FLY AMERICA ACT - RULES , REGULATIONS and POSSIBLE EXCEPTIONS

From Section 301-3.6 of the Federal Travel Regulations as amended on February 23, 1990 and effective on March 23, 1990. "Possible Exceptions" are derived from a variety of sources.


Use of US Flag Carriers

Definitions

1. The Fly America Act - the "Fly America Act" refers to the provisions enacted by section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (pub. L. 93-624, January 3, 1975), 40 U.S.C. App. 1517, as amended by section 21 of the International Air Transportation Competition Act of 1979 (Pub. L. 96-192, February 15, 1980), 94 Stat. 43.

2. U.S. Flag Air Carrier - the term "U.S. flag air carrier" means an air carrier holding a certificate under section 401 of the Federal Aviation Act of 1958 (49 U.S.C. App. 1371). Foreign air carriers operating under permits are excluded.

3. United States - for purposes of the Fly America Act, "United States" means the 50 states, the District of Columbia, and the territories and possessions of the United States (49 U.S.C. App. 1301 (38)).

4. Gateway Airport in the United States - a "gateway airport in the United States" means the last airport in the United States from which the traveler's flight departs, or the first airport in the United States at which the traveler's flight arrives.

5. Gateway Airport Abroad - a "gateway airport abroad" means the airport abroad from which the traveler last embarks en route to the United States or at which the traveler first debarks incident to travel from the United States.

General Requirements of the Fly America Act

The Fly America Act, 49 U.S.C. App. 1517, as implemented in the Comptroller General's guidelines, Decision B-138942, March 31, 1981, requires Federal employees and their dependents, consultants, contractors, grantees, and others performing United States Government financed foreign air travel to travel by U.S. flag air carriers:

1. Unless travel by foreign air carrier is a matter of necessity as defined in paragraph (b)(3) of this section, or

2. When U.S. flag air carrier service is available within the guidelines in paragraphs (b)(4)(5) of this section.

3. Service

Use of foreign air carrier service may be deemed necessary if a U.S. flag air carrier otherwise available cannot provide the air transportation needed, or use of U.S. flag air carrier service will not accomplish the agency's mission.

4. Availability of US Flag Carrier Services

1. General - U.S. flag air carrier service is available even though:

A. Comparable or a different kind of service can be provided at less cost by a foreign air carrier;
B. Foreign air carrier service is preferred by or is more convenient for the agency or traveler; or
C. Service by a foreign air carrier can be paid for in excess foreign currency, unless U.S. flag air carriers decline to accept excess foreign currencies for transportation payable only out of these monies. (See also paragraph (b)(5)(iv) if this section.)

2. Scheduling Principals - In determining availability of U.S. flag air carrier service, the following scheduling principals should be followed unless their application results in the last or first leg of travel to and from the United States being performed by foreign air carrier:

A. U.S. flag air carrier service available at point of origin should be used to destination or, in the absence of direct or through service, to the furthest interchange point on a usually traveled route;

B. Where an origin or interchange point is not served by U.S. flag air carrier, foreign air carrier service should be used only to the nearest interchange point on a usually traveled route to connect with US flag carrier service; or

C. Where a U.S. flag air carrier involuntarily re-routes the traveler via a foreign air carrier, the foreign air carrier may be used notwithstanding the availability of alternative U.S. flag air carrier service.

Guidelines for Determining Unavailability of U.S. Flag Air Carrier Service

Travel to and from the United States - Passenger service by a U.S. flag air carrier will not be considered available when the travel is between a gateway airport in the United States and a gateway airport abroad and the gateway airport abroad is:

A. The traveler's origin or destination airport, and the use of U.S. flag air carrier service would extend the time in a travel status, including delay at origin and accelerated arrival at destination by at least 24 hours more than travel by foreign air carrier;

B. An interchange point, and the use of U.S. flag air carrier service would require the traveler to wait 6 hours or more to make connections at that point, or delayed departure from or accelerated arrival at the gateway airport in the United States would extend the time in a travel status by at least 6 hours more than travel by a foreign air carrier.

Travel Between Two Points Outside the United States - For travel between two points outside the United States, U.S. flag air carrier service will not be considered to be reasonably available:

A. If travel by foreign air carrier would eliminate two or more aircraft changes en route;

B. Where one of the two points abroad is the gateway airport en route to or from the United States, if the use of the U.S. flag air carrier would extend the time in travel status by at least 6 hours more than travel by a foreign air carrier, including accelerated arrival at the overseas destination or delayed departure from the overseas origin, as well as the gateway airport or other interchange point abroad; or

C. Where the travel is not part of a trip to or from the United States, if the use of a U.S. flag air carrier would extend the time in travel status by a least 6 hours more than traveled by foreign air carrier including delay at origin, delay en route and accelerated arrival at destination.

Use of Foreign Flag Carriers

1. Authorization or Approval - Expenditures for commercial foreign air transportation on foreign air carrier(s) will be disallowed unless there is attached to the appropriate voucher a certificate or memorandum adequately explaining why service by U.S. flag air carrier(s) is not available, or why it was necessary to use a foreign air carrier. Use of foreign flag air carriers may be authorized or approved only when U.S. flag air carrier service is not available as determined under the guidelines in paragraph (b) of this section, or when foreign air carriers are used under the reciprocal terms of an appropriate bilateral or multilateral agreement as described in paragraph (c)(2) of this section, or when use of foreign air carriers is necessary under paragraph (b)(3) of this section.

2. Air Transport Agreements - Nothing in the guidelines in paragraph (b) of this section shall preclude and no penalty shall attend the use of a foreign air carrier which provides transportation under an air transport agreement between the United States and a foreign government, the terms of which are consistent with the international aviation goals set forth at 49 U.S.C. App. 1502(b) and provide reciprocal rights and benefits.

3. Justification Statement - A statement executed by the traveler or agency justifying the use of a foreign flag air carrier for any part of foreign travel must be entered on or attached to the travel voucher, transportation request, or any other payment document. Each request for a change in route or schedule which involved the use of a foreign flag air carrier must be accompanied by a statement justifying  such use.

4. Employee liability for disallowed expenditures - Where the travel is by indirect route or the traveler otherwise fails to use available U.S. flag air carrier service, the amount to be disallowed against the traveler is based on the loss of revenues suffered by U.S. flag air carriers.


Code Sharing

On September 25, 1991, the Comptroller General released a decision regarding the Code Sharing of flights by U.S. and foreign flag carriers utilizing the equipment of the foreign flag carrier. This is announced in Comp. Gen. File B-240956.  The question in this case, presented by the Department of State, is whether a U.S. flag air carrier's arrangement to provide passenger service in international air transportation on the aircraft of a foreign air carrier under a "code-share" arrangement with the foreign air carrier would meet the requirements of the Fly America Act, 49 U.S.C. App. 1517 (1988). Since it appears that such service generally would be considered to be service by a U.S. air carrier in international air transportation rather than by a foreign air carrier, that service should also be considered transportation provided by a U.S. air carrier for purposes of the Fly America Act


Possible Exceptions to the Fly America Act

There are certain exceptions to the Fly America Act that can be applied (with varying possibilities of success):

1. 49 USC 40118 Paragraph b) Transportation by Foreign Air Carriers.— This essentially permits transportation of passengers and property by a non-U.S. carrier if the transportation is provided under a bilateral or multilateral air transportation agreement to which the U.S. government and the government of another country are parties to the agreement. However, it transpires that only two such Air Transport Agreements comply with the requirements of 49 USC 40101 (e), International Aviation Policy, the goals for international aviation policy and do provide for the exchange of rights or benefits of similar magnitude. These two exceptions are the bilateral air transport agreements between the U.S. and Saudi Arabia and between the U.S. and Brazil.

2. Federal Acquisition Regulation Subpart 47.403 refers to a case which lists a number of accepted exceptions. This is one of the source documents for the generally quoted exceptions (also paraphrased in Code of Federal Regulations, 41 CFR Part 301):

Guidelines for Implementation of the Fly America Act (Case number B-138942), issued by the Comptroller General of the United States on March 31, 1981. The exceptions where use of a non-U.S. carrier is permissible in this are as follows:

3. Further exceptions can be found in the Code of Federal Regulations, 41 CFR Part 301-10.136, Part 301-10.137 and Part 301-10.138:

4. It may also be possible to obtain exemption if compliance with Fly America can be demonstrated to breach other parts of the contract with the United States Government, thus making the aims of the contract achievable, as per 41 CFR Part 301-10.138 (a)(2), above. Inter-governmental reciprocity agreements (e.g. the 2004 U.S./UK Defense Procurement MoU) may fall into this category.