B-107243, FEBRUARY 25, 1952, 31 COMP. GEN. 417

B-107243, FEBRUARY 25, 1952, 31 COMP. GEN. 417

COMPENSATION - INCREASES UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED - CUSTOMS SERVICE EMPLOYEES UNDER THE RETROACTIVE COMPENSATION PROVISION OF THE INCREASED COMPENSATION AMENDMENT TO THE CLASSIFICATION ACT OF 1949, EMPLOYEES OF THE CUSTOMS SERVICE WHO PERFORMED OVERTIME OR SUNDAY OR HOLIDAY SERVICES BETWEEN THE EFFECTIVE DATE AND THE ENACTMENT DATE OF SAID INCREASED COMPENSATION AMENDMENT FOR WHICH THEY WERE PAID EXTRA COMPENSATION ARE ENTITLED TO AN ADJUSTMENT IN SUCH COMPENSATION WHETHER OR NOT THE COMPENSATION WAS REIMBURSABLE BY PARTIES IN INTEREST. THE PARTIES IN INTEREST FOR WHOM CUSTOMS SERVICE EMPLOYEES PERFORMED SERVICES BETWEEN JULY 8 AND OCTOBER 24, 1951, WHO ARE LIABLE TO THE GOVERNMENT FOR REIMBURSEMENT OF THE SALARY OF SUCH EMPLOYEES ARE LIABLE FOR THE ADDITIONAL AMOUNTS PAYABLE TO SAID EMPLOYEES UNDER THE RETROACTIVE COMPENSATION AMENDMENT TO THE CLASSIFICATION ACT OF 1949, EVEN THOUGH THE PARTIES IN INTEREST HAVE PAID OR HAVE BEEN BILLED FOR THE COMPENSATION AT THE OLD RATES. CUSTOMS SERVICE EMPLOYEES ENTITLED TO ADDITIONAL COMPENSATION UNDER THE RETROACTIVE COMPENSATION PROVISION OF THE INCREASED COMPENSATION AMENDMENT TO THE CLASSIFICATION ACT OF 1949 WHO PERFORMED SERVICES BETWEEN JULY 8 AND OCTOBER 24, 1951, FOR PARTIES IN INTEREST THE SALARY OR COMPENSATION FOR WHICH WAS REIMBURSABLE TO THE GOVERNMENT ARE ENTITLED TO THE RETROACTIVE PAY INCREASE WHETHER OR NOT THE PARTIES IN INTEREST HAVE PAID OR HAVE BEEN BILLED FOR THE COMPENSATION AT THE OLD RATES AND IT IS NOT NECESSARY THAT REIMBURSEMENT FROM THE PARTIES IN INTEREST BE OBTAINED PRIOR TO PAYMENT OF THE ADDITIONAL AMOUNTS TO THE EMPLOYEES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, FEBRUARY 25, 1952:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 29, 1951, IN WHICH, AFTER REFERRING TO OFFICE DECISION B-106337, DATED NOVEMBER 6, 1951, 31 COMP. GEN. 166, YOU REQUEST DECISION UPON SEVERAL QUESTIONS, HEREINAFTER QUOTED, ARISING UNDER THE RETROACTIVE COMPENSATION INCREASE PROVISIONS OF SECTION 6 OF PUBLIC LAW 201, APPROVED OCTOBER 24, 1951, 65 STAT. 612, 615.

PUBLIC LAW 201 PROVIDES, AMONG OTHER THINGS, INCREASES IN THE RATES PRESCRIBED IN THE COMPENSATION SCHEDULES OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, AND, WITH RESPECT TO INDIVIDUALS MEETING THE TERMS OF SUBSECTION (B) OF SECTION 6, SECTION 6 (A) PROVIDES THAT THE ACT SHALL BECOME EFFECTIVE AS OF THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER JUNE 30, 1951.

THE QUESTIONS STATED IN YOUR LETTER ARE AS FOLLOWS:

1. ARE CUSTOMS EMPLOYEES WHO, BETWEEN JULY 8 AND OCTOBER 24, 1951, PERFORMED OVERTIME OR SUNDAY OR HOLIDAY SERVICES FOR WHICH THEY WERE PAID EXTRA COMPENSATION UNDER SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, OR SECTION 451 OF THE TARIFF ACT OF 1930, AS AMENDED (19 U.S.C. 267, 1451), ON THE BASIS OF THE RATES OF BASE PAY THEN IN EFFECT, NOW ENTITLED TO THE DIFFERENCE BETWEEN THE AMOUNT OF EXTRA COMPENSATION ALREADY RECEIVED AND THE AMOUNT OF SUCH EXTRA COMPENSATION COMPUTED ON THE BASIS OF THE NEW RATES OF BASE PAY---

(A) WHERE SUCH EXTRA COMPENSATION WAS REIMBURSABLE BY PARTIES IN INTEREST;

(B) WHERE, UNDER THE PROVISIONS OF SECTION 451, TARIFF ACT OF 1930, AS AMENDED, SUPRA, SUCH EXTRA COMPENSATION WAS NON-REIMBURSABLE?

2. ARE CUSTOMS EMPLOYEES WHO, BETWEEN JULY 8 AND OCTOBER 24, 1951, PERFORMED SERVICES AS STOREKEEPERS IN CUSTOMS BONDED WAREHOUSES FOR WHICH THEIR COMPENSATION WAS REIMBURSABLE TO THE GOVERNMENT UNDER SECTION 555 OF THE TARIFF ACT OF 1930 (19 U.S.C. 1555) AND SECTION 19.5 OF THE CUSTOMS REGULATIONS OF 1943, AS AMENDED (19 C.F.R. 19.5), OR OTHER SERVICES FOR WHICH THEIR SALARY OR OTHER COMPENSATION WAS REIMBURSABLE (SEE SECTION 24.17 CUSTOMS REGULATIONS OF 1943, 19 C.F.R. 24.17), AND WHO HAVE BEEN PAID FOR SUCH SERVICES ON THE BASIS OF THE RATES OF BASE PAY THEN IN EFFECT, NOW ENTITLED TO THE DIFFERENCE BETWEEN THE AMOUNT ALREADY RECEIVED AND THE AMOUNT OF SUCH COMPENSATION COMPUTED ON THE BASIS OF THE NEW RATES OF BASE PAY?

3. IF YOUR ANSWER TO QUESTION 1 (A) OF QUESTION 2, OR BOTH, IS IN THE AFFIRMATIVE, ARE THE PARTIES IN INTEREST LIABLE FOR THE ADDITIONAL AMOUNTS PAYABLE TO THE EMPLOYEES, AND SHOULD DEMAND BE MADE UPON THE PARTIES IN INTEREST FOR PAYMENT OF SUCH AMOUNTS, WHETHER OR NOT THEY HAVE ALREADY PAID OR BEEN BILLED FOR THE COMPENSATION AT THE OLD RATES?

4. IF YOUR ANSWER TO QUESTION 3 IS IN THE AFFIRMATIVE, IS IT NECESSARY THAT REIMBURSEMENT FROM THE PARTIES IN INTEREST BE OBTAINED PRIOR TO PAYMENT OF THE ADDITIONAL AMOUNTS TO THE EMPLOYEES? AS A MATTER OF INFORMATION, EMPLOYEES ARE NORMALLY PAID SUCH AMOUNTS FROM THE APPROPRIATION " SALARIES AND EXPENSES, BUREAU OF CUSTOMS" BEFORE COLLECTION IS MADE FROM THE PARTY IN INTEREST. THE AMOUNTS SO COLLECTED FROM THE PARTY IN INTEREST ARE DEPOSITED WHEN COLLECTED TO THE CREDIT OF THE APPROPRIATION FROM WHICH SUCH AMOUNTS WERE PAID TO THE EMPLOYEE.

SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED (19 U.S.C. 267,) ESTABLISHES THE BASIS FOR FIXING THE RATES OF EXTRA COMPENSATION PAYABLE TO CUSTOMS OFFICERS AND EMPLOYEES FOR SUNDAY, HOLIDAY, AND OVERTIME SERVICES, SUCH BASIS BEING TWO ADDITIONAL DAYS' PAY FOR SUNDAY OR HOLIDAY SERVICES AND ONE-HALF DAY'S ADDITIONAL PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR FOR OVERTIME SERVICES. A DAY'S PAY FOR PURPOSES OF COMPUTATION OF THE ADDITIONAL PAY IS DESCRIBED IN THE CUSTOMS REGULATIONS, 19 C.F.R. 24.16 (G) AND (H), AS BEING "THE GROSS DAILY RATE OF REGULAR PAY OF THE EMPLOYEE.' CUSTOMS EMPLOYEES ARE PAID ANNUAL SALARIES PRESCRIBED BY THE CLASSIFICATION ACT OF 1949, SUPRA. THE DAILY RATES ARE DERIVED FROM THE ANNUAL RATES ACCORDING TO THE FORMULA SET FORTH IN SECTION 1203 OF SAID ACT, 63 STAT. 973.

SECTION 451 OF THE TARIFF ACT OF 1930, AS AMENDED (19 U.S.C. 1451), IMPOSES UPON CERTAIN PRIVATE INTERESTS A LIABILITY FOR REIMBURSEMENT OF THE EXTRA COMPENSATION PAYABLE TO CUSTOMS OFFICERS AND EMPLOYEES FOR SERVICES RENDERED ON SUNDAYS, HOLIDAYS, AND AT NIGHT UNDER SPECIAL LICENSES GRANTED PURSUANT TO APPROPRIATE PROVISIONS OF THE ACT, AND REQUIRES A BOND CONDITIONED TO INDEMNIFY THE UNITED STATES FOR ANY LOSS OR LIABILITY WHICH MIGHT OCCUR OR BE OCCASIONED BY REASON OF THE GRANTING OF THE SPECIAL LICENSES AND TO PAY THE COMPENSATION AND EXPENSES OF THE CUSTOMS OFFICERS AND EMPLOYEES INVOLVED, IN ACCORDANCE WITH SECTION 5 OF THE 1911 ACT, AS AMENDED. ALSO, SAID SECTION, AS AMENDED BY THE ACT OF JUNE 3, 1944, 58 STAT. 269, PROVIDES FOR ASSIGNMENT OF CUSTOMS OFFICERS AND EMPLOYEES TO DUTY AT NIGHT AND ON SUNDAYS AND HOLIDAYS AT CERTAIN FACILITIES, SUCH AS INTERNATIONAL BRIDGES AND TUNNELS, AND FOR PAYMENT TO SUCH OFFICERS AND EMPLOYEES, WITHOUT REIMBURSEMENT, OF COMPENSATION "IN ACCORDANCE WITH EXISTING LAW AS INTERPRETED BY THE UNITED STATES SUPREME COURT IN THE CASE OF THE UNITED STATES V. HOWARD C. MYERS, 320 U.S. 561.'

SECTION 555 OF THE TARIFF ACT OF 1930, AS AMENDED (19 U.S.C. 1555), PROVIDES FOR REIMBURSEMENT BY PROPRIETORS OF BONDED WAREHOUSES OF THE COMPENSATION OF THE OFFICER OF THE CUSTOMS AND OTHER CUSTOMS EMPLOYEES APPOINTED TO SUPERVISE THE RECEIPT OF MERCHANDISE INTO THE WAREHOUSES AND DELIVERIES THEREFROM. IMPLEMENTING REGULATIONS ARE CODIFIED IN 19 C.F.R. 19.5, AS STATED IN YOUR LETTER. OTHER CIRCUMSTANCES AND CONDITIONS UNDER WHICH PRIVATE INTERESTS ARE REQUIRED TO REIMBURSE THE FULL COMPENSATION OF CUSTOMS OFFICERS AND EMPLOYEES ARE SET FORTH IN 19 C.F.R. 24.17, CITED BY YOU, AND WILL NOT BE DETAILED HERE.

RESOLUTION OF THE QUESTIONS PRESENTED TO THIS OFFICE FOR DECISION AS TO THE RETROACTIVE OPERATION OF SECTION 6 OF PUBLIC LAW 201 HAS PROCEEDED FROM THE PREMISE THAT IT WAS THE CONGRESSIONAL INTENT, BY SECTION 6, TO GRANT THE EMPLOYEES COVERED THEREBY ALL THE BENEFITS RESULTING FROM THE AMENDED COMPENSATION SCHEDULES TO THE SAME EXTENT AS SUCH BENEFITS WOULD HAVE ACCRUED IF THE LAW HAD BEEN ENACTED ON ITS EFFECTIVE DATE AND APPLIED CONCURRENTLY. IN ADDITION TO THE DECISION OF NOVEMBER 6, 1951, REFERRED TO BY YOU, SEE ALSO DECISION OF DECEMBER 3, 1951, B-106420, 31 COMP. GEN. 199, COPY ENCLOSED, INVOLVING ADJUSTMENTS OF LUMP-SUM PAYMENTS FOR ACCRUED ANNUAL LEAVE. APPLYING THAT PRINCIPLE HERE, AND SINCE THE 1911 ACT, AS AMENDED, AND SECTION 451 OF THE TARIFF ACT, AS AMENDED, CREATE AN OBLIGATION ON THE PART OF THE UNITED STATES TO PAY THE EXTRA COMPENSATION THERE PROVIDED INDEPENDENTLY OF COLLECTION FROM PARTIES IN INTEREST ( UNITED STATES V. MYERS, SUPRA; CF. 24 COMP. GEN. 140, 143), QUESTIONS 1 (A) AND 1 (B) ARE ANSWERED IN THE AFFIRMATIVE.

QUESTION 2 APPEARS TO RELATE PRIMARILY TO REGULAR SALARY AS DISTINGUISHED FROM EXTRA COMPENSATION. BEGINNING AS OF THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER JUNE 30, 1951, THE ONLY LAWFUL RATE OF BASIC COMPENSATION FOR EMPLOYEES WHO ARE WITHIN THE COVERAGE OF THE CLASSIFICATION ACT OF 1949 AND WHO MEET THE TERMS AND CONDITIONS OF SECTION 6 OF PUBLIC LAW 201 ARE, ASIDE FROM CERTAIN SAVING PROVISIONS, THOSE PROVIDED IN THE AMENDED COMPENSATION SCHEDULES SET FORTH IN PUBLIC LAW 201. IN VIEW THEREOF AND OF THE PRINCIPLE STATED IN CONNECTION WITH THE ANSWERS TO QUESTIONS 1 (A) AND 1 (B), QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

NO REASON HAS BEEN SUGGESTED, NOR IS ANY APPARENT, WHY THE UNDERTAKING OF THE PARTIES IN INTEREST TO REIMBURSE THE GOVERNMENT THE COMPENSATION OF CUSTOMS PERSONNEL ASSIGNED TO PERFORM SERVICES FOR THE BENEFIT OF SUCH PARTIES SHOULD NOT INCLUDE THE OBLIGATION TO REIMBURSE THE ADDITIONAL AMOUNTS FOUND HEREIN TO BE PAYABLE TO SUCH PERSONNEL. QUESTION 3 IS, THEREFORE, ANSWERED IN THE AFFIRMATIVE.

AS THE COMPENSATION RIGHTS OF THE OFFICERS AND EMPLOYEES HERE INVOLVED EXIST INDEPENDENTLY OF COLLECTIONS FROM PARTIES IN INTEREST, QUESTION 4 IS ANSWERED IN THE NEGATIVE.