B-140873, DEC. 11, 1959

B-140873, DEC. 11, 1959

TO MR. FREDERICK I. AMMERMAN:

YOUR LETTER OF NOVEMBER 16, 1959, WITH ENCLOSURE, TO US, WHICH WAS FORWARDED HERE BY THE HONORABLE HUBERT H. HUMPHREY, UNITED STATES SENATE, REQUESTS FURTHER CONSIDERATION OF THE ADMINISTRATION OF THE CUSTOMS EXTRA COMPENSATION LAWS AT WAR ROAD, MINNESOTA, CONCERNING WHICH WE ADVISED SENATOR HUMPHREY IN OUR LETTER OF NOVEMBER 6, 1959.

SPECIFICALLY, YOU RAISE THE QUESTION WHETHER, IN CONNECTION WITH LATE TRAIN ARRIVALS, THE CANADIAN NATIONAL RAILWAY IS REQUIRED TO PAY THE UNITED STATES GOVERNMENT OVERTIME EXTRA COMPENSATION UNDER THE ACT OF FEBRUARY 13, 1911, AS AMENDED, 19 U.S.C. 267, ON ACCOUNT OF INSPECTIONAL SERVICES RENDERED WITHIN LESS THAN ONE HOUR AFTER THE CLOSING HOUR OF THE PORT (12:00 P.M.) AND THE END OF THE INSPECTOR'S REGULAR TOUR OF DUTY. ALSO, IN YOUR LETTER OF MAY 28, 1959, TO THE COLLECTOR OF CUSTOMS, DULUTH, MINNESOTA, A COPY OF WHICH ACCOMPANIED YOUR LETTER, YOU QUESTIONED THE LEGALITY OF PAYING OVERTIME COMPENSATION OR THE ALLOWANCE OF COMPENSATORY TIME OFF UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, FOR THE EXTRA SERVICES.

IN OUR LETTER OF NOVEMBER 6, 1959, A COPY OF WHICH EVIDENTLY HAS BEEN FURNISHED YOU, WE ADVISED SENATOR HUMPHREY OF OUR VIEW THAT NO OVERTIME EXTRA COMPENSATION IS PAYABLE UNDER THE 1911 ACT, AS AMENDED, WHEN A CUSTOMS INSPECTOR IS REQUIRED TO REMAIN ON DUTY FOR LESS THAN ONE HOUR AFTER THE END OF HIS REGULAR TOUR OF DUTY. SINCE THE STATUTE AS CONSTRUED IN UNITED STATES V. MYERS, 320 U.S. 561, EXPRESSLY PROVIDES THAT THE INSPECTOR MUST HAVE REMAINED ON DUTY FOR AT LEAST ONE HOUR AFTER THE END OF HIS REGULAR TOUR OF DUTY BEFORE ENTITLEMENT TO THE EXTRA COMPENSATION ARISES, WE MUST ADHERE TO THAT VIEW.

NEITHER THE 1911 ACT, AS AMENDED, NOR THE PROVISIONS OF SECTION 451 OF THE TARIFF ACT OF 1930, AS AMENDED, 19 U.S.C. 1451, RELATING TO BONDS TO INSURE PAYMENT OF THE EXTRA COMPENSATION OF INSPECTIONAL PERSONNEL, REQUIRES THE CARRIER TO PAY THE GOVERNMENT ANY AMOUNT ON ACCOUNT OF INSPECTIONAL SERVICES UNLESS THERE IS AN OBLIGATION TO PAY THE INSPECTOR. IT FOLLOWS THAT WHEN THE SERVICES RENDERED ARE NOT SUCH AS TO ENTITLE THE INSPECTOR TO EXTRA COMPENSATION UNDER THE 1911 ACT, AS AMENDED, NO OBLIGATION RESTS ON THE CARRIER TO PAY.

SECTION 201 OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945, AS AMENDED BY SECTION 203 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1109, PROVIDES FOR THE PAYMENT OF OVERTIME COMPENSATION FOR WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK; AND SECTION 202 (A) OF THE 1945 ACT, AS AMENDED BY SECTION 204 OF THE 1954 ACT, AUTHORIZES THE GRANTING OF COMPENSATORY TIME OFF IN LIEU OF PAYMENT OF OVERTIME COMPENSATION FOR IRREGULAR OR OCCASIONAL OVERTIME WORK. SECTION 601 OF THE 1945 ACT, 59 STAT. 302, UNDER THE HEADING,"EFFECT ON EXISTING LAWS AFFECTING CERTAIN INSPECTIONAL GROUPS," PROHIBITS PAYMENT OF SUCH OVERTIME COMPENSATION ONLY IF THE SERVICES COVERED ALSO WOULD FORM THE BASIS FOR EXTRA COMPENSATION UNDER THE 1911 ACT, AS AMENDED. SINCE THE SERVICES HERE IN QUESTION APPEAR TO HAVE MET THE TERMS AND CONDITIONS OF THE 1945 ACT, AS AMENDED, THE ADMINISTRATIVE APPLICATION OF THOSE PROVISIONS APPEARS TO HAVE BEEN PROPER. WE ARE NOT AWARE OF ANY PROVISION OF LAW WHICH REQUIRES A CARRIER TO REIMBURSE THE GOVERNMENT FOR SUCH OVERTIME COMPENSATION PAID TO INSPECTIONAL EMPLOYEES FOR WORK ..END :