B-60339, SEPTEMBER 30, 1946, 26 COMP. GEN. 220

B-60339, SEPTEMBER 30, 1946, 26 COMP. GEN. 220

COMPENSATION - OVERTIME - IMMIGRATION AND NATURALIZATION SERVICE EMPLOYEES - APPROPRIATION AVAILABILITY THE ACT OF AUGUST 22, 1940, MAKING THE APPROPRIATION (FOR SALARIES) CREDITED WITH AMOUNTS COLLECTED FROM TRANSPORTATION INTERESTS AS EXTRA COMPENSATION FOR OVERTIME SERVICE OF IMMIGRATION AND NATURALIZATION SERVICE INSPECTORS AND EMPLOYEES PURSUANT TO THE ACT OF MARCH 2, 1931, AVAILABLE FOR PAYMENT OF "SUCH COMPENSATION," DOES NOT AFFECT THE AVAILABILITY OF THE CURRENT SALARIES AND EXPENSES APPROPRIATION OF THE SERVICE FOR PAYMENT OF EXTRA COMPENSATION FOR OVERTIME SERVICE AS PROVIDED BY THE 1931 ACT, EVEN THOUGH SUCH EXTRA COMPENSATION MAY NOT BE COLLECTIBLE FROM THE TRANSPORTATION INTEREST BY REASON OF THE PROVISIONS OF SAID ACT EXEMPTING CERTAIN INTERESTS FROM LIABILITY THEREFOR.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, SEPTEMBER 30, 1946:

I HAVE YOUR LETTER OF AUGUST 28, 1946 (A3-5), AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO WHETHER THE APPROPRIATION " SALARIES AND EXPENSES, IMMIGRATION AND NATURALIZATION SERVICE" INCLUDED IN THE DEPARTMENTS OF STATE, JUSTICE, COMMERCE AND THE JUDICIARY APPROPRIATION ACT, 1947, IS LEGALLY AVAILABLE FOR THE PAYMENT OF OVERTIME COMPENSATION FOR OVERTIME SERVICE PERFORMED PURSUANT TO THE ACT OF MARCH 2, 1931, 46 STAT. 1467, WHERE THE AMOUNTS REQUIRED THEREFOR ARE NOT LEGALLY COLLECTIBLE FROM TRANSPORTATION INTERESTS.

IN A DECISION DATED APRIL 22, 1931 (10 COMP. GEN. 488), IT WAS HELD THAT PAYMENTS OF THE NATURE REFERRED TO ABOVE WERE PROPERLY CHARGEABLE TO THE APPROPRIATION ITEM " REGULATING IMMIGRATION," ACT OF APRIL 18, 1930, 46 STAT. 216, ON THE GROUND THAT SUCH ITEM PROVIDED FOR "SALARIES AND EXPENSES OF ALL OFFICERS, CLERKS, AND EMPLOYEES APPOINTED TO ENFORCE SAID LAWS.' HOWEVER, SINCE THAT TIME THE ADMINISTRATIVE PRACTICE HAS BEEN TO PAY EXTRA COMPENSATION UNDER THE ACT OF MARCH 2, 1931, ONLY IN THOSE CASES WHERE COLLECTION OF THE AMOUNT INVOLVED WAS MADE FROM THE TRANSPORTATION INTERESTS AND DEPOSITED TO THE CREDIT OF THE APPROPRIATION. THIS PRACTICE WAS COVERED BY THE ACT OF AUGUST 22, 1940, PUBLIC, NO. 770, 76TH CONGRESS, PROVIDING AS FOLLOWS:

"BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT MONEYS COLLECTED ON OR AFTER JULY 1, 1941, AS EXTRA COMPENSATION FOR OVERTIME SERVICE OF INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE PURSUANT TO THE ACT OF MARCH 2, 1931 (46 STAT. 1467), SHALL BE DEPOSITED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE APPROPRIATION FOR THE PAYMENT OF SALARIES, FIELD PERSONNEL OF THE IMMIGRATION AND NATURALIZATION SERVICE, AND THE APPROPRIATION SO CREDITED SHALL BE AVAILABLE FOR THE PAYMENT OF SUCH COMPENSATION.'

THERE IS SOME QUESTION AS TO WHETHER THE PHRASE "THE APPROPRIATION SO CREDITED SHALL BE AVAILABLE FOR THE PAYMENT OF SUCH COMPENSATION" LIMITS THE AVAILABILITY OF THE APPROPRIATION TO THE PAYMENT OF EXTRA COMPENSATION FOR OVERTIME ONLY IN THOSE CASES WHERE MONEYS THEREFOR HAVE BEEN COLLECTED FROM TRANSPORTATION INTERESTS. A DECISION OF MAY 6, 1946, OF THE UNITED STATES COURT OF CLAIMS HOLDS THAT THE GOVERNMENT IS LIABLE FOR PAYMENT OF OVERTIME COMPENSATION TO INSPECTING EMPLOYEES UNDER THE ACT OF MARCH 2, 1931, WHERE TRANSPORTATION INTERESTS ARE EXEMPT. BEFORE INAUGURATING PAYMENTS OF EXTRA COMPENSATION IN ACCORDANCE WITH THIS DECISION, IT IS DESIRED THAT THE AVAILABILITY OF THE CURRENT APPROPRIATION BE DETERMINED BY YOUR OFFICE.

THE ACT OF MARCH 2, 1931, 46 STAT. 1467, PROVIDES:

THAT THE SECRETARY OF LABOR SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE 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 DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES, OR OTHER VEHICLES, ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT BY WATER, LAND, OR AIR, SUCH RATES TO BE FIXED ON A 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 AND HOLIDAY DUTY; IN THOSE PORTS WHERE THE CUSTOMARY WORKING HOURS ARE OTHER THAN THOSE HERETOFORE MENTIONED, THE SECRETARY OF LABOR IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF IMMIGRATION EMPLOYEES SO AS TO AGREE WITH THE PREVAILING WORKING HOURS IN SAID PORTS, BUT NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED IN ANY MANNER TO AFFECT OR ALTER THE LENGTH OF A WORKING DAY FOR IMMIGRATION EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED.

SEC. 2. THE SAID EXTRA COMPENSATION SHALL BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT TO THE SECRETARY OF LABOR, WHO SHALL PAY THE SAME TO THE SEVERAL IMMIGRATION OFFICERS AND EMPLOYEES ENTITLED THERETO AS PROVIDED IN THIS ACT. SUCH EXTRA COMPENSATION SHALL BE PAID IF SUCH OFFICERS OR EMPLOYEES HAVE BEEN ORDERED TO REPORT FOR DUTY AND HAVE SO REPORTED, WHETHER THE ACTUAL INSPECTION OR EXAMINATION OF PASSENGERS OR CREW TAKES PLACE OR NOT: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO THE INSPECTION AT DESIGNATED PORTS OF ENTRY OF PASSENGERS ARRIVING BY INTERNATIONAL FERRIES, BRIDGES, OR TUNNELS, OR BY AIRCRAFT, RAILROAD TRAINS, OR VESSELS ON THE GREAT LAKES AND CONNECTING WATERWAYS, WHEN OPERATING ON REGULAR SCHEDULES.

IN 10 COMP. GEN. 487, AT PAGE 489, IT WAS STATED:

3. THE GOVERNMENT IS NOT LIABLE UNDER THIS STATUTE FOR ANY OVERTIME OTHER THAN THAT CAUSED BY THE PERFORMANCE OF DUTIES IN CONNECTION WITH THE EXAMINATIONS AND LANDINGS REFERRED TO IN SECTION 1, BUT WHERE SAID DUTIES INVOLVE THE INSPECTION AT DESIGNATED PORTS OF ENTRY OF PASSENGERS ARRIVING BY INTERNATIONAL FERRIES, BRIDGES, OR TUNNELS, OR BY AIRCRAFT, RAILROAD TRAINS, OR VESSELS ON THE GREAT LAKES AND CONNECTING WATERWAYS, WHEN OPERATING ON REGULAR SCHEDULES, SO THAT, UNDER SECTION 2 OF THE STATUTE, THE EXTRA COMPENSATION FOR THE OVERTIME IS NOT TO BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF ANY VESSEL OR OTHER CONVEYANCE, THE GOVERNMENT IS LIABLE FOR PAYMENT FOR THE OVERTIME. HOWEVER, UNDER ALL OTHER CIRCUMSTANCES, NO ADDITIONAL COMPENSATION MAY BE PAID FOR THE OVERTIME IN EXCESS OF THE AMOUNT COLLECTED AS PROVIDED FOR IN THE FIRST SENTENCE OF SECTION 2 OF THE STATUTE.

SECTION 5 OF THE PERMANENT APPROPRIATION REPEAL ACT, 48 STAT. 1228, ABOLISHED THE APPROPRIATION ACCOUNT " EXTRA COMPENSATION FOR OVERTIME, IMMIGRATION SERVICE" AND REQUIRED ALL RECEIPTS TO BE COVERED INTO THE UNITED STATES TREASURY BUT AUTHORIZED ADDITIONAL APPROPRIATIONS TO COVER SUCH EXPENDITURES. THE ACT OF AUGUST 22, 1940, 54 STAT. 858, QUOTED IN YOUR SUBMISSION, ELIMINATED THE REQUIREMENT THAT SUCH RECEIPTS BE COVERED INTO MISCELLANEOUS RECEIPTS AND DIRECTED THEIR DEPOSIT TO THE CREDIT OF THE APPROPRIATION. IT WILL BE NOTED THAT THE DECISION PUBLISHED IN 10 COMP. GEN. 487, HELD THAT OVERTIME WAS PAYABLE FROM THE APPROPRIATION THERE CONSIDERED EVEN THOUGH NOT CHARGEABLE TO A MASTER, OWNER, AGENT OR CONSIGNEE OF ANY VESSEL OR OTHER CONVEYANCE UNDER THE PROVISO TO SECTION 2 OF THE ACT OF MARCH 2, 1931, SUPRA. IN THE CASES OF RENNER V. UNITED STATES AND KRUPP V. UNITED STATES, DECIDED BY THE COURT OF CLAIMS OF THE UNITED STATES ON MAY 6, 1946, NOS. 46338 AND 46355, IT WAS HELD THAT IMMIGRATION INSPECTORS WERE ENTITLED TO OVERTIME COMPENSATION AS PROVIDED FOR IN THE ABOVE-QUOTED SECTION 1 OF THE ACT OF MARCH 2, 1931, ON ACCOUNT OF SUNDAY AND HOLIDAY WORK, IRRESPECTIVE OF WHETHER OVERTIME COMPENSATION WAS COLLECTED FROM A THIRD PARTY.

THE ABOVE-QUOTED ACT OF AUGUST 22, 1940, DOES NOT LIMIT THE PAYMENT OF OVERTIME COMPENSATION TO THE AMOUNTS COLLECTED IN ACCORDANCE WITH SECTION 2 OF THE ACT OF MARCH 2, 1931, BUT MERELY ADDS THE AMOUNT SO COLLECTED TO THE APPROPRIATION FOR THE PAYMENT OF SALARIES OF FIELD PERSONNEL OF THE IMMIGRATION AND NATURALIZATION SERVICE. SUCH APPROPRIATION FOR THE FISCAL YEAR 1947 AS CONTAINED IN THE ACT OF JULY 5, 1946, PUBLIC LAW 490, 79TH CONGRESS, 60 STAT. 462, IS EXPRESSLY AVAILABLE ,FOR ALL EXPENSES, NOT OTHERWISE PROVIDED FOR, NECESSARY FOR THE ADMINISTRATION AND ENFORCEMENT OF THE LAWS RELATING TO IMMIGRATION, NATURALIZATION, AND ALIEN REGISTRATION * * *.'

ACCORDINGLY, YOU ARE ADVISED THAT THE APPROPRIATION FOR SALARIES AND EXPENSES, IMMIGRATION AND NATURALIZATION SERVICE, IS AVAILABLE FOR THE PAYMENT OF EXTRA COMPENSATION TO INSPECTORS AND EMPLOYEES OF THE SAID SERVICES AS PROVIDED BY THE ACT OF MARCH 2, 1931, EVEN THOUGH SUCH EXTRA COMPENSATION MAY NOT BE COLLECTIBLE FROM THE TRANSPORTATION INTERESTS SPECIFIED IN THE PROVISO TO SECTION 2 OF SAID ACT.