B-138942, MAY 30, 1978

B-138942, MAY 30, 1978

1. SECTION 5 OF FLY AMERICA ACT WAS INTENDED, AMONG OTHER THINGS, TO HELP CORRECT GOVERNMENT'S GENERALLY UNFAVORABLE BALANCE OF PAYMENTS DEFICIT BY AVOIDING UNNECESSARY PAYMENTS TO FOREIGN AIR CARRIERS. 2. PRACTICE OF PAYING CASH IN LIEU OF FURNISHING GOVERNMENT TRANSPORTATION REQUESTS (GTRS) FOR RETURN TRAVEL OF OVERSEAS VOLUNTEERS UPON COMPLETION OF SERVICE, APPROVED IN 42 COMP.GEN. 443 (1963), WAS DISCONTINUED IN 1969 FOR THOSE VOLUNTEERS IN COUNTRIES DESIGNATED BY TREASURY DEPARTMENT AS "EXCESS" OR "NEAR-EXCESS" FOREIGN CURRENCY COUNTRIES BECAUSE IT WAS HAVING AN UNDESIRED EFFECT ON GOVERNMENT'S BALANCE OF PAYMENTS DEFICIT. 3. PRACTICE OF PAYING CASH IN LIEU OF FURNISHING GTRS FOR RETURN TRAVEL OF OVERSEAS VOLUNTEERS UPON COMPLETION OF SERVICE MAY BE CONTINUED AS LONG AS ACTION TAKES APPROPRIATE MEASURES TO DETERMINE THAT ITS REVISED REGULATIONS ARE EFFECTING INTENDED PURPOSE OF INSURING COMPLIANCE WITH FLY AMERICA ACT.

RETURN TRAVEL OF ACTION'S OVERSEAS VOLUNTEERS UPON COMPLETION OF SERVICE:

THE ASSOCIATE DIRECTOR FOR INTERNATIONAL OPERATIONS OF ACTION REQUESTS AN ADVANCE DECISION WHETHER PROPOSED REGULATIONS CONCERNING THE RETURN TRAVEL OF ACTION'S VOLUNTEERS UPON COMPLETION OF OVERSEAS SERVICE ARE CONSISTENT WITH THE INTENT OF SECTION 5 OF THE INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES ACT OF 1974, 49 U.S.C. 1517 (SUPP. V, 1975) (FLY AMERICA ACT). SINCE REQUESTS FOR DECISIONS IN MATTERS SUCH AS THIS SHOULD BE APPLIED FOR BY THE HEAD OF A DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT, THE SUBMISSION WILL BE TREATED AS A REQUEST FOR AN ADVANCE DECISION BY THE DIRECTOR OF ACTION, AND ANSWERED ACCORDINGLY. 55 COMP. GEN. 52 (1975).

THE PROPOSED REGULATIONS REFLECT ACTION'S CONTINUING BELIEF THAT TRAVEL IS A VALUABLE ADJUNCT TO THE TOTAL VOLUNTEER EXPERIENCE. THUS, VOLUNTEERS WHO HAVE COMPLETED THEIR SERVICE MAY ELECT TO RECEIVE, IN LIEU OF AN AIR TICKET PURCHASED WITH A GOVERNMENT TRANSPORTATION REQUEST (GTR), A CASH PAYMENT EQUIVALENT IN AMOUNT TO THE COST OF THE ECONOMY CLASS JET FARE TO THEIR HOME OF RECORD. THESE FUNDS MAY BE USED TO COVER THE COST OF TRANSPORTATION BY MEANS OTHER THAN AIR TRAVEL, THE COST OF AIR TRAVEL, SUBJECT TO CERTAIN CONDITIONS, OR FOR ANY OTHER PURPOSE ELECTED BY THE VOLUNTEER.

IN 42 COMP.GEN. 443 (1963), OUR OFFICE APPROVED THE PRACTICE OF PAYING AGENCY VOLUNTEERS - AT THE CONCLUSION OF THEIR PERIODS OF SERVICE OVERSEAS - A CASH ALLOWANCE IN AN AMOUNT EQUIVALENT TO THE MINIMUM CLASS OF JET AIR FARE FOR DIRECT TRAVEL FROM THE POINT OVERSEAS WHERE THEIR SERVICES ARE TERMINATED TO THEIR HOMES IN THE UNITED STATES IN LIEU OF FURNISHING THEM GTRS FOR THEIR TRANSPORTATION. THE PRACTICE WAS APPROVED AS AN ESSENTIAL PROCEDURE IN IMPLEMENTING THE PURPOSES AND OBJECTIVES OF THE PEACE CORPS ACT, 22 U.S.C. 2501, ET. SEQ., AND IS COVERED IN THE PROPOSED REGULATIONS. HOWEVER, THE APPROVAL OF THE PRACTICE OCCURRED BEFORE ENACTMENT OF THE FLY AMERICA ACT.

IN 1969 THE PEACE CORPS RECOGNIZED THAT THE PRACTICE OF PAYING ITS VOLUNTEERS A CASH ALLOWANCE, IN LIEU OF FURNISHING THEM GTRS PURCHASED WITH UNITED STATES HOLDINGS OF A FOREIGN COUNTRY'S CURRENCY, WAS HAVING AN UNDESIRED EFFECT ON THE UNITED STATES BALANCE OF PAYMENTS IN THOSE COUNTRIES DESIGNATED BY THE TREASURY DEPARTMENT AS "EXCESS" OR "NEAR EXCESS" IN TERMS OF UNITED STATES HOLDINGS OF THAT PARTICULAR COUNTRY'S CURRENCY. THEREFORE, IN A LETTER DATED JUNE 16, 1969, TO THE CHAIRMAN OF THE HOUSE COMMITTEE ON GOVERNMENT OPERATIONS, THE PEACE CORPS STATED THAT THE PRACTICE WOULD NO LONGER BE AVAILABLE TO VOLUNTEERS IF THEY WERE IN COUNTRIES DESIGNATED "EXCESS" OR "NEAR-EXCESS" AT THE END OF THEIR ENROLLMENT. THIS CONCERN IS RECOGNIZED AND CARRIED OVER IN THE PROPOSED REGULATIONS. IT IS SIMPLY RECOGNIZED THAT IT IS MORE IMPORTANT TO POSITIVELY AFFECT THE UNITED STATES BALANCE OF PAYMENTS THAN TO CONTINUE A PRACTICE IN LIMITED SITUATIONS THAT FURTHERS THE PURPOSES AND OBJECTIVES OF THE PEACE CORPS ACT.

SECTION 5 OF THE FLY AMERICA ACT, AS WELL AS THE OTHER SECTIONS, WAS INTENDED TO CORRECT A GENERALLY UNFAVORABLE UNITED STATES INTERNATIONAL AIRLINE ECONOMIC SITUATION CAUSED IN PART BY CERTAIN UNFAIR COMPETITIVE PRACTICES OF FOREIGN GOVERNMENTS, SUCH AS PROVIDING SUBSIDIES AND PREFERENCES TO THEIR OWN AIRLINES. SECTION 5 REQUIRES THE USE OF UNITED STATES-FLAG AIR CARRIERS TO TRANSPORT GOVERNMENT-FINANCED SHIPMENTS OF PERSONS OR PROPERTY IN INTERNATIONAL AIR TRANSPORTATION TO THE EXTENT THAT THE UNITED STATES-FLAG AIR CARRIERS ARE "AVAILABLE."

IT IS ALSO CLEAR THAT THE ACT'S PROVISIONS WERE INTENDED TO HELP CORRECT THE GOVERNMENT'S GENERALLY UNFAVORABLE BALANCE OF PAYMENTS DEFICIT BY AVOIDING UNNECESSARY PAYMENTS TO FOREIGN AIR CARRIERS. SEE S. REP. NO. 93 -1257, 93RD CONG., 2D SESS. 3, . (1974) ON S. 3481, WHICH BECAME THE FLY AMERICA ACT. THIS IS THE SAME CONSIDERATION WHICH HAS MADE THE AGENCY SUSPEND SINCE 1969 IN "EXCESS" OR "NEAR-EXCESS" FOREIGN CURRENCY COUNTRIES THE PRACTICE OF PAYING CASH IN LIEU OF FURNISHING GTRS PURCHASED WITH UNITED STATES HOLDINGS OF THE FOREIGN COUNTRIES' CURRENCY FOR RETURN TRAVEL OF VOLUNTEERS UPON COMPLETION OF SERVICE.

THE PROPOSED REGULATIONS CONTAIN THE REQUIREMENT THAT EVERY VOLUNTEER ELECTING TO RECEIVE CASH PAYMENTS SIGN THIS STATEMENT:

"I HAVE BEEN ADVISED THAT THE INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES ACT OF 1974 (P.L. 93-623) IS APPLICABLE TO FUNDS PROVIDED TO ME FOR AIR TRANSPORTATION TO MY HOME OF RECORD. I UNDERSTAND THAT IF THESE GOVERNMENT SUPPLIED FUNDS ARE EXPENDED FOR AIR TRANSPORTATION ON OTHER THAN AN AMERICAN-FLAG AIR CARRIER, EXCEPT BETWEEN POINTS WHERE NO AMERICAN-FLAG AIRLINE OPERATES, OR WHERE OTHER JUSTIFICATION, SUCH AS UNREASONABLE DELAY, EXISTS, IT MAY RESULT IN MY BEING HELD PERSONALLY LIABLE FOR THE COST OF THE UNJUSTIFIED FOREIGN FLAG TRANSPORTATION."

THE STATEMENT IS INTENDED TO EFFECT THE VOLUNTEERS' USE OF UNITED STATES- FLAG AIR CARRIERS, TO THE EXTENT THAT THE VOLUNTEERS USE AIR TRANSPORTATION ON THEIR RETURN TRIP, WHICH OF COURSE WOULD HAVE A POSITIVE INFLUENCE ON UNITED STATES BALANCE OF PAYMENTS SINCE THE DOLLAR PAYMENT FOR TRANSPORTATION CHARGES WOULD GO TO A UNITED STATES FLAG AIR CARRIER RATHER THAN TO A FOREIGN AIR CARRIER. THE STATEMENT WOULD CERTAINLY MAKE VOLUNTEERS AWARE THAT THEY WERE TO USE UNITED STATES-FLAG AIR CARRIERS AND THAT THEY MAY BE HELD PERSONALLY LIABLE IF THEY FAIL TO USE THEM. HOWEVER, SINCE THE VOLUNTEERS RECEIVING THE CASH PAYMENT WOULD ALREADY HAVE RECEIVED THEIR FINAL PROCESSING FROM ACTION BEFORE BEING PAID IN CASH, THERE IS A PROBLEM OF DETERMINING WHETHER THE VOLUNTEERS' SIGNING OF THE STATEMENT EFFECTS ITS INTENDED PURPOSE.

WE BELIEVE THAT ACTION IS ENTITLED TO THE PRESUMPTION, AT LEAST AT THIS POINT, THAT THE VOLUNTEERS WILL USE UNITED STATES-FLAG AIR CARRIERS. WOULD NOT OBJECT TO THE LONG APPROVED PRACTICE OF PAYING CASH IN LIEU OF FURNISHING GTRS BECAUSE OF THE POSSIBILITY THAT SOME VOLUNTEERS MAY IN FACT USE FOREIGN AIR CARRIERS FOR THEIR RETURN HOME WHERE THERE WERE AVAILABLE UNITED STATES-FLAG AIR CARRIERS. HOWEVER, ACTION HAS RESPONSIBILITY BEYOND REQUIRING VOLUNTEERS TO SIGN THE PROPOSED STATEMENT. SECTION 5 OF THE FLY AMERICA ACT STATES THAT "*** AGENCIES SHALL TAKE SUCH STEPS AS MAY BE NECESSARY TO ASSURE THAT ***" AVAILABLE UNITED STATES-FLAG AIR CARRIERS ARE USED. THEREFORE, ACTION SHOULD TAKE APPROPRIATE MEASURES TO DETERMINE WHETHER THE SIGNING OF THE STATEMENT EFFECTS ITS INTENDED PURPOSE. FOR EXAMPLE, ACTION COULD FURNISH VOLUNTEERS WITH FORMS TO BE COMPLETED UPON THEIR RETURN DESCRIBING THEIR TRAVEL.

ACTION ALSO SHOULD CONSIDER THESE EDITORIAL CHANGES:

1. THE REFERENCES IN PARAGRAPHS C. AND C.1 TO THE FLY AMERICA ACT SHOULD READ, RESPECTIVELY, "SECTION 5 OF THE INTERNATIONAL AIR TRANSPORTATION FAIR COMPETITIVE PRACTICES ACT OF 1974" AND "SECTION 5."

2. IN THE QUOTED STATEMENT IN PARAGRAPH C.1 WE SUGGEST ADDING THE PHRASE "AS DEFINED IN FEDERAL TRAVEL REGULATIONS (FPMR 101-7, SECTION 1 3.6, TEMP. REG. A-11, SUPP. ON, APRIL 29, 1977)." AFTER THE WORD "DELAY" TO MORE PRECISELY CONVEY TO THE VOLUNTEER WHAT IS MEANT BY "UNREASONABLE DELAY."

3. IN PARAGRAPH C.1 WE SUGGEST DELETING THE PHRASE "(AND CONVENIENTLY SCHEDULED)" BECAUSE IT IS INCONSISTENT WITH SECTION 1-3.6 OF THE FEDERAL PROPERTY MANAGEMENT REGULATIONS.