B-175758, JUN 15, 1972, 51 COMP GEN 806

B-175758, JUN 15, 1972, 51 COMP GEN 806

TRAILER ALLOWANCES - PULLMAN RAIL CAR - STATUS AS MOBILE DWELLING A PULLMAN RAIL CAR CONVERTED AND USED AS A RESIDENCE BY A MEMBER OF THE UNIFORMED SERVICES QUALIFIES AS A MOBILE DWELLING UNDER PARAGRAPH M10001-1 OF THE JOINT TRAVEL REGULATIONS, WHICH DEFINES A "HOUSE TRAILER" AS A MOBILE DWELLING CONSTRUCTED OR CONVERTED FOR USE AS A RESIDENCE AND DESIGNED TO BE MOVED OVERLAND, EITHER SELF-PROPELLED OR BY TOWING, THAT CONTAINS THE HOUSEHOLD GOODS AND PERSONAL EFFECTS OF A MEMBER AND HIS DEPENDENTS, AND THE MEMBER IS ENTITLED TO THE TRAILER ALLOWANCE PRESCRIBED BY 37 U.S.C. 409, WHICH CONTEMPLATES PAYMENT ON A MILEAGE BASIS FOR OVERLAND TRAVEL, SINCE THERE IS NO INDICATION IN SECTION 409 THAT THE ALLOWANCE IS NOT APPLICABLE TO A PRIVATELY OWNED PULLMAN CAR TRANSPORTED OVERLAND BY RAIL, AND SUBJECT TO TARIFF CHARGES, AS WELL AS TO HIGHWAY MOVEMENTS.

TO THE SECRETARY OF THE ARMY, JUNE 15, 1972:

REFERENCE IS MADE TO LETTER DATED MARCH 20, 1972, FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS), REQUESTING DECISION WHETHER A PULLMAN RAIL CAR CONVERTED AND USED AS A RESIDENCE OF A MEMBER OF THE UNIFORMED SERVICES MAY BE CONSIDERED A HOUSETRAILER OR MOBILE DWELLING SO AS TO ENTITLE A MEMBER OF THE UNIFORMED SERVICES TO A TRAILER ALLOWANCE UNDER THE PROVISIONS OF THE JOINT TRAVEL REGULATIONS, VOLUME 1, CHAPTER 10. THE LETTER INDICATES THAT WHILE TECHNICALLY THE PULLMAN RAIL CAR WOULD FALL WITHIN THE DEFINITION OF A HOUSETRAILER, AS CURRENTLY CONTAINED IN THE JOINT TRAVEL REGULATIONS, DOUBT EXISTS AS TO WHETHER WITHIN THE SPIRIT AND INTENT OF THE LAW IT CAN BE SO CONSIDERED.

IT IS EXPLAINED THAT THE CONVERTED PULLMAN CAR IS BEING USED AS A RESIDENCE BY THE MEMBER; THAT THE CAR IS PRESENTLY LOCATED AT THE OCEANPORT SIDING, FORT MONMOUTH, NEW JERSEY, WHERE IT HAD BEEN PULLED BY A RAILROAD LOCOMOTIVE ENGINE; AND THAT THE CAR HAS TWO MASTER BEDROOMS WITH SHOWER AND COMMODE, ONE DOUBLE BEDROOM WITH WASHBOWL AND COMMODE, LIVING ROOM, DINING ROOM, KITCHEN WITH SINK AND REFRIGERATOR, COMPLETE AIR CONDITIONING, AND CONNECTIONS FOR HOOKUP TO PUBLIC POWER.

THE STATUTE AUTHORIZING TRAILER ALLOWANCES, 37 U.S.C. 409, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED AND IN LIEU OF TRANSPORTATION OF BAGGAGE AND HOUSEHOLD EFFECTS OR PAYMENT OF DISLOCATION ALLOWANCE, A MEMBER OF THE UNIFORMED SERVICES, OR IN THE CASE OF HIS DEATH HIS DEPENDENT, WHO WOULD OTHERWISE BE ENTITLED TO TRANSPORTATION OF BAGGAGE AND HOUSEHOLD GOODS, MAY TRANSPORT A HOUSETRAILER OR MOBILE DWELLING WITHIN THE CONTINENTAL UNITED STATES, WITHIN ALASKA, OR BETWEEN THE CONTINENTAL UNITED STATES AND ALASKA, FOR USE AS A RESIDENCE, BY ONE OF THE FOLLOWING MEANS:

(1) TRANSPORT THE TRAILER OR DWELLING AND RECEIVE A MONETARY ALLOWANCE IN PLACE OF TRANSPORTATION AT A RATE TO BE PRESCRIBED BY THE SECRETARIES CONCERNED, BUT NOT MORE THAN 20 CENTS A MILE:

(2) DELIVER THE TRAILER OR DWELLING TO AN AGENT OF THE UNITED STATES FOR TRANSPORTATION BY THE UNITED STATES OR BY COMMERCIAL MEANS; OR

(3) TRANSPORT THE TRAILER OR DWELLING BY COMMERCIAL MEANS AND BE REIMBURSED BY THE UNITED STATES SUBJECT TO SUCH RATES AS MAY BE PRESCRIBED BY THE SECRETARIES CONCERNED.

HOWEVER, THE STATUTE LIMITS THE ALLOWABLE COSTS OF TRANSPORTATION UNDER CLAUSES (2) AND (3) TO THE LESSER OF "(A) THE CURRENT AVERAGE COST FOR THE COMMERCIAL TRANSPORTATION OF A HOUSETRAILER OR MOBILE DWELLING; (B) 74 CENTS A MILE; OR (C) THE COST OF TRANSPORTING THE BAGGAGE AND HOUSEHOLD EFFECTS OF THE MEMBER OR HIS DEPENDENT PLUS THE DISLOCATION ALLOWANCE AUTHORIZED IN SECTION 407 OF THIS TITLE (37 U.S.C. 407)."

PARAGRAPH M10007 OF THE JOINT TRAVEL REGULATIONS PRESCRIBES THAT THE METHOD OF COMPUTING DISTANCES FOR MILEAGE PURPOSES WILL BE BASED ON HIGHWAY DISTANCES SHOWN ON TABLES AND MAPS APPEARING IN THE RAND MCNALLY STANDARD HIGHWAY MILEAGE GUIDE OR THE OFFICIAL TABLE OF DISTANCES (AR 55- 60/AFM 177-135/NAV SO P-2471) COMPUTED IN ACCORDANCE WITH THE INSTRUCTIONS APPEARING IN THOSE PUBLICATIONS. PARAGRAPHS M10004(3) AND M10007 PROVIDE THAT WHEN THE TRAILER IS REQUIRED TO BE MOVED OVER A CIRCUITOUS ROUTE BY DIRECTIVES, REGULATIONS, OR LOCAL LAWS, THE AUTHORIZED DISTANCES WILL BE COMPUTED VIA THE ROUTE NECESSARILY USED IN TRANSPORTING THE TRAILER BUT CAUTION THAT TO DETERMINE THE LOWER CEILING OF ALLOWANCES A COMPARISON OF ITEMS 1 AND 3 IN PARAGRAPH M10004(3) IS NECESSARY. THE HIGHWAY DISTANCES IN BOTH RAND-MCNALLY AND THE OFFICIAL TABLE OF DISTANCES ARE BASED ON HIGHWAY DISTANCES AS DISTINGUISHED FROM RAIL ROUTE DISTANCES.

PARAGRAPH M10001-1 OF THE JOINT TRAVEL REGULATIONS, THE REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, DEFINES HOUSETRAILER AS FOLLOWS:

1. HOUSETRAILER. THE TERM "HOUSETRAILER," AS USED IN THIS CHAPTER, MEANS A MOBILE DWELLING CONSTRUCTED OR CONVERTED FOR USE AS A RESIDENCE AND DESIGNED TO BE MOVED OVERLAND, EITHER SELF-PROPELLED OR BY TOWING. INCLUDES ALL HOUSEHOLD GOODS, PERSONAL EFFECTS, AND PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT CONTAINED IN THE TRAILER AND OWNED OR INTENDED FOR USE BY THE MEMBER OR HIS DEPENDENTS.

THE ALLOWANCE FOR THE MOVEMENT OF A HOUSETRAILER OR MOBILE HOME WAS FIRST ENACTED AS AN AMENDMENT TO SECTION 303(C) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 253(C) (1958 ED.), BY SECTION 2(13) OF THE CAREER INCENTIVE ACT OF 1955, 69 STAT. 22, WHICH AUTHORIZED AN ALLOWANCE OF NOT TO EXCEED 20 CENTS PER MILE UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED. THE ACT DID NOT DISTINGUISH BETWEEN THE AMOUNT PAID TO MEMBERS WHO TRANSPORTED THEIR HOMES THEMSELVES AND THE AMOUNT PAID TO THOSE WHO EMPLOYED COMMERCIAL MOVERS TO TRANSPORT SUCH HOMES. HOWEVER, THE SERVICES PRESENTLY LIMIT THE RATE OF PAYMENT TO A MEMBER WHO TRANSPORTS HIS OWN HOUSETRAILER OR MOBILE HOME TO 11 CENTS A MILE (PARAGRAPH M10006, JOINT TRAVEL REGULATIONS).

SUBSEQUENT AMENDMENTS CONTINUED THE MAXIMUM RATE OF 20 CENTS PER MILE IN THE EVENT THE MEMBER HIMSELF TRANSPORTS THE TRAILER AND INCREASED THE COMMERCIAL RATE CEILING TO 36 CENTS (PUBLIC LAW 87-374, ACT OF OCTOBER 4, 1961, 75 STAT. 804), THEN TO 51 CENTS (PUBLIC LAW 88-406, ACT OF AUGUST 7, 1964, 78 STAT. 383) AND FINALLY TO 74 CENTS, WHICH IS THE CURRENT LAW (PUBLIC LAW 90-246, ACT OF JANUARY 2, 1968, 81 STAT. 782, 37 U.S.C. 409). THUS, WHILE THE STATUTE AUTHORIZES THE MOVEMENT OF A HOUSETRAILER OR A MOBILE DWELLING, PAYMENT OF THE ALLOWANCE LARGELY IS ON A MILEAGE BASIS WHICH CONTEMPLATES OVERLAND TRAVEL.

THE LEGISLATIVE HISTORY OF THE BASIC LAW AND SUBSEQUENT AMENDMENTS SHOWS THAT THE PURPOSE OF THE TRAILER ALLOWANCE PROVISIONS WAS TO AUTHORIZE THE SECRETARIES TO PRESCRIBE APPROPRIATE REGULATIONS TO PROVIDE A MILEAGE ALLOWANCE TO A MEMBER WHO TRANSPORTS HIS TRAILER OR MOBILE DWELLING FOR USE AS A RESIDENCE IN LIEU OF SHIPPING HIS HOUSEHOLD GOODS AND PAYMENT OF AUTHORIZED DISLOCATION ALLOWANCE. IT WAS BELIEVED THAT THE COST TO THE GOVERNMENT WOULD BE MUCH LESS BY AWARDING THE MILEAGE ALLOWANCE THAN IT WOULD BE BY PAYMENT OF A DISLOCATION ALLOWANCE AND SHIPPING THE MEMBER'S HOUSEHOLD EFFECTS BY PRIVATE CARRIER UNDER THE PRESCRIBED LIMITATIONS. SEE SENATE REPORT NO. 125, 84TH CONGRESS, 1ST SESSION, TO ACCOMPANY H.R. 4720, WHICH BECAME THE CAREER INCENTIVE ACT OF 1955.

THE LEGISLATIVE HISTORY ALSO SHOWS THAT THE INCREASES IN TRAILER ALLOWANCE HAVE TO A GREAT EXTENT BEEN DETERMINED ON THE BASIS OF THE RATES CHARGED BY CARRIERS FOR MOVEMENT OF MOBILE HOMES AND HOUSETRAILERS AS PUBLISHED IN THE TARIFFS FILED WITH THE INTERSTATE COMMERCE COMMISSION. IT IS NOTED THAT SUCH RATES GENERALLY VARY ACCORDING TO THE SIZE OF THE TRAILER AND THE PREVIOUS ALLOWANCES OF 36 CENTS AND 51 CENTS WERE CONSIDERED QUITE INADEQUATE FOR THE TRANSPORTATION OF THE LARGER TRAILERS. SEE SENATE REPORT NO. 1189, 88TH CONGRESS, 2D SESSION, TO ACCOMPANY H.R. 8954 WHICH BECAME PUBLIC LAW 88-406, ACT OF AUGUST 7, 1964.

SINCE THE PULLMAN CAR IS OWNED BY THE MEMBER, IT WOULD BE CONSIDERED A PRIVATELY OWNED CAR. THE INTERSTATE COMMERCE COMMISSION HAS HELD THAT THE TERM PRIVATELY OWNED CAR, WHERE NOT DEFINED IN TARIFFS, OBVIOUSLY MEANS A CAR OWNED BY OTHERS THAN CARRIERS. AND APPARENTLY A PRIVATE CAR OWNED BY AN INDIVIDUAL WOULD BE SUBJECT TO THE TARIFF CHARGES ON PRIVATELY OWNED CARS. USE OF PRIVATE PASSENGER TRAIN CARS, 155 I.C.C. 775, 788 (1929). THIS PRIVATE CAR (PULLMAN) HAS BEEN CONVERTED BY THE MEMBER INTO A MOBILE DWELLING. BROADLY DEFINED, A "MOBILE HOME" IS A DWELLING OR ABODE WHERE PEOPLE LIVE AND IS CAPABLE OF MOVEMENT OR BEING MOVED. REETZ V. ELLIS, 186 SO. 2D 915, 918 (1966).

AS STATED ABOVE, THE MAXIMUM ALLOWANCES FOR TRANSPORTING A TRAILER OR MOBILE HOME ARE FIXED BY LAW AND REGULATIONS. THE LANGUAGE OF BOTH ARE SUFFICIENTLY BROAD TO COVER BOTH A TRAILER OR MOBILE HOME DESIGNED TO BE MOVED OVERLAND EITHER BY RAIL OR BY HIGHWAY. THEREFORE, CONSIDERING THE PURPOSE FOR WHICH THE STATUTES WERE ENACTED AND SINCE THERE IS NOTHING IN 37 U.S.C. 409 OR THE LEGISLATIVE HISTORY OF THE STATUTES FROM WHICH IT WAS DERIVED TO INDICATE ANY INTENT THAT IT WAS NOT TO BE APPLICABLE TO A MOBILE DWELLING TRANSPORTED OVERLAND BY RAIL (AS WELL AS HIGHWAY MOVEMENT), IT IS OUR VIEW THAT UNDER THE LAW AS PRESENTLY CONSTITUTED A PRIVATELY OWNED PULLMAN RAIL CAR CONVERTED FOR USE AS A RESIDENCE WOULD QUALIFY AS A MOBILE DWELLING FOR THE PURPOSE OF TRAILER ALLOWANCE. SEE DELANEY V. MORAITIS, 136 F.2D 129, 132 (1943).