[Federal Register Volume 88, Number 11 (Wednesday, January 18, 2023)]
[Rules and Regulations]
[Pages 2843-2845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00733]


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GENERAL SERVICES ADMINISTRATION

41 CFR Parts 301-10, 301-70

[FTR Case 2022-01; Docket Number GSA-FTR-2022-0010, Sequence 2]
RIN 3090-AK61


Federal Travel Regulation (FTR); Constructive Cost

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

ACTION: Final rule.

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SUMMARY: GSA is issuing a final rule amending the Federal Travel 
Regulation (FTR) to clarify the calculation of ``constructive cost'' as 
it relates to temporary duty (TDY) travel. GSA is also making technical 
changes regarding what method of transportation agencies should compare 
privately owned vehicle costs to when preparing a constructive cost 
analysis. These clarifications are intended to produce

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better estimates for agency decision makers.

DATES: Effective February 17, 2023.

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 published a proposed rule at 87 FR 32106 on May 27, 2022, to 
clarify the calculation of ``constructive cost'' as it relates to 
temporary duty (TDY) travel. This rule finalizes the proposed changes 
to section 301-10.309, regarding what method of transportation agencies 
should compare privately owned vehicle (POV) costs to when preparing a 
constructive cost analysis, and makes minor editorial adjustments in 
order to clarify intent.
    When employees perform official business away from their official 
station, agencies must, in authorizing the TDY travel, 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 method by order of 
precedence is common carrier, Government-furnished automobile, rental 
car, and POV.
    Regardless of the method of transportation the agency selects in 
the travel authorization, Federal employees may choose to use a POV 
while on TDY. However, if the agency has selected a method of 
transportation other than POV for the employee's use because it is more 
advantageous to the Government, the agency must perform a cost 
comparison, known as ``constructive cost'', to determine how much the 
agency should reimburse the traveler when the traveler chooses a POV 
over the agency-selected method of transportation. If the constructive 
cost of the agency-selected method of transportation 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 method, then the employee will receive the total POV-related 
costs (as listed in 41 CFR 301-10.304). (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 may mistakenly calculate TDY 
constructive costs by only comparing the selected transportation method 
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, 
the General Services Board of Contract Appeals (GSCBA) have, in their 
decisions on TDY constructive costs, opined that when comparing the 
total allowable costs for travel by a method other than that most 
advantageous to the Government, with the constructive cost of traveling 
by the agency-selected method, agencies should think through the 
complete travel experience and include other potential costs. (See In 
the Matter of Russell E. Yates, GSBCA No. 15109-TRAV (Jan. 28, 2000); 
In the Matter of Stephen M. England, CBCA 3903-TRAV (Jan. 30, 2015)). 
For example, if the agency selected travel by air via common carrier 
but the employee 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, incidental 
expenses, 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 situation. Even 
though these costs may not actually be incurred when the employee uses 
the POV instead of flying via a common carrier, the relevant travel 
costs should be included in the agency's constructive cost analysis to 
determine how much the agency-selected method would have cost the 
agency in total.
    Additionally, GSA is clarifying 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, 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).

II. Discussion of the Final Rule

    GSA did not receive any public comments related to the proposed 
rule and has not made any substantive changes to the regulatory 
language from the proposed to final rule.
    While difficult to quantify, GSA expects some savings in travel 
costs as a result of this final rule; GSA anticipates that no 
additional travel costs will result from agencies performing more 
comprehensive constructive cost comparisons as agencies will better 
understand the impact of method of transportation decisions, and 
therefore should be better positioned to select the method of 
transportation most advantageous to the Government. Agencies also 
should be able to better limit TDY costs incurred by employees who 
choose to use their POV instead of the agency-selected transportation 
method. Common carrier, Government-furnished automobile, and rental car 
are presumed to be the most advantageous methods of transportation, and 
are often less expensive than travel by POV. Administrative savings 
from having a more comprehensive process should also lessen the time 
agencies and employees spend working through confusion or differences 
in interpretation, hopefully with fewer employees requesting CBCA 
review of claims for entitlement to travel expenses.

III. 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 is not 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.

IV. Congressional Review Act

    OIRA has determined that this rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2). Additionally, this rule is

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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)(b).

V. Regulatory Flexibility Act

    This final rule will not 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, a Final Regulatory Flexibility Analysis has not been 
performed.

VI. 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

41 CFR Parts 301-10, 301-70

    Government employees, Travel and transportation expenses, common 
carriers.

Robin Carnahan
Administrator of General Services.

    For the reasons set forth in the preamble GSA amends 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 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. 2023-00733 Filed 1-17-23; 8:45 am]
BILLING CODE 6820-14-P