B-199303, AUG 22, 1980

B-199303: Aug 22, 1980

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EMPLOYEE OF DEPARTMENT OF INTERIOR IS LIABLE FOR EXCESS COSTS INCURRED IN TRANSPORTATION AND STORAGE OF HOUSEHOLD GOODS UNDER ACTUAL EXPENSE METHOD WHERE TOTAL WEIGHT EXCEEDED STATUTORY MAXIMUM LIMIT OF 11. GOVERNING TRANSPORTATION AND STORAGE OF HOUSEHOLD GOODS ARE SET FORTH AT CHAPTER 2. EMPLOYEE MAY NOT HAVE HOUSEHOLD GOODS SHIPMENT EVALUATED UNDER PROVISIONS OF VOLUME 1 OF THE JOINT TRAVEL REGULATIONS WHICH IMPLEMENT SECTION 406 OF TITLE 37. EACH AGENCY IS RESPONSIBLE FOR DETERMINING WHETHER COMMUTED RATE SYSTEM OR ACTUAL EXPENSE METHOD WILL BE USED FOR TRANSPORTATION OF EMPLOYEE'S HOUSEHOLD GOODS. WHERE ACTUAL EXPENSE METHOD IS USED. QUESTION WHETHER AND TO WHAT EXTENT AUTHORIZED WEIGHTS HAVE BEEN EXCEEDED IN SHIPMENT OF HOUSEHOLD EFFECTS IS QUESTION OF FACT PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND ORDINARILY WILL NOT BE QUESTIONED IN ABSENCE OF EVIDENCE SHOWING IT TO BE CLEARLY IN ERROR.

B-199303, AUG 22, 1980

DIGEST: 1. EMPLOYEE OF DEPARTMENT OF INTERIOR IS LIABLE FOR EXCESS COSTS INCURRED IN TRANSPORTATION AND STORAGE OF HOUSEHOLD GOODS UNDER ACTUAL EXPENSE METHOD WHERE TOTAL WEIGHT EXCEEDED STATUTORY MAXIMUM LIMIT OF 11,000 POUNDS. REGULATIONS, GOVERNING TRANSPORTATION AND STORAGE OF HOUSEHOLD GOODS ARE SET FORTH AT CHAPTER 2, PART 8 OF THE FEDERAL TRAVEL REGULATIONS WHICH IMPLEMENT SECTION 5724 OF TITLE 5, UNITED STATES CODE. EMPLOYEE MAY NOT HAVE HOUSEHOLD GOODS SHIPMENT EVALUATED UNDER PROVISIONS OF VOLUME 1 OF THE JOINT TRAVEL REGULATIONS WHICH IMPLEMENT SECTION 406 OF TITLE 37, U.S.C. AND APPLY TO MEMBERS OF THE UNIFORMED SERVICES. 2. EACH AGENCY IS RESPONSIBLE FOR DETERMINING WHETHER COMMUTED RATE SYSTEM OR ACTUAL EXPENSE METHOD WILL BE USED FOR TRANSPORTATION OF EMPLOYEE'S HOUSEHOLD GOODS. WHERE ACTUAL EXPENSE METHOD IS USED, APPLICABLE REGULATION REQUIRES THAT COMPUTATION OF EMPLOYEE'S CHARGES FOR EXCESS WEIGHT BE BASED ON ITS RATIO TO TOTAL WEIGHT SHIPPED. AND, QUESTION WHETHER AND TO WHAT EXTENT AUTHORIZED WEIGHTS HAVE BEEN EXCEEDED IN SHIPMENT OF HOUSEHOLD EFFECTS IS QUESTION OF FACT PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND ORDINARILY WILL NOT BE QUESTIONED IN ABSENCE OF EVIDENCE SHOWING IT TO BE CLEARLY IN ERROR.

JACK MCGEE - TRANSPORTATION OF HOUSEHOLD GOODS - EXCESS WEIGHT:

NEDRA A. BLACKWELL, AN AUTHORIZED CERTIFYING OFFICER FOR THE WATER POWER RESOURCES SERVICE, DEPARTMENT OF THE INTERIOR, HAS REQUESTED OUR OPINION ON THE RECLAIM VOUCHER FOR $520.94 PRESENTED BY MR. JACK MCGEE IN CONNECTION WITH HIS TRANSFER FROM GOLDEN, COLORADO, TO BOISE, IDAHO. BASED

LANIER 30,204.50

BRIEFLY, MR. MCGEE WAS AUTHORIZED OFFICIAL TRANSFER OF DUTY STATION EFFECTIVE JUNE 18, 1979, WITH HOUSEHOLD GOODS AND TEMPORARY STORAGE AUTHORIZED BY ACTUAL EXPENSE BASIS LIMITED TO MAXIMUM ALLOWABLE WEIGHT OF 11,000 POUNDS. A GOVERNMENT BILL OF LADING WAS ISSUED FOR THE SHIPMENT OF HOUSEHOLD GOODS AND TEMPORARY STORAGE WHICH RESULTED IN THE AGENCY BEING BILLED IN THE AMOUNT OF $4,007.25, WITH THE CERTIFIED NET WEIGHT OF THE SHIPMENT BEING 15,220 POUNDS. MR. MCGEE WAS SUBSEQUENTLY BILLED BY THE AGENCY IN THE AMOUNT OF $1,122.03 FOR THE EXCESS WEIGHT OF 4,220 POUNDS. MR. MCGEE ESSENTIALLY DOES NOT DISPUTE THE TOTAL OF THE EXCESS WEIGHT INVOLVED BUT HE DOES QUESTION THE METHOD USED IN DETERMINING THE AMOUNT HE OWES FOR THE EXCESS WEIGHT. SPECIFICALLY, MR. MCGEE HAS PETITIONED THE AGENCY AS FOLLOWS:

"I FEEL THAT SINCE THE CARRIERS CHARGE LESS PER POUND THE MORE POUNDS YOU SHIP, THAT THE FAIR WAY TO ARRIVE AT THE COST FOR EXCESS POUNDS WOULD BE TO DETERMINE WHAT THE CHARGES WOULD HAVE BEEN TO PACK AND SHIP THE ALLOWABLE 11,000 POUNDS, BASED ON THE RATE FOR THAT WEIGHT ONLY. THIS SHOULD THEN BE DEDUCTED FROM THE TOTAL BILL TO ARRIVE AT THE AMOUNT I OWE FOR THE EXCESS WEIGHT BECAUSE IT WAS DUE TO THIS EXCESS WEIGHT THAT THE LOWER RATE PER POUND WAS CHARGED. CAN THIS BE ALLOWED?"

IN SUBMITTING MR. MCGEE'S RECLAIM VOUCHER FOR OUR OPINION, THE CERTIFYING OFFICER HAS PROVIDED THE FOLLOWING OBSERVATION:

"WE AGREE WITH MR. MCGEE'S RATIONALE REGARDING THE ADVANTAGES THE GOVERNMENT RECEIVES ON THE RATE CHARGE FOR TRANSPORTING HOUSEHOLD GOODS WHEN THE SHIPMENT IS IN EXCESS OF 11,000 POUNDS. IN THIS REGARD, WOULD IT BE PERMISSIBLE TO CONTACT THE CARRIER REGARDING THE RATE CHARGE FOR 11,000 POUNDS AND COMPUTE THE GOVERNMENT'S PORTION ON THAT RATE AND CHARGE THE EMPLOYEE FOR THE DIFFERENCE? THIS METHOD OF CHARGING FOR EXCESS WEIGHT WOULD BE MORE EQUITABLE FOR THE EMPLOYEE."

SUBSECTION 5724(A) OF TITLE, 5 U.S.C. GRANTS TO THE PRESIDENT DISCRETIONARY AUTHORITY TO PRESCRIBE REGULATIONS FOR THE PAYMENT OF TRAVEL AND TRANSPORTATION EXPENSES OF EMPLOYEES TRANSFERRED IN THE INTEREST OF THE GOVERNMENT FROM ONE OFFICIAL STATION OR AGENCY TO ANOTHER. THE EXPENSES OF TRANSPORTING, PACKING, CRATING, TEMPORARILY STORING, DRAYING AND UNPACKING HOUSEHOLD GOODS AND PERSONAL EFFECTS IS LIMITED BY 5 U.S.C. 5724(A)(2) TO NOT IN EXCESS OF 11,000 POUNDS NET WEIGHT. AS THE 11,000 POUNDS WEIGHT LIMITATION IS STATUTORY, NO GOVERNMENT AGENCY OR EMPLOYEE HAS THE AUTHORITY TO PERMIT TRANSPORTATION IN EXCESS OF THE WEIGHT LIMITATION. THEREFORE, REGARDLESS OF THE REASONS FOR THE SHIPMENT OF THE EXCESSIVE WEIGHT OF HOUSEHOLD GOODS, THE LAW DOES NOT PERMIT PAYMENT BY THE GOVERNMENT OF CHARGES INCURRED FOR SHIPMENT OF THE EXCESS WEIGHT. DONALD F. ROACH, B-194441, SEPTEMBER 18, 1979, AND DECISION CITED THEREIN. SEPTEMBER 18, 1979, AND DECISIONS CITED THEREIN.

IMPLEMENTING REGULATIONS FOR THE TRANSPORTATION AND TEMPORARY STORAGE OF HOUSEHOLD GOODS ARE CONTAINED AT CHAPTER 2, PART 8 OF THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7)(MAY 1973). IN PARAGRAPH 2-8.2A OF THE REGULATIONS A MAXIMUM WEIGHT ALLOWANCE OF 11,000 POUNDS HAS BEEN ESTABLISHED FOR EMPLOYEES WITH IMMEDIATE FAMILIES. IN PARAGRAPH 2 8.3B(5) A PROCEDURE IS PRESCRIBED FOR DETERMINING THE CHARGES PAYABLE BY THE EMPLOYEE FOR EXCESS WEIGHT WHEN THE ACTUAL EXPENSE METHOD OF SHIPMENT IS USED. THAT PARAGRAPH READS AS FOLLOWS:

"(5) EXCESS WEIGHT PROCEDURES. WHEN THE WEIGHT OF AN EMPLOYEE'S HOUSEHOLD GOODS EXCEEDS THE MAXIMUM WEIGHT LIMITATION, THE TOTAL QUANTITY MAY BE SHIPPED ON A GOVERNMENT BILL OF LADING, BUT THE EMPLOYEE SHALL REIMBURSE THE GOVERNMENT FOR THE COST OF TRANSPORTATION AND OTHER CHARGES APPLICABLE TO THE EXCESS WEIGHT, COMPUTED FROM THE TOTAL CHARGES ACCORDING TO THE RATIO OF EXCESS WEIGHT TO THE TOTAL WEIGHT OF THE SHIPMENT."

THE FEDERAL TRAVEL REGULATIONS HAVE THE FORCE AND EFFECT OF LAW AND MAY NOT BE WAIVED OR MODIFIED BY THE EMPLOYING AGENCY OR THE GENERAL ACCOUNTING OFFICE REGARDLESS OF THE EXISTENCE OF ANY EXTENUATING CIRCUMSTANCES. SEE ROBERT J. FUREY, B-193397, FEBRUARY 22, 1980. THEREFORE, MR. MCGEE IS REQUIRED TO PAY THE GOVERNMENT THE CHARGES INCURRED INCIDENT TO THE SHIPMENT OF THE EXCESS WEIGHT AS COMPUTED IN ACCORDANCE WITH PARAGRAPH 2-8.3.B(5) OF THE FEDERAL TRAVEL REGULATIONS.

MR. MCGEE ALSO CONTENDS THAT HE SHOULD BE ALLOWED TO ADJUST HIS TOTAL NET WEIGHT IN ACCORDANCE WITH PARAGRAPH M8002.2 OR VOLUME 1 OF THE JOINT TRAVEL REGULATIONS. THIS WOULD HAVE THE EFFECT OF REDUCING THE TOTAL NET WEIGHT BY 10 PERCENT BY ALLOWING FOR THE WEIGHT OF INTERIOR PACKING MATERIALS USED IN THE SHIPMENT. FURTHER, MR. MCGEE CONTENDS THAT THE 500 POUNDS ANNOTATED ON THE SHIPPING DOCUMENTS AS "O/F" (PRESUMABLY, "OVERFLOW") SHOULD NOT BE ALLOWED TO BE ADDED TO INCREASE THE NET WEIGHT OF HIS HOUSEHOLD GOODS SHIPMENT. INCORPORATING THESE CONTENTIONS INTO THE ADJUSTMENT OF HIS EXCESS WEIGHT, MR. MCGEE ALLEGES THAT HIS EXCESS WEIGHT TOTAL SHOULD BE ADJUSTED FROM 4,200 POUNDS TO 2,248 POUNDS, THEREBY ENTITLING HIM TO A $520.94 REDUCTION IN THE EXCESS WEIGHT CHARGES.

AS WE HAVE INDICATED, THE REGULATIONS GOVERNING THE TRANSPORTATION OF MR. MCGEE'S HOUSEHOLD GOODS ARE SET FORTH AT CHAPTER 2, PART 8 OF THE FEDERAL TRAVEL REGULATIONS WHICH IMPLEMENT THE SPECIFIC STATUTORY ENTITLEMENT PROVIDED IN SECTION 5724 OF TITLE 5, UNITED STATES CODE. IN CONTRAST, MEMBERS OF THE UNIFORMED SERVICES ARE ENTITLED TO EXPENSES IN CONNECTION WITH THE TRANSPORTATION OF HOUSEHOLD GOODS PURSUANT TO THE STATUTORY AUTHORITY CONTAINED IN SECTION 406 OF TITLE 37, UNITED STATES CODE. MEMBERS OF THE UNIFORMED SERVICES IS VOLUME 1 OF THE TWO VOLUMES COMPRISING THE JOINT TRAVEL REGULATIONS. IT CONTAINS BASIC REGULATIONS CONCERNING TRAVEL AND TRANSPORTATION ALLOWANCES OF MEMBERS OF THE UNIFORMED SERVICES, INCLUDING ALL REGULAR AND RESERVE COMPONENTS THEREOF. WHEN NECESSARY, THESE REGULATIONS ARE SUPPLEMENTED BY ADMINISTRATIVE REGULATIONS OF THE SERVICE CONCERNED. IN VIEW OF THESE QUALIFICATIONS, THE PROVISIONS OF VOLUME 1 OF THE JOINT TRAVEL REGULATIONS MAY NOT BE APPLIED TO THE CIRCUMSTANCES OF MR. MCGEE'S CLAIM.

IN REGARD TO HE 500 POUNDS OF "OVERFLOW" HOUSEHOLD GOODS WHICH ARE ITEMS WEIGHED SEPARATELY FOR INCLUSION IN THE TOTAL NET WEIGHT OF A HOUSEHOLD GOODS SHIPMENT - WE ARE UNPERSUADED BY MR. MCGEE'S UNSUBSTANTIATED CONTENTION THAT SUCH OVERFLOW WEIGHT SHOULD BE EXCLUDED. THIS OFFICE HAS CONSISTENTLY HELD THAT THE QUESTION OF WHETHER AND TO WHAT EXTENT AUTHORIZED SHIPPING WEIGHTS HAVE BEEN EXCEEDED IN THE SHIPMENT OF HOUSEHOLD EFFECTS AND THE EXCESS COSTS INVOLVED ARE CONSIDERED TO BE MATTERS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY AND ORDINARILY WILL NOT BE QUESTIONED IN THE ABSENCE OF EVIDENCE SHOWING SUCH DETERMINATION TO BE CLEARLY IN ERROR. FREDRIC NEWMAN, B-195256, NOVEMBER 15, 1979.

IN THE PRESENT CASE, ALTHOUGH A PHOTOCOPY APPEARING IN THE RECORD OF THE WEIGHT TICKET ANNOTATING THE ADDITIONAL 500 POUNDS OF OVERFLOW WEIGHT DOES NOT APPEAR TO HAVE BEEN EXECUTED BY A CERTIFIED WEIGHTMASTER, THE ONLY BASIS FOR THIS OFFICE TO QUESTION THE AGENCY'S DETERMINATION OF EXCESS WEIGHT WOULD BE THE PRESENTATION OF SUFFICIENT EVIDENCE SHOWING SUCH DETERMINATION TO BE CLEARLY IN ERROR. SEE FREDRIC NEWMAN, CITED ABOVE. THUS, WE BELIEVE THE AGENCY'S ACCEPTANCE OF THE NET WEIGHT ANNOTATED ON THE BILL OF LADING WAS PROPER FOR PURPOSES OF ESTABLISHING THE TOTAL NET WEIGHT OF MR. MCGEE'S HOUSEHOLD GOODS SHIPMENT. SEE ALSO PARAGRAPH 2- 8.2.B(1) OF THE FEDERAL TRAVEL REGULATIONS.

FINALLY, MR. MCGEE QUESTIONS THE MANNER IN WHICH HIS CLAIM WOULD HAVE BEEN HANDLED HAD HE BEEN ALLOWED TO UTILIZE THE "COMMUTED RATE" BASIS RATHER THAN THE ACTUAL EXPENSE METHOD AUTHORIZED BY THE AGENCY. ALTHOUGH PRESENTED HYPOTHETICALLY IN THIS CASE, THE SUBSTANCE OF THIS QUESTION HAS BEEN CLEARLY ADDRESSED BY PREVIOUS DECISIONS OF THIS OFFICE.

WE HAVE STATED THAT EACH AGENCY OF THE GOVERNMENT IS RESPONSIBLE FOR DETERMINING WHETHER THE COMMUTED RATE SYSTEM OR THE ACTUAL EXPENSE METHOD (GOVERNMENT BILL OF LADING) WILL BE USED FOR TRANSPORTATION OF AN EMPLOYEE'S HOUSEHOLD GOODS. THE PRIMARY REASON FOR UTILIZING THE ACTUAL EXPENSE METHOD OF SHIPMENT IN A GIVEN CASE IS THAT SUCH METHOD WILL RESULT IN COSTS TO THE GOVERNMENT SUBSTANTIALLY LOWER THAN THE COMMUTED RATE. ALAN LEE OLSON, B-191518, OCTOBER 10, 1978. IN THE PRESENT CASE, THE AGENCY REPORTS THAT "THE POLICY SET BY THE DEPARTMENT OF INTERIOR IS TO USE THE ACTUAL EXPENSE METHOD FOR ALL INDIVIDUAL HOUSEHOLD GOODS SHIPMENTS WHEN THE GSA (GENERAL SERVICES ADMINISTRATION) COST COMPARISON RESULTS IN A SAVINGS OF $100 OR MORE PER SHIPMENT." AND, AS THE AGENCY STATES, THE SAVINGS CRITERIA OF THE COSTS COMPARISON FORMED THE BASIS FOR THE AUTHORIZATION TO MOVE MR. MCGEE'S HOUSEHOLD GOODS BY THE ACTUAL EXPENSE METHOD. IN THESE CIRCUMSTANCES THERE IS NO LEGAL BASIS ON WHICH TO CHALLENGE THE AGENCY'S DETERMINATION.

ACCORDINGLY, MR. MCGEE'S RECLAIM VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT, OR OTHERWISE APPLIED TO REDUCE THE TOTAL OF HIS EXCESS WEIGHT CHARGES.