B-112849, APRIL 22, 1954, 33 COMP. GEN. 505

B-112849, APRIL 22, 1954, 33 COMP. GEN. 505

JOINT TRAVEL REGULATIONS - AMENDMENTS - PROMULGATION OR PUBLICATION REQUIREMENT UNDER THE CAREER COMPENSATION ACT OF 1949, TRAVEL, TRANSPORTATION, AND PER DIEM ALLOWANCE RATES MUST BE "PROMULGATED" OR PUBLISHED BEFORE THEY CAN BECOME EFFECTIVE, AND THEREFORE CHANGES IN THE REGULATIONS MODIFYING SUCH RATES REQUIRE PUBLICATION BEFORE OR CONCURRENTLY WITH THE EFFECTIVE DATE OF THE CHANGES AND IN SUCH MANNER AS TO GIVE ACTUAL OR CONSTRUCTIVE NOTICE TO PERSONS WHOSE RIGHTS MAY BE EFFECTED; HOWEVER, ADVANCE NOTICE IN THE FORM OF BULLETIN, OR OTHER IMMEDIATE MEANS OF COMMUNICATION, MAY BE DISSEMINATED PENDING FORMAL PUBLICATION OF THE CHANGES. ADMINISTRATIVE DELAYS INHERENT IN MAKING AND PUBLISHING A JOINT DETERMINATION OF THE UNIFORMED SERVICES CONCERNING CHANGES IN TRAVEL, TRANSPORTATION, AND PER DIEM ALLOWANCE RATES MAY NOT LEGALLY JUSTIFY A RETROACTIVE APPLICATION OF SUCH DETERMINATION; HOWEVER, IN VIEW OF EVIDENT MISUNDERSTANDING IN INSTANT CASE, PAYMENTS HERETOFORE MADE PURSUANT TO RETROACTIVE EFFECTIVE DATES STATED IN THE PUBLISHED CHANGES NEED NOT BE QUESTIONED.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, APRIL 22, 1954:

THERE HAS BEEN CONSIDERED A LETTER DATED OCTOBER 27, 1953, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, WITH ENCLOSURES, RESPECTING THE ADMINISTRATIVE PRACTICE OF ESTABLISHING RETROACTIVELY EFFECTIVE DATES FOR CHANGES IN THE STATION PER DIEM ALLOWANCE RATES APPLICABLE TO MEMBERS OF THE UNIFORMED SERVICES ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA, UNDER SECTION 303 (B) OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 253 (B).

BY DECISION DATED JANUARY 8, 1953 (B-112849), 32 COMP. GEN. 315, ADDRESSED TO THE SECRETARY OF THE AIR FORCE IN RESPONSE TO HIS REQUEST FOR INFORMATION AS TO WHETHER THE PER DIEM RATES PRESCRIBED FOR MEMBERS ON DUTY IN MANILA, REPUBLIC OF THE PHILIPPINES, MIGHT BE EXTENDED TO INCLUDE THE WHOLE OF RIZAL PROVINCE, RETROACTIVELY EFFECTIVE FROM NOVEMBER 1, 1951, IT WAS CONCLUDED THAT PAYMENTS BASED ON ANY SUCH RETROACTIVE CHANGES IN THE REGULATIONS WOULD NOT BE AUTHORIZED. NOTWITHSTANDING THAT DECISION, THE REGULATION IN QUESTION WAS LATER MODIFIED, PURPORTEDLY TO ESTABLISH A RETROACTIVE RIGHT TO PAYMENTS FROM JULY 1, 1952, AND, THERE HAVING BEEN NO APPARENT INCLINATION GENERALLY TO CORRECT THE OBJECTIONABLE PRACTICE, THE MATTER WAS BROUGHT TO YOUR ATTENTION BY OFFICE LETTERS OF APRIL 7 AND JULY 31, 1953.

THERE IS ENCLOSED FOR YOUR INFORMATION A COPY OF THE LETTER OF OCTOBER 27, 1953, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, WHO SERVES ALSO AS A MEMBER OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE OF THE ARMY, NAVY AND AIR FORCE. IT WILL BE NOTED THAT HE EXPRESSES THE VIEW THAT THE CHANGES IN THE PER DIEM RATES APPLICABLE TO ALL OF RIZAL PROVINCE, RETROACTIVELY EFFECTIVE FROM JULY 1, 1952, WERE NOT CONTRARY TO THE DECISION OF JANUARY 8, 1953. THE BASIS FOR THAT BELIEF SEEMS TO BE THE FACT THAT THE EXTENSION OF THE MANILA RATES TO ALL OF RIZAL PROVINCE EFFECTIVE FROM SUCH DATE COINCIDED SUBSTANTIALLY IN POINT OF TIME WITH A DETERMINATION OR DECISION MADE ON JULY 29, 1952, BY THE ADVISORY PANEL OF THE PER DIEM, TRAVEL AND TRANSPORTATION COMMITTEE AND, HENCE, THE PUBLICATION OF SUCH RATES AT A LATER DATE AS A CHANGE IN THE APPENDIX OF THE JOINT TRAVEL REGULATIONS EFFECTIVE FROM JULY 1, 1952, WAS NOT OBJECTIONABLE AS A RETROACTIVE CHANGE. HE URGES, ON THAT BASIS, THAT NO MODIFICATION OF THE EXISTING ADMINISTRATIVE PRACTICE IN FIXING OR PUBLISHING SUCH RATES IS REQUIRED. THERE WAS FURNISHED A COPY OF THE CHARTER OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, SHOWING ITS ORGANIZATION, DIRECTING THE ESTABLISHMENT OF AN " ADVISORY PANEL," AND STATING THE FUNCTIONS AND AUTHORITY OF THE COMMITTEE AND THE PANEL. THERE WAS ALSO SUBMITTED COPY OF A " JOINT DETERMINATION" DATED SEPTEMBER 2, 1952, SIGNED BY REPRESENTATIVES OF THE SECRETARIES OF THE SIX "UNIFORMED SERVICES," STATING THE CHANGES FOR THE RIZAL PROVINCE, TO BE EFFECTIVE FROM JULY 1, 1952, AND DIRECTING "APPROPRIATE ACTION TO NOTIFY THE INTERESTED AGENCIES OF YOUR RESPECTIVE SERVICES.' SUCH RATES EVENTUALLY APPEARED AS JOINT TRAVEL REGULATIONS, CHANGES NO. 8 DATED FEBRUARY 1, 1953.

THE ASSISTANT SECRETARY OF THE AIR FORCE INSISTS THAT INASMUCH AS THE " JOINT DETERMINATION" BY THE OFFICIALS REPRESENTING THE PERTINENT SECRETARIES IN EFFECT APPROVED THE RATES FIXED ON JULY 29, 1952, BY THE ADVISORY PANEL, THE EFFECTIVE DATE, JULY 1, 1952, OF THE CHANGES IN RATES SHOULD NOT BE OBJECTED TO AS A RETROACTIVE APPLICATION CONTRARY TO THE DECISION OF JANUARY 8, 1953, FOR THE REASON THAT THE PUBLICATION IN THE JOINT TRAVEL REGULATIONS IS NOT A REQUIRED METHOD OF PUBLISHING SUCH RATES BUT IS MERELY ONE OF CONVENIENCE.

THIS OFFICE HAS GIVEN MOST CAREFUL CONSIDERATION TO THE DETAILED EXPOSITION CONTAINED IN THE LETTER OF OCTOBER 27, 1953, AND THE VARIOUS PHASES OF THE OPERATION OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, WITH PARTICULAR REFERENCE TO THE RATIFICATION AT THE ,SECRETARIAL LEVEL" OF THE EFFECTIVE DATE OF PER DIEM RATE CHANGES FIXED BY THE ADVISORY PANEL. UNDER THE CHARTER OF THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE, HOWEVER, THE ADVISORY PANEL HAS NO AUTHORITY TO FIX, DETERMINE, OR DECIDE RATES. IT HAS AUTHORITY ONLY TO ,RECOMMEND APPROPRIATE ACTION TO THE COMMITTEE.' THE COMMITTEE ITSELF HAS AUTHORITY TO PRESCRIBE REGULATIONS, BUT ONLY "JOINTLY WITH THE SECRETARIES OF TREASURY AND COMMERCE AND THE ADMINISTRATOR, FEDERAL SECURITY AGENCY (NOW SECRETARY OF HEALTH, EDUCATION AND WELFARE).' MOREOVER, EVEN IF IT WERE OTHERWISE IN DOUBT THAT A REGULATION MUST BE PUBLISHED TO BECOME EFFECTIVE, IT MAY BE NOTED THAT SECTION 303 (H) OF THE CAREER COMPENSATION ACT, 63 STAT. 815, 37 U.S.C. 253 (H) EXPRESSLY PROVIDES, RESPECTING TRAVEL, TRANSPORTATION AND PER DIEM ALLOWANCES, THAT---

REGULATIONS SHALL BE PROMULGATED BY THE SECRETARIES OF THE UNIFORMED SERVICES, AS PROVIDED HEREIN, AND SUCH REGULATIONS SHALL BE UNIFORM FOR ALL SERVICES INSOFAR AS PRACTICABLE * * *. ( ITALICS SUPPLIED.)

IT FOLLOWS THAT THERE CAN BE NO PRESCRIPTION OF RATES, UNDER THE AUTHORITY OF THE CHARTER, EXCEPT BY JOINT ACTION AND APPROVAL OF THE SECRETARIES OF THE SIX DEPARTMENTS, OR THEIR REPRESENTATIVES, AND THAT, UNDER THE STATUTE, SUCH RATES MUST BE "PROMULGATED," OR PUBLISHED, BEFORE THEY CAN BECOME EFFECTIVE AS RATES FIXED BY STATUTORY REGULATIONS UNDER SECTION 303, 63 STAT. 813. I FEEL CONSTRAINED TO THE VIEW, THEREFORE, THAT CHANGES IN THE REGULATIONS MODIFYING SUCH RATES (WHETHER TO HIGHER OR LOWER LEVELS) UNDER THE PROVISIONS OF SECTION 303 (B) OF THE CAREER COMPENSATION ACT, 63 STAT. 814, REQUIRE PUBLICATION BEFORE OR CONCURRENTLY WITH THE EFFECTIVE DATE OF THE CHANGES AND IN SUCH MANNER AS TO GIVE ACTUAL OR CONSTRUCTIVE NOTICE TO PERSONS WHOSE RIGHTS MAY BE AFFECTED EITHER FAVORABLY OR ADVERSELY. IT IS NOT APPARENT WHY ADVANCE NOTICE IN THE FORM OF A BULLETIN, OR OTHER IMMEDIATE MEANS OF COMMUNICATION, MAY NOT BE DISSEMINATED, PENDING FORMAL PUBLICATION OF THE CHANGES. THAT WOULD PRACTICALLY ELIMINATE THE TIME NOW TAKEN BETWEEN THE JOINT APPROVAL OF THE CHANGE IN THE RATES AND THE PERIODIC ISSUANCE OF THE FORMAL " CHANGES" IN THE JOINT TRAVEL REGULATIONS. HOWEVER THAT MAY BE, THIS OFFICE CAN FIND NO BASIS TO HOLD THAT ADMINISTRATIVE DELAYS INHERENT IN MAKING AND PUBLISHING A JOINT DETERMINATION OF THE SIX UNIFORMED SERVICES MAY LEGALLY JUSTIFY A RETROACTIVE APPLICATION OF SUCH DETERMINATION.

IN VIEW OF THE EVIDENT MISUNDERSTANDING, HOWEVER, AS TO THE EFFECT OF THE RETROACTIVE ASPECT OF THE PUBLISHED PER DIEM RATES; THE APPARENT RELIANCE ON THE STATED EFFECTIVE DATES BY DISBURSING OFFICERS; AND THE STATEMENT CONTAINED IN THE ASSISTANT SECRETARY'S LETTER THAT "THE PRACTICE OF MAKING DECISIONS OF THE PANEL EFFECTIVE IMMEDIATELY" HAS BEEN DISCONTINUED PENDING FURTHER DECISION BY THIS OFFICE; IT IS CONCLUDED THAT PAYMENTS HERETOFORE MADE PURSUANT TO THE EFFECTIVE DATES STATED IN THE PUBLISHED CHANGES NEED NOT BE QUESTIONED IN THE AUDIT OF THE ACCOUNTS OF THE DISBURSING OFFICERS CONCERNED, IF SUCH PAYMENTS ARE OTHERWISE CORRECT.