B-68509, AUGUST 19, 1947, 27 COMP. GEN. 102

B-68509, AUGUST 19, 1947, 27 COMP. GEN. 102

COMPENSATION - OVERTIME - IMMIGRATION AND NATURALIZATION SERVICE EMPLOYEES RENDERING SERVICES FOR CARRIERS DURING FISCAL YEAR 1948 THE PROVISO IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1948, PRECLUDING THE PAYMENT OF OVERTIME COMPENSATION BY THE IMMIGRATION AND NATURALIZATION SERVICE OTHER THAN AS PROVIDED IN THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946, DOES NOT EFFECT A REPEAL OF THE PROVISIONS OF THE ACT OF MARCH 2, 1931, AS AMENDED, RESPECTING THE PAYMENT OF EXTRA COMPENSATION TO IMMIGRATION AND NATURALIZATION SERVICE EMPLOYEES FOR OVERTIME SERVICES, BUT, RATHER, TEMPORARILY SUSPENDS THE OVERTIME PROVISIONS OF SAID ACT AND SUBSTITUTES THEREFOR, DURING THE FISCAL YEAR 1948, ONLY, THE OVERTIME PROVISIONS OF THE PAY ACTS OF 1945 AND 1946. ALL EXCESS RECEIPTS DERIVED FROM CARRIERS FOR OVERTIME SERVICES RENDERED BY IMMIGRATION AND NATURALIZATION SERVICE EMPLOYEES PURSUANT TO THE ACT OF MARCH 2, 1931, AS AMENDED, WHICH ARISE BY REASON OF THE PROVISO IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1948, REQUIRING THE USE OF THE OVERTIME RATES OF COMPENSATION PRESCRIBED BY THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946, RATHER THAN THOSE SET FORTH IN THE 1931 ACT, ARE TO BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY OTHERWISE. WHERE LIABILITY FOR PAYMENT OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF IMMIGRATION AND NATURALIZATION SERVICE EMPLOYEES ATTACHES TO CARRIERS PURSUANT TO THE ACT OF MARCH 2, 1931, AS AMENDED, CONTINUATION OF THE ADMINISTRATIVE DEFINITION OF "TIME ON DUTY" TO INCLUDE STAND-BY AND TRAVEL TIME OUTSIDE AN EMPLOYEE'S REGULARLY ESTABLISHED TOUR OF DUTY IS NOT OBJECTIONABLE, EVEN THOUGH TRAVEL TIME OUTSIDE A REGULAR TOUR OF DUTY IS NOT PAYABLE AS OVERTIME UNDER THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946, THE OVERTIME PROVISIONS OF WHICH WERE MADE APPLICABLE TO SUCH EMPLOYEES BY THE PROVISO IN THE DEPARTMENT OF JUSTICE APPROPRIATION ACT, 1948.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, AUGUST 19, 1947:

REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1947, AS FOLLOWS:

THE DEPARTMENT OF STATE, JUSTICE, AND COMMERCE, AND THE JUDICIARY APPROPRIATION ACT, 1948, PUBLIC LAW 166, 80TH CONGRESS, APPROVED JULY 9, 1947, CONTAINS THE FOLLOWING RESTRICTION:

"PROVIDED, THAT NONE OF THE FUNDS APPROPRIATED FOR THE IMMIGRATION AND NATURALIZATION SERVICE SHALL BE USED TO PAY COMPENSATION FOR OVERTIME SERVICES OTHER THAN AS PROVIDED IN THE FEDERAL EMPLOYEES PAY ACT OF 1945 ( PUBLIC LAW 106, 79TH CONG., ST SESS.), AND THE FEDERAL EMPLOYEES PAY ACT OF 1946 ( PUBLIC LAW 390, 79TH CONG., 2D SESS.).'

THIS PROVISO WAS ADOPTED AS THE RESULT OF AN AMENDMENT PROPOSED BY SENATOR BALL ON THE FLOOR OF THE SENATE (SEE PAGE 8057 OF THE CONGRESSIONAL RECORD OF JUNE 30, 1947), WAS ACCEPTED BY THE CONFEREES OF THE HOUSE AND SENATE AND BECAME A PART OF THE 1948 APPROPRIATION ACT.

AS A RESULT OF THIS PROVISO, A NUMBER OF QUESTIONS HAVE ARISEN UPON WHICH RULINGS ARE EQUESTED:

1. DOES THE ABOVE QUOTED PROVISO HAVE THE EFFECT OF REPEALING THE ACT OF MARCH 2, 1931, AS AMENDED (8 U.S.C. 109 (A), (B) AND (C) (?

2. IF YOUR ANSWER TO QUESTION 1 IS IN THE NEGATIVE, DOES THE SAID PROVISO REQUIRE:

(A) THAT OVERTIME SERVICES PERFORMED UNDER THE CONDITIONS DESCRIBED IN THE 1931 ACT BE CHARGED AGAINST THE CARRIERS, WHERE THEY ARE LIABLE THEREFOR, AT THE RATE PRESCRIBED IN THAT ACT?

(B) THAT CHARGES FOR OVERTIME SERVICES PERFORMED UNDER THE CONDITIONS DESCRIBED IN THE 1931 ACT, WHERE THE CARRIERS ARE LIABLE, BE MADE AT THE RATES PROVIDED IN THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946?

(C) THAT WHERE OVERTIME SERVICES ARE PERFORMED UNDER THE CONDITIONS DESCRIBED IN THE 1931 ACT, WHERE NO LIABILITY ATTACHES TO THE CARRIERS, PAYMENT BE MADE TO THE EMPLOYEES AT THE RATES PROVIDED IN THE FEDERAL EMPLOYEES ACTS OF 1945 AND 1946?

3. IF YOUR ANSWER TO QUESTION 2 (A) IS IN THE AFFIRMATIVE SHALL THE AMOUNTS COLLECTED FROM THE CARRIERS BE DEPOSITED TO THE APPROPRIATION AS HERETOFORE AND PAYMENTS MADE TO THE EMPLOYEES AT THE 1931 ACT RATES, OR SHALL PAYMENTS BE MADE AT THE FEDERAL EMPLOYEES PAY ACT RATES AND THE DIFFERENCE IMPOUNDED OR CREDITED TO MISCELLANEOUS RECEIPTS?

4. DOES THE PROVISO IN QUESTION HAVE THE EFFECT OF RESTRICTING:

(A) ONLY THE APPROPRIATION FOR THE FISCAL YEAR 1948?

(B) THE APPROPRIATION FOR 1947 AND PRIOR FISCAL YEARS, WHERE PAYMENT FOR OVERTIME SERVICES PERFORMED BY EMPLOYEES HAS NOT YET BEEN MADE?

5. DEPENDENT UPON THE ANSWERS TO THE FOREGOING QUESTIONS, MAY ANY EXCESS OF COLLECTIONS DEPOSITED OVER PAYMENTS BE EXPENDED FOR OTHER PURPOSES SO LONG AS SUCH PURPOSES ARE WITHIN THE SCOPE OF THE OBJECTS FOR WHICH THE APPROPRIATION IS GENERALLY AVAILABLE?

6. EXISTING INSTRUCTIONS UNDER THE 1931 ACT DEFINE "TIME ON DUTY" TO INCLUDE STAND-BY AND TRAVEL TIME NOT EXCEEDING TWO HOURS AT NIGHT PRIOR TO OR BETWEEN INSPECTIONS. OFTEN SUCH TIME IS SPENT IN TRAVEL BETWEEN OFFICIAL STATION AND THE POINT OF INSPECTION. MAY SUCH A DEFINITION OF TIME ON DUTY CONTINUE IN EFFECT IF PAYMENT IS TO BE MADE FOR OVERTIME UNDER THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946, NOTWITHSTANDING YOUR DECISION (25 COMP. GEN. 399) TO THE EFFECT THAT UNDER THOSE ACTS TRAVEL TIME ALONE OUTSIDE THE REGULARLY ESTABLISHED HOURS OF WORK DOES NOT ENTITLE A PER ANNUM EMPLOYEE TO OVERTIME COMPENSATION?

THE ACT OF MARCH 2, 1931, AS AMENDED, IS INCORPORATED INTO THE U.S.C. UNDER SECTION 109 (A), (B), AND (C) OF TITLE 8, AS FOLLOWS:

109A. OFFICERS AND EMPLOYEES; OVERTIME SERVICES; EXTRA COMPENSATION; LENGTH OF WORKING DAY.

THE ATTORNEY GENERAL SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS AND EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION SERVICE WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O-CLOCK POST MERIDIAN AND EIGHT O-CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND, OR AIR, SUCH RATES TO BE FIXED ON A BASIS OF ONE-HALF DAY'S ADDITIONAL PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR THAT THE OVERTIME EXTENDS BEYOND FIVE O-CLOCK POST MERIDIAN (BUT NOT TO EXCEED TWO AND ONE-HALF DAYS' PAY FOR THE FULL PERIOD FROM FIVE O-CLOCK POST MERIDIAN TO EIGHT O-CLOCK ANTEMERIDIAN) AND TWO ADDITIONAL DAYS' PAY FOR SUNDAY AND HOLIDAY DUTY; IN THOSE PORTS WHERE THE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HERETOFORE MENTIONED, THE ATTORNEY GENERAL IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF SUCH EMPLOYEES SO AS TO AGREE WITH THE 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 SUCH EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED. ( MAR. 2, 1931, CH. 368, SEC. 1, 46 STAT. 1467, EX. ORD. NO. 6166, SEC. 14, JUNE 10, 1933, REORGANIZE. PLAN NO. V, EFF. JUNE 14, 1940, 5 FED. REG. 2423, 54 STAT. 1238.)

109B. SAME; EXTRA COMPENSATION; PAYMENT.

THE SAID EXTRA COMPENSATION SHALL BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT TO THE ATTORNEY GENERAL, WHO SHALL PAY THE SAME TO THE SEVERAL IMMIGRATION OFFICERS AND EMPLOYEES ENTITLED THERETO AS PROVIDED IN SECTION 109A OF THIS TITLE. 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 INSPECTION OR EXAMINATION OF PASSENGERS OR CREW TAKES PLACE OR NOT; PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO THE INSPECTION AT DESIGNATED PORTS OF ENTRY OF PASSENGERS ARRIVING BY INTERNATIONAL FERRIES, BRIDGES, OR TUNNELS, OR BY AIRCRAFT, RAILROAD TRAINS, OR VESSELS ON THE GREAT LAKES AND CONNECTING WATERWAYS, WHEN OPERATING ON REGULAR SCHEDULES.

109C. SAME; DISPOSITION OF MONEY RECEIVED AS EXTRA COMPENSATION.

MONEYS COLLECTED ON OR AFTER JULY 1, 1941, AS EXTRA COMPENSATION FOR OVERTIME SERVICE OF INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE PURSUANT TO SECTIONS 109A AND 109B OF THIS TITLE, SHALL BE DEPOSITED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE APPROPRIATION FOR THE PAYMENT OF SALARIES, FIELD PERSONNEL OF THE IMMIGRATION AND NATURALIZATION SERVICE, AND THE APPROPRIATION SO CREDITED SHALL BE AVAILABLE FOR THE PAYMENT OF SUCH COMPENSATION.

THERE IS NOTHING IN THE WORDING OF THE PROVISO CONTAINED IN THE DEPARTMENTS OF STATE, JUSTICE, AND COMMERCE, AND THE JUDICIARY APPROPRIATION ACT, 1948, PUBLIC LAW 166, 61 STAT. 292, QUOTED IN YOUR LETTER, OR IN ITS LEGISLATIVE HISTORY, WHICH WOULD WARRANT A CONCLUSION THAT IT WAS INTENDED TO EFFECT THE REPEAL OF THE ABOVE-QUOTED CODIFIED PROVISIONS OF THE ACT OF MARCH 2, 1931, AS AMENDED; RATHER, THE EFFECT OF THE PROVISO IS TO SUSPEND TEMPORARILY THE EXTRA COMPENSATION FOR OVERTIME SERVICE PROVISIONS OF THE SAID ACT AND TO SUBSTITUTE THEREFOR, DURING THE EFFECTIVE PERIOD OF THE PROVISO, THE PERTINENT PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACTS OF 1945, 59 STAT. 296, AND 1946, 60 STAT. 217. THEREFORE, YOUR FIRST QUESTION AND PART (A) OF YOUR SECOND QUESTION ARE ANSWERED IN THE NEGATIVE AND PARTS (B) AND (C) OF YOUR SECOND QUESTION IN THE AFFIRMATIVE. ALSO, THE GENERAL RULE APPLICABLE IN SUCH CASES WOULD REQUIRE THAT ALL EXCESS RECEIPTS DERIVED FROM SERVICES RENDERED PURSUANT TO THE ACT OF MARCH 2, 1931, BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY OTHERWISE (SEE SECTION 3617, REVISED STATUTES; 10 COMP. GEN. 382; 15 ID. 352; 20 ID. 280; 21 ID. 880; 23 ID. 986). YOUR THIRD AND FIFTH QUESTIONS ARE ANSWERED ACCORDINGLY.

WITH RESPECT TO YOUR FOURTH QUESTION, THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE PROVISO, OR OTHERWISE, INDICATING AN INTENTION ON THE PART OF THE CONGRESS THAT THE PROVISO SHOULD BE CONSIDERED APPLICABLE TO FUNDS OTHER THAN THOSE APPROPRIATED FOR THE IMMIGRATION AND NATURALIZATION SERVICE BY THE ACT OF JULY 9, 1947.

IN THE LIGHT OF THE FACTUAL CIRCUMSTANCES, NO OBJECTION WILL BE INTERPOSED BY THIS OFFICE TO A CONTINUATION OF THE EXISTING ADMINISTRATIVE DEFINITION OF "TIME ON DUTY" IN CONNECTION WITH CASES IN WHICH LIABILITY FOR PAYMENT OF COMPENSATION FOR OVERTIME ATTACHES TO CARRIERS UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1931, AS AMENDED.