B-147581, JUN 8, 1964

B-147581, JUN 8, 1964

PRECIS-UNAVAILABLE

JOHN L. MCCELLAN, UNITED STATES SENATE:

REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1964, ACKNOWLEDGED MAY 15, FORWARDING A COPY OF S. 2823, 88TH CONGRESS, AND REQUESTING OUR VIEWS AND RECOMMENDATIONS THEREON.

S. 2823, 88TH CONGRESS IS ENTITLED:

"A BILL TO AMEND SECTION 408 OF TITLE 37, U.S.C. TO PROVIDE FOR REIMBURSEMENT FOR THE EXPENSES OF PARKING FEES INCURRED BY A MEMBER OF A UNIFORMED SERVICE IN CONNECTION WITH TRANSPORTATION NECESSARY FOR CONDUCTING OFFICIAL BUSINESS OF THE UNITED STATES."

THE BILL PROVIDES AS FOLLOWS:

"THAT SECTION 408 OF TITLE 37, U.S.C. IS AMENDED BY BY STRIKING OUT 'AND SIMILAR FARES AND TOLLS,' AND INSERTING IN PLACE THEREOF 'PARKING, AND SIMILAR FARES, TOLLS, AND FEES,'."

SECTION 408, TITLE 37, U.S.C. WAS ENACTED BY PUB. L. 87-649, SEPTEMBER 7, 1962, 76 STAT. 475, REPLACING THE PROVISIONS OF 40 U.S.C. 491(M), 1958 ED., WHICH WERE REPEALED IN SECTION 14B OF THE 1962 ACT, 76 STAT. 500. SECTION 408, AS PRESENTLY WORDED, AUTHORIZES A MEMBER OF A UNIFORMED SERVICE, WHEN DIRECTED IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE HEAD OF THE DEPARTMENT OR AGENCY IN WHICH HE IS SERVING "TO PROCURE TRANSPORTATION NECESSARY FOR CONDUCTING OFFICIAL BUSINESS OF THE UNITED STATES WITHIN THE LIMITS OF HIS STATION." IT IS FURTHER PROVIDED IN SECTION 408 THAT:

"EXPENSES SO INCURRED BY THE MEMBER FOR TRAIN, BUS, STREETCAR, TAXICAB, FERRY, BRIDGE, AND SIMILAR FARES AND TOLLS, OR FOR THE USE OF PRIVATELY- OWNED VEHICLES AT A FIXED RATE A MILE, SHALL BE DEFRAYED BY THE DEPARTMENT OR AGENCY UNDER WHICH HE IS SERVING, OR THE MEMBER IS ENTITLED TO BE REIMBURSED FOR THE EXPENSE."

THUS, SECTION 408 AS NOW IN EFFECT AUTHORIZES PROCUREMENT AT GOVERNMENT EXPENSE AND REIMBURSEMENT OF EXPENSES INCURRED FOR TRAIN, BUS, STREETCAR, TAXICAB, FERRY, BRIDGE, AND SIMILAR FARES AND TOLLS, OR "A FIXED RATE A MILE" FOR THE USE OF PRIVATELY OWNED VEHICLES.

IT APPEARS (SEE CONGRESSIONAL RECORD - SENATE, MAY 11, 1964, PAGE 10133) THAT THE CHANGE PROPOSED IN THE LANGUAGE OF SECTION 408 IS INTENDED TO EXTEND TO MEMBERS OF THE UNIFORMED SERVICES (WHEN AUTHORIZED TO USE PRIVATELY OWNED VEHICLES IN CONDUCTING OFFICIAL BUSINESS OF THE UNITED STATES WITHIN THE LIMITS OF THEIR STATION) THE SAME BENEFITS WITH RESPECT TO AUTOMOBILE PARKING FEES AS ARE NOW PRESCRIBED IN 5 U.S.C. 837, 1958 ED., SUPP. IV, FOR CIVILIAN PERSONNEL OF THE GOVERNMENT CONDUCTING OFFICIAL BUSINESS OF THE UNITED STATES IN SIMILAR CIRCUMSTANCES. MILEAGE ALLOWANCE AT A FIXED RATE A MILE IS PAYABLE UNDER 5 U.S.C. 837 TO CIVILIAN OFFICERS AND EMPLOYEES RENDERING SERVICE TO THE GOVERNMENT FOR THE USE (WHEN SUCH MODE OF TRANSPORTATION IS AUTHORIZED) OF PRIVATELY OWNED AUTOMOBILES OR AIRPLANES. IT IS EXPRESSLY PROVIDED IN 5 U.S.C. 837 THAT:

"IN ADDITION TO THE MILEAGE ALLOWANCES PROVIDED FOR IN THIS SECTION, THERE MAY BE ALLOWED REIMBURSEMENT FOR THE ACTUAL COST OF PARKING FEES, FERRY FARES, AND BRIDGE, ROAD, AND TUNNEL TOLLS."

IT WILL BE NOTED THAT THE REIMBURSEMENT AUTHORIZED FOR THE ACTUAL COST OF PARKING FEES, AS WELL AS FERRY FARES AND BRIDGE, ROAD, AND TUNNEL TOLLS, IN THE CASE OF CIVILIANS, IS "IN ADDITION" TO THE MILEAGE ALLOWANCES PRESCRIBED IN 5 U.S.C. 837 FOR THE USE OF PRIVATELY OWNED VEHICLES. THAT WOULD NOT NECESSARILY BE THE CASE, HOWEVER, UNDER S.2823, WITH RESPECT TO THE USE OF PRIVATELY OWNED VEHICLES BY MEMBERS OF THE UNIFORMED SERVICES WHOSE STATUS COMES WITHIN THE SCOPE OF SECTION 408, TITLE 37, UNITED STATES CODE. THE LEGAL EFFECT OF THE INSERTION OF THE PHRASE "PARKING, AND SIMILAR FARES, TOLLS, AND FEES" IN PLACE OF THE PHRASE "AND SIMILAR FARES AND TOLLS," NOW CONTAINED IN SECTION 408, IS NOT CLEAR. IT IS OUR VIEW THAT THE PHRASE "OR FOR THE USE OF PRIVATELY-OWNED VEHICLES AT A FIXED RATE A MILE" CONSTITUTES A SPECIFIC AND DISTINCTLY SEPARATE ALLOWANCE FROM THAT PRESCRIBED IN THE IMMEDIATELY PRECEDING PHRASE RELATING TO EXPENSES INCURRED FOR TRAIN, BUS, STREETCAR, TAXICAB, FERRY, BRIDGE, AND SIMILAR FARES AND TOLLS. IN OTHER WORDS, THE EXPRESS TERMS "AT A FIXED RATE A MILE" WOULD SEEM TO RESTRICT REIMBURSEMENT FOR THE USE OF PRIVATELY OWNED VEHICLES TO THAT BASIS ONLY, EXCLUDING THE PAYMENT OF "PARKING FEES."

WE WOULD SUGGEST, THEREFORE, IN ORDER TO AVOID ANY AMBIGUITY (1) THAT NO CHANGE BE MADE IN THE PRESENT LANGUAGE OF SECTION 408 AND (2) THAT THE FOLLOWING SENTENCE (CORRESPONDING AS NEARLY AS CIRCUMSTANCES PERMIT TO THE SECOND SENTENCE CONTAINED IN 5 U.S.C. 837 RELATING TO CIVILIAN EMPLOYEES OF THE GOVERNMENT) BE ADDED:

"IN ADDITION TO THE FIXED RATE A MILE AUTHORIZED IN THIS SECTION FOR THE USE OF PRIVATELY-OWNED VEHICLES, THERE MAY BE ALLOWED REIMBURSEMENT FOR THE ACTUAL COST OF PARKING FEES, FERRY FARES, AND BRIDGE, ROAD, AND TUNNEL TOLLS."

SECTION 408 WOULD, IN ITS ENTIRETY, THEN READ AS FOLLOWS:

"A MEMBER OF A UNIFORMED SERVICE MAY BE DIRECTED, BY REGULATIONS OF THE HEAD OF THE DEPARTMENT OR AGENCY IN WHICH HE IS SERVING, TO PROCURE TRANSPORTATION NECESSARY FOR CONDUCTING OFFICIAL BUSINESS OF THE UNITED STATES WITHIN THE LIMITS OF HIS STATION. EXPENSES SO INCURRED BY THE MEMBER FOR TRAIN, BUS, STREETCAR, TAXICAB, FERRY, BRIDGE, AND SIMILAR FARES AND TOLLS, OR FOR THE USE OF PRIVATELY-OWNED VEHICLES AT A FIXED RATE A MILE, SHALL BE DEFRAYED BY THE DEPARTMENT OR AGENCY UNDER WHICH HE IS SERVING, OR THE MEMBER IS ENTITLED TO BE REIMBURSED FOR THE EXPENSE. IN ADDITION TO THE FIXED RATE A MILE AUTHORIZED IN THIS SECTION FOR THE USE OF PRIVATELY-OWNED VEHICLES, THERE MAY BE ALLOWED REIMBURSEMENT FOR THE ACTUAL COST OF PARKING FEES, FERRY FARES, AND BRIDGE, ROAD, AND TUNNEL TOLLS."

WE THINK THE SENTENCE SUGGESTED WOULD FULLY ACCOMPLISH THE INTENT OF S. 2823 AND WE RECOMMEND FAVORABLE ACTION IN THE MATTER.