B-210293, JUN 13, 1983

B-210293: Jun 13, 1983

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ALLEGING THAT THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID) MAY HAVE VIOLATED 49 U.S.C. S.) AIR CARRIERS COULD HAVE TRANSPORTED THIS EQUIPMENT. EITHER WERE NOT ADVISED OF THE SHIPMENT BY AID. OR WERE NOT PERMITTED TO DEMONSTRATE TO AID THAT THEY HAD THE CAPACITY TO TRANSPORT THE EQUIPMENT. ALTHOUGH RECOGNIZING THAT THERE WAS SOME DISPUTE WHETHER OR NOT U. S. AIR CARRIER NEITHER CAN SERVE AN AGENCY'S TRANSPORTATION NEEDS NOR ACCOMPLISH ITS MISSION IS TO BE MADE BY THE AGENCY AND WILL NOT BE QUESTIONED BY OUR OFFICE UNLESS IT IS ARBITRARY AND CAPRICIOUS. WE ALSO RECOGNIZED THAT FOREIGN AIR CARRIER SERVICE MAY BE NECESSARY TO ACCOMPLISH THE AGENCY'S MISSION IF ITS USE IS REQUIRED TO AVOID AN UNREASONABLE RISK TO THE TRAVELER'S SAFETY.

B-210293, JUN 13, 1983

PRECIS-UNAVAILABLE

THE HONORABLE NORMAN Y. MINETA CHAIRMAN, SUBCOMMITTEE ON AVIATION COMMITTEE ON PUBLIC WORKS AND TRANSPORTATION, HOUSE OF REPRESENTATIVES:

WE REFER TO YOUR LETTER OF MARCH 9, 1983, EXPRESSING INTEREST IN OUR RESPONSE TO AN INQUIRY FROM MR. EDWARD J. DRISCOLL, PRESIDENT OF THE NATIONAL AIR CARRIER ASSOCIATION, ALLEGING THAT THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID) MAY HAVE VIOLATED 49 U.S.C. SEC. 1517 (1976), AS AMENDED, THE FLY AMERICA ACT, BY USING A FOREIGN FLAG CARRIER TO SHIP SEWER-CLEANING UNITS FROM CLEVELAND TO TUNISIA. MR. DRISCOLL CONTENDED THAT THREE UNITED STATES (U. S.) AIR CARRIERS COULD HAVE TRANSPORTED THIS EQUIPMENT, BUT EITHER WERE NOT ADVISED OF THE SHIPMENT BY AID, OR WERE NOT PERMITTED TO DEMONSTRATE TO AID THAT THEY HAD THE CAPACITY TO TRANSPORT THE EQUIPMENT.

AID ADVISED THAT IT SOLICITED AMERICAN AIR CARRIERS, BUT IT DETERMINED THAT TWO OF THE AMERICAN CARRIERS OFFERED INADEQUATE AIRCRAFT TO ACCOMMODATE THE CARGO AND THE THIRD AIRLINE COULD NOT PROVIDE AN AIRCRAFT WITHIN THE TIME REQUIREMENTS. AID FURTHER ADVISED THAT THE CIVIL AERONAUTICS BOARD (CAB) APPROVED AN AUTHORIZATION FOR THE FOREIGN AIR CARRIER TO TRANSPORT THE SHIPMENT, ALTHOUGH RECOGNIZING THAT THERE WAS SOME DISPUTE WHETHER OR NOT U. S. CARRIERS HAD BEEN CONTACTED BY AID OR COULD SUPPLY THE NEEDED CARGO CAPACITY. CAB STATED THAT THE SEVERITY OF THE EMERGENCY IN TUNISIA AND THE CONSEQUENT CRITICAL NEED FOR PROMPT TRANSPORT OF THE RELIEF MATERIAL DID NOT PROVIDE SUFFICIENT TIME TO RESOLVE THESE DISPUTES SATISFACTORILY. AID ALSO CONTENDED THAT SINCE SECTION 491(B) OF THE FOREIGN ASSISTANCE ACT, 22 U.S.C. SEC. 2292(B) (1976), STATES THAT DISASTER ASSISTANCE MAY BE PROVIDED "NOTWITHSTANDING ANY OTHER PROVISION OF THIS OR ANY OTHER ACT," THIS LAW EXEMPTS THE TRANSPORTATION OF DISASTER RELIEF FROM THE FLY AMERICA ACT.

IN OUR INFORMAL OPINION TO MR. DRISCOLL, WE POINTED OUT THAT THIS OFFICE HAS HELD THAT A DETERMINATION THAT A U. S. AIR CARRIER NEITHER CAN SERVE AN AGENCY'S TRANSPORTATION NEEDS NOR ACCOMPLISH ITS MISSION IS TO BE MADE BY THE AGENCY AND WILL NOT BE QUESTIONED BY OUR OFFICE UNLESS IT IS ARBITRARY AND CAPRICIOUS. SEE EMPLOYEE OF OFFICE OF DEPENDENTS SCHOOLS - MEDICAL NECESSITY FOR USE OF FOREIGN AIR CARRIER, B-202413, NOVEMBER 16, 1981. IN OUR DECISION, JOINT CHIEFS OF STAFF, 57 COMP.GEN. 519, 522 (1978), WE ALSO RECOGNIZED THAT FOREIGN AIR CARRIER SERVICE MAY BE NECESSARY TO ACCOMPLISH THE AGENCY'S MISSION IF ITS USE IS REQUIRED TO AVOID AN UNREASONABLE RISK TO THE TRAVELER'S SAFETY. IT WAS OUR VIEW THAT THESE DECISIONS WERE APPLICABLE TO THIS CASE CONCERNING THE SHIPMENT OF DISASTER RELIEF CARGO. IN VIEW OF THE FINDINGS BY AID AND CAB, WE DID NOT FIND THAT THE DECISION TO USE A FOREIGN FLAG CARRIER WAS ARBITRARY AND CAPRICIOUS.

IN RESPONSE TO YOUR INQUIRY CONCERNING AID'S POSITION THAT THE FOREIGN ASSISTANCE ACT PROVISION PROVIDES AN EXCEPTION TO APPLICATION OF THE FLY AMERICA ACT, WE OBSERVE THE FOLLOWING. THE FOREIGN ASSISTANCE ACT AUTHORIZES THE PRESIDENT TO FURNISH INTERNATIONAL DISASTER RELIEF AND REHABILITATION, "NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER OR ANY OTHER ACT." AID STATES THAT THE CONGRESS INTENDED THE AUTHORITY TO FURNISH DISASTER ASSISTANCE TO BE QUITE BROAD. IT REFERS TO THE STATEMENT OF CONGRESSIONAL POLICY UNDER 22 U.S.C. SEC. 2292(A), IN WHICH THE CONGRESS RECOGNIZED THE NEED FOR PROMPT U. S. DISASTER ASSISTANCE AS AN EXPRESSION OF U. S. HUMANITARIAN CONCERNS. AID ALSO CITES THE FOLLOWING STATEMENT FROM THE SENATE REPORT ON SECTION 491(B) (22 U.S.C. SEC. 2292(B)), ACCOMPANYING THE BILL, THAT:

"'THE BILL REFLECTS THE COMMITTEE'S BELIEF THAT, INSOFAR AS POSSIBLE, ECONOMIC AND DISASTER ASSISTANCE SHOULD BE INSULATED FROM TRADITIONAL POLITICAL CONSIDERATIONS AND THE VICISSITUDE OF THE DAY-TO-DAY CONDUCT OF FOREIGN POLICY.'

"S.REP. NO. 406, 94TH CONG., 1ST SESS. 10, REPRINTED IN 1975 U. S. CONG. AND AD, NEWS 1651, 1659."

AID ALSO STATES THAT IT "WILL CONTINUE TO MAKE EVERY EFFORT TO MAKE USE OF U. S.-FLAG AIR CARRIERS WHENEVER POSSIBLE," NOTWITHSTANDING THE PROVISIONS OF THE FOREIGN ASSISTANCE ACT AND, IN THE CASE RAISED BY MR. DRISCOLL IN HIS LETTER, AN EFFORT WAS MADE TO FIND A DOMESTIC CARRIER WHICH MET THE AGENCY'S NEEDS.

AID'S EXEMPTION FROM THE FLY AMERICA ACT WOULD CLEARLY APPLY WHERE ADHERENCE TO ITS REQUIREMENTS WOULD INTERFERE WITH THE FURNISHING OF DISASTER RELIEF. CONGRESS WANTED DISASTER ASSISTANCE TO BE FURNISHED, "NOTWITHSTANDING *** ANY OTHER ACT." ON THE OTHER HAND, WHERE RELIEF CAN BE FURNISHED BY DOMESTIC CARRIERS WITHOUT JEOPARDIZING THE DISASTER RELIEF PROGRAM, WE DO NOT THINK CONGRESS INTENDED TO PERMIT AID TO EXERCISE THE EXEMPTION AUTHORITY. THUS, WE AGREE WITH AID THAT WHENEVER RELIEF CAN BE FURNISHED AS NEEDED USING A DOMESTIC CARRIER, THE DOMESTIC CARRIER SHOULD BE USED.