B-189818, FEB 14, 1978

B-189818, FEB 14, 1978

HEADNOTE-UNAVAILABLE EMPLOYEE'S MOTHER WHO LIVES ON SOCIAL SECURITY INCOME AND RESIDES IN HER TRAILER IN PENNSYLVANIA FOR 7 MONTHS OF EACH YEAR, BUT STAYS WITH EMPLOYEE FOR THE 5 WINTER MONTHS OF EACH YEAR, HAS ESTABLISHED HER OWN HOUSEHOLD. REGARDLESS OF WHETHER SHE MAY BE REGARDED AS A DEPENDENT PARENT, SHE WAS NOT A MEMBER OF EMPLOYEE'S HOUSEHOLD AT THE TIME THE EMPLOYEE REPORTED FOR DUTY AT THE NEW PERMANENT STATION. EMPLOYEE IS, THEREFORE, AN EMPLOYEE "WITHOUT IMMEDIATE FAMILY" SUBJECT TO THE 5,000 POUND LIMITATION ON TRANSPORTATION OF HOUSEHOLD GOODS.

MARJORIE J. LOWRY - TRANSPORATION OF HOUSEHOLD GOODS - WEIGHT LIMITATION:

MR. GARY A. WARD, AN AUTHORIZED CERTIFYING OFFICER AT THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION (LEAA), REQUESTS AN ADVANCE DECISION AS TO WHETHER MS. MARJORIE J. LOWRY, AN EMPLOYEE OF THE LEAA, MAY BE REIMBURSED FOR SHIPMENT OF HOUSEHOLD GOODS WEIGHING IN EXCESS OF THE 5,000-POUND MAXIMUM APPLICABLE TO EMPLOYEES WITHOUT IMMEDIATE FAMILIES. HE STATES THAT LEAA IS IN DOUBT AS TO WHETHER MS. LOWRY MEETS THE REQUIREMENTS FOR WAIVER OF THE 5,000-POUND LIMITATION.

THE RECORD SHOWS THAT MS. LOWRY WAS TRANSFERRED FROM WASHINGTON D.C., TO KANSAS CITY, KANSAS, IN MARCH OF 1975. MOVEMENT OF HER HOUSEHOLD GOODS AND PERSONAL EFFECTS WAS AUTHORIZED ON A COMMUTED RATE BASIS. MS. LOWRY'S HOUSEHOLD GOODS TOTALED 6,640 POUNDS NET WEIGHT, 1,640 POUNDS IN EXCESS OF THE 5,000-POUND NET WEIGHT LIMITATION FOR EMPLOYEES WITHOUT IMMEDIATE FAMILIES IMPOSED BY PARAGRAPH 2-8.2A OF THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR-101-7, MAY 1973).

MS. LOWRY CONTENDS THAT SHE SHOULD BE REIMBURSED FOR THE SHIPMENT OF THIS EXCESS WEIGHT BECAUSE HER 72 YEAR OLD MOTHER RESIDES WITH HER FOR 5 MONTHS OF THE YEAR. FOR THIS REASON MS. LOWRY MAINTAINS A TWO BEDROOM APARTMENT. SHE CONTENDS THAT THE 1,640 POUNDS OF EXCESS WEIGHT APPROXIMATES THE WEIGHT OF FURNISHINGS FOR ONE BEDROOM. MS. LOWRY INDICATES THAT HER MOTHER RECEIVES $232.20 PER MONTH IN SOCIAL SECURITY PAYMENTS AND OWNS A TRAILER IN WHICH SHE LIVES FOR 7 MONTHS OF THE YEAR IN PENNSYLVANIA. HER MOTHER PAYS FOR UTILITIES, TAXES, INSURANCE, AND NECESSARY LIVING EXPENSES OUT OF INCOME FROM SOCIAL SECURITY PAYMENTS. THE EMPLOYEE STATES THAT BECAUSE OF HER MOTHER'S AGE AND BAD ROAD CONDITIONS IN PENNSYLVANIA DURING THE WINTER HER MOTHER MUST RESIDE WITH HER FROM NOVEMBER THROUGH MARCH. DURING SUCH PERIOD, MS. LOWRY PROVIDES A HOME, FOOD, ENTERTAINMENT, AND OTHER NECESSITIES FOR HER MOTHER. SHE EXPLAINS THAT IN VIEW OF THESE CIRCUMSTANCES HARDSHIP WOULD RESULT FROM IMPOSITION OF THE 5,000-POUND LIMITATION IN HER CASE.

WITH RESPECT TO THE QUANTITY OF HOUSEHOLD GOODS THAT MAY BE TRANSPORTED AT GOVERNMENT EXPENSE INCIDENT TO TRANSFER, PARAGRAPH 2 8.2A OF THE FTR PROVIDES:

"A. MAXIMUM WEIGHT ALLOWANCE. THE MAXIMUM WEIGHT OF HOUSEHOLD GOODS WHICH MAY BE TRANSPORTED OR STORED IN CONNECTION THEREWITH IS LIMITED TO 11,000 POUNDS NET WEIGHT FOR EMPLOYEES WITH IMMEDIATE FAMILIES AND 5,000 POUNDS NET WEIGHT FOR EMPLOYEES WITHOUT IMMEDIATE FAMILIES. HOWEVER, IF IN AN INDIVIDUAL CASE AN EMPLOYEE WITHOUT IMMEDIATE FAMILY POSSESSES HOUSEHOLD GOODS EXCEEDING THE 5,000-POUND LIMIT, THE LIMIT MAY BE EXTENDED UP TO 11,000 POUNDS NET WEIGHT, PROVIDED THAT (1) THE EMPLOYEE ACQUIRED ALL OR A SUBSTANTIAL PORTION OF THE PROPERTY BECAUSE HE HAD BEEN THE HEAD OF HER OR A MEMBER OF A LARGER HOUSEHOLD (AS WHEN THE EMPLOYEE'S SPOUSE HAS DIED) AND (2) IT IS DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AGENCY HEAD THAT HARDSHIP WOULD RESULT FROM APPLICATION OF THE 5,000-POUND LIMIT. ***"

PARAGRAPH 2-1.4D OF THE FTR DEFINES THE TERM "IMMEDIATE FAMILY" AS FOLLOWS:

"D. IMMEDIATE FAMILY. ANY OF THE FOLLOWING NAMED MEMBERS OF THE EMPLOYEE'S HOUSEHOLD AT THE TIME HE REPORTS FOR DUTY AT HIS NEW PERMANENT DUTY STATION ***:SPOUSE, CHILDREN (INCLUDING STEP-CHILDREN AND ADOPTED CHILDREN) UNMARRIED AND UNDER 21 YEARS OF AGE OR PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORTING THEMSELVES REGARDLESS OF AGE, OR DEPENDENT PARENTS OF THE EMPLOYEE AND OF EMPLOYEE'S SPOUSE."

THUS THE TERM "IMMEDIATE FAMILY" AS APPLIED TO AN EMPLOYEE'S PARENT ASSUMES BOTH THAT THE PARENT IS DEPENDENT AND A MEMBER OF THE EMPLOYEE'S HOUSEHOLD AT THE DATE OF TRANSFER.

THE TERM "DEPENDENT" IS NOT DEFINED IN THE FTR. ALTHOUGH AN EMPLOYEES'S PARENT ORDINARILY WILL NOT BE CONSIDERED DEPENDENT WHEN THE EMPLOYEE PROVIDES MORE THAN ONE-HALF OF THE PARENT'S SUPPORT, WE STATED IN 55 COMP. GEN. 462 (1975) THAT THE PERCENTAGE OF THE PARENT'S INCOME CONTRIBUTED BY THE EMPLOYEE WOULD NOT BE THE DECISIVE FACTOR IN DETERMINING DEPENDENCY. OTHER FACTORS, SUCH AS AGE AND THE PARENT'S NEED TO BE HOUSED WITH THE EMPLOYEE, ARE ALSO TO BE CONSIDERED. HOWEVER, IN THE PARTICULAR CIRCUMSTANCES, IT IS UNNECESSARY TO ADDRESS THE QUESTION OF WHETHER MS. LOWRY'S MOTHER IS HER DEPENDENT PARENT. MS. LOWRY'S MOTHER RECEIVES $232.20 PER MONTH IN SOCIAL SECURITY PAYMENTS AND OWNS A TRAILER IN WHICH SHE RESIDES APART FROM THE EMPLOYEE FROM THE END OF MARCH THROUGH THE END OF OCTOBER OF EACH YEAR. WHILE IT MAY BE REASONABLE FOR MS. LOWRY TO PROVIDE A HOME FOR HER MOTHER DURING THE WINTER MONTHS, HER MOTHER HAS ESTABLISHED HER OWN HOUSEHOLD IN PENNSYLVANIA AND WAS NOT A MEMBER OF MS. LOWRY'S HOUSEHOLD WHEN SHE REPORTED FOR DUTY AT KANSAS CITY. MS. LOWRY MAY NOT BE REGARDED AS AN EMPLOYEE WITH IMMEDIATE FAMILY UNDER FTR PARA. 2 -8.2A AND MAY BE REIMBURSED FOR SHIPPING HOUSEHOLD GOODS IN EXCESS OF 5,000 POUNDS ONLY INSOFAR AS SHE IS GRANTED AN EXCEPTION BASED ON A DETERMINATION THAT SHE ACQUIRED ALL OR A SUBSTANTIAL PORTION OF THE HOUSEHOLD GOODS AS THE HEAD OF OR A MEMBER OF A LARGER HOUSEHOLD AND THAT HARDSHIP WOULD RESULT FROM APPLICATION OF THE 5,000-POUND LIMITATION.

THE LEAA HAS NOT MADE A DETERMINATION THAT ALL OR A SUBSTANTIAL PORTION OF MS. LOWRY'S PROPERTY WAS ACQUIRED WHILE THE HEAD OF OR A MEMBER OF A LARGER HOUSEHOLD NOR HAS THE LEAA DETERMINED THAT HARDSHIP WOULD RESULT FROM APPLICATION OF THE 5,000-POUND LIMITATION IN MS. LOWRY'S CASE. BASED ON AN EXAMINATION OF THE RECORD WE CONCUR WITH LEAA'S DETERMINATION THAT MS. LOWRY HAS NOT PRESENTED EVIDENCE TO SUPPORT THE DUAL FINDING NECESSARY TO GRANT AN EXCEPTION TO THE 5,000 POUND LIMITATION. ACCORDINGLY, NO BASIS EXISTS FOR EXTENDING THE 5,000 POUND LIMITATION.

FOR THE ABOVE-STATED REASONS, THE CLAIM OF MS. MARJORIE J. LOWRY FOR THE ADDITIONAL EXPENSE OF MOVING 1,640 POUNDS OF EXCESS HOUSEHOLD GOODS MAY NOT BE PAID, AND SHE IS ENTITLED TO REIMBURSEMENT FOR TRANSPORATION OF ONLY 5,000 POUNDS OF HOUSEHOLD EFFECTS.