B-138942(3), JANUARY 3, 1977, 56 COMP.GEN. 219

B-138942(3): Jan 3, 1977

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OFFICERS AND EMPLOYEES - TRAVEL TIME - HOURS OF TRAVEL - SLEEPING TIME UNDER 49 U.S.C. 1517 AND THE FLY AMERICA GUIDELINES A TRAVELER IS NOT REQUIRED TO TRAVEL DURING HOURS NORMALLY ALLOCATED TO SLEEP TO FACILITATE HIS USE OF CERTIFICATED AIR CARRIER SERVICE FOR FOREIGN AIR TRANSPORTATION. THE REQUIREMENT FOR REASONABLE PERIODS OF SLEEP IS MORE THAN A MATTER OF MERE CONVENIENCE TO THE TRAVELER. WHERE THE ONLY CERTIFICATED SERVICE AVAILABLE REQUIRES TRAVEL DURING PERIODS NORMALLY USED FOR SLEEP AND WHERE A NONCERTIFICATED AIR CARRIER IS AVAILABLE WHICH DOES NOT REQUIRE TRAVEL DURING THOSE HOURS. NONDUTY HOURS THE POLICY OF 49 U.S.C. 1517 REQUIRING USE OF CERTIFICATED AIR CARRIER SERVICE IS TO BE CONSIDERED IN DETERMINING THE PRACTICABILITY OF SCHEDULING TRAVEL DURING THE EMPLOYEE'S REGULARLY SCHEDULED WORKWEEK IN ACCORDANCE WITH 5 U.S.C. 6101(B)(2).

B-138942(3), JANUARY 3, 1977, 56 COMP.GEN. 219

OFFICERS AND EMPLOYEES - TRAVEL TIME - HOURS OF TRAVEL - SLEEPING TIME UNDER 49 U.S.C. 1517 AND THE FLY AMERICA GUIDELINES A TRAVELER IS NOT REQUIRED TO TRAVEL DURING HOURS NORMALLY ALLOCATED TO SLEEP TO FACILITATE HIS USE OF CERTIFICATED AIR CARRIER SERVICE FOR FOREIGN AIR TRANSPORTATION. THE REQUIREMENT FOR REASONABLE PERIODS OF SLEEP IS MORE THAN A MATTER OF MERE CONVENIENCE TO THE TRAVELER. THUS, WHERE THE ONLY CERTIFICATED SERVICE AVAILABLE REQUIRES TRAVEL DURING PERIODS NORMALLY USED FOR SLEEP AND WHERE A NONCERTIFICATED AIR CARRIER IS AVAILABLE WHICH DOES NOT REQUIRE TRAVEL DURING THOSE HOURS, THE CERTIFICATED SERVICE MAY BE CONSIDERED UNAVAILABLE. OFFICERS AND EMPLOYEES - TRAVEL TIME - HOURS OF TRAVEL - REGULAR V. NONDUTY HOURS THE POLICY OF 49 U.S.C. 1517 REQUIRING USE OF CERTIFICATED AIR CARRIER SERVICE IS TO BE CONSIDERED IN DETERMINING THE PRACTICABILITY OF SCHEDULING TRAVEL DURING THE EMPLOYEE'S REGULARLY SCHEDULED WORKWEEK IN ACCORDANCE WITH 5 U.S.C. 6101(B)(2). WHERE A CHOICE OF CERTIFICATED SERVICE IS AVAILABLE, TRAVEL SHOULD BE SCHEDULED ABOARD THE CARRIER PERMITTING TRAVEL DURING REGULAR DUTY HOURS. HOWEVER, WHERE CERTIFICATED SERVICE IS AVAILABLE ONLY DURING NONDUTY HOURS, THE EMPLOYEE WOULD BE REQUIRED TO USE THAT SERVICE AS OPPOSED TO TRAVELING BY A NONCERTIFICATED AIR CARRIER.

IN THE MATTER OF THE FLY AMERICA ACT-- HOURS OF TRAVEL, JANUARY 3, 1977:

THIS DECISION IS RENDERED TO AMPLIFY THE COMPTROLLER GENERAL'S "GUIDELINES FOR IMPLEMENTATION OF SECTION 5 OF THE INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES ACT OF 1974," ISSUED MARCH 12, 1976, B-138942.

THE GUIDELINES REQUIRE GOVERNMENT-FINANCED COMMERCIAL FOREIGN AIR TRANSPORTATION TO BE PERFORMED BY U.S. FLAG CERTIFICATED AIR CARRIERS WHERE SUCH SERVICE IS AVAILABLE, AND THEY SET FORTH EXPLICIT CRITERIA FOR DETERMINING WHEN SUCH SERVICE IS AVAILABLE. IT HAS BEEN POINTED OUT THAT THE GUIDELINES DO NOT ADDRESS THE QUESTION OF SELECTION BETWEEN FLIGHT SCHEDULES WHERE CERTIFICATED SERVICE OTHERWISE AVAILABLE REQUIRES TRAVEL DURING OFF DUTY OR UNREASONABLE HOURS.

BY WAY OF SPECIFIC EXAMPLE, WE ARE GIVEN THE ACTUAL ITINERARY OF AN EMPLOYEE WHO, IN THE COURSE OF HIS TRAVEL BETWEEN VARIOUS SOUTH AMERICAN COUNTRIES, TRAVELED FROM CARACAS, VENEZUELA, TO RIO DE JANEIRO, BRAZIL. IN ORDER TO USE AMERICAN FLAG SERVICE, THE EMPLOYEE WAS REQUIRED TO DEPART CARACAS AT 12:25 A.M. ON SATURDAY MORNING ABOARD A PAN AMERICAN FLIGHT SCHEDULED TO ARRIVE AT RIO DE JANEIRO AT 7:05 A.M. WE ARE ADVISED THAT PAN AMERICAN IS THE ONLY CERTIFICATED AIR CARRIER PROVIDING SERVICE BETWEEN CARACAS AND RIO DE JANEIRO AND THAT THE FOUR PAN AMERICAN FLIGHTS SCHEDULED EACH WEEK REQUIRE SUBSTANTIAL TRAVEL BETWEEN THE HOURS OF MIDNIGHT AND 6 A.M.

BASED ON THESE CIRCUMSTANCES, WE ARE ASKED WHETHER DUE CONSIDERATION TO THE REQUIREMENTS OF 49 U.S.C. 1517, AS IMPLEMENTED BY THE GUIDELINES, REQUIRES THE TRAVELER TO SCHEDULE HIS TRAVEL DURING LATE NIGHT AND EARLY MORNING HOURS.

IT HAS LONG BEEN A BASIC CONSIDERATION IN SCHEDULING TRAVEL THAT EMPLOYEES NOT BE REQUIRED TO TRAVEL DURING PERIODS NORMALLY USED FOR SLEEP. IN GENERAL, THE QUESTION OF WHEN TRAVEL SHOULD BE PERFORMED ARISES IN CONJUNCTION WITH THE ISSUE OF PER DIEM ENTITLEMENT. IN THAT CONTEXT WE HAVE HELD THAT THE AMOUNT OF PER DIEM TO WHICH AN EMPLOYEE IS ENTITLED IS NOT TO BE DETERMINED ON THE CONSTRUCTIVE BASIS OF COMMERCIAL CARRIER SERVICE AVAILABLE AT 4:15 A.M. WHEN A MORE REASONABLE SCHEDULE IS AVAILABLE. 16 COMP.GEN. 620 (1936). SEE ALSO B-149868, OCTOBER 2, 1962, WHEREIN WE RECOGNIZED THAT AN EMPLOYEE COULD BE REQUIRED TO TRAVEL BY A TRAIN SCHEDULED TO ARRIVE AT DESTINATION AT 10 P.M. INASMUCH AS SUCH SCHEDULING ENABLED THE EMPLOYEE TO OBTAIN PROPER REST.

THE BASIC CONCERN FOR THE EMPLOYEE'S HEALTH IS REFLECTED IN THE FOLLOWING PROVISION AT JOINT TRAVEL REGULATION (JTR) VOL. 2, PARA. C4465-2, APPLICABLE TO CIVILIAN EMPLOYEES OF THE DEPARTMENT OF DEFENSE, WHICH PROVIDES IN PERTINENT PART THAT:

* * * NORMALLY AN EMPLOYEE ON OFFICIAL TRAVEL WILL NOT BE REQUIRED TO TRAVEL DURING UNREASONABLE HOURS AT NIGHT IF SLEEPING ACCOMMODATIONS ARE NOT AVAILABLE ON THE MODE OF TRANSPORTATION. AN EMPLOYEE WILL NOT BE EXPECTED TO USE A CARRIER THE SCHEDULE OF WHICH REQUIRES BOARDING OR LEAVING THE CARRIER BETWEEN 2400 HOURS AND 0600 HOURS IF THERE ARE MORE REASONABLE, EARLIER OR LATER DEPARTURE OR ARRIVAL SCHEDULED TIMES THAT WILL MEET MISSION REQUIREMENTS.

PARAGRAPH M4202-3(A) OF THE JTR VOL. 1 SIMILARLY PROVIDES THAT MILITARY MEMBERS WILL NOT NORMALLY BE EXPECTED TO SELECT A SCHEDULE THAT REQUIRES DEPARTURE OR ARRIVAL BETWEEN 12 MIDNIGHT AND 6 A.M. B-177897, MARCH 21, 1973; B-164709, NOVEMBER 28, 1975.

IN ENACTING 49 U.S.C. 1517, CONGRESS RECOGNIZED THAT THE REQUIREMENT TO USE AVAILABLE CERTIFICATED AIR CARRIER SERVICE WOULD INVOLVE ADDITIONAL INCONVENIENCE AS WELL AS COST IN INTERNATIONAL TRAVEL. THAT FACT IS REFLECTED IN PARAGRAPH 3 OF THE GUIDELINES ISSUED MARCH 12, 1976, B-138942, WHICH PROVIDES IN PART THAT NEITHER CONSIDERATIONS OF COST NOR CONVENIENCE WILL BE REGARDED AS RENDERING CERTIFICATED AIR CARRIER SERVICE UNAVAILABLE, AS WELL AS IN THE UNAVAILABILITY CRITERIA OF PARAGRAPH 4 WHICH IMPOSE UPON TRAVELERS THE BURDEN OF REMAINING IN A TRAVEL STATUS FOR UP TO AN ADDITIONAL 12 HOURS TO FACILITATE THE USE OF CERTIFICATED SERVICE.

WE BELIEVE, HOWEVER, THAT THE REQUIREMENT FOR REASONABLE PERIODS OF REST DURING HOURS NORMALLY ALLOCATED TO SLEEP IS MORE THAN A MATTER OF MERE CONVENIENCE TO THE TRAVELER. WHILE CONGRESS INTENDED THAT TRAVELERS USE CERTIFICATED CARRIERS WHENEVER AND WHEREVER POSSIBLE, WE DO NOT BELIEVE THAT IT WAS INTENDED THAT SUCH SERVICE BE USED AT THE EXPENSE OF JEOPARDIZING THE EMPLOYEE'S HEALTH AND EFFICIENCY. FOR THIS REASON WE BELIEVE THAT THE STANDARDS SET FORTH IN JTR, VOL. 2, PARA. C4465-2, QUOTED ABOVE, MAY APPROPRIATELY BE APPLIED IN DETERMINING WHETHER CERTIFICATED AIR CARRIER SERVICE IS AVAILABLE. IN THE EXAMPLE GIVEN, THE EMPLOYEE WOULD NOT BE REQUIRED TO USE ANY OF THE FOUR PAN AMERICAN FLIGHTS DEPARTING CARACAS AROUND MIDNIGHT AND ARRIVING IN RIO DE JANEIRO IN THE EARLY MORNING HOURS IF LESS ONEROUS SCHEDULING IS AVAILABLE ABOARD A FOREIGN AIR CARRIER. WHERE THE ONLY CERTIFICATED AIR CARRIER SERVICE AVAILABLE REQUIRES TRAVEL DURING PERIODS NORMALLY USED FOR SLEEP, AND WHERE A NONCERTIFICATED AIR CARRIER IS AVAILABLE WHICH DOES NOT REQUIRE TRAVEL DURING THOSE HOURS, THE CERTIFICATED SERVICE MAY BE CONSIDERED UNAVAILABLE.

THE ABOVE RULE REGARDING TRAVEL DURING HOURS NORMALLY ALLOCATED TO SLEEP IS DISTINCT FROM THE GOVERNMENT'S POLICY ON SCHEDULING OF TRAVEL REFLECTED AT 5 U.S.C. 6101(B)(2):

(2) TO THE MAXIMUM EXTENT PRACTICABLE, THE HEAD OF AN AGENCY SHALL SCHEDULE THE TIME TO BE SPENT BY AN EMPLOYEE IN A TRAVEL STATUS AWAY FROM HIS OFFICIAL DUTY STATION WITHIN THE REGULARLY SCHEDULED WORKWEEK OF THE EMPLOYEE. IN CONSIDERING THE QUESTION OF THE HOURS DURING WHICH TRAVEL IS TO BE SCHEDULED IN ORDER TO COMPLY WITH 49 U.S.C. 1517, WE FEEL IT IS APPROPRIATE TO COMMENT ON THE EFFECT OF 5 U.S.C. 6101(B)(2) AS IT PERTAINS TO THE REQUIREMENT TO USE AVAILABLE CERTIFICATED AIR CARRIER SERVICE.

WHILE CONGRESS CLEARLY INTENDED THAT AS A GENERAL PRACTICE TRAVEL SHOULD NOT BE SCHEDULED AT TIMES OUTSIDE THE EMPLOYEE'S REGULARLY SCHEDULED WORKWEEK, IT LEFT TO THE DISCRETION OF THE EMPLOYING AGENCY AUTHORITY TO DETERMINE WHEN IT IS IMPRACTICABLE TO SCHEDULE OFFICIAL TRAVEL WITHIN THE SCHEDULED WORKWEEK OF AN EMPLOYEE UNDER 5 U.S.C. 6101(B)(2). 51 COMP.GEN. 727 (1972). THUS, IN B-167580, AUGUST 21, 1969, WE HELD THAT SINCE THE TERM "PRACTICABLE" APPEARING IN 5 U.S.C. 6101(B)(2) IS NOT DEFINED, EACH CASE IS TO BE TREATED ON THE BASIS OF THE PARTICULAR FACTS INVOLVED, INCLUDING CONSIDERATIONS SUCH AS THE AGENCY'S WORKLOAD AND THE SCHEDULING OF THE EVENT NECESSITATING THE TRAVEL.

THE STRONG GOVERNMENT POLICY REFLECTED IN 49 U.S.C. 1517 REQUIRING THE USE OF AVAILABLE CERTIFICATED AIR CARRIER SERVICE IS A FACTOR TO BE CONSIDERED IN DETERMINING THE PRACTICABILITY OF SCHEDULING TRAVEL DURING THE EMPLOYEE'S REGULAR DUTY HOURS. WHERE A CHOICE OF CERTIFICATED AIR CARRIERS IS AVAILABLE, ONE WHICH WOULD PERMIT THE EMPLOYEE TO TRAVEL DURING REGULAR DUTY HOURS AND ONE WHICH WOULD NOT, THE TRAVEL SHOULD BE SCHEDULED DURING REGULAR DUTY HOURS TO THE EXTENT OTHERWISE FEASIBLE. HOWEVER, WHERE THE ONLY CERTIFICATED SERVICE AVAILABLE WOULD REQUIRE THE EMPLOYEE TO TRAVEL DURING OFF-DUTY HOURS, BUT NOT DURING HOURS NORMALLY ALLOCATED TO SLEEP, THE EMPLOYEE WOULD BE REQUIRED TO USE THAT CERTIFICATED SERVICE AS OPPOSED TO TRAVELING BY A NONCERTIFICATED CARRIER. TO HOLD OTHERWISE WOULD LARGELY DEFEAT THE PURPOSE OF 49 U.S.C. 1517.

IN ADDITION TO THE ABOVE QUESTION CONCERNING THE SCHEDULING OF TRAVEL, WE HAVE BEEN ASKED WHETHER AN EMPLOYEE WHO IS REQUIRED TO TRAVEL AT INCONVENIENT OFF-DUTY HOURS SHOULD BE GRANTED COMPENSATORY TIME OFF.

WITH RESPECT TO GENERAL SCHEDULE EMPLOYEES EXEMPT FROM THE FAIR LABOR STANDARDS ACT (FLSA), THE AUTHORITY FOR GRANTING COMPENSATORY TIME OFF IS CONTAINED AT 5 U.S.C. 5543. THAT SECTION PROVIDES FOR THE GRANTING OF TIME OFF IN LIEU OF PAYMENT OF AN EQUAL AMOUNT OF TIME SPENT IN IRREGULAR OR OCCASIONAL OVERTIME. COMPENSATORY TIME OFF MAY THUS BE GRANTED ONLY IF THE TIME SPENT IN A TRAVEL STATUS IS COMPENSABLE AS OVERTIME HOURS OF WORK. UNDER 5 U.S.C. 5542(B)(1), TIME SPENT IN A TRAVEL STATUS AWAY FROM THE EMPLOYEE'S DUTY STATION IS NOT COMPENSABLE AS OVERTIME HOURS OF WORK UNLESS:

(A) THE TIME SPENT IS WITHIN THE DAYS AND HOURS OF THE REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK OF THE EMPLOYEE, INCLUDING REGULARLY SCHEDULED OVERTIME HOURS; OR

(B) THE TRAVEL (I) INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING, (II) IS INCIDENT TO TRAVEL THAT INVOLVES THE PERFORMANCE OF WORK WHILE TRAVELING, (III) IS CARRIED OUT UNDER ARDUOUS CONDITIONS, OR (IV) RESULTS FROM AN EVENT WHICH COULD NOT BE SCHEDULED OR CONTROLLED ADMINISTRATIVELY.

EACH CASE IS TO BE CONSIDERED BASED ON THE PARTICULAR CIRCUMSTANCES OF TRAVEL INVOLVED AND, IF THOSE CIRCUMSTANCES MEET THE REQUIREMENTS OF 5 U.S.C. 5542(B)(2), COMPENSATORY TIME OFF MAY BE GRANTED CONSISTENT WITH THE PROVISION THEREFOR AT 5 U.S.C. 5543.

THERE IS NO AUTHORITY FOR GRANTING COMPENSATORY TIME OFF IN LIEU OF OVERTIME PAY TO WAGE BOARD EMPLOYEES, ALTHOUGH 5 U.S.C. 5544 CONTAINS AUTHORITY FOR PAYMENT OF OVERTIME COMPENSATION FOR TRAVEL-TIME IDENTICAL TO THAT OF 5 U.S.C. 5542(B)(2)(B), QUOTED ABOVE. WITH RESPECT TO THE ENTITLEMENT OF NONEXEMPT EMPLOYEES TO OVERTIME COMPENSATION FOR TIME SPENT IN A TRAVEL STATUS, SEE FPM LETTER 551-10, APRIL 30, 1976.