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).