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    "ocrText": "Ronald Reagan Presidential Library\nDigital Library Collections\nThis is a PDF of a folder from our textual collections.\nCollection: Roberts, John G.: Files\nFolder Title: JGR/Portal-to-Portal\n(11 of 14)\nBox: 37\nTo see more digitized collections visit:\nhttps://reaganlibrary.gov/archives/digital-library\nTo see all Ronald Reagan Presidential Library inventories visit:\nhttps://reaganlibrary.gov/document-collection\nContact a reference archivist at: [email protected]\nCitation Guidelines: https://reaganlibrary.gov/citing\nNational Archives Catalogue: https://catalog.archives.gov/\nDate\nROUTING AND TRANSMITTAL SLIP\n10/9/85\nTO: (Name, office symbol, room number,\nInitials\nDate\nbuilding, Agency/Post)\nMike Horowitz\n1.\n2. John Cooney\n3. Gordon Wheeler\n4.\nArnold Intrater\n5.\nJohn Roberts\nAction\nFile\nNote and Return\nApproval\nFor Clearance\nPer Conversation\nAs Requested\nFor Correction\nPrepare Reply\nCirculate\nFor Your Information\nSee Me\nX\nComment\nInvestigate\nSignature\nCoordination\nJustify\nREMARKS\nDO NOT use this form as a RECORD of approvals, concurrences, disposals,\nclearances, and similar actions\nFROM: (Name, org. symbol, Agency/Post)\nRoom No.-Bidg.\n471 OEOB\nCharles Kolb\nPhone No.\n5600\n5041-102\nOPTIONAL FORM 41 (Rev. 7-76)\nPrescribed by GSA\nFPMR (41 CFR) 101-11.206\nU. S:GPO:1978-0-261-647 3354\nOctober 9, 1985\nHonorable Jack Brooks\nChairman\nCommittee on Government Operations\nLegislation and National Security Subcommittee\nU. S. House of Representatives\nRayburn House Office Building, Room B-373\nWashington, D. C. 20515\nDear Mr. Chairman:\nEnclosed are responses to the questions which you and\nRepresentative Horton submitted for official response in\nconnection with the Subcommittee's September 19, 1985, hearing on\nthe Administration's proposal regarding government vehicles for\nhome-to-work transportation.\nI hope that you find these responses helpful and will feel free\nto contact me or my staff should you need further information.\nWe welcome the opportunity to continue working with the\nSubcommittee and with GAO to achieve a meaningful and permanent\nlegislative resolution of this longstanding issue.\nAgain, let me express my appreciation at being invited to testify\nbefore the Subcommitee last month.\nSincerely,\n-2-\nMichael J. Horowitz\nGeneral Counsel\n-1-\n1. Why do you think the number of officials legally receiving\nhome-to-work transportation should be increased?\nA: It would not be accurate to say that the number of persons\nwho actually receive such transportation would be increased\nby the Administration's proposal. As the Committee knows,\nmany senior government officials -- for example, the Vice\nPresident -- have received such transportation over the past\n20 years. We believe the proposal would actually reduce the\nnumber of persons who receive such transportation. The\nAdministration's goal in its proposal is to constrain this\nand future administrations from actually increasing the\nnumber of officials receiving portal-to-portal\ntransportation. In the past, the issue has been subject to\nconsiderable uncertainty, with the Comptroller General's June\n1983 opinion reversing some 40 years of practice under the\nexisting statute. During this period, the Comptroller\nGeneral has issued numerous opinions which, along with\ninconsistent agency practice, have muddied the waters. The\nAdministration's proposal reflects an effort to clarify the\nissue once and for all in a restrictive, government-wide\nfashion.\nIn the Executive Branch, under the strictest reading of the\nGAO opinion, only the President and the heads of the thirteen\ncabinet agencies are entitled to such transportation. Under\nthe Defense authorization bill passed last year, an\n-2-\nadditional ten persons received such transportation.\nThe Administration's proposal would add the following\nindividuals on a permanent basis:\n-- the Vice President;\n-- 11 deputy heads of Cabinet agencies (the Deputies at\nDefense and State already receive transportation);\n-- 14 people whose positions are classified at Executive\nLevel II and who are not covered by one of the preceding\ncategories or existing legislation;\n-- Also, the proposal specifically names the following\nsenior officials:\nThe White House Chief of Staff;\nThe Assistant to the President for National Security\nAffairs; and\nThe Commandant of the Coast Guard\n-- any other persons the President may determine are of\nCabinet rank.\nIn addition, certain other persons would sometimes qualify\nbecause they are under Secret Service protection. This makes\n- -3-\na total of 30 positions we can identify in advance.\n-4-\n2. Why did you include level 2 employees in your proposed\nlegislation?\nA: There were several options considered, but we finally chose\nExecutive Level II because, primarily, it followed Congress's own\njudgment that these positions, as set forth in 5 U.S.C. 5313,\nreflected the upper levels of government officials. We felt it\nmore appropriate to follow this Congressional determination than\nto substitute a case-by-case determination.\n-5- -\n3. What criteria did the O.M.B. use to determine which\ngovernment employees should be included in this proposal?\nA: In determining which government employees should receive\nportal-to-portal transportation, OMB employed criteria which\nwould be both restrictive and comprehensive. Thus, the decision\nto rely principally on Executive Level II was made because:\n- It limits transportation to a small number of persons who\nare designated by the Congress as being at very senior\nlevels of government.\n-- We wanted a uniform, government-wide criterion. If we\nbegan selecting agencies for inclusion on a case-by-case\nbasis, the pressure from those not selected would\ncontinue, and Congress and the Executive branch will be\ncompelled to address this issue again. Finally,\ncase-by-case resolution would not produce uniform results.\n-6-\n4. For which government officials do you consider nome-to-work\ntransportation absolutely essential?\nA: We believe that authorization for home-to-work transportation\nfor those individuals covered by the Administration's\nproposal is important. Our goal has been to limit the\noverall number of people for whom this transportation would\nbe available, while at the same time providing it to those\nindividuals whose level of government service is such that\nthis transportation would be in the government's interest,\nnot their personal convenience. This feature, in our\njudgment, would go far in restricting the overall number of\nofficials receiving such transportation.\n-7-\n5. Why is such broad language as \"other operational\nconsiderations\" in subsection (a) (3) used to permit the\nPresident or an agency head to authorize temporary use of\ngovernment vehicles for home-to-work transportation?\nA: \"Other operational considerations\" is used because it\nincludes various medical, safety, and family circumstances\nwhich are difficult to predict in advance. It is simply\nimpossible to imagine all the situations which could arise\nrequiring flexibility in the use of government\ntransportation. For example, the Comptroller General has\nalready authorized the use of government transportation where\nan individual has certain medical conditions which would\npreclude driving.\nFurthermore, as is explained below in our answer to\nQuestion 9, additional reporting requirements will protect\nagainst possible abuses. The phrase \"other operational\nconsiderations\" must be viewed in the context of section\n(a) (3) of the proposal and the very substantial limitations\non the authority which it contains.\n-8-\n6. Would this authority be used only in situations similar to\nthose for which the GAO has previously approved temporary\nhome-to-work transportation?\nA: The exceptions authority contemplated by \"other operational\nconsiderations\" is intended to be limited while, at the same\ntime, providing flexibility for situations and circumstances\nwhich may be difficult to anticipate. As noted already, GAO\nhas, in the past, authorized instances of temporary portal-\nto-portal transportation. While these cases would probably\nbe included under the proposal, we cannot say that, in the\nfuture, there might not be new, unforeseen cases for which\nsuch transportation would be necessary.\nAgain, some degree of flexibility is necessary given the fact\nthat unforeseen circumstances will undoubtedly arise. This\nquestion is a proper one and reflects legitimate concern that\nthe car and driver be properly used. We believe, however,\nthat abuses are less likely to occur under the OMB proposal\nbecause:\nO only a relatively limited number of persons will receive\nsuch transportation,\nO others receiving it by designation will receive it for a\nlimited period of time,\n-9-\nO decisions to provide such transportation are nondelegable,\nand\nO\nadequate notice of the decisions would serve to further\nlimit any potential for abuse.\n-10-\n7. Would you be opposed to a requirement for either an annual\nreport or a report as exceptions are authorized?\nA: We would not oppose a requirement that there be annual\nreporting or a report submitted to GAO within a reasonable\nperiod of time after an exception has been authorized. In\nour judgment, this requirement could go far in relieving any\nfears that there may be excessive use of home-to-work\ntransportation and in protecting against any such abuse. It\ncould, in short, be the means of providing additional\nprotection against abuse, while at the same time permitting\nthe necessary flexibility for non-designated senior\nofficials.\n-11-\n8. If this proposal were enacted without change, how much will\nthis proposal cost the government annually?\nFollow-up Question:\nFor the record, please provide a breakdown of these costs.\nA: We do not know precisely how much the proposal would cost\nthe government annually if enacted without change, but we are\nwilling to accept the Comptroller General's determination in\nthis regard.\nThe incremental costs of the proposal should not be high,\nhowever, since we anticipate that existing automobiles and\nstaff will be used to provide the portal-to-portal\ntransportation. We do not anticipate that this proposal will\nrequire the purchase of additional automobiles or the hiring\nof additional staff.\n-12-\n9. Under this proposal, how many officials authorized to use a\ngovernment vehicle for home-to-work transportation would also\nbe provided a chauffeur?\nA: We do not anticipate there being any changes in the use of\ndrivers under the Administration's proposal. Thus, the\nexisting number of drivers should be sufficient to provide\nthe necessary transportation.\n-13-\n10. Would the provision of home-to-work transportation for these\nemployees be considered income for taxation purposes?\nA: We understand that this question is currently being\nconsidered by the Internal Revenue Service and believe it\nappropriate to wait until the Internal Revenue Service offers\nits guidance on the subject before commenting further.\n-14-\n11. GAO found in its survey that from January to June of this\nyear 79 officials and 7 relatives, who were not authorized,\nreceived home-to-work transportation. Do you believe\ngovernment officials should be required to adhere to the\ncurrent law until such time as it is changed?\nA: As virtually everyone who has looked at this matter has\nconcluded, the current law is subject to varying\ninterpretations. For example, even GAO --- just three months\nafter its June 1983 opinion -- concluded that the State\nDepartment's Chief of Protocol was entitled to portal-to-\nportal transportation on the very grounds rejected in June\n1983.\nUntil the current law is changed, government officials\nare required to follow it The considerable uncertainty\nwhich the current law has created, however, points to the\nserious need for legislation to clarify the matter on a\ngovernment-wide basis.\n-15-\n12. What guidance has OMB provided agencies concerning the\nimplementation of the current law prohibiting the use of\ngovernment vehicles for home-to-work transportation?\nA: The Comptroller General's June 1983 opinion received wide-\nspread attention throughout the government. Additionally,\ngiven the delay in enforcement, no specific advice was given\nby the Administration concerning the use of government\nvehicles. Agencies have been relying on advice provided by\ntheir General Counsels concerning questions about the use of\ngovernment vehicles.\nOMB would only have provided government-wide advice\nministerially, based on an opinion from the Department of\nJustice. Pending resolution of this matter through\nlegislation, OMB saw no reason to seek such opinion.\n-16-\n13. Does the Secret Service have separate legal authority to\nprovide home-to-work transportation to any individual whom it\nconsiders should be provided protection? If so, please\nprovide the cite to the law.\nA: The Secret Service has authority to take the steps necessary\nto provide such protection. Under 18 U.S.C. 3050, the Secret\nService has the authority and the responsibility to take\nwhatever steps are necessary to provide protection services.\nHome-to-work transportation is an element of that protection.\n-17-\n14. What are the justifications for providing home-to-work\ntransportation for the deputy heads of executive departments?\nA: Under this proposal, the deputy heads of Executive\ndepartments would be covered because they are functioning at\na level of government service sufficiently high such that the\nrelatively minor additional expense in providing this service\nis far offset by the additional benefit which the government\nreceives from these individuals being able to devote more\ntime to their official responsibilities. In the major\nCabinet agencies, the potential to receive an additional one\nto two hours of work per day from such officials has obvious\nsignificant benefits to the government.\nAlso, due to the demands on the Cabinet heads, the deputies\nfrequently serve as acting heads of their respective\ndepartments. The Comptroller General made this point in his\ntransmittal letter to Chairman Brooks on June 3, 1983,\nindicating that the individual who occupies the number two\nposition in an agency shares most of the same\nresponsibilities as the agency head and is a reasonable\ncandidate for home-to-work transportation.\n-18-\n15. What is the significance in listing some employees in section\n(a) and other employees in section (b)?\nA: There is no intended significance in listing some employees\nin section (a) and others in section (b) of the proposal.\nThe employees referenced in section (b) are listed only with\nreference to portal-to-portal transportation and no other\nactivity.\n-19-\n16. Under what authority is William McFarlane now receiving\nhome-to-work transportation?\nA: Mr. McFarlane, the President's National Security Adviser,\nreceives such services pursuant to a 1978 opinion from the\nDepartment of Justice.\n-20-\n17. For the record, which employees of the government currently\nare deemed to have cabinet-level status? What restrictions\ngovern the authority to make such designations?\nA: The following individuals are currently deemed to have\ncabinet-level status: Donald Regan, Chief of Staff; William\nCasey, Director of Central Intelligence; the Director of the\nOffice of Management and Budget; Clayton Yeutter, the Special\nTrade Representative; and Vernon Walters, U.S. Ambassador to\nthe United Nations. These designations are made by the\nPresident.\n-21-\n18. Why have you determined that 90 days is the minimum time for\nwhich the President or an agency head can authorize\nhome-to-work transportation (Subsection (a) (3))?\nA: Ninety days or less was selected as a reasonable time for\nwhich the President or an agency head could authorize\ngovernment transportation to an employee who needed it.\nWhile the various factors set forth in Subsection (a) (3) are,\nfor the most part, difficult to ascertain in advance, this\nfigure, rather than an open-ended period, was chosen as a\nreasonable limitation on the authorization to receive such\ntransportation. Moreover, the requirement for quarterly\nrenewal guarantees periodic review of the need for the\ntransportation. If the need for this transportation\nterminates prior to the end of the 90-day period, then the\nportal-to-portal transportation should terminate immediately.\n-22-\n19. For the record, please provide more succinct language for\nsubsections (a) (3) and (b) (2) (A) and (B) so as to deter\ndiscretionary interpretation.\nA: As currently proposed, subsection (a) (3) contains three\nlimitations intended to prevent discretionary interpretation.\nFirst, the determination is for 90 days, renewable on a\nquarterly basis. Second, the determination may be made only\nunder \"highly unusual circumstances\" or \"other operational\nconsiderations\" making such transportation essential to the\nconduct of official business. Third, the authority to make\nsuch determinations rests with the agency head and is\nnondelegable.\nAs for subsections (b) (2) (A) and (B), use of the term\n\"appropriate\" is intended to provide the type of flexibility\nwhich is necessary for the efficient implementation of the\nproposal. Moreover in each instance, the provision of such\nportal-to-portal transportation is only made when its serves\nthe government's interests, not those of the individual.\n-23-\n20. What definition of agency applies in this proposal?\nA: The applicable definition of \"agency\" is the same one which\nthe Congress intended when it originally passed 31 U.S.C.\n1344 (a) (2). . Thus, use of the term \"agency\" in subsection\n(a) (3) in the draft legislation is intended to cover the same\ncontext in which \"agency\" was used in the original\nlegislation in subsection 1344 (a) (2).\n-24-\n21. What are examples of situations that would be covered by\n\"other operational considerations\" in subsection (a) (3) of\nyour proposal?\nA: As noted above in our answer to Question 5, examples of\n\"other operational considerations\" could include various\nmedical, safety, family circumstances, or duty which are hard\nto determine in advance. It is important to stress that the\nAdministration's proposal is intended to accomplish two\ngoals: First, it attempts to restrict as much as possible\nthe overall number of government officials receiving such\ntransportation; and second, it seeks to do so in a fashion\nwhich preserves flexibility for unanticipated circumstances\ngiven the fact that one cannot anticipate all of the\ncircumstances -- such as the unusual job function which\nformed the basis of the Comptroller General's ruling which\npermitted such transportation for the State Department's\nChief of Protocol -- in advance. Taken together, these\nfeatures will ensure that the proposed legislation is both\nlimited in scope and yet responsive to genuine needs as they\narise.\n-25-\n22. What benefits does the government derive from providing\nhome-to-work transportation to officers and employees of the\ngovernment?\nA: The principal benefit that the government derives by\nproviding portal-to-portal transportation is additional work\nfrom those people being driven. The officials receiving this\ntransportation are generally at a level of government service\nwhere the demands are, in many instances, quite\nextraordinary. Providing such transportation actually\nenables the government to receive additional efforts from\nthese officials and, at the same time, may mean that they can\nspend more time with their families.\nAdditionally, this\nservice may be particularly important for those officials\nliving in areas not readily serviced by taxis or other means\nof public transportation. Furthermore, for those government\nofficials having sensitive national security\nresponsibilities, providing transportation also carries with\nit increased, secure accessibility to the White House, the\nSituation Room, and the nation's defense installations\nprimarily through sophisticated communications systems\nincluding, where necessary, scrambler phones. This crucial\nbenefit would be unavailable were these individuals required\nto spend substantial time each day commuting in their own\nvehicles or in public transportation.\nThe responsibilities imposed on the officials covered by this\n-26-\nlegislation require their being available by phone even while\ncommuting between office and home. The demands of their jobs\ncontinue beyond the physical confines of their offices,\nmaking their home-to-work transportation an extension of\ntheir offices. The increasing complexity of the issues dealt\nwith by Cabinet heads, their principal deputies, and the\nprincipal assistants to the President and the increasing need\nfor an immediate reaction makes their availability while\ncommuting a work-related necessity.\n-27-\n23. How will this proposal alter the current motor pool\noperations in the agencies?\nA: I do not believe this proposal will alter substantially the\ncurrent motor pool operations in various agencies. There may\nbe instances in which there is more overtime called for, but\nthis cannot be estimated at this time.\n-28-\n24. How many government employees located outside the continental\nUnited States currently receive government-furnished home-to-\nwork transportation? For the record, please provide a\nlisting of the categories of employees provided such service,\ntogether with the number of employees in each category.\nA: We do not yet know how many government employees located\noutside the continental United States currently receive\ngovernment-furnished portal-to-portal transportation. We are\nseeking to obtain this information from the Department of\nState.\n-29-\n25. In what instances is the exception provided in current law\nfor \"medical officers on out-patient medical service\" used so\nas to justify retaining it in this proposal?\nA: We do not know the basis for this exception or why it is\nneeded.\n-30-\n26. What criteria should be used to determine if an official's\nactivities may be properly considered field work?\nA: We do not have any opinion as to the criteria for determining\nwhat is or is not \"field work\". In essence, the\nAdministration's proposal simply adopted the existing\nstatutory language, added certain clarifying provisions, and\nleft untouched the existing provisions governing field work.\n-31-\n27. How will an official's safety and security be ensured by the\nuse of a government car?\nA: In some instances, government vehicles have additional safety\nand security enhancements. Furthermore, it follows that\nhaving a professionally trained driver will, in and of\nitself, enhance the official's safety and security. In\ninstances where there are motor pools, a government vehicle\n--- which may be a different car from day to day -- may be\nharder to identify and associate with a particular official.\nThis would not be the case were the official using a private\ncar or public transportation.\nFinally, drivers who are trained in special security tactics\nwill obviously be able to provide additional safety and\nsecurity. In recent years, terrorist incidents have been\nescalating in frequency around the world. While to date\nthere have been very few such instances of this nature\ndomestically, we should nonetheless consider -- ànd prepare\nfor -- the possibility that one day our highest officials\ncould face such threats. Prudence dictates that we undertake\nsuch measures now and that doing so is not only\ncost-effective but a means of protecting this country's vital\nsecurity interests.\n-32-\n28. How could the temporary authorizations for 90 days, renewable\non a quarterly basis, be checked?\nA: Temporary authorizations could be reported to GAO either\nannually or within a reasonable period of time after their\nauthorization.\n-33-\nMr. Horton's Questions\n1. When former Director Stockman transmitted this proposal to\nChairman Brooks, he wrote that the Administration \"does not\nconcur in the Comptroller's 1983 interpretation of the law,\nit is inconsistent with known and accepted past practice and\nCongressional acquiescence in or approval of such practice.\"\nA. What specific disagreements do you have with the\nComptroller's 1983 interpretation of the law?\nA: We do not concur in the Comptroller General's 1983\ninterpretation of the law since it is inconsistent with\nknown and accepted past practice as well as Congressional\nacquiescense in or approval of such practice.\nB. Was that 1983 interpretation the first time OMB was aware\nof a difference of opinion with GAO on this matter?\nA: Yes.\nC. Would you trace for us the history of OMB's difference of\nopinion with GAO on this matter?\nA: The difference first arose when GAO issued its\ngovernment-wide opinion in June 1983. Since that date,\nefforts have been made to resolve the matter\n-34-\nlegislatively. The Comptroller General announced several\nmoratoria on the enforcement of the opinion in order to\npermit Congress an opportunity to consider legislation to\nresolve the uncertainties in this area.\n-35-\n2. What has been GAO's role, if any, in the preparation of this\nproposal?\nA: OMB has had extensive discussions with the Comptroller\nGeneral over the months preceding the hearing on the\nprinciples surrounding when portal-to-portal transportation\nis appropriate. We have achieved substantial agreement on\nthe details of this issue, and we hope that further efforts\nby OMB, GAO, and the Subcommittee will produce a\ncomprehensive resolution on a government-wide basis.\n-36-\n3. Why does the proposal include the Congress, the Comptroller\nGeneral, and the Supreme Court? What reason, if any, is\nthere to consider those separately from Executive branch\nofficials?\nA: The Administration's proposal contained a provision covering\nthe Congress, the Comptroller General, and the Supreme Court\nin an attempt to be comprehensive. However, the\nAdministration defers to the Congress and to the Chief\nJustice of the Supreme Court with regard to their respective\ninterests.\n-37-\n4. Why does your proposal not include specific authority for\nspouses of government officials under certain circumstances,\nas defined in GAO opinions?\nA. Are there any circumstances, in your judgment, which\nwould warrant government transportation for spouses? if\nso, what are those circumstances?\nA: The Comptroller General has already issued reasonable\nguidance with respect to when spouses of government\nofficials may be transported at government expense. We\nbelieve that, for example, when an official is going to\nan official function and the spouse is attending, the\nspouse may be permitted to ride in the government\nvehicle. As to any future attempt to include such a\nspecific provision in the proposal, the Administration\ndefers to the Congress for appropriate language.\nB. What efforts, if any, did GAO make to include language\nfor spouses in this proposal?\nA: The Comptroller General offered such language, but it was\nnot included because it was felt, at the time, that such\na provision would only complicate the proposal and the\nmuch-needed reforms.\n-38-\n5. What is your view of GAO's interpretation of the term \"heads\"\nof Executive departments? Do you consider the term \"heads\"\nto be synonymous with \"principal officers\" of Executive\ndepartments, as maintained by legal advisors at both Defense\nand State?\nA: For purposes of the Administration's proposal, the \"heads\" of\nExecutive departments are the \"principal officers\" of those\ndepartments, i.e., the Cabinet Secretary or agency head,\nwhere appropriate, and the principal deputy.\n-39-\n6. What is your view of GAO's determination that government\ntransportation for security reasons is not authorized without\n\"specific evidence of 'clear and present danger' and a\nshowing that use of a government vehicle would increase\nprotection\" of the government official riding in the vehicle?\nA. Is GAO's formulation of a security justification too\nrestrictive?\nA: The \"clear and present danger\" standard is too\nrestrictive because it implies that there must be\nspecific knowledge of imminent danger. In fact, an\nofficial may be the subject of threats or other danger\nwhich, while not necessarily imminent, nonetheless raise\nsufficient concerns that prudence calls for providing\nsuch transportation as a means of precaution. We would\nfavor a different formulation which would permit a\nnondelegable security determination to be made based on a\nrealistic assessment of whether the official faces a\nserious threat.\nB. Would you favor an amendment to your proposal which would\nrequire a report to Congress when a security\ndetermination is made within an agency?\nA: The Administration would not object to listing the\nofficials receiving transportation for security reasons\n-40-\nand the times at which it was provided. We feel,\nhowever, that the individual bases upon which such\nsecurity determinations are made should remain\nconfidential.\nTHE WHITE HOUSE\nWASHINGTON\nOctober 30, 1985\nMEMORANDUM FOR FRED F. FIELDING\nFROM:\nJOHN G. ROBERTS\nDR\nSUBJECT:\nPortal-to-Portal\nYou have asked for my comments on Chris Hicks's memorandum\nto Mr. Regan, analyzing the portal-to-portal bill that\nChairman Brooks is prepared to introduce. I have no quarrel\nwith Hicks's analysis, nor with the recommendation of Hicks\nand Horowitz that we support the bill. I have attached a\ncopy of the bill itself for your information (the marginalia\nare not mine).\nThe main problem with the Brooks bill from our point of view\nis not the scope of coverage -- which will work out to about\nthe same as our bill -- but the manner in which the service\nis authorized. The Brooks bill has precisely what we tried\nto avoid -- discretion in the President to choose who does\nand does not receive portal-to-portal. The President may\nchoose six officials in the EOP and ten others in executive\nagencies, with no salary level limitation.\nAside from these chosen sixteen, the Brooks bill authorizes\nportal-to-portal for the Cabinet Secretaries and the United\nStates Trade Representative, one principal deputy for each\nof these if authorized by the Secretary, ambassadors abroad\nand the ambassador to the United Nations, the Deputy Secre-\ntary of Defense and Under Secretaries of Defense, as well as\nthe Secretaries of the Air Force, Army, and Navy, and the\nJoint Chiefs and the Commandant of the Coast Guard. The\nDirector of the CIA and FBI, and the Chairman of the Fed,\nare also covered. There is also authority for temporary\nemergency portal-to-portal, and for those receiving Secret\nService protection.\nI think we should support the bill, faute de mieux. If we\ndo not support this bill we will end up with no bill, and I\nthink the current confusion is intolerable. The exercise of\nthe President's discretion will doubtless become a major\ncontroversy, but at this point I think that is unavoidable.\nLatest development: Congressman Bob Walker (R-PA) has told\nBrooks he will offer amendments to the bill restricting\nCongressional portal-to-portal. Walker apparently views\nthis as an opportunity to embarrass the Democratic leader-\nship on the Hill. Unless we get Walker to back off, Brooks\nwill not proceed with the bill.\nTHE WHITE HOUSE\nWASHINGTON\nJolen- comments ASAD, to pls\nOctober 28, 1985\nyour so con respond This\nMEMORANDUM FOR DONALD T. REGAN\nFROM:\nChristopher Hicks\non\nDTRapm.\nSUBJECT:\nPortal-to-Portal Revisited\nChairman Brooks is prepared to introduce a Portal-to-Portal Bill\nthat is little changed from the Administration's August submis-\nsion. I concur in Mike Horowitz's recommendation (attached at\nTab A) that we support the bill.\nThe Administration's proposal would have resulted in 58 officials\nbeing specifically eligible for portal-to-portal transportation\n(exclusive of general categories such as Ambassadors and some\nseparate existing statutory provisions that various agencies have\nused in the past).\nThe Brooks proposal identifies 61 positions, but eliminates some\nof the separate existing authorities (e.g., the Deputy Director\nof the CIA is currently authorized an automobile -- he will lose\nthat authority). A short list of positions that we could identify\nas losing portal-to-portal transportation is attached (Tab B).\nThe Administration proposal tried to establish a \"neutral\" test\nfor portal-to-portal transportation -- one in which the President\nwould not have to exercise discretion -- by authorizing transpor-\ntation for the specific, identified positions listed at Level II\nof the Executive Schedule. The Brooks Bill adopts most of the\nspecifically identified positions (adding some -- Undersecretaries\nof DOD, e.g.), but rejects the Executive Level II approach.\nInstead, the President is authorized to choose up to six officials\nin the EOP and 10 others in the government to receive portal-to-\nportal transportation. The 16 positions are not identified by\ntitle or salary levels. Accordingly, the President has added\nflexibility, but the choices have to be made on a case by case\nbasis by the President.\nSpousal travel, as Mike Horowitz indicates, is not addressed in\nthe bill. Some language is to be inserted in the Committee\nreport to establish that some spousal use of a car is authorized,\nbut there is a risk that such travel will be more difficult to\nsupport in the future.\nCC: Fred Fielding\nEXECUTIVE OFFICE OF THE PRESIDENT\nliste\nUNITED\nOFFICE OF MANAGEMENT AND BUDGET\nSTENDING\nWASHINGTON, D.C. 20503\nSTATE\n1985 OCT 25 Pil 12: 26\nOctober 24, 1985\nMEMORANDUM\nTO:\nJoe Wright\nFred Fielding\nChris Hicks\nFROM:\nMike Horowitz\nMU\nSUBJECT: Portal-to-Portal Update\n1. The subcommittee staff has completed a mark-up of its latest\ndraft which includes authorization for most of the positions\ncovered in our original proposal. The draft now contains the\nfollowing significant revisions:\nPortal-to-portal is authorized for the President; Vice\nPresident; 6 EXOP officers or employees, as designated by\nthe President; and no more than 10 officers or employees\nof Executive agencies, as designated by the President.\nLevel I officials and their principal deputies are\nauthorized to receive such transportation, but in the\nlatter group only upon the non-delegable determination by\nthe Department head that such transportation is\nappropriate.\nThe Directors of Central Intelligence and the FBI are\nspecifically covered, as are the Chairman of the Board of\nGovernors of the Federal Reserve System, the U.S.\nAmbassador to the United Nations, the Secretaries of the\nAir Force, Army, and Navy, the five members of the Joint\nChiefs of Staff, and the Commandant of the Coast Guard.\nThe legislation is exclusive: portal-to-portal\ntransportation may only be provided for those officials\nspecified in this bill. Use of non-appropriated funds\nwill not -- as in the past -- be a basis for anyone\nreceiving such transportation.\nOverseas use under the Foreign Service Act of 1980 and use\nby the two Under Secretaries of Defense who were covered\nby the 1984 Defense Authorization Act will be continued.\nSpousal coverage will be addressed in the accompanying\nCommittee Report rather than in the bill itself; the\nresult is expected to conform to the Comptroller General's\n-2-\ncurrent interpretation which allows transportation when\nspouses are included in official duties.\nIn short, of the approximately 61 positions in the\nAdministration's proposal, we have managed to retain almost every\nposition, the omissions being the Deputy Secretaries of the Air\nForce, Army, and Navy.\n2. A shortcoming in the Committee's draft was deletion of the\nfieldwork provision -- a fact which could have had a major impact\non the Secret Service and other law-enforcement agencies. At\nTreasury alone approximately 6100 field law-enforcement agents\ncurrently have official cars (which they drive directly from home\nto their daily assignments), and their functions could be\nseriously disrupted were the fieldwork provision deleted.\nHowever, Charles Kolb on my staff has reached an agreement with\nthe Subcommittee staff to restore the fieldwork provision in\norder to avoid potential disruptions. (The staff have also\ndeleted existing provisions concerning medical officers --\napparently a noncontroversial change.)\n3. Finally, the Subcommittee's draft permits agency heads on a\nnondelegable basis (and the President, on a delegable basis in\nthe case of the EXOP) to authorize portal-to-portal for up to 15\ncalendar days based on highly unusual circumstances presenting a\nclear and present danger, an emergency, or other similarly\ncompelling operational considerations which make such\ntransportation essential to the conduct of official business.\nAgency heads, on a nondelegable basis, may also determine whether\nthe authorization shall be continued for 90 additional calendar\ndays. Notification must be provided promptly to the House\nCommittee on Government Operations and the Senate Committee on\nGovernmental Affairs. I strongly opposed inclusion of the \"clear\nand present danger\" language but believe that we can live with it\nif \"similarly\" were dropped as a restraint on \"compelling\noperational considerations.\" On balance, under the draft\nlanguage, I think we have a good argument that flexibility exists\nwhere it's needed, but I am concerned, as indicated, that\n\"similarly\" might be read to constrain the flexibility intended\nby the third criterion.\n4. Chairman Brooks has accommodated our concerns in a fashion\npermitting coverage of virtually everyone that we initially\nwanted in our proposal. I strongly recommend that we signal our\nsupport of the Subcommittee's latest draft, assuming that we are\nsatisfied with the report language when we receive it.\nCC: Gordon Wheeler\nArnold Intrater\nOfficials Who Currently Have\nPortal-to Portal Transportation Under\nAuthorities Eliminated by the Brooks Proposal\n1. Administrator -- Agency for International Development\n2. Director -- Arms Control and Disarmament Agency\n3. Deputy Director of the CIA\n4. Secretary, Smithsonian Institute\nThe first two positions listed are at Executive Level II and\nwould have been eligible again under the Administration's pro-\nposal.\nThere may be others in the Administration who are affected, but\nwe do not have access to complete lists of portal-to-portal users\n-- for example, any agency that has non-appropriated funds\navailable could have been making portal-to-portal available since\nthe current statute does not apply to non-appropriated fund\nexpenditures. The Brooks proposal closes off that option.\nWe did not list officials who lose their current authority to use\nautomobiles, but whose authority is reinstated elsewhere in the\nproposal (e.g., the Director of the CIA).\nBROOKS282\nHLC\n99TH CONGRESS\n1ST SESSION\nH. R.\nIN THE HOUSE OF REPRESENTATIVES\nMr. BROOKS (for himself, Mr. HORTON, [see attached list of\nadditional cosponsors]) introduced the following bill; which\nwas referred to the Committee on\nA BILL\nTo restrict the use of government vehicles for transportation of\nofficers and employees of the Federal Government between\ntheir residences and places of employment, and for other\npurposes.\n1\nBe it enacted by the Senate and House of Representatives\n2 of the United States of America in Congress assembled,\nBROOKS282\n2\n1 That section 1344 of title 31, United States Code, is amended\n2 to read as follows:\n3\n$1344. Passenger carrier use\nA),\nit\n4\n(a) (1) Funds available to an executive agency by\nJards. plus\n5\nappropriation or otherwise, may be expended by the executive\n6 agency for the maintenance, operation, or repair of any\n7 passenger carrier only to the extent that such carrier is\n8 used to provide transportation for official purposes.\n9 Notwithstanding any other provision of law, transporting any\n10 individual other than those listed in subsections (b) and (c)\n11 between such individual's residence and such individual s\n12 place of employment is not transportation for an official\n13 purpose.\n14\n(2) For purposes of paragraph (1), transportation\n15 between the residence of an officer or employee and various'\ncleank\n16 locations that is required for the performance of field work\nwome\n17\nis transportation for an official purpose, when approved in\nrequestion\nour\n18 writing by the head of the agency\n19\n(b) A passenger carrier may be used to transport\n20 between residence and place of employment the following\n21 officers and employees of executive agencies:\n22\n(1) (A) the President and the Vice President;\n23\n(B) no more than 6 officers or employees in the\n24\nExecutive Office of the President, as designated by the\n25\nPresident;\n(c)\nwas delegable under previous digt\nS now mon-delezable see page5 5\nThis\nBROOKS282\nNersion which oubtity\n3\nthe recentine tem\n1\n(C) no more than 10 additional officers or\nagrees for\nexecutive\n2\nemployees of executive agencies, as designated by the\nbrand me\n3\nPresident; (D) also non -delegable now (ou note pug2) and\nit holder #\nadd to the\n4\n(2) (A) officers compensated at Level I of the\n6 EOP\n5\nExecutive Schedule pursuant to section 5312 of title 5, Position\n6\nUnited States Code; and\n7\n(B) a single principal deputy to an officer\n8\ndescribed in subparagraph (A) of this paragraph, when a\n9\ndetermination is made by such officer that such\n10\ntransportation is appropriate;\n11\n(3) principal diplomatic and consular officials\n12\nabroad, and the United States Ambassador to the United\n13\nNations;\n14\n(4) the Deputy Secretary of Defense and Under\n15\nSecretaries of Defense, the Secretary of the Air Force,\n16\nthe Secretary of the Army, the Secretary of the Navy, the\n17\nJoint Chiefs of Staff, and the Commandant of the Coast\n18\nGuard;\n19\n(5) the Director of the Central Intelligence Agency\n20\nand the Director of the Federal Bureau of Investigation;\n21\n(6) the Chairman of the Board of Governors of the\n22\nFederal Reserve System;\n23\n(7) an officer or employee with regard to whom the\n24\nhead of an executive agency makes a determination, which\n25\nshall be effective for no longer than 15 calendar days,\nHonowitz 5 move of given to take this\nBROOKS282\nso being too street a measure. In my opines\nthe whole descussion of tempirary 15 to\n4\n160 day\n1\nthat highly unusual circumstances present a clear and\nusage\nis mor\n2\npresent danger, that an emergency exists, or that other\nFor\nwe\n3\nsimilarly compelling operational considerations make such\ncould\n4\ntransportation essential to the conduct of official\nashould\nhave\n5\nbusiness.\nexpected\n6\n(c) A passenger carrier may be used to transport\n7 between residence and place of employment any person for whom\n8 protection is specifically authorized pursuant to section\n9 3056 (a) of title 18, United States Code or for whom\n10 transportation is authorized pursuant to section 28 of the\n11 Foreign Service Act (22 U.S.C. 2700).\n12\n(d) (1) Any determination made under paragraph (7) of\n13 subsection (b) shall be in writing and shall include the name\n14 and title of the officer or employee affected, the reason for\n15 such determination, and the duration of the authorization for\n16 such officer or employee to use a passenger carrier for\n17 transportation between residence and place of employment.\n18\n(2) If a clear and present danger, an emergency, or a\n19 similarly compelling consideration described in subsection\n20 (b) (7) extends or may extend for a period in excess of 15\n21 calendar days, the head of the executive agency shall\n22 determine whether authorization under subsection (b) (7) shall\n23 be extended beyond 15 calendar days up to a period of 90\n24 additional calendar days. Determinations made under this\n25 paragraph may be reviewed by the head of such agency, and,\nBROOKS282\n5\n1 where appropriate, subsequent determinations may be made\n2 whether such danger, emergency, or consideration continues to\n3 exist and whether an additional extension, not to exceed 90\n4 calendar days, may be authorized.\n5\n``(3) The authority to make designations under paragraphs\n6 (1) (B) and (1) (C) and to make determinations pursuant to\n7\nparagraphs (2) (B) and (7) of subsection (b) and paragraph (2)\n8 of this subsection may not be delegated, except that, with\n9 respect to the Executive Office of the President, the\n10 President may delegate his authority under such paragraph (7)\nHich\n11 to an officer in such Executive Office. No determination\n12 under this section may be made solely or principally for the\n13 comfort or convenience of the officer or employee.\n14\n(4) Notification of each designation or determination\n15 made under paragraphs (1) (B), (1) (C), (2) (B), and (7) of\n16 subsection (b) and paragraph (2) of this subsection,\n17 including the name and title of the officer or employee\n18 affected, the reason for any such determination under such\n19 paragraph (7), and the expected duration of the\n20 authorization, shall be transmitted promptly to the Committee\n21 on Government Operations of the House of Representatives and\n22 the Committee on Governmental Affairs of the Senate.\n23\n(e) As used in this section--\n24\n(1) the term passenger carrier means a passenger\n25\notor vehicle, aircraft, boat, ship, or other similar\nBROOKS282\n6\n1\nmeans of transportation that is owned or leased by the\n2\nUnited States Government; and\n3\n(2) the term executive agency has the meaning\n4\ngiven by section 103 of this title and includes any\n5\nexecutive department, military department, Government\n6\ncorporation, Government-controlled corporation, or other\n7\nestablishment in the executive branch of the Government\n8\n(including the Executive Office of the President and the\n9\nSmithsonian Institution), any independent regulatory\n10\nagency, or any nonappropriated fund instrumentality\n11\nSEC. 2. (a) Title 10, United States Code, is amended--\n12\n(1) by striking out section 2637 thereof; and\n13\n(2) in the table of contents of chapter 157 thereof,\n14\nby striking out the item pertaining to section 2637.\n15\n(b) Section 636 (a) (5) of the Foreign Assistance Act of\n16 1961 (22 U.S.C. 2396 (a) (5) ) is amended by striking out\n17\n(without regard to the limitations contained in section 5\n18 of Public Law 63-127, as amended (31 U.S.C. 638a(c) (2)) and\n19 section 201 of Public Law 85-468 (31 U.S.C. 638c) )\n20\n(c) Section 48 of the Arms Control and Disarmament Act\n21 (22 U.S.C. 2588) is amended by striking out without regard\n22 to the limitations contained in section 78 (c) of title 5 of\n23 the United States Code\n24\n(d) Section 303 of the State Department Basic Authorities\n25 Act of 1956 (22 U.S.C. 2678) is amended by striking out\nBROOKS282\n7\n1 subsection (b).\n2\n(e) Section 8(a)(1) of the Central Intelligence Agency\n3 Act of 1949 (50 U.S.C. 403j(a)(1)) is amended by striking out\n4\ntransportation of officers and employees of the Agency in\n5 Government-owned automotive equipment between their domiciles\n6 and places of employment, where such personnel are engaged in\n7 work which makes such transportation necessary, and\n8 transportation in such equipment and inserting in lieu\n9 thereof transportation in Government automotive\n10 equipment"
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