B-149642, MAY 14, 1964
Highlights
THE REGULATION IS QUOTED IN YOUR LETTER AS FOLLOWS: "WHEN AN EMPLOYEE IS APPOINTED. TRANSFERRED OR SEPARATED FROM THE SERVICE "WHEN AN EMPLOYEE IS APPOINTED. THE EMPLOYEE OR A MEMBER OF HIS FAMILY WHO IS AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE. IT IS HEREBY DETERMINED THAT SUCH TRAVEL ON A MILEAGE BASIS IS MORE ADVANTAGEOUS TO THE GOVERNMENT. THE FIRST SENTENCE OF THE QUOTED REGULATION CONSTITUTES A BLANKET DETERMINATION THAT TRAVEL BY A PRIVATELY-OWNED MOTOR VEHICLE ON A MILEAGE BASIS IS MORE ADVANTAGEOUS TO THE GOVERNMENT IN EVERY CASE IN WHICH AN EMPLOYEE OR MEMBER OF HIS FAMILY. WHO IS AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE. 76TH CONGRESS) REASONABLY SHOWS THAT THE CONGRESS CONSIDERED IT TO BE IN THE INTEREST OF THE UNITED STATES FOR FOREIGN SERVICE PERSONNEL TO HAVE THE USE OF THEIR PRIVATELY-OWNED VEHICLES AT THEIR POSTS OF ASSIGNMENT OUTSIDE THE UNITED STATES.
B-149642, MAY 14, 1964
TO THE SECRETARY OF STATE:
ON APRIL 10, 1964, YOUR ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTED OUR CONCURRENCE IN YOUR DEPARTMENT'S INTERPRETATION OF SECTION 145.2-1 OF THE UNIFORM STATE/USIA FOREIGN SERVICE TRAVEL REGULATIONS WHICH BECAME EFFECTIVE MAY 15, 1963.
THE REGULATION IS QUOTED IN YOUR LETTER AS FOLLOWS:
"WHEN AN EMPLOYEE IS APPOINTED, TRANSFERRED OR SEPARATED FROM THE SERVICE
"WHEN AN EMPLOYEE IS APPOINTED, TRANSFERRED OR SEPARATED FROM THE SERVICE, AND THE EMPLOYEE OR A MEMBER OF HIS FAMILY WHO IS AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE, EVEN THOUGH UNACCOMPANIED, DRIVES A PRIVATELY-OWNED MOTOR VEHICLE OVER ALL OR ANY PART OF THE DISTANCE BETWEEN THE AUTHORIZED POINTS OF ORIGIN AND DESTINATION, IT IS HEREBY DETERMINED THAT SUCH TRAVEL ON A MILEAGE BASIS IS MORE ADVANTAGEOUS TO THE GOVERNMENT. THE COST OF MILEAGE AND PER DIEM MAY NOT EXCEED THE CONSTRUCTIVE COST OF TRAVEL BY AUTHORIZED MODE OF COMMON CARRIER (SEE SECTION 131.1-2) FOR EMPLOYEE AND ANY AUTHORIZED TRAVELERS ACCOMPANYING HIM PLUS THE COST OF COMMERCIAL SHIPMENT OF MOTOR VEHICLE VIA THE NEAREST PORT.'
THE FIRST SENTENCE OF THE QUOTED REGULATION CONSTITUTES A BLANKET DETERMINATION THAT TRAVEL BY A PRIVATELY-OWNED MOTOR VEHICLE ON A MILEAGE BASIS IS MORE ADVANTAGEOUS TO THE GOVERNMENT IN EVERY CASE IN WHICH AN EMPLOYEE OR MEMBER OF HIS FAMILY, WHO IS AUTHORIZED TO TRAVEL AT GOVERNMENT EXPENSE, DRIVES SUCH VEHICLE INCIDENT TO APPOINTMENT, TRANSFER OR SEPARATION FROM THE FOREIGN SERVICE. IN THAT CONNECTION THE ASSISTANT SECRETARY POINTS OUT THAT THE LEGISLATIVE HISTORY OF SECTION 913 OF THE FOREIGN SERVICE ACT OF 1946 AND OF THE PRIOR STATUTORY AUTHORITY FOR THE TRANSPORTATION OF PRIVATELY-OWNED VEHICLES OF FOREIGN SERVICE PERSONNEL (PUB. L. 499, 76TH CONGRESS) REASONABLY SHOWS THAT THE CONGRESS CONSIDERED IT TO BE IN THE INTEREST OF THE UNITED STATES FOR FOREIGN SERVICE PERSONNEL TO HAVE THE USE OF THEIR PRIVATELY-OWNED VEHICLES AT THEIR POSTS OF ASSIGNMENT OUTSIDE THE UNITED STATES.
THE RECOGNITION OF SUCH FACT ON THE PART OF THE CONGRESS, WHEN CONSIDERED TOGETHER WITH THE BROAD AUTHORITY OF THE SECRETARY OF STATE TO PRESCRIBE TRAVEL REGULATIONS UNDER SECTION 911 OF THE FOREIGN SERVICE ACT, AFFORDS A PROPER LEGAL BASIS FOR THE SECRETARY TO MAKE A BLANKET DETERMINATION OF ADVANTAGE TO THE GOVERNMENT IN CONNECTION WITH TRAVEL TO, FROM OR BETWEEN POINTS OUTSIDE THE UNITED STATES. HOWEVER, WE THINK THAT THE APPLICATION OF THE FIRST SENTENCE IN THE REGULATION SHOULD BE SPECIFICALLY LIMITED SO THAT IT COULD NOT BE CONSTRUED TO APPLY TO TRAVEL WHOLLY WITHIN THE UNITED STATES. IF SUCH SENTENCE IS SO RESTRICTED WE WILL INTERPOSE NO LEGAL OBJECTION TO THE CONTINUATION OF THAT SENTENCE IN THE REGULATION.
SIMILARLY, SINCE THE SECOND SENTENCE IN THE QUOTED REGULATION IS NOTHING MORE THAN A RESTRICTION OR LIMITATION UPON THE MILEAGE THAT OTHERWISE WOULD BE PAYABLE UNDER THE FIRST SENTENCE, WE WILL NOT QUESTION FURTHER THE LEGALITY OF THAT PROVISION OF THE REGULATION WITHOUT REGARD TO WHETHER THE EMPLOYEE WAS ENTITLED TO THE COMMERCIAL SHIPMENT OF HIS AUTOMOBILE UNDER SECTION 165.1 OF THE REGULATION. WE RECOMMEND, HOWEVER, THAT UNLESS THE PHRASE "VIA THE NEAREST PORT" BE CONSIDERED AS NECESSARY FOR ADMINISTRATIVE REASONS IT BE ELIMINATED BECAUSE IT TENDS TO INDICATE THAT THE CONSTRUCTIVE COST OF SHIPMENT OF AN AUTOMOBILE MAY ONLY BE INCLUDED WHEN A WATER SHIPMENT IS INVOLVED. MOREOVER, IT SEEMS TO US THAT THE WORDING OF THE REGULATION, CONSIDERED AS A WHOLE, LEADS TO CONFUSION AND DIFFICULTY OF APPLICATION. IF A DETERMINATION OF ADVANTAGE TO THE GOVERNMENT IS MADE, IT IS DIFFICULT TO UNDERSTAND WHY ANY LIMITATION SHOULD BE IMPOSED. ALSO, IT IS DIFFICULT TO UNDERSTAND THE RATIONALE FOR USING THE CONSTRUCTIVE COST OF COMMERCIAL SHIPMENT OF A VEHICLE AS A BASIS FOR DETERMINING HOW MUCH MILEAGE AN EMPLOYEE WOULD BE ENTITLED TO RECEIVE WHEN THE EMPLOYEE WOULD NOT HAVE BEEN ENTITLED TO HAVE SHIPPED HIS VEHICLE AT GOVERNMENT EXPENSE. IT APPEARS TO US THAT THERE WOULD BE VERY FEW INSTANCES IN WHICH THE CONSTRUCTIVE TRAVEL BY COMMON CARRIER PLUS THE CONSTRUCTIVE COST OF SHIPMENT OF AUTOMOBILE BY COMMERCIAL MEANS WOULD BE LESS THAN PAYMENT ON A MILEAGE BASIS.
IN VIEW OF THE FOREGOING OBSERVATIONS, WE SUGGEST THAT CONSIDERATION BE GIVEN TO REWRITING SUCH REGULATION SO THAT IT WILL MORE CLEARLY ACCOMPLISH THE RESULT INTENDED.