B-212445, NOV 17, 1986

B-212445, NOV 17, 1986

PRECIS-UNAVAILABLE

ROGER B. FELDMAN:

YOUR LETTER OF AUGUST 4, 1986, REQUESTS OUR DETERMINATION AS TO WHETHER TRAVEL COSTS AND RELATED ANNUAL LEAVE SHOULD BE RECOUPED FROM EMPLOYEES WHO HAVE USED SHIP TRANSPORTATION FOR OFFICIAL TRAVEL.

YOU STATE THAT ON THE BASIS OF OUR DECISION IN CHRISTOPHER PADDACK, B-212445, FEBRUARY 14, 1984, AND THE DECISION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN CIVIL ACTION NO. 85-3137, JUNE 2, 1986, YOU HAVE PROCEEDED TO OBTAIN REFUNDS OF THE EXCESS COSTS FOR MISSISSIPPI RIVERBOAT TRANSPORTATION PAID TO MR. PADDACK, A UNITED STATES INFORMATION AGENCY (USIA) EMPLOYEE, WHO WAS DETERMINED TO BE LIABLE FOR THE COSTS OF INDIRECT TRAVEL WHERE A PORTION OF HIS TRAVEL PERFORMED OVER 16 DAYS ON A MISSISSIPPI RIVERBOAT BETWEEN NEW ORLEANS, LOUISIANA, AND BURLINGTON, IOWA, WAS A DEVIATION FROM THE USUALLY TRAVELED ROUTE FOR THE EMPLOYEE'S PERSONAL CONVENIENCE. /1/

YOUR LETTER ALSO OBSERVES THAT IN OUR REPORT TO THE CHAIRMAN, SUBCOMMITTEE ON LEGISLATION AND NATIONAL SECURITY, COMMITTEE ON GOVERNMENT OPERATIONS, HOUSE OF REPRESENTATIVES, ENTITLED "STATE DEPARTMENT AND USIA SHIP TRAVEL AND TRAVEL ADVANCES," /2/ WE FOUND THAT THE PRACTICE OF USING SHIP TRANSPORTATION IN SPECIFIC CLASSES OF PERMANENT CHANGE OF STATION AND HOME LEAVE TRAVEL SITUATIONS INCREASES THE TRANSPORTATION COSTS AND TRAVEL TIME OF PERSONNEL AND THEIR FAMILIES TRAVELING TO AND FROM OVERSEAS POSTS. OUR REPORT IDENTIFIED 101 FOREIGN SERVICE EMPLOYEES WHO, WITH THEIR DEPENDENTS, HAD USED SHIP TRANSPORTATION DURING FISCAL YEARS 1980- 1984 AT AN APPROXIMATE COST OF $556,232, AS COMPARED WITH ESTIMATED AIRFARES TOTALING $160,047, FOR A POTENTIAL COST SAVINGS DIFFERENTIAL OF $396,185. WE RECOMMENDED THAT THE USE OF SHIP TRANSPORTATION FOR OFFICIAL TRAVEL BE DISCONTINUED UNLESS NECESSARY FOR MEDICAL REASONS OR UNLESS THE TRAVELER IS REQUIRED TO PAY THE ADDITIONAL COST.

ON THE BASIS OF THESE AND ASSOCIATED FINDINGS PRESENTED IN OUR REPORT, YOU NOW ASK, BASED UPON THE FOREIGN SERVICE TRAVEL REGULATIONS IN EFFECT AT THE TIME OF TRAVEL, "WHETHER RECOVERY OF THE EXCESS TRAVEL COSTS AND RELATED ANNUAL LEAVE OF THE SHIP TRANSPORTATION IS APPROPRIATE AND WARRANTED" IN EACH OF THE CASES WE REPORTED ON.

OUR REPORT DEALT WITH THE UNNECESSARY COST OF SHIP TRAVEL FROM A PROGRAM VIEWPOINT AND RECOMMENDED CHANGE IN THE REGULATIONS TO LIMIT AUTHORITY FOR SHIP TRAVEL. THE REPORT DID NOT ADDRESS THE LEGALITY OF PAYING THE TRAVEL EXPENSES IN THOSE CASES. WE DO NOT BELIEVE THAT THE ISSUE OF WHETHER THE EMPLOYEES IDENTIFIED IN OUR REPORT SHOULD BE HELD PERSONALLY LIABLE FOR ANY EXCESS TRAVEL COSTS CAN BE DECIDED WITHOUT AN EXAMINATION OF THE FACTS AND CIRCUMSTANCES INVOLVED IN EACH CASE. YOUR LETTER DOES NOT PROVIDE US WITH FACTUAL INFORMATION AS TO THE INDIVIDUAL EMPLOYEES, NOR DO WE FEEL THAT SUCH A DETERMINATION IS OURS TO MAKE IN THE FIRST INSTANCE. THE EMPLOYING AGENCY HAS THE RESPONSIBILITY TO DETERMINE THE ISSUE OF PERSONAL LIABILITY IN EACH INDIVIDUAL CASE. HOWEVER, WE OFFER THE FOLLOWING COMMENTS FOR YOUR GUIDANCE IN THAT REGARD.

THE FOREIGN SERVICE ACT OF 1980 GIVES THE SECRETARY OF STATE THE AUTHORITY TO PRESCRIBE REGULATIONS FOR THE PAYMENT OF SPECIFIED RELOCATION AND TRAVEL EXPENSES FOR FOREIGN SERVICE OFFICERS. SECTIONS 206 AND 901, PUB.L. NO. 96-465, OCTOBER 17, 1980, 94 STAT. 2071, 2079, 2124, 22 U.S.C. SECS. 3926, 4081 (1982). THE APPLICABLE REGULATIONS ARE CONTAINED IN THE FOREIGN SERVICE TRAVEL REGULATIONS PUBLISHED IN THE FOREIGN AFFAIRS MANUAL (FAM), VOLUME 6. THESE REGULATIONS COVER TRAVEL AND RELOCATION EXPENSES FOR FOREIGN SERVICE OFFICERS AND EMPLOYEES OF THE STATE DEPARTMENT, AID (AGENCY FOR INTERNATIONAL DEVELOPMENT), AND USIA.

UNDER 22 U.S.C. SEC. 4081, FOREIGN SERVICE OFFICERS AND EMPLOYEES AND MEMBERS OF THEIR FAMILIES ARE ENTITLED TO ACTUAL AND NECESSARY EXPENSES INCURRED IN THE PERFORMANCE OF TRAVEL INCIDENT TO APPOINTMENT, A TRANSFER, AND A SEPARATION. AS IN THE CASE OF OTHER FEDERAL EMPLOYEES COVERED BY THE FEDERAL TRAVEL REGULATIONS, EMPLOYEES COVERED BY 6 FAM AND THEIR FAMILIES ARE ENTITLED ONLY TO ACTUAL AND NECESSARY EXPENSES INCURRED IN THE PERFORMANCE OF OFFICIAL TRAVEL, AND ARE EXPECTED TO USE THE MOST DIRECT AND EXPEDITIOUS ROUTES CONSISTENT WITH ECONOMY AND REASONABLE COMFORT AND SAFETY. SECTIONS 114 AND 115 OF 6 FAM, APPLICABLE AT THE TIME COVERED BY YOUR INQUIRY, PROVIDED AS FOLLOWS:

"114. PAYMENT OF OFFICIAL TRAVEL EXPENSES

"IN ACCORDANCE WITH THE PROVISIONS OF LAW AND THESE REGULATIONS, FOREIGN SERVICE EMPLOYEES AND THE MEMBERS OF THEIR FAMILY ARE ENTITLED ONLY TO ACTUAL AND NECESSARY EXPENSES INCURRED IN THE PERFORMANCE OF OFFICIAL TRAVEL. TRAVELERS ARE EXPECTED TO MAKE A CONSCIENTIOUS EFFORT TO MINIMIZE COSTS OF OFFICIAL TRAVEL AND TO ASSUME COSTS OF A PERSONAL NATURE AND ANY ADDITIONAL EXPENSES INCURRED FOR PERSONAL CONVENIENCE.

"115. RESPONSIBILITY OF TRAVELER

"EMPLOYEES AND THEIR DEPENDENTS TRAVELING UNDER OFFICIAL TRAVEL AUTHORIZATIONS ARE EXPECTED TO USE THE MOST DIRECT AND EXPEDITIOUS ROUTES CONSISTENT WITH ECONOMY AND REASONABLE COMFORT AND SAFETY. BY THE SAME TOKEN, EMPLOYEES ARE EXPECTED TO EXERCISE GOOD JUDGMENT IN THE COSTS THEY INCUR FOR ALL OFFICIAL TRANSPORTATION EXPENSES AS IF THEY WERE PERSONALLY LIABLE FOR PAYMENTS."

UNDER THIS AUTHORITY ANY INTERRUPTION OR DEVIATION IN TRAVEL FOR PERSONAL CONVENIENCE IS NOT COMPENSABLE. IN SETTING FORTH THE REQUIREMENT FOR "DIRECT TRAVEL," PARAGRAPH 131.2 OF 6 FAM STATES THAT ALL OFFICIAL TRAVEL MUST BE BY A "USUALLY TRAVELED ROUTE." THE DEFINITION OF A "USUALLY TRAVELED ROUTE" IS SET FORTH IN PARAGRAPH 117V OF 6 FAM AS FOLLOWS:

"V. USUALLY TRAVELED ROUTE

"ONE OR MORE ROUTES WHICH ARE ESSENTIALLY THE SAME IN COST TO THE GOVERNMENT AND IN TRAVELTIME. SELECTION OF USUALLY TRAVELED ROUTES WILL DEPEND ON THE AUTHORIZED MODE OR COMBINATION OF MODES ***."

NEVERTHELESS, UNDER THE FOREIGN SERVICE TRAVEL REGULATIONS APPLICABLE AT THE TIME IN QUESTION, OCEAN SHIP TRANSPORTATION WAS AUTHORIZED UNDER CERTAIN CIRCUMSTANCES. AS POINTED OUT IN OUR REPORT P. 3, ALTHOUGH AIR TRAVEL WAS ENCOURAGED, TRAVEL BY SHIP WAS AUTHORIZED BY VOLUME 6 OF THE FOREIGN AFFAIRS MANUAL (6 FAM), DATED JULY 19, 1974. THE REPORT STATES THAT EACH AGENCY (STATE, AID, USIA) APPLIED THE REGULATION DIFFERENTLY. WE WERE INFORMED BY STATE AND USIA OFFICIALS WHO REVIEW AND APPROVE TRAVEL CLAIMS THAT SHIP TRAVEL WAS ACCEPTABLE BECAUSE IT WAS AUTHORIZED BY REGULATION.

OUR RECOMMENDATION THAT THE REGULATIONS BE AMENDED TO PRECLUDE SHIP TRAVEL UNLESS REQUIRED FOR MEDICAL REASONS OR UNLESS THE TRAVELER PAYS THE ADDITIONAL COSTS, WAS SUBSEQUENTLY ADOPTED BY THE SECRETARY OF STATE. /3/ FOR PURPOSES OF YOUR INQUIRY, HOWEVER, WE MUST APPLY THE PROVISIONS OF 6 FAM AS THEY EXISTED AT THE TIME THE TRAVEL WAS PERFORMED, NOT AS THEY WERE LATER AMENDED.

IN THIS REGARD, SECTION 131.1-1 OF 6 FAM CONTAINED THE FOLLOWING GENERAL PROVISION:

"USE OF AIR TRANSPORTATION IS ENCOURAGED. SURFACE TRANSPORTATION OR A COMBINATION OF AIR AND SURFACE IS AUTHORIZED, SUBJECT TO THE PROVISIONS OF SECTIONS 131.1-2 AND 133."

THUS, IT APPEARS THAT FOREIGN SERVICE EMPLOYEES WERE GENERALLY AUTHORIZED TO USE SURFACE TRANSPORTATION BY 6 FAM SEC. 131.1-1, SUBJECT TO SECTIONS 131.1-2 AND 133. THE FORMER PROVISION STATED IN SUBSECTION C, AS FOLLOWS:

"C. TYPE OF MODE OF TRAVEL

"AID AND USIA HAVE ESTABLISHED THAT THE MODES OF TRAVEL INDICATED BELOW, USED ON A USUALLY TRAVELED ROUTE AND FOR THE REASON SPECIFIED, WILL SERVE AS THE BASIS UPON WHICH TO COMPUTE TRANSIT TIME, LEAVE, AND RELATED COSTS."

THUS, FOREIGN SERVICE EMPLOYEES WHO ENGAGED IN THE TYPE OF TRAVEL COVERED BY YOUR INQUIRY MAY HAVE BEEN ENTITLED TO SURFACE TRANSPORTATION ALONG THE USUALLY TRAVELED ROUTE. AND, WHERE THAT TRAVEL IS BETWEEN POINTS OF DEPARTURE AND DESTINATION SEPARATED BY OCEANS, COMPARISON "SURFACE" MODES OF TRANSPORTATION WILL OBVIOUSLY BE LIMITED TO SHIP TRANSPORTATION OVER USUALLY TRAVELED WATER ROUTES. THIS IS IMPLICIT IN OUR PADDACK DECISION, CITED ABOVE, WHERE NEITHER THE AGENCY CERTIFYING OFFICER NOR THIS OFFICE QUESTIONED MR. PADDACK'S SHIP TRAVEL FROM CHILE TO PERU. IT IS LIKEWISE IMPLICIT IN THE DISTRICT COURT'S DECISION ON PADDACK WHICH RECOGNIZED THAT SHIP TRAVEL WAS APPROPRIATE UNDER CERTAIN CIRCUMSTANCES. BY CONTRAST, THE DISTRICT COURT FOUND THAT RIVERBOAT TRANSPORTATION WAS PRECLUDED WHEN COMPARED WITH OTHER AVAILABLE FORMS OF SURFACE TRANSPORTATION SUCH AS RAILROAD OR OTHER COMMERCIAL ROAD VEHICLES, INCLUDING PRIVATELY OWNED VEHICLES ALONG USUALLY TRAVELED ROUTES.

THE USE OF FOREIGN-FLAG VESSELS MUST ALSO BE CONSIDERED. IN ACCORDANCE WITH SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 46 U.S.C. SEC. 1241(A) (1982), OVERSEAS TRAVEL AND TRANSPORTATION OF EFFECTS SHALL BE ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES, WHERE SUCH SHIPS ARE AVAILABLE, UNLESS THE NECESSITY OF THE MISSION REQUIRES USE OF A SHIP UNDER A FOREIGN FLAG. HOWEVER, NO U.S. REGISTERED SHIPS HAVE BEEN AVAILABLE FOR SOME TIME. SEE B-212074, JULY 19, 1983.

THERE ARE FURTHER RESTRICTIONS IN 6 FAM SEC. 133.2 ON THE USE OF FOREIGN- FLAG VESSELS. SECTION 133.2 ALLOWS USE OF A FOREIGN-FLAG SHIP ONLY WHEN THE USE OF AIR TRANSPORTATION WOULD BE A HEALTH HAZARD OR WHEN PAYMENT CAN BE MADE THROUGH USE OF EXCESS FOREIGN CURRENCY. WE UNDERSTAND THAT EXCESS FOREIGN CURRENCY WAS USED TO PAY FOR THE USE OF FOREIGN-FLAG SHIPS IN MANY OF THE INDIVIDUAL CASES MENTIONED IN OUR REPORT. THIS APPEARS TO HAVE BEEN PROPER UNDER THE REGULATIONS IN EFFECT AT THAT TIME AND NO PERSONAL FINANCIAL LIABILITY WOULD ATTACH. SEE FOREIGN-FLAG VESSELS, B-216208, FEBRUARY 27, 1985. IN FOREIGN-FLAG VESSELS, WE STATED THAT REIMBURSEMENT IS FLATLY PROHIBITED BY 42 U.S.C. SEC. 1241(A) ONLY IF AN AMERICAN-FLAG VESSEL IS AVAILABLE. WE ADDED THAT IF NO AMERICAN-FLAG VESSEL IS AVAILABLE ANY PERSONAL RESPONSIBILITY UNDER 6 FAM SEC. 133.4 FOR TRAVEL BY FOREIGN-FLAG VESSEL RESULTS FROM THE SECRETARY OF STATE'S AUTHORITY TO PRESCRIBE REGULATIONS.

IF PERSONAL LIABILITY IS IMPOSED UNDER 6 FAM SEC. 133, THE EXTENT OF THE LIABILITY WOULD BE GOVERNED BY OUR DECISION FOREIGN-FLAG VESSELS, CITED ABOVE. IN THAT CASE, WE RULED THE FOREIGN SERVICE TRAVEL REGULATIONS WERE INTENDED TO IMPOSE PERSONAL FINANCIAL RESPONSIBILITY ON THE TRAVELER, WHERE APPLICABLE, ONLY TO THE EXTENT THAT THE COST OF THE FOREIGN-FLAG SHIP EXCEEDED THE CONSTRUCTIVE COST OF AIR TRANSPORTATION. AS A RESULT, IN THOSE CIRCUMSTANCES WHERE AMERICAN FLAG VESSELS WERE NOT AVAILABLE, REIMBURSEMENT ON A CONSTRUCTIVE COST BASIS SHOULD BE ALLOWED IF THE EMPLOYEE DOES NOT QUALIFY FOR FULL REIMBURSEMENT FOR USE OF A FOREIGN-FLAG VESSEL UNDER THE REGULATIONS.

WE OBVIOUSLY CANNOT MAKE A DETERMINATION ON THE NUMEROUS INDIVIDUAL CASES INVOLVED IN YOUR REQUEST. THE STATE DEPARTMENT AND USIA SHOULD REVIEW EACH SUCH CASE IN ACCORDANCE WITH THE GUIDANCE STATED ABOVE.

WE ARE ENCLOSING COPIES OF SOME OF OUR PERTINENT DECISIONS IN THIS AREA AND HOPE THAT THE FOREGOING INFORMATION WILL BE OF ASSISTANCE TO YOU. ARE PREPARED TO PROMPTLY CONSIDER ANY REQUEST FOR A FORMAL DECISION IN AN INDIVIDUAL CASE OR ANY INDIVIDUAL CLAIM FILED IN ACCORDANCE WITH 4 C.F.R. PART 31.

/2/ B-218977, GAO/NSIAD-85-130, SEPTEMBER 11, 1985.

/3/ BY OUTGOING TELEGRAM STATE 193459, JUNE 19, 1986, TO ALL DIPLOMATIC AND CONSULAR POSTS, THE SECRETARY OF STATE RESTATED EFFECTIVE CHANGES TO 6 FAM EMPHASIZING THAT THE FULL COST OF SHIP TRAVEL MAY BE AUTHORIZED ONLY WHEN MEDICALLY NECESSARY; OTHERWISE, REIMBURSEMENT IS LIMITED TO THE COST OF THE AUTHORIZED AIRFARE.

/1/ WE HAVE BEEN ADVISED THAT USIA EMPLOYEE CHRISTOPHER PADDACK HAS APPEALED TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FROM THE DECISION RENDERED BY UNITED STATES DISTRICT JUDGE THOMAS E. FLANNERY ON JUNE 2, 1986 (UNITED STATES ET AL. V. PADDACK, NO. 86-5371 (D.C. CIR. DOCKETED JUNE 16, 1986)).