B-127171, MAY 10, 1956

B-127171, MAY 10, 1956

TO MR. J. E. FOWLER, JR., AUTHORIZED CERTIFYING OFFICER, BUREAU OF MINES:

YOUR LETTER OF FEBRUARY 27, 1956, REQUESTS ADVICE AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A TRAVEL VOUCHER IN FAVOR OF PITT W. HYDE, A BUREAU OF MINES EMPLOYEE, WHO IS PRESENTLY ASSIGNED TO DUTY IN MONROVIA, LIBERIA, UNDER THE POINT IV PROGRAM.

MR. HYDE ARRIVED AT MONROVIA ON SEPTEMBER 4, 1954, WHEN THE MAXIMUM ALLOWABLE WEIGHT LIMIT FOR SHIPMENT OF HIS HOUSEHOLD AND PERSONAL EFFECTS WAS 2,100 POUNDS, AS STATED IN THE FOREIGN OPERATIONS ADMINISTRATION TRAVEL REGULATIONS. BY AN FOA AIRGRAM ORDER ENTITLED USFOTO CIRCULAR A- 170, THE TRAVEL REGULATIONS WERE AMENDED SO AS TO INCREASE THE WEIGHT LIMITATION AND EXTEND THE TIME WITHIN WHICH AUTHORIZED SHIPMENTS OF EFFECTS COULD BE INITIATED. AFTER RECEIPT OF AN AUTHORIZATION ALLOWING HIM TO SHIP 150 ADDITIONAL POUNDS, MR. HYDE ORDERED ON AUGUST 9, 1955, FOOD ITEMS FROM THE S. COMOLLO MARKET IN NEW YORK CITY. THE CHECK SENT IN PAYMENT FOR THIS ORDER WAS NEGOTIATED BY THE MARKET AND EVENTUALLY CHARGED BY THE BANK AGAINST MR. HYDE'S ACCOUNT ON AUGUST 22, 1955. FOR SOME REASON NOT DISCLOSED IN THE RECORDS, THE U.S. DISPATCH AGENT IN NEW YORK CITY DID NOT RECEIVE THE GOODS FOR SHIPMENT TO MONROVIA UNTIL AFTER MR. HYDE'S TIME LIMIT FOR SHIPMENT EXPIRED ON SEPTEMBER 3, 1955. UNDER THESE CIRCUMSTANCES MR. HYDE PAID FOR THE TRANSPORTATION OF THE FOOD AND NOW REQUESTS A REFUND.

IN CONSTRUING OTHER REGULATIONS (EXECUTIVE ORDER NO. 9805) CONTAINING A PROVISION THAT THE TRANSPORTATION OF HOUSEHOLD EFFECTS "SHALL BEGIN" WITHIN A SPECIFIED TIME, WE HAVE SAID THAT TRANSPORTATION STARTS WHEN THE CARRIER RECEIVES THE GOODS WITH AN ORDER TO FORWARD THEM TO A PARTICULAR DESTINATION. SEE 29 COMP. GEN. 100, 20 ID. 568. THE QUESTION HERE IS WHETHER THE FOA AIRGRAM ORDER, USFOTO CIRCULAR A-170, SHOULD BE CONSTRUED IN A LIKE MANNER.

AT THE TIME HERE PERTINENT THE DIRECTOR OF THE FOREIGN OPERATIONS ADMINISTRATION HAD AUTHORITY, PURSUANT TO THE THIRD PROVISO OF SECTION 102 OF THE MUTUAL SECURITY ACT, 1955, 68 STAT. 1223, TO PRESCRIBE TRAVEL REGULATIONS. ACCORDINGLY, ON FEBRUARY 4, 1955, BY USFOTO CIRCULAR A-170, THE TIME LIMITATION FOR SHIPMENT OF HOUSEHOLD EFFECTS WAS EXTENDED IN THE FOLLOWING MANNER:

"D. TIME LIMITATION

"THE TIME LIMIT, WITHIN WHICH AUTHORIZED SHIPMENTS OF EFFECTS MAY BE INITIATED, IS EXTENDED FROM 6 MONTHS TO 12 MONTHS FOLLOWING ARRIVAL OF THE EMPLOYEE AT THE POST OF ASSIGNMENT. * * *"

SINCE THIS PROVISION MERELY EXTENDS FROM 6 MONTHS TO 12 MONTHS THE TIME LIMITATION OF SOME PRIOR ORDER, IT IS NECESSARY TO EXAMINE THE PRIOR ORDER.

ON NOVEMBER 20, 1953, FOA ISSUED USFOTO CIRCULAR A-8 WHICH COVERED THE SUBJECT OF TRAVEL REGULATIONS AND WHICH STATED:

"ALL AUTHORIZATIONS IN CONNECTION WITH OFFICIAL TRAVEL PROPERLY CHARGED TO FOA FUNDS SHALL BE GOVERNED BY THE FOREIGN SERVICE TRAVEL REGULATIONS PRINTED IN VOLUME 1 FSM III 180, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PUBLISHED BY THE BUREAU OF THE BUDGET AND CONTAINED IN VOLUME 1 FSM III 190, EXCEPT FOR SPECIFIC EXEMPTIONS OR RESTRICTIONS AS OUTLINED BELOW.'

CIRCULAR A-8 DID NOT SPECIFICALLY EXEMPT SECTION 3.61 OF THE FOREIGN SERVICE TRAVEL EGULATIONS; THEREFORE, 180 FSTR 3.61 WAS THE ORDER WHICH WAS MODIFIED BY CIRCULAR A-170. SECTION 3.61 PROVIDED:

"THE ACTUAL DEPARTURE OF THE EMPLOYEE UNDER APPROPRIATE TRAVEL AUTHORIZATION MAY BE DIRECTED BY ADMINISTRATIVE DETERMINATION. THE ACTUAL DEPARTURE OF ALL DEPENDENTS AND THE BEGINNING OF SHIPMENT OF ALL EFFECTS MAY TAKE PLACE ON OR AFTER THE DATE OF THE AUTHORIZATION BUT SHALL NOT BE DEFERRED MORE THAN 6 MONTHS AFTER THE EMPLOYEE COMPLETES HIS PERSONAL TRAVEL PURSUANT TO THE AUTHORIZATION. IF NO PERSONAL TRAVEL OF THE EMPLOYEE IS INVOLVED IN CONNECTION WITH AN APPOINTMENT, THE ACTUAL DEPARTURE OF ALL DEPENDENTS AND THE BEGINNING OF TRANSPORTATION OF ALL EFFECTS SHALL NOT BE DEFERRED MORE THAN 6 MONTHS AFTER THE EMPLOYEE ENTERS ON DUTY.'

IN ESSENCE, REGULATION 3.61 PROVIDED THAT THE BEGINNING OF SHIPMENT (OR TRANSPORTATION) SHALL NOT BE DEFERRED MORE THAN 6 MONTHS. THIS IS ANALOGOUS TO THE TERMS OF EXECUTIVE ORDER NO. 9805, SUPRA, WHICH PROVIDES THAT "TRANSPORTATION * * * SHALL BEGIN.' IF ANY QUESTION WERE TO ARISE CONCERNING WHEN SHIPMENT BEGINS IN 180 FSTR 3.61, THE MOST LOGICAL ANSWER WOULD BE TO ADOPT THE CONSTRUCTION ESTABLISHED BY THE DECISIONS ON EXECUTIVE ORDER NO. 9805. IT ALSO FOLLOWS THAT THE AMENDING ORDER, CIRCULAR A-170, WHICH MERELY EXTENDED THE TIME LIMIT, SHOULD RECEIVE A LIKE CONSTRUCTION. THEREFORE, WE ARE CONSTRAINED TO THE VIEW THAT MR. HYDE'S SHIPMENT OF FOOD WAS NOT STARTED WITHIN THE TIME LIMIT.

IRRESPECTIVE OF THE FOREGOING IT APPEARS THAT RECOVERY ON THE CLAIM WOULD NOT BE PRECLUDED IN VIEW OF 180 FSTR 3.64, WHICH PROVIDES:

"THE OFFICER DELEGATED AUTHORITY TO AUTHORIZE OR APPROVE THE TRAVEL MAY WAIVE THE TIME LIMITATIONS SPECIFIED IN FSTR 3.61 THROUGH 3.63 WHEN IN HIS JUDGMENT THE CIRCUMSTANCES WARRANT.'

IF THE OFFICER DELEGATED AUTHORITY TO AUTHORIZE OR APPROVE MR. HYDE'S TRAVEL ORDERS INVOKES THE WAIVER PROVISION OF 180 FSTR 3.64, THIS OFFICE WOULD INTERPOSE NO OBJECTION TO THE PAYMENT OF THE ENCLOSED VOUCHER, PROVIDING IT IS OTHERWISE CORRECT.