B-152568, JAN. 16, 1964

B-152568: Jan 16, 1964

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YOUR TOUR OF DUTY IN JAPAN BEGAN IN SEPTEMBER 1959 AND YOU WERE ISSUED ORDERS FOR RETURN TO THE UNITED STATES FOR PERMANENT DUTY ON AUGUST 9. THAT OF YOUR WIFE AND THE TRANSPORTATION OF YOUR HOUSEHOLD EFFECTS WAS ACCOMPLISHED IN SEPTEMBER 1961. THREE PROBLEMS HAVE ARISEN IN CONNECTION WITH YOUR RETURN FROM JAPAN. AUTHORIZES THE TRANSPORTATION OF AUTOMOBILES OF EMPLOYEES ASSIGNED OVERSEAS UNDER REGULATIONS PROMULGATED BY THE PRESIDENT "WHENEVER IT IS DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED TO BE IN THE INTEREST OF THE GOVERNMENT FOR SUCH EMPLOYEE TO HAVE THE USE OF A MOTOR VEHICLE AT HIS POST OF DUTY.'. WE ARE WITHOUT AUTHORITY TO REIMBURSE YOU THE COST INVOLVED IN VIEW OF THE DETERMINATION WHICH HAS BEEN MADE.

B-152568, JAN. 16, 1964

TO MR. ERNESTO D. MARQUES:

ON SEPTEMBER 13, 1963, YOU REQUESTED THAT WE REVIEW THE SETTLEMENT OF OUR OFFICE DATED SEPTEMBER 3, 1963, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL REIMBURSEMENT INCIDENT TO YOUR RETURN TO LOS ALAMITOS, CALIFORNIA, AFTER A TOUR OF DUTY IN TOKYO, JAPAN, AS AN EMPLOYEE OF THE DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE.

YOUR TOUR OF DUTY IN JAPAN BEGAN IN SEPTEMBER 1959 AND YOU WERE ISSUED ORDERS FOR RETURN TO THE UNITED STATES FOR PERMANENT DUTY ON AUGUST 9, 1961. YOUR TRAVEL, THAT OF YOUR WIFE AND THE TRANSPORTATION OF YOUR HOUSEHOLD EFFECTS WAS ACCOMPLISHED IN SEPTEMBER 1961, HOWEVER, YOUR DAUGHTER, JEAN TOLHURST, HAD RETURNED TO THE UNITED STATES ON JULY 10, 1960, MORE THAN A YEAR BEFORE YOU BECAME ELIGIBLE FOR RETURN TO THE UNITED STATES UNDER THE PROVISION OF YOUR 2-YEAR OVERSEAS EMPLOYMENT AGREEMENT WHICH YOU ENTERED INTO UNDER THE PROVISION OF SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, APPROVED AUGUST 2, 1946, CH. 744, 60 STAT. 808, AS AMENDED, 5 U.S.C. 73B-3.

THREE PROBLEMS HAVE ARISEN IN CONNECTION WITH YOUR RETURN FROM JAPAN, FIRST, THE AMOUNT CHARGED FOR EXCESS WEIGHT OF HOUSEHOLD EFFECTS; SECOND, REIMBURSEMENT FOR THE RETURN TRAVEL OF YOUR DAUGHTER; AND, THIRD, REIMBURSEMENT FOR THE COST OF TRANSPORTING YOUR AUTOMOBILE.

REGARDING THE COST OF RETURNING YOUR PRIVATELY-OWNED AUTOMOBILE TO THE UNITED STATES SUBSECTION (F) OF SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS ADDED BY SECTION 321 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, APPROVED SEPTEMBER 6, 1960, PUB.L. 86-707, 74 STAT. 797, 5 U.S.C. 73B-1, AUTHORIZES THE TRANSPORTATION OF AUTOMOBILES OF EMPLOYEES ASSIGNED OVERSEAS UNDER REGULATIONS PROMULGATED BY THE PRESIDENT "WHENEVER IT IS DETERMINED BY THE HEAD OF THE DEPARTMENT CONCERNED TO BE IN THE INTEREST OF THE GOVERNMENT FOR SUCH EMPLOYEE TO HAVE THE USE OF A MOTOR VEHICLE AT HIS POST OF DUTY.' THE OFFICIAL IN THE DEPARTMENT OF JUSTICE TO WHOM AUTHORITY TO MAKE SUCH A DETERMINATION HAS BEEN DELEGATED HAS DETERMINED NOT TO AUTHORIZE THE TRANSPORTATION OF YOUR AUTOMOBILE. WE ARE WITHOUT AUTHORITY TO REIMBURSE YOU THE COST INVOLVED IN VIEW OF THE DETERMINATION WHICH HAS BEEN MADE.

THE COST OF YOUR DAUGHTER'S TRAVEL PRIOR TO THE DATE YOU BECAME ELIGIBLE FOR RETURN TO THE UNITED STATES MAY NOT BE PAID BECAUSE AT THE TIME YOU BECAME ELIGIBLE FOR RETURN TRAVEL YOUR DAUGHTER WAS OVER 21 YEARS OLD AND, THEREFORE, DID NOT QUALIFY AS YOUR DEPENDENT FOR THE PURPOSE OF RETURN TRAVEL TO THE UNITED STATES. SEE OUR DECISION B 126519, FEBRUARY 16, 1956, COPY ENCLOSED. AUTHORIZATION OF ALLOWANCE OF TRANSPORTATION OF DEPENDENTS IN CASES INVOLVING COMPELLING REASONS OF A HUMANITARIAN OR COMPASSIONATE NATURE UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 IS A MATTER PRIMARILY FOR THE DEPARTMENT OR AGENCY CONCERNED AND WE CANNOT ALLOW PAYMENT UNDER THAT PROVISION IN THE ABSENCE OF AGENCY APPROVAL. IN THAT CONNECTION WE NOTE THAT SECTION 221 (4) OF THE OVERSEAS ALLOWANCES AND DIFFERENTIALS ACT, 5 U.S.C. 3037 (4), PROVIDES FOR PAYMENT OF THE COST OF RETURNING DEPENDENT CHILDREN OF OVERSEAS EMPLOYEES TO THE UNITED STATES FOR THE PURPOSE OF ATTENDING SCHOOL; HOWEVER, THAT PROVISION DID NOT BECOME EFFECTIVE UNTIL AFTER YOUR DAUGHTER HAD RETURNED TO THE UNITED STATES.

AT THE TIME YOUR HOUSEHOLD EFFECTS WERE TRANSPORTED TO THE UNITED STATES THE BUREAU OF THE BUDGET REGULATIONS REGARDING THE APPLICATION OF THE 7,000-POUND NET WEIGHT LIMIT WHICH WAS APPLICABLE TO THE SHIPMENT OF YOUR HOUSEHOLD EFFECTS WERE CONTAINED IN SECTION 6 (B) OF EXECUTIVE ORDER NO. 9805, AS AMENDED BY BUREAU OF THE BUDGET CIRCULAR NO. A-4, TRANSMITTAL MEMORANDUM NO. 2, APRIL 3, 1961, AS FOLLOWS:

"/B) IN ORDER TO APPLY THE NET WEIGHT LIMITATIONS PRESCRIBED IN SUBSECTION (A) WHERE THE ACTUAL NET WEIGHT IS NOT REASONABLY ASCERTAINABLE, THE NET WEIGHT SHALL BE COMPUTED AT 60 PERCENT OF THE GROSS WEIGHT WHERE HOUSEHOLD GOODS AND PERSONAL EFFECTS ARE TRANSPORTED CRATED. THE PRESCRIBED FORMULA OF 60 PERCENT MAY BE APPROPRIATELY REDUCED WHERE THE NET WEIGHT LIMITATION IN THOSE INDIVIDUAL CASES WHERE THE COMPUTED EXCESS WEIGHT IS DETERMINED TO BE DUE TO REASONS BEYOND THE CONTROL OF THE EMPLOYEE, SUCH AS THE NECESSARY USE OF UNUSUALLY HEAVY CRATING AND PACKING MATERIALS. SPECIALLY DESIGNED CONTAINERS, NORMALLY FOR REPEATED USE, MAY BE USED, SUCH AS COLLAPSIBLE CONTAINERS, HOUSEHOLD GOODS SHIPPING BOXES, LIFT VANS, OR CONVEX TRANSPORTERS. IN THESE CASES THE NET WEIGHT SHALL BE COMPUTED AT 85 PERCENT IF THE DIFFERENCE BETWEEN THE THE GROSS WEIGHT AND THE TARE WEIGHT OF THE CONTAINER. THE GROSS WEIGHT AND THE TARE WEIGHT SHALL BE SHOWN ON THE BILLS OF LADING OR OTHER SHIPPING DOCUMENTS. IF IN ANY CASE THE ACTUAL GROSS WEIGHT IS NOT REASONABLY ASCERTAINABLE IT WILL BE DETERMINED BY CUBIC MEASUREMENT ON THE BASIS OF 7 POUNDS PER CUBIC FOOT.' HAD THE CHARGES BEEN COMPUTED ON THE BASIS OF 60 PERCENT OF THE GROSS WEIGHT OF 15,645 POUNDS THE CHARGE AGAINST YOU FOR EXCESS WEIGHT WOULD HAVE BEEN LARGER. IN ANY CASE SINCE CHARGES FOR SEA VAN SERVICE ARE BASED UPON THE NET WEIGHT OF THE EFFECTS TRANSPORTED, THE 7000-POUND NET WEIGHT LIMIT MUST BE APPLIED ON THE BASIS OF THE CERTIFIED NET WEIGHT OF YOUR EFFECTS AS ADJUSTED BY THE AUTHORIZED FACTOR OF 15 PERCENT. CF. 36 COMP. GEN. 397, DECIDED PRIOR TO CIRCULAR NO. A-4, AS AMENDED APRIL 3, 1961. WE KNOW OF NO AUTHORITY UNDER WHICH THE COLLECTION OF COST OCCASIONED BY SUCH EXCESS WEIGHT MAY BE WAIVED.

THEREFORE, OUR OFFICE SETTLEMENT OF SEPTEMBER 3, 1963, IS CORRECT AND UPON REVIEW IT MUST BE SUSTAINED.