B-175018, JUN 19, 1972

B-175018, JUN 19, 1972

PRECIS-UNAVAILABLE

MRS. LUELLA S. HOWARD, AUTHORIZED CERTIFYING OFFICER, OFFICE OF THE SECRETARY OF TRANSPORTATION, DEPARTMENT OF TRANSPORTATION:

THIS REFERS TO YOUR LETTER OF JANUARY 13, 1972, REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER IN FAVOR OF MR. LEWIS M. HIATT FOR ADDITIONAL PER DIEM FOR HIS WIFE AND FOUR MINOR CHILDREN FOR TRAVEL INCIDENT TO HIS PERMANENT CHANGE OF STATION FROM ANCHORAGE, ALASKA, TO DALLAS, TEXAS.

FROM INFORMATION SUPPLIED BY THE RECLAIM VOUCHER, A COPY OF A PRIOR VOUCHER ON WHICH A SIMILAR CLAIM WAS DISALLOWED, AND THE TRAVEL ORDER WE UNDERSTAND THAT MRS. HIATT AND THE FOUR CHILDREN COMMENCED THEIR TRAVEL VIA PRIVATELY OWNED AUTOMOBILE APPROXIMATELY 5 MONTHS AFTER MR. HIATT'S EFFECTIVE DATE OF TRANSFER ON JANUARY 10, 1971. THEIR ROUTE OF TRAVEL, BEGINNING AT ANCHORAGE, TOOK THEM EASTWARD ACROSS ALASKA; THROUGH YUKON TERRITORY, CANADA, OVER AN ESTIMATED 1,181 MILES OF THE CANADIAN SEGMENT OF THE ALASKA HIGHWAY; THROUGH BRITISH COLUMBIA AND ALBERTA PROVINCES OF CANADA, ENTERING THE CONTINENTAL UNITED STATES AT ROOSVILLE, MONTANA; THENCE TO ARLINGTON, TEXAS, THEIR NEW PLACE OF RESIDENCE NEAR DALLAS.

THE TOTAL MILEAGE CLAIMED FOR THE JOURNEY, OR 4,626 MILES, APPEARS TO HAVE BEEN ACCEPTED FOR PURPOSES OF COMPUTING REIMBURSEMENT ALTHOUGH SOMEWHAT IN EXCESS OF THE ESTIMATE COMPUTED BY THE ADMINISTRATIVE AGENCY. WE ASSUME THIS TO HAVE BEEN ALLOWED ON THE AUTHORITY OF THE FOURTH PARAGRAPH OF SUBSECTION 3.5C(1) OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-7 AND THAT A SATISFACTORY EXPLANATION FOR ANY SUBSTANTIAL DEVIATIONS FROM DISTANCES SHOWN IN STANDARD HIGHWAY MILEAGE GUIDES HAS BEEN SUPPLIED. SEE 28 COMP.GEN. 708 (1949); 32 COMP.GEN. 433 (1953); B- 160203, OCTOBER 31, 1966; B-162506, OCTOBER 20, 1967; B-162630, NOVEMBER 29, 1967; B-162662, NOVEMBER 8, 1967.

THE ISSUE TO BE DETERMINED IS THE NUMBER OF DAYS FOR WHICH THE EMPLOYEE'S DEPENDENTS ARE ENTITLED TO PER DIEM UNDER THE PROVISIONS OF SUBSECTIONS 2.2B AND 2.3A(2) OF OMB CIRCULAR NO. A-56, WHICH READ IN PART AS FOLLOWS:

"2.2 FOR MEMBERS OF AN EMPLOYEE'S IMMEDIATE FAMILY.

"B. PER DIEM ALLOWANCE WHEN EN ROUTE BETWEEN

EMPLOYEE'S OLD AND NEW OFFICIAL STATION. WHEN AN EMPLOYEE

IS TRANSFERRED, AN ALLOWANCE SHALL BE PAID FOR PER DIEM IN

LIEU OF SUBSISTENCE EXPENSES INCURRED BY THE EMPLOYEE'S

IMMEDIATE FAMILY WHILE TRAVELING BETWEEN THE OLD AND NEW

OFFICIAL STATIONS, REGARDLESS OF WHERE THE OLD AND NEW

STATIONS ARE LOCATED. ***

"(1) FOR THE SPOUSE.

"(B) WHEN THE SPOUSE IS UNACCOMPANIED BY

THE EMPLOYEE, THE PER DIEM RATE TO WHICH THE EMPLOYEE

WOULD HAVE BEEN ENTITLED HAD THE EMPLOYEE

AND SPOUSE TRAVELED TOGETHER. ***

"(2)FOR EACH OTHER MEMBER OF THE EMPLOYEE'S

IMMEDIATE FAMILY. FOR EACH OTHER MEMBER AGE 12 OR

OLDER, THREE-FOURTHS OF THE PER DIEM RATE TO WHICH

THE EMPLOYEE IS ENTITLED; AND FOR EACH CHILD UNDER

12 YEARS OF AGE, ONE-HALF OF THE PER DIEM RATE TO

WHICH THE EMPLOYEE IS ENTITLED. ***

"2.3 FOR THE USE OF PRIVATELY OWNED AUTOMOBILE IN

CONNECTION WITH PERMANENT CHANGE OF STATION.

"A(2) PER DIEM ALLOWANCES. ***

"PER DIEM ALLOWANCES WILL BE PAID ON THE BASIS

OF THE ACTUAL TIME USED TO COMPLETE THE TRIP BUT SUCH

ALLOWANCES MAY NOT EXCEED AN AMOUNT COMPUTED ON THE

BASIS OF A MINIMUM DRIVING DISTANCE PER DAY WHICH IS

PRESCRIBED AS REASONABLE BY THE AUTHORIZING OFFICIAL

AND IS NOT LESS THAN AN AVERAGE OF 300 MILES PER

CALENDAR DAY.

"IN COMPUTING THE PER DIEM AMOUNT FOR A PRESCRIBED

MINIMUM DRIVING DISTANCE PER DAY, ONE-FOURTH OF THE

PRESCRIBED PER DIEM RATE WILL BE ALLOWED FOR EACH

ONE-FOURTH OF THE PRESCRIBED MINIMUM DISTANCE.

FOR EXAMPLE,

IF THE AUTHORIZING OFFICIAL PRESCRIBES A PER DIEM RATE

OF $12 FOR THE EMPLOYEE AND A REASONABLE MINIMUM DRIVING

DISTANCE OF 400 MILES A DAY, THE PER DIEM AMOUNT WILL

BE $3 FOR EACH 100 MILES, OR FRACTION OF 100 MILES,

TRAVELED BETWEEN THE OLD AND NEW OFFICIAL STATIONS."

ON THE BASIS OF THE ORIGINAL VOUCHER SUBMITTED THE FIVE DEPENDENTS WERE DETERMINED TO BE ENTITLED TO PER DIEM FOR 12 1/2 DAYS COMPUTED IN ACCORDANCE WITH REGULATIONS OF THE DEPARTMENT OF TRANSPORTATION, QUOTED AS FOLLOWS ON THE RECLAIM VOUCHER.

"'B. STANDARD. AN AVERAGE OF 348 MILES A DAY SHALL BE

CONSIDERED REASONABLE, EXCEPT THAT 448 MILES A DAY IS

REQUIRED WHEN MOST OF THE TRAVEL IS OVER

SUPERHIGHWAYS. VOUCHERS WILL BE COMPUTED USING THE 448

MILE RATE, UNLESS THE EMPLOYEE STATES ON THE VOUCHER THAT

MOST OF THE TRAVEL WAS NOT BY SUPERHIGHWAY.'"

BASED ON THOSE DAILY MILEAGE STANDARDS, PER DIEM ENTITLEMENT WAS COMPUTED FOR INDIVIDUAL SEGMENTS OF THE JOURNEY AS FOLLOWS:

ALASKA, 495 MILES AT 348 MILES PER DAY 1 1/2 DAYS CANADA, 2,065 MILES AT 348 MILES PER DAY 6

DAYS UNITED STATES, 652 MILES AT 348 MILES PER DAY 2 DAYS UNITED STATES, 1,414 MILES AT 448

MILES PER DAY 3 DAYS

THE EMPLOYEE CLAIMS PER DIEM FOR HIS DEPENDENTS FOR A TOTAL OF 19 3/4 DAYS, COMPUTED AS FOLLOWS:

"COMPUTATION OF DAYS: WEEKEND TOTAL

TRAVEL TIME HOLIDAY DAYS "(1) FROM

ANCHORAGE TO

ALASKA/CANADA BORDER 1-1/2 0 1-1/2 "(2)

FROM ALASKA/CANADA

BORDER TO SOUTH END

ALASKA HIGHWAY 4-3/4 2 6-3/4 "(3)

FROM SOUTH END ALASKA

HIGHWAY TO CANADA/CONT.

U. S. BORDER 2-1/2 0 2-1/2 "(4)

FROM CANADA/CONT. U. S.

BORDER TO ARLINGTON,

TEXAS 6 3 9

14-3/4 5 19-3/4"

THE FIVE DAYS CLAIMED FOR WEEKENDS AND A HOLIDAY MAY NOT BE ALLOWED. SUBSECTION 2.2B OF CIRCULAR NO. A-56, SUPRA, PROVIDES FOR PER DIEM ALLOWANCES FOR MEMBERS OF AN EMPLOYEE'S FAMILY WHILE TRAVELING. AUTHORITY EXISTS FOR PER DIEM PAYMENTS ON DAYS WHEN NO TRAVELING WAS ACCOMPLISHED. CF. B-139509; JUNE 16, 1959, COPY ENCLOSED.

AS FOR THE REMAINING DIFFERENCE BETWEEN THE AGENCY'S COMPUTATION AND THAT OF THE EMPLOYEE OF 2 1/4 DAYS EN ROUTE, THIS IS REPRESENTED BY THE EMPLOYEE'S CLAIM OF 7 1/4 DAYS ELAPSED TIME FOR TRAVEL THROUGH CANADA, AS COMPARED WITH 6 DAYS ALLOWED AND THE CLAIM FOR 6 DAYS FOR TRAVEL ACROSS THE CONTINENTAL UNITED STATES AS COMPARED WITH THE 5 DAYS ALLOWED.

THE CLAIM FOR THIS IS EXPLAINED BY MR. HIATT AS FOLLOWS:

"SINCE THE BREAKDOWN OF MILEAGE SHOWN ON THE INITIAL

VOUCHER APPARENTLY WAS NOT UNDERSTOOD, I HEREBY STATE

THAT MOST OF THE TRAVEL WAS NOT BY SUPERHIGHWAY. THEREFORE,

EXCLUSIVE OF THE ALASKA HIGHWAY, THE MILEAGE SHOULD BE

COMPUTED AT 348 MILES A DAY.

"ALASKA HIGHWAY MILEAGE:

"TAA TRAVEL HANDBOOK, CHAPTER 4, SECTION 5 457 C. STATES:

"'C. LEAVE CHARGES. ANY EXCESS TRAVEL TIME DURING

NORMAL DUTY HOURS WILL BE CHARGED TO ANNUAL

LEAVE, UNLESS FAILURE TO MAINTAIN THE STANDARD

IS JUSTIFIED AND ADMINISTRATIVELY APPROVED ON

THE VOUCHER. JUSTIFIABLE CONDITIONS INCLUDE,

BUT ARE NOT LIMITED TO: *** UNUSUAL TERRAIN,

SUCH AS MOUNTAIN ROADS OF ALCAN HIGHWAY; ***'

THE ALCAN HIGHWAY AND THE ALASKA HIGHWAY ARE ONE AND THE SAME. AS STATED IN THE PREVIOUS VOUCHER, THIS IS A GRAVEL HIGHWAY AND AT TIMES THE MAXIMUM SAFE SPEED IS 20-25 MILES PER HOUR. I BELIEVE THAT A DAILY MILEAGE RATE OF 250 MILES IS NOT UNREASONABLE."

WE HAVE BEEN INFORMALLY ADVISED THAT THE DEPARTMENT OF TRANSPORTATION HAS NOT YET ISSUED DEPARTMENT-WIDE TRAVEL REGULATIONS AND THAT THE FEDERAL AVIATION ADMINISTRATION TRAVEL HANDBOOK HAS BEEN MADE GENERALLY APPLICABLE THROUGHOUT THE DEPARTMENT PENDING PUBLICATION OF DEPARTMENTAL REGULATIONS.

WE FIND NO DEFINITION OF THE TERM "SUPERHIGHWAY" IN THE LAW OR REGULATIONS TO DESCRIBE PRECISELY THE CATEGORY OF HIGHWAYS FOR WHICH THE AGENCY REGULATIONS REQUIRE COMPLETION OF A MINIMUM OF 448 MILES PER DAY WHEN MOST OF THE TRAVEL IS OVER SUCH HIGHWAY. HOWEVER, WE NOTE A HANDWRITTEN COMPUTATION ON THE PREVIOUS VOUCHER USED THE TERM "INTERSTATE" AS DESCRIBING THE 1,414 MILES FOR WHICH THE 448-MILE RATE WAS APPLIED. THUS, IT APPEARS THE 448 MILE A DAY RATE APPLIES TO THOSE HIGHWAYS INCLUDED IN THE INTERSTATE HIGHWAY SYSTEM AS DESCRIBED IN SUBSECTION 103(E) OF TITLE 23, UNITED STATES CODE.

SUBSECTION 2.3A(2) OF CIRCULAR NO. A-56, SUPRA, PRESCRIBES AN AVERAGE MINIMUM DAILY MILEAGE RATE OF 300 MILES AS THE BASIS FOR COMPUTING PER DIEM ALLOWANCES; HOWEVER, THE REGULATION PERMITS THE AGENCY IN ITS DISCRETION TO ESTABLISH REASONABLE HIGHER MINIMUM MILEAGE RATES. WE DO NOT REGARD THE USE OF A 448-MILE DAILY RATE FOR INTERSTATE HIGHWAY DRIVING AND A 348-MILE RATE FOR OTHER TYPES OF DRIVING AS UNREASONABLE. NEITHER DO WE FIND THE AGENCY DESIGNATION OF 1,414 MILES (OF A TOTAL OF 4,626 MILES) AS BEING DRIVEN ON THE INTERSTATE SYSTEM AS INCONSISTENT WITH THE JOURNEY UNDERTAKEN IN THIS CASE.

AS FOR THE INFERIORITY OF THE ALASKA HIGHWAY AS JUSTIFYING A DAILY MINIMUM MILEAGE RATE OF 250 MILES, WE POINT OUT THAT THE REGULATIONS PUBLISHED IN CIRCULAR NO. A-56 ARE STATUTORY IN NATURE AND PRESCRIBE AT SUBSECTION 2.3A(2) A MINIMUM RATE OF 300 MILES A DAY. WE HAVE HELD IN OTHER CASES THAT NO PROVISION IS MADE FOR EXTENUATING CIRCUMSTANCES IN WHICH A LOWER RATE MAY BE APPLIED. B-169065, MARCH 17, 1970, B-175436, APRIL 27, 1972, COPIES ENCLOSED. SINCE THE AGENCY HAS PRESCRIBED, IN ACCORDANCE WITH ITS DISCRETIONARY AUTHORITY UNDER SUCH REGULATION, A HIGHER DAILY MILEAGE RATE AND HAS NOT PRESCRIBED THE LOWER PERMISSIBLE 300 -MILE DAILY RATE FOR TRAVEL ON THE ALASKA HIGHWAY, WE FIND NO BASIS UPON WHICH TO CHANGE THE ACTION TAKEN BY YOUR AGENCY.

WITH RESPECT TO THE CLAIMANT'S NOTATION THAT HIS RECLAIM IS BASED ON "100 PER CENT" PER DIEM FOR HIS WIFE, IT IS OUR UNDERSTANDING THAT THE ORIGINAL VOUCHER WAS PAID IN ACCORDANCE WITH SUBSECTION 2.2B(1)(B) OF CIRCULAR NO. A-56 WHICH ALLOWS AN UNACCOMPANIED SPOUSE THE SAME PER DIEM AS THE EMPLOYEE.

THE VOUCHER, RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.