B-180461, AUG 15, 1974

B-180461, AUG 15, 1974

WHERE AN EMPLOYEE ASSIGNED TO MANILA, REPUBLIC OF THE PHILIPPINES, PURCHASED AN AUTOMOBILE AND CLAIMED TRANSPORTATION COSTS FROM NAGOYA, JAPAN, TO MANILA, HE MAY NOT BE REIMBURSED SINCE THE VEHICLE WAS NOT OF AMERICAN MANUFACTURE, WAS NOT TRANSPORTED FROM THE CONTERMINCUS UNITED STATES, AND IS TO BE USED PRIMARILY FOR THE EMPLOYEE'S CONVENIENCE, NOT FOR THE ADVANTAGE OF THE GOVERNMENT, AS REQUIRED BY THE FEDERAL TRAVEL REGULATIONS.

SHIPMENT OF PRIVATELY OWNED AUTOMOBILE OVERSEAS

THIS DECISION CONCERNS THE PROPRIETY OF REIMBURSING JAMES C. MAHER, AN EMPLOYEE OF THE DEPARTMENT OF THE TREASURY, FOR THE SHIPPING AND WHARF CHARGES INCURRED BY HIM FOR SHIPMENT OF AN AUTOMOBILE FROM NAGOYA, JAPAN, TO HIS DUTY STATION IN MANILA, REPUBLIC OF THE PHILIPPINES.

MR. MAHER, AN ASSISTANT REGIONAL DISBURSING OFFICER, WAS TRANSFERRED TO MANILA IN FEBRUARY 1972. IN AUGUST 1973 MR. MAHER ARRIVED AT THE CONCLUSION THAT A CAR WAS A NECESSITY AND ORDERED ONE FOR DELIVERY TO MANILA. HE NOW SEEKS REIMBURSEMENT FOR CHARGES INCURRED FOR SHIPMENT OF THE AUTOMOBILE.

REIMBURSEMENT FOR SUCH EXPENSES IS GOVERNED BY THE FEDERAL TRAVEL REGULATIONS (FTR), FPMR 101-7, WHICH IMPLEMENT 5 U.S.C. 5727. SECTION 2- 10.3D, FTR, PROVIDES IN RELEVANT PART:

"(1) WHEN PRIVATELY OWNED VEHICLE BECOMES NECESSARY. IF, AFTER AN EMPLOYEE IS ASSIGNED TO AN OFFICIAL STATION OUTSIDE THE CONTERMINOUS UNITED STATES WITHOUT AN AUTHORIZATION TO TRANSPORT A PRIVATELY OWNED VEHICLE UNDER THIS PART, IT BECOMES DESIRABLE THAT HE HAVE A PRIVATELY OWNED VEHICLE AT THAT OFFICIAL STATION AND IF THE CONDITONS OF 2-10.2 ARE MET, A VEHICLE MAY BE TRANSPORTED FROM AN APPROPRIATE POINT IN THE CONTERMINOUS UNITED STATES TO THE OFFICIAL STATION. ***"

SECTION 2-10.2C, FTR, REQUIRES AN AGENCY DETERMINATION THAT THE TRANSPORTATION IS IN THE INTEREST OF THE GOVERNMENT AND SETS FORTH SIX CONDITIONS, ALL OF WHICH MUST BE MET BEFORE A DETERMINATION MAY BE MADE. SUBSECTION (1) OF THIS REGULATION PROVIDES:

"USE OF THE PRIVATELY OWNED VEHICLE WILL NOT BE PRIMARILY FOR THE CONVENIENCE OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY."

SUBSECTION (6) OF SECTION 2-10.2C PROVIDES:

"C. AGENCY DETERMINATION REQUIRED. THE COST OF TRANSPORTING A PRIVATELY OWNED VEHICLE SHALL NOT BE AUTHORIZED UNLESS IT HAS BEEN DETERMINED BY THE HEAD OF THE AGENCY CONCERNED OR HIS DESIGNEE THAT IT IS IN THE INTEREST OF THE GOVERNMENT FOR THE EMPLOYEE TO HAVE THE USE OF HIS PRIVATELY OWNED VEHICLE AT HIS POST OUTSIDE THE CONTERMINOUS UNITED STATES. SUCH A DETERMINATION MAY BE MADE ONLY IF ALL OF THE FOLLOWING CONDITIONS ARE PRESENT:

"(1) USE OF THE PRIVATELY OWNED VEHICLE WILL NOT BE PRIMARILY FOR THE CONVENIENCE OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY;

"(2) LOCAL CONDITIONS AT THE OFFICIAL STATION WHERE THE PRIVATELY OWNED VEHICLE IS TO BE USED MAKE IT DESIRABLE FROM THE GOVERNMENT'S VIEWPOINT FOR THE EMPLOYEE TO HAVE THE USE OF A PRIVATELY OWNED VEHICLE;

"(3) USE OF A PRIVATELY OWNED VEHICLE BY THE EMPLOYEE WILL CONTRIBUTE TO HIS EFFECTIVENESS IN HIS JOB;

"(4) USE OF A PRIVATELY OWNED VEHICLE OF THE TYPE INVOLVED WILL BE SUITABLE IN THE LOCAL CONDITIONS OF THE OFFICIAL STATION;

"(5) THE COST OF TRANSPORTING THE PRIVATELY OWNED VEHICLE TO AND FROM THE OFFICIAL STATION INVOLVED WILL NOT BE EXCESSIVE CONSIDERING THE TIME THE EMPLOYEE HAS AGREED TO SERVE AT THAT OFFICIAL STATION; AND

"(6) THE PRIVATELY OWNED VEHICLE IS OF UNITED STATES MANUFACTURE UNLESS (I) THE HEAD OF THE AGENCY OR HIS DESIGNEE DETERMINES THAT ONLY VEHICLES OF FOREIGN MANUFACTURE MAY BE USED EFFECTIVELY AT THE OFFICIAL STATION CONCERNED, (II) THE PRIVATELY OWNED VEHICLE TO BE TRANSPORTED WAS PURCHASED BY THE EMPLOYEE BEFORE HE WAS AWARE THAT HE WOULD BE ASSIGNED TO DUTY AT AN OFFICIAL STATION TO WHICH THE TRANSPORTATION OF A PRIVATELY OWNED VEHICLE WOULD BE AUTHORIZED OR, (III) FOR OTHER REASONS AND TAKING INTO CONSIDERATION THE CURRENT UNITED STATES BALANCE OF PAYMENTS SITUATION IT IS DETERMINED THAT THE EMPLOYEE SHOULD BE ALLOWED TO SHIP A VEHICLE OF FOREIGN MANUFACTURE."

WITH REGARD TO THE FIRST CONDITION, THE RECORD CONTAINS A MEMORANDUM FROM MR. MAHER IN WHICH HE STATES THAT THE "CAR WILL BE USED PRIMARILY FOR HIS OWN CONVENIENCE." THE RECORD ALSO SHOWS THAT THE AGENCY PREVIOUSLY DISAPPROVED MR. MAHER'S REQUEST FOR AUTHORIZATION TO TRANSPORT AN AUTOMBILE BECAUSE HE HAD BEEN USING MASS TRANSIT FACILITIES FOR A PERIOD OF 20 MONTHS. THE PRESENT REQUEST FOR A DECISION FROM THE DEPUTY ASSISTANT COMPTROLLER FOR FINANCE RESULTS FROM A CONCLUSION BY MR. MAHER THAT PUBLIC TRANSIT FACILITIES HAVE DETERIORATED IN QUALITY. HOWEVER, NO EVIDENCE WAS PRESENTED TO SHOW THAT IT WOULD BE TO THE ADVANTAGE OF THE GOVERNMENT THAT HE HAVE AN AUTOMOBILE AT HIS POST, NOR HAS THE AGENCY REVERSED ITS EARLIER DISAPPROVAL AND DETERMINED, AS REQUIRED BY THE REGULATIONS CITED, SUPRA, THAT IT IS IN THE INTERESTS OF THE UNITED STATES FOR MR. MAHER TO HAVE HIS PRIVATELY OWNED VEHICLE AT HIS OFFICIAL STATION.

THE RECORD ALSO INDICATES THAT THE CAR IN QUESTION WAS NOT OF AMERICAN MANUFACTURE, ALTHOUGH IT DID CARRY A UNITED STATES TRADEMARK, AND THUS MAY NOT MEET THE CONTITIONS OF SUBSECTION (6) UNLESS THE AGENCY EXERCISES ITS RIGHT TO WAIVE THIS REQUIREMENT FOR ONE OF THE STATED REASONS. THERE IS NO INDICATION IN THE RECORD THAT THE PROVISIONS OF SUBSECTION (6) WERE EVEN CONSIDERED.

FINALLY, IT APPEARS THAT THE VEHICLE IN QUESTION WAS NOT SHIPPED FROM THE CONTERMINOUS UNITED STATES, AS AUTHORIZED BY SECTION 2-10.3D, SUPRA, BUT FROM NAGOYA, JAPAN. THERE APPEARS TO BE SOME LEEWAY IN SECTION 2-10.4B OF FPMR 101-7 FOR PAYMENT OF EXPENSES FROM "ALTERNATE ORIGINS" WHERE THE COSTS WOULD NOT EXCEED THE COST OF TRANSPORTATION FROM THE AUTHORIZED PLACE OF ORIGIN. THIS WOULD ALSO REQUIRE AN ADMINISTRATIVE DETERMINATION.

ON THE BASIS OF PRESENT RECORD, WE MUST FIND THAT THERE IS NO LEGAL BASIS TO AUTHORIZE SHIPMENT OF HIS AUTOMOBILE AND REIMBURSEMENT OF THE SHIPPING AND WHARF CHARGES.