B-113687, APRIL 21, 1953, 32 COMP. GEN. 469

B-113687: Apr 21, 1953

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ON THE SHIPMENT OF HOUSEHOLD EFFECTS OF EMPLOYEES ASSIGNED TO DUTY OVERSEAS IS APPLICABLE TO NEW APPOINTEES AS WELL AS TRANSFERRED EMPLOYEES. 953: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3. WHEREIN THERE IS SUBMITTED FOR CONSIDERATION THE QUESTION OF THE APPLICABILITY OF THE MAXIMUM WEIGHT LIMITATION CONTAINED IN SECTION 17 OF EXECUTIVE ORDER NO. 9805. WAS APPOINTED TO A POSITION IN SAN JUAN. WAS ADMINISTRATIVELY PAID. SHANKEY WAS REQUESTED TO REIMBURSE THE PUBLIC HOUSING ADMINISTRATION THE PRORATED COST OF THE EXCESS WEIGHT. THAT IS $507.20. - THERE IS NO STATUTORY BASIS FOR A WEIGHT LIMITATION IN THE CASE OF A NEW APPOINTEE FOR OVERSEAS DUTY. THE TRANSPORTATION OF WHOSE HOUSEHOLD EFFECTS IS AUTHORIZED BY SECTION 7 OF THE ACT.

B-113687, APRIL 21, 1953, 32 COMP. GEN. 469

TRANSPORTATION - HOUSEHOLD EFFECTS - WEIGHT LIMITATIONS - NEW APPOINTEES AND TRANSFEREES ASSIGNED TO DUTY OVERSEAS THE MAXIMUM WEIGHT LIMITATION IN SECTION 17 OF EXECUTIVE ORDER NO. 9805, PROMULGATED UNDER THE ADMINISTRATIVE EXPENSES ACT OF 1946, ON THE SHIPMENT OF HOUSEHOLD EFFECTS OF EMPLOYEES ASSIGNED TO DUTY OVERSEAS IS APPLICABLE TO NEW APPOINTEES AS WELL AS TRANSFERRED EMPLOYEES.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY, APRIL 21, 953:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3, 1953, FROM THE FORMER ADMINISTRATOR, PERTAINING TO THE CASE OF RICHARD A. SHANKEY, AN OVERSEAS EMPLOYEE OF THE PUBLIC HOUSING ADMINISTRATION, WHEREIN THERE IS SUBMITTED FOR CONSIDERATION THE QUESTION OF THE APPLICABILITY OF THE MAXIMUM WEIGHT LIMITATION CONTAINED IN SECTION 17 OF EXECUTIVE ORDER NO. 9805, PROMULGATED UNDER PUBLIC LAW 600, 79TH CONGRESS, APPROVED AUGUST 2, 1946, 60 STAT. 806, TO THE TRANSPORTATION OF THE HOUSEHOLD EFFECTS OF A NEW APPOINTEE.

EFFECTIVE SEPTEMBER 11, 1950, MR. SHANKEY, A RESIDENT OF HAVERSTRAW, NEW YORK, WAS APPOINTED TO A POSITION IN SAN JUAN, PUERTO RICO, WITH THE PUBLIC HOUSING ADMINISTRATION. IN CONSIDERATION OF THE PAYMENT OF HIS TRAVELING EXPENSES AND THE EXPENSES OF TRANSPORTATION OF HIS DEPENDENTS AND HOUSEHOLD EFFECTS, THE EMPLOYEE AGREED IN WRITING TO REMAIN IN SERVICE WITH THE PUBLIC HOUSING ADMINISTRATION AT PUERTO RICO FOR A PERIOD OF ONE YEAR. THE AGREEMENT PROVIDED FOR REIMBURSEMENT OF THE COST OF TRANSPORTATION OF HOUSEHOLD EFFECTS "IN ACCORDANCE WITH THE PROVISIONS OF EXECUTIVE ORDER NO. 9805 AND SUPPLEMENTS THERETO.' MR. SHANKEY TRANSPORTED 12,270 POUNDS OF HOUSEHOLD EFFECTS FROM HAVERSTRAW TO SAN JUAN, 3,520 POUNDS IN EXCESS OF THE MAXIMUM WEIGHT ALLOWANCE OF 8,750 POUNDS PRESCRIBED BY SECTION 17 OF EXECUTIVE ORDER NO. 9805. AS THE TOTAL COST OF THE SHIPMENT, $1,769.25, WAS ADMINISTRATIVELY PAID, MR. SHANKEY WAS REQUESTED TO REIMBURSE THE PUBLIC HOUSING ADMINISTRATION THE PRORATED COST OF THE EXCESS WEIGHT, THAT IS $507.20. MR. SHANKEY DENIES LIABILITY AND QUESTIONS THE LEGALITY OF THE APPLICATION OF THE MAXIMUM WEIGHT LIMITATION TO HIS CASE. HE CONTENDS THAT, UNLIKE THE CASE OF A TRANSFERRED EMPLOYEE--- INVOLVING SECTION 1 OF PUBLIC LAW 600, 60 STAT. 806--- THERE IS NO STATUTORY BASIS FOR A WEIGHT LIMITATION IN THE CASE OF A NEW APPOINTEE FOR OVERSEAS DUTY, THE TRANSPORTATION OF WHOSE HOUSEHOLD EFFECTS IS AUTHORIZED BY SECTION 7 OF THE ACT, 60 STAT. 808.

THE ADMINISTRATIVE DOUBT AS TO THE APPLICABILITY OF SECTION 17 OF EXECUTIVE ORDER NO. 9805 TO THE PRESENT CASE APPEARS TO ARISE FROM A DECISION OF APRIL 1, 1948, 27 COMP. GEN. 567, WHERE IT WAS HELD, THAT SECTION 4 OF EXECUTIVE ORDER NO. 9805--- REQUIRING THAT THE AUTHORIZATION FOR TRAVEL AND TRANSPORTATION EXPENSES BE IN THE ORDER DIRECTING TRAVEL--- SHOULD NOT BE APPLIED TO A SECTION 7 SITUATION.

SECTION 1 OF PUBLIC LAW 600 PROVIDES IN SUBSECTION (A) THAT UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE A CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER OR BETWEEN DEPARTMENTS MAY BE ALLOWED THE EXPENSES OF TRANSPORTATION OF HIS HOUSEHOLD EFFECTS NOT EXCEEDING 7,000 POUNDS IF UNCRATED OR 8,750 POUNDS IF CRATED.

SECTION 7 OF THE ACT PROVIDES AS FOLLOWS:

APPROPRIATIONS FOR THE DEPARTMENTS SHALL BE AVAILABLE, IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT, FOR EXPENSES OF TRAVEL OF NEW APPOINTEES, EXPENSES OF TRANSPORTATION OF THEIR IMMEDIATE FAMILIES AND EXPENSES OF TRANSPORTATION OF THEIR HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT TO PLACES OF EMPLOYMENT OUTSIDE CONTINENTAL UNITED STATES, AND FOR SUCH EXPENSES ON RETURN OF EMPLOYEES FROM THEIR POSTS OF DUTY OUTSIDE CONTINENTAL UNITED STATES TO THE PLACES OF THEIR ACTUAL RESIDENCE AT TIME OF ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES: PROVIDED, THAT SUCH EXPENSES SHALL NOT BE ALLOWED NEW APPOINTEES UNLESS AND UNTIL THE PERSON SELECTED FOR APPOINTMENT SHALL AGREE IN WRITING TO REMAIN IN THE GOVERNMENT SERVICE FOR THE TWELVE MONTHS FOLLOWING HIS APPOINTMENT,UNLESS SEPARATED FOR REASONS BEYOND HIS CONTROL. IN CASE OF A VIOLATION OF SUCH AGREEMENT ANY MONEYS EXPENDED BY THE UNITED STATES ON ACCOUNT OF SUCH TRAVEL AND TRANSPORTATION SHALL BE CONSIDERED AS A DEBT DUE BY THE INDIVIDUAL CONCERNED TO THE UNITED STATES. THIS SECTION SHALL NOT APPLY TO APPROPRIATIONS FOR THE FOREIGN SERVICE, STATE DEPARTMENT.

THE EFFECT OF SECTION 7 OF PUBLIC LAW 600 IS TO CONFER UPON THE DEPARTMENTS THE AUTHORITY, TO BE EXERCISED IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT, TO USE THEIR APPROPRIATIONS FOR CERTAIN EXPENSES, INCLUDING TRANSPORTATION OF HOUSEHOLD EFFECTS OF NEW APPOINTEES FOR OVERSEAS DUTY. THE OBJECT OF THE SECTION, AS DISCLOSED BY THE LEGISLATIVE HISTORY, BY MAKING APPROPRIATIONS AVAILABLE FOR THE PURPOSE INDICATED, WAS TO CREATE AN EXCEPTION TO THE GENERAL RULE THAT AN EMPLOYEE MUST BEAR THE EXPENSE OF REPORTING TO HIS FIRST DUTY STATION AND OF RETURNING TO HIS HOME OR PLACE OF ENGAGEMENT UPON SEPARATION FROM THE SERVICE. SEE SENATE REPORT NO. 1636, 79TH CONGRESS, 2D SESSION, ON H.R. 6533. IT DOES NOT APPEAR FROM THE LEGISLATIVE HISTORY THAT THE QUESTION OF A WEIGHT LIMITATION IN CONNECTION WITH SECTION 7 WAS SPECIFICALLY RAISED OR CONSIDERED. WHAT LITTLE THERE IS IN THE LEGISLATIVE HISTORY HOWEVER DOES INDICATE THAT IT WAS ASSUMED THAT THE BENEFITS TO BE CONFERRED UNDER SECTION 7 WERE ESSENTIALLY THOSE OF SECTION 1. SEE TESTIMONY OF MR. LAWTON, BUREAU OF THE BUDGET, PAGE 27, HEARINGS ON * H.R. 4586 BEFORE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS, HOUSE OF REPRESENTATIVES, 79TH CONGRESS, FEBRUARY 13, 1946.

PURSUANT TO SECTION 7 THERE WAS PROMULGATED EXECUTIVE ORDER NO. 9778, EFFECTIVE AUGUST 2, 1946. SAID EXECUTIVE ORDER PROVIDED THAT UNTIL NOVEMBER 1, 1946, EXPENDITURES FOR TRANSPORTATION OF A NEW APPOINTEE'S HOUSEHOLD EFFECTS FROM PLACE OF RESIDENCE TO PLACE OF EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES SHALL BE IN ACCORDANCE WITH EXECUTIVE ORDER NO. 8588 PROMULGATED PURSUANT TO THE ACT OF OCTOBER 10, 1940; AND FROM NOVEMBER 1, 1946, SUCH EXPENDITURES SHALL BE IN ACCORDANCE WITH REGULATIONS TO BE ISSUED UNDER AUTHORITY OF SECTION 1 OF PUBLIC LAW 600. EFFECTIVE NOVEMBER 1, 1946, PURSUANT TO SECTION 1 OF THE ACT, THERE WAS PROMULGATED EXECUTIVE ORDER NO. 9805, SECTION 17 OF WHICH PROVIDES THAT IN THE CASE OF AN EMPLOYEE TRANSFERRED OVERSEAS THE MAXIMUM WEIGHT OF CRATED HOUSEHOLD EFFECTS FOR TRANSPORTATION AT GOVERNMENT EXPENSE SHALL BE 8,750 POUNDS. THUS, GENERALLY, EXECUTIVE ORDER NO. 9778 FIXES THE TRANSPORTATION BENEFITS THAT MAY BE EXTENDED TO NEW APPOINTEES UNDER SECTION 7 AS THOSE OF TRANSFERRED EMPLOYEES, AND WITH REGARD TO WEIGHT ALLOWANCE DOES NOT DISTINGUISH BETWEEN A NEW APPOINTEE FOR OVERSEAS DUTY AND A TRANSFEREE TO AN OVERSEAS STATION. MOREOVER, IT HAS BEEN THE CONSISTENT PRACTICE OVER THE YEARS TO SPECIFY A MAXIMUM WEIGHT LIMITATION FOR SHIPMENT OF HOUSEHOLD EFFECTS TO OVERSEAS STATIONS, AND THIS HAS BEEN ACCOMPLISHED BOTH BY STATUTORY WEIGHT RESTRICTION AND BY REGULATIONS ISSUED UNDER STATUTORY AUTHORITY.

IN VIEW OF THE FOREGOING, AND AFTER CAREFUL CONSIDERATION OF THE VARIOUS CONTENTIONS SUBMITTED, THIS OFFICE IS OF THE VIEW THAT THE MERE SILENCE OF SECTION 7 AS TO A MAXIMUM WEIGHT FOR TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS AT GOVERNMENT EXPENSE THEREUNDER CANNOT BE CONSTRUED AS EVIDENCING A CONGRESSIONAL INTENT TO PROHIBIT THE SPECIFYING OF A WEIGHT LIMITATION UNDER THE REGULATORY AUTHORITY CONFERRED BY THE SECTION. ACCORDINGLY, IT IS CONCLUDED THAT THE PROVISIONS OF SECTION 17 OF EXECUTIVE ORDER NO. 9805 ARE FOR APPLICATION HEREIN, AND THAT THE EMPLOYEE IS INDEBTED TO THE GOVERNMENT FOR THE PRORATED COST OF THE EXCESS WEIGHT INVOLVED.