B-234619, Feb 16, 1990, 69 Comp.Gen. 264

CIVILIAN PERSONNEL - Travel - Overseas travel - Travel modes - Domestic sources - Air carriers 1. Under travel arrangements made by his agency, a U.S. Information Agency employee traveled from Costa Rica to Greece on foreign air carriers, although under an alternate routing he could have traveled part of the way on a U.S. carrier. The employee should not be assessed a penalty for violating the Fly America Act, 49 U.S.C. App. Sec. 1517, because he is an employee of an agency covered by an exception to the act, 49 U.S.C. App. Sec. 1518, for travel between points outside the United States. Although it is within the agency's discretion to limit use of the exception, applicable agency regulations do not make the exception inapplicable to this travel. 2. A U.S. Information Agency employee being transferred from California to Greece was required to stop in Washington, D.C., for 7 days of consultation. He was then routed by his agency on a U.S. air carrier from Washington, D.C., to Frankfurt, Germany, and by foreign carrier on to Greece, because U.S. carrier service for the entire distance was not available on the day he traveled, although it was available 5 days a week. The Comptroller General's Fly America Guidelines do not specifically require a delay in beginning travel in these circumstances. The Foreign Affairs Manual provides generally that scheduling the use of U.S. carriers is expected for transfer travel or when the traveler has flexibility. However, this general policy statement does not support a penalty against the employee in this case since the agency scheduled his travel and apparently concluded that the travel could not be delayed.

Fly America Act-- Travel Outside the United States:

This is in response to a request from the Financial Management Officer, United States Embassy, Athens, Greece, for a Comptroller General's decision concerning application of the Fly America Act, 49 U.S.C. App. Sec. 1517 (1982), and the exception to it provided by 49 U.S.C. App. Sec. 1518 (1982), in the case of a United States Information Agency (USIA) /1/ employee who traveled between two points outside the United States. have also received a letter from the General Counsel of USIA providing his views on the matter and also asking our opinion on another Fly America Act question.

Costa Rica to Greece Routing

The case presented by the Financial Management Officer concerns an employee who traveled in October and November 1988 incident to his transfer from San Jose, Costa Rica, to Kavala, Greece, with orders to perform temporary duty en route at Athens, Greece. The employee traveled the entire route by foreign carriers, and the Financial Management Officer in Athens asks whether the employee should be assessed a penalty under the Fly America Act.

Apparently the U.S. Embassy in San Jose made the travel arrangements for the employee. It justified the use of foreign carriers on the grounds that use of a U.S. carrier, which could have been used for a portion of the travel under an alternate routing, would have delayed the employee's arrival by more than 6 hours, and in any event since the points of origin and destination were both abroad, use of a U.S. carrier was not required. The letter from the USIA General Counsel supports the Embassy's position.

The Fly America Act, 49 U.S.C. App. Sec. 1517, generally requires that government-financed air transportation be performed on U.S. air carriers where such service is available. However, 49 U.S.C. App. Sec. 1518 provides an exception to the Fly America Act requirements in the case of certain foreign service-related agencies, including USIA, for transportation between two places, both of which are outside the United States.

The legislative history of section 1518 indicates that this section was not intended to allow the use of foreign air carriers on an unlimited basis. In this regard, the Senate Committee on Foreign Relations' report on the exemption stated that travelers should "... continue to use all- American routes when the difference in travel or convenience is minimal." S. Rep. No. 95-842, 95th Cong., 2d Sess. 12 (1978). Also, the conference report emphasized that the conference committee "... fully expected that this authority will be implemented in a manner which will continue to encourage U.S. Government employees to use U.S. air carriers to the maximum practical extent." H.R. Rep. No. 95-1535 (Conference), 95th Cong., 2d Sess. 46, reprinted in 1978 U.S. Code Cong. Ad. News 2478, 2487. Therefore, we have held that the provision makes the use of a foreign carrier between two points outside the United States a matter of discretion for the agencies to which it applies. Malcolm H. Churchill, B-208340, Nov. 30, 1982; and Howard B. Keller, B-200279, Nov. 16, 1981. We have sustained agency regulations that restrict the use of the exemption. See Keller, supra.

The current provisions of the Foreign Affairs Manual (FAM), however, place no specific limits on the use of the exemption but in effect merely restate the statutory exemption. 6 FAM Sec. 135.2 (effective Dec. 30, 1987). The Financial Management Officer has not referred us to any other agency regulation providing limits on the application of the exemption. Thus, in this case, where the travel arrangements were made by the agency or with its direct approval, and there are no regulations limiting the application of the section 1518 exemption, it would not be appropriate to assess a penalty against the employee.

United States to Greece Routing

The USIA General Counsel also asks whether a Fly America Act penalty should have been assessed against an employee transferred from California to Kavala, Greece. Under a routing prescribed by the agency, following a 7-day consultation period in Washington, D.C., the employee traveled from Washington, D.C., via Frankfurt, Germany, to Athens, Greece, where he was to perform temporary duty before traveling on to Kavala. The scheduled travel used a U.S. air carrier from the United States to Frankfurt, but a foreign air carrier from Frankfurt to Athens. The Embassy in Athens assessed a penalty against the employee for the use of the foreign carrier from Frankfurt to Athens because U.S. carrier service was available from Washington to Athens 5 days a week, although not on the day the employee traveled. The Embassy apparently assessed the penalty based on 6 FAM Sec. 135.3c, which provides that travelers on transfer travel and those who can exercise flexibility in scheduling their travel are expected to schedule their trips to make use of U.S. carriers. The General Counsel maintains, however, that it was unreasonable to assess the employee since he had no control over the agency's decision as to when he should travel, but he merely followed responsible agency officials' instructions. /2/

Our Fly America Guidelines do not require a delay in the beginning of travel from the United States to make greater use of a U.S. carrier in these circumstances. Therefore, there is no violation of our Fly America Guidelines in this case. We read the statement in 6 FAM Sec. 135.3c, referred to above, as a statement of general policy to require use of U.S. carriers when the traveler has flexibility in scheduling travel. In this case, however, the agency did the scheduling and apparently concluded that the travel could not be delayed. In these circumstances, we do not think it was appropriate to assess a penalty on the traveler based on the FAM.

/1/ The employing component of USIA in this case is Voice of America.

/2/ The USIA General Counsel does not raise the exemption from the Fly America Act discussed above, 49 U.S.C. App. Sec. 1518, as justification for this routing apparently because the trip originated in the United States.