B-135138, MAY 2, 1958, 37 COMP. GEN. 723

B-135138, MAY 2, 1958, 37 COMP. GEN. 723

CIVILIAN PERSONNEL - OVERTIME COMPENSATION - EMPLOYEES OF FOREIGN QUARANTINE DIVISION, UNITED STATES PUBLIC HEALTH SERVICE EMPLOYEES OF THE FOREIGN QUARANTINE DIVISION, UNITED STATES PUBLIC HEALTH SERVICE, WHO PERFORM OVERTIME DUTIES DURING THE NIGHTTIME MAY NOT RECEIVE ADDITIONAL COMPENSATION FOR PERIODS OF CONSTRUCTIVE "STAND BY OR WAITING TIME" UNDER SECTION 364C OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C. 267 (C), WHICH REQUIRES THE PERFORMANCE OF ACTUAL DUTY DURING THE PRESCRIBED OVERTIME PERIODS FOR ENTITLEMENT TO OVERTIME COMPENSATION, AND THERE IS NOTHING IN THE AMENDATORY ACT OF JUNE 21, 1957, 71 STAT. 181, WHICH CONFERS ANY SPECIFIC AUTHORITY ON THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE FROM WHICH DISCRETIONARY POWER TO DETERMINE WHAT CONSTITUTES OVERTIME SERVICES COULD BE INFERRED. OVERTIME COMPENSATION, UNDER SECTION 364C OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C. 267, IS IN LIEU OF COMPENSATION UNDER ANY OTHER PROVISION OF LAW AND NEITHER PER ANNUM NOR WAGE BOARD EMPLOYEES OF THE FOREIGN QUARANTINE DIVISION OF THE UNITED STATES PUBLIC HEALTH SERVICE MAY BE PAID OVERTIME COMPENSATION FOR TRAVEL BETWEEN THEIR HEADQUARTERS AND TEMPORARY DUTY STATIONS. EMPLOYEES OF THE FOREIGN QUARANTINE DIVISION OF THE UNITED STATES PUBLIC HEALTH SERVICE, WHO HAVE BEEN ORDERED TO OVERTIME DUTY AND REPORT FOR SUCH DUTY, BUT WHO DO NOT PERFORM ANY SERVICES BECAUSE OF CIRCUMSTANCES BEYOND THEIR CONTROL, MAY BE PAID OVERTIME UNDER SECTION 364 (D) (1) OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C. 267; ALSO, COMPENSATORY TIME NOT BEING SPECIFICALLY AUTHORIZED BY THE ACT MAY NOT BE GRANTED.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, MAY 2, 1958:

ON FEBRUARY 4, 1958, YOU REQUESTED OUR DECISION ON SEVERAL QUESTIONS INVOLVING PUBLIC LAW 85-58 WHICH AMENDS SECTION 364 OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C. 267, TO PROVIDE FOR THE PAYMENT OF OVERTIME COMPENSATION TO EMPLOYEES OF THE FOREIGN QUARANTINE DIVISION PERFORMING OVERTIME DUTIES DURING THE NIGHTIME AND ON SUNDAYS AND HOLIDAYS. SUCH EXTRA COMPENSATION WITH CERTAIN EXCEPTIONS IS REQUIRED TO BE PAID TO THE UNITED STATES BY THE OWNER, AGENT, OR OTHER PERSON IN CHARGE OF THE CONVEYANCE AT WHOSE REQUEST THE OVERTIME SERVICES ARE PERFORMED.

THREE PRINCIPAL TYPES OF INSPECTIONS ARE PERFORMED BY EMPLOYEES OF THE FOREIGN QUARANTINE DIVISION, NAMELY: (1) QUARANTINE INSPECTION, TO PREVENT THE INTRODUCTION, TRANSMISSION, OR SPREAD OF COMMUNICABLE DISEASE FROM FOREIGN COUNTRIES INTO THE UNITED STATES, PENDING COMPLETION OF QUARANTINE INSPECTION, AND UNLESS SPECIFIC PERMISSION IS GRANTED BY THE QUARANTINE INSPECTOR, THE VESSEL OR AIRCRAFT, UNLESS EXEMPTED, MAY NOT DISCHARGE CARGO, DISEMBARK ITS PASSENGERS, OR PERMIT ANY PERSON TO COME ABOARD; (2) MEDICAL EXAMINATION OF ALIENS; AND (3) SANITATION INSPECTION, TO DETERMINE THE SANITARY CONDITION OF THE CONVEYANCE AND THE PRESENCE OF VECTORS OF QUARANTINABLE AND OTHER COMMUNICABLE DISEASES.

CONDITIONS UNDER WHICH SUCH INSPECTIONS ARE PERFORMED VARY WIDELY. WITH FEW EXCEPTIONS, STAFF OR AIRCRAFT INSPECTORS ARE ASSIGNED FROM QUARANTINE STATIONS AND ARE SEVERAL MILES FROM THE AIRPORTS. SHIP INSPECTIONS ARE PERFORMED EITHER WHILE THE SHIP IS IN THE STREAM OR AT THE DOCK. INSPECTION IN THE STREAM REQUIRES TRANSFER OF PERSONNEL BY LAUNCH BETWEEN SHIP AND SHORE, WHILE DOCKSIDE BOARDING REQUIRES WATERFRONT TRAVEL. YOU SAY THAT THE POSSIBILITY OF ACCIDENT WHILE TRANSFERRING FROM LAUNCHES TO SHIPS IN DARKNESS OR NEAR DARKNESS, ESPECIALLY IN ROUGH WEATHER, IS CONSIDERABLY GREATER THAN IN DAYLIGHT, AND THAT DOCKSIDE BOARDINGS USUALLY REQUIRE TRAVEL INTO ROUGH AND LONELY SECTIONS.

YOU ALSO SAY THAT A HIGH PERCENTAGE OF THE OVERTIME IS OF THE CALL BACK TYPE, FREQUENTLY DURING THE HOURS NORMALLY ALLOTTED FOR SLEEP OR REST; THAT SUCH OVERTIME, PERFORMED AT THE REQUEST AND FOR THE CONVENIENCE OF THE CARRIER, ALTHOUGH IRREGULAR AS TO TIME OF OCCURRENCE, IS A REGULAR AND FREQUENT PRACTICE; AND THAT BECAUSE OF THE HOURS AT WHICH OVERTIME SERVICES ARE REQUESTED AND THE ISOLATED LOCATIONS OF THE STATIONS, PUBLIC TRANSPORTATION IS INFREQUENT AND TRAVEL MAY TAKE MUCH LONGER THAN DURING NORMAL BUSINESS HOURS.

YOU ENCLOSED WITH YOUR LETTER ADMINISTRATIVE INSTRUCTIONS IMPLEMENTING PUBLIC LAW 85-58. UNDER THESE INSTRUCTIONS, OVERTIME SERVICES, THAT IS, SERVICE PERFORMED BETWEEN 6 P.M. AND 6 A.M. (OR 7 P.M. AND 7 A.M.), OR ON SUNDAYS OR HOLIDAYS WHICH DO NOT FALL WITHIN THE EMPLOYEE'S REGULARLY SCHEDULED DAILY TOUR OF DUTY, BEGIN WHEN THE EMPLOYEE HAS REPORTED TO THE DUTY STATION HAVING JURISDICTION OF THE CONVEYANCE AND END WHEN THE EMPLOYEE COMPLETES THE WORK CONNECTED WITH SUCH SERVICES AFTER HIS RETURN TO THE STATION. SUCH OVERTIME IS COMPUTED ON THE DAILY BASIS WITHOUT REQUIRING THAT THE EMPLOYEE PERFORM SERVICES IN EXCESS OF 40 HOURS DURING THE ADMINISTRATIVE WORKWEEK.

YOU PRESENT SEVERAL QUESTIONS WHICH HAVE ARISEN CONCERNING THE ALLOWANCE OF COMPENSABLE TIME AT OVERTIME RATES ADDITIONAL TO THE PERIOD SO COMPUTED, IN ACCORDANCE WITH THE REFERRED-TO ADMINISTRATIVE INSTRUCTIONS. THE QUESTIONS WILL BE ANSWERED IN THE ORDER PRESENTED.

1. HAVING IN MIND YOUR DECISION OF OCTOBER 24, 1957, B-132126, DEALING WITH THE COMPUTATION OF OVERTIME FOR CUSTOMS EMPLOYEES UNDER 19 U.S.C. 267, 1451 (A STATUTE WITH PROVISIONS COMPARABLE IN MANY RESPECTS TO SECTION 364 (C) AND (D) OF THE PUBLIC HEALTH SERVICE ACT AS AMENDED) ADVICE IS REQUESTED WHETHER YOUR OFFICE WOULD OBJECT TO A REASONABLE ALLOWANCE OF TWO HOURS DURING WHICH THE EMPLOYEE MIGHT BE SAID TO "REMAIN ON DUTY," IN THE NATURE OF STAND-BY OR WAITING TIME, PRIOR TO OR BETWEEN INSPECTIONS ALTHOUGH NOT ENGAGED IN THE ACTUAL PERFORMANCE OF "OVERTIME DUTIES * * * IN CONNECTION WITH * * * INSPECTION OR QUARANTINE TREATMENT? " SUCH A PERIOD OF COMPENSABLE TIME WOULD BE INCLUDED AS PART OF THE OVERTIME SERVICES IN ADDITION TO THE PERIOD COMPUTED IN ACCORDANCE WITH THE ADMINISTRATIVE INSTRUCTIONS. COMPUTATION OF SUCH ADDITIONAL COMPENSABLE TIME WOULD, OF COURSE, BE IN ACCORD WITH THE VIEWS EXPRESSED IN YOUR CITED OPINION OF OCTOBER 24, 1957 AS TO THE SCOPE OF SO-CALLED "BACK-UP TIME.' IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO 27 COMP. GEN. 102, WHERE A SIMILAR ALLOWANCE WAS APPROVED UNDER THE COMPARABLE PROVISIONS OF THE ACT (8 U.S.C. 109)PROVIDING FOR OVERTIME COMPENSATION FOR IMMIGRATION INSPECTORS.

PUBLIC LAW 85-58, 71 STAT. 181, AMENDS SECTION 364 OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C. 267, BY ADDING THERETO THE FOLLOWING SUBSECTIONS:

(C) EMPLOYEES OF THE UNITED STATES PUBLIC HEALTH SERVICE, FOREIGN QUARANTINE DIVISION, PERFORMING OVERTIME DUTIES INCLUDING THE OPERATION OF VESSELS, IN CONNECTION WITH THE INSPECTION OR QUARANTINE TREATMENT OF PERSONS (PASSENGERS AND CREWS), CONVEYANCES, OR GOODS ARRIVING BY LAND, WATER, OR AIR IN THE UNITED STATES OR ANY PLACE SUBJECT TO THE JURISDICTION THEREOF, HEREINAFTER REFERRED TO AS "EMPLOYEES OF THE PUBLIC HEALTH SERVICE," WHEN REQUIRED TO BE ON DUTY TO PERFORM SUCH DUTIES BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN (OR BETWEEN THE HOURS OF 7 O-CLOCK POST MERIDIAN AND 7 O-CLOCK ANTEMERIDIAN AT STATIONS WHICH HAVE A DECLARED WORKDAY OR FROM 7 O-CLOCK ANTEMERIDIAN TO 7 O-CLOCK POST MERIDIAN), OR ON SUNDAYS OR HOLIDAYS, SHALL BE PAID, IN LIEU OF COMPENSATION UNDER ANY OTHER PROVISION OF LAW, AT THE RATE OF ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE FOR EACH HOUR THAT THE OVERTIME EXTENDS BEYOND 6 O-CLOCK (OR 7 O-CLOCK AS THE CASE MAY BE) POST MERIDIAN, AND EXTENDS BEYOND 6 O CLOCK (OR 7 O-CLOCK AS THE CASE MAY BE) POST MERIDIAN, AND TWO TIMES THE BASIC HOURLY RATE FOR EACH OVERTIME HOUR WORKED ON SUNDAYS OR HOLIDAYS. AS USED IN THIS SUBSECTION, THE TERM "BASIC HOURLY RATE" SHALL MEAN THE REGULAR BASIC RATE OF PAY WHICH IS APPLICABLE TO SUCH EMPLOYEES FOR WORK PERFORMED WITHIN THEIR REGULARLY SCHEDULED TOUR OF DUTY.

(D) (1) THE SAID EXTRA COMPENSATION SHALL BE PAID TO THE UNITED STATES BY THE OWNER, AGENT, CONSIGNEE, OPERATOR, OR MASTER OR OTHER PERSON IN CHARGE OF ANY CONVEYANCE, FOR WHOM, AT HIS REQUEST, SERVICES AS DESCRIBED IN THIS SUBSECTION (HEREINAFTER REFERRED TO AS OVERTIME SERVICE) ARE PERFORMED. IF SUCH EMPLOYEES HAVE BEEN ORDERED TO REPORT FOR DUTY AND HAVE SO REPORTED, AND THE REQUESTED SERVICES ARE NOT PERFORMED BY REASON OF CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEES CONCERNED, SUCH EXTRA COMPENSATION SHALL BE PAID ON THE SAME BASIS AS THOUGH THE OVERTIME SERVICES HAD ACTUALLY BEEN PERFORMED DURING THE PERIOD BETWEEN THE TIME THE EMPLOYEES WERE ORDERED TO REPORT FOR DUTY AND DID SO REPORT, AND THE TIME THEY WERE NOTIFIED THAT THEIR SERVICES WOULD NOT BE REQUIRED, AND IN ANY CASE AS THOUGH THEIR SERVICES HAD CONTINUED FOR NOT LESS THAN ONE HOUR. THE SURGEON GENERAL WITH THE APPROVAL OF THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE MAY PRESCRIBE REGULATIONS REQUIRING THE OWNER, AGENT, CONSIGNEE, OPERATOR, OR MASTER OR OTHER PERSON FOR WHOM THE OVERTIME SERVICES ARE PERFORMED TO FILE A BOND IN SUCH AMOUNTS AND CONTAINING SUCH CONDITIONS AND WITH SUCH SURETIES, OR IN LIEU OF A BOND, TO DEPOSIT MONEY OR OBLIGATIONS OF THE UNITED STATES IN SUCH AMOUNT, AS WILL ASSURE THE PAYMENT OF CHARGES UNDER THIS SUBSECTION, WHICH BOND OR DEPOSIT MAY COVER ONE OR MORE TRANSACTIONS OR ALL TRANSACTIONS DURING A SPECIFIED PERIOD: PROVIDED, THAT NO CHARGES SHALL BE MADE FOR SERVICES PERFORMED IN CONNECTION WITH THE INSPECTION OF (1) PERSONS ARRIVING BY INTERNATIONAL HIGHWAYS, FERRIES, BRIDGES, OR TUNNELS, OR THE CONVEYANCES IN WHICH THEY ARRIVE, OR (2) PERSONS ARRIVING BY AIRCRAFT OR RAILROAD TRAINS, THE OPERATIONS OF WHICH ARE COVERED BY PUBLISHED SCHEDULES, OR THE AIRCRAFT OR TRAINS IN WHICH THEY ARRIVE, OR (3) PERSONS ARRIVING BY VESSELS OPERATED BETWEEN CANADIAN PORTS AND PORTS ON PUGET SOUND OR OPERATED ON THE GREAT LAKES AND CONNECTING WATERWAYS, THE OPERATIONS OF WHICH ARE COVERED BY PUBLISHED SCHEDULES, OR THE VESSELS IN WHICH THEY ARRIVE.

(2) MONEYS COLLECTED UNDER THIS SUBSECTION SHALL BE DEPOSITED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE APPROPRIATION CHARGED WITH THE EXPENSE OF THE SERVICES, AND THE APPROPRIATIONS SO CREDITED SHALL BE AVAILABLE FOR THE PAYMENT OF SUCH COMPENSATION TO THE SAID EMPLOYEES FOR SERVICES SO RENDERED.

THE LANGUAGE OF SUBSECTION (C), 42 U.S.C. 267 (C), PROVIDING THAT THE OVERTIME COMPENSATION SHALL BE PAID TO EMPLOYEES "PERFORMING OVERTIME DUTIES * * * WHEN REQUIRED TO BE ON DUTY TO PERFORM SUCH DUTIES" CLEARLY CONTEMPLATES THE PERFORMANCE OF ACTUAL DUTY DURING THE PRESCRIBED OVERTIME PERIODS AS A REQUISITE FOR THE OVERTIME PAYMENTS. WHILE WE HAVE NOT QUESTIONED DEPARTMENTAL REGULATIONS AUTHORIZING ALLOWANCES OF COMPENSABLE "WAITING" OR "STAND-BY" TIME IN ADDITION TO THE TIME OF ACTUAL OVERTIME DUTY IN THE CASE OF CUSTOMS SERVICE EMPLOYEES AND IMMIGRATION SERVICE EMPLOYEES, THE STATUTES GOVERNING OVERTIME PAYMENTS TO THOSE EMPLOYEES DIFFER IN A VERY SIGNIFICANT RESPECT FROM THE STATUTE HERE UNDER CONSIDERATION. UNDER 19 U.S.C. 267 AND 5 U.S.C. 342C, THE SECRETARY OF THE TREASURY AND THE ATTORNEY GENERAL, RESPECTIVELY, ARE DIRECTED "TO FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES" WHICH LANGUAGE HAS BEEN CONSTRUED AS CONFERRING UPON THE DEPARTMENT HEAD VERY BROAD DISCRETION IN DETERMINING WHAT CONSTITUTES OVERTIME SERVICES THEREUNDER. CALLAHAN V. UNITED STATES, 122 F.2D 216; 33 OP. ATTY. GEN. 112; 37 COMP. GEN. 276; 27 ID. 102. ON THE OTHER HAND, PUBLIC LAW 85-58 MERELY PROVIDES THAT THE FOREIGN QUARANTINE EMPLOYEES "SHALL BE PAID" THE OVERTIME AND DOES NOT CONFER UPON THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE ANY SPECIFIC AUTHORITY FROM WHICH THE AFORESAID BROAD DISCRETIONARY POWER COULD BE INFERRED. ALSO, WHILE THE HOUSE OF REPRESENTATIVES IN H.R. 7221, WHICH BECAME PUBLIC LAW 85-58, ENDEAVORED TO ADOPT A PROVISION WHICH WOULD HAVE PUT THE QUARANTINE DIVISION ON AN OVERTIME BASIS VERY SIMILAR TO THAT OF THE CUSTOMS AND IMMIGRATION SERVICE, THE SENATE REVISED AND MODIFIED THE LANGUAGE OF THE BILL. THAT MODIFICATION WAS AGREED TO BY THE HOUSE AND IS NOW CONTAINED IN PUBLIC LAW 85-58. WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE LANGUAGE AS ADOPTED INDICATING THAT CONGRESS INTENDED IT TO HAVE OTHER THAN ITS CLEAR AND UNAMBIGUOUS MEANING.

THEREFORE, WE ARE REQUIRED TO OBJECT TO THE ALLOWANCE OF COMPENSABLE OVERTIME FOR PERIODS WHEN THE EMPLOYEES ARE NOT ENGAGED IN THE ACTUAL PERFORMANCE OF OVERTIME DUTIES.

2. ASSUMING THE ANSWER TO THE PREVIOUS QUESTION IS IN THE AFFIRMATIVE, MAY SUCH REASONABLE ALLOWANCE BE MADE IF THE OVERTIME SERVICES ARE PERFORMED FOR EXEMPT CARRIERS AND HENCE NOT REIMBURSABLE? IN OUR OPINION, THE CONSIDERATIONS SUPPORTING SUCH ALLOWANCE ARE NOT AFFECTED BY THE CIRCUMSTANCE AS TO WHETHER THE OVERTIME COMPENSATION IS REIMBURSABLE.

SINCE OUR ANSWER TO THE PREVIOUS QUESTION IS IN THE NEGATIVE NO ANSWER IS REQUIRED TO THIS QUESTION.

3. BECAUSE OF THE ISOLATED LOCATION OF MANY QUARANTINE STATIONS, IT IS SOMETIMES MORE EXPEDITIOUS FOR THE QUARANTINE INSPECTOR TO PROCEED FROM HIS HOME DIRECTLY TO THE CONVEYANCE, WHETHER IT BE A SHIP OR AN AIRCRAFT, RATHER THAN REPORT TO THE STATION PRIOR TO THE INSPECTION. UNDER SUCH CIRCUMSTANCES, MAY THE PERIOD OF OVERTIME SERVICES BE COMPUTED CONSTRUCTIVELY, ON A STATION TO STATION BASIS, AS THOUGH THE EMPLOYEE HAD REPORTED TO THE STATION PRIOR TO AND ON COMPLETION OF THE INSPECTION? OVERTIME SO COMPUTED IS NOT INTENDED TO AFFECT THE REASONABLE PERIOD PROPOSED TO BE ALLOWED UNDER QUESTION 1 FOR STAND-BY AND WAITING TIME.

OUR DECISIONS, REGARDLESS OF THE OVERTIME STATUTE INVOLVED, HAVE CONSISTENTLY HELD THAT PER ANNUM EMPLOYEES ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR TRAVEL TIME OUTSIDE THEIR REGULARLY SCHEDULED TOURS OF DUTY NOT INVOLVING THE PERFORMANCE OF WORK OR CARRIED OUT UNDER ARDUOUS CONDITIONS. 24 COMP. GEN. 456, AND DECISIONS THERE CITED. CF. SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS ADDED BY SECTION 205 (B) OF THE FEDERAL EMPLOYEES PAY ACT AMENDMENTS OF 1954, 68 STAT. 1110, 5 U.S.C. 912B. WE PARTICULARLY HELD SUCH RULE APPLICABLE TO CUSTOMS SERVICE EMPLOYEES IN 37 COMP. GEN. 356 AND TO FOREIGN QUARANTINE DIVISION EMPLOYEES IN DECISION OF SEPTEMBER 24, 1947, B-67600. WHILE THE RULE RESPECTING TRAVEL OVERTIME IS SOMEWHAT MORE LIBERAL CONCERNING WAGE BOARD EMPLOYEES WHOSE WAGES ARE FIXED PURSUANT TO THE ACT OF MARCH 28, 1934, 48 STAT. 509, SUCH INTERPRETATION IS BASED UPON THE PROVISIONS OF THAT ACT. SINCE THE OVERTIME COMPENSATION PAYABLE UNDER PUBLIC LAW 85-58 IS IN LIEU OF COMPENSATION UNDER ANY OTHER PROVISION OF LAW, WE VIEW THE GENERAL RULE AS SET FORTH ABOVE AS CONTROLLING EVEN IN THE CASE OF WAGE BOARD QUARANTINE DIVISION EMPLOYE ALSO, WE DO NOT VIEW THE TRAVEL OF QUARANTINE DIVISION EMPLOYEES FROM RESIDENCE TO HEADQUARTERS OR FROM HEADQUARTERS TO TEMPORARY DUTY STATIONS, GENERALLY, AS CARRIED OUT UNDER ARDUOUS CONDITIONS OR INVOLVING THE PERFORMANCE OF WORK. OF COURSE, CERTAIN SEGMENTS THEREOF, SUCH AS TIME SPENT TRANSFERRING FROM LAUNCH TO SHIP, PROPERLY COULD BE SO CLASSIFIED. THUS, WE CONCLUDE THAT NEITHER PER ANNUM NOR WAGE BOARD QUARANTINE DIVISION EMPLOYEES MAY BE PAID OVERTIME COMPENSATION FOR MERE TRAVEL BETWEEN THEIR HEADQUARTERS AND TEMPORARY DUTY STATIONS AND THAT YOUR ADMINISTRATIVE INSTRUCTIONS ARE INEFFECTIVE SO FAR AS THEY AUTHORIZE SUCH PAYMENTS. THEREFORE, THE QUESTION IS ANSWERED IN THE NEGATIVE.

4. SECTION 364 (D) OF THE PUBLIC HEALTH SERVICE ACT (AS AMENDED BY P.L. 85-58), PROVIDES THAT IF THE QUARANTINE EMPLOYEES "HAVE BEEN ORDERED TO REPORT FOR DUTY AND HAVE SO REPORTED, AND THE REQUESTED SERVICES ARE NOT PERFORMED BY REASON OF CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEES CONCERNED, SUCH EXTRA COMPENSATION SHALL BE PAID ON THE SAME BASIS AS THOUGH THE OVERTIME SERVICES HAD ACTUALLY BEEN PERFORMED DURING THE PERIOD BETWEEN THE TIME THE EMPLOYEES WERE ORDERED TO REPORT FOR DUTY AND DID SO REPORT, AND THE TIME THEY WERE NOTIFIED THAT THEIR SERVICES WOULD NOT BE REQUIRED, AND IN ANY CASE AS THOUGH THEIR SERVICES HAD CONTINUED FOR NOT LESS THAN ONE HOUR.'

UNDER THE EXEMPTIONS PROVIDED IN THE STATUTE, AIRCRAFT OR TRAINS "THE OPERATIONS OF WHICH ARE COVERED BY PUBLISHED SCHEDULES" ARE EXEMPTED FROM CHARGES FOR OVERTIME SERVICES.

WHEN THE EMPLOYEE HAS BEEN ORDERED TO REPORT FOR DUTY BUT SERVICES ARE NOT PERFORMED, THE ADMINISTRATIVE INSTRUCTIONS (PARAGRAPH 5A (5) ( PROVIDE THAT OVERTIME COMPENSATION AS AUTHORIZED IN THE QUOTED LANGUAGE MAY BE PAID TO THE EMPLOYEE ONLY IF THE CARRIER IS LIABLE FOR REIMBURSEMENT. THIS CONSTRUCTION IS BASED ON THE DECISION IN 10 COMP. GEN. 487, 491 INVOLVING THE SOMEWHAT SIMILAR PROVISIONS OF THE ACT OF MARCH 2, 1931, WHEREIN IT WAS HELD THAT SUCH PROVISION HAD NO APPLICATION TO CASES TO WHICH THE GOVERNMENT IS LIABLE FOR THE OVERTIME. (WHEN SERVICES ARE PERFORMED, HOWEVER, THE INSTRUCTIONS PROVIDE THAT OVERTIME SHALL BE COMPUTED IN MULTIPLES OF ONE HOUR, AND IF THE EMPLOYEE PERFORMS SERVICES IN EXCESS OF FIFTEEN MINUTES BUT LESS THAN ONE HOUR, THE OVERTIME IS COMPUTED AS ON HOUR, REGARDLESS OF WHETHER THE OVERTIME COMPENSATION IS REIMBURSABLE (SEE 25 COMP. GEN. 121) ).

UNDER THE STATUTORY PROVISIONS HEREIN INVOLVED, AIRCRAFT WHOSE OPERATIONS ARE COVERED BY A PUBLISHED SCHEDULE HAVE BEEN CONSIDERED EXEMPT FROM CHARGES FOR OVERTIME SERVICE EVEN THOUGH THEY LAND AT A TIME AND PLACE NOT SCHEDULED. FOR EXAMPLE, WEATHER CONDITIONS MAY PREVENT AIRCRAFT FROM LANDING AT A SCHEDULED AIRPORT. IN SOME CASES, AS MANY AS FOUR OR FIVE ALTERNATE AIRPORTS ARE ALERTED AND INSPECTIONAL PERSONNEL AT SUCH AIRPORTS ARE CALLED BACK TO DUTY BETWEEN 6 P.M. AND 6 A.M. (OR ON SUNDAYS AND HOLIDAYS) TO INSPECT THE AIRCRAFT ON ARRIVAL. THEY ARE REQUIRED TO REMAIN ON DUTY UNTIL ALL THE AIRCRAFT INVOLVED HAVE LANDED. IN MANY CASES, NO LANDINGS ARE MADE AT SOME OF THE ALTERNATE AIRPORTS.

APPLICATION OF THE HOLDING IN 10 COMP. GEN. 487 TO THIS SITUATION, WHERE STAND-BY DUTY OF SEVERAL HOURS IS REQUIRED, APPEARS A HARDSHIP ON THE EMPLOYEES INVOLVED, PARTICULARLY IN VIEW OF THE CALL BACK PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT (5 U.S.C. 912A) WHICH WOULD OTHERWISE BE APPLICABLE.

ACCORDINGLY, YOUR ADVICE IS REQUESTED WHETHER THE VIEW EXPRESSED IN 10 COMP. GEN. 487, 491, IS APPLICABLE TO SITUATIONS ARISING UNDER SECTION 364 (D) OF THE PUBLIC HEALTH SERVICE ACT SO AS TO PRECLUDE THE PAYMENT OF OVERTIME COMPENSATION THEREUNDER IF THE EMPLOYEE HAS REPORTED FOR OVERTIME DUTY AS ORDERED BUT THE REQUESTED SERVICES ARE NOT PERFORMED BY REASON OF CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEE AND THE CARRIER IS EXEMPTED FROM REIMBURSEMENT. IF SO, MAY COMPENSATORY TIME OFF BE ALLOWED TO THESE EMPLOYEES?

OUR DECISION REPORTED IN 10 COMP. GEN. 487, 491, WHICH HELD THAT EMPLOYEES OF THE IMMIGRATION SERVICE ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR TIME ON DUTY WHEN NO ACTUAL INSPECTION TAKES PLACE FOR WHICH THE GOVERNMENT WOULD NOT BE REIMBURSED, WAS BASED ON THE FACT THAT AUTHORITY FOR THE PAYMENT OF OVERTIME WHEN THOSE EMPLOYEES HAVE BEEN ORDERED TO REPORT FOR DUTY BUT SERVICES ARE NOT PERFORMED IS CONTAINED IN SECTION 2 OF THE ACT OF MARCH 2, 1931, 5 U.S.C. 342D, AND THAT SECTION IS SPECIFICALLY MADE NOT APPLICABLE TO EXEMPT SITUATIONS. HOWEVER, WHILE SUBSECTION (D) (1) OF PUBLIC LAW 85-58, 42 U.S.C. 267 (D) (1), WHICH SIMILARLY AUTHORIZES THE PAYMENT OF OVERTIME WHEN EMPLOYEES HAVE BEEN ORDERED TO REPORT FOR DUTY BUT SERVICES ARE NOT PERFORMED CONTAINS A PROVISO "THAT NO CHARGES SHALL BE MADE FOR SERVICES PERFORMED IN CONNECTION WITH" CERTAIN SPECIFIED SITUATIONS, THERE IS NO LANGUAGE IN THE PROVISO EXCLUDING THE APPLICATION OF THE AUTHORITY CONSIDERED IN THIS QUESTION FROM EXEMPT SITUATIONS. CONSEQUENTLY, WE VIEW SUBSECTION (D) (1) AS AUTHORIZING THE PAYMENT OF THE OVERTIME PROVIDED FOR IN SUBSECTION (C) TO EMPLOYEES WHO HAVE BEEN ORDERED TO REPORT FOR DUTY BUT SERVICES ARE NOT PERFORMED BECAUSE OF CIRCUMSTANCES BEYOND THEIR CONTROL, REGARDLESS OF WHETHER THE EXEMPT SITUATIONS ARE, OR ARE NOT, INVOLVED. THEREFORE, THE QUESTION IS ANSWERED IN THE NEGATIVE. COMPENSATORY TIME OFF COULD NOT BE ALLOWABLE IN ANY EVENT, SINCE QUARANTINE EMPLOYEES' RIGHTS REGARDING THE OVERTIME WORK HERE CONSIDERED ARE GOVERNED BY PUBLIC LAW 85-58 "IN LIEU OF COMPENSATION UNDER ANY OTHER PROVISION OF LAW," AND THAT ACT MAKES NO PROVISION FOR COMPENSATORY TIME OFF.