B-135583, APR. 30, 1958

B-135583, APR. 30, 1958

TO CHAIRMAN, ATOMIC ENERGY COMMISSION:

ON MARCH 21, 1958, THE GENERAL MANAGER SUBMITTED FOR OUR CONSIDERATION FOUR QUESTIONS REGARDING THE PROPRIETY OF MAKING REIMBURSEMENT PAYMENTS ON A COMMUTED BASIS TO EMPLOYEES OF THE ATOMIC ENERGY COMMISSION FOR THEIR EXPENSES OF TRANSPORTATION OF THEIR HOUSEHOLD GOODS INCIDENT TO THE RECENT TRANSFER OF THE COMMISSION'S HEADQUARTERS FROM WASHINGTON, D.C., TO GERMANTOWN, MARYLAND.

THE GENERAL MANAGER FURNISHED US COPIES OF THE INSTRUCTIONS AND "NEWS" RELEASES WHICH ADVISED THE COMMISSION'S EMPLOYEES FROM TIME TO TIME CONCERNING THE PLANS FOR TRANSFER OF HEADQUARTERS, SUBSEQUENT TO THE GENERAL MANAGER'S MEMORANDUM OF JULY 29, 1955. THAT MEMORANDUM INFORMED ALL WASHINGTON EMPLOYEES THAT "AS EMPLOYEES CONSIDER THE PROBLEM OF MOVING THEIR PLACES OF RESIDENCE TO A MORE FAVORABLE LOCATION WITH RESPECT TO THE NEW SITE, THEY MAY BE ASSURED THAT THE COMMISSION PLANS TO REIMBURSE THEM FOR THE COST OF MOVING THEIR HOUSEHOLD TO THE EXTENT THAT SUCH PAYMENTS ARE CONSISTENT WITH APPLICABLE LAWS AND REGULATIONS.'

IN THAT REGARD, PUBLIC LAW 85-162 APPROVED AUGUST 21, 1957, 71 STAT. 403, 407, IN PERTINENT PART IS AS FOLLOWS:

"SEC. 109. EXPENSES FOR MOVE TO NEW PRINCIPAL OFFICE.--- (A) THE COMMISSION IS AUTHORIZED TO USE ITS FUNDS FOR THE FOLLOWING PURPOSES IN ORDER TO FACILITATE RETENTION AND RELOCATION OF COMMISSION HEADQUARTERS EMPLOYEES IN THE COURSE OF AND FOLLOWING ESTABLISHMENT OF A NEW PRINCIPAL OFFICE OUTSIDE THE DISTRICT OF COLUMBIA, AND WITHOUT LIMITATION ON THE COMMISSION'S AUTHORITY UNDER EXISTING LAW, AS FOLLOWS:

"/1) ALLOWANCE AND PAYMENT FOR TRAVEL AND TRANSPORTATION AUTHORIZED BY SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, IN CONNECTION WITH THE RELOCATION OF RESIDENCE OCCURRING AFTER JULY 29, 1955, PRIOR TO THE EFFECTIVE DATE OF THE EMPLOYEE'S CHANGE OF OFFICIAL STATION: PROVIDED, HOWEVER, THAT EACH EMPLOYEE WHO RECEIVED PAYMENTS UNDER THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED, PRIOR TO HIS CHANGE OF OFFICIAL STATION SHALL BE OBLIGATED TO REIMBURSE THE AMOUNT THEREOF TO THE GOVERNMENT AS A DEBT DUE THE UNITED STATES IF HE SEPARATES FROM COMMISSION EMPLOY, OTHER THAN FOR REASONS BEYOND HIS CONTROL OR OTHERWISE ACCEPTABLE TO THE COMMISSION, PRIOR TO THE EFFECTIVE DATE OF THE EMPLOYEE'S CHANGE OF OFFICIAL STATION.'

THE QUESTIONS PRESENTED FOR OUR CONSIDERATION ARE STATED AS FOLLOWS:

"1. CERTAIN EMPLOYEES MOVED DURING THE PERIOD WITHIN WHICH ENCLOSURE NO. 2,"GOVERNMENT RULES AND REGULATIONS ON REIMBURSEMENT FOR MOVEMENT OF HOUSEHOLD GOODS," WAS IN EFFECT (PRIOR TO AUGUST 7, 1957). THEY HAVE SUBMITTED CLAIMS FOR REIMBURSEMENT AT COMMUTED RATES BASED ON CONSTRUCTIVE WEIGHTS LESS THAN THE APPROPRIATE MAXIMUM ALLOWANCE. THEY ARE UNABLE TO MAKE THE APPROPRIATE CERTIFICATION AS TO UNAVAILABILITY OF SCALES. THE AMOUNT CLAIMED IN EACH CASE EXCEEDS THE EMPLOYEE'S ACTUAL EXPENDITURE. MAY REIMBURSEMENT PROPERLY BE MADE AT COMMUTED RATES BASED ON CONSTRUCTIVE WEIGHT?

"2. OTHER EMPLOYEES WHO MOVED AFTER THE SOMEWHAT MORE EXPLICIT AUGUST 3, 1957, (ENCLOSURE NO. 3) INSTRUCTIONS WERE ISSUED ALSO FAILED TO OBTAIN STATEMENTS OF ACTUAL WEIGHTS AND ARE UNABLE TO MAKE THE NECESSARY CERTIFICATION. MAY THESE EMPLOYEES BE REIMBURSED AT COMMUTED RATES BASED ON CONSTRUCTIVE WEIGHT?

"3. SOME OF THE EMPLOYEES IN CATEGORY NO. 1 MOVED GOODS WEIGHING IN EXCESS OF THE MAXIMUM. FOR EXAMPLE, THE CONSTRUCTIVE WEIGHT OF A SHIPMENT WAS 5,100 POUNDS, THE EMPLOYEE'S LIMIT 2,500 POUNDS. IF YOUR DETERMINATION OF QUESTION NO. 1 IS IN THE NEGATIVE, MAY THESE EMPLOYEES BE REIMBURSED FOR THEIR TOTAL ACTUAL EXPENSES, NOT TO EXCEED THE COMMUTED RATE FOR 2,500 POUNDS. OR IS REIMBURSEMENT TO BE LIMITED TO 2500/5100 OF THE ACTUAL COST?

"4. IN MARCH 1956 AN EMPLOYEE WAS TRANSFERRED FO THE CONVENIENCE OF THE GOVERNMENT FROM AN AEC FIELD OFFICE TO HEADQUARTERS. HE TOOK RESIDENCE IN AN AREA WHICH WAS CLOSER TO THE THEN EXISTING HEADQUARTERS THAN TO THE SITE OF THE NEW HEADQUARTERS. THE TRANSPORTATION OF HIS HOUSEHOLD EFFECTS WAS EFFECTED BY A BILL OF LADING INDICATING A CERTIFIED WEIGHT OF 6,100 POUNDS.

"IN MARCH 1957 THE EMPLOYEE MOVED TO KENSINGTON, MARYLAND. THE ACTUAL WEIGHT OF THE SECOND SHIPMENT WAS NOT OBTAINED. THE EMPLOYEE HAS CERTIFIED THAT ALL OF THE ARTICLES COVERED IN THE FIRST SHIPMENT OF 6,100 POUNDS WERE INCLUDED IN THE SECOND MOVE AND CLAIMED REIMBURSEMENT ON SUCH WEIGHT AT THE COMMUTED RATES. MAY REIMBURSEMENT FOR 6,100 POUNDS BE MADE ON THIS BASIS?

THE GENERAL MANAGER SAYS: "THE EMPLOYEES INVOLVED HAVE NO PROOF OF THE ACTUAL WEIGHT OF THEIR SHIPMENTS; NEITHER DO THE SITUATIONS INVOLVED CLEARLY COME WITHIN THE CATEGORY WHERE USE OF CONSTRUCTIVE WEIGHT IS AUTHORIZED.' THE ESTABLISHMENT OF ONE OF THOSE TWO FACTORS IS REQUIRED FOR ALLOWANCE OF COMMUTED RATES UNDER EXECUTIVE ORDER NO. 9805, AS AMENDED, ISSUED PURSUANT TO SECTION 1 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-1. WHEN NEITHER OF THESE TWO FACTORS CAN BE ESTABLISHED REIMBURSEMENT FOR TRANSPORTATION OF HOUSEHOLD EFFECTS MAY BE MADE ONLY FOR ACTUAL EXPENSES INCURRED PURSUANT TO THE PRINCIPLE ANNOUNCED IN 28 COMP. GEN. 95.

WE HAVE CAREFULLY CONSIDERED THE SUBMITTED FACTS AND CIRCUMSTANCES; HOWEVER, WE ARE POWERLESS TO AUTHORIZE OR APPROVE PAYMENT OF THE COMMUTED RATE UPON THE BASIS SUGGESTED IN THE GENERAL MANAGER'S LETTER. AS ALREADY STATED ABOVE, IN ORDER TO ENTITLE AN EMPLOYEE TO A COMMUTED RATE OF REIMBURSEMENT, EXECUTIVE ORDER NO. 9805 REQUIRES EITHER A CERTIFICATE OF ACTUAL WEIGHT OR A CERTIFICATE OF THE PROPERLY LOADED VAN SPACE OF THE SHIPMENT FROM WHICH THE "CONSTRUCTIVE WEIGHT" MAY BE COMPUTED.

THEREFORE, THE GENERAL QUESTIONS UNDER NOS. 1 AND 2 ARE ANSWERED IN THE NEGATIVE.

AS TO THE QUESTION UNDER NO. 3, IT APPEARING THAT THE EMPLOYEES HAVE NOT FURNISHED PROPER PROOF OF "CONSTRUCTIVE" WEIGHT, THE PRACTICAL SOLUTION TO THE AMOUNT OF REIMBURSEMENT IN THE EXAMPLE GIVEN ON ACCOUNT OF AN EXCESS OF ESTIMATED WEIGHT WOULD, UPON THE PRESENT RECORD, SEEM PROPERLY FOR LIMITING TO 2500/5100 OF THE ACTUAL COSTS.

REGARDING QUESTION 4, THE FACT, AS ALLEGED, THAT THE SECOND SHIPMENT MAY HAVE CONSISTED OF THE SAME ARTICLES AS WERE MOVED IN THE FIRST SHIPMENT IN RESPECT OF WHICH A CERTIFIED WEIGHT WAS INDICATED DOES NOT NECESSARILY ESTABLISH A PROPER BASIS FOR COMPUTING THE TRANSPORTATION COSTS OF THE SECOND SHIPMENT UPON A COMMUTED BASIS. UPON THE PRESENT RECORD REIMBURSEMENT OF ONLY ACTUAL COSTS PURSUANT TO THE PRINCIPLE STATED IN 28 COMP. GEN. 95 IS AUTHORIZED.

IF IN ANY CASE INVOLVED IN THE SUBMITTED QUESTIONS, THE EMPLOYEES CAN FURNISH ACCEPTABLE EVIDENCE F THE WEIGHT INVOLVED UPON AN ACTUAL OR CONSTRUCTIVE WEIGHT BASIS, THE INDIVIDUAL CASES MAY BE FORWARDED TO OUR OFFICE FOR SETTLEMENT IN ACCORDANCE WITH GENERAL REGULATIONS NO. 50 --