B-173174, JUL 21, 1971

B-173174, JUL 21, 1971

CIVILIAN EMPLOYEE - COMMUTATION ALLOWANCE DECISION ALLOWING PAYMENT OF A DAILY COMMUTATION ALLOWANCE, BUT NOT PER DIEM, TO LARRY STEMPEL WHILE ATTENDING TRAINING AT THE INTERNAL REVENUE SERVICE REGIONAL TRAINING CENTER, UNIONDALE, LONG ISLAND, NEW YORK. SINCE CLAIMANT TRAVELED BY PRIVATELY OWNED VEHICLE RATHER THAN BE COMMON CARRIER AND CONSEQUENTLY USED LESS THAN THE MINIMUM TRAVEL TIME REQUIRED FOR PER DIEM TO BE GRANTED UNDER THE APPLICABLE REGULATIONS, THE COMP. GEN. WILL NOT AUTHORIZE THE PAYMENT OF PER DIEM, BUT WILL NOT OBJECT TO THE PAYMENT OF COMMUTATION EXPENSES FOR DAYS CLAIMANT REMAINED AT CENTER.

TO MR. JACK H. RAND:

WE REFER FURTHER TO YOUR LETTER OF MAY 28, 1971, REFERENCE AD:FF, CONCERNING THE REIMBURSABILITY OF PER DIEM OR IN THE ALTERNATIVE DAILY COMMUTATION EXPENSES TO MR. LARRY STEMPEL DURING JULY AND AUGUST 1970 WHILE HE WAS ATTENDING YOUR REGIONAL TRAINING CENTER IN UNIONDALE, LONG ISLAND, NEW YORK.

YOU STATE THAT THE LOCATION OF THE REGIONAL TRAINING CENTER PRECLUDES THE PRESCRIPTION OF SPECIFIC RULES TO REGULATE THE DETERMINATION OF WHETHER THE CENTER IS OUTSIDE THE COMMUTING AREA OF THE VARIOUS OFFICIAL STATIONS OR RESIDENCES IN THE METROPOLITAN NEW YORK VICINITY. ACCORDINGLY, YOU HAVE ESTABLISHED ADMINISTRATIVE PER DIEM ELIGIBILITY GUIDELINES BASED ON TRAVEL TIME AND YOU REFER TO DETAILED INSTRUCTIONS IN A REGIONAL COMMISSIONER RELEASE - RC-NA-MEMORANDUM 17-42 OF JULY 2, 1969. SECTION 3.011 OF THAT RELEASE READS:

".01 PER DIEM

"1. AN EMPLOYEE WHOSE NORMAL TRAVEL TIME FROM HOME TO THE REGIONAL TRAINING CENTER EXCEEDS 1-1/2 HOURS IS ELIGIBLE TO INCUR LODGING EXPENSES IN THE VICINITY OF THE REGIONAL TRAINING CENTER. THESE EMPLOYEES WILL BE ENTITLED TO RECEIVE PER DIEM. THE EMPLOYEE WILL HAVE THE OPTION TO ELECT TO COMMUTE DAILY OR INCUR LODGING EXPENSES.

"2. AN EMPLOYEE WHOSE POST OF DUTY OR RESIDENCE IS IN NASSAU COUNTY WILL NOT BE ELIGIBLE FOR PER DIEM."

SECTION 3.011 WAS RENUMBERED AND REVISED ON AUGUST 6, 1970, TO READ:

"SECTION 4. PER DIEM

".01 RESIDENTS OF NASSAU COUNTY AND EMPLOYEES OF THE MINEOLA OFFICE ARE NOT ELIGIBLE FOR PER DIEM.

".02 ALL OTHER EMPLOYEES WHOSE TRAVEL TIME FROM THEIR RESIDENCE TO THE REGIONAL TRAINING CENTER BY THE MOST EXPEDITIOUS MEANS AVAILABLE TO THEM EXCEEDS 1-1/2 HOURS EACH WAY, HAVE THE OPTION TO:

"1 COMMUTE DAILY, OR

"2 INCUR LODGING EXPENSE AND BE ALLOWED PER DIEM.

"TRAINEES FROM THE METROPOLITAN AREA TRAVELING TO THE REGIONAL TRAINING CENTER HAVE A CHOICE OF TRAVELING BY PRIVATELY OWNED AUTOMOBILE, COMMON CARRIER, OR CAR POOL."

YOU POINT OUT THAT ENTITLEMENT TO LODGING IS CONSIDERED OPTIONAL WHEN ONE TRAVELS BY COMMON CARRIER SINCE ALL SUCH TRAVEL EXCEEDS 1-1/2 HOURS, WHEREAS IN ALMOST ALL CASES OF TRAVEL BY PRIVATELY OWNED AUTOMOBILE FROM ANY OF THE FIVE NEW YORK CITY BOROUGHS THE TRIP IS LESS THAN 1-1/2 HOURS.

IT APPEARS THAT MR. LARRY STEMPEL, ASSIGNED TO THE INTERNAL REVENUE SERVICE MANHATTAN DISTRICT OFFICE, TRAVELED A DISTANCE OF 33 MILES BY PRIVATELY OWNED AUTOMOBILE FROM HIS RESIDENCE IN BROOKLYN TO THE REGIONAL TRAINING CENTER EACH MONDAY MORNING AND RETURNED FRIDAY NIGHT DURING THE INTERVENING WEEKENDS FROM JULY 13 TO AUGUST 20, 1970. MR. STEMPEL LODGED IN THE CONTRACT HOUSING AND WAS PAID $323 PER DIEM AS CLAIMED DURING JULY AND AUGUST, ALTHOUGH SUCH TRAVEL IS LESS THAN 1-1/2 HOURS.

YOU HAVE SUSPENDED THE $323, AND MR. STEMPEL RECLAIMS THE AMOUNT SUSPENDED SINCE HE FEELS THE ELIGIBILITY FOR PER DIEM SHOULD HAVE BEEN BASED ON COMMON-CARRIER TIME RATHER THAN THE ACTUAL MODE AVAILABLE TO HIM.

SPECIFICALLY, YOU ASK:

"1. IN VIEW OF THE GUIDELINES ESTABLISHED, IS THE TRAVELER ENTITLED TO PER DIEM EXPENSES UNDER THE CIRCUMSTANCES DESCRIBED EVEN THOUGH TRAVEL BY POA IS LESS THAN 1-1/2 HOURS?

"2. IF PER DIEM IS NOT PAYABLE, MAY THE TRAVELER BE PAID DAILY COMMUTATION EXPENSES IN LIEU OF PER DIEM EVEN THOUGH SUCH EXPENSES WERE NOT ACTUALLY INCURRED?"

YOU NOTE THAT SINCE MR. STEMPEL DID NOT TRAVEL BY PRIVATELY OWNED AUTOMOBILE DURING THE WEEK OF JULY 7-10, 1970, YOU WILL REIMBURSE HIM THE $39 PER DIEM FOR THAT WEEK WHICH IS INCLUDED IN THE EXCEPTION OF $323.

5 U.S.C. 4109 IN PERTINENT PART STATES:

"(A) THE HEAD OF AN AGENCY, UNDER THE REGULATIONS PRESCRIBED UNDER SECTION 4118(A)(8) OF THIS TITLE AND FROM APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO THE AGENCY, MAY -

"(1) PAY ALL OR A PART OF THE PAY (EXCEPT OVERTIME, HOLIDAY, OR NIGHT DIFFERENTIAL PAY) OF AN EMPLOYEE OF THE AGENCY SELECTED AND ASSIGNED FOR TRAINING UNDER THIS CHAPTER, FOR THE PERIOD OF TRAINING; AND

"(2) PAY, OR REIMBURSE THE EMPLOYEE FOR, ALL OR A PART OF THE NECESSARY EXPENSES OF THE TRAINING, WITHOUT REGARD TO SECTION 529 OF TITLE 31, INCLUDING AMONG THE EXPENSES THE NECESSARY COSTS OF -

"(A) TRAVEL AND PER DIEM INSTEAD OF SUBSISTENCE UNDER SUBCHAPTER I OF CHAPTER 57 OF THIS TITLE OR, IN THE CASE OF COMMISSIONED OFFICERS OF THE ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION, SECTIONS 404 AND 405 OF TITLE 37, AND THE JOINT TRAVEL REGULATIONS FOR THE UNIFORMED SERVICES;"

THE SECOND PARAGRAPH OF SECTION 6.11 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS STATES:

"FOR CONTINUOUS TRAVEL OF 24 HOURS OR LESS, THE TRAVEL PERIOD WILL BE REGARDED AS COMMENCING WITH THE BEGINNING OF THE TRAVEL AND ENDING WITH ITS COMPLETION, AND FOR EACH 6-HOUR PORTION OF THE PERIOD, OR FRACTION OF SUCH PORTION, ONE-FOURTH OF THE PER DIEM RATE FOR A CALENDAR DAY WILL BE ALLOWED: PROVIDED, THAT NO PER DIEM WILL BE ALLOWED WHEN THE TRAVEL PERIOD IS 10 HOURS OR LESS DURING THE SAME CALENDAR DAY, EXCEPT WHEN THE TRAVEL PERIOD IS 6 HOURS OR MORE AND BEGINS BEFORE 6:00 A.M. OR TERMINATES AFTER 8:00 P.M. (SEE SUBSECTIONS 6.9A AND C.)"

YOUR GUIDELINES APPEAR TO BE REASONABLE IN THE LIGHT OF LAW AND REGULATIONS. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE. IN ANSWER TO YOUR SECOND QUESTION, WE WOULD NOT OBJECT UNDER THE CIRCUMSTANCES TO PAYMENT OF THE COMMUTATION EXPENSES FOR THE DAYS MR. STEMPEL REMAINED AT THE REGIONAL TRAINING CENTER.