B-180837, MAY 28, 1974, 53 COMP GEN 893

B-180837: May 28, 1974

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SUBSISTENCE - PER DIEM - ACTUAL EXPENSES - INDIAN ARTS AND CRAFTS BOARD MEMBERS ALTHOUGH PUBLIC LAW 87-23 PROVIDES THAT MEMBERS OF THE INDIAN ARTS AND CRAFTS BOARD ARE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE THEY MAY BE PAID TRAVEL EXPENSES ON AN ACTUAL EXPENSE BASIS WHEN CIRCUMSTANCES WARRANT SUCH PAYMENT SINCE THEY ARE ALSO AUTHORIZED THE SAME TRAVEL ALLOWANCES AS THOSE FOR OTHER EMPLOYEES SERVING THE FEDERAL GOVERNMENT WITHOUT PAY AND THOSE EMPLOYEES MAY BE PAID ON AN ACTUAL EXPENSE BASIS. A REQUEST WAS MADE FOR AN ADVANCE DECISION AS TO WHETHER TRAVEL EXPENSES MAY BE PAID ON AN ACTUAL EXPENSE BASIS TO MEMBERS OF THE INDIAN ARTS AND CRAFTS BOARD WHEN TRAVELING ON OFFICIAL BUSINESS. THE INDIAN ARTS AND CRAFTS BOARD WAS CREATED IN THE DEPARTMENT OF THE INTERIOR BY PUBLIC LAW 74-355.

B-180837, MAY 28, 1974, 53 COMP GEN 893

SUBSISTENCE - PER DIEM - ACTUAL EXPENSES - INDIAN ARTS AND CRAFTS BOARD MEMBERS ALTHOUGH PUBLIC LAW 87-23 PROVIDES THAT MEMBERS OF THE INDIAN ARTS AND CRAFTS BOARD ARE ENTITLED TO PER DIEM IN LIEU OF SUBSISTENCE THEY MAY BE PAID TRAVEL EXPENSES ON AN ACTUAL EXPENSE BASIS WHEN CIRCUMSTANCES WARRANT SUCH PAYMENT SINCE THEY ARE ALSO AUTHORIZED THE SAME TRAVEL ALLOWANCES AS THOSE FOR OTHER EMPLOYEES SERVING THE FEDERAL GOVERNMENT WITHOUT PAY AND THOSE EMPLOYEES MAY BE PAID ON AN ACTUAL EXPENSE BASIS.

IN THE MATTER OF PAYMENT OF TRAVEL EXPENSES OF MEMBERS OF THE INDIAN ARTS AND CRAFTS BOARD, MAY 28, 1974:

BY LETTER OF MARCH 12, 1974, A REQUEST WAS MADE FOR AN ADVANCE DECISION AS TO WHETHER TRAVEL EXPENSES MAY BE PAID ON AN ACTUAL EXPENSE BASIS TO MEMBERS OF THE INDIAN ARTS AND CRAFTS BOARD WHEN TRAVELING ON OFFICIAL BUSINESS, OR WHETHER THEY MAY BE AUTHORIZED ONLY PER DIEM IN LIEU OF SUBSISTENCE.

THE INDIAN ARTS AND CRAFTS BOARD WAS CREATED IN THE DEPARTMENT OF THE INTERIOR BY PUBLIC LAW 74-355, APPROVED AUGUST 27, 1935, 49 STAT. 891, 25 U.S.C. 305, AS AN ADVISORY AND INFORMATIONAL CLEARINGHOUSE ON ALL MATTERS RELATING TO THE DEVELOPMENT AND PROMOTION OF INDIAN ARTS AND CRAFTS. THE BOARD IS COMPOSED OF FIVE COMMISSIONERS WHO ARE APPOINTED BY THE SECRETARY OF THE INTERIOR AND SERVE WITHOUT COMPENSATION. THE ACT WHICH CREATED THE INDIAN ARTS AND CRAFTS BOARD AUTHORIZED REIMBURSEMENT FOR ALL ACTUAL EXPENSES INCURRED BY THE COMMISSIONERS IN THE PERFORMANCE OF THEIR DUTIES AS MEMBERS OF THE BOARD; HOWEVER, SUBSEQUENTLY, A LIMITATION OF $10 PER DIEM IN LIEU OF SUBSISTENCE PAID TO MEMBERS OF THE BOARD WAS ESTABLISHED AND MADE PERMANENT LEGISLATION IN THE INTERIOR DEPARTMENT APPROPRIATION ACT OF 1940, 53 STAT. 685.

PUBLIC LAW 87-23, APPROVED APRIL 24, 1961, 75 STAT. 45, PROVIDES "THAT EACH COMMISSIONER SHALL BE PAID PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES AT A RATE THAT DOES NOT EXCEED THE RATE AUTHORIZED BY THE ACT OF AUGUST 2, 1946 (60 STAT. 808), AS HERETOFORE OR HEREAFTER AMENDED (5 U.S.C. 73B-2), TO BE PAID TO PERSONS SERVING WITHOUT COMPENSATION." THE CITED PROVISION OF LAW, 5 U.S. CODE, 73B-2, HAS BEEN AMENDED SEVERAL TIMES SINCE 1961 AND CURRENTLY IS CODIFIED AS 5 U.S.C. 5703. SUBSECTION (D) OF 5 U.S.C. 5703 STATES IN PART THAT "*** THE HEAD OF THE AGENCY CONCERNED MAY PRESCRIBE CONDITIONS UNDER WHICH AN INDIVIDUAL TO WHOM THIS SECTION APPLIES MAY BE REIMBURSED FOR THE ACTUAL AND NECESSARY EXPENSES OF THE TRIP, NOT TO EXCEED AN AMOUNT NAMED IN THE TRAVEL AUTHORIZATION WHEN THE MAXIMUM PER DIEM ALLOWANCE WOULD BE MUCH LESS THAN THESE EXPENSES DUE TO THE UNUSUAL CIRCUMSTANCES OF THE TRAVEL ASSIGNMENT."

THE QUESTION SUBMITTED IS WHETHER OFFICIAL TRAVEL EXPENSES OF THE COMMISSIONERS MAY BE PAID ON AN ACTUAL SUBSISTENCE BASIS WHEN CIRCUMSTANCES SO WARRANT, ON THE BASIS OF SUBSECTION (D) OF 5 U.S.C. 5703, OR WHETHER THE WORDING IN PUBLIC LAW 87-23 "THAT EACH COMMISSIONER SHALL BE PAID FOR PER DIEM IN LIEU OF SUBSISTENCE" IS TO BE STRICTLY APPLIED. THE AUTHORITY FOR THE PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE AND ACTUAL EXPENSES OF INDIVIDUALS SERVING WITHOUT PAY WHEN TRAVELING ON OFFICIAL BUSINESS IS CONTAINED IN 5 U.S.C. 5703 WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

(C) AN INDIVIDUAL SERVING WITHOUT PAY OR AT $1 A YEAR MAY BE ALLOWED TRANSPORTATION EXPENSES UNDER THIS SUBCHAPTER AND A PER DIEM ALLOWANCE UNDER THIS SECTION WHILE EN ROUTE AND AT HIS PLACE OF SERVICE OR EMPLOYMENT AWAY FROM HIS HOME OR REGULAR PLACE OF BUSINESS. UNLESS A HIGHER RATE IS NAMED IN AN APPROPRIATION OR OTHER STATUTE, THE PER DIEM ALLOWANCE MAY NOT EXCEED -

(1) THE RATE OF $25 FOR TRAVEL INSIDE THE CONTINENTAL UNITED STATES; AND

(2) THE RATES ESTABLISHED UNDER SECTION 5702(A) OF THIS TITLE FOR TRAVEL OUTSIDE THE CONTINENTAL UNITED STATES.

(D) UNDER REGULATIONS PRESCRIBED UNDER SECTION 5707 OF THIS TITLE, THE HEAD OF THE AGENCY CONCERNED MAY PRESCRIBE CONDITIONS UNDER WHICH AN INDIVIDUAL TO WHOM THIS SECTION APPLIES MAY BE REIMBURSED FOR THE ACTUAL AND NECESSARY EXPENSES OF THE TRIP, NOT TO EXCEED AN AMOUNT NAMED IN THE TRAVEL AUTHORIZATION, WHEN THE MAXIMUM PER DIEM ALLOWANCE WOULD BE MUCH LESS THAN THESE EXPENSES DUE TO THE UNUSUAL CIRCUMSTANCES OF THE TRAVEL ASSIGNMENT. THE AMOUNT NAMED IN THE TRAVEL AUTHORIZATION MAY NOT EXCEED -

(1)$40 FOR EACH DAY IN A TRAVEL STATUS INSIDE THE CONTINENTAL UNITED STATES; OR

(2) THE MAXIMUM PER DIEM ALLOWANCE PLUS $18 FOR EACH DAY IN A TRAVEL STATUS OUTSIDE THE CONTINENTAL UNITED STATES.

WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 87-23 TO INDICATE THAT THE WORDING ADOPTED WITH RESPECT TO THE PAYMENT OF PER DIEM WAS INTENDED TO RESTRICT MEMBERS OF THE INDIAN ARTS AND CRAFTS BOARD TO REIMBURSEMENT FOR SUBSISTENCE ON A PER DIEM BASIS AS OPPOSED TO THE REIMBURSEMENT OF ACTUAL SUBSISTENCE EXPENSES. FURTHER, IT IS NOTED THAT 5 U.S.C. 5703(D) AUTHORIZES THE PAYMENT OF ACTUAL SUBSISTANCE EXPENSES IN UNUSUAL CIRCUMSTANCES WHEN THE AUTHORIZED REIMBURSEMENT ON A PER DIEM BASIS WOULD NOT BE SUFFICIENT TO COVER THE COSTS INCURRED BY THE EMPLOYEE. IT IS SIGNIFICANT THAT REIMBURSEMENT ON A PER DIEM BASIS WAS PROVIDED AS THE MEANS OF PAYING EMPLOYEES' SUBSISTENCE EXPENSES AND THAT PAYMENT OF ACTUAL SUBSISTENCE EXPENSES WAS AUTHORIZED AS AN EXCEPTION THERETO.

SINCE THERE IS NO EVIDENCE THAT CONGRESS INTENDED TO PRECLUDE PAYMENT OF ACTUAL SUBSISTENCE EXPENSES, AND SINCE AUTHORITY TO PAY ACTUAL SUBSISTENCE EXPENSES IS DEPENDENT UPON AN ENTITLEMENT TO PER DIEM, WE DO NOT INTERPRET THE SUBJECT WORDING IN PUBLIC LAW 87-23 AS PRECLUDING THE REIMBURSEMENT OF MEMBERS OF THE INDIAN ARTS AND CRAFTS BOARD ON AN ACTUAL SUBSISTENCE BASIS WHILE EN ROUTE AND AT HIS PLACE OF SERVICE AWAY FROM HIS HOME OR REGULAR PLACE OF BUSINESS. CF. 52 COMP. GEN. 684 (1973).