B-177419, MAR 8, 1973

B-177419, MAR 8, 1973

CIVILIAN PERSONNEL-TEMPORARY DUTY - PER DIEM - TRAVEL IN EXCESS OF 10 HOURS DECISION DENYING THE CLAIM OF FRANCIS A. MONTE, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, FOR TRAVEL AND SUBSISTENCE EXPENSES IN CONNECTION WITH ASSIGNMENTS AWAY FROM HIS DUTY STATION INVOLVING DAILY TRAVEL TIME IN EXCESS OF 10 HOURS. ALTHOUGH SGTR, SECTION 6.6D(1), PRECLUDES PAYMENT OF PER DIEM FOR TRAVEL PERIODS OF 10 HOURS OR LESS DURING THE SAME CALENDAR DAY, IT DOES NOT DIMINISH AN AGENCY'S DISCRETION IN REGARD TO THE DETERMINATION OF WHETHER PER DIEM IS TO BE AUTHORIZED OR APPROVED IN A PARTICULAR CASE UNDER SGTR, SECTION 6.3. ACCORDINGLY, AN AGENCY MAY PROPERLY NOT AUTHORIZE PER DIEM WHERE NO ADDITIONAL EXPENSES WOULD BE INCURRED BY REASON OF THE TEMPORARY DUTY OF THE EMPLOYEE. SEE B-176477, FEBRUARY 1, 1973.

TO MS. ESTHER SACKIN:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 7, 1972, REFERENCE AD:FF, REQUESTING AN ADVANCE DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT THE PER DIEM ITEM ON A VOUCHER SUBMITTED BY MR. FRANCIS A. MONTE, AN EMPLOYEE OF YOUR AGENCY, FOR TRAVEL AND SUBSISTENCE EXPENSES IN CONNECTION WITH ASSIGNMENTS AWAY FROM HIS DUTY STATION INVOLVING DAILY TRAVEL TIME IN EXCESS OF 10 HOURS.

FOR THE PERIOD FROM OCTOBER 16, 1972, TO OCTOBER 19, 1972, MR. MONTE DEPARTED AT 7:30 OR 6:45 A.M. EACH MORNING FROM BROOKLYN, NEW YORK, AND TRAVELED TO WHITE PLAINS, NEW YORK, ARRIVING THERE AT 9:30 OR 8:45 A.M. AFTER PERFORMING HIS DUTIES THERE, HE DEPARTED AT 4 P.M. AND ARRIVED IN BROOKLYN AT 6:30 OR 6 P.M. EACH EVENING.

MR. MONTE CLAIMS PER DIEM EXPENSES UNDER SECTION 13 OF MANUAL SUPPLEMENT 17G-239, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

SECTION 13. RATES OF PER DIEM

.01 RATES OF PER DIEM IN LIEU OF SUBSISTENCE EXPENSES FOR TRAVEL WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES ARE PRESCRIBED AS FOLLOWS:

1 WHEN ABSENCE FROM POST OF DUTY IS 24 HOURS OR LESS AND A NIGHT'S LODGING IS NOT REQUIRED, THE PER DIEM RATE SHALL BE $10. HOWEVER, FOR TRAVEL ON TEMPORARY DUTY *** PER DIEM IS NOT ALLOWABLE FOR A TRAVEL PERIOD WHOLLY WITHIN THE SAME CALENDAR DAY UNLESS IT IS MORE THAN 10 HOURS, OR IS 6 HOURS OR MORE AND BEGINS BEFORE 6 A.M. OR ENDS AFTER 8 P.M.

THE ABOVE REGULATION APPARENTLY IS YOUR AGENCY'S IMPLEMENTATION OF SUBSECTION 6.6D(1) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THAT SUBSECTION PROVIDES AS FOLLOWS:

D. COMPUTATION OF BASIC ENTITLEMENT. (1) TRAVEL OF 24 HOURS OR LESS. 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. (THE PROVISO DOES NOT APPLY IN THE CASE OF TRAVEL INCIDENT TO A CHANGE OF OFFICIAL STATION).

IT IS MR. MONTE'S CONTENTION THAT THE AGENCY REGULATION REQUIRES PAYMENT OF A PER DIEM ALLOWANCE WHERE THE PERIOD OF TRAVEL EXCEEDS 10 HOURS, NOTWITHSTANDING THAT AN EMPLOYEE INCURS NO ADDITIONAL EXPENSES BY REASON OF HIS TEMPORARY DUTY ASSIGNMENT. ON THE OTHER HAND, IT IS YOUR UNDERSTANDING THAT PAYMENT OF PER DIEM IS NOT INTENDED WHERE NO ADDITIONAL EXPENSES ARE INCURRED AS THE RESULT OF AN EMPLOYEE'S TEMPORARY DUTY ASSIGNMENT, NOTWITHSTANDING THE LENGTH OF THE TRAVEL PERIOD INVOLVED.

THE EFFECT OF SUBSECTION 6.6D(1), SUPRA, IS TO PRECLUDE PAYMENT OF PER DIEM FOR TRAVEL PERIODS OF 10 HOURS OR LESS DURING THE SAME CALENDAR DAY, EXCEPT WHEN THE TRAVEL PERIOD IS 6 HOURS OR MORE AND BEGINS BEFORE 6 A.M. OR TERMINATES AFTER 8 P.M., AND TO PERMIT PAYMENT OF PER DIEM WHERE NOT SO PRECLUDED. SEE 38 COMP. GEN. 511 (1959); 41 ID. 209 (1961). CF. B- 170291, OCTOBER 21, 1970, COPY ENCLOSED. WHERE PER DIEM IS AUTHORIZED OR APPROVED, THAT SUBSECTION HAS THE FURTHER EFFECT OF CREATING A PRESUMPTION THAT AT LEAST SOME OF THOSE EXPENSES FOR WHICH PER DIEM IS AUTHORIZED ARE INCURRED WHERE AN EMPLOYEE'S TRAVEL EXCEEDS 10 HOURS OR WHERE THE PERIOD OF TRAVEL EXCEEDS 6 HOURS AND COMMENCES BEFORE 6 A.M. OR TERMINATES AFTER 8 P.M. AND THAT ONE QUARTER OF THE DAILY PER DIEM RATE FOR EACH 6 HOURS INVOLVED IS A FAIR RATE OF REIMBURSEMENT.

WE POINT OUT, HOWEVER, THAT NEITHER SECTION 6.6D(1) NOR SUBSECTION 13.01, ABOVE, DIMINISHES AN AGENCY'S DISCRETION IN REGARD TO THE DETERMINATION OF WHETHER A PER DIEM ALLOWANCE IS TO BE AUTHORIZED OR APPROVED IN A PARTICULAR CASE. THAT DISCRETION IS TO BE EXERCISED IN ACCORDANCE WITH THE GUIDELINES SET FORTH IN SECTION 6.3, STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

6.3 AGENCY RESPONSIBILITY FOR PRESCRIBING INDIVIDUAL RATES. A. GENERAL. IT IS THE RESPONSIBILITY OF EACH DEPARTMENT AND AGENCY TO AUTHORIZE ONLY SUCH PER DIEM ALLOWANCES AS ARE JUSTIFIED BY THE CIRCUMSTANCES AFFECTING THE TRAVEL. CARE SHOULD BE EXERCISED TO PREVENT FIXING PER DIEM RATES IN EXCESS OF THOSE REQUIRED TO MEET THE NECESSARY AUTHORIZED SUBSISTENCE EXPENSES.

THUS WE HAVE HELD THAT AN AGENCY MAY PROPERLY REFUSE TO AUTHORIZE OR APPROVE PER DIEM FOR ASSIGNMENTS, NOTWITHSTANDING THAT THE ASSIGNMENTS MAY BE OF GREATER THAN 10-HOUR DURATION. SEE B-176477, FEBRUARY 1, 1973, COPY ENCLOSED, WHICH INVOLVED AN AGENCY REGULATION WHICH PROVIDED THAT PER DIEM IS TO BE AUTHORIZED ONLY TO THE EXTENT THAT ADDITIONAL EXPENSES ARE INCURRED IN CIRCUMSTANCES INVOLVING TEMPORARY DUTY ASSIGNMENTS AT NEARBY PLACES OUTSIDE THE PERMANENT DUTY STATION - EVEN THOUGH SUCH DUTY MAY BE OF GREATER THAN 10-HOUR DURATION.

SINCE NO TRAVEL ORDER WAS ISSUED AND AS THE PER DIEM IN LIEU OF SUBSISTENCE HAS NOT BEEN APPROVED THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.