B-151168, APR 6, 1971

B-151168, APR 6, 1971

PREMIUM PAY - ANTI SKYJACKING PROGRAM ADVISING THAT UPON PROPER DETERMINATION BY THE HEAD OF THE AGENCY DESIGNATED BY STATUTE THAT THE HOURS OF DUTY OF CUSTOMS SECURITY OFFICERS ASSIGNED AS SKY MARSHALLS CANNOT BE ADMINISTRATIVELY CONTROLLED, THE COMP. GEN. WILL NOT OBJECT TO THEIR RECEIVING PREMIUM PAY UNDER 5 U.S.C. 5545(C)(2).

TO MR. SECRETARY:

THIS REFERS TO LETTER OF FEBRUARY 24, 1971, FROM THE UNDER SECRETARY OF THE TREASURY CONCERNING THE AUTHORIZATION OF PREMIUM COMPENSATION TO APPROXIMATELY 2,000 CUSTOMS SECURITY OFFICERS ASSIGNED AS SECURITY GUARDS ABOARD AIRCRAFT.

IT IS STATED THAT THE EMPLOYMENT OF CUSTOMS SECURITY OFFICERS AS AIR SECURITY GUARDS IS IIRREGULAR AND ONLY PARTIALLY CONTROLLABLE BY THE DIRECT ADMINISTRATION OF U.S. GOVERNMENT SUPERVISORS. THE FLIGHTS TO WHICH THE CUSTOMS SECURITY OFFICERS WILL BE ASSIGNED ARE DETERMINED BY FEDERAL AVIATION ADMINISTRATION OR AIRLINE SCHEDULERS WHO CANNOT CLOSELY LIMIT THE EMPLOYMENT OF CUSTOMS SECURITY OFFICERS TO 40 HOURS PER WEEK. THE FEDERAL AVIATION ADMINISTRATION OPERATES PRIMARILY UNDER THE CONSTRAINT OF APPROXIMATELY 100 FLIGHT HOURS PER MONTH PER CUSTOMS SECURITY OFFICER. THIS HAS BEEN DETERMINED FROM OPERATING EXPERIENCE TO BE ABOUT THE LIMIT FOR DUTY AS ARDUOUS AS THIS. ASSOCIATED WITH THESE IN- FLIGHT HOURS IS A NEARLY EQUAL NUMBER OF HOURS DEVOTED TO GROUND DUTIES BY CUSTOMS SECURITY OFFICERS.

SINCE FLIGHT ASSIGNMENTS MAY INVOLVE A SERVICE OF SHORT FLIGHTS, LONGER FLIGHTS MORE WIDELY SPACED, A TRIP AROUND THE WORLD, OR A MIXTURE OF THESE, THE AMOUNT OF OVERTIME WILL VARY WIDELY FROM WEEK TO WEEK. HOWEVER, AVERAGED OVER A PERIOD OF A MONTH OR MORE, THERE WILL BE A SUBSTANTIAL AND CONTINUING AMOUNT OF OVERTIME WORK FOR ALL CUSTOMS SECURITY OFFICERS. FURTHER, DESPITE ANY ATTEMPTED SCHEDULING, UNPREDICTABLE CHANGES IN WORK HOURS OCCUR BECAUSE OF VARIOUS FACTORS COMMONPLACE IN AIR TRANSPORTATION. EXAMPLES ARE LANDING AND TAKEOFF DELAYS DUE TO WEATHER AND MECHANICAL DIFFICULTIES AS WELL AS DIVERSIONS OF AIRCRAFT TO LANDING PLACES OTHER THAN THOSE WHICH ARE SCHEDULED.

FROM THE TIME OF ARRIVAL AT THE FIRST FOREIGN DESTINATION THE CUSTOMS SECURITY OFFICER AIR GUARD HAS NO SUPERVISOR ON SITE AND IS GENERALLY CALLED UPON TO RECOGNIZE, BY HIMSELF, THE WORK HE IS REQUIRED TO DO TO CARRY OUT THE PLANNED FLIGHT SCHEDULE OR ACCOMMODATE TO THE MANY CHANGES. HE MAY HAVE TO RECOGNIZE THE NEED FOR PERFORMANCE OF OVERTIME TO COVER AN INDEFINITE LAYOVER BETWEEN FLIGHTS; TO REMAIN AT AN AIRPORT IN ANTICIPATION OF A FLIGHT DEPARTURE DELAYED BY WEATHER OR MECHANICAL BREAKDOWN; TO BRIEF FOREIGN AUTHORITIES ON OCCURRENCES DURING FLIGHT; OR TO EXTEND OR INCREASE BRIEFING TIME BECAUSE OF INTELLIGENCE ON A PARTICULAR FLIGHT.

A RULING IS REQUESTED FROM OUR OFFICE AS TO WHETHER THE CIVIL SERVICE COMMISSION HAS THE AUTHORITY TO PROVIDE BY REGULATION THAT CUSTOMS SECURITY OFFICERS SHALL RECEIVE PREMIUM PAY UNDER 5 U.S.C. 5545(C)(2) FOR SERVICES PERFORMED IN CONNECTION WITH FLIGHT ASSIGNMENTS UNDER THE FEDERAL "ANTI-SKYJACKING PROGRAM."

UNDER SECTION 5545(C)(2) OF TITLE 5, U.S.C. THE HEAD OF AN AGENCY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, MAY PROVIDE THAT:

"(2) AN EMPLOYEE IN A POSITION IN WHICH THE HOURS OF DUTY CANNOT BE CONTROLLED ADMINISTRATIVELY, AND WHICH REQUIRES SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED, OVERTIME DUTY AND DUTY AT NIGHT, ON SUNDAYS, AND ON HOLIDAYS WITH THE EMPLOYEE GENERALLY BEING RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY, SHALL RECEIVE PREMIUM PAY FOR THIS DUTY ON AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED BY OTHER PROVISIONS OF THIS SUBCHAPTER, EXCEPT FOR REGULARLY SCHEDULED OVERTIME DUTY. PREMIUM PAY UNDER THIS PARAGRAPH IS DETERMINED AS AN APPROPRIATE PERCENTAGE, NOT LESS THAN 10 PERCENT NOR MORE THAN 25 PERCENT, OF SUCH PART OF THE RATE OF BASIC PAY FOR THE POSITION AS DOES NOT EXCEED THE MINIMUM RATE OF BASIC PAY FOR GS-10, BY TAKING INTO CONSIDERATION THE FREQUENCY AND DURATION OF NIGHT, SUNDAY, HOLIDAY, AND UNSCHEDULED OVERTIME DUTY REQUIRED IN THE POSITION."

IT SEEMS TO US THAT THE HOURS OF DUTY AS DESCRIBED HEREIN WOULD BE A BASIS FOR CONSIDERATION AS TO WHETHER THE PREMIUM PAY PROVISIONS OF THE ABOVE STATUTE ARE APPLICABLE THERETO. HOWEVER, THE STATUTE PLACES THE RESPONSIBILITY FOR DETERMINING WHETHER THE HOURS OF DUTY OF A POSITION OR POSITIONS ARE UNCONTROLLABLE FOR PREMIUM PAY PURPOSES IN THE HEAD OF THE AGENCY CONCERNED SUBJECT TO THE APPROVAL OF THE CIVIL SERVICE COMMISSION. IN THAT CONNECTION SEE THE REGULATIONS OF THE COMMISSION CONTAINED IN 5 CFR 550.151 ET SEQ.

ASSUMING A DETERMINATION IS MADE AND APPROVED IN ACCORDANCE WITH THE STATUTE WE SEE NO BASIS FOR OUR OFFICE OBJECTING THERETO.