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used for governmental purposes, it is obvious that his statement was largely predicated on his doubt that any such cases would arise. The following later exchange between Mr. Meader and Mr. Moss, also recorded at page 21 of the hearings, indicates strongly that property used for Government purposes was not intended by reason thereof to be exempt from payments in lieu of taxes:

Mr. Moss.

I

I have one in mind in Denver, Colo., where they have what they call the Federal City. It was an arms plant during the last war, held by the R.F.C. I think title was finally transferred to the General Services Administration. would interpret that as coming under this bill, but it is operated as the center of governmental activities in Denver. Would it be subject to taxes? It would be no different than the Federal buildings in the District of Columbia? Mr. Meader.

If it came within the definitions of this bill.

Mr. Moss.

I think it would.

Mr. Meader.

I think there would be payments in lieu of taxes paid. I was not aware of that plant and perhaps there is some way of exempting those properties, but I would like to see which properties they might be.

Mr. Moss.

I think it was operated during the war by Remington Arms, and in my interpretation of this bill it would come under the terms of this legislation, but I think it would come within the terms improperly.

Moreover, section 701 of the act, declaring the policy of Congress, recognizes that "the transfer of real property having a taxable status from the Reconstruction Finance Corporation or any of its subsidiaries to another Government department has often operated to remove such property from the tax rolls of States and local taxing authorities, thereby creating an undue and unexpected burden upon such States and local taxing authorities, and causing disruption of their operations." The declaration of policy states further that "It is the purpose of this title [act] to furnish temporary measures of relief for such States and local taxing authorities by providing that payments in lieu of taxes shall be made with respect to property so transferred on or after January 1, 1946."

Nowhere in the act is there mentioned that property used for governmental purposes shall be excluded from the provisions thereof. The fact that the act is silent in this respect, in view of the considerable attention devoted by Members of Congress to discussion of this aspect, would indicate that such use was not intended to be exempt, since the act could have been easily clarified to show such intent. Nor would the exemption from payments in lieu of taxes for property used for governmental purposes accord with the stated purpose of the act-to furnish relief for those States and local taxing authorities whose operations have been disrupted because tax income has been lost to them by reason of RFC property transfers. The exemptions from payments in lieu of taxes contained in the act are in harmony with the act's purpose. The additional exemption cov

ering governmental use of properties would do such violence to the purpose for which Public Law 388 was enacted that we cannot, in the absence of a clear and unmistakable direction, introduce it by way of implication.

In view of the above it would appear that the preponderance of the building space in question is being used for purposes which do not render the property exempt from payments in lieu of taxes. However, as stated in your letter, approximately 16.7 of a total 23.3 acres of land involved are devoted to the use of the Bonneville Power Administration, which use is considered to be for the benefit of the local public and thereby exempt from payments in lieu of taxes. Adding the total building space (112,500 square feet) to the total land area (1,014,948 square feet at 43,560 square feet per acre) we arrive at a total property area of 1,127,448 square feet. Of this area, the Bonneville Power Administration uses approximately 777,452 (50,000 building and 727,452 land) square feet, or 69 percent, for its activities.

While we recognize that there may be some question as to whether use of the land involved should be apportioned on a square-foot basis equally with the apportionment of building space, we know of no other basis, from the information of record, upon which we might prorate the use of the land. Since the Bonneville Power Administration is utilizing the major portion of the property in question and since we have already determined that the activities of that agency are primarily for the rendition of service to or on behalf of the local public within the meaning of the exemptive provisions of sections 704(b) (3) and (4), we conclude, on the basis of the present record, that the property as a whole is within the limitations imposed by the act and payments in lieu of taxes may not be made thereon. Cf. 37 Comp. Gen. 574.

Accordingly, the voucher in question may not be certified for payment.

[B-138310]

Civilian Personnel-Compensation-Overtime-Standby, etc., Time-Saved Rates-Election to Convert to Annual Premium Basis

Firefighter employees who are in receipt of premium compensation for standby time at a saved rate, as prescribed in section 401 of the Federal Employees Pay Act of 1945, as added by section 208 of the act of September 1, 1954, 5 U.S.C. 926 note, may not be permitted to elect, pursuant to administrative regulation, to have their premium compensation converted to the annual rate basis so long as their existing aggregate rate of compensation saved is more than the annual premium rate, even though their actual "take home pay" under the saved pay formula is below the anual premium rate; however, such elections

which have been made pursuant to administrative regulation prior to the time the aggregate saved rate of compensation equaled or exceeded the annual premium rate will not be questioned, provided that no further elections are made. In the absence of a specific definition of the term "existing aggregate rate" in the savings clause of the premium compensation provisions in section 401 of the Federal Employees Pay Act of 1945, as added by section 208(b) of the act of September 1, 1954, 5 U.S.C. 926 note, and of a mandatory formula prescribed by the Civil Service Commission for the determination of existing aggregate rates of compensation, the administrative departments have the responsibility to determine which pay factors-the amount of overtime, night duty, and holiday work-are significant in establishing an existing aggregate rate for each employee or group of employees to ascertain whether entitlement to saved compensation exists under section 208 (b).

To the Secretary of the Navy, September 28, 1959:

On July 13, 1959, the Chief of Industrial Relations, file OIR 250:ib, made certain recommendations to our Assistant Director, Defense Accounting and Auditing Division, concerning the conversion of the aggregate annual rate of compensation of firefighters to the annual premium rate prescribed by section 401 of the Federal Employees Pay Act of 1945, as added by section 208(a) of the act of September 1, 1954 (Public Law 763, 83d Congress), 68 Stat. 1111 (5 U.S.C.926).

The pertinent provisions of section 208(a), 5 U.S.C. 926, read as follows:

The head of any department, independent establishment, or agency, with the approval of the Civil Service Commission, provide that—

may,

(1) Any officer or employee in a position requiring him regularly to remain at, or within the confines of, his station during longer than ordinary periods of duty, a substantial part of which consists of remaining in a standby status rather than performing work, shall receive premium compensation for such duty on an annual basis in lieu of premium compensation provided by any other provisions of this chapter, except for irregular, unscheduled overtime duty in excess of his regularly scheduled weekly tour. ***

Paragraph (b) of section 208, 5 U.S.C. 926 note, provides as follows:

Nothing contained in this section shall be construed to decrease the existing aggregate rate of compensation of any present employee, but when the position of such employee becomes vacant any subsequent appointee thereto shall receive premium compensation provided for such position in accordance with this section.

The pertinent provisions of the Navy regulations (NCPI 85.4-5c) concerning the time the saving clause of the above-quoted paragraph (b) ceases to apply are as follows:

*** The saving clause ceases to apply when pay at the annual premium rate exceeds pay at the saved rate. The saving clause will cease to apply upon an earlier request of the firefighter for change to the annual premium rate, regardless of the apparent difference between the saved rate and the annual premium rate. The firefighter's request must be voluntary and in writing and should indicate understanding that the change is permanent, as well as understanding of what his pay at the annual premium rate will be.

The first recommendation is that the Navy be allowed to continue to follow the aggregate annual rate of compensation formula adopted in 1954 for firefighter employees. This was recommended so that the

Navy could fix with certainty the time such employees are required to have their compensation changed from a saved rate to the annual premium rate.

Since paragraph (b) as quoted above does not specifically define the term "existing aggregate rate" and since the Civil Service Commission does not appear to have prescribed a mandatory formula, the respective administrative departments have the responsibility to determine which pay factors-the amount of overtime, night duty, and holiday work-are significant in establishing an existing aggregate rate for each employee or group of employees. Therefore, we will not question the formula adopted by the Navy for its firefighter employees. The second recommendation is that employees having the benefits of saved pay be allowed to elect to convert to the annual premium rate when their "take-home pay" under the saved pay formula is in fact below the annual premium rate. The following information is presented in support of this recommendation.

The saved annual rate is at best a fictitious figure. The sum arrived at, regardless of formula, is subject to reduction by periods of annual and sick leave of 8 or more hours duration. Also, it is subject to adjustment based upon holidays actually worked. Thus, while the saved rate may be established, the amount the employee receives is, in most cases, a lower figure. Frequently, the firefighter would benefit by changing to the annual premium rate since that rate is not subject to adjustment because of annual or sick leave taken, or holidays not worked. For this reason, we believe that there is considerable merit in allowing firefighters to move to the annual premium rate voluntarily since it appears that the intent of the law is met if "take-home pay" is not reduced.

The purpose of section 208(b) as quoted above is set forth on page 24 of House Report No. 2665, 83d Congress, 2d Session, as follows:

The Committee of conference further agreed, however, that the pay of those fire fighters now in the service who receive more than the 25 percent additional pay provided by the conference substitute should not be reduced. This is accomplished by section 208(b) of the conference substitute which provides that the provisions of the new title IV added by section 208 (a) of the conference substitute to the Federal Employees Pay Act of 1945, as amended, shall not be construed to decrease the aggregate rate of compensation of any present employee. ***

208(b)

In our decision of November 29, 1954, B-121783, to the Secretary of Defense, in answer to question one, we expressed the view that the computation of pay for an employee affected by section 208 (b) would be continued on the basis of the "two-thirds" rule discussed in 25 Comp. Gen. 161 until the employee's existing aggregate rate of compensation saved by section 208 (b) is equaled or exceeded by the rate he would receive if his compensation was computed under section 208(a). Therefore, our view is that employees having the benefits of saved pay may not be allowed to elect to convert to the annual premium rate so long as their existing aggregate rate of compensation saved by section 208(b) is more than the annual premium rate even though their actual "take-home pay" under the saved pay formula is below the annual premium rate.

Our attention has been directed to a provision in your regulations (NCPI 85.4-5), which indicates the savings clause will cease to apply, prior to the time the annual premium rate exceeds pay at the saved rate, when a firefighter requests a change to the annual premium rate regardless of the apparent difference between the saved rate and the annual premium rate. This provision appears contrary to the intent of the savings provision of the statute and our views as expressed above. However, since the apparent purpose of Public Law 763 was to convert all firefighter employees to the annual premium rate at the earliest possible time without reducing the pay of such employees, we will not question at this time any elections heretofore made by the firefighters under the regulation provided no further elections are permitted and provided further that action is initiated by your department to request the Congress to amend section 208(b) to authorize an election by the employees if such election is administratively deemed appropriate. We should appreciate your informing us of your action in the matter.

[B-139857]

Military Personnel-Record Correction-Retirement-Effective Date for Retired Pay Purposes

The correction of records of an Army enlisted member to show the effective date of placement on the retired list as January 3, 1958, and continuation in an active duty status until such date, because of failure to timely process the member's application for retirement, does not change or abrogate the laws relating to retired pay, particularly the Uniform Retirement Date Act of April 23, 1930, 5 U.S.C. 47a, which requires that retirements take effect on the first day of the month following the month in which the retirement is effective; therefore, the member must be regarded as being in a nonpay status for the period January 4, 1958, to the end of the month, and retired pay for that period is required to be refunded.

To Lieutenant Colonel J. L. Whipple, Department of the Army, September 28, 1959:

Your letter of June 1, 1959, FINCS-EA 201 Silvis, George M., RA 6 871 095, forwarded under D.O. No. 425, allocated by the Department of Defense Military Pay and Allowance Committee, requests a decision as to whether you are authorized to pay an attached voucher stated in the amount of $181.82, in favor of Sergeant First-Class George M. Silvis, retired, representing refund of retired pay withheld for May 1959, to cover overpayment of retired pay for the period January 4 through January 31, 1958.

It appears that Sergeant Silvis was placed on the retired list under the provisions of 10 U.S.C. 3914, as an enlisted member with over 20 years of Federal service, such action being accomplished by Special Orders No. 226, dated November 19, 1957, effective November 30, 1957. Payment of retired pay was made on and after December 1, 1957. It

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