Matter of: Peter Young and Karen Keitkotter File: B-251103 Date: April 5, 1993

B-251103: Apr 5, 1993

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Although the record is not entirely clear as to the basis for that determination. Including that the travel was performed at the beginning of the Persian Gulf conflict. It is considered a sufficient determination that U.S. flag air carriers were "unavailable. BACKGROUND ACDA is an agency of the United States that works closely with the State Department on matters involving arms control and may rely on the State Department for general administrative services.[2] At the time in question here. Mission in Geneva was handling the travel arrangements for the START delegation. Agency officials were concerned for the safety of employees traveling overseas. "if personnel are informed by the ACDA Security Office.

Matter of: Peter Young and Karen Keitkotter File: B-251103 Date: April 5, 1993

CIVILIAN PERSONNEL Travel Overseas travel Travel modes Terrorist threats Two employees of the Arms Control and Disarmament Agency need not be charged the cost of their travel on a foreign flag air carrier. A high- level official of the agency made a specific determination in their case authorizing the foreign flag travel because of a security threat. Although the record is not entirely clear as to the basis for that determination, considering the emergent circumstances, including that the travel was performed at the beginning of the Persian Gulf conflict, it is considered a sufficient determination that U.S. flag air carriers were "unavailable," and therefore the travel did not violate the Fly America Act.

DECISION The Arms Control and Disarmament Agency (ACDA) requests[1] our decision whether two employees assigned to the United States's delegation to the Negotiations on Nuclear and Space Arms (START or NST) may be reimbursed for official travel on a foreign flag airline between Geneva, Switzerland, and Washington, D.C., in the described circumstances. They may.

BACKGROUND

ACDA is an agency of the United States that works closely with the State Department on matters involving arms control and may rely on the State Department for general administrative services.[2] At the time in question here, the travel office of the State Department's U.S. Mission in Geneva was handling the travel arrangements for the START delegation, subject to reimbursement by ACDA for travel of its personnel.

ACDA states that as the Persian Gulf conflict began, agency officials were concerned for the safety of employees traveling overseas, especially because there had been threats against U.S. flag carriers. Accordingly, the Executive Assistant to the Director on January 16, 1991, issued a memorandum authorizing the use of non-contract, non-U.S. flag airlines under limited circumstances. According to the memorandum, "if personnel are informed by the ACDA Security Office, or by some other official channel, that a threat exists against a U.S. Flag carrier by which they contemplate travel," the employees should contact the Office of the Director for specific authority to use a non-contract, non-U.S. flag carrier. The memorandum also states, "It is contemplated that normally such authority will be granted. . . ."

Shortly thereafter a request was received for approval of the START Delegation's travel from Geneva to Washington by foreign carrier during the week of January 21, 1991. The delegation consisted of two ACDA employees, Peter Young and Karen Keitkotter, and seven others traveling under State Department travel orders. By memorandum dated January 17, 1991, the ACDA Executive Officer approved this request, including the travel of the State Department employees provided that Department concurred. The memorandum does not provide any details about the reason for the request.

A State Department official gave initial concurrence to the foreign-flag travel of its employees, but prior to their travel, the State Department rescinded this authority, and the seven employees changed their travel arrangements to a U.S. air carrier.[3] Upon learning of this, the two ACDA employees called their General Counsel's office and were assured that their travel on a foreign air carrier had been approved, and therefore they proceeded to travel on the foreign carrier.

Subsequently, the U.S. Mission in Geneva paid the bills for the foreign flag airline service used by the ACDA employees, but raised questions about the use of the foreign flag carrier because of the Fly America Act, discussed below, which requires employees to travel on U.S. flag airlines whenever possible. As a result, Mr. Young, who has since left the government, had the cost of the tickets deducted from his final paycheck over his protest. Ms. Keitkotter's travel voucher is still pending settlement by the agency.

In view of the circumstances of this travel, ACDA now proposes to allow reimbursement of Mr. Young and Ms. Keitkotter, provided we approve.

OPINION

Generally, the Fly America Act, 49 U.S.C. App. 1517, requires the use of service provided by U.S. flag air carriers for government-financed travel to the extent such service is available. The guidelines implementing the act restate the requirement to use U.S. flag carriers unless travel by a foreign-flag carrier is a matter of "necessity," which is defined to be "if a U.S. flag air carrier otherwise available cannot provide the air transportation needed, or use of U.S. flag air service will not accomplish the agency's mission."[4]

While the Fly America Act requires agencies to "take such steps as may be necessary" to ensure compliance with the Act, we have recognized that agencies have broad authority to determine whether U.S. flag service otherwise "available" can accomplish the agency's mission. We have also recognized that the term "available" includes the assumption that the service will be provided without unreasonable risk to the traveler's safety, and such risk may be due to threats of terrorist attack. See 68 Comp.Gen. 633 (1989), in which we approved guidelines proposed by the Drug Enforcement Agency to determine when a security threat would justify the use of non-U.S. flag airline. Those guidelines require that the decision on the use of foreign flag airlines be made at the highest level on a case-by-case basis, no blanket requests would be considered, and approval would be granted only upon consideration of individual written requests supported by evidence of threats to specific personnel and accompanied by the latest Department of State security threat analysis. Id. at 634.

The procedures announced in the ACDA Executive Assistant's January 16, 1991, memorandum do not require a written request or that the request be accompanied by information from the Department of State, whose opinion on security matters should be afforded great weight. Also, it is not clear on what information the Executive Director based his approval for the use of a foreign flag carrier in this case. However, the decision to approve the use of a foreign flag air carrier was made at a high level--the Executive Assistant reports to the Director of the agency--and apparently was based on the emergent circumstances and particular facts of this specific request, including the facts that the Gulf War had just begun and the employees' travel was imminent. Accordingly, we consider that the use of the foreign flag carrier was sufficiently justified so as not to constitute a violation of the Fly America act in this case.

Therefore, although we suggest that in the future ACDA follow more specific procedures, such as those approved in the DEA case cited above,[5] Mr. Young and Ms. Keitkotter need not be charged for the foreign flag travel at issue here. Ms. Keitkotter's travel voucher should be settled accordingly, and refund should be made to Mr. Young for the amount of the fare collected from him.

1. ACDA's General Counsel submitted the request.

2. See 22 U.S.C. Secs. 2561 - 2568, and 2581 (1988).

3. It appears that the State Department's action was based on its view that the requirement to use a U.S. flag carrier could be waived only if a specific, rather than general, threat were received, and apparently it was not aware of a specific threat.

4. See Fly America Act Guidelines restated in Federal Travel Regulations, Sec. 301-3.6, and 6 Foreign Affairs Manual Sec. 135.

5. The agency is also reminded that the Fly America Guidelines require that each voucher covering a claim for travel via a foreign flag carrier be accompanied by a certificate certifying that the use of such carrier was necessary and the reasons therefor. No such certificates were provided in the material submitted to us in this case.