B-138942, MAY 19, 1977

B-138942, MAY 19, 1977

PRECIS - UNAVAILABLE

DONALD C. COMLISH:

ENCLOSED IS A COPY OF OUR DECISION B-138942 OF TODAY MODIFYING OUR PRIOR HOLDING IN B-138942(3), JANUARY 3, 1977, FLY AMERICAN ACT - HOURS OF TRAVEL. TODAY'S DECISION TAKES INTO ACCOUNT THE CONSIDERATIONS PRESENTED IN YOUR LETTER OF MARCH 28, 1977.

YOUR LETTER SUGGESTS THAT THE JANUARY 3 HOLDING CREATES AN OVERLY BROAD EXCEPTION TO THE REQUIREMENT FOR USE OF CERTIFICATED AIR CARRIER SERVICE IMPOSED BY 49 U.S.C. 1517 AND, FURTHER, TAKES ISSUE WITH APPLICATION TO THE SITUATION OF INTERNATIONAL AIR TRAVEL OF THE LONG STANDING RULE THAT GOVERNMENT TRAVELERS ARE NOT REQUIRED TO TRAVEL DURING HOURS NORMALLY ALLOCATED TO SLEEP. IN ADDITION, YOUR LETTER EXPLAINS THAT THEIR OCCASIONALLY INCONVENIENT SCHEDULES ARE, IN LARGE PART, A FUNCTION OF THE FACT THAT U.S. AIR CARRIERS SCHEDULE THEIR SERVICE TO ACCOMMODATE THE FLOW OF TRAFFIC TO AND FROM THE UNITED STATES.

WE ARE FULLY AWARE OF THE LEGISLATIVE HISTORY BEHIND 49 U.S.C. 1517 AND HAVE TAKEN IT INTO ACCOUNT IN DRAFTING GUIDELINES AND IN RENDERING DECISIONS, INCLUDING TODAY'S, INTERPRETING THE FLY AMERICA ACT.

YOUR ARGUMENT THAT THE LONG-STANDING RULE THAT EMPLOYEES ARE NOT REQUIRED TO TRAVEL DURING HOURS NORMALLY ALLOCATED TO SLEEP HAS NO APPLICATION TO INTERNATIONAL AIR TRAVEL WAS ALSO CONSIDERED IN REACHING TODAY'S DECISION. WE AGREE THAT, IN THE CONTEXT OF TRAVEL BETWEEN THE UNITED STATES AND POINTS LOCATED OUTSIDE THE UNITED STATES, IT IS NOT UNREASONABLE TO EXPECT GOVERNMENT EMPLOYEES TO TRAVEL BETWEEN THE HOURS OF MIDNIGHT AND 6 A.M. AS SUGGESTED IN TODAY'S DECISION, WE ARRIVED AT THIS CONCLUSION BASED ON OUR EVALUATION OF THE SCHEDULES OF CERTIFICATED AIR CARRIERS VIS-A-VIS THOSE OF COMPETING NONCERTIFICATED CARRIERS. HOWEVER, WE BELIEVE THAT THE RULE CONTINUES TO BE APPLICABLE WITH RESPECT TO INTERNATIONAL AIR TRAVEL BETWEEN POINTS, BOTH OF WHICH ARE OUTSIDE THE UNITED STATES. IN SO CONCLUDING, WE CONSIDERED THE COMMENTS AT PAGE 4 OF YOUR LETTER, TOGETHER WITH OUR ANALYSIS OF ALL CERTIFICATED FLIGHTS REQUIRING BOARDING OR DEPLANING BETWEEN MIDNIGHT AND 6 A.M. OR REQUIRING TRAVEL SPANNING THOSE HOURS.

IN THE MAJORITY OF CASES WE FOUND THAT THE TRAVELER EITHER HAD NO ALTERNATIVE TO TAKING THE INCONVENIENT CERTIFICATED FLIGHT, OR, AS AN ALTERNATIVE, COULD USE MORE CONVENIENT DIRECT CERTIFICATED SERVICE OR CONNECTING SERVICES VIA ALL CERTIFICATED CARRIERS. OF THE REMAINING CASES, A SIGNIFICANT PORTION COMMENCE OR TERMINATE IN THE UNITED STATES AND, AS SUCH, WOULD BE CONSIDERED AVAILABLE UNDER TODAY'S DECISION. BASED ON THE OFFICIAL AIRLINE GUIDE FOR MARCH 1977, WE FOUND THAT CERTIFICATED AIR CARRIERS ARE IN FACT AFFECTED BY TODAY'S DECISION ONLY WITH RESPECT TO SOME 37 INDIVIDUAL FLIGHTS PER WEEK. OF THOSE, 28 INVOLVE ELAPSED TRAVEL TIMES OF LESS THAN 4 HOURS. IN THOSE 28 CASES, WE SERIOUSLY QUESTION WHETHER THE ADDITIONAL REVENUES THAT WOULD ACCRUE TO CERTIFICATED CARRIERS FROM THEIR MANDATORY USE WOULD JUSTIFY THE ADDITIONAL PER DIEM AND SALARY EXPENSE INVOLVED OR THE INCONVENIENCE TO THE TRAVELERS.

OUR RECONSIDERATION OF THE JANUARY 3 DECISION ON HOURS OF TRAVEL WAS DELAYED FOR NEARLY 2 MONTHS BASED ON REPRESENTATIONS THAT WE WOULD BE PROVIDED SPECIFIC DATA AS TO THE FLIGHTS AFFECTED BY AND THE COST IMPACT OF THAT DECISION. OTHER THAN A GENERAL REPRESENTATION OF POTENTIAL LOSS TO PAN AMERICAN, WE HAVE BEEN FURNISHED NO SUCH ANALYSIS. WE HAVE BEEN PROVIDED NOTHING THAT WOULD TEND TO SUGGEST THAT TODAY'S DECISION IS OTHER THAN CONSISTENT WITH THE INTENT OF CONGRESS IN ENACTING 49 U.S.C. 1517.