B-170618, APR 11, 1973, 52 COMP GEN 684

B-170618, APR 11, 1973, 52 COMP GEN 684

SUBSISTENCE - PER DIEM - ACTUAL EXPENSES - EMPLOYEES UNDERGOING TRAINING THE PAYMENT TO FEDERAL EMPLOYEES WHO PARTICIPATE IN TRAINING AWAY FROM THEIR OFFICIAL STATION OF ACTUAL SUBSISTENCE EXPENSES INSTEAD OF PER DIEM IN LIEU OF SUBSISTENCE AS AUTHORIZED BY 5 U.S.C. 5702(C) WHEN IN UNUSUAL CIRCUMSTANCES THE PER DIEM PROVIDED IS INSUFFICIENT TO COVER EXPENSES IS NOT PRECLUDED BY 5 U.S.C. 4109, THE AUTHORITY TO REIMBURSE AN EMPLOYEE FOR VARIOUS EXPENSES OF TRAINING INCLUDING THE COST OF NECESSARY TRAVEL AND PER DIEM "INSTEAD OF SUBSISTENCE" (FORMERLY "IN LIEU OF SUBSISTENCE") UNDER 5 U.S.C. SUBCHAPTER I OF CHAPTER 57, SINCE NOTHING IN THE LEGISLATIVE HISTORY OF THE GOVERNMENT EMPLOYEES TRAINING ACT INDICATES AN INTENT TO RESTRICT EMPLOYEES UNDERGOING TRAINING TO REIMBURSEMENT FOR SUBSISTENCE ON A PER DIEM BASIS AS OPPOSED TO ACTUAL SUBSISTENCE EXPENSES. FURTHERMORE 5 U.S.C. 5702(C) PROVIDES FOR PAYMENT OF ACTUAL SUBSISTENCE EXPENSES IN UNUSUAL CIRCUMSTANCES WHEN AUTHORIZED PER DIEM IS INSUFFICIENT, AND THE AUTHORITY TO PAY ACTUAL SUBSISTENCE EXPENSES DEPENDS UPON ENTITLEMENT TO PER DIEM.

TO THE SECRETARY OF THE TREASURY, APRIL 11, 1973:

WE REFER TO THE LETTER OF THE ASSISTANT SECRETARY OF THE TREASURY FOR ADMINISTRATION DATED FEBRUARY 13, 1973, BY WHICH OUR DECISION IS REQUESTED AS TO WHETHER FEDERAL EMPLOYEES PARTICIPATING IN TRAINING AWAY FROM THEIR OFFICIAL STATIONS MAY BE REIMBURSED ACTUAL SUBSISTENCE EXPENSES INSTEAD OF A PER DIEM IN LIEU OF SUBSISTENCE AS AUTHORIZED BY 5 U.S.C. 5702(C).

THE QUESTION ARISES BECAUSE THE LANGUAGE IN 5 U.S.C. 4109 WHICH AUTHORIZES THE PAYMENT OF EXPENSES IN CONNECTION WITH THE TRAINING OF GOVERNMENT EMPLOYEES PROVIDES THAT THE AGENCY MAY PAY OR REIMBURSE THE EMPLOYEE FOR VARIOUS EXPENSES OF TRAINING INCLUDING THE COST OF NECESSARY "TRAVEL AND PER DIEM INSTEAD OF SUBSISTENCE UNDER SUBCHAPTER I OF CHAPTER 57 OF TITLE 5, U.S. CODE." IN THE CODIFICATION OF TITLE 5 OF THE U.S.C. IN 1966, THE LATTER-QUOTED LANGUAGE WAS SUBSTITUTED FOR THAT ORIGINALLY CONTAINED IN SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT, PUBLIC LAW 85-507, JULY 7, 1958, 72 STAT. 327, 332, 5 U.S.C. 2309(1964 ED.), WHICH PROVIDED FOR PAYMENT OR REIMBURSEMENT OF "TRAVEL AND PER DIEM IN LIEU OF SUBSISTENCE IN ACCORDANCE WITH THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS." THE PROVISIONS OF 5 U.S.C. 5702(C) WHICH APPEAR IN SUBCHAPTER I OF CHAPTER 57 ARE AS FOLLOWS:

(C) UNDER REGULATIONS PRESCRIBED UNDER SECTION 5707 OF THIS TITLE, THE HEAD OF THE AGENCY CONCERNED MAY PRESCRIBE CONDITIONS UNDER WHICH AN EMPLOYEE MAY BE REIMBURSED FOR THE ACTUAL AND NECESSARY EXPENSES OF THE TRIP, NOT TO EXCEED AN AMOUNT NAMED IN THE TRAVEL AUTHORIZATION, WHEN THE MAXIMUM PER DIEM ALLOWANCE WOULD BE MUCH LESS THAN THESE EXPENSES DUE TO THE UNUSUAL CIRCUMSTANCES OF THE TRAVEL ASSIGNMENT. THE AMOUNT NAMED IN THE TRAVEL AUTHORIZATION MAY NOT EXCEED -

(1) $40 FOR EACH DAY IN A TRAVEL STATUS INSIDE THE CONTINENTAL UNITED STATES; OR

(2) THE MAXIMUM PER DIEM ALLOWANCE PLUS $18 FOR EACH DAY IN A TRAVEL STATUS OUTSIDE THE CONTINENTAL UNITED STATES.

WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF THE GOVERNMENT EMPLOYEES TRAINING ACT TO INDICATE THAT THE WORDING ADOPTED WITH RESPECT TO THE PAYMENT OF PER DIEM WAS INTENDED TO RESTRICT EMPLOYEES UNDERGOING TRAINING TO REIMBURSEMENT FOR SUBSISTENCE ON A PER DIEM BASIS AS OPPOSED TO THE REIMBURSEMENT OF ACTUAL SUBSISTENCE EXPENSES. FURTHER, IT IS NOTED THAT 5 U.S.C. 5702(C) AUTHORIZES THE PAYMENT OF ACTUAL SUBSISTENCE EXPENSES IN UNUSUAL CIRCUMSTANCES WHEN THE AUTHORIZED REIMBURSEMENT ON A PER DIEM BASIS WOULD NOT BE SUFFICIENT TO COVER THE COSTS INCURRED BY THE EMPLOYEE. IT IS SIGNIFICANT THAT REIMBURSEMENT ON A PER DIEM BASIS WAS PROVIDED AS THE MEANS OF PAYING EMPLOYEES' SUBSISTENCE EXPENSES AND THAT PAYMENT OF ACTUAL SUBSISTENCE EXPENSES WAS AUTHORIZED AS AN EXCEPTION THERETO.

SINCE THERE IS NO EVIDENCE THAT CONGRESS INTENDED TO PRECLUDE PAYMENT OF ACTUAL SUBSISTENCE EXPENSES, AND SINCE AUTHORITY TO PAY ACTUAL SUBSISTENCE EXPENSES IS DEPENDENT UPON AN ENTITLEMENT TO PER DIEM, WE DO NOT INTERPRET THE SUBJECT WORDING IN 5 U.S.C. 4109 AS PRECLUDING THE REIMBURSEMENT OF EMPLOYEES ON AN ACTUAL SUBSISTENCE BASIS WHILE THEY ARE IN A TRAINING STATUS, PROVIDED SUCH REIMBURSEMENT IS OTHERWISE AUTHORIZED UNDER THE CONTROLLING LAW AND REGULATIONS.

THE SUBMISSION IS ANSWERED ACCORDINGLY.