B-140891, NOV. 20, 1959

B-140891, NOV. 20, 1959

TO THE ATTORNEY GENERAL:

ON SEPTEMBER 28, 1959, REFERENCE CO 851.1, THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION REQUESTED OUR DECISION CONCERNING THE LEGALITY OF AN ORDER EFFECTIVE MAY 30, 1959, TO DISCONTINUE CHARGES FOR OVERTIME, SUNDAY, AND HOLIDAY INSPECTIONS OF PERSONS ARRIVING IN THE UNITED STATES BY NON-COMMERCIAL AIRCRAFT, NON-COMMERCIAL VESSELS, AND BY BUS ON HIGHWAYS. ALSO, THE COMMISSIONER REQUESTED OUR DECISION REGARDING THE LEGALITY OF THE SERVICE'S CHARGING PRACTICES CONCERNING ALL OF THE VARIOUS OTHER TYPES OF ARRIVAL; THE METHOD OF PRORATING CHARGES BETWEEN CARRIERS; AND THE METHOD OF ESTABLISHING DAILY TOURS OF DUTY FOR INSPECTION PERSONNEL.

SECTION 1 AND 2 OF THE ACT OF MARCH 2, 1931, 5 U.S.C. 342C, AND 342D, PROVIDE:

"THE ATTORNEY GENERAL SHALL FIX A REASONABLE RATE OF EXTRA COMPENSATION FOR OVERTIME SERVICES OF IMMIGRATION OFFICERS AND EMPLOYEES OF THE IMMIGRATION AND NATURALIZATION 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 ATTORNEY GENERAL IS VESTED WITH AUTHORITY TO REGULATE THE HOURS OF SUCH 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 SUCH EMPLOYEES OR THE OVERTIME PAY HEREIN FIXED.

"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 ATTORNEY GENERAL, WHO SHALL PAY THE SAME TO THE SEVERAL IMMIGRATION OFFICERS AND EMPLOYEES ENTITLED THERETO AS PROVIDED IN SECTION 342C OF THIS TITLE. 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 JUSTIFICATION OF THE ORDER TO DISCONTINUE EXTRA-COMPENSATION CHARGES TO OWNERS OF PRIVATE OR NON-COMMERCIAL AIRCRAFT, THE COMMISSIONER PRESENTS THE FOLLOWING, STATING THAT THESE REMARKS APPLY ALSO TO NON-COMMERCIAL VESSELS:

"IN THE COMMITTEE REPORT PRECEDING THE ENACTMENT OF THE ACT OF MARCH 2, 1931, IT WAS STATED: ,IT IS THE OPINION OF THE COMMITTEE THAT THE PRESENT BILL IS JUSTIFIED BY THE PRINCIPLE THAT TRANSPORTATION COMPANIES SHOULD REIMBURSE THE GOVERNMENT FOR SPECIAL SERVICES AT UNUSUAL HOURS THAT ADVANCE THEIR OWN INTERESTS.' (SENATE REPORT NO. 1720, 71ST CONG., 3RD SESS.)

"A MEMORANDUM BY GEORGE J. HARRIS, THE ACTING COMMISSIONER GENERAL OF IMMIGRATION, DATED MAY 22, 1931, STATES,"ASSESSMENTS FOR OVERTIME WILL NOT BE MADE AGAINST VEHICLES NOT CARRYING PASSENGERS FOR HIRE.' ON THE SAME DATE MR. HARRIS ANSWERED AS FOLLOWS TO THE QUESTION OF CHARGING OFF- SCHEDULE AIRCRAFT, WHICH HE OBVIOUSLY ASSUMED TO BE COMMERCIAL AIRCRAFT: "AIRCRAFT, LIKE OTHER CARRIERS, ARE CHARGEABLE FOR OVERTIME WHEN NOT ARRIVING ON REGULAR SCHEDULE.' BY USING THE TERMS "PASSENGERS FOR HIRE," "CARRIERS," AND "REGULAR SCHEDULES," MR. HARRIS CLEARLY INDICATED THAT HE DID NOT BELIEVE THAT THE REIMBURSEMENT PROVISIONS OF THE 1931 ACT APPLIED TO NON-COMMERCIAL ARRIVALS. ALTHOUGH THE PRACTICE OF CHARGING PRIVATE AIRCRAFT DID DEVELOP AFTER THIS TIME IT APPEARS THAT THIS WAS CAUSED BY THE FAILURE OF THE SERVICE TO PAY EXTRA COMPENSATION FOR INSPECTION DUTIES UNLESS THE GOVERNMENT WAS REIMBURSED THEREFOR.

"THE POSITION OF THE SERVICE THAT THE 1931 ACT APPLIED ONLY TO COMMERCIAL CARRIERS IS DEMONSTRATED IN THE COURT OF CLAIMS CASE, TAYLOR V. U.S. 114 CT.CLS. 59. DONALD TAYLOR, AN IMMIGRANT INSPECTOR ASSIGNED TO FOOT TRAFFIC DUTIES, SUED FOR OVERTIME PAY AT 1931 ACT RATES. THE SERVICE CONTENDED THAT HE WAS NOT ENTITLED TO THESE RATES AS HE WAS NOT INSPECTING PASSENGERS OF "COMMON CARRIERS.' THE COURT ON JUNE 6, 1949, HELD THAT EXTRA COMPENSATION UNDER THE 1931 ACT MUST BE PAID WITHOUT REGARD TO REIMBURSEMENT. THE QUESTION OF THE LIABILITY OF NON-COMMERCIAL AIRCRAFT UNDER THE ACT HAS NOT BEEN LITIGATED.

"TWO DECISIONS OF THE COMPTROLLER GENERAL, A-36167, JULY 14, 1931, AND 27 CG 102, AUGUST 19, 1947, SPEAK OF "TRANSPORTATION INTERESTS' LIABILITY" AND "CARRIERS' LIABILITY" INDICATING AN ASSUMPTION THAT LIABILITY ARISES ONLY WHEN COMMERCIAL CRAFT ARE INVOLVED.

"SECTION 2 IS THE PORTION OF THE ACT WHICH PRESCRIBES REIMBURSEMENT WITH SPECIFIED EXEMPTIONS. IT PROVIDES THAT EXTRA COMPENSATION SHALL BE PAID BY THE "MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE.' ORDINARILY WE DO NOT CONTEMPLATE A RELATIONSHIP OF MASTER, OWNER, AGENT OR CONSIGNEE IN THE CASE OF NON-COMMERCIAL CRAFT SUCH AS A PERSONALLY OWNED AIRCRAFT OWNED AND OPERATED FOR THE PERSONAL USE OF THE OWNER IN THE SAME MANNER AS AN AUTOMOBILE. THE WORDS "SUCH VESSEL OR OTHER CONVEYANCE" REFER TO THE "EXAMINATION AND LANDING OF PASSENGERS AND CREWS OF STEAMSHIPS, TRAINS, AIRPLANES AND OTHER VEHICLES" PRESCRIBED IN SECTION 1. HERE AGAIN, WE DO NOT ORDINARILY THINK OF "PASSENGERS AND CREWS" IN CONNECTION WITH A PERSONALLY OWNED CONVEYANCE.

"SPECIFICALLY EXEMPT FROM THE REIMBURSEMENT REQUIREMENTS ARE "AIRCRAFT, RAILROAD TRAINS, OR VESSELS ON THE GREAT LAKES AND CONNECTING WATERWAYS, WHEN OPERATING ON REGULAR SCHEDULES.' THE QUALIFYING WORDS "WHEN OPERATING ON REGULAR SCHEDULES" NECESSARILY CONTEMPLATE COMMERCIAL CARRIERS AND NOT PERSONALLY OWNED CRAFT THAT ARE NOT SUSCEPTIBLE OF OPERATING ON REGULAR SCHEDULES.

"ON THE BASIS OF THE ACTING COMMISSIONER GENERAL'S INSTRUCTION OF MAY 22, 1931 (REFERRED TO ABOVE), THE SERVICE DOES NOT REQUIRE REIMBURSEMENT FROM PRIVATE AUTOMOBILES NOTWITHSTANDING THE LACK OF A SPECIFIC EXEMPTION AS TO NON-COMMERCIAL VEHICLES IN THE ACT, AND NO VALID BASIS CAN BE FOUND FOR NOT TREATING NON-COMMERCIAL AIRCRAFT IN THE SAME MANNER.'

THE BUREAU OF CUSTOMS LIKEWISE IS REQUIRED BY STATUTE TO COLLECT EXTRA- COMPENSATION INSPECTION COSTS AND, ALTHOUGH THE LANGUAGE OF THE CUSTOMS' OVERTIME STATUTE IS NOT THE SAME AS THAT USED IN THE 1931 ACT, IT IS SIMILAR. WE BELIEVE THAT CONGRESS MUST HAVE INTENDED THAT THE TWO STATUTES SHOULD ACHIEVE ESSENTIALLY THE SAME RESULTS AND, THEREFORE, WE FEEL THAT THEY SHOULD RECEIVE THE SAME CONSTRUCTION UNLESS, ON SOME PARTICULAR POINT, SPECIFIC LANGUAGE COMPELS A DIFFERENT CONSTRUCTION. FAR AS WE ARE AWARE, THE BUREAU OF CUSTOMS ENTERTAINS NO DOUBT THAT THE CUSTOMS OVERTIME STATUTE REQUIRES REIMBURSEMENT BY NON-COMMERCIAL AIRCRAFT AND VESSEL OWNERS OR OPERATORS FOR EXTRA COMPENSATION COSTS INCURRED IN SUCH INSPECTIONS AND THE BUREAU CONSISTENTLY HAS ASSESSED THOSE CHARGES IN THE PAST. IN OUR OPINION, THE CUSTOMS' STATUTE AND ITS LEGISLATIVE HISTORY LEAVE LITTLE ROOM FOR DOUBT THAT CONGRESS INTENDED SUCH COSTS TO BE PAID BY NON-COMMERCIAL AS WELL AS COMMERCIAL AIRCRAFT AND VESSELS.

THE ARGUMENT PRESENTED BY THE COMMISSIONER IN SUPPORT OF HIS POSITION, WHEN CONSIDERED ALONE, HAS A CERTAIN PERSUASIVE FORCE. WE BELIEVE HOWEVER, THAT THE ARGUMENT OVERLOOKS THE SIGNIFICANCE WHICH MUST BE ACCORDED THE PRACTICE IN EFFECT IN THE IMMIGRATION AND NATURALIZATION SERVICE AS WELL AS IN THE BUREAU OF CUSTOMS FOR MANY YEARS PRIOR TO MAY 30, 1959, REQUIRING NON-COMMERCIAL AIRCRAFT AND VESSEL OWNERS TO REIMBURSE THE COST OF INSPECTIONS DURING EXTRA COMPENSATION PERIODS. CONGRESS, OBVIOUSLY AWARE OF THIS PRACTICE, HAS BY ITS SILENCE THROUGH SEVERAL SESSIONS, IN EFFECT ACCEPTED THE PRACTICE AS CONSTITUTING A VALID INTERPRETATION OF THE STATUTE. CERTAINLY, NON-COMMERCIAL AIRCRAFT AND VESSELS NOT "OPERATING ON REGULAR SCHEDULES" ARE NOT INCLUDED LITERALLY IN THE EXEMPT PROVISIONS OF SECTION 2 OF THE 1931 ACT.

H.R. 6534, 86TH CONGRESS INTRODUCED ON APRIL 20, 1959, ONLY A SHORT TIME BEFORE THE EFFECTIVE DATE OF THE COMMISSIONER'S ORDER, AND PRESENTLY PENDING IN CONGRESS, ALSO IS SIGNIFICANT SO FAR AS PRIVATE AIRCRAFT ARE CONCERNED. THAT BILL, IF ENACTED, WOULD HAVE THE EFFECT OF EXEMPTING PRIVATE AIRCRAFT TRAVELING BETWEEN THE UNITED STATES AND CANADA AND BETWEEN THE UNITED STATES AND MEXICO FROM REIMBURSING THE GOVERNMENT FOR EXTRA-COMPENSATION PAID TO CUSTOMS OFFICERS AND EMPLOYEES. IN THE CIRCUMSTANCES, WE FEEL THAT RATHER THAN ISSUANCE OF THE ORDER IN QUESTION IT WOULD HAVE BEEN MORE APPROPRIATE TO HAVE REQUESTED THAT THE DESIRED EXEMPTIONS FOR PRIVATE AIRCRAFT AND VESSELS BE INCLUDED IN H.R. 6534 OR OTHER LEGISLATION.

WE DO NOT BELIEVE THAT THE ADMINISTRATIVE ORDER EXEMPTING PRIVATE OR NON- COMMERCIAL AIRCRAFT AND VESSELS FROM THE REIMBURSEMENT REQUIREMENT IS IN ACCORDANCE WITH THE STATUTE AS IT PRESENTLY MUST BE CONSTRUED. IN THE CIRCUMSTANCES, HOWEVER, WE WILL NOT INSIST UPON RESCISSION OF THE ORDER UNTIL YOUR DEPARTMENT HAS HAD AN OPPORTUNITY TO SEEK APPROPRIATE LEGISLATION IN THE NEXT SESSION OF CONGRESS.

CONCERNING BUSSES, WHICH THE ORDER EFFECTIVE MAY 30, 1959, ALSO EXEMPTED FROM THE REIMBURSEMENT REQUIREMENT, THE COMMISSIONER POINTS OUT:

"1. AUTOMOBILES.

BY MEMORANDUM DATED MAY 22, 1931, GEORGE J. HARRIS, ACTING COMMISSIONER GENERAL, DIRECTED THAT REIMBURSEMENT CHARGES NOT BE MADE AGAINST AUTOMOBILES OR OTHER VEHICLES ARRIVING VIA HIGHWAYS, AND THAT ANY EXTRA COMPENSATION EARNED WOULD BE A LIABILITY OF THE GOVERNMENT.

"2. BUSSES.

THE REMARKS APPLICABLE TO AUTOMOBILES ARE ALSO APPLICABLE TO BUSSES. APPEARS THAT EVEN THOUGH THE ACTING COMMISSIONER GENERAL DIRECTED THAT NO CHARGE BE MADE AGAINST VEHICLES ARRIVING VIA HIGHWAYS, THE PRACTICE OF CHARGING DID DEVELOP FOR THE SAME REASON AS IT DID WITH NON-COMMERCIAL AIRCRAFT.

THE ACT OF MARCH 2, 1931, DOES NOT EXPRESSLY REFER TO BUSSES. THEY ARRIVE IN THE UNITED STATES ON HIGHWAYS WHICH MAY OR MAY NOT CROSS THE INTERNATIONAL BOUNDARY VIA BRIDGE, TUNNEL, OR FERRY. WHERE A BUS ENTERS VIA A BRIDGE, TUNNEL, OR FERRY, IT IS CONSTRUED TO BE CLEARLY EXEMPT FROM LIABILITY FOR REIMBURSEMENT UNDER SECTION 2 OF THE ACT. WITH REGARD TO BUSSES, ARRIVING ON HIGHWAYS, WITHOUT THE BENEFIT OF ABRIDGE, TUNNEL, OR FERRY, THE INTENT OF THE CONGRESS IS FOUND BY REFERENCE TO COMMITTEE REPORTS ON THE ACT OF JUNE 3, 1944 (58 STAT. 269, 19 U.S.C. 1451). THIS ACT AMENDED THE CUSTOMS OVERTIME STATUTE OF FEBRUARY 13, 1911, SO AS TO EXEMPT FROM REIMBURSEMENT CHARGES THE OWNER, OPERATOR, OR AGENT OF A HIGHWAY VEHICLE, BRIDGE, TUNNEL, OR FERRY BETWEEN THE UNITED STATES AND CANADA OR BETWEEN THE UNITED STATES AND MEXICO. THE COMMITTEE REPORT ON THIS ACT (SENATE REPORT NO. 858, 78TH CONG., 2ND SESS. ON S. 1758 P. 2) STATES, ,IMMIGRATION AND OTHER FEDERAL INSPECTIONAL SERVICES ARE ALREADY FURNISHED AT GOVERNMENT EXPENSE, AND THERE IS NO LOGICAL BASIS FOR DISTINCTION.'

THE FOREGOING IS CONTENDED TO BE SUFFICIENT JUSTIFICATION FOR EXEMPTING BUSSES FROM REIMBURSEMENT CHARGES. ALSO, THIS EXEMPTION OF BUSSES ARRIVING BY HIGHWAY APPEARS CONSISTENT WITH THE REASONING APPLIED BY THE COURT (PUGET SOUND NAVIGATION CO. V. U.S., C.C.A.WASH. 1939, 107 F.2D 73, CERTIORARI DENIED, 60 S.CT. 608) IN WHICH A FERRY WAS DEFINED AS A CONTINUATION OF A HIGHWAY AND IS BUT A BRIDGE WHERE A BRIDGE IS IMPRACTICABLE. THUS FOR 1931 ACT APPLICABILITY PURPOSES, IT HAS BEEN HELD THAT A FERRY DOES NOT DIFFER FROM A HIGHWAY, AND IT SEEMS REASONABLE THAT THE COROLLARY SHOULD APPLY, THAT HIGHWAY TRAFFIC SHOULD BE LOGICALLY EXEMPT ON THE STRENGTH OF THE LANGUAGE OF THE ACT SPECIFICALLY GRANTING EXEMPTION TO FERRIES AND BRIDGES.'

WE AGREE WITH THE COMMISSIONER'S REASONING ON THAT PROBLEM AND WE DO NOT OBJECT TO THE ACTION TAKEN EXEMPTING BUSSES FROM THE REIMBURSEMENT REQUIREMENT.

ALSO, WE DO NOT OFFER ANY OBJECTION PRESENTLY TO THE REIMBURSEMENT PRACTICE FOLLOWED BY THE IMMIGRATION AND NATURALIZATION SERVICE CONCERNING THE OTHER MODES OF ARRIVAL LISTED IN THE COMMISSIONER'S LETTER. WE HAVE NOT ATTEMPTED A COMPLETE REVIEW OF EACH SUCH PRACTICE SINCE NONE APPEARS CURRENTLY TO BE CAUSING ANY PARTICULAR PROBLEM. HOWEVER, NO BASIS FOR OBJECTION PRESENTS ITSELF AT THIS TIME. LIKEWISE, WE FIND NO GENERAL OBJECTION TO THE PROCEDURES DESCRIBED FOR PRORATING CHARGES BETWEEN SEVERAL PARTIES IN INTEREST WHO ARE INSPECTED DURING THE SAME EXTRA- COMPENSATION PERIOD NOR TO THE METHOD AS OUTLINED FOR ESTABLISHING DAILY TOURS OF DUTY FOR INSPECTION PERSONNEL.