Federal Travel Regulation (FTR); Clarification of Payment in Kind for Speakers at Meetings and Similar Functions

Published date16 October 2019
Citation84 FR 55246
Record Number2019-22324
SectionRules and Regulations
CourtGeneral Services Administration
Federal Register, Volume 84 Issue 200 (Wednesday, October 16, 2019)
[Federal Register Volume 84, Number 200 (Wednesday, October 16, 2019)]
                [Rules and Regulations]
                [Pages 55246-55249]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-22324]
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                GENERAL SERVICES ADMINISTRATION
                41 CFR Chapter 301 and Parts 304-2, 304-3, 304-5, and 304-6
                [FTR Case 2019-301-2; Docket No. 2019-0006, Sequence 1]
                RIN 3090-AK06
                Federal Travel Regulation (FTR); Clarification of Payment in Kind
                for Speakers at Meetings and Similar Functions
                AGENCY: Office of Government-Wide Policy, U.S. General Services
                Administration (GSA).
                ACTION: Final rule.
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                SUMMARY: GSA is amending the FTR to change the definition of ``payment
                in kind''. The new definition provides that a waived or discounted
                registration fee provided by the non-Federal sponsor of a meeting or
                similar function is not a payment in kind to the agency for the day(s)
                an employee speaks, participates in a panel, or presents at the event.
                This rule also makes miscellaneous related corrections.
                DATES: Effective November 15, 2019.
                FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
                Ms. Jill Denning, Program Analyst, Office of Government-wide Policy, at
                202-208-7642. Contact the Regulatory Secretariat Division (MVCB), 1800
                F Street NW, Washington, DC 20405, 202-501-4755, for information
                pertaining to status or publication schedules. Please cite FTR Case
                2019-301-2.
                SUPPLEMENTARY INFORMATION:
                A. Background
                 GSA published a proposed rule in the Federal Register at 84 FR
                19895 on May 7, 2019. The proposed rule noted that under 31 U.S.C.
                1353, as implemented in FTR chapter 304 (41 CFR chapter 304), agencies
                may accept payment of travel expenses from a non-Federal source for
                employees to attend meetings or similar functions. Currently, the FTR
                makes no distinction between employees who participate by speaking,
                serving on a panel or delivering a presentation, and other attendees at
                a meeting or similar function.
                 Because employees participate as a speaker, panelist, or presenter
                at these types of events to further the mission of their agency as a
                necessary and customary part of their work activities, GSA is
                redefining the travel purpose codes found in appendix C of chapter 301,
                which agencies use for travel reporting purposes. GSA is also amending
                chapter 304 so that a waived or discounted registration fee for the
                day(s) an employee participates as a speaker, panelist, or presenter is
                not a payment in kind. These waived and discounted registration fees
                will not need to be reported to the U.S. Office of Government Ethics
                (OGE). Other types of travel expenses paid by a non-Federal source,
                such as transportation, lodging, meals, and attendance on non-speaking
                days, or other associated event or similar function-related activities,
                must continue to be reviewed and reported in accordance with FTR
                chapter 304.
                 GSA acknowledges that OGE's Standards of Conduct regulations at 5
                CFR 2635.203(b)(8) and (g) permit employees, in their personal
                capacities, to accept free attendance, including meals, at an event
                provided by the event sponsor, on the day(s) the employee is presenting
                information on behalf of the agency. However, GSA's implementation of
                31 U.S.C. 1353 must be more restrictive. In particular, 31 U.S.C. 1353
                applies to payments from non-Federal sources for ``travel, subsistence,
                and related expenses'' for employees traveling on official business
                away from their designated post of duty. This statute requires that
                meals provided in kind by a non-Federal source be considered a
                ``payment in kind'' to the agency, as opposed to a gift personally
                accepted by the employee. Specifically, the language of 31 U.S.C. 1353,
                when read in conjunction with 5 U.S.C. 5701 and 5702 (prescribing an
                entitlement for payment of subsistence expenses and defining
                ``subsistence'' to include meals) defines ``payment'' to include meals
                provided in kind by a non-Federal source. When an agency approves
                acceptance of meals from a non-Federal source, 31 U.S.C. 1353 also
                requires that employees be subject to a pro rata reduction to their per
                diem entitlement. Therefore, GSA's implementation of 31 U.S.C. 1353 in
                regulation must include meals in the definition of ``payment in kind.''
                 Accordingly, this final rule instructs employees whose agencies
                have authorized the acceptance of meal(s)
                [[Page 55247]]
                under 31 U.S.C. 1353 to deduct meal(s) from their meals and incidental
                expenses per diem on their travel voucher using the deduction amounts
                listed for the locality at https://www.gsa.gov/mie unless they are
                unable to consume the meal(s) due to an exception provided in FTR Sec.
                301-11.18. This practice should prove efficient to agencies compared to
                current practice in which agency officials request from the non-Federal
                source a breakout of the costs of each meal provided in kind.
                 As noted above, the final rule states that if agencies accept a
                registration fee waiver or discount on the day(s) when employees are
                serving as a speaker, panelist, or presenter, such waiver or discount
                is not a payment in kind (emphasis added). However, if an employee
                attends a multi-day event on days they are not speaking, serving on a
                panel, or presenting, a registration fee waiver or discount for the
                days the employee merely attends the event is a payment in kind. This
                rule is implemented for better consistency with 5 CFR 2635.203(b)(8).
                 Finally, the amendment updates website links in the definitions
                portion of chapter 304, updates a CFR reference at the note
                accompanying Sec. 304-3.19(d), and adds a sentence to an explanatory
                note to the aforementioned subsection noting the difference between
                employee acceptance of gifts in their personal capacity per OGE
                Standards of Ethical Conduct regulations versus employees on official
                travel obtaining agency authorization to accept payments on behalf of
                the agency per 31 U.S.C. 1353.
                B. Analysis of Public Comments
                 Two comments were received during the public comment period:
                 Comment 1: The commenter agreed with the general sentiment of the
                rule.
                 Response 1: GSA concurs.
                 Comment 2: The commenter suggested that GSA add to Sec. 304-3.19
                that agencies have the ability to waive multi-day registrations under
                their agency's gift acceptance authority.
                 Response 2: GSA believes the gift authority concept is sufficiently
                noted in both Sec. 304-3.19 and other relevant sections in chapter
                304. GSA recognizes that permitting agencies to waive the registration
                fee for the duration of a multi-day meeting or similar function might
                have provided additional efficiency for agency authorizing officials;
                however, adopting such a proposal could create confusion because it is
                inconsistent with 5 CFR 2635.203(b)(8) of the OGE Standards of Ethical
                Conduct regulations.
                C. Changes in This Final Rule
                 GSA is not making any substantive changes from the proposed rule
                regulatory changes published May 7, 2019.
                D. 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 final rule is not a significant regulatory action, and therefore,
                was not subject to review under Section 6(b) of E.O. 12866, Regulatory
                Planning and Review, dated September 30, 1993.
                E. Executive Order 13771
                 This final rule is not subject to the requirements of E.O. 13771
                (82 FR 9339, February 3, 2017) because this final rule is not
                significant under E.O. 12866.
                F. 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. This final rule is
                also exempt from the Administrative Procedure Act per 5 U.S.C. 553
                (a)(2), because it applies to agency management or personnel.
                G. 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.
                H. Small Business Regulatory Enforcement Fairness Act
                 This final rule is also exempt from Congressional review prescribed
                under 5 U.S.C. 801 since it relates solely to agency management and
                personnel.
                List of Subjects in 41 CFR Appendix C to Chapter 301 and Parts 304-
                2, 304-3, 304-5, and 304-6
                 Government employees, Travel and transportation expenses.
                 Dated: October 7, 2019.
                Emily W. Murphy,
                Administrator, General Services Administration.
                 For the reasons set forth in the preamble, under 5 U.S.C. 5701-
                5709, and 31 U.S.C. 1353, GSA is amending 41 CFR appendix C to chapter
                301 and parts 304-2, 304-3, 304-5, and 304-6 as set forth below:
                Appendix C to Chapter 301 [Amended]
                0
                1. Add an authority citation for 41 CFR appendix C to chapter 301 to
                read as follows:
                 Authority: 5 U.S.C. 5707.
                0
                2. In appendix C to chapter 301, amend the first table by--
                0
                a. Revising the entry for Travel Purpose Identifier, ``Mission
                (Operational)''; and
                0
                b. Revising the entry for Travel Purpose Identifier, ``Conference-Other
                Than Training''.
                 The revisions read as follows:
                 Appendix C to Chapter 301--Standard Data Elements for Federal Travel
                 [traveler identification]
                ----------------------------------------------------------------------------------------------------------------
                 Group name Data elements Description
                ----------------------------------------------------------------------------------------------------------------
                
                 * * * * * * *
                 Mission (Operational)...... Travel to a particular site in order to perform
                 operational or managerial activities. Travel to a
                 conference to serve as a speaker, panelist, or
                 provide information in one's official capacity.
                 Travel to attend a meeting to discuss general
                 agency operations, review status reports, or
                 discuss topics of general interest.
                 Examples: Employee's day-to-day operational or
                 managerial activities, as defined by the agency,
                 to include, but not be limited to: hearings, site
                 visit, information meeting, inspections, audits,
                 investigations, and examinations.
                [[Page 55248]]
                
                
                 * * * * * * *
                 Conference--Other Than Travel performed in connection with a prearranged
                 Training. meeting, retreat, convention, seminar, or
                 symposium for consultation or exchange of
                 information or discussion. Agencies have to
                 distinguish between conference and training
                 attendance and use the appropriate identifier (see
                 Training below).
                 Examples: To engage in a planned program as a host,
                 planner, or others designated to oversee the
                 conference or attendance with no formal role, or
                 as an exhibitor.
                
                 * * * * * * *
                ----------------------------------------------------------------------------------------------------------------
                * * * * *
                PART 304-2--DEFINITIONS
                0
                3. The authority citation for 41 CFR part 304-2 continues to read as
                follows:
                 Authority: 5 U.S.C. 5707; 31 U.S.C. 1353.
                0
                4. Amend Sec. 304-2.1 by--
                0
                a. Removing from the definition of ``Meeting(s) or similar functions
                (meeting)'', the phrase ``(i.e., a function that is essential to an
                agency's mission)''.
                0
                b. Revising final sentence of the definition ``Payment in kind''; and
                0
                c. Revising the last two sentences of the definition ``Travel,
                subsistence, and related expenses (travel expenses)''.
                 The revisions read as follows:
                Sec. 304-2.1 What definitions apply to this chapter?
                * * * * *
                 Payment in kind * * * Payment in kind also includes waiver or
                discount of any fees that a non-Federal source collects from meeting
                attendees (e.g., registration fees), but does not include waivers or
                discounts of an employee's fees on the day(s) they are participating in
                the meeting or similar function as a speaker, panelist, or presenter.
                 Travel, subsistence, and related expenses (travel expenses) * * *
                The Foreign Affairs Manual is available for download from the internet
                at FAM.state.gov. The Joint Travel Regulations are available for
                download at http://www.defensetravel.dod.mil/site/travelreg.cfm.
                PART 304-3--EMPLOYEE RESPONSIBILITY
                0
                5. The authority citation for 41 CFR part 304-3 continues to read as
                follows:
                 Authority: 5 U.S.C. 5707; 31 U.S.C. 1353.
                0
                6. Add Sec. 304-3.10 to read as follows:
                Sec. 304-3.10 Is my agency's acceptance of a waived or discounted
                registration fee from a non-Federal sponsor of a meeting or similar
                function considered a payment in kind for the day(s) I am participating
                as a speaker, panelist, or presenter at the event?
                 (a) No. Your agency's acceptance of a waived or discounted
                registration fee from the non-Federal sponsor of the event is not a
                payment in kind for the day(s) you are participating as a speaker,
                panelist, or presenter. However, your agency's acceptance of a waived
                or discounted registration fee is a payment in kind for the days you
                only attend the event (i.e., on the day(s) you are not participating as
                a speaker, panelist, or presenter).
                 (b) Lodging, transportation, meals, event tickets, or other similar
                items of value provided by a non-Federal source are a payment in kind.
                If these types of expenses are included in a registration fee that is
                waived or discounted on the day(s) you are participating as a speaker,
                panelist, or presenter, you may accept them only with your agency's
                approval in accordance with this chapter. Specifically, if the
                registration fee includes meal(s), the meal(s) are a payment in kind.
                You may accept the meal(s) only if authorized to do so by your agency.
                If your agency authorizes acceptance of meal(s), you must also deduct
                the meal(s) from your M&IE per diem on your travel voucher using the
                deduction amounts listed for the locality at https://www.gsa.gov/mie
                unless you are unable to consume the meal(s) due to an exception
                provided in Sec. 301-11.18 of this chapter.
                0
                7. Amend Sec. 304-3.19(d) by revising the third sentence to read as
                follows:
                Sec. 304-3.19 Are there other situations when I may accept payment
                from a non-Federal source for my travel expenses?
                * * * * *
                 (d) * * * (Note: You may also be able to accept attendance at, but
                not other travel expenses to, a widely attended gathering under 5 CFR
                2635.204(g) when the gathering is not a meeting, as defined in this
                part, and you are not attending in your official capacity. Unless
                authorized to do so by your agency, you may not accept travel,
                subsistence, or related expenses, including meals, offered by a non-
                Federal source for participation as a speaker, panelist, or presenter
                at a meeting or similar function that takes place away from your
                permanent duty station. Such expenses are considered payments in kind
                and must be accepted, if at all, in accordance with this part.)
                PART 304-5--AGENCY RESPONSIBILITIES
                0
                8. The authority citation for 41 CFR part 304-5 continues to read as
                follows:
                 Authority: 5 U.S.C. 5707; 31 U.S.C. 1353.
                0
                9. Add Sec. 304-5.7 to read as follows:
                Sec. 304-5.7 How do we review offers of payments in kind from the
                non-Federal sponsor or organizer of a meeting or similar function for
                items such as meals, transportation, and lodging when they are included
                in a waived or discounted registration fee?
                 (a) If the non-Federal sponsor or organizer of a meeting or similar
                function offers to waive or discount the registration fee of an
                employee who is only attending the event, you are not required to
                separately authorize acceptance of any items included in the
                registration fee. If applicable, acceptance of the registration fee
                must be reported to U.S. Office of Government Ethics (OGE) in
                accordance with part 304-6 of this chapter.
                 (b) When a waived or discounted registration fee is not a payment
                in kind pursuant to Sec. 304-3.10 of this chapter, the employee may
                only accept items that you authorize separately. If applicable, the
                value of any payments in kind so accepted should be reported to OGE in
                accordance with part 304-6 of this chapter. In particular, if a
                registration fee is waived or discounted on the day(s) an employee is
                participating as a speaker, panelist, or presenter, and the
                registration fee includes meal(s), the employee may
                [[Page 55249]]
                accept meal(s) as a payment in kind only if you review the offer and
                authorize acceptance. Review the reporting guidelines at Sec. 304-6.4
                of this chapter to see if the aggregated meal amounts (if more than one
                meal, or meals of both an employee and spouse) will need to be reported
                to OGE.
                PART 304-6--PAYMENT GUIDELINES
                0
                10. The authority citation for 41 CFR part 304-6 continues to read as
                follows:
                 Authority: 5 U.S.C. 5707; 31 U.S.C. 1353.
                0
                11. Amend Sec. 304-6.6 by revising paragraphs (a) and (c) to read as
                follows:
                Sec. 304-6.6 How do we determine the value of payments in kind that
                are to be reported on Standard Form (SF) 326?
                * * * * *
                 (a) For conference, training, or similar fees waived, discounted,
                or paid for by a non-Federal source on behalf of a meeting attendee,
                you must report the amount charged to other attendees. However, a
                waiver or discount of the registration fee by the non-Federal sponsor
                of the event for the day(s) the employee participated in the meeting or
                similar function as a speaker, panelist, or presenter is not a payment
                in kind and does not need to be reported.
                * * * * *
                 (c) For meals, you must use the M&IE deduction chart for CONUS and
                OCONUS located at www.gsa.gov/mie and report the appropriate amount for
                each meal based on the temporary duty locality.
                * * * * *
                [FR Doc. 2019-22324 Filed 10-15-19; 8:45 am]
                BILLING CODE 6820-14-P
                

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