B-137581, OCT 31, 1958

B-137581: Oct 31, 1958

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YOUR LETTER DESCRIBES CIRCUMSTANCES AND A PROBLEM SUCH AS HAVE BEEN BROUGHT TO OUR ATTENTION FROM TIME TO TIME BY OTHER AGENCIES AND BY VARIOUS CLAIMANTS. NEITHER SECTION 1 NOR SECTION 7 IS SELF-EXECUTING. ARE COMPUTED ON A BASIS OF MEASUREMENT. 000 POUNDS NET" IN SUBSECTION 17(A) SHOULD BE REGARDED AS IN THE NATURE OF A PARENTHETICAL EXPRESSION WHICH IS AMPLIFIED IN THE TABULAR PROVISION AT THE END OF SUBSECTION 17(A). DRAYAGE ARE ALLOWABLE ONLY FOR THE "AUTHORIZED WEIGHT. " THAT IS 8. YOUR QUESTION IS ANSWERED IN THE NEGATIVE. SINCE YOU INFER THAT THE PACKING AND CRATING COMPANIES MAY NOT BE EXERCISING PROPER CARE IN THE METHODS OF PACKING AND CRATING WE ARE FORWARDING TO THAT ADMINISTRATION A COPY OF YOUR LETTER AND OF THE STATEMENT OF REPRESENTATIVE RECENT SHIPMENTS FOR CONSIDERATION AND SUCH ACTION AS MAY BE APPROPRIATE.

B-137581, OCT 31, 1958

PRECIS-UNAVAILABLE

THE GOVERNOR OF THE CANAL ZONE:

YOUR LETTER OF OCTOBER 6, 1958, REQUESTS OUR OPINION CONCERNING THE EXCESS COSTS CHARGEABLE TO "NEW EMPLOYEES," WHICH COSTS, YOU SAY, RESULT FROM THE METHODS AND PRACTICES OF SOME PACKING AND CRATING COMPANIES IN CONNECTION WITH THE SHIPMENTS OF THE EMPLOYEE'S HOUSEHOLD GOODS AND PERSONAL EFFECTS FROM THE UNITED STATES TO THE CANAL ZONE UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 60 STAT. 808, AS AMENDED, 5 U.S.C. 73B-3.

SPECIFICALLY, YOU ASK OUR OPINION AS TO WHETHER EXECUTIVE ORDER NO. 9805, AS APPLIED TO NEW APPOINTMENTS, MAY BE INTERPRETED TO MEAN THAT IF THE NET WEIGHT OF THE SHIPMENT BEFORE PACKING AND CRATING DOES NOT EXCEED THE MAXIMUM NET WEIGHT ALLOWANCE - 2,500 POUNDS OR 7,000 POUNDS, AS THE CASE MAY BE - THEN NO CHARGE SHOULD BE MADE AGAINST THE EMPLOYEE REGARDLESS OF THE ACTUAL GROSS WEIGHT.

YOUR LETTER DESCRIBES CIRCUMSTANCES AND A PROBLEM SUCH AS HAVE BEEN BROUGHT TO OUR ATTENTION FROM TIME TO TIME BY OTHER AGENCIES AND BY VARIOUS CLAIMANTS. NEITHER SECTION 1 NOR SECTION 7 IS SELF-EXECUTING, THE AVAILABILITY OF THE BENEFITS THEREOF, AS WELL AS THE APPLICATION OF THE LIMITATIONS SET FORTH THEREIN, BEING SUBJECT TO "SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE." IN THAT CONNECTION WE ENCLOSE A COPY OF OUR DECISION OF APRIL 21, 1953, B-113687, 32 COMP. GEN. 469, WHEREIN WE CONCLUDED THAT THE MERE SILENCE OF SECTION 7 - AS TO MAXIMUM WEIGHT OF A NEW EMPLOYEE'S HOUSEHOLD GOODS AND PERSONAL EFFECTS FOR TRANSPORTATION AT GOVERNMENT EXPENSE - CANNOT BE CONSTRUED AS EVIDENCING AN INTENT BY CONGRESS TO PROHIBIT THE PRESIDENT FROM SPECIFYING A WEIGHT LIMITATION IN THE REGULATIONS HE MIGHT ISSUE UNDER THE AUTHORITY CONFERRED UPON HIM BY SECTION 7. HENCE, WE HELD THAT BY VIRTUE OF EXECUTIVE ORDER NO. 9778 THE PROVISIONS OF SECTION 17 OF EXECUTIVE ORDER NO. 9805 EXTEND TO "NEW" EMPLOYEES AS WELL AS TO TRANSFERRED EMPLOYEES.

THE FIRST SENTENCE OF SUCH SECTION 17(A) OF EXECUTIVE ORDER NO. 9805 - AUTHORIZING THE ALLOWANCE OF ACTUAL COSTS OF TRANSPORTATION OF THE "HOUSEHOLD GOODS AND PERSONAL EFFECTS OF THE EMPLOYEE, NOT IN EXCESS OF 7,000 POUNDS NET, AND OF THE PACKING, CRATES, BOXES, LIFT VANS, OR OTHER TEMPORARY CONTAINERS" IN THE CASE OF A TRANSFER TO OR FROM OVERSEA POINTS - MUST BE READ IN CONTEXT WITH THE OTHER PROVISIONS OF SUBSECTION 17(A) AND IN LIGHT OF THE "GENERAL" PROVISIONS, TITLE I, SECTION 6, OF EXECUTIVE ORDER NO. 9805, WHICH SPECIFICALLY LIMIT THE EFFECTS TO BE TRANSPORTED AT GOVERNMENT EXPENSE TO 8,750 POUNDS GROSS WEIGHT. ALSO, COMPARE SUBSECTIONS 17(B) AND (C) RELATING TO CASES IN WHICH COSTS OF TRANSPORTATION, ALL OR IN PART, ARE COMPUTED ON A BASIS OF MEASUREMENT. THUS, THE ABOVE PHRASE "NOT IN EXCESS OF 7,000 POUNDS NET" IN SUBSECTION 17(A) SHOULD BE REGARDED AS IN THE NATURE OF A PARENTHETICAL EXPRESSION WHICH IS AMPLIFIED IN THE TABULAR PROVISION AT THE END OF SUBSECTION 17(A). MOREOVER, UNDER SECTIONS 18 AND 19 OF EXECUTIVE ORDER NO. 9805, ALLOWANCES FOR PACKING, CRATING, UNPACKING, UNCRATING, AND DRAYAGE ARE ALLOWABLE ONLY FOR THE "AUTHORIZED WEIGHT," THAT IS 8,750 OR 3,125 POUNDS GROSS WEIGHT AS APPLICABLE TO A GIVEN CASE. WHILE SUBSECTION 17(A) CONTAINS PROVISIONS WHICH COULD BE VIEWED AS SAYING THAT THE WEIGHT OF THE PACKING AND CRATING MATERIALS NORMALLY SHOULD NOT EXCEED 20 PERCENT OF THE GROSS WEIGHT WE CAN CONCLUDE ONLY THAT THE STATUTORY REGULATIONS DO NOT AUTHORIZE THE ALLOWANCE AT GOVERNMENT EXPENSE OF AMOUNTS OF PACKED AND CRATED PROPERTY OF EMPLOYEES GREATER THAN THE 8,750 OR 3,125 POUNDS GROSS WEIGHT (OR APPLICABLE VOLUME) SPECIFIED IN THE RESPECTIVE SUBSECTIONS 17(A), (B), OR (C), AND IN SECTIONS 18 AND 19 AS APPLICABLE IN A GIVEN CASE. THEREFORE, YOUR QUESTION IS ANSWERED IN THE NEGATIVE.

AS YOU SAY THE GENERAL SERVICES ADMINISTRATION ACTS AS AGENT FOR THE PANAMA CANAL COMPANY AND THE CANAL ZONE GOVERNMENT IN ARRANGING FOR THE PACKING AND CRATING OF THE EFFECTS OF YOUR NEW EMPLOYEES. THEREFORE, AND SINCE YOU INFER THAT THE PACKING AND CRATING COMPANIES MAY NOT BE EXERCISING PROPER CARE IN THE METHODS OF PACKING AND CRATING WE ARE FORWARDING TO THAT ADMINISTRATION A COPY OF YOUR LETTER AND OF THE STATEMENT OF REPRESENTATIVE RECENT SHIPMENTS FOR CONSIDERATION AND SUCH ACTION AS MAY BE APPROPRIATE. WE ARE ALSO FURNISHING THE ADMINISTRATOR WITH A COPY OF OUR REPLY OF TODAY TO YOU CONCERNING EXCESS COSTS CHARGEABLE TO EMPLOYEES INCIDENT TO SHIPMENT OF THEIR EFFECTS.