B-159856, SEPTEMBER 20, 1966, 46 COMP. GEN. 243

B-159856, SEPTEMBER 20, 1966, 46 COMP. GEN. 243

TRANSPORTATION - AIR CARRIERS - FOREIGN - AMERICAN CARRIER AVAILABILITY AUTHORITY TO USE FOREIGN AIRCAFT. GOVERNMENTAL POLICY REQUIRING OFFICIAL TRAVELERS TO USE FOREIGN CURRENCIES, WHEN AVAILABLE AMERICAN FLAG REGISTRY AIRCRAFT CARRIERS WILL NOT ACCEPT UNITED STATES-OWNED FOREIGN CURRENCY OF AN EXCESS OR NEAR- EXCESS COUNTRY, AN EXCEPTION MAY BE MADE TO THE RESTRICTION ON THE USE OF FOREIGN AIRCRAFT SERVING EXCESS OR NEAR-EXCESS COUNTRIES AND A REGULATION SIMILAR TO PARAGRAPH 3.10B/7) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS ISSUED TO AUTHORIZE THE USE OF FOREIGN AIRCRAFT, NOTWITHSTANDING REGULATIONS IMPLEMENTING SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, 46 U.S.C. 1241/A), PRESCRIBING THE USE OF SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES, HAVE EXTENDED THE REQUIREMENT TO THE USE OF AIRCRAFT OF AMERICAN REGISTRY. TRANSPORTATION - VESSELS - FOREIGN - AMERICAN VESSEL AVAILABILITY - PROHIBITION ON USE OF FOREIGN VESSEL. THE REQUIREMENT IN SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, 46 U.S.C. 1241/A), MAKING THE USE OF AMERICAN REGISTRY VESSELS FOR OFFICIAL TRAVEL MANDATORY, UNLESS THE ACCOMPLISHMENT OF THE MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG, AND ALTHOUGH AMERICAN FLAG REGISTRY CARRIERS WILL NOT ACCEPT UNITED STATES-OWNED FOREIGN CURRENCY OF AN EXCESS OR NEAR-EXCESS COUNTRY, A REGULATION MAY NOT ISSUE TO AUTHORIZE THE USE OF A FOREIGN VESSEL WHEN AMERICAN-FLAG VESSELS ARE AVAILABLE AND IT IS NOT DETERMINED THAT THE USE OF THE AMERICAN VESSEL WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS.

TO THE SECRETARY OF THE AIR FORCE, SEPTEMBER 20, 1966:

FURTHER REFERENCE IS MADE TO LETTER OF JULY 27, 1966, FROM THE UNDER SECRETARY OF THE AIR FORCE REQUESTING A DECISION WHETHER PARAGRAPH M2150-2 OF THE JOINT TRAVEL REGULATIONS, VOLUME 1, MAY BE REVISED TO PROVIDE THAT WHERE AVAILABLE AMERICAN FLAG REGISTRY CARRIERS WILL NOT ACCEPT UNITED STATES-OWNED FOREIGN CURRENCY OF AN EXCESS OR NEAR-EXCESS COUNTRY, THE AUTHORITY ISSUING TRAVEL ORDERS MAY AUTHORIZE THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY. THE REQUEST WAS ASSIGNED PDTATAC CONTROL NO. 66-31 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

THE UNDER SECRETARY SAYS THAT IN RESPONSE TO A REQUEST OF THE ASSISTANT SECRETARY OF DEFENSE, MANPOWER (MILITARY PERSONNEL POLICY), THAT THE JOINT TRAVEL REGULATIONS BE REVISED TO REFLECT THE POLICIES AND PROCEDURES FOR THE USE OF UNITED STATES-OWNED FOREIGN CURRENCIES, AS SET FORTH IN DEPARTMENT OF DEFENSE INSTRUCTION 7360.9, IT HAS BEEN PROPOSED THAT THE JOINT TRAVEL REGULATIONS, PARAGRAPH M2150-2, BE REVISED AS FOLLOWS:

2. USE OF CARRIERS OF UNITED STATES REGISTRY IMPRACTICAL. THE AUTHORITY ISSUING TRAVEL ORDERS MAY AUTHORIZE THE USE OF VESSELS OR AIRCRAFT OF FOREIGN REGISTRY UNDER THE FOLLOWING IRCUMSTANCES:

1. WHERE HE DETERMINES THAT THE USE OF VESSELS OR AIRCRAFT REGISTERED UNDER THE LAWS OF THE UNITED STATES WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS, OR

2. WHERE THE AVAILABLE AMERICAN FLAG REGISTRY CARRIERS WILL NOT ACCEPT UNITED STATES-OWNED FOREIGN CURRENCY OF THE EXCESS OR NEAR EXCESS COUNTRY, PROVIDED THE USE OF SUCH CARRIER DOES NOT RESULT IN INCREASED COST TO DEPARTMENT OF DEFENSE APPROPRIATIONS. A STATEMENT OF THIS DETERMINATION MUST BE CONTAINED IN OR APPENDED TO THE TRAVEL OR TRANSPORTATION ORDERS.

THE UNDER SECRETARY SAYS THAT THE PROPOSED REVISION OF THE JOINT TRAVEL REGULATIONS WAS APPROVED BY THE ASSISTANT SECRETARY OF DEFENSE, MANPOWER (MILITARY PERSONNEL POLICY), PROVIDED TRAVEL UNDER THE REVISED PARAGRAPH DOES NOT RESULT IN INCREASED COST TO DEPARTMENT OF DEFENSE APPROPRIATIONS. THE UNDER SECRETARY ALSO SAYS THE REVISION IS CONSIDERED IN ACCORD WITH THE PRESIDENT'S MEMORANDUM OF MAY 21, 1966, REQUESTING THAT EXCESS AND NEAR-EXCESS FOREIGN CURRENCIES BE USED BY OFFICIAL GOVERNMENT TRAVELERS WHENEVER POSSIBLE, AND WITH BUREAU OF BUDGET CIRCULAR NO. A-20, REVISED, MAY 21, 1966. HOWEVER, HE SAYS QUESTION HAS ARISEN WHETHER THE PROPOSED REVISION OF PARAGRAPH M2150-2 OF THE JOINT TRAVEL REGULATIONS MAY BE CONSIDERED IN ACCORD WITH SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, AS AMENDED, 46 U.S.C. 1241/A).

SECTION 901 OF THE MERCHANT MARINE ACT OF 1936, 49 STAT. 2015, AS AMENDED, 46 U.S.C. 1241/A), PROVIDES AS FOLLOWS:

ANY OFFICER OR EMPLOYEE OF THE UNITED STATES TRAVELING ON OFFICIAL BUSINESS OVERSEAS OR TO OR FROM ANY OF THE POSSESSIONS OF THE UNITED STATES SHALL TRAVEL AND TRANSPORT HIS PERSONAL EFFECTS ON SHIPS REGISTERED UNDER THE LAWS OF THE UNITED STATES WHERE SUCH SHIPS ARE AVAILABLE UNLESS THE NECESSITY OF HIS MISSION REQUIRES THE USE OF A SHIP UNDER A FOREIGN FLAG: PROVIDED, THAT THE COMPTROLLER GENERAL OF THE UNITED STATES SHALL NOT CREDIT ANY ALLOWANCE FOR TRAVEL OR SHIPPING EXPENSES INCURRED ON A FOREIGN SHIP IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR.

WHILE THAT ACT REFERS TO SHIPS AND DOES NOT MENTION AIRCRAFT, THE REGULATIONS, IN CONSONANCE WITH THE PURPOSE OF THE ACT, LONG HAVE CONTAINED SIMILAR PROVISIONS WITH RESPECT TO THE USE OF VESSELS AND AIRCRAFT OF AMERICAN REGISTRY. IN THIS REGARD, IT MAY BE NOTED THAT THE REQUIREMENT FOR TRAVEL BY MEMBERS OF THE UNIFORMED SERVICE ON VESSELS OR AIRCRAFT OF AMERICAN REGISTRY WAS ENDORSED BY THE CONGRESS IN SENATE CONCURRENT RESOLUTION 53, DATED OCTOBER 1, 1962, 76 STAT. 1428. THAT RESOLUTION PROVIDES THAT WHEN TRAVEL ON OFFICIAL BUSINESS IS TO BE PERFORMED ON CIVIL AIRCRAFT BY LEGISLATIVE AND GOVERNMENT OFFICERS AND EMPLOYEES, THAT SAID TRAVEL BE PERFORMED BY THEM ON UNITED STATES-FLAG AIR CARRIER, EXCEPT WHERE TRAVEL ON OTHER AIRCRAFT (A) IS ESSENTIAL TO THE OFFICIAL BUSINESS CONCERNED, OR (B) IS NECESSARY TO AVOID UNREASONABLE DELAY, EXPENSE, OR INCONVENIENCE.

PARAGRAPH 3.10B/7) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS PROVIDES, HOWEVER, THAT AN EXCEPTION MAY BE MADE TO THE REQUIREMENT TO USE AIRPLANES REGISTERED UNDER THE LAWS OF THE UNITED STATES UNDER THE FOLLOWING CIRCUMSTANCES.

WHERE PAYMENT FOR TRANSPORTATION CAN BE MADE IN EXCESS FOREIGN CURRENCIES PROVIDED NO AMERICAN AIR CARRIER ADEQUATELY SERVING THE POINTS OF TRAVEL WILL ACCEPT THE CURRENCY. THIS PREFERENTAIL USE OF A FOREIGN AIR CARRIER WILL ALSO APPLY TO NEAR EXCESS FOREIGN CURRENCIES TO THE EXTENT THAT AMENDMENTS TO THE STATE DEPARTMENT'S FOREIGN CURRENCY BULLETIN NO. 1 OR SUBSEQUENT FOREIGN CURRENCY BULLETINS MAY PROVIDE FOR THE PAYMENT OF TRANSPORTATION IN THE NEAR-EXCESS CURRENCIES.

WHERE VESSELS OF AMERICAN FLAG REGISTRY ARE AVAILABLE AND IT IS NOT DETERMINED THAT THE USE OF SUCH VESSELS WOULD SERIOUSLY INTERFERE WITH OR PREVENT THE PERFORMANCE OF OFFICIAL BUSINESS, IT IS OUR VIEW THAT SUCH VESSELS ARE REQUIRED BY SECTION 901 OF THE 1936 ACT, AS AMENDED, TO BE USED. AS TO SURFACE VESSELS, THEREFORE, THERE IS NO AUTHORITY FOR THE PROPOSED REGULATION. WITH RESPECT TO THE USE OF FOREIGN AIRCRAFT SERVING EXCESS OR NEAR-EXCESS COUNTRIES WE SEE NO LEGAL OBJECTION TO THE ISSUANCE OF A REGULATION SIMILAR TO PARAGRAPH 3.10B/7) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. THE QUESTION IS ANSWERED ACCORDINGLY.