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John Roberts' Subject Files
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Portal-to-Portal
(11 of 14)
Box: 37
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
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Date
ROUTING AND TRANSMITTAL SLIP
10/9/85
TO: (Name, office symbol, room number,
Initials
Date
building, Agency/Post)
Mike Horowitz
1.
2. John Cooney
3. Gordon Wheeler
4.
Arnold Intrater
5.
John Roberts
Action
File
Note and Return
Approval
For Clearance
Per Conversation
As Requested
For Correction
Prepare Reply
Circulate
For Your Information
See Me
X
Comment
Investigate
Signature
Coordination
Justify
REMARKS
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions
FROM: (Name, org. symbol, Agency/Post)
Room No.-Bidg.
471 OEOB
Charles Kolb
Phone No.
5600
5041-102
OPTIONAL FORM 41 (Rev. 7-76)
Prescribed by GSA
FPMR (41 CFR) 101-11.206
U. S:GPO:1978-0-261-647 3354
October 9, 1985
Honorable Jack Brooks
Chairman
Committee on Government Operations
Legislation and National Security Subcommittee
U. S. House of Representatives
Rayburn House Office Building, Room B-373
Washington, D. C. 20515
Dear Mr. Chairman:
Enclosed are responses to the questions which you and
Representative Horton submitted for official response in
connection with the Subcommittee's September 19, 1985, hearing on
the Administration's proposal regarding government vehicles for
home-to-work transportation.
I hope that you find these responses helpful and will feel free
to contact me or my staff should you need further information.
We welcome the opportunity to continue working with the
Subcommittee and with GAO to achieve a meaningful and permanent
legislative resolution of this longstanding issue.
Again, let me express my appreciation at being invited to testify
before the Subcommitee last month.
Sincerely,
-2-
Michael J. Horowitz
General Counsel
-1-
1. Why do you think the number of officials legally receiving
home-to-work transportation should be increased?
A: It would not be accurate to say that the number of persons
who actually receive such transportation would be increased
by the Administration's proposal. As the Committee knows,
many senior government officials -- for example, the Vice
President -- have received such transportation over the past
20 years. We believe the proposal would actually reduce the
number of persons who receive such transportation. The
Administration's goal in its proposal is to constrain this
and future administrations from actually increasing the
number of officials receiving portal-to-portal
transportation. In the past, the issue has been subject to
considerable uncertainty, with the Comptroller General's June
1983 opinion reversing some 40 years of practice under the
existing statute. During this period, the Comptroller
General has issued numerous opinions which, along with
inconsistent agency practice, have muddied the waters. The
Administration's proposal reflects an effort to clarify the
issue once and for all in a restrictive, government-wide
fashion.
In the Executive Branch, under the strictest reading of the
GAO opinion, only the President and the heads of the thirteen
cabinet agencies are entitled to such transportation. Under
the Defense authorization bill passed last year, an
-2-
additional ten persons received such transportation.
The Administration's proposal would add the following
individuals on a permanent basis:
-- the Vice President;
-- 11 deputy heads of Cabinet agencies (the Deputies at
Defense and State already receive transportation);
-- 14 people whose positions are classified at Executive
Level II and who are not covered by one of the preceding
categories or existing legislation;
-- Also, the proposal specifically names the following
senior officials:
The White House Chief of Staff;
The Assistant to the President for National Security
Affairs; and
The Commandant of the Coast Guard
-- any other persons the President may determine are of
Cabinet rank.
In addition, certain other persons would sometimes qualify
because they are under Secret Service protection. This makes
- -3-
a total of 30 positions we can identify in advance.
-4-
2. Why did you include level 2 employees in your proposed
legislation?
A: There were several options considered, but we finally chose
Executive Level II because, primarily, it followed Congress's own
judgment that these positions, as set forth in 5 U.S.C. 5313,
reflected the upper levels of government officials. We felt it
more appropriate to follow this Congressional determination than
to substitute a case-by-case determination.
-5- -
3. What criteria did the O.M.B. use to determine which
government employees should be included in this proposal?
A: In determining which government employees should receive
portal-to-portal transportation, OMB employed criteria which
would be both restrictive and comprehensive. Thus, the decision
to rely principally on Executive Level II was made because:
- It limits transportation to a small number of persons who
are designated by the Congress as being at very senior
levels of government.
-- We wanted a uniform, government-wide criterion. If we
began selecting agencies for inclusion on a case-by-case
basis, the pressure from those not selected would
continue, and Congress and the Executive branch will be
compelled to address this issue again. Finally,
case-by-case resolution would not produce uniform results.
-6-
4. For which government officials do you consider nome-to-work
transportation absolutely essential?
A: We believe that authorization for home-to-work transportation
for those individuals covered by the Administration's
proposal is important. Our goal has been to limit the
overall number of people for whom this transportation would
be available, while at the same time providing it to those
individuals whose level of government service is such that
this transportation would be in the government's interest,
not their personal convenience. This feature, in our
judgment, would go far in restricting the overall number of
officials receiving such transportation.
-7-
5. Why is such broad language as "other operational
considerations" in subsection (a) (3) used to permit the
President or an agency head to authorize temporary use of
government vehicles for home-to-work transportation?
A: "Other operational considerations" is used because it
includes various medical, safety, and family circumstances
which are difficult to predict in advance. It is simply
impossible to imagine all the situations which could arise
requiring flexibility in the use of government
transportation. For example, the Comptroller General has
already authorized the use of government transportation where
an individual has certain medical conditions which would
preclude driving.
Furthermore, as is explained below in our answer to
Question 9, additional reporting requirements will protect
against possible abuses. The phrase "other operational
considerations" must be viewed in the context of section
(a) (3) of the proposal and the very substantial limitations
on the authority which it contains.
-8-
6. Would this authority be used only in situations similar to
those for which the GAO has previously approved temporary
home-to-work transportation?
A: The exceptions authority contemplated by "other operational
considerations" is intended to be limited while, at the same
time, providing flexibility for situations and circumstances
which may be difficult to anticipate. As noted already, GAO
has, in the past, authorized instances of temporary portal-
to-portal transportation. While these cases would probably
be included under the proposal, we cannot say that, in the
future, there might not be new, unforeseen cases for which
such transportation would be necessary.
Again, some degree of flexibility is necessary given the fact
that unforeseen circumstances will undoubtedly arise. This
question is a proper one and reflects legitimate concern that
the car and driver be properly used. We believe, however,
that abuses are less likely to occur under the OMB proposal
because:
O only a relatively limited number of persons will receive
such transportation,
O others receiving it by designation will receive it for a
limited period of time,
-9-
O decisions to provide such transportation are nondelegable,
and
O
adequate notice of the decisions would serve to further
limit any potential for abuse.
-10-
7. Would you be opposed to a requirement for either an annual
report or a report as exceptions are authorized?
A: We would not oppose a requirement that there be annual
reporting or a report submitted to GAO within a reasonable
period of time after an exception has been authorized. In
our judgment, this requirement could go far in relieving any
fears that there may be excessive use of home-to-work
transportation and in protecting against any such abuse. It
could, in short, be the means of providing additional
protection against abuse, while at the same time permitting
the necessary flexibility for non-designated senior
officials.
-11-
8. If this proposal were enacted without change, how much will
this proposal cost the government annually?
Follow-up Question:
For the record, please provide a breakdown of these costs.
A: We do not know precisely how much the proposal would cost
the government annually if enacted without change, but we are
willing to accept the Comptroller General's determination in
this regard.
The incremental costs of the proposal should not be high,
however, since we anticipate that existing automobiles and
staff will be used to provide the portal-to-portal
transportation. We do not anticipate that this proposal will
require the purchase of additional automobiles or the hiring
of additional staff.
-12-
9. Under this proposal, how many officials authorized to use a
government vehicle for home-to-work transportation would also
be provided a chauffeur?
A: We do not anticipate there being any changes in the use of
drivers under the Administration's proposal. Thus, the
existing number of drivers should be sufficient to provide
the necessary transportation.
-13-
10. Would the provision of home-to-work transportation for these
employees be considered income for taxation purposes?
A: We understand that this question is currently being
considered by the Internal Revenue Service and believe it
appropriate to wait until the Internal Revenue Service offers
its guidance on the subject before commenting further.
-14-
11. GAO found in its survey that from January to June of this
year 79 officials and 7 relatives, who were not authorized,
received home-to-work transportation. Do you believe
government officials should be required to adhere to the
current law until such time as it is changed?
A: As virtually everyone who has looked at this matter has
concluded, the current law is subject to varying
interpretations. For example, even GAO --- just three months
after its June 1983 opinion -- concluded that the State
Department's Chief of Protocol was entitled to portal-to-
portal transportation on the very grounds rejected in June
1983.
Until the current law is changed, government officials
are required to follow it The considerable uncertainty
which the current law has created, however, points to the
serious need for legislation to clarify the matter on a
government-wide basis.
-15-
12. What guidance has OMB provided agencies concerning the
implementation of the current law prohibiting the use of
government vehicles for home-to-work transportation?
A: The Comptroller General's June 1983 opinion received wide-
spread attention throughout the government. Additionally,
given the delay in enforcement, no specific advice was given
by the Administration concerning the use of government
vehicles. Agencies have been relying on advice provided by
their General Counsels concerning questions about the use of
government vehicles.
OMB would only have provided government-wide advice
ministerially, based on an opinion from the Department of
Justice. Pending resolution of this matter through
legislation, OMB saw no reason to seek such opinion.
-16-
13. Does the Secret Service have separate legal authority to
provide home-to-work transportation to any individual whom it
considers should be provided protection? If so, please
provide the cite to the law.
A: The Secret Service has authority to take the steps necessary
to provide such protection. Under 18 U.S.C. 3050, the Secret
Service has the authority and the responsibility to take
whatever steps are necessary to provide protection services.
Home-to-work transportation is an element of that protection.
-17-
14. What are the justifications for providing home-to-work
transportation for the deputy heads of executive departments?
A: Under this proposal, the deputy heads of Executive
departments would be covered because they are functioning at
a level of government service sufficiently high such that the
relatively minor additional expense in providing this service
is far offset by the additional benefit which the government
receives from these individuals being able to devote more
time to their official responsibilities. In the major
Cabinet agencies, the potential to receive an additional one
to two hours of work per day from such officials has obvious
significant benefits to the government.
Also, due to the demands on the Cabinet heads, the deputies
frequently serve as acting heads of their respective
departments. The Comptroller General made this point in his
transmittal letter to Chairman Brooks on June 3, 1983,
indicating that the individual who occupies the number two
position in an agency shares most of the same
responsibilities as the agency head and is a reasonable
candidate for home-to-work transportation.
-18-
15. What is the significance in listing some employees in section
(a) and other employees in section (b)?
A: There is no intended significance in listing some employees
in section (a) and others in section (b) of the proposal.
The employees referenced in section (b) are listed only with
reference to portal-to-portal transportation and no other
activity.
-19-
16. Under what authority is William McFarlane now receiving
home-to-work transportation?
A: Mr. McFarlane, the President's National Security Adviser,
receives such services pursuant to a 1978 opinion from the
Department of Justice.
-20-
17. For the record, which employees of the government currently
are deemed to have cabinet-level status? What restrictions
govern the authority to make such designations?
A: The following individuals are currently deemed to have
cabinet-level status: Donald Regan, Chief of Staff; William
Casey, Director of Central Intelligence; the Director of the
Office of Management and Budget; Clayton Yeutter, the Special
Trade Representative; and Vernon Walters, U.S. Ambassador to
the United Nations. These designations are made by the
President.
-21-
18. Why have you determined that 90 days is the minimum time for
which the President or an agency head can authorize
home-to-work transportation (Subsection (a) (3))?
A: Ninety days or less was selected as a reasonable time for
which the President or an agency head could authorize
government transportation to an employee who needed it.
While the various factors set forth in Subsection (a) (3) are,
for the most part, difficult to ascertain in advance, this
figure, rather than an open-ended period, was chosen as a
reasonable limitation on the authorization to receive such
transportation. Moreover, the requirement for quarterly
renewal guarantees periodic review of the need for the
transportation. If the need for this transportation
terminates prior to the end of the 90-day period, then the
portal-to-portal transportation should terminate immediately.
-22-
19. For the record, please provide more succinct language for
subsections (a) (3) and (b) (2) (A) and (B) so as to deter
discretionary interpretation.
A: As currently proposed, subsection (a) (3) contains three
limitations intended to prevent discretionary interpretation.
First, the determination is for 90 days, renewable on a
quarterly basis. Second, the determination may be made only
under "highly unusual circumstances" or "other operational
considerations" making such transportation essential to the
conduct of official business. Third, the authority to make
such determinations rests with the agency head and is
nondelegable.
As for subsections (b) (2) (A) and (B), use of the term
"appropriate" is intended to provide the type of flexibility
which is necessary for the efficient implementation of the
proposal. Moreover in each instance, the provision of such
portal-to-portal transportation is only made when its serves
the government's interests, not those of the individual.
-23-
20. What definition of agency applies in this proposal?
A: The applicable definition of "agency" is the same one which
the Congress intended when it originally passed 31 U.S.C.
1344 (a) (2). . Thus, use of the term "agency" in subsection
(a) (3) in the draft legislation is intended to cover the same
context in which "agency" was used in the original
legislation in subsection 1344 (a) (2).
-24-
21. What are examples of situations that would be covered by
"other operational considerations" in subsection (a) (3) of
your proposal?
A: As noted above in our answer to Question 5, examples of
"other operational considerations" could include various
medical, safety, family circumstances, or duty which are hard
to determine in advance. It is important to stress that the
Administration's proposal is intended to accomplish two
goals: First, it attempts to restrict as much as possible
the overall number of government officials receiving such
transportation; and second, it seeks to do so in a fashion
which preserves flexibility for unanticipated circumstances
given the fact that one cannot anticipate all of the
circumstances -- such as the unusual job function which
formed the basis of the Comptroller General's ruling which
permitted such transportation for the State Department's
Chief of Protocol -- in advance. Taken together, these
features will ensure that the proposed legislation is both
limited in scope and yet responsive to genuine needs as they
arise.
-25-
22. What benefits does the government derive from providing
home-to-work transportation to officers and employees of the
government?
A: The principal benefit that the government derives by
providing portal-to-portal transportation is additional work
from those people being driven. The officials receiving this
transportation are generally at a level of government service
where the demands are, in many instances, quite
extraordinary. Providing such transportation actually
enables the government to receive additional efforts from
these officials and, at the same time, may mean that they can
spend more time with their families.
Additionally, this
service may be particularly important for those officials
living in areas not readily serviced by taxis or other means
of public transportation. Furthermore, for those government
officials having sensitive national security
responsibilities, providing transportation also carries with
it increased, secure accessibility to the White House, the
Situation Room, and the nation's defense installations
primarily through sophisticated communications systems
including, where necessary, scrambler phones. This crucial
benefit would be unavailable were these individuals required
to spend substantial time each day commuting in their own
vehicles or in public transportation.
The responsibilities imposed on the officials covered by this
-26-
legislation require their being available by phone even while
commuting between office and home. The demands of their jobs
continue beyond the physical confines of their offices,
making their home-to-work transportation an extension of
their offices. The increasing complexity of the issues dealt
with by Cabinet heads, their principal deputies, and the
principal assistants to the President and the increasing need
for an immediate reaction makes their availability while
commuting a work-related necessity.
-27-
23. How will this proposal alter the current motor pool
operations in the agencies?
A: I do not believe this proposal will alter substantially the
current motor pool operations in various agencies. There may
be instances in which there is more overtime called for, but
this cannot be estimated at this time.
-28-
24. How many government employees located outside the continental
United States currently receive government-furnished home-to-
work transportation? For the record, please provide a
listing of the categories of employees provided such service,
together with the number of employees in each category.
A: We do not yet know how many government employees located
outside the continental United States currently receive
government-furnished portal-to-portal transportation. We are
seeking to obtain this information from the Department of
State.
-29-
25. In what instances is the exception provided in current law
for "medical officers on out-patient medical service" used so
as to justify retaining it in this proposal?
A: We do not know the basis for this exception or why it is
needed.
-30-
26. What criteria should be used to determine if an official's
activities may be properly considered field work?
A: We do not have any opinion as to the criteria for determining
what is or is not "field work". In essence, the
Administration's proposal simply adopted the existing
statutory language, added certain clarifying provisions, and
left untouched the existing provisions governing field work.
-31-
27. How will an official's safety and security be ensured by the
use of a government car?
A: In some instances, government vehicles have additional safety
and security enhancements. Furthermore, it follows that
having a professionally trained driver will, in and of
itself, enhance the official's safety and security. In
instances where there are motor pools, a government vehicle
--- which may be a different car from day to day -- may be
harder to identify and associate with a particular official.
This would not be the case were the official using a private
car or public transportation.
Finally, drivers who are trained in special security tactics
will obviously be able to provide additional safety and
security. In recent years, terrorist incidents have been
escalating in frequency around the world. While to date
there have been very few such instances of this nature
domestically, we should nonetheless consider -- ànd prepare
for -- the possibility that one day our highest officials
could face such threats. Prudence dictates that we undertake
such measures now and that doing so is not only
cost-effective but a means of protecting this country's vital
security interests.
-32-
28. How could the temporary authorizations for 90 days, renewable
on a quarterly basis, be checked?
A: Temporary authorizations could be reported to GAO either
annually or within a reasonable period of time after their
authorization.
-33-
Mr. Horton's Questions
1. When former Director Stockman transmitted this proposal to
Chairman Brooks, he wrote that the Administration "does not
concur in the Comptroller's 1983 interpretation of the law,
it is inconsistent with known and accepted past practice and
Congressional acquiescence in or approval of such practice."
A. What specific disagreements do you have with the
Comptroller's 1983 interpretation of the law?
A: We do not concur in the Comptroller General's 1983
interpretation of the law since it is inconsistent with
known and accepted past practice as well as Congressional
acquiescense in or approval of such practice.
B. Was that 1983 interpretation the first time OMB was aware
of a difference of opinion with GAO on this matter?
A: Yes.
C. Would you trace for us the history of OMB's difference of
opinion with GAO on this matter?
A: The difference first arose when GAO issued its
government-wide opinion in June 1983. Since that date,
efforts have been made to resolve the matter
-34-
legislatively. The Comptroller General announced several
moratoria on the enforcement of the opinion in order to
permit Congress an opportunity to consider legislation to
resolve the uncertainties in this area.
-35-
2. What has been GAO's role, if any, in the preparation of this
proposal?
A: OMB has had extensive discussions with the Comptroller
General over the months preceding the hearing on the
principles surrounding when portal-to-portal transportation
is appropriate. We have achieved substantial agreement on
the details of this issue, and we hope that further efforts
by OMB, GAO, and the Subcommittee will produce a
comprehensive resolution on a government-wide basis.
-36-
3. Why does the proposal include the Congress, the Comptroller
General, and the Supreme Court? What reason, if any, is
there to consider those separately from Executive branch
officials?
A: The Administration's proposal contained a provision covering
the Congress, the Comptroller General, and the Supreme Court
in an attempt to be comprehensive. However, the
Administration defers to the Congress and to the Chief
Justice of the Supreme Court with regard to their respective
interests.
-37-
4. Why does your proposal not include specific authority for
spouses of government officials under certain circumstances,
as defined in GAO opinions?
A. Are there any circumstances, in your judgment, which
would warrant government transportation for spouses? if
so, what are those circumstances?
A: The Comptroller General has already issued reasonable
guidance with respect to when spouses of government
officials may be transported at government expense. We
believe that, for example, when an official is going to
an official function and the spouse is attending, the
spouse may be permitted to ride in the government
vehicle. As to any future attempt to include such a
specific provision in the proposal, the Administration
defers to the Congress for appropriate language.
B. What efforts, if any, did GAO make to include language
for spouses in this proposal?
A: The Comptroller General offered such language, but it was
not included because it was felt, at the time, that such
a provision would only complicate the proposal and the
much-needed reforms.
-38-
5. What is your view of GAO's interpretation of the term "heads"
of Executive departments? Do you consider the term "heads"
to be synonymous with "principal officers" of Executive
departments, as maintained by legal advisors at both Defense
and State?
A: For purposes of the Administration's proposal, the "heads" of
Executive departments are the "principal officers" of those
departments, i.e., the Cabinet Secretary or agency head,
where appropriate, and the principal deputy.
-39-
6. What is your view of GAO's determination that government
transportation for security reasons is not authorized without
"specific evidence of 'clear and present danger' and a
showing that use of a government vehicle would increase
protection" of the government official riding in the vehicle?
A. Is GAO's formulation of a security justification too
restrictive?
A: The "clear and present danger" standard is too
restrictive because it implies that there must be
specific knowledge of imminent danger. In fact, an
official may be the subject of threats or other danger
which, while not necessarily imminent, nonetheless raise
sufficient concerns that prudence calls for providing
such transportation as a means of precaution. We would
favor a different formulation which would permit a
nondelegable security determination to be made based on a
realistic assessment of whether the official faces a
serious threat.
B. Would you favor an amendment to your proposal which would
require a report to Congress when a security
determination is made within an agency?
A: The Administration would not object to listing the
officials receiving transportation for security reasons
-40-
and the times at which it was provided. We feel,
however, that the individual bases upon which such
security determinations are made should remain
confidential.
THE WHITE HOUSE
WASHINGTON
October 30, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
DR
SUBJECT:
Portal-to-Portal
You have asked for my comments on Chris Hicks's memorandum
to Mr. Regan, analyzing the portal-to-portal bill that
Chairman Brooks is prepared to introduce. I have no quarrel
with Hicks's analysis, nor with the recommendation of Hicks
and Horowitz that we support the bill. I have attached a
copy of the bill itself for your information (the marginalia
are not mine).
The main problem with the Brooks bill from our point of view
is not the scope of coverage -- which will work out to about
the same as our bill -- but the manner in which the service
is authorized. The Brooks bill has precisely what we tried
to avoid -- discretion in the President to choose who does
and does not receive portal-to-portal. The President may
choose six officials in the EOP and ten others in executive
agencies, with no salary level limitation.
Aside from these chosen sixteen, the Brooks bill authorizes
portal-to-portal for the Cabinet Secretaries and the United
States Trade Representative, one principal deputy for each
of these if authorized by the Secretary, ambassadors abroad
and the ambassador to the United Nations, the Deputy Secre-
tary of Defense and Under Secretaries of Defense, as well as
the Secretaries of the Air Force, Army, and Navy, and the
Joint Chiefs and the Commandant of the Coast Guard. The
Director of the CIA and FBI, and the Chairman of the Fed,
are also covered. There is also authority for temporary
emergency portal-to-portal, and for those receiving Secret
Service protection.
I think we should support the bill, faute de mieux. If we
do not support this bill we will end up with no bill, and I
think the current confusion is intolerable. The exercise of
the President's discretion will doubtless become a major
controversy, but at this point I think that is unavoidable.
Latest development: Congressman Bob Walker (R-PA) has told
Brooks he will offer amendments to the bill restricting
Congressional portal-to-portal. Walker apparently views
this as an opportunity to embarrass the Democratic leader-
ship on the Hill. Unless we get Walker to back off, Brooks
will not proceed with the bill.
THE WHITE HOUSE
WASHINGTON
Jolen- comments ASAD, to pls
October 28, 1985
your so con respond This
MEMORANDUM FOR DONALD T. REGAN
FROM:
Christopher Hicks
on
DTRapm.
SUBJECT:
Portal-to-Portal Revisited
Chairman Brooks is prepared to introduce a Portal-to-Portal Bill
that is little changed from the Administration's August submis-
sion. I concur in Mike Horowitz's recommendation (attached at
Tab A) that we support the bill.
The Administration's proposal would have resulted in 58 officials
being specifically eligible for portal-to-portal transportation
(exclusive of general categories such as Ambassadors and some
separate existing statutory provisions that various agencies have
used in the past).
The Brooks proposal identifies 61 positions, but eliminates some
of the separate existing authorities (e.g., the Deputy Director
of the CIA is currently authorized an automobile -- he will lose
that authority). A short list of positions that we could identify
as losing portal-to-portal transportation is attached (Tab B).
The Administration proposal tried to establish a "neutral" test
for portal-to-portal transportation -- one in which the President
would not have to exercise discretion -- by authorizing transpor-
tation for the specific, identified positions listed at Level II
of the Executive Schedule. The Brooks Bill adopts most of the
specifically identified positions (adding some -- Undersecretaries
of DOD, e.g.), but rejects the Executive Level II approach.
Instead, the President is authorized to choose up to six officials
in the EOP and 10 others in the government to receive portal-to-
portal transportation. The 16 positions are not identified by
title or salary levels. Accordingly, the President has added
flexibility, but the choices have to be made on a case by case
basis by the President.
Spousal travel, as Mike Horowitz indicates, is not addressed in
the bill. Some language is to be inserted in the Committee
report to establish that some spousal use of a car is authorized,
but there is a risk that such travel will be more difficult to
support in the future.
CC: Fred Fielding
EXECUTIVE OFFICE OF THE PRESIDENT
liste
UNITED
OFFICE OF MANAGEMENT AND BUDGET
STENDING
WASHINGTON, D.C. 20503
STATE
1985 OCT 25 Pil 12: 26
October 24, 1985
MEMORANDUM
TO:
Joe Wright
Fred Fielding
Chris Hicks
FROM:
Mike Horowitz
MU
SUBJECT: Portal-to-Portal Update
1. The subcommittee staff has completed a mark-up of its latest
draft which includes authorization for most of the positions
covered in our original proposal. The draft now contains the
following significant revisions:
Portal-to-portal is authorized for the President; Vice
President; 6 EXOP officers or employees, as designated by
the President; and no more than 10 officers or employees
of Executive agencies, as designated by the President.
Level I officials and their principal deputies are
authorized to receive such transportation, but in the
latter group only upon the non-delegable determination by
the Department head that such transportation is
appropriate.
The Directors of Central Intelligence and the FBI are
specifically covered, as are the Chairman of the Board of
Governors of the Federal Reserve System, the U.S.
Ambassador to the United Nations, the Secretaries of the
Air Force, Army, and Navy, the five members of the Joint
Chiefs of Staff, and the Commandant of the Coast Guard.
The legislation is exclusive: portal-to-portal
transportation may only be provided for those officials
specified in this bill. Use of non-appropriated funds
will not -- as in the past -- be a basis for anyone
receiving such transportation.
Overseas use under the Foreign Service Act of 1980 and use
by the two Under Secretaries of Defense who were covered
by the 1984 Defense Authorization Act will be continued.
Spousal coverage will be addressed in the accompanying
Committee Report rather than in the bill itself; the
result is expected to conform to the Comptroller General's
-2-
current interpretation which allows transportation when
spouses are included in official duties.
In short, of the approximately 61 positions in the
Administration's proposal, we have managed to retain almost every
position, the omissions being the Deputy Secretaries of the Air
Force, Army, and Navy.
2. A shortcoming in the Committee's draft was deletion of the
fieldwork provision -- a fact which could have had a major impact
on the Secret Service and other law-enforcement agencies. At
Treasury alone approximately 6100 field law-enforcement agents
currently have official cars (which they drive directly from home
to their daily assignments), and their functions could be
seriously disrupted were the fieldwork provision deleted.
However, Charles Kolb on my staff has reached an agreement with
the Subcommittee staff to restore the fieldwork provision in
order to avoid potential disruptions. (The staff have also
deleted existing provisions concerning medical officers --
apparently a noncontroversial change.)
3. Finally, the Subcommittee's draft permits agency heads on a
nondelegable basis (and the President, on a delegable basis in
the case of the EXOP) to authorize portal-to-portal for up to 15
calendar days based on highly unusual circumstances presenting a
clear and present danger, an emergency, or other similarly
compelling operational considerations which make such
transportation essential to the conduct of official business.
Agency heads, on a nondelegable basis, may also determine whether
the authorization shall be continued for 90 additional calendar
days. Notification must be provided promptly to the House
Committee on Government Operations and the Senate Committee on
Governmental Affairs. I strongly opposed inclusion of the "clear
and present danger" language but believe that we can live with it
if "similarly" were dropped as a restraint on "compelling
operational considerations." On balance, under the draft
language, I think we have a good argument that flexibility exists
where it's needed, but I am concerned, as indicated, that
"similarly" might be read to constrain the flexibility intended
by the third criterion.
4. Chairman Brooks has accommodated our concerns in a fashion
permitting coverage of virtually everyone that we initially
wanted in our proposal. I strongly recommend that we signal our
support of the Subcommittee's latest draft, assuming that we are
satisfied with the report language when we receive it.
CC: Gordon Wheeler
Arnold Intrater
Officials Who Currently Have
Portal-to Portal Transportation Under
Authorities Eliminated by the Brooks Proposal
1. Administrator -- Agency for International Development
2. Director -- Arms Control and Disarmament Agency
3. Deputy Director of the CIA
4. Secretary, Smithsonian Institute
The first two positions listed are at Executive Level II and
would have been eligible again under the Administration's pro-
posal.
There may be others in the Administration who are affected, but
we do not have access to complete lists of portal-to-portal users
-- for example, any agency that has non-appropriated funds
available could have been making portal-to-portal available since
the current statute does not apply to non-appropriated fund
expenditures. The Brooks proposal closes off that option.
We did not list officials who lose their current authority to use
automobiles, but whose authority is reinstated elsewhere in the
proposal (e.g., the Director of the CIA).
BROOKS282
HLC
99TH CONGRESS
1ST SESSION
H. R.
IN THE HOUSE OF REPRESENTATIVES
Mr. BROOKS (for himself, Mr. HORTON, [see attached list of
additional cosponsors]) introduced the following bill; which
was referred to the Committee on
A BILL
To restrict the use of government vehicles for transportation of
officers and employees of the Federal Government between
their residences and places of employment, and for other
purposes.
1
Be it enacted by the Senate and House of Representatives
2 of the United States of America in Congress assembled,
BROOKS282
2
1 That section 1344 of title 31, United States Code, is amended
2 to read as follows:
3
$1344. Passenger carrier use
A),
it
4
(a) (1) Funds available to an executive agency by
Jards. plus
5
appropriation or otherwise, may be expended by the executive
6 agency for the maintenance, operation, or repair of any
7 passenger carrier only to the extent that such carrier is
8 used to provide transportation for official purposes.
9 Notwithstanding any other provision of law, transporting any
10 individual other than those listed in subsections (b) and (c)
11 between such individual's residence and such individual s
12 place of employment is not transportation for an official
13 purpose.
14
(2) For purposes of paragraph (1), transportation
15 between the residence of an officer or employee and various'
cleank
16 locations that is required for the performance of field work
wome
17
is transportation for an official purpose, when approved in
requestion
our
18 writing by the head of the agency
19
(b) A passenger carrier may be used to transport
20 between residence and place of employment the following
21 officers and employees of executive agencies:
22
(1) (A) the President and the Vice President;
23
(B) no more than 6 officers or employees in the
24
Executive Office of the President, as designated by the
25
President;
(c)
was delegable under previous digt
S now mon-delezable see page5 5
This
BROOKS282
Nersion which oubtity
3
the recentine tem
1
(C) no more than 10 additional officers or
agrees for
executive
2
employees of executive agencies, as designated by the
brand me
3
President; (D) also non -delegable now (ou note pug2) and
it holder #
add to the
4
(2) (A) officers compensated at Level I of the
6 EOP
5
Executive Schedule pursuant to section 5312 of title 5, Position
6
United States Code; and
7
(B) a single principal deputy to an officer
8
described in subparagraph (A) of this paragraph, when a
9
determination is made by such officer that such
10
transportation is appropriate;
11
(3) principal diplomatic and consular officials
12
abroad, and the United States Ambassador to the United
13
Nations;
14
(4) the Deputy Secretary of Defense and Under
15
Secretaries of Defense, the Secretary of the Air Force,
16
the Secretary of the Army, the Secretary of the Navy, the
17
Joint Chiefs of Staff, and the Commandant of the Coast
18
Guard;
19
(5) the Director of the Central Intelligence Agency
20
and the Director of the Federal Bureau of Investigation;
21
(6) the Chairman of the Board of Governors of the
22
Federal Reserve System;
23
(7) an officer or employee with regard to whom the
24
head of an executive agency makes a determination, which
25
shall be effective for no longer than 15 calendar days,
Honowitz 5 move of given to take this
BROOKS282
so being too street a measure. In my opines
the whole descussion of tempirary 15 to
4
160 day
1
that highly unusual circumstances present a clear and
usage
is mor
2
present danger, that an emergency exists, or that other
For
we
3
similarly compelling operational considerations make such
could
4
transportation essential to the conduct of official
ashould
have
5
business.
expected
6
(c) A passenger carrier may be used to transport
7 between residence and place of employment any person for whom
8 protection is specifically authorized pursuant to section
9 3056 (a) of title 18, United States Code or for whom
10 transportation is authorized pursuant to section 28 of the
11 Foreign Service Act (22 U.S.C. 2700).
12
(d) (1) Any determination made under paragraph (7) of
13 subsection (b) shall be in writing and shall include the name
14 and title of the officer or employee affected, the reason for
15 such determination, and the duration of the authorization for
16 such officer or employee to use a passenger carrier for
17 transportation between residence and place of employment.
18
(2) If a clear and present danger, an emergency, or a
19 similarly compelling consideration described in subsection
20 (b) (7) extends or may extend for a period in excess of 15
21 calendar days, the head of the executive agency shall
22 determine whether authorization under subsection (b) (7) shall
23 be extended beyond 15 calendar days up to a period of 90
24 additional calendar days. Determinations made under this
25 paragraph may be reviewed by the head of such agency, and,
BROOKS282
5
1 where appropriate, subsequent determinations may be made
2 whether such danger, emergency, or consideration continues to
3 exist and whether an additional extension, not to exceed 90
4 calendar days, may be authorized.
5
``(3) The authority to make designations under paragraphs
6 (1) (B) and (1) (C) and to make determinations pursuant to
7
paragraphs (2) (B) and (7) of subsection (b) and paragraph (2)
8 of this subsection may not be delegated, except that, with
9 respect to the Executive Office of the President, the
10 President may delegate his authority under such paragraph (7)
Hich
11 to an officer in such Executive Office. No determination
12 under this section may be made solely or principally for the
13 comfort or convenience of the officer or employee.
14
(4) Notification of each designation or determination
15 made under paragraphs (1) (B), (1) (C), (2) (B), and (7) of
16 subsection (b) and paragraph (2) of this subsection,
17 including the name and title of the officer or employee
18 affected, the reason for any such determination under such
19 paragraph (7), and the expected duration of the
20 authorization, shall be transmitted promptly to the Committee
21 on Government Operations of the House of Representatives and
22 the Committee on Governmental Affairs of the Senate.
23
(e) As used in this section--
24
(1) the term passenger carrier means a passenger
25
otor vehicle, aircraft, boat, ship, or other similar
BROOKS282
6
1
means of transportation that is owned or leased by the
2
United States Government; and
3
(2) the term executive agency has the meaning
4
given by section 103 of this title and includes any
5
executive department, military department, Government
6
corporation, Government-controlled corporation, or other
7
establishment in the executive branch of the Government
8
(including the Executive Office of the President and the
9
Smithsonian Institution), any independent regulatory
10
agency, or any nonappropriated fund instrumentality
11
SEC. 2. (a) Title 10, United States Code, is amended--
12
(1) by striking out section 2637 thereof; and
13
(2) in the table of contents of chapter 157 thereof,
14
by striking out the item pertaining to section 2637.
15
(b) Section 636 (a) (5) of the Foreign Assistance Act of
16 1961 (22 U.S.C. 2396 (a) (5) ) is amended by striking out
17
(without regard to the limitations contained in section 5
18 of Public Law 63-127, as amended (31 U.S.C. 638a(c) (2)) and
19 section 201 of Public Law 85-468 (31 U.S.C. 638c) )
20
(c) Section 48 of the Arms Control and Disarmament Act
21 (22 U.S.C. 2588) is amended by striking out without regard
22 to the limitations contained in section 78 (c) of title 5 of
23 the United States Code
24
(d) Section 303 of the State Department Basic Authorities
25 Act of 1956 (22 U.S.C. 2678) is amended by striking out
BROOKS282
7
1 subsection (b).
2
(e) Section 8(a)(1) of the Central Intelligence Agency
3 Act of 1949 (50 U.S.C. 403j(a)(1)) is amended by striking out
4
transportation of officers and employees of the Agency in
5 Government-owned automotive equipment between their domiciles
6 and places of employment, where such personnel are engaged in
7 work which makes such transportation necessary, and
8 transportation in such equipment and inserting in lieu
9 thereof transportation in Government automotive
10 equipment