B-164426, OCTOBER 31, 1968, 48 COMP. GEN. 262

B-164426, OCTOBER 31, 1968, 48 COMP. GEN. 262

CUSTOMS - SERVICES OUTSIDE REGULARLY SCHEDULED HOURS - COST RECOVERY THE ADDITIONAL COSTS, INCLUDING COMPENSATION, INCURRED TO EXTEND THE HOURS OF SERVICE AT CUSTOMS PORTS OF ENTRY AND CUSTOMS STATIONS ALONG THE CANADIAN AND MEXICAN BORDERS THAT DO NOT MAINTAIN 24-HOUR SERVICE, AND TO PROVIDE SERVICE AT A RAIL TRANSSHIPMENT POINT, ARE RECOVERABLE IN ACCORDANCE WITH 31 U.S.C. 483A, THE SO-CALLED "USER CHARGES" STATUTE, FROM THE PARTY REQUESTING THE SPECIAL SERVICE. HOWEVER, UNDER 19 U.S.C. 1451, THE TARIFF ACT OF 1930, AS AMENDED, ANY COSTS RESULTING FROM THE ASSIGNMENT OF ADDITIONAL PERSONNEL DURING REGULARLY SCHEDULED HOURS WOULD NOT BE RECOVERABLE. THE COSTS COLLECTED FOR ANY SPECIAL CUSTOMS SERVICE MAY BE DEPOSITED TO THE APPROPRIATION FROM WHICH THE COSTS WERE PAID.

TO THE SECRETARY OF THE TREASURY, OCTOBER 31, 1968:

REFERENCE IS MADE TO LETTER DATED OCTOBER 24, 1968, FROM THE ASSISTANT SECRETARY OF THE TREASURY CONCERNING THE AUTHORITY OF THE BUREAU OF CUSTOMS (CUSTOMS) TO FURNISH ADDITIONAL CUSTOMS SERVICES AT STATIONS ON THE CANADIAN AND MEXICAN BORDERS AND RECOVER THE COST OF SUCH SERVICES FROM THE PARTY REQUESTING THE SERVICES.

THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE QUESTION PRESENTED, AS DISCLOSED BY THE ASSISTANT SECRETARY'S LETTER, ARE SET FORTH BELOW.

CUSTOMS SERVICES ARE PROVIDED AT CUSTOMS PORTS OF ENTRY AND CERTAIN CUSTOMS STATIONS ALONG THE CANADIAN AND MEXICAN BORDERS DURING SUCH HOURS ON WEEKDAYS AND ON SUNDAYS AND HOLIDAYS AS THE BUREAU OF CUSTOMS DETERMINES TO BE IN THE PUBLIC INTEREST AND NECESSARY TO SERVICE THE NORMAL FLOW OF TRAFFIC AT THOSE POINTS. AT NORTHGATE, NORTH DAKOTA, THE REGULAR HOURS OF SERVICE FOR 7 DAYS A WEEK ARE 8 A.M. TO 12 MIDNIGHT IN JUNE, JULY AND AUGUST AND 9 A.M. TO 10 P.M., DURING OTHER MONTHS OF THE YEAR. PRESENT BUDGETARY AND MANPOWER CEILING RESTRICTIONS DO NOT ALLOW AND, IN YOUR DEPARTMENT'S OPINION, THE PUBLIC INTEREST DOES NOT REQUIRE, THE ASSIGNMENT OF ADDITIONAL PERSONNEL TO THESE PORTS DURING THOSE HOURS OR ADDITIONAL HOURS WHEN THE PORT IS CLOSED.

FROM TIME TO TIME REQUESTS HAVE BEEN MADE TO ASSIGN ADDITIONAL PERSONNEL AND TO EXTEND THE HOURS OF SERVICE TO COVER UP TO 24 HOURS A DAY, 7 DAYS A WEEK AT SOME OF THESE PORTS AND STATIONS TO SERVE THE CONVENIENCE AND ECONOMIC INTERESTS OF PRIVATE PARTIES WHO HAVE COMMERCIAL OPERATIONS ON BOTH SIDES OF THE BORDER AND WOULD BENEFIT FROM ADDITIONAL SERVICES TO MEET THEIR PARTICULAR NEEDS. FOR EXAMPLE, THE INTERNATIONAL MINERALS AND CHEMICAL CORPORATION (INTERNATIONAL) PROPOSES TO TRUCK POTASH FROM ESTERHAZY, SASKATCHEWAN (APPROXIMATELY 100 MILES NORTH OF THE UNITED STATES-CANADIAN FRONTIER AT NORTHGATE, NORTH DAKOTA) ON A 24-HOUR PER DAY BASIS TO A FACILITY 2-1/2 MILES SOUTH OF NORTHGATE WHERE IT WILL BE TRANSSHIPPED VIA THE GREAT NORTHERN RAILROAD. THIS IMPORTED MERCHANDISE IS FREE OF DUTY UNDER THE TARIFF SCHEDULES OF THE UNITED STATES, AND ITS PROCESSING BY THE BUREAU OF CUSTOMS PRODUCES NO REVENUE. THE REQUEST IS FOR THE ASSIGNMENT OF ADDITIONAL EMPLOYEES SOLELY TO PROCESS THESE SHIPMENTS WITHOUT DELAY 24 HOURS A DAY, 7 DAYS A WEEK, WHICH WOULD BE IN ADDITION TO THE NORMAL SERVICE TO THE GENERAL PUBLIC WHEN THE PORT IS OPEN.

WHILE SECTION 451 OF THE TARIFF ACT OF 1930, AS AMENDED, 19 U.S.C. 1451, AUTHORIZES THE ASSIGNMENT OF TOURS OF DUTY AT NIGHTS OR ON SUNDAYS AND HOLIDAYS, THE 1944 AMENDMENT TO THAT SECTION PROVIDES, AS YOUR DEPARTMENT UNDERSTANDS IT, THAT EMPLOYEES ASSIGNED TO DUTY DURING OVERTIME HOURS AT NIGHT, OR ON SUNDAYS AND HOLIDAYS, AT SUCH BORDER FACILITIES SHALL BE PAID COMPENSATION IN ACCORDANCE WITH EXISTING LAW AS INTERPRETED BY THE UNITED STATES SUPREME COURT IN THE CASE OF UNITED STATES V HOWARD C. MYERS, 320 U.S. 561, WITHOUT REIMBURSEMENT.

THE ASSISTANT SECRETARY STATES THAT THE SENATE COMMITTEE REPORT (S.REPT. NO. 858, 78TH CONG., 2D SESS., P. 2) ACCOMPANYING THE ACT OF JUNE 3, 1944, 58 STAT. 269, EMPHASIZES THE OBLIGATION OF THE UNITED STATES TO PROVIDE CUSTOMS SERVICES WITHOUT CHARGE AT INTERNATIONAL HIGHWAYS, BRIDGES, TUNNELS AND FERRIES "WHENEVER THE PUBLIC INTEREST REQUIRES" SUCH SERVICES.

HE ADVISES THAT THE 1944 ACT WAS CONSIDERED AT A TIME WHEN BORDER CROSSING POINTS WERE BEING CLOSED BECAUSE PAYMENT FOR THE OVERTIME WAS NOT BEING REIMBURSED (SEE H.REPT. NO. 1446, 78TH ONG., 2D SESS., P. 2); AND THAT THE CONGRESS WANTED THESE PORTS TO REMAIN OPEN WITHOUT REIMBURSEMENT OF COSTS WHEN THE PUBLIC INTEREST REQUIRED IT. HE STATES THAT IT THUS PROVIDED FOR ASSIGNMENTS AS NEEDED TO SERVE THE GENERAL PUBLIC AS DETERMINED BY THE SECRETARY WITHOUT THE REQUIREMENT OF REIMBURSEMENT, AND FOR PAYMENT AT THE ESTABLISHED RATES TO BE MADE BY THE GOVERNMENT; BUT THAT IT MADE NO SPECIFIC PROVISION WITH RESPECT TO SERVICES BEYOND THOSE REQUIRED TO MEET THE NEEDS OF THE GENERAL PUBLIC.

THE ASSISTANT SECRETARY'S LETTER CONTINUES:

SINCE THE PASSAGE OF THE ACT OF JUNE 3, 1944, HOWEVER, THE CONGRESS HAS ENACTED AS PART OF SECTION 501 OF THE INDEPENDENT OFFICES APPROPRIATION ACT (31 U.S.C. 483A), THE SO-CALLED "USER CHARGES" STATUTE WHICH, IN YOUR RECENT DECISION NO. V-164426 (B-164426) OF JULY 22, 1968, YOU HAVE INDICATED IS INTENDED TO PROVIDE AUTHORITY FOR GOVERNMENT AGENCIES TO MAKE CHARGES FOR SERVICES EXCEPT IN CASES WHERE THE CHARGE IS SPECIFICALLY FIXED BY LAW OR THE LAW SPECIFICALLY PROVIDES THAT NO CHARGE SHALL BE MADE. YOU AGREED THAT THE LANGUAGE OF SECTION 31 U.S.C. 483A IS VERY BROAD AND THE SECTION CONTEMPLATES THAT THOSE WHO RECEIVE THE BENEFIT OF SERVICES RENDERED BY THE GOVERNMENT ESPECIALLY FOR THEM SHOULD PAY THE ADDED COST THEREOF AT LEAST TO THE EXTENT THAT IT APPEARS A SPECIAL BENEFIT IS CONFERRED. IN THE CASE OF THE PRECLEARANCE OPERATIONS COVERED BY YOUR JULY 22 DECISION, YOU ALSO AGREED THAT THE CHARGES COLLECTED BY CUSTOMS FOR SUCH SPECIAL SERVICES MAY BE DEPOSITED AS A REFUND TO THE APPROPRIATION FROM WHICH PAYMENT FOR THE SERVICES WAS MADE.

OUR DECISION IS REQUESTED WHETHER ADDITIONAL SERVICES, SUCH AS THOSE FOR INTERNATIONAL MINERALS AND CHEMICAL CORPORATION AT NORTHGATE, NORTH DAKOTA, REQUIRING ADDED TOURS OF DUTY AND PERSONNEL TO PERFORM THEM AS REQUESTED BY THE PARTY-IN-INTEREST FOR ITS SOLE CONVENIENCE AND BENEFIT MAY BE PROVIDED AND THE COST COLLECTED FROM THE PARTY FOR WHOM THOSE SERVICES ARE PERFORMED. THE ASSISTANT SECRETARY STATES THAT IT IS ASSUMED THAT FOLLOWING OUR ABOVE-CITED DECISION OF JULY 22, 1968 (48 COMP. GEN. 24), ANY REIMBURSEMENT COLLECTED MAY BE DEPOSITED AS A REFUND TO THE APPROPRIATION FROM WHICH SUCH CHARGES ARE PAID.

THE DOUBT IN THE MATTER ARISES, AT LEAST IN PART, BECAUSE OF THE PROVISO IN 19 U.S.C. 1451. CERTAIN OTHER PROVISIONS OF LAW (CONTAINED IN 19 U.S.C. 267, 1450, 1451 AND 1452) REQUIRE PARTIES REQUESTING CUSTOMS SERVICES ON SUNDAYS, HOLIDAYS AND NIGHTS TO OBTAIN A SPECIAL LICENSE AND POST BOND (COVERING EXTRA COMPENSATION, ETC.) AND ALSO HAVE THE EFFECT OF REQUIRING THAT THE EXTRA COMPENSATION REQUIRED BY LAW TO BE PAID CUSTOMS PERSONNEL FOR NIGHT OVERTIME DUTY AND DUTY ON SUNDAYS AND HOLIDAYS SHALL BE REIMBURSED THE GOVERNMENT BY THE PARTY REQUESTING CUSTOMS SERVICES DURING THESE HOURS. THE PROVISO IN 19 U.S.C. 1451--- AS FAR AS PERTINENT HERE--- MAKES INAPPLICABLE TO OWNERS, OPERATORS AND AGENTS OF HIGHWAY VEHICLES BETWEEN THE UNITED STATES AND CANADA THE AFOREMENTIONED LICENSE, BOND AND REIMBURSEMENT PROVISIONS AND ALSO PROVIDES THAT AT PORTS OF ENTRY AND BORDER STATIONS ON THE CANADIAN BORDER WHERE MERCHANDISE ARRIVES OR DEPARTS BY HIGHWAY VEHICLE THE COLLECTOR (OF CUSTOMS) SHALL ASSIGN CUSTOMS PERSONNEL TO DUTY AT SUCH TIMES DURING THE 24 HOURS OF EACH DAY INCLUDING SUNDAYS AND HOLIDAYS AS THE SECRETARY OF THE TREASURY IN HIS DISCRETION, MAY DETERMINE NECESSARY TO FACILITATE THE INSPECTION AND PASSAGE OF MERCHANDISE, BAGGAGE OR PERSONS. THE SECTION FURTHER PROVIDES THAT ALL COMPENSATION (INCLUDING OVERTIME COMPENSATION) PAYABLE TO SUCH EMPLOYEES SHALL BE PAID BY THE UNITED STATES WITHOUT REQUIRING ANY PAYMENT BY THE OWNER, OPERATOR, OR AGENT OF ANY SUCH HIGHWAY VEHICLE.

THUS, UNDER 19 U.S.C. 1451, IT APPEARS THAT WHERE THE SECRETARY DETERMINES IT NECESSARY TO ASSIGN CUSTOMS PERSONNEL TO DUTY AT A CUSTOMS FACILITY ON THE CANADIAN BORDER DURING CERTAIN HOURS AND DAYS IN ORDER TO FACILITATE THE INSPECTION AND PASSAGE OF MERCHANDISE BEING TRANSPORTED BY HIGHWAY VEHICLE, THE COMPENSATION (INCLUDING OVERTIME COMPENSATION) PAYABLE TO THE PERSONNEL FOR SUCH HOURS AND DAYS MUST BE PAID BY THE UNITED STATES WITHOUT REIMBURSEMENT FROM THE OWNER, OPERATOR OR AGENT OF THE HIGHWAY VEHICLE.

INSOFAR AS THE EXAMPLE IN THE INSTANT CASE IS CONCERNED, AT A CONFERENCE WITH REPRESENTATIVES OF THE BUREAU OF CUSTOMS WE WERE ADVISED THAT THERE IS A CUSTOMS FACILITY AT PORTAL, NORTH DAKOTA, WHICH PROVIDES CUSTOMS SERVICES 24 HOURS A DAY, 7 DAYS A WEEK. FROM A DOCUMENT FURNISHED US AT THE CONFERENCE IT APPEARS THAT THE PORTAL CUSTOMS FACILITY IS APPROXIMATELY 28 MILES BY HIGHWAY FROM THE NORTHGATE CUSTOMS FACILITY. WERE ADVISED THAT INTERNATIONAL COULD, BUT DOES NOT WISH TO, ROUTE THE TRUCKS INVOLVED THROUGH PORTAL TO THE RAIL TRANSHIPMENT FACILITY 2-1/2 MILES FROM NORTHGATE BECAUSE OF ECONOMIC REASONS. WE WERE INFORMED THAT THE DISTANCE VIA HIGHWAY FROM ESTERHAZY TO NORTHGATE, DIRECT, IS 134 MILES, WHILE THE HIGHWAY DISTANCE FROM ESTERHAZY TO NORTHGATE VIA PORTAL IS 186 MILES, A DIFFERENCE OF 52 MILES ONE WAY. WE UNDERSTAND THAT BECAUSE OF THE ADDITIONAL TRANSPORTATION COSTS THAT WOULD BE INCURRED IF THE TRUCKS USED THE PORTAL CUSTOMS FACILITIES, INTERNATIONAL HAS REQUESTED THAT IT BE FURNISHED CUSTOMS SERVICES ON A REIMBURSABLE BASIS AT EITHER NORTHGATE OR THE RAIL TRANSHIPMENT POINT 2-1/2 MILES SOUTH OF NORTHGATE.

WE DO NOT THINK WE ARE REQUIRED TO HOLD THAT THE PROVISO IN 19 U.S.C. 1451 PROHIBITS IN ALL CASES THE RECOVERY OF COSTS INCURRED BY CUSTOMS INCIDENT TO THE FURNISHING OF CUSTOMS SERVICES TO HIGHWAY VEHICLES AT CUSTOMS FACILITIES ON THE CANADIAN BORDER. IN THE INSTANT CASE IT IS CLEAR THAT THE NECESSARY CUSTOMS SERVICES ARE AVAILABLE TO INTERNATIONAL 24 HOURS A DAY, 7 DAYS A WEEK AT PORTAL, ALTHOUGH TO REACH NORTHGATE FROM ESTERHAZY BY WAY OF PORTAL WOULD REQUIRE THE TRUCKS TO TRAVEL AN ADDITIONAL 52 MILES EACH WAY. IN ANY EVENT FOR REASONS OF ITS OWN INTERNATIONAL DESIRES THE TRUCKS TO USE THE NORTHGATE CUSTOMS FACILITY RATHER THAN THE ONE AT PORTAL. HENCE, UNDER THESE FACTS AND CIRCUMSTANCES, EXTENDING THE HOURS OF SERVICE TO COVER 24 HOURS A DAY, 7 DAYS A WEEK AT NORTHGATE WOULD RESULT IN A COST TO CUSTOMS WHICH APPARENTLY IT WOULD NOT OTHERWISE INCUR, IN VIEW OF THE AVAILABILITY OF SERVICES AT THE PORTAL CUSTOMS FACILITY AT ALL TIMES. IN ANY EVENT, IT APPEARS THAT THE SECRETARY HAS NOT DETERMINED IT NECESSARY TO PROVIDE SERVICES AT NORTHGATE 24 HOURS A DAY, 7 DAYS A WEEK IN ORDER TO FACILITATE THE PASSAGE AND INSPECTION OF MERCHANDISE AT THAT FACILITY. THUS, UNDER SUCH CIRCUMSTANCES, EXTENDING THE HOURS OF SERVICE AT NORTHGATE FROM THOSE SET FORTH IN THE ASSISTANT SECRETARY'S LETTER, TO 24 HOURS PER DAY, 7 DAYS A WEEK WOULD APPARENTLY BE SOLELY FOR THE BENEFIT OF INTERNATIONAL. ACCORDINGLY, IN THE INSTANT CASE ANY COSTS (INCLUDING COMPENSATION) INCURRED BY CUSTOMS AS A RESULT OF EXTENDING THE HOURS OF SERVICE AT NORTHGATE IN THE MANNER INDICATED ABOVE MAY BE RECOVERED FROM INTERNATIONAL IN ACCORDANCE WITH 31 U.S.C. 483A. HOWEVER, CONSIDERING THE PROVISIONS OF 19 U.S.C. 1451, WE ARE OF THE VIEW THAT ANY COSTS RESULTING FROM THE ASSIGNMENT OF ADDITIONAL PERSONNEL TO NORTHGATE DURING THE REGULAR HOURS OF SERVICE AT THAT FACILITY MAY NOT BE RECOVERED FROM INTERNATIONAL.

ALSO, FURNISHING TO INTERNATIONAL, AT ITS REQUEST, CUSTOMS SERVICES AT THE RAIL TRANSHIPMENT POINT RATHER THAN AT THE NORTHGATE CUSTOMS FACILITY WOULD BE A SERVICE RENDERED SOLELY FOR THE BENEFIT OF INTERNATIONAL. ACCORDINGLY, TO THE EXTENT THE COST OF CUSTOMS SERVICES FURNISHED AT THE RAIL TRANSHIPMENT POINT EXCEED THE COSTS CUSTOMS WOULD INCUR AT THE NORTHGATE FACILITY DURING THE REGULAR HOURS OF SERVICE (I.E., THE HOURS IN EFFECT PRIOR TO THE EXTENSION PROPOSED HERE), SUCH EXCESS COSTS (INCLUDING COMPENSATION) MAY BE RECOVERED FROM INTERNATIONAL UNDER THE AUTHORITY OF 31 U.S.C. 483A.

FURTHER, AS INDICATED IN THE ASSISTANT SECRETARY'S LETTER, CONSISTENT WITH THE POSITION TAKEN IN OUR DECISION OF JULY 22, 1968, ANY COSTS RECOVERED OR COLLECTED FOR CUSTOMS SERVICES IN ACCORDANCE WITH THE FOREGOING MAY BE DEPOSITED TO THE APPROPRIATION FROM WHICH SUCH COSTS WERE PAID.

THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.