B-162237, SEPTEMBER 13, 1967, 47 COMP. GEN. 148

B-162237, SEPTEMBER 13, 1967, 47 COMP. GEN. 148

CUSTOMS - EMPLOYEES - OVERTIME SERVICES - REIMBURSEMENT THE EXEMPTION GRANTED BY THE ACT OF JUNE 3, 1944, TO 19 U.S.C. 1451, IMPOSING ON OWNERS OR OPERATORS OF VESSELS AND OTHER CONVEYANCES ENTERING THE UNITED STATES AT NIGHT, SUNDAYS, AND HOLIDAYS, THE REQUIREMENT TO PAY THE EXTRA COMPENSATION AND EXPENSES OF THE CUSTOMS OFFICERS ASSIGNED TO DUTY IN CONNECTION WITH THE ENTERING, MAY NOT BE EXTENDED, ABSENT CONGRESSIONAL APPROVAL, TO A PROPOSED MONORAIL SYSTEM FOR OPERATION BETWEEN EL PASO, TEXAS, AND JUAREZ, MEXICO, THE SPECIFIC LISTING IN THE 1944 ACT OF HIGHWAY VEHICLES, BRIDGES, TUNNELS, FERRIES, MOTOR VEHICLES, TROLLEY CARS, AND FOOT TRAVELERS AS EXCEPTIONS TO 19 U.S.C. 1451, IMPLYING THE EXCLUSION FROM THE EXCEPTIONS AUTHORIZED OF OTHER MODES OF TRANSPORTATION, SUCH AS MONORAILS, TRAINS, VESSELS, AIRPLANES, AND PIPELINES.

TO THE SECRETARY OF THE TREASURY, SEPTEMBER 13, 1967:

FURTHER REFERENCE IS MADE TO THE LETTER DATED AUGUST 7, 1967, FILE CC 515.11 I, FROM MATTHEW J. MARKS, ACTING ASSISTANT SECRETARY, REQUESTING A DECISION AS TO WHETHER A PROPOSED MONORAIL SYSTEM OPERATING ACROSS THE RIO GRANDE RIVER BETWEEN EL PASO, TEXAS, AND JUAREZ, MEXICO, WOULD BE WITHIN THE EXCEPTION IN SECTION 451 OF THE TARIFF ACT OF 1930, AS AMENDED, 19 U.S.C. 1451, FROM THE REQUIREMENT OF REIMBURSEMENT TO THE GOVERNMENT OF THE EXTRA COMPENSATION OF CUSTOMS OFFICERS AND EMPLOYEES AUTHORIZED BY 19 U.S.C. 267 FOR SERVICES PERFORMED AT NIGHT AND ON SUNDAYS AND HOLIDAYS.

SECTION 451 OF THE TARIFF ACT OF 1930, AS AMENDED, 19 U.S.C. 1451, HAS A GENERAL REQUIREMENT THAT THE SECRETARY OF THE TREASURY COLLECT FROM ALL OWNERS OR OPERATORS OF VESSELS AND OTHER CONVEYANCES ENTERING THE UNITED STATES AT NIGHT, SUNDAYS, AND HOLIDAYS THE EXTRA COMPENSATION AND EXPENSES OF THE CUSTOMS OFFICERS ASSIGNED TO DUTY IN CONNECTION WITH SUCH ENTERING. HOWEVER, OWNERS AND OPERATORS OF HIGHWAY VEHICLES, BRIDGES, TUNNELS, OR FERRIES, AS WELL AS MERCHANDISE, BAGGAGE, OR PERSONS ENTERING OR DEPARTING BY MOTOR VEHICLE, TROLLEY CAR, ON FOOT OR OTHER MEANS OF HIGHWAY TRAVEL BETWEEN THE UNITED STATES AND EITHER MEXICO OR CANADA, WERE EXEMPTED FROM THIS REQUIREMENT BY ACT OF JUNE 3, 1944, 58 STAT. 269. THE OWNERS OR OPERATORS OF TRAINS, VESSELS, AND AIRCRAFT ENTERING THE UNITED STATES AT NIGHT, SUNDAYS AND HOLIDAYS ARE REQUIRED, AS PROVIDED IN SECTION 451 OF THE TARIFF ACT OF 1930, TO REIMBURSE CUSTOMS FOR ANY ADDITIONAL COMPENSATION OR EXPENSES INCURRED.

YOUR DEPARTMENT'S LETTER STATES THAT THE PROPOSED FACILITY WOULD BE A MONORAIL TYPE OF ELEVATED RAPID TRANSIT SYSTEM BETWEEN THE CENTRAL BUSINESS DISTRICTS OF EL PASO AND JUAREZ WHICH SYSTEM WOULD BE SUPPORTED BY PYLONS AND APPARENTLY WOULD SPAN THE RIVER ON SUCH PYLONS WITHOUT BRIDGE SUPPORT.

IN THE BROCHURE ENTITLED "EL PASO-JUAREZ MONORAIL SYSTEM," WHICH YOU ENLCOSED WITH YOUR LETTER, IT IS EXPLAINED THAT SINCE THE DESIRED RAPID TRANSIT SYSTEM MUST OPERATE INDEPENDENTLY OF STREET TRAFFIC IT MUST OPERATE EITHER BELOW OR ABOVE THE STREET. THEREFORE AN ELEVATED RAPID TRANSIT SYSTEM WAS SELECTED SINCE IT WOULD BE UNECONOMICAL TO BUILD A SUBWAY BELOW THE RIVER FOR THE SHORT DISTANCE INVOLVED AND THE MONORAIL TYPE OF ELEVATED RAPID TRANSIT SYSTEM IS THE MOST DESIRABLE FOR PHYSICAL AND AESTHETIC QUALITIES.

THE BROCHURE STATES THAT THE SYSTEM OPERATES ON PNEUMATIC TIRES WITH ELECTRIC POWER UNIT AND WHEELS ALL LOCATED WITHIN AN ENCLOSED RAIL AND THAT THE SUSPENSION SYSTEM IS ALSO PNEUMATIC.

A "MONORAIL" IS DESCRIBED VARIOUSLY AS A SINGLE-RAIL TYPE OF RAILWAY DESIGNED FOR ECONOMY OF CONSTRUCTION, INCREASED SPEED AND FOR MOUNTAINOUS REGIONS AND AS A SINGLE RAIL MOUNTED ON TRESTLES CONSTITUTING THE TRACK FOR RAILWAY CARS THAT USUALLY SIT ASTRADDLE OVER IT OR HANG SUSPENDED FROM IT. SEE THE ENCYCLOPEDIA AMERICANA (1939), VOLUME 19, P. 366, AND WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1965).

IT SEEMS OBVIOUS THAT THE MONORAIL SYSTEM IS NOT A HIGHWAY VEHICLE, BRIDGE, OR TUNNEL AND AS YOU POINT OUT, IT IS NOT A FERRY--WHICH HAS BEEN DEFINED AS A PASSENGER SERVICE OPERATED WITH THE USE OF VESSELS- BY REASON OF THE STATUTORY DEFINITION OF THE WORD "VESSEL" IN 19 U.S.C. 1401 (A). ALSO TRAVEL ON THE MONORAIL SYSTEM WOULD NOT BE BY FOOT WITHIN THE MEANING OF THE STATUTE.

NEITHER DOES IT APPEAR THAT THE MONORAIL COULD BE CONSIDERED A TROLLEY CAR. "TROLLEY-CAR" AND ,STREET-CAR" ARE SYNONYMOUS TERMS AND MEAN A VEHICLE WHICH DRAWS ITS POWER FROM STATIONARY PLANTS BY MEANS OF CONTACT WITH ELECTRIC WIRES CONSTRUCTED OVER, OR SOMETIMES UNDER, THE RAILS OR ROAD ON WHICH IT OPERATES. THOMPSON V. GEORGIA POWER CO., 37 S.E. 2D 622, 630 (1946). STREET CARS ARE CARS WHICH TRAVERSE THE STREETS OF A TOWN OR CITY AND CARRY PASSENGERS WHO GET OFF AND ON AT VARIOUS POINTS ALONG THE LINE. THEY HAVE BEEN CONSIDERED AS VEHICLES OF STREET TRAVEL. PIEDMONT COTTON MILLS V. GEORGIA RY. AND ELECTRIC CO., 62 S.E. 52, 62 (1908).

NOR DOES IT APPEAR THAT A MONORAIL COULD BE CONSIDERED A MOTOR VEHICLE. A "MOTOR VEHICLE" IN POPULAR SENSE IS A VEHICLE SUITABLE FOR USE ON A STREET, ROADWAY OR HIGHWAY. SEE AMERICAN MUT. LIABILITY INS. CO. V. CHAPUT, 60 A. 2D 118, 120-121 (1948); GOLDING-KEENE CO. V. FIDELITY-PHENIX FIRE INS. CO., 69 A. 2D 856, 858 (1949). ALSO, "MOTOR VEHICLE" IS A GENERIC TERM FOR ALL CLASSES OF SELF-PROPELLED SURFACE VEHICLES NOT OPERATING ON STATIONARY RAILS OR TRACKS. SEE JERNIGAN V. HANOVER FIRE INS. CO. OF NEW YORK, 69 S.E. 2D 847, 848 (1952).

SECTION 451 OF THE TARIFF ACT OF 1930 DOES NOT EXPRESSLY REFER TO MONORAILS. NOR DOES IT APPEAR THAT CONGRESS INTENDED THAT THIS TYPE OF FACILITY WHEN OPERATING BETWEEN THE UNITED STATES AND CANADA OR UNITED STATES AND MEXICO WOULD BE EXEMPT FROM PAYMENT OF THE EXTRA COMPENSATION AND EXPENSES OF THE CUSTOMS OFFICERS AND EMPLOYEES FOR SERVICES PERFORMED AT NIGHT, SUNDAYS, AND HOLIDAYS AS SET FORTH IN 19 U.S.C. 1451. THE COMMITTEE REPORT (SENATE REPORT NO. 858, 78TH ONG., 2ND SESS., ON S. 1758, P. 2) ON THE ACT OF JUNE 3, 1944, WHICH CREATED THE EXEMPTION, STATES THAT:

"THE BILL ESTABLISHES THE PRINCIPLE THAT WHENEVER THE PUBLIC INTEREST REQUIRES THAT INTERNATIONAL BRIDGES, TUNNELS, AND FERRIES BE KEPT OPEN TO INTERNATIONAL TRAFFIC DURING THE NIGHT AND ON SUNDAYS AND HOLIDAYS, THE NECESSARY CUSTOMS SERVICE SHOULD BE PROVIDED AS A PUBLIC SERVICE AT THE EXPENSE OF THE GOVERNMENT, WITHOUT MAKING PUBLIC ACCESS TO SUCH FACILITIES DEPENDENT UPON THE PAYMENT BY THE OWNERS OF THE COMPENSATION OF THE CUSTOMS OFFICIALS AND EMPLOYEES NECESSARILY ASSIGNED TO DUTY AT SUCH FACILITIES TO PROTECT THE PUBLIC REVENUES AND TO ENFORCE WARTIME RESTRICTIONS.'

THE EXEMPTION GRANTED BY THE ACT OF JUNE 3, 1944, CAME ABOUT WHEN THE UNITED STATES SUPREME COURT IN UNITED STATES V. MYERS, 320 U.S. 561 (1944), RULED THAT THE OVERTIME COMPENSATION PROVISIONS IN THE TARIFF ACT OF 1930 APPLIED TO SERVICES AT CERTAIN INTERNATIONAL BRIDGES AND TUNNELS INVOLVED IN THAT SUIT. THE COMMITTEE REPORT (HOUSE REPORT NO. 1446, 78TH CONG., 2ND ESS., ON S. 1758, P. 2) STATES THE PURPOSE OF THE BILL WAS TO DEAL WITH THE EMERGENCY SITUATION CREATED BY THE CLOSING ON SUNDAYS AND HOLIDAYS OF CERTAIN INTERNATIONAL BRIDGES AND TUNNELS ON THE MEXICAN AND CANADIAN BORDERS BECAUSE OF REQUIREMENTS OF THE EXISTING LAW AS INTERPRETED BY THE SUPREME COURT IN THE MYERS CASE. APPARENTLY, IT WAS THE INTENT OF THE CONGRESS TO KEEP THE HIGHWAYS (WHICH NECESSARILY INCLUDE BRIDGES, TUNNELS, AND FERRIES) OPEN TO ALL USERS, BOTH COMMERCIAL AND PRIVATE.

AS INDICATED ABOVE OWNERS OF TRAINS, VESSELS, AND AIRCRAFT ARE NOT EXEMPT FROM THE GENERAL REQUIREMENTS OF 19 U.S.C. 1451 FOR THE PAYMENT OF COMPENSATION AND EXPENSES FOR CUSTOMS SERVICES PERFORMED AT NIGHT, SUNDAYS, AND HOLIDAYS. THUS BY SPECIFICALLY LISTING, HIGHWAY VEHICLES, BRIDGES, TUNNELS, FERRIES, MOTOR VEHICLES, TROLLEY CARS, AND ON FOOT AS BEING EXCEPTIONS TO THE RULE AND NOT MENTIONING OTHER KNOWN MODES OF TRANSPORTATION SUCH AS MONORAILS, TRAINS, VESSELS, AIRPLANES AND PIPELINES IT WOULD APPEAR THAT ONLY THOSE MODES EXPRESSLY MENTIONED WERE TO BE EXEMPT AND IMPLIES THE EXCLUSION OF ANY OTHER MODE OF TRANSPORTATION. THIS CONNECTION SEE COLLINS V. CITY AND COUNTY OF SAN FRANCISCO, 247 P. 2D 362 (1952); HOWLETT V. DOGLIO, 83 N.E. 2D 708 (1949); CONNECTICUT LIGHT AND POWER CO. V. WALSH, 57 A. 2D 128 (1948); SHAWNEE NAT. BANK V. UNITED STATES, 249 F. 583, 587-588 (1918). THIS CONSTRUCTION OF THE STATUTE APPARENTLY IS IN ACCORD WITH THE LEGISLATIVE INTENT WHICH AS INDICATED ABOVE WAS TO KEEP THE HIGHWAYS ACROSS THE INTERNATIONAL BORDERS OPEN. AND WHETHER MONORAILS OR ANY OTHER FORMS OF TRANSPORTATION SHOULD BE INCLUDED IN THE EXCEPTION IS PRIMARILY A QUESTION OF POLICY FOR DETERMINATION BY THE CONGRESS.

THEREFORE IT IS OUR VIEW THAT CUSTOMS SERVICES COULD NOT BE FURNISHED TO THE PROPOSED MONORAIL SYSTEM BETWEEN EL PASO, TEXAS, AND JUAREZ, MEXICO, AT NIGHT AND ON SUNDAYS AND HOLIDAYS WITHOUT PAYMENT TO THE GOVERNMENT BY ITS OWNER OR OPERATOR OF THE EXTRA COMPENSATION OF CUSTOMS OFFICERS AND EMPLOYEES WHICH MAY BE ASSIGNED THERETO.