Jump to content

Fly America Act

Edit links
From Wikipedia, the free encyclopedia

This is an old revision of this page, as edited by Modro (talk | contribs) at 12:29, 12 March 2007 (Update to US/EU Open Skies reference.). The present address (URL) is a permanent link to this revision, which may differ significantly from the current revision.

The Fly America Act refers to the provisions enacted by US Code Title 49, Subtitle VII, Part A, subpart I, Chapter 401, 40118 - Government-Financed Air Transportation.

This part of US Code is applicable to all individuals using United States Federal Government funds and requires them to travel limit themselves to US flag carrier airlines. These individuals include US Federal employees, their dependents, consultants, contractors, grantees, and others – in other words everyone directly funded by the US Government. It is not applicable when travel costs are recovered through, for example, company overheads and can thus be shown not to have been directly US Government funded.

The Fly America Act is a requirement of Federal Acquisition Regulation (FAR) Subpart 47.4—Air Transportation by U.S.-Flag Carriers and is, therefore, applicable to all US Government contracts issued to US and non-US companies.

Interestingly, it should also be noted that, according to the US State Department (Transportation Dept , Aviation), the Fly America Act applies equally to non-US nationals and non-US companies or their representatives both within the USA and ex-territorially, regardless of enforcement difficulties or possible infringements of international law and personal liberty that this could represent.

The Fly America Act is generally regarded by non-US interests as being anti-competitive and as unfairly favouring US airlines and, particularly for non-US contractors, can result in significant travel budget issues. However, it does offer US airlines some recompense for the US Government's Civil Reserve Air Fleet (CRAF) programme and provides balance against some of the existing, largely obsolescent and, in many cases, inequitable bilateral US/non-US Air Transport Agreements. This partly accounts for the US State Department’s reluctance to grant exception in accordance with 40 USC 40101 (e), International Aviation Policy or any other exemption provisions (see below). The US is systematically replacing these ATAs by Open Skies agreements, which are considerably more liberal in their reciprocal arrangements.

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. US Code Title 49 40118 Paragraph b) Transportation by Foreign Air Carriers.— This essentially permits transportation of passengers and property by a non-US Flag Carrier airline if the transportation is provided under a bilateral or multilateral air transportation agreement to which the US Government and the government of a non-US country are parties to the agreement. However, it transpires that only 2 such Air Transport Agreements comply with the requirements of 40 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 2 exceptions are the bilateral air transport agreements between the US and Saudi Arabia and between the US and Brazil.

  • Both the US/Saudi and US/Brazil agreements contain specific reciprocal statements that each countries' designated airlines have the right to compete for the transportation of all third and fourth freedom government contract passenger and cargo traffic (including federal, state, local, municipal or other government entities). In other words, these countries have agreed not to enforce any equivalent of Fly America (if such legislation exists in Saudi Arabia or Brazil) and they permit open competition in all their Government air transport contracts to and from the US.
  • If the long overdue US/EU Open Skies agreement is ratified in its current draft format, then it is possible that this will become an acceptable exception under this provision. However, indications are that this agreement is not quite as 'open' as it could be and will only offer an exemption if the particular route has a rather paltry maximum of 60 affected passengers per year. Quite how this can be made to comply with existing US Code and policy is not clear.
  • Note that current UK and various EU countries' Air Transport Agreements are not accepted by the US State Department as providing exemptions to Fly America under this provision, regardless of the fact that open competition is the norm in the EU for all Government air transport contracts and there is no such thing as a Fly EU Act or an EU equivalent to the Civil Reserve Air Fleet programme.

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-US carrier is permissible in this are as follows:

  • Travel to and from the US. Use of a non-US carrier is permissible if:
    • The airport abroad is the origin or destination airport, and use of a US carrier would extend the total travel time 24 hours or more than would travel by non-US carrier; or
    • The airport abroad is an interchange point, and use of a US Carrier would require the traveller to wait six (6) hours or more to make connection or would extend the total travel time six (6) hours or more than would travel by non-US carrier.
  • Travel Between Points outside the US. Use of a non-US carrier is permissible if:
    • Travel by non-US carrier would eliminate two (2) or more aircraft changes en route; or
    • Travel by US carrier would extend the total travel time six (6) hours or more than would travel by non-US carrier.
    • Short Distance Travel. For all short distance travel, regardless of origin and destination, use of a non-US carrier is permissible if the elapsed travel time on a scheduled flight from origin to destination airport by non-US carrier is three (3) hours or less and service by US carrier would double the travel time.
  • The Comptroller General has issued a decision regarding the Code Sharing (Airline Alliances) of flights by US and non-US flag carriers utilizing the equipment of the non-US flag carrier. If a US flag air carrier has an arrangement to provide passenger service in international air transportation on the aircraft of a non-US air carrier under a “code-share” arrangement with a non-US air carrier this could meet the requirements of the Fly America Act. Federal regulations have been revised to indicate that the ticket (or documentation for an electronic ticket) must identify the US Flag air carrier’s two letter designator code and flight number, which is located on the right hand section of the passenger receipt. This indicates that the flier is in a US Flag carrier seat, regardless of the air carrier, which owns the aircraft. The key to meeting the requirements is whether the ticket is purchased through the US air carrier. If the ticket is issued through the US air carrier the expense will, in most cases, be eligible for reimbursement, provided the U.S. air carrier is identified on the ticket.
  • If the ticket is issued by a non-US air carrier, (even under a code sharing arrangement), the ticket is not eligible for reimbursement on a Federal award. Note that the ticket must be purchased from US airline, not the code-sharing non-US carrier. For example, if a ticket is purchased from British Airways, KLM, Lufthansa etc, the flight numbers will be preceded by the code “BA”, “KL”, “LH” etc and no reimbursement can be made. The flight numbers must have the code from the US airline on the ticket (e.g.”AA” for American Airlines, “NW” for Northwest, “UA” for United Airlines, etc.).

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:

  • A non-US airline may be used when the costs of transportation are reimbursed in full by a third party, such as a non-US government, international agency or other organisation. It is possible that this exception could be used by non-US contractors working on US/non-US partnerships where the non-US Government or company contributes financially to join the programme and the cost of transportation can be shown to be part of this contribution.
  • When the US air carrier only has seats in first and/or business class, and economy class service is available from a non-US air carrier.
  • When non-US air carrier service is deemed a matter of necessity per the following:
    • (a) Foreign air carrier service is deemed a necessity when service by a US flag air carrier is available, but
      • (1) Cannot provide the air transportation needed; or
      • (2) Will not accomplish the agency's mission.
    • (b) Necessity includes, but is not limited to, the following circumstances:
      • (1) When the agency determines that use of a non-US air carrier is necessary for medical reasons, including use of non-US air carrier service to reduce the number of connections and possible delays in the transportation of persons in need of medical treatment; or
      • (2) When use of a non-US air carrier is required to avoid an unreasonable risk to your safety and is approved by your agency (e.g. terrorist threats). Written approval of the use of non-US air carrier service based on an unreasonable risk to your safety must be approved by your agency on a case by case basis. An agency determination and approval of use of a non-US air carrier based on a threat against a US flag air carrier must be supported by a travel advisory notice issued by the Federal Aviation Administration and the Department of State. An agency determination and approval of use of a non-US air carrier based on a threat against US Government employees or other travelers must be supported by evidence of the threat(s) that form the basis of the determination and approval; or
      • (3) When you can not purchase a ticket in your authorised class of service on a US flag air carrier, and a seat is available in your authorised class of service on a non-US air carrier.

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 US Government, thus making the aims of the contract unachievable, as per 41 CFR Part 301-10.138 (a)(2), above. Inter-governmental reciprocity agreements may fall into this category.

Retrieved from "https://en.wikipedia.org/w/index.php?title=Fly_America_Act&oldid=114526652"