B-138942.OM, AUG 25, 1980

B-138942.OM, AUG 25, 1980

SUBJECT: REQUEST FOR DECISION ON APPLICABILITY OF THE FLY AMERICA ACT TO THE UNITED STATES POSTAL SERVICE - B-138942-O.M.

ASSISTANT DIRECTOR, FGMSD - JOHN J. CRONIN, JR.:

THIS IS IN RESPONSE TO YOUR REQUEST TO BE ADVISED WHETHER THE UNITED STATES POSTAL SERVICE MUST COMPLY WITH THE PROVISIONS OF THE FLY AMERICA ACT (49 U.S.C. SEC. 1517 (1976)) AND, IF SO, WHETHER THE COMPTROLLER GENERAL MAY DISALLOW EXPENDITURES FOR EMPLOYEE TRAVEL ON NONCERTIFICATED AIR CARRIERS.

THE PURPOSE OF THE FLY AMERICA ACT IS TO ENSURE THAT GOVERNMENT REVENUES DO NOT BENEFIT FOREIGN AIR CARRIERS WHEN SERVICE ON CERTIFICATED UNITED STATES AIR CARRIERS IS AVAILABLE. 56 COMP.GEN. 209, 213 (1977). ACCORDINGLY, THE ACT REQUIRES THE COMPTROLLER GENERAL TO DISALLOW EXPENDITURES FROM FUNDS "APPROPRIATED, OWNED, CONTROLLED, GRANTED, OR CONDITIONALLY GRANTED OR UTILIZED BY OR OTHERWISE ESTABLISHED FOR THE ACCOUNT OF THE UNITED STATES" IN THE ABSENCE OF SATISFACTORY PROOF OF THE NECESSITY THEREFOR. 57 COMP.GEN. 546 (1978). SINCE ITS PROVISIONS ARE NOT LIMITED TO EXPENDITURES FROM APPROPRIATED FUNDS, IT MIGHT APPEAR THAT THE BROAD LANGUAGE OF THE ACT, IN COVERING "ANY EXECUTIVE DEPARTMENT OR OTHER AGENCY OR INSTRUMENTALITY OF THE UNITED STATES," EXTENDS TO THE POSTAL SERVICE. IF THIS LANGUAGE WERE APPLICABLE, THE COMPTROLLER GENERAL WOULD BE PROHIBITED FROM ALLOWING EXPENDITURES FOR POSTAL SERVICE EMPLOYEES WHO FLY FOREIGN CARRIERS FROM POINTS INSIDE THE UNITED STATES TO EUROPE, EXCEPT IN CASES WHERE NECESSITY DICTATES USE OF A FOREIGN CARRIER. HOWEVER, THE FLY AMERICA ACT DOES NOT APPLY TO THE POSTAL SERVICE DUE TO CERTAIN PROVISIONS OF THE POSTAL REORGANIZATION ACT.

THE POSTAL REORGANIZATION ACT OF AUGUST 12, 1970, PUB. L. 91-375, 84 STAT. 719, MADE THE UNITED STATES POSTAL SERVICE AN INDEPENDENT ESTABLISHMENT WITHIN THE EXECUTIVE BRANCH OF THE GOVERNMENT. EXAMINATION OF THE LEGISLATIVE HISTORY OF THE POSTAL REORGANIZATION ACT REVEALS THAT CONGRESS INTENDED TO FREE THE POSTAL SERVICE FROM MANY OF THE RESTRICTIVE STATUTES GENERALLY APPLICABLE TO GOVERNMENT AGENCIES. B-114829, JULY 8, 1975. THUS, ONE OF THE MAJOR PURPOSES OF POSTAL REORGANIZATION WAS TO ALLEVIATE THE RESTRAINTS IMPOSED ON POSTAL OPERATIONS BY LAWS RELATING TO BUDGETS OR FUNDS HAVING GOVERNMENT-WIDE APPLICATION. 52 COMP.GEN. 179 (1972). SECTION 410(A) OF THE POSTAL REORGANIZATION ACT (39 U.S.C. SEC. 410(A)) MANIFESTS THIS LEGISLATIVE INTENT:

"(A) EXCEPT AS PROVIDED BY SUBSECTION (B) OF THIS SECTION, AND EXCEPT AS OTHERWISE PROVIDED IN THIS TITLE OR INSOFAR AS SUCH LAWS REMAIN IN FORCE AS RULES OR REGULATIONS OF THE POSTAL SERVICE, NO FEDERAL LAW DEALING WITH PUBLIC OR FEDERAL CONTRACTS, PROPERTY, WORKS, OFFICERS, EMPLOYEES, BUDGETS, OR FUNDS, INCLUDING THE PROVISIONS OF CHAPTERS 5 AND 7 OF TITLE 5, SHALL APPLY TO THE EXERCISE OF THE POWERS OF THE POSTAL SERVICE."

IN THOSE INSTANCES IN WHICH CONGRESS INTENDED FOR OTHER LAWS TO APPLY TO THE POSTAL SERVICE, THEY ARE SPECIFICALLY MADE APPLICABLE UNDER SECTION 410(B) OF THE ACT. B-70371, JANUARY 22, 1976.

THUS, IT IS CLEAR THAT LAWS RELATING TO THE AUDIT AND PAYMENT OF TRANSPORTATION ACCOUNTS DO NOT APPLY TO THE POSTAL SERVICE. B-174818 O.M., MAY 9, 1972. ADDITIONALLY, THIS OFFICE HAS INTERPRETED 39 U.S.C. SEC. 410(A) TO EXEMPT THE POSTAL SERVICE FROM APPLICATION OF THE SMALL BUSINESS ACT AS WELL AS FROM THE BUDGET AND ACCOUNTING ACT OF 1921 AND THE ANTI-DEFICIENCY ACT. SEE 52 COMP.GEN. 306 (1972) AND B-164786, OCTOBER 8, 1970.

BY REASON OF SEC. 410(A) WE CONCLUDE THAT THE PROVISIONS OF THE FLY AMERICA ACT DO NOT APPLY TO THE UNITED STATES POSTAL SERVICE. IF CONGRESS DECIDES THAT THE POSTAL SERVICE SHOULD BE WITHIN THE PURVIEW OF THE FLY AMERICA ACT, IT IS POSSIBLE FOR THE POSTAL LAWS TO BE AMENDED. SECTION 208 OF THE POSTAL REORGANIZATION ACT EXPRESSLY RESERVES TO CONGRESS THE POWER TO ALTER, AMEND, OR REPEAL ANY OR ALL OF THE SECTIONS OF TITLE 39. B-114829, SUPRA.

WE HAVE BEEN INFORMED THAT THE POSTAL SERVICE TRAVEL HANDBOOK REQUIRES EMPLOYEES TO USE AMERICAN CARRIERS FOR AIR TRAVEL WHENEVER AND WHEREVER POSSIBLE. IF AN EMPLOYEE WANTS TO DEVIATE FROM THIS POLICY, IT IS NECESSARY TO OBTAIN ADVANCE PERMISSION FROM THE APPROPRIATE POSTAL AUTHORITIES. THEREFORE, WHILE POSTAL SERVICE EMPLOYEES ARE GENERALLY REQUIRED TO COMPLY WITH THE INTENT OF THE FLY AMERICA ACT, THE ACT, INCLUDING ITS PROVISION FOR DISALLOWANCE BY THE COMPTROLLER GENERAL, IS TECHNICALLY NOT APPLICABLE TO THE POSTAL SERVICE.