ML18235A523
| ML18235A523 | |
| Person / Time | |
|---|---|
| Issue date: | 08/28/2018 |
| From: | Dan Dorman NRC/EDO |
| To: | Baker B NRC/OIG/AIGA |
| Atack S | |
| References | |
| Download: ML18235A523 (6) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 August 28, 2018 MEMORANDUM TO: Dr. Brett M. Baker Assistant Inspector General for Audits Office of the Inspector General FROM: Daniel H. Dorman /RA/
Acting Deputy Executive Director for Materials, Waste, Research, State, Tribal, Compliance, Administration, and Human Capital Programs Office of the Executive Director for Operations
SUBJECT:
FORMAL COMMENTS ON THE OFFICE OF THE INSPECTOR GENERAL FINAL DRAFT REPORT: AUDIT OF THE NRCS PROCESS FOR REIMBURSING AGREEMENT STATE PERSONNEL TRAINING EXPENSES This memorandum and its enclosure respond to the August 15, 2018, correspondence from the Office of the Inspector General (OIG) providing the Final Draft Report: Audit of the NRCs Process for Reimbursing Agreement State Personnel Training Expenses. In its interactions with the OIG during, and subsequent to, the July 25, 2018, exit meeting for the audit, the U.S. Nuclear Regulatory Commission (NRC) staff identified that certain options for reimbursement of Agreement State personnel training expenses cannot be legally pursued. This memorandum is being provided to communicate that the staff disagrees, in part, with the OIG recommendation to Conduct a cost-benefit analysis to evaluate alternative Agreement State reimbursement options, such as establishment of contracts with individual Agreement States to facilitate reimbursement at the State per diem rate. Specifically, as elaborated in the enclosure, the NRC staff has considered a range of alternative Agreement State reimbursement options, and concluded that there is only one viable option for which the NRC staff can perform a cost-benefit analysis, namely, the option of establishing contracts with individual Agreement States to facilitate reimbursement at the State per diem rate. Thus, the NRC staff disagrees that the NRC is able to conduct a cost-benefit analyses of multiple options in the interest of using NRC funds more efficiently, as suggested by the OIG in its final draft report. As described further in the enclosure, the NRC staff will perform a cost-benefit analysis of the option of establishing contracts with individual Agreement States to facilitate reimbursement at the State per diem rate.
The NRC staff appreciates your staffs efforts to improve the NRCs process to reimburse Agreement State personnel for expenses incurred during NRC-sponsored training. In addition, the NRC staff concluded that the draft report does not contain any sensitive unclassified information.
Enclosure:
Comments on Draft Audit Report CONTACT: Paul Michalak, NMSS/MSST 301-415-5804
Dr. B. Baker 2
SUBJECT:
FORMAL COMMENTS ON THE OFFICE OF THE INSPECTOR GENERAL FINAL DRAFT REPORT: AUDIT OF THE NRCS PROCESS FOR REIMBURSING AGREEMENT STATE PERSONNEL TRAINING EXPENSES DATED: August 29, 2018 ADAMS Accession Number: ML18235A523 OEDO-18-00411 OFC MSST/ASPB NMSS/MSST OGC OCFO NMSS DEDM NAME P. Michalak S. Atack for M. Norris G. Peterson M. Dapas D. Dorman D. Collins DATE 8/21/18 8/23/18 8/23/18 8/24/18 8/27/18 08/28/18 OFFICIAL RECORD COPY
FORMAL COMMENTS ON THE OFFICE OF THE INSPECTOR GENERAL FINAL DRAFT REPORT: AUDIT OF THE NRCS PROCESS FOR REIMBURSING AGREEMENT STATE PERSONNEL TRAINING EXPENSES The U.S. Nuclear Regulatory Commission (NRC) staff is providing formal comments to the Office of the Inspector General (OIG) on its August 15, 2018, draft report: Audit of the NRCs Process for Reimbursing Agreement State Personnel Training Expenses. The OIG audit objective was to assess the effectiveness and efficiency of NRCs process for reimbursing Agreement State staff who attend NRC-sponsored training. In its report, the OIG noted that in most States, the State per diem rate is lower than the Federal per diem rate. Although the NRC reimburses travelers at Federal per diem rates for NRC-sponsored travel, the OIG identified that some States do not permit their employees to receive travel per diem payments above the state-specified per diem rate, and States with this rule, regulation, or policy collect the difference in per diem amounts from their employee. In its final draft report dated August 15, 2018, the OIG recommended that the NRC:
Conduct a cost-benefit analysis to evaluate alternative Agreement State reimbursement options, such as establishment of contracts with individual Agreement States to facilitate reimbursement at the State per diem rate.
In its report, the OIG noted that, Because NRC does not have a process to reimburse Agreement States at their State per diem rate, it is possible NRCs funds are not being used as efficiently as possible. Similarly, in previous versions of the report, the OIG had offered recommendations that the NRC:
- 1. Develop and implement a process through which NRC can collect refunds from Agreement States following an overpayment of a travel reimbursement.1
- 2. Develop and implement a process through which NRC can reimburse Agreement State travelers at their respective State per diem rate.2 In its interactions with the OIG during, and subsequent to, the July 25, 2018, exit meeting for the audit, the NRC staff identified that the options for accepting reimbursements from States and reimbursing travelers at State per diem rates are not feasible as a result of statutory limitations on the circumstances under which the NRC can accept funds from the States, and the need to conform with policies in the Federal Travel Regulations. As a result, the NRC staff is providing this comment on the report in order to confirm that the only option the NRC staff can evaluate in response to the recommendation contained in the OIGs final report, is to perform a cost-benefit analysis of establishing contracts between the NRC and Agreement States to enable States to reimburse travelers at State per diem rates. Pending the outcome of this cost-benefit analysis, the NRC staff may choose to communicate with the Agreement States to inform them that funds collected from their personnel due to the differences in Federal and State per diem rates can be returned to the U.S. Treasury (although the NRC cannot require the return of such funds).
Specifically, should the NRC staff determine that the fiscal benefit of establishing individual contracts with Agreement States to reimburse the States for NRC-sponsored travel conducted by State personnel is not outweighed by the cost of establishing such a process, the NRC will 1 From draft report provided to the NRC staff on July 11, 2018.
2 From draft report provided to the NRC staff on July 27, 2018. In the July 11, 2018, version of the report, a similar recommendation was identified for the NRC to: Identify and evaluate options where ETS2 could be used to pay Agreement State staff at their respective State per diem rates.
Enclosure
consider issuing a letter to the States to ensure that they are aware of the option to return funds to the U.S. Treasury in the interest of increasing the efficiency of Federal government expenditures.
The NRC staffs rationale for not agreeing with the first two recommendations developed by the OIG is described below.
NRC Recovery of the Difference in Per Diem Rates As identified by the NRC staff during the exit meeting and subsequent interactions with the OIG staff, Federal agencies are funded by appropriations from Congress, and the agency cannot accept money from any entity (e.g., an Agreement State) unless there is a statute that specifically permits this approach (statutory exception), or there is a Government Accountability Office (GAO)-recognized exception. If an entity other than Congress does provide the agency money and there is no exception for it, then the agency must turn that money over to the Treasury as a miscellaneous receipt. Per 31 U.S. Code § 3302(b) - Custodians of money (also known as the miscellaneous receipts statute):
Except as provided in section 3718(b) of this title, an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim.
The NRC staff determined that there are no statutes or GAO-recognized exceptions that would allow the NRC to collect funds related to Agreement State travel reimbursements. While GAO-recognized exceptions permit the collection of repayments, there are only two types of receipts that are authorized in conjunction with this exception: reimbursements and refunds.
Amounts that qualify as reimbursements are limited to amounts collected from outside sources for commodities or services furnished, which by law may be credited directly to an appropriation.
Refunds are paid to restore to the appropriation amounts that should not have been paid from the appropriation. Refunds are defined as amounts collected from outside sources for payments made in error, overpayments,3 or adjustment for previous amounts disbursed. In the present case, the funds collected by some Agreement States from their employees due to State rules that do not allow their employees to recover per diem payments above the State-specified per diem rate, are not eligible to be returned to the agency because those funds do not meet the criteria to be defined as either reimbursements or refunds. Specifically: (1) the funds would not be collected for commodities or services furnished, and (2) the funds are not associated with payments that were made in error, overpayments, or otherwise adjustments to amounts previously disbursed. On the contrary, payments for NRC-sponsored training are budgeted in accordance with the Federal Travel Regulations and are properly made from an appropriation that is available for incurring costs for such expenses. As such, any per diem funds collected by Agreement States related to NRC-provided Agreement State personnel travel for training would not be returned to the NRC, but could be deposited in the U.S. Treasury. As such, the NRC concluded that the 3
Overpayments would not include cases in which an Agreement State requires an employee to turn over his or her reimbursement for NRC-sponsored travel to the State and then the State reimburses the employee at a lower, State per diem rate. Because the Federal Travel Regulations establish requirements for how per diem rates are paid to travelers, and the NRC cannot legally provide a reduced per diem directly to invitational travelers (see next Section, Reimbursing Travelers at State Per Diem Rates), any funds held by a State as a result of the difference in State and Federal per diem rates cannot be considered an overpayment (i.e., the NRC is not authorized to pay travelers at a rate lower than the Federal per diem rate, so the scenario is not an overpayment).
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previously-recommended action to develop and implement a process through which the NRC could collect refunds from Agreement States following an overpayment of a travel reimbursement, could not be pursued as a means to allow the NRC to use its funds more effectively and efficiently, as originally proposed by the OIG.
Reimbursing Travelers at State Per Diem Rates As identified by the NRC staff in its interactions with the OIG staff subsequent to the July 25, 2018, exit meeting, the option of the NRC directly reimbursing Agreement State travelers at the State per diem rate is in conflict with the provisions of the Federal Travel Regulations. Specifically, the Federal Travel Regulation states:
Subpart CReduced Per Diem
§301-11.200 Under what circumstances may my agency prescribe a reduced per diem rate lower than the prescribed maximum?
Under the following circumstances:
a) When your agency can determine in advance that lodging and/or meal costs will be lower than the per diem rate; and b) The lowest authorized per diem rate must be stated in your travel authorization in advance of your travel.
Per §301-11.200, in order to set a lower per diem rate, the NRC would be required to determine in advance that lodging and/or meal costs will be lower than the per diem rate. However, the determination of the lodging and/or meal costs cannot be tied to a States reimbursement rate, because the fact that an Agreement State may have a lower per diem rate than the Federal per diem rate does not necessarily mean that the travelers lodging and/or meal costs will be lower than the Federal per diem rate. Cost is defined as the amount that has to be paid or spent to buy or obtain something. In order to assign per diem reimbursements based on State-specific rates, the NRC would have to make multiple, conflicting determinations at once; that with respect to employees from State X, we determine that the lodging/meal costs will be the amount that is reimbursed by State X, and with respect to employees from other States who are going to the same event at the same location at the same time, we determine that the lodging/meal costs will be some other amount. It is a fact that local business will not charge an Agreement State traveler more because they are from State X and charge Agreement State travelers from other States less. Rather, the lodging/meals costs will be the same for all the travelers attending a training course.
Moreover, the difference in Federal and State per diem rates may indicate that there is a lack of alignment between the governments as to what the lodging/meals costs will be. Given these circumstances, it is not necessarily true that the Agreement State with the lowest reimbursement rate more accurately reflects the lodging and/or meal costs than the FTR rate, or that the NRC should adopt those rates as a basis for a determination that lodging and/or meal costs will be lower than the Federal per diem rate.
As a result, the option of the NRC directly reimbursing the Agreement State traveler at a reduced rate based on their States per diem rate does not meet the §300-11.200 criteria to provide a reduced per diem amount to Agreement State travelers.
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Conclusion With the options of accepting reimbursement funds from the Agreement States, and the NRC directly reimbursing Agreement State travelers at alternate rates (i.e., State per diem rates) eliminated from consideration, the NRC staff has identified only two remaining options for Agreement State traveler reimbursement:
(1) maintain the status quo and inform the Agreement States that funds collected from their personnel due to the differences in Federal and State per diem rates can be returned to the U.S. Treasury, or (2) perform a cost-benefit analysis to evaluate the option of establishing contracts with individual Agreement States to facilitate reimbursement at the State per diem rate.
Of note, the NRC cannot require States to return funds related to the difference in Federal and State per diem rates (i.e., where States collect NRC per diem funds paid to the traveler and disperse per diem reimbursement at a lower rate to the traveler). As such, any cost-benefit analysis related to maintaining the status quo and informing the Agreement States that funds collected from their personnel due to the differences in Federal and State per diem rates can be returned to the U.S. Treasury, would be based on highly speculative information with respect to benefits obtained by the U.S. Government. Accordingly, the NRC staff does not plan to conduct a cost-benefit analysis related to the NRC potentially informing Agreement States that they can provide funding related to differences in Federal and State per diem rates for NRC-sponsored travel to the U.S. Treasury.
As such, the NRC disagrees that cost-benefit analyses of multiple options can be performed, as recommended by the OIG. The NRC staff intends to perform a cost-benefit analysis of only one option - namely, establishing contracts with individual Agreement States to facilitate reimbursement at the State per diem rate. Notwithstanding, should the NRC staff determine, after performing its cost-benefit evaluation, that the establishment of contracts with Agreement States should not be pursued, the NRC staff will consider transmitting a letter to the Agreement States to inform them that funds collected from their personnel due to the differences in Federal and State per diem rates, can be returned to the U.S. Treasury in order to improve the efficiency of the Federal government.
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