B-188722, OCT 4, 1977

B-188722, OCT 4, 1977

PRECIS - UNAVAILABLE

MR. JOHN A. HURLEY:

THIS IS IN ANSWER TO YOUR LETTER (REFERENCE: FIS-4-12 A:A:O:RV JRF) REQUESTING THAT RELIEF BE GRANTED IN THE AMOUNT OF $1,488.74 REPRESENTING A SHORTAGE IN THE COLLECTION ACCOUNT OF THE REGIONAL COMMISSIONER OF CUSTOMS, REGION 1, BOSTON MASSACHUSETTS.

THE INFORMATION SUBMITTED INDICATES THAT ON JUNE 3, 1973, AN UNCERTIFIED COMPANY CHECK IN THE AMOUNT OF $1,488.74 WAS ISSUED TO THE DISTRICT DIRECTOR, UNITED STATES CUSTOMS SERVICE, BUFFALO, NEW YORK, BY AERONAUTS INTERNATIONAL NIAGARA FALLS, INC., ACTING AS AGENT FOR AERONAUTS INTERNATIONAL TRAVEL CLUB OF CLEVELAND. THE CHECK WAS ACCEPTED FOR OVERTIME SERVICES RENDERED BY EMPLOYEES OF THE UNITED STATES CUSTOMS SERVICE FOR CHECKING IN A CHARTERED FLIGHT ARRIVAL AT NIAGARA FALLS INTERNATIONAL AIRPORT ON JUNE 3, 1973. THE CHECK WAS RETURNED MARKED "PAYMENT STOPPED" AND HAS REMAINED UNPAID TO DATE.

EXTENSIVE EFFORTS WERE MADE BY THE REGION TO OBTAIN PAYMENT. HOWEVER, BY FEBRUARY OF 1974 BOTH THE CELVELAND FIRM OF AERONAUTS INTERNATIONAL AND THE NIAGARA FALLS LOCAL OFFICE WERE REPORTED TO BE OUT OF BUSINESS. MARCH 25, 1975, THE REGIONAL COUNSEL OF THE CUSTOMS SERVICE DETERMINED THAT THE CLAIM BE CLOSED AS UNCOLLECTIBLE, SINCE IT APPEARED THAT RECOVERY, IF ANY, WOULD BE MINIMAL, AND THE COST OF FURTHER INVESTIGATION AND REFERRAL TO THE UNITED STATES ATTORNEY WOULD EXCEED THE AMOUNT OF THE CLAIM.

CUSTOMS REGULATIONS IN EFFECT PRECLUDE ACCEPTANCE OF AN UNCERTIFIED CHECK AS REIMBURSEMENT FOR OVERTIME SERVICES UNLESS THE APPLICANT HAS POSTED A CASH DEPOSIT OR BOND OR UNLESS A CUSTOMS DISTRICT DIRECTOR HAS APPROVED PAYMENT BY UNCERTIFIED CHECK. SEE 19 C.F.R. 24.1(A)(3), 24.16(A), (C). THE RECORD INDICATES THAT THE CUSTOMS EMPLOYEES AT THE NIAGARA FALLS AIRPORT MADE AN "ON THE SPOT" DETERMINATION TO ACCEPT THE UNCERTIFIED CHECK BECAUSE THE AERONAUTS INTERNATIONAL CHARTER FLIGHT ARRIVED AT THE NIAGARA FALLS AIRPORT WITH MANY PASSENGERS ON BOARD.

YOU HAVE DETERMINED THAT THE SHORTAGE IN THE COLLECTION ACCOUNT BASED ON NONPAYMENT OF THIS CHECK OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE REGIONAL COMMISSIONER OR ANY EMPLOYEE OF HIS OFFICE. THEREFORE, YOU REQUEST THAT OUR OFFICE RELIEVE THE REGIONAL COMMISSIONER FOR THE $1,488.74 SHORTAGE PURSUANT TO THE PROVISIONS OF 31 U.S.C. 82A-1 (1970). SECTION 82A-1 AUTHORIZES US TO GRANT RELIEF TO AN ACCOUNTABLE OFFICER "CHARGED WITH RESPONSIBILITY ON ACCOUNT OF PHYSICAL LOSS OR DEFICIENCY OF GOVERNMENT FUNDS, VOUCHERS, RECORDS, CHECKS, SECURITIES, OR PAPERS IN HIS CHARGE" UPON OUR CONCURRENCE IN DETERMINATIONS BY THE AGENCY HEAD (OR HIS DELEGATEE):

"* * * (1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE SUCH OFFICER OR AGENT WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES, OR THAT SUCH LOSS OR DEFICIENCY OCCURRED BY REASON OF THE ACT OR OMISSION OF A SUBORDINATE OF SUCH OFFICER OR AGENT; AND (2) THAT SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER OR AGENT. * * * "

APPARENTLY IT IS THE PRACTICE OF THE CUSTOM SERVICE TO HOLD REGIONAL COMMISSIONERS RESPONSIBLE FOR COLLECTION ACCOUNTS, INCLUDING LOSSES IN THOSE ACCOUNTS DUE TO THE NONPAYMENT OF CHECKS RECEIVED. HOWEVER, IT IS CLEAR THAT THE INSTANT LOSS DID NOT RESULT FROM NEGLIGENCE ON THE PART OF THE REGIONAL COMMISSIONER. ACCORDINGLY, WE CONCUR IN YOUR DETERMINATIONS AND GRANT THE RELIEF REQUESTED.