Proposed Rule2022-11096
Federal Travel Regulation (FTR); Constructive Cost
Primary source
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Published
May 27, 2022
Issuing agencies
General Services Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 103 (Friday, May 27, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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:
<a href="http://Regulations.gov">Regulations.gov</a>: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please check
<a href="http://www.regulations.gov">www.regulations.gov</a>, 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
<a href="/cdn-cgi/l/email-protection#4e3a3c2f382b223e2122272d370e293d2f60292138"><span class="__cf_email__" data-cfemail="d6a2a4b7a0b3baa6b9babfb5af96b1a5b7f8b1b9a0">[email protected]</span></a> 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 <a href="/cdn-cgi/l/email-protection#24637765764143774147644357450a434b52"><span class="__cf_email__" data-cfemail="bbfce8fae9dedce8ded8fbdcc8da95dcd4cd">[email protected]</span></a>. 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
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