B-157784, OCT. 27, 1965

B-157784, OCT. 27, 1965

TO MR. ELISHA F. WINSLOW ET AL.:

YOUR ATTORNEY'S LETTER OF SEPTEMBER 23, 1965, REQUESTS REVIEW OF THE GENERAL ACCOUNTING OFFICE SETTLEMENTS WHICH DISALLOWED YOUR CLAIMS AS LICENSED VESSEL EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR, BUREAU OF COMMERCIAL FISHERIES, FOR OVERTIME COMPENSATION COVERING SERVICES RENDERED BY YOU ABOARD THE VESSELS ALBATROSS IV AND DELAWARE, IN EXCESS OF 8 HOURS A DAY AND 40 HOURS A WEEK.

YOUR CLAIMS, CERTAIN OF WHICH PREVIOUSLY HAD BEEN DENIED BY THE SECRETARY OF THE INTERIOR, WERE DISALLOWED BY THE GENERAL ACCOUNTING OFFICE ON THE GROUNDS THAT COMPENSATION AND OTHER CONDITIONS OF EMPLOYMENT OF THE OFFICERS AND SEAMEN OF THE ABOVE-NAMED VESSELS HAD BEEN ADMINISTRATIVELY DETERMINED IN ACCORDANCE WITH LAW AND WERE NOT SUBJECT TO REVIEW BY OUR OFFICE.

IN YOUR REQUEST FOR RECONSIDERATION WE UNDERSTAND THAT YOU CONCUR IN THE VIEW THAT THE COMPENSATION OF THE OFFICERS AND CREWS OF GOVERNMENT VESSELS SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY. 5 U.S.C. 1082 (8). ALSO, SEE 5 U.S.C. 946. HOWEVER, YOU URGE THAT THE COMPENSATION OF THE OFFICERS AND CREWS OF THE VESSELS ALBATROSS IV AND DELAWARE WHICH YOU SAY ARE RESEARCH VESSELS WAS NOT PROPERLY ASSIMILATED TO THE COMPENSATION SCHEDULES AND PRACTICES OF VESSEL EMPLOYEES OF THE COMMERCIAL FISHING SEGMENT OF THE MARITIME INDUSTRY.

FURTHER YOU URGE THAT VESSEL EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION FOR SERVICES RENDERED IN EXCESS OF 8 HOURS A DAY AND 40 HOURS PER WEEK, AS PROVIDED IN THE ACT OF MARCH 28, 1934, 48 STAT. 522, AS AMENDED, 5 U.S.C. 673C.

CONCERNING YOUR FIRST CONTENTION WE MUST POINT OUT THAT THE APPLICABLE STATUTES VEST IN THE ADMINISTRATOR OF THE AGENCY CONCERNED- - IN THESE CASES THE SECRETARY OF THE INTERIOR--- CONSIDERABLE DISCRETION IN FIXING COMPENSATION SCHEDULES TO ACCORD AS NEARLY AS IS CONSISTENT WITH PUBLIC INTEREST WITH PREVAILING RATES AND PRACTICES IN THE MARITIME INDUSTRY. THE BUREAU OF COMMERCIAL FISHERIES IT IS SAID THAT THE TRADITIONAL PRACTICE HAS BEEN TO ASSIMILATE THE RATES AND PRACTICES OF ITS VESSEL EMPLOYEES TO THOSE OF COMMERCIAL FISHERIES. WE CANNOT SAY THAT THE PRACTICES SO FOLLOWED ARE NOT WITHIN THE DISCRETION OF THE SECRETARY OF THE INTERIOR OR HIS DELEGATES OR THAT THEY ARE SO ARBITRARY OR CAPRICIOUS AS TO WARRANT SETTING ASIDE THE WAGE RATE SCHEDULES HERETOFORE PROMULGATED. WE VENTURE NO OPINION AS TO WHETHER A DIFFERENT WAGE SCHEDULE, EFFECTIVE PROSPECTIVELY, MIGHT BE THE SUBJECT OF DISCUSSION BETWEEN YOU OR YOUR REPRESENTATIVE AND THE SECRETARY.

REGARDING THE SECOND POINT URGED BY YOU IT WAS RULED BY THE FEDERAL CIRCUIT COURT IN THE CASE OF THE PANAMA CANAL V. ANDERSON ET AL., 312 F.2D 98, THAT SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, DOES NOT APPLY TO VESSEL EMPLOYEES FOR WHOM SPECIFIC PROVISION OTHERWISE IS MADE BY LAW. THUS, THE AMENDMENT OF THE 1934 ACT BY SECTION 201 OF THE WORK HOURS ACT OF 1962, 76 STAT. 360, 5 U.S.C. 673C, PROVIDING THAT HOURS OF LABOR IN EXCESS OF 8 HOURS A DAY OR 40 HOURS PER WEEK ARE COMPENSABLE AT OVERTIME RATES, LIKEWISE IS NOT APPLICABLE TO VESSEL EMPLOYEES. ALSO, SEE 30 COMP. GEN. 158 TO THE SAME EFFECT.

THEREFORE, THE SETTLEMENTS DISALLOWING YOUR CLAIMS ARE CORRECT, AND, UPON REVIEW, THEY MUST BE ..END :