B-186007, NOV 15, 1976

B-186007: Nov 15, 1976

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REQUIREMENT OF SECTION 5 OF THE INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES ACT OF 1974 FOR USE OF CERTIFICATED AIR SERVICE FOR GOVERNMENT- FINANCED COMMERCIAL FOREIGN AIR TRAVEL IS MANDATORY STATUTORY PROVISION WITH RESPECT TO WHICH GOVERNMENT TRAVELERS ARE DEEMED TO BE ON NOTICE. JACOBIUS WAS DENIED REIMBURSEMENT FOR TRAVE ABOARD THE FOREIGN AIRLINE. THE SO-CALLED "FLY AMERICA" REQUIREMENT OF SECTION 5 WAS IMPLEMENTED BY THE COMPTROLLER GENERAL'S "GUIDELINES FOR IMPLEMENTATION OF SECTION 5 OF THE INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES ACT OF 1974. 49 U.S.C. 1371 (1970)) MUST BE USED FOR ALL GOVERNMENT-FINANCED COMMERCIAL FOREIGN AIR TRANSPORTATION OF PERSONS OR PROPERTY IF SERVICE PROVIDED BY THOSE CARRIERS IS 'AVAILABLE.'" MR.

B-186007, NOV 15, 1976

EMPLOYEE WHO CLAIMS THAT HE USED FOREIGN AIR CARRIER SERVICE BECAUSE HE CONSTRUED PHRASE "CERTIFICATED AIR CARRIERS (THOSE HOLDING CERTIFICATES UNDER SECTION 401 OF THE FEDERAL AVIATION ACT OF 1958, 49 U.S.C. 1371 (1970))" AS PERMITTING USE OF CERTIFIED AIR CARRIERS REGARDLESS OF NATIONALITY, MAY NOT BE REIMBURSED FOREIGH AIR FARE. REQUIREMENT OF SECTION 5 OF THE INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES ACT OF 1974 FOR USE OF CERTIFICATED AIR SERVICE FOR GOVERNMENT- FINANCED COMMERCIAL FOREIGN AIR TRAVEL IS MANDATORY STATUTORY PROVISION WITH RESPECT TO WHICH GOVERNMENT TRAVELERS ARE DEEMED TO BE ON NOTICE.

ARNOLD J. JACOBIUS - TRAVEL BY FOREIGN AIR CARRIER:

BY LETTER DATED FEBRUARY 26, 1976, THE DEPUTY LIBRARIAN OF CONGRESS REQUESTS A DECISION WHETHER MR. ARNOLD J. JACOBIUS MAY BE REIMBURSED $221.60 EXPENDED BY HIM FOR AIR TRAVEL BETWEEN FRANKFURT, GERMANY, AND LONDON, ENGLAND. INCIDENT TO A TEMPORARY DUTY ASSIGNMENT IN LONDON, MR. JACOBIUS OBTAINED AIR TRANSPORTATION ABOARD LUFTHANSA AIRLINES, A FOREIGN AIR CARRIER.

IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR, SECTION 5 OF THE INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES ACT OF 1974, 49 U.S.C. 1517 (SUPP. IV, 1974), PROHIBITS EXPENDITURES OF APPROPRIATED FUNDS FOR GOVERNMENT-FINANCED COMMERCIAL FOREIGN AIR TRANSPORTATION ABOARD AIR CARRIERS NOT CERTIFICATED UNDER SECTION 401 OF THE FEDERAL AVIATION ACT OF 1958, AS AMENDED. ACCORDINGLY, MR. JACOBIUS WAS DENIED REIMBURSEMENT FOR TRAVE ABOARD THE FOREIGN AIRLINE.

AT THE TIME OF MR. JACOBIUS' TRAVEL, THE SO-CALLED "FLY AMERICA" REQUIREMENT OF SECTION 5 WAS IMPLEMENTED BY THE COMPTROLLER GENERAL'S "GUIDELINES FOR IMPLEMENTATION OF SECTION 5 OF THE INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES ACT OF 1974," ISSUED JUNE 17, 1975. INSOFAR AS HERE PERTINENT THOSE GUIDELINES PROVIDE:

"1. CERTIFICATED AIR CARRIERS (THOSE HOLDING CERTIFICATES UNDER SECTION 401 OF THE FEDERAL AVIATION ACT OF 1958, 49 U.S.C. 1371 (1970)) MUST BE USED FOR ALL GOVERNMENT-FINANCED COMMERCIAL FOREIGN AIR TRANSPORTATION OF PERSONS OR PROPERTY IF SERVICE PROVIDED BY THOSE CARRIERS IS 'AVAILABLE.'"

MR. JACOBIUS DOES NOT CONTEND THAT CERTIFICATED AIR SERVICE WAS UNAVAILABLE BETWEEN FRANKFURT AND LONDON. RATHER, HE ATTRIBUTES HIS ERRONEOUS SCHEDULING ABOARD A FOREIGN AIRLINE TO A MISUNDERSTANDING OF THE LANGUAGE OF THE JUNE 17 GUIDELINES. HE EXPLAINS THAT HE UNDERSTOOD THE REQUIREMENT FOR USE OF "CERTIFICATED AIR CARRIERS HOLDING CERTIFICATES UNDER SECTION 401 OF THE FEDERAL AVIATION ACT OF 1958" AS PERMITTING THE USE OF "CERTIFIED COMMERCIAL AIR CARRIERS REGARDLESS OF NATIONALITY, IN CONTRACT TO NON-REGISTERED UNAUTHORIZED PLANES."

AS IS POINTED OUT BY MR. JACOBIUS, THE COMPTROLLER GENERAL'S GUIDELINES DO NOT USE THE PHRASE "AMERICAN AIRLINES" IN DEFINING THE PHRASE "CERTIFICATED AIR CARRIERS." HE FEELS THAT ADDITIONAL CLARIFICATION IN THIS REGARD IS NEEDED TO POINT OUT THAT THE CERTIFICATION PROCEDURES OF 49 U.S.C. 1371 APPLY ONLY TO AMERICAN AIR CARRIERS.

IN SETTING FORTH PROCEDURES FOR CERTIFICATION, SUBSECTION 1371(A) OF TITLE 49 OF THE UNITED STATES CODE PROVIDES:

"NO AIR CARRIER SHALL ENGAGE IN ANY AIR TRANSPORTATION UNLESS THERE IS IN FORCE A CERTIFICATE ISSUED BY THE BOARD AUTHORIZING SUCH AIR CARRIER TO ENGAGE IN SUCH TRANSPORTATION."

SECTION 1301(3) OF TITLE 49 DEFINES THE TERM "AIR CARRIER" AS "ANY CITIZEN OF THE UNITED STATES WHO UNDERTAKES, WHETHER DIRECTLY OR INDIRECTLY OR BY A LEASE OR ANY OTHER ARRANGEMENT, TO ENGAGE IN AIR TRANSPORTATION." THE PROVISIONS OF THE FEDERAL AVIATION ACT OF 1958, AS AMENDED, APPLI-ABLE TO FOREIGN AIR CARRIERS, ARE THOSE IN 49 U.S.C. 1372. THUS, THE PHRASE "CERTIFICATED AIR CARRIERS HOLDING CERTIFICATES UNDER 49 U.S.C. 1371 (1970)" EXCLUDES FOREIGN CARRIERS. IN THE CONTEXT OF THE COMPTROLLER GENERAL'S GUIDELINES, THE USE OF THE PHRASE "AMERICAN AIRLINES" SUGGESTED BY MR. JACOBIUS WAS AVOIDED INASMUCH AS AIRLINES OF AMERICAN CITIZENRY NEED NOT NECESSARILY BE CERTIFICATED.

THE REQUIREMENT OF SECTION 5 FOR THE USE OF CERTIFICATED AIR CARRIERS FOR THE PERFORMANCE OF GOVERNMENT-FINANCED COMMERCIAL FOREIGN AIR TRANSPORTATION AND TRAVEL IS STATUTORY IN NATURE AND INDIVIDUALS REQUIRING COMMERCIAL FOREIGN AIR TRANSPORTATION OR TRAVEL ARE DEEMED TO BE ON NOTICE OF ITS REQUIREMENTS. MR. JACOBIUS HAS INDICATED THAT HE HAD RECEIVED A COPY OF THE COMPTROLLER GENERAL'S JUNE 17 GUIDELINES AND ATTEMPTED TO COMPLY WITH ITS REQUIREMENTS IN SCHEDULING HIS TRAVEL. WHILE MR. JACOBIUS' GOOD FAITH IN ATTEMPTING COMPLIANCE IS NOT QUESTIONED, WE BELIEVE THAT THE LANGUAGE OF THE GUIDELINES FAIRLY REITERATES THE STATUTORY LANGUAGE OF SECTION 5 REQUIRING USE OF AIR CARRIERS CERTIFICATED UNDER THE FEDERAL AVIATION ACT OF 1958, AS AMENDED. BECAUSE THE PROHIBITION AGAINST USE OF NON-CERTIFICATED AIR CARRIERS IS STATUTORY, ITS PROVISIONS ARE MANDATORY AND MAY NOT BE WAIVED.

INASMUCH AS THE AVAILABILITY OF CERTIFICATED AIR CARRIER SERVICE IS CONCEDED BY MR. JACOBIUS, WE FIND NO BASIS FOR REIMBURSEMENT TO HIM OF AMOUNTS PAID FOR TRANSPORTATION BETWEEN FRANKFURT AND LONDON ABOARD LUFTHANSA AIRLINES.