AWARE OF THE PRACTICES BEING FOLLOWED BY YOUR DEPARTMENT IN THIS AREA.

IN CONNECTION WITH THE MATTER OF PAYMENT OF OVERTIME COMPENSATION UNDER THE ACT OF AUGUST 4, 1949, 63 STAT. 495, 7 U.S.C. 394A, TO EMPLOYEES ENGAGED UPON VIRUS-SERUM INSPECTION WORK, WE NOTED THAT YOUR DEPARTMENT HAD GIVEN ASSURANCES TO COMMITTEES OF CONGRESS THAT THE RATES FOR OVERTIME, NIGHT OR HOLIDAY WORK PROVIDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945 WOULD BE PAID. WE ALSO NOTED THAT A CHANGE IN YOUR REGULATIONS ON AUGUST 29, 1961, HAD REMOVED THE LIMITATION OF THE 1945 PAY ACT ON PREMIUM COMPENSATION.

WE CONCLUDE FROM THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THAT THE EXCLUSION WAS INTENDED TO HAVE REFERENCE ONLY TO THE PROVISIONS OF SECTION 603 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 943, WHICH PROHIBITS OR RESTRICTS THE PAYMENT OF PREMIUM COMPENSATION UNDER THE ACT TO EMPLOYEES IN THE HIGHER SALARY BRACKETS; AND THAT IT WAS NOT INTENDED TO PERMIT COMPUTATION OF OVERTIME COMPENSATION UNDER THE 1949 ACT ON RATES IN EXCESS OF THE MINIMUM SCHEDULED RATE FOR GRADE GS-9, AS PROVIDED BY SECTION 201 OF THE 1945 ACT, AS AMENDED, 5 U.S.C. 911. WITH THAT UNDERSTANDING, WE OFFER NO FURTHER OBJECTION TO THE PROVISIONS OF THE REGULATIONS CONCERNING THE PREMIUM COMPENSATION LIMITATION.