B-206698, NOV 30, 1982

B-206698, NOV 30, 1982

DIGEST: TRANSFERRED EMPLOYEE WAS ASSESSED WEIGHT CHARGES FOR 3,300 POUNDS OVER THE STATUTORY MAXIMUM HOUSEHOLD GOODS SHIPMENT OF 11,000 POUNDS. THE EMPLOYEE ARGUES THAT THE WEIGHT CERTIFICATES WERE INVALID BECAUSE OF THE DISCREPANCY BETWEEN THE TRAILER LICENSE NUMBERS ON THE TARE AND GROSS WEIGHT CERTIFICATES, AND THUS THE AGENCY WAS IN ERROR IN PAYING THE CARRIER. BECAUSE OF EVIDENCE FURNISHED, THERE WAS NO REASON FOR THE ACCOUNTABLE OFFICER TO GO BEYOND THE DOCUMENTS PRESENTED TO HIM, AND THE RECORD TAKEN AS A WHOLE WOULD NOT CAUSE THE AUTHORIZING OFFICIAL TO QUESTION PAYMENT TO THE CARRIER. THE DISCREPANCY IN TRAILER NUMBERS, WITHOUT ADDITIONAL EVIDENCE, DOES NOT INDICATE THAT THE WEIGHT CERTIFICATES WERE CLEARLY IN ERROR SO AS TO OVERRULE THE AGENCY'S DETERMINATION OF CORRECTNESS. CLAIM FOR REIMBURSEMENT OF EXCESS WEIGHT COSTS IS DENIED.

NORMAN SUBOTNIK - TRANSPORTATION OF HOUSEHOLD GOODS - EXCESS WEIGHT:

THIS DECISION IS IN RESPONSE TO A REQUEST BY CLARENCE E. SMITH, AN AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS), AS TO WHETHER A VOUCHER FOR $1,986.59 PRESENTED BY MR. NORMAN SUBOTNIK MAY BE CERTIFIED FOR PAYMENT. THIS AMOUNT REPRESENTS THE NET CHARGE INCURRED BY THE GOVERNMENT IN TRANSPORTING AND STORING MR. SUBOTNIK'S HOUSEHOLD GOODS IN EXCESS OF 11,000 POUNDS INCIDENT TO COMPLETION OF AN INTERGOVERNMENTAL PERSONNEL ACT (IPA) ASSIGNMENT. FOR THE FOLLOWING REASONS, WE DETERMINE THAT THIS VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.

MR. SUBOTNIK, AN EMPLOYEE OF HHS, AND HIS DEPENDENTS WERE TRANSFERRED FROM SAN DIEGO, CALIFORNIA, TO WASHINGTON, D. C., UPON COMPLETION OF AN IPA ASSIGNMENT, AS AUTHORIZED BY TRAVEL ORDER NO. 0 5285-166, DATED JULY 16, 1980. THIS AUTHORIZATION INCLUDED EXPENSES FOR TRANSPORTATION AND TEMPORARY STORAGE OF HOUSEHOLD GOODS, NOT IN EXCESS OF 11,000 POUNDS, NET WEIGHT. MR. SUBOTNIK'S HOUSEHOLD GOODS WERE SHIPPED AND STORED TEMPORARILY UNDER GOVERNMENT BILL OF LADING (GBL) S-1,192,257. THE NET WEIGHT INDICATED ON THIS GBL IS 14,300 POUNDS WHICH IS 3,300 POUNDS OVER THE ALLOWED LIMIT. THIS FIGURE IS SUPPORTED BY CALIFORNIA PUBLIC WEIGHMASTER'S CERTIFICATES WHICH SHOW A TARE WEIGHT OF 32,980 POUNDS, AND A GROSS WEIGHT OF 47,280 POUNDS. HOWEVER, THE TRAILER LICENSE NUMBER ON THE GROSS WEIGHT CERTIFICATE IS LISTED AS "PRY306" WITH MISSOURI DESIGNATED AS THE ISSUING STATE, BUT ON THE TARE WEIGHT CERTIFICATE, IT IS LISTED SIMPLY AS "PRY362." THE TRACTOR LICENSE NUMBERS ARE THE SAME ON BOTH CERTIFICATES.

UNDER THE ABOVE GBL, UNITED VAN LINES SUBMITTED A BILL FOR $7,802.68 FOR PACKING AND TRANSPORTATION CHARGES, AND A SECOND BILL FOR $1,061.06 FOR STORAGE AND WAREHOUSE DRAYAGE CHARGES. UNDER THE FIRST BILL, THE AMOUNT ATTRIBUTABLE TO THE EXCESS WEIGHT IS $1,869.70, AND UNDER THE SECOND BILL, THE AMOUNT IS $244.89. THE TOTAL INDEBTEDNESS TO THE GOVERNMENT WAS THUS $2,114.59.

SUBSEQUENTLY, MR. SUBOTNIK FULLY SATISFIED HIS INDEBTEDNESS TO THE GOVERNMENT BY PAYING BACK $2,114.59. AFTER ADMINISTRATIVE APPEALS WITHIN HHS, HE FILED HIS CLAIM FOR $1,986.59 BY VOUCHER DATED JANUARY 4, 1982. THIS AMOUNT REPRESENTS THE NET CHARGE FOR EXCESS WEIGHT, WHICH THE GOVERNMENT PAID UNDER THE GBL, LESS THE EXCESS VALUATION INSURANCE WHICH MR. SUBOTNIK DOES NOT DISPUTE.

IN CONTESTING THE WEIGHT OVERAGE, MR. SUBOTNIK ARGUES THAT THE WEIGHT CERTIFICATES WERE INVALID BECAUSE OF THE DISCREPANCY BETWEEN THE TRAILER LICENSE NUMBERS ON THE TARE AND GROSS WEIGHT CERTIFICATES, AND THUS HHS WAS IN ERROR IN PAYING UNITED VAN LINES. HE ALSO ARGUES THAT HE WAS NOT FURNISHED WITH A COPY OF THE WEIGHT CERTIFICATES BY THE DRIVER, THAT THE VAN WAS NOT EMPTY WHEN IT WAS LOADED AT HIS HOUSE, AND THAT A PREVIOUS MOVE IN 1978, AND TWO SUBSEQUENT ESTIMATES SHOULD BE CONSIDERED IN DETERMINING THE WEIGHT OF HIS HOUSEHOLD GOODS.

AUTHORITY FOR TRANSPORTING THE HOUSEHOLD EFFECTS OF TRANSFERRED EMPLOYEES AT GOVERNMENT EXPENSE IS FOUND AT 5 U.S.C. SEC. 5724(A) (1976), WHICH ALSO ESTABLISHES THE MAXIMUM WEIGHT OF THE HOUSEHOLD GOODS AUTHORIZED TO BE TRANSPORTED AS 11,000 POUNDS. THE IMPLEMENTING REGULATIONS TO THAT STATUTE ARE FOUND IN THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (MAY 1973) (FTR). PARAGRAPH 2-8.4E(2) OF THE FTR PROVIDES THAT THE EMPLOYEE IS RESPONSIBLE FOR THE PAYMENT OF COSTS ARISING FROM THE SHIPMENT OF EXCESS WEIGHT. THE IMPLEMENTING REGULATIONS ARE IN ACCORD WITH THE STATUTORY LIMITATION AND, THUS, HAVE THE FORCE AND EFFECT OF LAW. THEREFORE, REGARDLESS OF THE REASONS FOR THE SHIPMENT OF THE EXCESSIVE WEIGHT OF HOUSEHOLD GOODS, THE EMPLOYEE IS REQUIRED TO PAY THE GOVERNMENT THE CHARGES INCURRED INCIDENT TO THE SHIPMENT OF THE EXCESS WEIGHT. RICHARD L. CANAS, B-189358, FEBRUARY 8, 1978.

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 AMOUNT OF THE EXCESS COSTS INVOLVED, ARE MATTERS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY. WE WILL NOT QUESTION THE AGENCY'S DETERMINATION IN THE ABSENCE OF EVIDENCE SHOWING IT TO BE CLEARLY IN ERROR. FREDRIC NEWMAN, B-195256, NOVEMBER 15, 1979. IN THE PRESENT CASE, HHS VIEWS THE WEIGHT CERTIFICATES AS VALID DESPITE THE DIFFERENCES IN TRAILER LICENSE NUMBERS.

THERE WAS NO REASON FOR THE ACCOUNTABLE OFFICER TO GO BEYOND THE DOCUMENTS PRESENTED TO HIM. THE TRANSPORTATION VOUCHER CONTAINED THE NET WEIGHT OF 14,300 POUNDS, THE CARRIER CERTIFIED THAT THE ACCOUNT WAS CORRECT, AND THAT THE SERVICES WERE RENDERED. THE SUBVOUCHERS, THE GBL AND THE CARRIER'S BILL OF LADING, BOTH CONTAIN THE GROSS, TARE AND NET WEIGHT OF THE SHIPMENT, REFLECTING THE TARE AND GROSS WEIGHTS SHOWN ON THE WEIGHT TICKETS. NOTICE OF A DISCREPANCY IN TRAILER LICENSE NUMBERS ON THE WEIGHT TICKETS WOULD NOT NECESSARILY REQUIRE FURTHER INQUIRY SINCE BOTH CERTIFICATES CONTAIN THE EMPLOYEE'S NAME, AND THE ORIGIN AND DESTINATION OF THE SHIPMENT. AND THE TARE WEIGHT CERTIFICATE IS DATED JUNE 30, 1980, THE DATE OF THE PICKUP. FURTHER, MR. SUBOTNIK SIGNED THE CARRIER'S BILL OF LADING AT BOTH ORIGIN AND DESTINATION, THUS IN EFFECT ATTESTING TO ITS CORRECTNESS. THEREFORE, WE DO NOT BELIEVE THAT THE RECORD TAKEN AS A WHOLE WOULD CAUSE THE AUTHORIZING OFFICIAL TO QUESTION PAYMENT TO THE CARRIER. NOR DO WE BELIEVE THAT THE DISCREPANCY IN TRAILER NUMBERS INDICATES, WITHOUT ADDITIONAL EVIDENCE, THAT THE WEIGHT CERTIFICATES WERE CLEARLY IN ERROR SO AS TO OVERRULE THE HHS DETERMINATION OF CORRECTNESS.

AS TO THE QUESTION OF NOT BEING FURNISHED COPIES OF THE WEIGHT CERTIFICATES BY THE DRIVER, WE NOTE THAT THE REGULATION REQUIRING IT, 49 C.F.R. SEC. 1056.6(B) (1979), AND OTHER REGULATIONS SUCH AS REWEIGHING UPON REQUEST ARE INSTRUCTIONAL OR PROCEDURAL, AND THUS DO NOT PROVIDE A BASIS FOR RELIEVING AN EMPLOYEE FROM EXCESS WEIGHT CHARGES WHEN THE WEIGHT WAS PROPERLY ESTABLISHED AT THE ORIGIN BY WEIGHT CERTIFICATES. FREDERIC NEWMAN, PREVIOUSLY CITED.

MR. SUBOTNIK ALSO ALLEGES THAT ANOTHER SHIPMENT WAS LOADED ON THE SAME VEHICLE WITH HIS HOUSEHOLD GOODS AND THAT HE AND HIS SON WITNESSED THIS FACT. THE CARRIER, ON THE OTHER HAND, SAYS THAT:

"OUR RECORDS SHOW THAT THE VAN WAS EMPTY AT THE TIME LOADING COMMENCED ON THIS SHIPMENT. THE TARE WEIGHT OF 32,980 POUNDS REPRESENTS THE COMBINED EMPTY WEIGHT OF THE TRACTOR AND TRAILER. NO OTHER SHIPMENT WAS ON THE TRAILER WHEN THE GROSS WEIGHT WAS OBTAINED. OUR RECORDS ALSO INDICATE THAT THIS VAN THEN PROCEEDED TO PHOENIX, ARIZONA WHERE THE DRIVER LOADED ANOTHER 4800 POUND SHIPMENT ALSO DESTINED FOR THE EAST COAST. THUS, THERE IS NO POSSIBILITY THAT THE WEIGHT TICKETS OBTAINED IN SAN DIEGO WERE FOR ANOTHER SHIPMENT."

THERE IS NO FURTHER INFORMATION IN THE RECORD TO EITHER CONFIRM NOR DENY MR. SUBOTNIK'S ALLEGATION. NOR, WAS THERE A GOVERNMENT REPRESENTATIVE ON HAND TO WITNESS THE MOVE. THUS, WE ARE LEFT WITH THE WRITTEN RECORD AS PRESENTED. IN ORDER TO REBUT THE PRESUMPTION THAT THE WEIGHT CERTIFICATES WERE CORRECT, MR. SUBOTNIK WOULD HAVE TO PRODUCE FURTHER EVIDENCE TO SHOW THAT ANOTHER SHIPMENT WAS ON THE TRAILER, AND, IF ANOTHER SHIPMENT WAS ON THE TRAILER, IT WAS NOT INCLUDED IN THE TARE WEIGHT.

MR. SUBOTNIK ASKS US TO CONSIDER EVIDENCE OF THE WEIGHT OF HIS HOUSEHOLD GOODS ON HIS PREVIOUS MOVE TO SAN DIEGO, CALIFORNIA, IN 1978, AND TWO SUBSEQUENT ESTIMATES OF THE WEIGHT ON THE MOVE NOW IN DISPUTE. MR. SUBOTNIK ADMITS THAT THE INVENTORY SHEETS OF HIS 1978 MOVE SHOWED 286 ITEMS WEIGHING 9,840 POUNDS, AND THE INVENTORY SHEETS ON HIS DISPUTED MOVE SHOWED 355 ITEMS WEIGHING 14,300 POUNDS. THE TWO ESTIMATES OBTAINED BY MR. SUBOTNIK, AFTER THE HOUSEHOLD GOODS WERE DELIVERED, INDICATE A WEIGHT OF 11,000, AND 11,500 POUNDS. HOWEVER, MR. SUBOTNIK ACTUALLY SHIPPED APPROXIMATELY TWO TO THREE TIMES AS MANY CARTONS AND BOXES AS WERE SHOWN ON THE ESTIMATES. FURTHERMORE, THE FACT THAT THE CERTIFIED ACTUAL WEIGHT IS CONSIDERABLY MORE THAN THE ESTIMATED WEIGHT PROVIDES NO BASIS FOR PAYING MR. SUBOTNIK'S CLAIM. ESTIMATES CANNOT OVERCOME THE FACT THAT THE ACTUAL WEIGHT CERTIFICATES INDICATE A MUCH HIGHER NET WEIGHT. JOSEPH S. MONTALBANO, B-197046, FEBRUARY 19, 1980. IN ANY EVENT, IT HAS LONG BEEN OUR VIEW THAT THE WEIGHT OF A PRIOR OR SUBSEQUENT MOVE IS NOT NECESSARILY INDICATIVE OF THE WEIGHT OF THE MOVE IN QUESTION BECAUSE OF THE POSSIBILITY OF INCLUSION OR EXCLUSION OF ITEMS WHICH WOULD VARY THE PRIOR OR SUBSEQUENT WEIGHTS. GEORGE R. HALPIN, B-198367, MARCH 26, 1981. FACT, THAT IS THE CASE HERE SINCE MR. SUBOTNIK HAS PROVIDED A LIST, WITHOUT CORRESPONDING WEIGHTS, OF THE ITEMS HE DISPOSED OF AND LATER ACQUIRED DURING HIS TOUR OF DUTY.

IN THIS CASE, THE INVALIDITY OF THE NET WEIGHT HAS NOT BEEN ESTABLISHED. HOWEVER, RESOLUTION OF THE ISSUE OF THE VALIDITY OF THE WEIGHT CERTIFICATE IN MR. SUBOTNIK'S FAVOR WOULD NOT ULTIMATELY BE DISPOSITIVE OF WHETHER AND IN WHAT AMOUNT HE IS LIABLE FOR EXCESS WEIGHT CHARGES. MR. SUBOTNIK ARGUES THAT THE AGENCY'S RELIANCE, IN REIMBURSING THE CARRIER, ON WEIGHT CERTIFICATES THAT SHOW TWO DIFFERENT TRAILER NUMBERS WAS CLEARLY IN ERROR, AND HE SHOULD NOT BE BOUND BY THE AGENCY'S DETERMINATION MADE ON SUCH A BASIS. THUS, HE SAYS HE SHOULD BE RELIEVED FROM ANY LIABILITY FOR AN ALLEGED EXCESS OF THE WEIGHT OF HIS HOUSEHOLD GOODS SHIPMENT.

THIS ARGUMENT MUST FAIL BECAUSE THE INVALIDATION OF A WEIGHT CERTIFICATE DOES NOT MEAN THAT THE AGENCY MAY NOT CLAIM EXCESS WEIGHT COSTS IN THE MOVE. IN WILLIAM A. SCHMIDT, JR., B-199780, APRIL 8, 1982 61 COMP.GEN. , WE HELD THAT WHERE AN ERROR HAS BEEN COMMITTED IN DETERMINING THE NET WEIGHT OF HOUSEHOLD GOODS SHIPPED BY THE ACTUAL EXPENSE METHOD UNDER A GBL, A CONSTRUCTIVE SHIPMENT WEIGHT SHOULD BE OBTAINED BASED ON 7 POUNDS PER CUBIC FOOT AS PROVIDED FOR BY PARAGRAPH 2-8.2B(4) OF THE FTR. CORRECT THE ERROR, THE CONSTRUCTIVE WEIGHT OF THE MISWEIGHED SHIPMENT WOULD BE CORRECTED AND SUBSTITUTED FOR THE INCORRECT ACTUAL WEIGHT.

THE CONSTRUCTIVE WEIGHT OF MR. SUBOTNIK'S HOUSEHOLD GOODS SHIPMENT DOES NOT APPEAR IN THE RECORD, AND WE WOULD PRESUME THAT SUCH A COMPUTATION AT THIS DATE WOULD BE UNOBTAINABLE. HOWEVER, AS THE CARRIER POINTS OUT, IT IS A GENERALLY ACCEPTED RULE OF THUMB IN THE HOUSEHOLD GOODS MOVING INDUSTRY THAT THE AVERAGE WEIGHT PER INVENTORY LINE ITEM IS 40 POUNDS. SEE MAJOR JAMES E. TRUE, USAF, B-206951, JULY 12, 1982. THE INVENTORY FOR MR. SUBOTNIK'S SHIPMENT CONTAINS 355 LINE ITEMS. THUS, APPLICATION OF THE 40 POUNDS AVERAGE WEIGHT PER LINE ITEM RESULTS IN A WEIGHT OF 14,200 POUNDS VERSUS THE ACTUAL WEIGHT AS DETERMINED BY THE WEIGHT CERTIFICATES OF 14,300 POUNDS. WE REALIZE THAT THE 7 POUNDS PER CUBIC FOOT, AND THE INDUSTRY STANDARD OF 40 POUNDS PER LINE ITEM ARE ONLY ESTIMATES AND THAT THE ACTUAL WEIGHT OF THE SHIPMENT MAY VARY UPWARD OR DOWNWARD. HOWEVER, WE BELIEVE THAT THE ALTERNATE METHODS ARE A RELIABLE INDICATION OF THE ACTUAL WEIGHT SHIPPED SO THAT THEY COULD BE USED AS A SUBSTITUTE IN THE EVENT THE ACTUAL WEIGHT IS NOT AVAILABLE OR LATER PROVEN INCORRECT. THIS CASE THE INDUSTRY STANDARD IS A STRONG INDICATION OF THE VALIDITY OF THE WEIGHT CERTIFICATE.

ACCORDINGLY, IN VIEW OF THE ABOVE, MR. SUBOTNIK'S VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.