TITLE: B-307918, NOAA--Reimbursing Mileage for Commuting Expenses for On-Call Emergencies, December 20, 2006
BNUMBER: B-307918
DATE: December 20, 2006
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B-307918, NOAA--Reimbursing Mileage for Commuting Expenses for On-Call Emergencies, December 20, 2006
Decision
Matter of: NOAA--Reimbursing Mileage for Commuting Expenses for On-Call
Emergencies
File: B-307918
Date: December 20, 2006
DIGEST
The National Oceanic and Atmospheric Administration may not use its
appropriations to reimburse employees for the mileage traveled between
their residences and the agency's warehouse when performing after-hours,
on-call emergency services on behalf of the government because 31 U.S.C.
sect. 1344(a)(1) specifically prohibits using appropriated funds to
provide government employees with transportation between their homes and
places of employment, unless otherwise authorized by law.
DECISION
The Chief of the Central Finance Office of the National Oceanic and
Atmospheric Administration (NOAA), who is also a certifying officer, has
requested an advance decision under 31 U.S.C. sect. 3529. He asks whether
appropriated funds are available to reimburse NOAA employees for the
mileage they must travel between their homes and offices when performing
official services during on-call emergencies outside of their normal
office hours. Memorandum from Auke Hart, Chief of the Central Finance
Office, NOAA, to David M. Walker, Comptroller General of the United
States, May 1, 2006 (Hart Memorandum). As is our usual practice when
rendering a decision, we sought the views of the agency to establish a
factual record and to elicit the agency's legal position on the subject
matter of the request.[1] The Office of General Counsel of the Department
of Commerce, who replied to us on behalf of both NOAA and the department,
does not believe appropriated funds are available for this purpose. Letter
from Barbara S. Fredericks, Assistant General Counsel for Administration,
Department of Commerce, to Thomas H. Armstrong, Assistant General Counsel
for Appropriations Law, GAO, Oct. 30, 2006 (Fredericks Letter). For the
reasons given below, we agree.
BACKGROUND
NOAA, through the National Weather Service, operates and maintains a
system of weather forecasting stations across the United States and around
the world. These stations function 24 hours a day, 365 days a year. Hart
Memorandum, at 1. NOAA states that Congress has mandated it to "provide
weather forecasting for protecting life and property for the Nation. When
severe weather hits in the form of hurricanes, tornados and snow
blizzards, [NOAA] has to have equipment functioning . . . so [it] can
perform [its] congressional mandate to protect the public from impending
severe weather." Fredericks Letter, Enclosure 1, at 1--2. To help the
National Weather Service minimize interruptions of this service, NOAA
created the National Logistic Support Center (NLSC) to stockpile in its
warehouse and ship replacement parts and equipment crucial to weather
forecasting operations. Id., Enclosure 1, at 1.
In the past, NLSC has received between 200 and 400 requests each year for
emergency service outside of NLSC's normal office hours. Id. NLSC
schedules employees to attend to these emergency, after-hours service
requests on an "on-call" basis. Id. For each day of the year, including
Saturdays, Sundays, and federal holidays, NLSC places two staff members
on-call. Id. at 1. On weekdays, the employees assigned to on-call duty
work their normal day at NLSC and then go home for the evening. When NLSC
receives a request for after-hours emergency service, it notifies the
on-call employees who return from their homes to the NLSC offices, where
the warehouse is also located. Id., Enclosure 1, at 1. The assigned
on-call employees find the required parts or equipment, prepare them for
shipment to the affected weather station, deliver them to a shipping
vendor, and return home. Id. at 1. Some days, NLSC receives multiple
after-hours emergency service requests. When this happens, the on-call
employees must respond to each call. Hart Memorandum, at 1--2. NLSC
follows the same basic on-call process on weekends and federal holidays.
Id., Enclosure 1, at 1.
Pursuant to a collective bargaining agreement between the NLSC and
American Federation of Government Employees Local No. 29, employees
volunteer for on-call duty. Id., Enclosure 1, at 5. Approximately 12 of
about 30 NLSC warehouse employees participate in this voluntary
arrangement.[2] Id., Enclosure 1, at 1.
NLSC is concerned that the recent rise in gasoline prices is affecting
employee willingness to continue volunteering to perform these services.
Hart Memorandum, at 2. If employees stop volunteering to perform on-call
services, NLSC will be compelled to require all warehouse employees to
participate in the on-call service program. NLSC proposes to reimburse
on-call employees for the miles they travel between their homes and the
NLSC office/warehouse. NLSC believes that such reimbursements would allow
the agency to continue providing these on-call services on a voluntary
basis. Id.
DISCUSSION
As a general rule, employees must bear the costs of transportation between
their residences and official duty locations, even when unusual conditions
may increase commuting costs. 60 Comp. Gen. 633, 635 (1981). Congress has
authorized agencies to use appropriations for the "maintenance, operation,
or repair of any passenger carrier," but "only to the extent that such
carrier is used to provide transportation for official purposes." 31
U.S.C. sect. 1344(a)(1). It has specified that "transporting any
individual . . . between such individual's residence and such individual's
place of employment is not transportation for an official purpose."[3]
31 U.S.C. sect. 1344(a)(1). See also B-305864, Jan. 5, 2006, at n.1.
At the same time, however, agencies may exercise administrative
discretionon a temporary basis when there is a clear and present danger to
government employees, or an emergency threatens the performance of vital
government functions. 62 Comp. Gen. 438, 445 (1983). Section 1344 allows
an agency to provide for home-to-work transportation for an employee if
the agency head determines that "highly unusual circumstances present a
clear and present danger, that an emergency exists, or that other
compelling operational considerations make such transportation essential
to the conduct of official business."[4] 31 U.S.C. sect. 1344(b)(9). This
section also stipulates, however, that exceptions granted under it must be
"in accordance with" section 1344(d). Id. The latter section limits
emergency exceptions to periods of up to 15 calendar days, subject to
periodic renewal for up to a total of 180 additional calendar days, under
detailed procedures specified in 31 U.S.C. sect. 1344(d).[5]
Given the prohibition in 31 U.S.C. sect. 1344(a)(1), NLSC may provide
home-to-work transportation to employees assigned to perform on-call,
after-hours, emergency services only if it can qualify for an emergency
exemption under sections 1344(b)(9) and 1344(d), or if NLSC, in the
alternative, can cite some other statute which independently authorizes it
to provide for home-to-work transportation for its on-call employees. The
department has concluded that the emergency exception does not apply to
this case, Frederick Letter, at 3, and that NOAA does not have any
independent authority to reimburse its employees for mileage incurred
while commuting to and from their official duty station. Id. at 2. We
agree.
NLSC's on-call employees do not qualify for exemption under sections
1344(b)(9) and 1344(d). Section 1344(b)(9) contemplates "highly unusual
circumstances present[ing] a clear and present danger, that an emergency
exists, or that other compelling operational considerations make such
transportation essential to the conduct of official business." 31 U.S.C.
sect. 1344(b)(9). In this regard, NLSC argues that NOAA has a
"congressional mandate to protect the public from impending severe
weather." Fredericks Letter, Enclosure 1, at 2. NLSC asserts that its
after-hours emergency services are "vital in ensuring [NOAA's] world-wide
weather offices are available to provide accurate life-and-death local
forecasts." Id. at 1.
However, it is not enough for NLSC to demonstrate that the danger posed
under these circumstances constitutes an emergency sufficient to render
home-to-work transportation for NLSC's on-call employees essential to the
conduct of official business under section 1344(b)(9). NLSC must also
demonstrate that emergency exceptions made under its proposal comply with
section 1344(d). The limitations imposed by section 1344(d) are detailed
and restrict authorized exceptions to brief, specific periods, subject to
periodic extensions that may not exceed a specified number of calendar
days, and encumber agencies with procedures that compel them to carefully
account to Congress for each use of this authority. 31 U.S.C.
sect. 1344(d).
It was in this regard that the department objected to NLSC's proposal. The
department observed that "NOAA's overtime work is not performed on a
temporary basis but instead performed on a continual basis and numerous
times per week." Fredericks Letter, at 3. We agree. The record shows that
NLSC schedules on-call employees for each day of the year. NLSC's proposal
contemplates reimbursing employees for the mileage traveled between their
homes and the NLSC warehouse for each such trip from now on--without limit
or end date. For this reason, NLSC's on-call employees do not qualify
under the emergency exception in 31 U.S.C. sections 1344(b)(9), 1344(d).
Just as NLSC's proposal cannot be defended by invoking one of the
exemptions set forth in section 1344, neither NLSC nor we have been able
to identify any other statute that might provide it with independent
authority to provide for home-to-work transportation for its on-call
employees. Congress has on several occasions enacted authority to relieve
the department from another limitation set forth in section 1344(a)(1).
See, e.g., Pub. L. No. 109-108, sect. 202, 119 Stat. 2290, 2314 (Nov. 22,
2005) ("appropriations made available to the Department of Commerce by
this Act for salaries and expenses shall be available for hire of
passenger motor vehicles as authorized by 31 U.S.C. 1343 and
1344[(a)(1)]").
NLSC's final argument is that it and its employees accept the general
rule, as applied to each employee's normal, daily commute. However, they
do not agree that it should be applied to employees who have already
performed their normal obligation to get to and from work, and who are
voluntarily performing on-call duties in addition to their normal duties,
outside of the agency's normal workdays and work times. Hart Memorandum,
at 2. As discussed above, the statute makes no such distinction. In the
past, we have rejected similar appeals for exceptions to the general rule.
For example, in B-171969.42, Jan. 9, 1976, we considered a claim for
home-to-work mileage costs for voluntary overtime performed on Saturdays
and Sundays. Applying the general rule, we observed that the general rule
must be applied even if regular work is scheduled at irregular hours. In
another case, 36 Comp. Gen. 171 (1956), we considered whether United
States marshals who were required to return to headquarters after hours
were entitled to reimbursements for home-to-work mileage. Again, we
applied the general rule, even though the employee's home-to-work expenses
were increased by emergency conditions and the performance of necessary
overtime, without regard for the fact that the employees resided outside
their headquarters cities, and the fact that "call-back overtime duty" was
being performed. Id. at 172.
The fact that emergency conditions may necessitate additional trips or
otherwise increase commuting costs does not alter the employee's
responsibility to provide for his or her own home-to-work transportation.
60 Comp. Gen. 420 (1981). As put plainly in B-190071, May 1, 1978, "We are
unable to agree . . . that [home-to-work] transportation expenses . . .
for callback overtime duty should be at Government expense."
CONCLUSION
Given the prohibition in 31 U.S.C. sect. 1344(a)(1), NOAA and NLSC may not
use appropriated funds to reimburse NLSC employees for the mileage between
their residences and the NLSC warehouse for after-hours, on-call,
emergency services on behalf of the government. If NOAA wishes to allow
NLSC to use appropriated funds for these purposes, NOAA should approach
Congress and seek appropriate changes to the law.
Gary L. Kepplinger
General Counsel
------------------------
[1] In this matter, we wrote to NOAA's General Counsel. Letter from Thomas
H. Armstrong, Assistant General Counsel for Appropriations Law, to James
R. Walpole, General Counsel, NOAA, July 27, 2006. See GAO, Procedures and
Practices for Legal Decisions and Opinions, GAO-06-1064SP (Washington,
D.C.: Sept. 2006).
[2] NLSC pays the volunteers standby pay or overtime pay. In this
decision, we do not address NLSC's authority to pay standby or overtime
pay. See generally 5 U.S.C. sections 5544, 5545; 5 C.F.R. sect. 551.431.
See also B-235609, Jan. 9, 1995; B-218519, Oct. 15, 1985.
[3] The Commerce Department's internal rules and regulations are
consistent with the prohibition in section 1344(a)(1). See, e.g., DOC
Travel Handbook, sect. 301-4.9.
[4] Section 1344 also authorizes agency heads to transport officers and
employees between their place of employment and a mass transit facility at
government expense. 31 U.S.C. sections 1344(a)(3), 1344(g)(1). See also 5
U.S.C. sect. 7905. Since NOAA asked about mileage reimbursements, we need
not consider this provision here.
[5] The detailed procedures include requirements for written
determinations that name the specific employees, explain the reasons for
their exemption, and specify the duration of their exemptions; they
preclude the agency head from delegating this authority to another; and
they require congressional notification of the above information for each
exemption granted. Other subsections require GSA to promulgate
governmentwide regulations and require agencies to maintain logs detailing
all home-to-work transportation provided by the agency. 31 U.S.C.
sections 1344(e), 1344(f).