B-171781, APR 5, 1971, 50 COMP GEN 703

B-171781, APR 5, 1971, 50 COMP GEN 703

COMPENSATION - OVERTIME - INSPECTIONAL SERVICE EMPLOYEES - SKYJACKING PREVENTION CUSTOMS INSPECTORS WHO CONDUCT PREDEPARTURE INSPECTION OF AIR PASSENGERS BOUND FOR OVERSEAS AS A DETERRENT TO SKYJACKING IN ACCORDANCE WITH A PRESIDENTIAL PROGRAM ARE NOT ENTITLED TO THE PAYMENT OF OVERTIME COMPENSATION UNDER 19 U.S.C. 267, BUT RATHER UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 (5 U.S.C. 5542), EVEN THOUGH THE INSPECTIONS ARE NECESSARY FOR THE SAFETY OF PASSENGERS AND FOR THE PROTECTION OF AIR CARRIERS AGAINST AIR PIRACY, AS THE INSPECTION DUTIES INVOLVED WOULD NOT BE THE CUSTOM DUTIES PRESCRIBED BY 19 U.S.C. 267, WHICH ARE DUTIES PERFORMED IN CONNECTION WITH LADING ON SUNDAYS, HOLIDAYS, OR AT NIGHT OF MERCHANDISE OR BAGGAGE ENTERED FOR TRANSPORTATION UNDER BOND OR FOR EXPORTATION WITH THE BENEFIT OF DRAWBACK, OR OTHER MERCHANDISE OR BAGGAGE REQUIRED TO BE LADEN UNDER CUSTOMS SUPERVISION.

TO THE SECRETARY OF THE TREASURY, APRIL 5, 1971:

THIS IS IN REPLY TO LETTER OF JANUARY 25, 1971, FROM THE ASSISTANT SECRETARY (ENFORCEMENT AND OPERATIONS), REFERENCE CC 191.11 G, REQUESTING OUR DECISION AS TO WHETHER CUSTOMS INSPECTORS MAY RECEIVE OVERTIME AT THE RATE SPECIFIED IN SECTION 5 OF THE ACT OF FEBRUARY 13, 1911, AS AMENDED, 19 U.S.C. 267, WHEN THEY ARE ASSIGNED TO CONDUCT PREDEPARTURE INSPECTION OF PASSENGERS EMBARKING ON SELECTED AIRCRAFT BOUND FOR OVERSEAS DESTINATIONS IN ACCORDANCE WITH PART OF A PRESIDENTIAL PROGRAM TO DEAL WITH THE PROBLEM OF AIR PIRACY. THE INSPECTION IS CARRIED OUT PURSUANT TO A MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENT OF THE TREASURY AND THE DEPARTMENT OF TRANSPORTATION.

THE LETTER OF THE ASSISTANT SECRETARY READS IN PART AS FOLLOWS:

CUSTOMS HAS IN THE PAST PAID 1911 ACT OVERTIME, AND OBTAINED REIMBURSEMENT THEREFOR, WHEN OVERTIME NIGHT, SUNDAY OR HOLIDAY SERVICES WERE PERFORMED IN CONNECTION WITH THE CLEARANCE OF VESSELS AND AIRCRAFT PURSUANT TO THE PROVISIONS OF 46 U.S.C. 91 AND 49 U.S.C. 1509. ALSO, IT APPEARS THAT THE SERVICES IN CONNECTION WITH PREDEPARTURE INSPECTIONS MAY PROPERLY BE REQUESTED BY A GOVERNMENT AGENCY AS WELL AS BY THE PUBLIC, SINCE HERETOFORE CUSTOMS HAS OBTAINED REIMBURSEMENT FROM THE DEPARTMENT OF COMMERCE APPROPRIATION FOR INSPECTIONAL SERVICES IN CONNECTION WITH THE EXPORT CONTROL REGULATIONS (15 CFR 368.1, ET SEQ.). THE FEDERAL AVIATION AGENCY HAS AGREED IN GENERAL TO REIMBURSE THE BUREAU OF CUSTOMS OUT OF ITS APPROPRIATED FUNDS FOR PREDEPARTURE INSPECTIONS OF AIR PASSENGERS AND THEIR BAGGAGE (ALTHOUGH THEY HAVE NOT BEEN ASKED SPECIFICALLY TO AGREE TO PAYMENTS FOR OVERTIME SERVICES AT 1911 ACT RATES).

THE ACTUAL PREDEPARTURE INSPECTIONAL OPERATION PERFORMED BY THE INDIVIDUAL INSPECTOR IS ESSENTIALLY SIMILAR TO THAT PERFORMED ON PASSENGERS AND BAGGAGE ARRIVING FROM OVERSEAS. AT TIMES, THE SAME CUSTOMS OFFICER PERFORMING INSPECTIONAL SERVICES AT NIGHTS OR ON SUNDAYS OR HOLIDAYS FOR PASSENGERS AND BAGGAGE ON FLIGHTS ARRIVING FROM OVERSEAS MAY ALSO BE DETAINED TO PERFORM INSPECTIONAL SERVICES ON A DEPARTING FLIGHT AS A DETERRENT TO SKYJACKING; AT OTHER TIMES, ONE INSPECTOR MAY BE ASSIGNED DURING THE ENTIRE OVERTIME PERIOD TO OVERSEAS ARRIVALS WHILE ANOTHER PERFORMS PREDEPARTURE INSPECTIONS.

ALTHOUGH 19 U.S.C. 267 DOES NOT BY ITS OWN TERMS LIMIT ITS APPLICATION TO MERCHANDISE, PASSENGERS, OR CARGO ARRIVING FROM OVERSEAS, OUR DECISION HAS BEEN REQUESTED SINCE THE IMPLICATION IN CERTAIN OF OUR PRIOR DECISIONS HAS BEEN THAT PURELY ENFORCEMENT FUNCTIONS MAY, PERHAPS, NOT BE SUBJECT TO THE RATES IN SUCH STATUTE. THE ASSISTANT SECRETARY ALSO RETURNED THE CLAIM OF MR. LEBRON H. HERRING (Z-2437593), WHO PERFORMED OVERTIME WORK IN CONNECTION WITH THE AIR SECURITY PROGRAM, FOR THE DIFFERENCE IN OVERTIME PAID HIM UNDER THE PROVISIONS OF 5 U.S.C. 5542 AND THAT PAYABLE UNDER 19 U.S.C. 267, WHICH WAS FORWARDED TO THE BUREAU OF CUSTOMS BY OUR CLAIMS DIVISION.

SECTION 267 OF TITLE 19 READS IN PART AS FOLLOWS:

THE SECRETARY OF THE TREASURY SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS, STOREKEEPERS, WEIGHERS, AND OTHER CUSTOMS OFFICERS AND EMPLOYEES WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF FIVE O'CLOCK POST MERIDIAN AND EIGHT O'CLOCK ANTEMERIDIAN, OR ON SUNDAYS OR HOLIDAYS, TO PERFORM SERVICES IN CONNECTION WITH THE LADING OR UNLADING OF CARGO, OR THE LADING OF CARGO OR MERCHANDISE FOR TRANSPORTATION IN BOND OR FOR EXPORTATION IN BOND OR FOR EXPORTATION WITH BENEFIT OF DRAWBACK, OR IN CONNECTION WITH THE RECEIVING OR DELIVERY OF CARGO ON OR FROM THE WHARF, OR IN CONNECTION WITH THE UNLADING, RECEIVING, OR EXAMINATION OF PASSENGERS' BAGGAGE SUCH RATES TO BE FIXED ON THE BASIS OF ONE-HALF DAY'S ADDITIONAL PAY FOR EACH TWO HOURS OR FRACTION THEREOF OF AT LEAST ONE HOUR THAT THE OVERTIME EXTENDS BEYOND FIVE O'CLOCK POST MERIDIAN (BUT NOT TO EXCEED TWO AND ONE-HALF DAYS' PAY FOR THE FULL PERIOD FROM FIVE O'CLOCK POST MERIDIAN TO EIGHT O'CLOCK ANTEMERIDIAN), AND TWO ADDITIONAL DAYS' PAY FOR SUNDAY OR HOLIDAY DUTY.

SECTIONS 1451 AND 1452 OF TITLE 19 PROVIDE FOR THE PAYMENT OF OVERTIME TO CUSTOMS OFFICERS AND EMPLOYEES IN ACCORDANCE WITH THE PROVISIONS OF 19 U.S.C. 267 WHEN THEY ARE ASSIGNED TO DUTY IN CONNECTION WITH THE LADING ON SUNDAYS, HOLIDAYS, OR AT NIGHT OF MERCHANDISE OR BAGGAGE ENTERED FOR TRANSPORTATION UNDER BOND OR FOR EXPORTATION WITH THE BENEFIT OF DRAWBACK, OR OTHER MERCHANDISE OR BAGGAGE REQUIRED TO BE LADEN UNDER CUSTOMS SUPERVISION.

WHILE THE INSPECTION PROCEDURE HERE INVOLVED IS NECESSARY FOR THE SAFETY OF AIR PASSENGERS AND FOR THE PROTECTION OF AIR CARRIERS AGAINST AIR PIRACY, IT IS NOT MADE INCIDENT TO THE LADING OF MERCHANDISE OR BAGGAGE FOR TRANSPORTATION UNDER BOND OR FOR EXPORTATION WITH THE BENEFIT OF DRAWBACK, OR OTHER MERCHANDISE OR BAGGAGE REQUIRED TO BE LADEN UNDER CUSTOMS SUPERVISION. IN OTHER WORDS SUCH DUTIES ARE NOT REGARDED AS PERTAINING TO CUSTOMS FUNCTIONS REQUIRED BY LAW. THEREFORE, IT IS OUR VIEW THAT CUSTOMS INSPECTORS ARE NOT ENTITLED TO OVERTIME COMPENSATION UNDER 19 U.S.C. 267 WHEN THEY PERFORM INSPECTIONS UNDER THE PRESIDENTIAL PROGRAM TO DEAL WITH THE AIR PIRACY PROBLEM. RATHER, ANY OVERTIME COMPENSATION WOULD BE PAYABLE UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, NOW 5 U.S.C. 5542.

MR. HERRING IS BEING FURNISHED A COPY OF THIS DECISION WITH ADVICE THAT HIS CLAIM IS DENIED IN ACCORDANCE THEREWITH.