B-165632, MAR 14, 1973, 52 COMP GEN 584

B-165632, MAR 14, 1973, 52 COMP GEN 584

SUBSISTENCE - PER DIEM - TEMPORARY DUTY - SEVERAL LOCATIONS SINCE PURSUANT TO EXECUTIVE ORDER 11575, DECEMBER 31, 1970, THE STATES OF NEW YORK, PENNSYLVANIA, VIRGINIA, MARYLAND, AND FLORIDA, WERE SEPARATELY DECLARED DISASTER AREAS ON JUNE 23, 1972, WEST VIRGINIA ON JULY 3, AND OHIO ON JULY 15, DUE TO THE DAMAGE CAUSED BY HURRICANE AGNES, FOR THE PURPOSES OF PAYING TEMPORARY EMPLOYEES OF THE SMALL BUSINESS ADMINISTRATION THE PER DIEM AND TRAVEL EXPENSES AUTHORIZED BY 15 U.S.C. 634(B)(8) IN CONNECTION WITH THEIR DUTIES RELATING TO PROVIDING LOANS TO SMALL BUSINESS CONCERNS, THE TROPICAL STORM NEED NOT BE VIEWED AS ONE DISASTER AND EACH STATE THEREFORE CONSTITUTING A DISASTER AREA, EMPLOYEES MAY BE REASSIGNED AND AUTHORIZED PER DIEM AT THE NEW LOCATION FOR A PERIOD NOT TO EXCEED 6 MONTHS.

TO WILLIAM I. COOPER, SMALL BUSINESS ADMINISTRATION, MARCH 14, 1973:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15, 1972, REQUESTING OUR DECISION AS TO WHAT CONSTITUTES A "DISASTER" FOR THE PURPOSES OF PER DIEM AND TRAVEL EXPENSES AS AUTHORIZED BY 15 U.S.C. 634(B)(8) UNDER THE CIRCUMSTANCES HEREINAFTER DESCRIBED.

THE LETTER STATED THAT THE TROPICAL STORM KNOWN AS "HURRICANE AGNES" WAS UNPRECEDENTED IN NOT ONLY THE GEOGRAPHIC AREAS WHICH IT AFFECTED BUT ALSO THE DESTRUCTION CREATED THEREBY. DUE TO THE DAMAGE CAUSED BY SUCH HURRICANE, THERE WERE ISSUED DECLARATIONS (OF BOTH PRESIDENTIAL AND NONPRESIDENTIAL ORIGIN) WHICH STATED THAT ON CERTAIN DATES SPECIFIED AREAS IN THE EASTERN UNITED STATES WERE CONSIDERED DISASTER AREAS. YOU SAY THAT THE PRESIDENT, ON JUNE 23, 1972, IN SEPARATE DECLARATIONS, DECLARED THE STATES OF NEW YORK, PENNSYLVANIA, VIRGINIA, MARYLAND, AND FLORIDA DISASTER AREAS; ON JULY 3, THE STATE OF WEST VIRGINIA; AND ON JULY 15, THE STATE OF OHIO. YOU LISTED THE FOLLOWING DECLARATIONS MADE BY THE SMALL BUSINESS ADMINISTRATION FOR THE HURRICANE AGNES DISASTER:

DECLARATION

NO. DATE AREA

911 6/21/72 PUTNAM AND BRONX COUNTIES, NEW YORK

(NON-PRESIDENTIAL)

914 6/27/72 NEW YORK

915 6/27/72 FLORIDA

916 6/27/72 PENNSYLVANIA

MARYLAND

VIRGINIA

918 7/1/72 NEW JERSEY

(NON-PRESIDENTIAL)

921 7/7/72 WEST VIRGINIA

922 7/11/72 DISTRICT OF COLUMBIA

(NON-PRESIDENTIAL)

BASED UPON THE FOREGOING, YOU STATED THE PROBLEM HERE INVOLVED AS FOLLOWS:

TO DATE, WE HAVE HELD THAT, FOR PER DIEM PURPOSES TO TEMPORARY EMPLOYEES, HURRICANE AGNES IS AND WAS A SINGLE DISASTER REGARDLESS OF THE TIME OF ACTUAL DAMAGE OR LOCATION; HOWEVER, SUCH DECISION LIMITS AGENCY FLEXIBILITY IN REASSIGNMENT OF PERSONNEL TO DISASTER LOCATIONS. WHILE WE HAVE MANY DISASTER LOCATIONS TO WHICH TEMPORARY PERSONNEL WORKING IN HURRICANE AGNES DISASTER OFFICES FOR 6 MONTHS MAY BE REASSIGNED, AND CLEARLY BE ENTITLED TO PER DIEM, THE NEEDS OF THE SERVICE MIGHT BETTER BE SERVED BY REASSIGNMENTS TO LOCATIONS WITHIN THE HURRICANE AGNES DESTRUCTION AREA. HOWEVER, THE AFFECTED PERSONNEL CANNOT AFFORD TO WORK IN AN AREA WHERE THEY WILL NOT RECEIVE THE PER DIEM ALLOWANCE.

THE PROVISION OF LAW IN QUESTION, 15 U.S.C. 634(B)(8), WHICH WAS DERIVED FROM SECTION 5(B)(8) OF THE SMALL BUSINESS ACT AS ADDED BY PUBLIC LAW 85- 536, APPROVED JULY 18, 1958, 72 STAT. 387, PROVIDES AS FOLLOWS:

(B)POWERS OF ADMINISTRATOR.

IN THE PERFORMANCE OF, AND WITH RESPECT TO, THE FUNCTIONS, POWERS, AND DUTIES VESTED IN HIM BY THIS CHAPTER THE ADMINISTRATOR MAY -

(8) PAY THE TRANSPORTATION EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE EXPENSES, IN ACCORDANCE WITH THE TRAVEL EXPENSE ACT OF 1949, FOR TRAVEL OF ANY PERSON EMPLOYED BY THE ADMINISTRATION TO RENDER TEMPORARY SERVICES NOT IN EXCESS OF SIX MONTHS IN CONNECTION WITH ANY DISASTER REFERRED TO IN SECTION 636(B) OF THIS TITLE FROM PLACE OF APPOINTMENT TO, AND WHILE AT, THE DISASTER AREA AND ANY OTHER TEMPORARY POSTS OF DUTY AND RETURN UPON COMPLETION OF THE ASSIGNMENT ***

ALTHOUGH LOANS ARE AUTHORIZED TO BE PROCESSED FOR VARIOUS PURPOSES BY THE SMALL BUSINESS ADMINISTRATION PURSUANT TO 15 U.S.C. 636(B), REFERENCE TO THE WORD "DISASTER" WAS ONLY MADE IN SUBSECTION 636(B)(2) WHICH PROVIDED IN PERTINENT PART AS FOLLOWS:

(2) TO MAKE SUCH LOANS *** TO ANY SMALL BUSINESS CONCERN LOCATED IN AN AREA AFFECTED BY A DISASTER, IF THE ADMINISTRATION DETERMINES THAT THE CONCERN HAS SUFFERED A SUBSTANTIAL ECONOMIC INJURY AS A RESULT OF SUCH DISASTER AND IF SUCH DISASTER CONSTITUTES -

(A) A MAJOR DISASTER, AS DETERMINED BY THE PRESIDENT UNDER SECTIONS 1855 TO 1855G OF TITLE 42, OR

(B) A NATURAL DISASTER, AS DETERMINED BY THE SECRETARY OF AGRICULTURE PURSUANT TO SECTION 1961 OF TITLE 7;

SINCE HURRICANE AGNES IS THE BASIS OF YOUR QUESTION, WE ARE HERE CONCERNED ONLY WITH SUBSECTION 636(B)(2)(A), SUPRA, A MAJOR DISASTER AS DETERMINED BY THE PRESIDENT UNDER 42 U.S.C. 1855-1855G. IT IS NOTED THAT PUBLIC LAW 91-606, APPROVED DECEMBER 31, 1970, REPEALED 42 U.S.C. 1855- 1855G. THE SUBSTANCE OF SUCH SECTIONS WAS HOWEVER INCORPORATED BY REFERENCE BY SECTION 301(1) OF THE 1970 ACT AND NOW APPEARS IN 42 U.S.C. 4401 ET SEQ.

42 U.S.C. 4402 DEFINES "MAJOR DISASTER" AS FOLLOWS:

SEC. 4402. DEFINITIONS.

AS USED IN THIS CHAPTER - (1) "MAJOR DISASTER" MEANS ANY HURRICANE, TORNADO, STORM, FLOOD, HIGH WATER, WIND-DRIVEN WATER, TIDAL WAVE, EARTHQUAKE, DROUGHT, FIRE, OR OTHER CATASTROPHE IN ANY PART OF THE UNITED STATES, WHICH, IN THE DETERMINATION OF THE PRESIDENT, IS OR THREATENS TO BE OF SUFFICIENT SEVERITY AND MAGNITUDE TO WARRANT DISASTER ASSISTANCE BY THE FEDERAL GOVERNMENT TO SUPPLEMENT THE EFFORTS AND AVAILABLE RESOURCES OF STATES, LOCAL GOVERNMENTS, AND RELIEF ORGANIZATIONS IN ALLEVIATING THE DAMAGE, LOSS, HARDSHIP, OR SUFFERING CAUSED THEREBY, AND WITH RESPECT TO WHICH THE GOVERNOR OF ANY STATE IN WHICH SUCH CATASTROPHE OCCURS OR THREATENS TO OCCUR CERTIFIES THE NEED FOR FEDERAL DISASTER ASSISTANCE UNDER THIS CHAPTER AND GIVES ASSURANCE OF THE EXPENDITURE OF A REASONABLE AMOUNT OF THE FUNDS OF SUCH STATE, ITS LOCAL GOVERNMENTS, OR OTHER AGENCIES FOR ALLEVIATING THE DAMAGE, LOSS, HARDSHIP OR SUFFERING RESULTING FROM SUCH CATASTROPHE ***.

THE AUTHORITY TO DECLARE A MAJOR DISASTER IS RESERVED TO THE PRESIDENT. SEE SECTION 1(A) OF EXECUTIVE ORDER 11575, DECEMBER 31, 1970. SINCE, AS INDICATED ABOVE, THE ONLY REFERENCE TO "DISASTER" IN 15 U.S.C. 636(B) RELATED TO A MAJOR DISASTER DECLARED BY THE PRESIDENT, WE MAY ONLY HERE CONSIDER FOR THE PURPOSES OF YOUR SUBMISSION THE PRESIDENTIAL DECLARATIONS OF DISASTER.

THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE SMALL BUSINESS ACT AS REVISED BY PUBLIC LAW 85-536, PERTINENT TO DETERMINATION OF THE QUESTION YOU HAVE RAISED, I.E., WHETHER FOR THE PURPOSES OF THE 6-MONTH LIMITATION ON THE PAYMENT OF PER DIEM FOR TEMPORARY EMPLOYEES AS CONTAINED IN SECTION 5(B)(8) OF THAT ACT, HURRICANE AGNES MUST BE VIEWED AS ONE DISASTER. HOWEVER, AS POINTED OUT IN OUR DECISION B 165632, JANUARY 6, 1969, STATUTORY AUTHORITY TO PAY TRAVEL COSTS AND PER DIEM TO THE TEMPORARY EMPLOYEES IN QUESTION WAS REQUIRED UNDER THE RULES THAT THE PLACE AT WHICH A TEMPORARY EMPLOYEE IS EXPECTED TO PERFORM THE GREATER PART OF HIS DUTIES MUST BE CONSIDERED HIS HEADQUARTERS AT WHICH NO PER DIEM IS PAYABLE, AND THAT TRAVEL EXPENSES TO THE EMPLOYEE'S FIRST DUTY STATION ARE A PERSONAL EXPENSE. WHERE, AS IN THE CASE OF HURRICANE AGNES, EXTENSIVE DAMAGE OCCURRED IN SEVERAL OF THE STATES, AND EACH SUCH STATE WAS DECLARED BY THE PRESIDENT AS A DISASTER AREA, IT IS OUR VIEW THAT EACH SUCH STATE MAY BE CONSIDERED AS A "DISASTER" FOR THE PURPOSES OF SECTION 5(B)(8), CODIFIED AS 15 U.S.C. 634(B)(8). THEREFORE, SHOULD IT BE DETERMINED NECESSARY TO REASSIGN AN EMPLOYEE TO ANOTHER STATE WHICH HAS BEEN DECLARED BY THE PRESIDENT AS A DISASTER AREA IN CONNECTION WITH HURRICANE AGNES DAMAGES, NO OBJECTION WOULD BE RAISED BY OUR OFFICE TO THE PAYMENT OF PER DIEM FOR NOT TO EXCEED 6 MONTHS AT THE NEW LOCATION.

YOUR QUESTION IS ANSWERED ACCORDINGLY.