[Federal Register Volume 87, Number 103 (Friday, May 27, 2022)]
[Proposed Rules]
[Pages 32106-32108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11096]


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GENERAL SERVICES ADMINISTRATION

41 CFR Parts 301-10 and 301-70

[FTR Case 2022-01; Docket Number GSA-FTR-2022-0010, Sequence 1]
RIN 3090-AK61


Federal Travel Regulation (FTR); Constructive Cost

AGENCY: Office of Government-wide Policy (OGP), General Services 
Administration.

ACTION: Proposed rule.

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SUMMARY: GSA proposes to amend the Federal Travel Regulation (FTR) to 
clarify the concept of ``constructive cost'' as it relates to temporary 
duty travel, and clarify a section regarding what mode of 
transportation agencies should compare privately owned vehicle costs to 
when preparing a cost construction. These clarifications are intended 
to produce better estimates for decision makers.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addresses shown below on or before 
July 26, 2022 to be considered in the formation of the proposed rule.

ADDRESSES: Submit comments in response to FTR case 2022-01 to: 
Regulations.gov: https://www.regulations.gov. Submit comments via the 
Federal eRulemaking portal by searching for ``FTR Case 2022-01''. 
Select the link ``Comment Now'' that corresponds with FTR Case 2022-01. 
Follow the instructions provided at the ``Comment Now'' screen. Please 
include your name, company name (if any), and ``FTR Case 2022-01'' on 
your attached document. If your comment cannot be submitted using 
https://www.regulations.gov, call or email the points of contact in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    Instructions: Please submit comments only and cite FTR Case 2022-
01, in all correspondence related to this case. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. To confirm receipt of your comment(s), please check 
www.regulations.gov, approximately two to three days after submission 
to verify posting.

FOR FURTHER INFORMATION CONTACT: Ms. Jill Denning, Office of 
Government-wide Policy, at 202-208-7642 or email at 
[email protected] for clarification of content. For information 
pertaining to status or publication schedules, contact The Regulatory 
Secretariat (M1V1CB), at 1800 F Street NW, Washington, DC 20405, 202-
501-4755 or email at [email protected]. Please cite FTR case 2022-01.

SUPPLEMENTARY INFORMATION: 

I. Background

    GSA is proposing to amend the FTR to clarify the concept of 
``constructive cost'' as it relates to temporary duty travel, and 
clarify a section regarding what mode of transportation agencies should 
compare privately owned vehicle (POV) costs to when preparing a cost 
construction.
    When employees perform official business away from their official 
station, agencies must select the transportation method most 
advantageous to the Government, when cost and other factors are 
considered. Travel must be by the most expeditious means of 
transportation practicable and commensurate with the nature and purpose 
of the duties. In addition, the agency must consider energy 
conservation, total cost to the Government (including costs of per 
diem, overtime, lost work time, and actual transportation cost), total 
distance traveled, number of points visited, and number of travelers. 
The most advantageous transportation mode by order of precedence is 
common carrier, Government-furnished automobile, and rental car. An 
agency may authorize the use of a POV only after the agency evaluates 
the advantage of using the other modes of transportation.
    Federal employees may choose to use a POV while on temporary duty 
(TDY) travel regardless of the mode of transportation the agency 
directs in the travel authorization. However, if the agency has 
directed the employee to use a mode of transportation other than POV 
because it is more advantageous to the Government, the agency must 
perform a cost comparison, known as a constructive cost exercise, to 
determine how much the agency should reimburse the traveler when they 
choose a POV over the agency-selected mode of transportation. If the 
mode of transportation the agency has authorized is less than the cost 
of traveling by POV, the employee only receives that limited amount, 
regardless of how much it costs to use a POV. If the constructive cost 
shows that the POV cost is less than the agency-selected mode, then the 
employee will receive the total POV-related costs. (Agencies are 
reminded that the FTR does not authorize agencies to require that 
employees use their POV for TDY travel, even if the costs will be less 
for the Government.)
    GSA is aware that agencies often mistakenly calculate TDY 
constructive costs by only comparing the selected transportation mode 
with the POV mileage rates without also factoring in related travel 
costs, such as per diem expenses, parking, baggage fees, etc. Not 
factoring in these other costs leads to an incomplete calculation of 
the total ``constructive'' travel cost that employees may incur.
    The Civilian Board of Contract Appeals (CBCA) and its predecessor 
board, the General Services Board of Contract Appeals (GSCBA) have, in

[[Page 32107]]

their holdings on TDY constructive costs, opined that when comparing 
the total allowable costs for travel by a mode other than that most 
advantageous to the Government, with the constructive cost of traveling 
by the authorized mode, agencies should think through the complete 
travel experience and include other potential costs. (See In Re Yates, 
GSBCA No. 15109-TRAV (Jan. 28, 2000); In the Matter of Stephen M. 
England, CBCA 3903-TRAV (Jan. 30, 2015)). For example, if an employee 
was authorized to travel by air via common carrier but chose to travel 
by POV, in calculating the constructive cost of air travel the agency 
should include potential costs such as the expected cost of lodging as 
well as meals, incidentals, airfare, baggage, use of a rental car, and 
transportation to and from the airport using a taxi or transportation 
network company (TNC), and perhaps others depending on the individual's 
situation. Even though these costs may not actually be incurred when 
the employee uses their POV instead of flying via a common carrier, 
they should be included in the agency's constructive cost analysis to 
determine how much the authorized mode would have cost the agency in 
total.
    GSA anticipates there may be negligible cost savings because of 
this change in the regulation. The preferred methods of travel are not 
changing, and agencies will still be required to select the method of 
travel that provides the best value to the government. By better 
understanding how constructive costs are calculated, agencies should be 
less likely to authorize any higher-cost POV travel (except in rare 
instances when all preferred methods are not available or practicable). 
Agencies will likely spend less administrative time defending cost 
construction calculations that may have been unclear or confusing to 
the traveler.
    Additionally, GSA proposes to clarify the constructive cost 
methodology stated in Sec.  301-10.309. GSA amended this section in 
2015 to include the use of rental cars as a potential transportation 
option that agencies could authorize on TDY in addition to the use of 
common carriers (80 FR 27259). However, when determining the 
constructive cost, the section currently states that agencies should 
not exceed the total constructive cost of the ``authorized method of 
common carrier transportation,'' when it should read ``authorized 
method of transportation'' as is consistent with 41 CFR 301-70.105(a). 
Agencies are directed to limit reimbursement to the authorized method 
of transportation (to include rental cars), rather than to the 
authorized method of common carrier (excludes rental cars). It is clear 
in the background section of the 2015 amendment that is what GSA 
intended, but at that time the FTR was not accurately amended to 
reflect the agency's intent.

II. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives, and if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This proposed rule is not expected to be a significant regulatory 
action, and therefore, is not subject to review under Section 6(b) of 
E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

III. Congressional Review Act

    OIRA has determined that this proposed rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2). Additionally, this proposed rule is 
excepted from Congressional Review Act reporting requirements 
prescribed under 5 U.S.C. 801 since it relates to agency management or 
personnel under 5 U.S.C. 804(3).

IV. Regulatory Flexibility Act

    GSA does not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the changes are administrative in nature and only affect 
Government employees. Therefore, an Initial Regulatory Flexibility 
Analysis has not been performed.

V. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the Federal Travel Regulation do not impose recordkeeping or 
information collection requirements, or the collection of information 
from offerors, contractors, or members of the public that require the 
approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 41 CFR Parts 301-10 and 301-70

    Government employees, Travel and transportation expenses.

Krystal J. Brumfield,
Associate Administrator, Office of Governmentwide Policy.

    For the reasons set forth in the preamble GSA proposes to amend 41 
CFR parts 301-10 and 301-70 as set forth below:

PART 301-10--TRANSPORTATION EXPENSES

0
1. The authority citation for 41 CFR part 301-10 continues to read as 
follows:

    Authority:  5 U.S.C. 5707; 40 U.S.C. 121(c); 49 U.S.C. 40118; 
Office of Management and Budget Circular No. A-126, ``Improving the 
Management and Use of Government Aircraft.'' Revised May 22, 1992.

0
2. Revise Sec.  301-10.309 to read as follows:


Sec.  301-10.309   What will I be reimbursed if I am authorized to use 
common carrier transportation or a rental vehicle and I use a POV 
instead?

    You will be reimbursed the applicable POV rate on a mileage basis, 
plus per diem and related travel expenses, not to exceed the total 
constructive cost of the authorized method of transportation. Your 
agency must determine the constructive cost in accordance with Sec.  
301-70.105(a).

PART 301-70--INTERNAL POLICY AND PROCEDURE REQUIREMENTS

0
3. The authority citation for 41 CFR part 301-70 is revised to read as 
follows:

    Authority:  5 U.S.C. 5707; 40 U.S.C. 121(c); Sec. 2, Pub. L. 
105-264, 112 Stat. 2350 (5 U.S.C. 5701, note); OMB Circular No. A-
126, revised May 22, 1992; OMB Circular A-123, Appendix B, revised 
August 27, 2019.

0
4. Amend Sec.  301-70.105 by revising paragraph (a) to read as follows:


Sec.  301-70.105   May we prohibit an employee from using a POV on 
official travel?

* * * * *
    (a) Limit reimbursement to the constructive cost of the authorized 
method of transportation, which is the sum of travel and transportation 
expenses the employee would reasonably have incurred had the employee 
traveled by the method of transportation deemed to be most advantageous 
to the Government. The calculation will necessarily involve 
assumptions. Examples of related expenses that could be considered 
constructive costs include, but are not

[[Page 32108]]

limited to, taxi and TNC fares, baggage fees, rental car costs, tolls, 
ferry fees, and parking charges; and
* * * * *
0
5. Amend Sec.  301-70.506 by revising paragraph (b) to read as follows:


Sec.  301-70.506   How do we define actual cost and constructive cost 
when an employee interrupts a travel assignment because of an 
incapacitating illness or injury?

* * * * *
    (b) Constructive cost is the sum of travel and transportation 
expenses the employee would reasonably have incurred for round-trip 
travel between the official station and the alternate location plus per 
diem calculated for the appropriate en route travel time. The 
calculation will necessarily involve assumptions. Examples of related 
expenses that could be considered constructive costs include, but are 
not limited to, taxi and TNC fares, baggage fees, rental car costs, 
tolls, ferry fees, and parking charges.

[FR Doc. 2022-11096 Filed 5-26-22; 8:45 am]
BILLING CODE