B-78442, SEPTEMBER 16, 1948, 28 COMP. GEN. 172

B-78442, SEPTEMBER 16, 1948, 28 COMP. GEN. 172

TRANSPORTATION - HOUSEHOLD EFFECTS - CUSTOMS BROKERAGE FEES PROVIDED THE COST OF CUSTOMS BROKER SERVICES BE ADMINISTRATIVELY APPROVED AS A NECESSARY AND UNAVOIDABLE EXPENSE INCIDENTAL TO THE TRANSPORTATION OF AN EMPLOYEE'S HOUSEHOLD EFFECTS UPON PERMANENT CHANGE OF STATION BETWEEN POINTS OUTSIDE THE CONTINENTAL UNITED STATES, OR IF IT BE ACTUALLY ESTABLISHED THAT IT IS REQUIRED UNDER FOREIGN LAW THAT EFFECTS BE CLEARED THROUGH A REGULAR CUSTOMS BROKER, PAYMENT OF CUSTOMS BROKERAGE FEES MAY BE ALLOWED IN ACCORDANCE WITH SECTIONS 12 AND 22 OF EXECUTIVE ORDER NO. 9805 AS PART OF THE AUTHORIZED TRANSPORTATION EXPENSE ACTUALLY AND NECESSARILY INCURRED. 11 COMP. GEN. 297, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO W. H. ROHRMAN, DEPARTMENT OF AGRICULTURE, SEPTEMBER 16, 1948:

REFERENCE IS MADE TO YOUR LETTER OF JULY 13, 1948, AS FOLLOWS:

THERE HAS BEEN SUBMITTED TO ME FOR CERTIFICATION, THE ATTACHED VOUCHER IN FAVOR OF NAVARRO OS., CALLAO, PERU, COVERING MISCELLANEOUS CHARGES FOR HANDLING OF A SHIPMENT OF HOUSEHOLD EFFECTS OF MR. BOWEN S. CRANDALL, A TECHNICAL EMPLOYEE OF THIS OFFICE, IN CONNECTION WITH HIS TRANSFER OF HEADQUARTERS FROM TINGO MARIA, PERU, TO SAN SALVADOR, EL SALVADOR. THE CHANGE OF HEADQUARTERS AND EXPENSES INCIDENT THERETO, INCLUDING THE PAYMENT OF CHARGES FOR THE SHIPMENT OF HOUSEHOLD AND PERSONAL EFFECTS WERE DULY AUTHORIZED IN TRAVEL ORDER NO. 128-) FAR), DATED JAN. 19, 1948, COPY ATTACHED, AND EXPENDITURES ARE PAYABLE FROM APPROPRIATION 12-1981004/29) COOPERATION WITH AMERICAN REPUBLICS ( TRANSFER TO AGRICULTURE) ( OFAR) 1948.

INCLUDED IN THE ATTACHED BILL IS AN ITEM OF 280.00 SOLES ( PERUVIAN CURRENCY, APPROXIMATELY $43 U.S.) WHICH IS LISTED AS "1AGENCIA" AND REPRESENTS THE COMPANY'S FEE FOR HANDLING THE SHIPMENT OVER AND ABOVE THE FIXED CHARGES FOR CUSTOMS DOCUMENTS AND DOCK CHARGES NECESSARY TO PLACE THE GOODS ON BOARD SHIP. THE QUESTION INVOLVES PRIMARILY THE PROPRIETY OF PAYMENT OF THIS FEE IN VIEW OF A PRIOR RULING A-40081, FEBRUARY 8, 1932, 11 COMP. GEN. 297, WHICH HELD THAT THE APPROPRIATION FOR THE PUBLIC HEALTH SERVICE WAS NOT AVAILABLE FOR THE PAYMENT OF FEES FOR THE SERVICES OF CUSTOMS BROKERS IN CONNECTION WITH SHIPMENTS RENDERED AT THE REQUEST OR ON ACCOUNT OF OFFICERS OR EMPLOYEES.

IF IT WERE POSSIBLE FOR ONE OF OUR EMPLOYEES TO CLEAR HIS GOODS THROUGH CUSTOMS IN PERU, IT WOULD CONSUME SEVERAL DAYS OF HIS TIME IN COMPLETING ALL OF THE NECESSARY DETAILS INVOLVED. ON THE OTHER HAND CLEARANCE THROUGH CUSTOMS BY A REGISTERED BROKER IS EXPEDITED FOR THE FOLLOWING REASONS:

1. THEY MAINTAIN A STAFF SUITABLE FOR SECURING NECESSARY GOVERNMENT CLEARANCE FOR EITHER EXPORT OR IMPORT.

2. THEY MAINTAIN FACILITIES FOR STORAGE AND SUPERVISION FOR SAFEGUARDING PROPERTY FROM DETERIORATION AND PILFERAGE.

3. THEY MAINTAIN FACILITIES FOR HANDLING MATERIAL THROUGH CUSTOMS WHICH REQUIRES OPENING FOR INSPECTION AND CLOSING FOR OCEAN SHIPMENT ALL CRATED OR BOXED ITEMS.

WHILE THERE ARE ADVANTAGES TO THE EMPLOYEE IN USING THE BONDED CUSTOMS BROKER THERE ARE ADVANTAGES TO THE U.S. GOVERNMENT ALSO, SINCE AT LEAST SEVERAL DAYS OF THE EMPLOYEE'S TIME ARE SAVED. HOWEVER, THERE APPEARS ANOTHER IMPORTANT REASON FOR USING THE BROKER. ONE OF OUR MEN WHO HAS JUST RETURNED FROM PERU ADVISES US THAT THE LAW THERE REQUIRES THAT A PERSON BE REGISTERED WITH THE CUSTOMS OFFICE AS A BROKER BEFORE HE IS PERMITTED TO CLEAR GOODS THROUGH CUSTOMS. HE STATES THAT EVEN THE MEMBERS OF THE AMERICAN EMBASSY AT LIMA MUST CLEAR THEIR GOODS THROUGH A REGISTERED BROKER.

SINCE THE SERVICE IS RECOGNIZED AS BEING EFFICIENT AND REASONABLE, WOULD SAVE TIME-CONSUMING DELAYS BY OUR EMPLOYEES, AND ALSO APPEARS TO BE NECESSARY FOR THE EMPLOYEES TO CLEAR THEIR GOODS FOR SHIPMENT OUT OF PERU, THE QUESTION IS PRESENTED AS TO WHETHER THIS EXPENDITURE IS PROPER IN VIEW OF THE DECISION CITED.

SECTION 1 (A) OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, 60 STAT. 806, PROVIDES, INTER ALIA, THAT "UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE," CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT TRANSFERRED FROM ONE PLACE OF DUTY TO ANOTHER OUTSIDE THE CONTINENTAL UNITED STATES FOR PERMANENT DUTY, WHEN AUTHORIZED IN THE ORDER DIRECTING THE TRAVEL, SHALL BE ALLOWED "THE EXPENSES OF TRANSPORTATION, PACKING, CRATING, TEMPORARY STORAGE, DRAYAGE, AND UNPACKING OF HIS HOUSEHOLD GOODS AND PERSONAL EFFECTS.' PURSUANT TO SAID STATUTORY AUTHORITY THE PRESIDENT ISSUED EXECUTIVE ORDER 9805 DATED NOVEMBER 25, 1946, SECTIONS 17 AND 22 OF WHICH PROVIDE, IN PERTINENT PART, AS FOLLOWS:

SEC. 17. MAXIMUM ALLOWANCE FOR TRANSPORTATION--- WEIGHT.--- THE ACTUAL COSTS OF TRANSPORTATION OF THE HOUSEHOLD GOODS AND PERSONAL EFFECTS OF THE EMPLOYEE * * * SHALL BE ALLOWED IN THE CASE OF TRANSFERS TO OR FROM POINTS OUTSIDE THE CONTINENTAL UNITED STATES * * *

SEC. 22. USE OF GOVERNMENT BILL OF LADING OR PURCHASE ORDER.--- SHIPMENT SHALL BE MADE ON GOVERNMENT BILL OF LADING OR PURCHASE ORDER WHENEVER POSSIBLE; OTHERWISE REIMBURSEMENT SHALL BE MADE TO THE EMPLOYEE FOR TRANSPORTATION EXPENSES ACTUALLY AND NECESSARILY INCURRED WITHIN THE LIMITATIONS PRESCRIBED BY THESE REGULATIONS. * * *

THE TERM "TRANSPORTATION" ORDINARILY CONNOTES THE ACT OF TRANSPORTING OR CONVEYING PERSONS OR PROPERTY FROM ONE PLACE TO ANOTHER. HOWEVER, MANY STATUTES AND REGULATIONS HAVE BROADENED ITS MEANING FOR VARIOUS PURPOSES TO INCLUDE ALL OR CERTAIN SPECIFICALLY DESIGNATED EXPENSES INCIDENTAL THERETO. A PERTINENT EXAMPLE IS SECTION 103.674 (G) OF THE CURRENT FOREIGN SERVICE REGULATIONS, DEPARTMENT OF STATE--- PROMULGATED BY THE SECRETARY OF STATE UNDER A STATUTORY PROVISION AUTHORIZING PAYMENT OF "THE COST OF TRANSPORTING THE FURNITURE AND HOUSEHOLD AND PERSONAL EFFECTS" (60 STAT. 1027/--- PROVIDING THAT EXPENSES OF TRANSPORTATION OF EFFECTS SHALL BE HELD TO INCLUDE, INTER ALIA, THE COST OF " SERVICES OF CUSTOMS BROKERS, WHEN THE OFFICER OR EMPLOYEE, A MISSION OR CONSULAR OFFICE, OR A UNITED STATES DESPATCH AGENT CANNOT MAKE THE CUSTOMS ENTRY BECAUSE OF PROVISIONS OF LAW OR WITHOUT INCURRING TRAVEL EXPENSE.' THOSE SAME REGULATIONS ALSO PROVIDE THAT ,AN OFFICER OR EMPLOYEE SHIPPING EFFECTS ABROAD OTHERWISE THAN THROUGH A DESPATCH AGENT SHALL CONSULT THE POST REPORT OR OBTAIN INFORMATION FROM THE DEPARTMENT OR THE POST CONCERNING THE MANNER IN WHICH THE EFFECTS SHOULD BE CONSIGNED IN ORDER TO TAKE ADVANTAGE OF FOREIGN CUSTOMS PRIVILEGES" (SECTION 103.678 (B) (, AND FURTHER THAT " EFFECTS SHIPPED BY WAY OF A PORT IN THE UNITED STATES SHALL BE CONSIGNED IN CARE OF THE UNITED STATES DESPATCH AGENT AT OR NEAREST THE PORT, AND NOT TO A CUSTOMS BROKER OR FORWARDING AGENT.' (SECTION 103.678 (A).) SEE, ALSO, GENERALLY, AS TO THE MEANING OF THE WORD "TRANSPORTATION," PARAGRAPH 8 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND THE INTERSTATE COMMERCE ACT, 49 U.S.C. 1 (3) (A). WHILE THE REGULATIONS SET FORTH IN EXECUTIVE ORDER 9805 DO NOT DEFINE THE WORD "TRANSPORTATION" OR CONTAIN LANGUAGE SIMILAR TO THAT FOUND IN THE FOREIGN SERVICE REGULATIONS WITH RESPECT TO THE UTILIZING OF THE SERVICES OF CUSTOMS BROKERS OR UNITED STATES DESPATCH AGENTS IN CONNECTION WITH THE SHIPMENT OF HOUSEHOLD GOODS AND PERSONNEL EFFECTS, IT REASONABLY MAY BE CONCLUDED THAT IT WAS INTENDED THEREUNDER TO AUTHORIZE PAYMENT OF CUSTOMS BROKERAGE FEES AS A PART OF THE AUTHORIZED TRANSPORTATION EXPENSE, PROVIDED, OF COURSE, SUCH ITEM BE "ACTUALLY AND NECESSARILY" INCURRED. COMPARE 27 COMP. GEN. 91. ALSO, SEE B-76788, JULY 6, 1948.

WITH RESPECT TO THE DECISION OF FEBRUARY 8, 1932, 11 COMP. GEN. 297, REFERRED TO BY YOU, YOU ARE ADVISED THAT SAID DECISION IS APPLICABLE IN THOSE CASES IN WHICH THE SERVICES OF GOVERNMENT OFFICIALS, SUCH AS UNITED STATES DESPATCH AGENTS, SHOULD BE AVAILED OF IN CLEARING THE EFFECTS THROUGH CUSTOMS WITHOUT THE EXPENSE OF HAVING PRIVATE INDIVIDUALS ACT ON BEHALF OF THE UNITED STATES.

ACCORDINGLY, IF THE COST OF THE SERVICES OF A CUSTOMS BROKER IN THE INSTANT CASE BE ADMINISTRATIVELY APPROVED BY A COMPETENT OFFICIAL AS A NECESSARY AND UNAVOIDABLE EXPENSE INCIDENTAL TO THE TRANSPORTATION OF THE EMPLOYEE'S EFFECTS, OR IF, IN THE ALTERNATIVE, IT MERELY BE ESTABLISHED TO BE AN ACTUAL FACT THAT UNDER THE LOCAL LAW OF PERU, IT IS REQUIRED THAT EFFECTS BE CLEARED THROUGH A REGULAR CUSTOMS BROKER, SUCH AS HERE USED, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.