[Federal Register Volume 63, Number 219 (Friday, November 13, 1998)]
[Rules and Regulations]
[Pages 63417-63421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30344]
[[Page 63417]]
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GENERAL SERVICES ADMINISTRATION
41 CFR Parts 301-3 and 301-10
[FTR Amendment 74--1998 Edition]
RIN 3090-AG73
Federal Travel Regulation; Use of Commercial Transportation, Fly
America Act
AGENCY: Office of Governmentwide Policy (OGP), GSA.
ACTION: Final rule.
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SUMMARY: This final rule amends the Federal Travel Regulation (FTR)
provisions pertaining to use of U.S. flag air carriers under the
provisions of 49 U.S.C. 40118, commonly referred to as the Fly America
Act. This final rule reduces the connecting time for use of U.S. flag
air carrier service at an overseas interchange point; requires that
airline tickets issued under a code share agreement identify the U.S.
flag air carrier's designator code and flight number; removes
references to ``gateway airports;'' and implements a new method for
calculation of the employee's liability for unauthorized transportation
on a foreign air carrier.
EFFECTIVE DATE: January 1, 1999.
FOR FURTHER INFORMATION CONTACT: Technical information: Umeki G.
Thorne, telephone (202) 501-1538. FTR ``plain language'' format:
Internet GSA, ftrtravel.chat@gsa.gov.
SUPPLEMENTARY INFORMATION: Subsection 127 (d) of the General Accounting
Office Act of 1996 (Pub. L. 104-316) amended 49 U.S.C. 40118 to require
that the Administrator of General Services Administration (GSA) issue
regulations under which agencies may permit payment for transportation
on a foreign air carrier when such transportation is determined
necessary. This final rule implements the Administrator's authority
under the statute, identifying when U.S. flag air carrier service is
deemed available (for transportation between a point in the United
States and a point outside the United States) or reasonably available
(for transportation between two points outside the United States). This
final rule is written in the ``plain language'' style of regulation
writing as a continuation of GSA's effort to make the FTR easier to
understand and use. This final rule removes Part 301-3 of 41 CFR
Chapter 301 and adds the provisions implementing the Fly America Act to
Part 301-10. This final rule also modifies the proposed rule with
request for comments published in the Federal Register on April 7, 1998
(63 FR 16936).
During the 30-day comment period provided by the proposed rule, GSA
received comments from four Federal agencies, three U.S. flag air
carriers, an air carrier association, and three non-Government
entities. GSA carefully reviewed each comment. Changes based on
comments received have been grouped by section of the proposed rule and
subject area and are discussed in the following general analysis.
Section 301-10.134 What Is U.S. Flag Air Carrier Service?
U.S. Air Carrier Certificate
Section 301-10.134 of the proposed rule generally defines ``U.S.
flag air carrier service'' as service on an air carrier holding a
certificate under 49 U.S.C. 41102. One Federal agency requested that
GSA clarify that although U.S. flag air carriers must hold a
certificate, the transportation does not have to be authorized by such
certificate, if it is authorized by rule or exemption. GSA has revised
Sec. 301-10.134 accordingly.
Code Share Agreements
Ticket Stock
A comment from a non-Government entity supported the language in
Sec. 301-10.134 of the proposed rule stating that service under a code
share arrangement, when the entire ticket is issued by a U.S. flag air
carrier, is deemed U.S. flag air carrier service. In contrast, three
Federal agencies, two U.S. flag air carriers and the air carrier
association objected to this requirement as too restrictive. Two of the
Federal agencies and the air carrier association stated that many
developing countries have neither U.S. flag air carrier facilities nor
personnel. Accordingly, in such cases, obtaining a ticket on U.S. flag
air carrier ticket stock is not practicable and could preclude
travelers from benefiting from U.S. flag air carrier service through
code share arrangements. The air carrier association also pointed out
that the essential feature on an airline ticket is the air carrier
designator code and flight number rather than the ticket stock. One
U.S. flag air carrier stated that imposing a U.S. air carrier ticket
stock requirement could, in some cases, divert traffic to foreign air
carriers in those locations where no U.S. flag air carrier facilities
or personnel are located. In addition, GSA notes that as airlines and
travelers more frequently utilize electronic ticketing, a U.S. air
carrier ticket stock requirement appears outdated. As a result of these
comments, the language of the proposed rule has been revised. The final
rule states that the ticket (or documentation for an electronic ticket)
must identify the U.S. flag air carrier's designator code and flight
number. The requirement that the ticket be issued on U.S. flag air
carrier ticket stock has been removed.
Foreign Air Carrier Code Share Service as U.S. Flag Air Carrier Service
One U.S. flag air carrier objected, except under limited
circumstances, to the determination that service by a foreign air
carrier under a code share arrangement is service by a U.S. flag air
carrier. Specifically, the U.S. flag air carrier stated that code share
service by a foreign air carrier is merely a form of interline service
and therefore should not be considered service by a U.S. flag air
carrier unless the U.S. flag air carrier bears the financial risk of
empty seats on the aircraft. In contrast, the air carrier association
commented that code share arrangements between U.S. flag air carriers
and foreign air carriers are consistent with the Fly America Act
because they promote the intent of the Fly America Act by improving the
economic and competitive position of U.S. flag air carriers.
The final rule provides that U.S. flag air carrier service includes
service provided by a foreign air carrier under a code share agreement
when the ticket, or documentation in the case of an electronic ticket,
identifies the U.S. flag air carrier's designator code and flight
number. It is GSA's position that codesharing between U.S. flag air
carriers and foreign air carriers increases opportunities for U.S. flag
air carriers to expand into new international markets, which in turn
promotes revenues to U.S. flag air carriers, thereby furthering the
goals of the Fly America Act. Additionally, the U.S. flag air carrier
whose designator code and flight number appears on the ticket, or
documentation in the case of an electronic ticket, takes responsibility
for the passenger(s) traveling under the U.S. flag air carrier's
designator code and flight number, supporting the determination that
the code share service is properly deemed service by the U.S. flag air
carrier.
Section 301-10.135 When Must I Travel Using U.S. Flag Air Carrier
Service?
Exception for Transportation Under Bilateral and Multilateral
Agreements
Section 301-10.135 of the proposed rule states that U.S. flag air
carrier service must be used for all travel funded by the U.S.
Government, unless one of the various exceptions applies. One Federal
agency commented that Sec. 301-10.135(b), which addresses
[[Page 63418]]
bilateral or multilateral agreements, could be misleading because the
criteria from the Fly America Act for exchanging fly-national
privileges under such agreements are to be applied by the negotiators
at the time the agreement is made, not by the traveler. That agency
also stated that as of the date of the proposed rule there were no
bilateral or multilateral agreements in effect that met the
requirements of the Fly America Act. Based on this comment, GSA has
clarified Sec. 301-10.135(b). Under the final rule, a traveler is not
required to use U.S. flag air carrier service if transportation by a
foreign air carrier is provided under a bilateral or multilateral air
transportation agreement which the Department of Transportation has
determined meets the conditions specified in the Fly America Act. To
verify existence of any qualifying bilateral or multilateral
agreements, agencies should contact the U.S. Department of
Transportation, Office of the Secretary, Office of International
Aviation, Room X-40, Washington, DC 20590.
Direct Service by Foreign Air Carrier
A Federal agency commented on Sec. 301-10.135(d) of the proposed
rule, which states that when no U.S. flag air carrier provides service
on a particular leg of the route, foreign air carrier service may be
used, but only to or from the nearest interchange point on a usually
traveled route to connect with U.S. flag air carrier service. The
agency requested that GSA eliminate the words, ``but only to or from
the nearest interchange point on a usually traveled route'' in order to
save travel time by enabling travelers to use direct service on a
foreign air carrier. GSA is not persuaded that this change is
warranted. While the use of a foreign air carrier may be more
convenient when the foreign air carrier has nonstop or direct service,
GSA does not consider a shorter travel time in these circumstances to
be sufficient to consider U.S. flag air carrier service unavailable or
use of a foreign air carrier necessary. Therefore, GSA did not adopt
the revision proposed in the comment. Of course, if the traveler meets
an exception provided in the regulation, such as those provided in
Sec. 301-10.136, then the traveler may use a foreign air carrier.
Section 301-10.136 What Exceptions to the Fly America Act Requirements
Apply When I Travel Between the United States and Another Country?
Removal of the terms ``gateway airport in the United States'' and
``gateway airport abroad''
The air carrier association requested clarification for the removal
of terms ``gateway airport in the United States'' and ``gateway airport
abroad.'' The association stated that it does not oppose the deletion
of the terms but requested that GSA clarify any policy change intended
by the elimination of these terms. GSA does not intend to make a
significant substantive policy change through the removal of the terms
``gateway airport abroad'' and ``gateway airport in the United
States.'' However, as there are a myriad of potential travel
situations, there may be instances where the removal of the terms
result in a different outcome than that which would have resulted under
the former rule.
Connecting Time
Section Sec. 301-10.136 (b)(3) of the proposed rule reduced the
connecting time from 6 hours or more to 4 hours or more at an overseas
interchange point for purposes of determining whether U.S. flag air
carrier service is unavailable. One Federal agency and one non-
Government entity commented in support of this policy change. In
contrast, two U.S. flag air carriers and the air carrier association
opposed this policy change. The U.S. flag air carriers and the air
carrier association stated that this change would unnecessarily risk
the loss of business by U.S. airlines as it is likely to result in U.S.
flag air carrier service being deemed unavailable in more instances,
thereby diverting more travel to foreign air carriers.
GSA has considered these comments, but the change included in the
proposed rule reducing the connecting time from 6 hours or more to 4
hours or more remains in this final rule. GSA included a number of
considerations in its review of the issue. When the Fly America Act was
first implemented in the 1970's, the 6 hour or more connecting time
rule was established as a reasonable standard for connecting service
through an overseas interchange point. Since that time, U.S. flag air
carriers have significantly expanded their service in international
markets and increased their service at international interchange points
so that passengers can connect in a shorter time frame. Expanded use of
code share arrangements has also helped reduce connecting times at
overseas interchange points.
In reviewing this issue, GSA's analysis of airline schedule data
showed that the airlines' average layover or connecting time is 2\1/2\
hours. GSA's analysis also showed that there would not be a large
number of flights impacted by this change. Therefore, reducing the
connecting time from 6 hours to 4 hours should not result in a
significant loss of revenue to U.S. flag air carriers. Under the final
rule, U.S. flag air carrier service is deemed unavailable when
connecting service at an overseas interchange point would require a
connecting time of 4 hours or more. This exception applies only when no
U.S. flag air carrier service is available within the 4 hour time
period, including U.S. flag air carrier service under a code share
agreement.
Section 301-10.138 In What Circumstances Is Foreign Air Carrier
Service Deemed a Matter of Necessity?
Excess Foreign Currency
Section (b)(3) of this section of the proposed rule stated that
``(b) Necessity includes, but is not limited to, the following
circumstances when: (3) Your program or activity may only be financed,
under statute, using excess foreign currency and all U.S. flag air
carriers refuse to accept foreign currencies.'' As no excess foreign
currency situations exist at the present time (and have not existed
since 1992), GSA has determined that the provision included at
Sec. 301-10.138(b)(3) of the proposed rule is unnecessary. Therefore
Sec. 301-10.138(b)(3) of the proposed rule is not included in this
final rule. Should excess foreign currency issues arise in the future,
GSA will determine at that time whether a provision on the subject
should be included in the regulation.
Safety Exceptions
The air carrier association commented on Sec. 301-10.138(b)(1)(2),
stating that although the association did not object to the safety
exceptions included in the proposed rule, GSA should inform travelers
that security exceptions (due to a terrorist threat on a U.S. flag air
carrier) should only be invoked after consultation with the Office of
Civil Aviation Security of the Federal Aviation Administration (FAA).
In the event of a threat to a U.S. flag air carrier, the FAA and the
Department of State will issue a travel advisory notice to the general
public. Agencies should take any such travel advisory notices into
account when determining whether foreign air carrier service is deemed
a necessity as provided in Sec. 301-10.138. Written approval is
required for a determination that foreign air carrier service is a
necessity based on a security threat to a U.S. flag air carrier and
must be supported by a travel advisory notice. The language of this
final rule includes this requirement. With respect to threats against
Government employees or other
[[Page 63419]]
travelers, which formulate the basis for a determination that foreign
air carrier service is necessary (as contrasted with threats to a U.S.
flag air carrier), evidence of such threats must accompany the agency's
approval of the use of foreign air carrier service.
Section 301-10.144 What Is My Liability if I Improperly Use a Foreign
Air Carrier?
Splitting the Cost of Air Travel Between Federal and Non-Federal Funds
One non-Government entity commented that the provision included in
this section of the proposed rule for computing liability may encourage
splitting the cost of a trip between non-Federal and Federal funds to
permit the use of a foreign air carrier for convenience or lower rates.
The comment stated that the entity's practice has been to deny payment
of the total cost of the air travel (both foreign and U.S.) if a
foreign air carrier was improperly used for any part of the trip.
Under Sec. 301-3.6(c)(4) of the current FTR, employee liability is
computed based on a formula used to determine the amount of lost
revenue to the U.S. flag air carrier(s) rather than denial of the
entire cost of air travel. The new policy for employee liability, which
denies reimbursement for use of any foreign air carrier for any part of
the trip for which it was not authorized, is intended to simplify the
process for computing employee liability. 49 U.S.C. 40118 applies only
to transportation that is financed with U.S. Government funds and will
not result in improperly splitting the costs of a trip between Federal
and non-Federal funds. GSA's intent is to ensure that agencies
establish internal procedures for disallowance of reimbursement to
travelers who use foreign air carrier service that was not authorized
or otherwise permitted under this regulation. Therefore this section
has been modified to include a provision requiring agencies to
establish such internal procedures.
Ticket Purchases Made Through a Government Contractor Travel Agency
One Federal agency stated that agencies which are not using charge
cards for purchase of airline tickets should be allowed to make payment
directly to the Travel Management Center, and then seek reimbursement
from the employee when an employee has improperly used a foreign air
carrier. The issue of whether a Federal agency must pay a travel
management center/travel agency contractor when there is improper use
of a foreign air carrier is a matter of contract administration. GSA
notes that many Government contracts for travel management center/
travel agency services include a provision requiring that the
contractor abide by the terms of the Fly America Act in issuing tickets
for Federal travelers and bear the financial burden for failure to do
so. Accordingly, GSA determined it unnecessary to revise Sec. 301-
10.144 on this issue.
GSA has determined that this final rule is not a significant
regulatory action for the purposes of Executive Order 12866 of
September 30, 1993. This final rule is not required to be published in
the Federal Register for notice and comment; therefore, the Regulatory
Flexibility Act does not apply. The Paperwork Reduction Act does not
apply because the proposed revisions do not impose recordkeeping or
information collection requirements, or the collection of information
from offerors, contractors, or members of the public which require the
approval of the Office of Management and Budget under 44 U.S.C. 501 et
seq. This final rule is also exempt from Congressional review
prescribed under 5 U.S.C. 801 since it relates solely to agency
management and personnel.
List of Subjects in 41 CFR Parts 301-3 and 301-10
Government employees, Travel and transportation expenses.
For the reasons set out in the preamble, 41 CFR Chapter 301 is
amended as follows.
PART 301-3--USE OF COMMERCIAL TRANSPORTATION
1. Under the authority of 5 U.S.C. 5707, part 301-3 is removed.
PART 301-10--TRANSPORTATION EXPENSES
2. The authority citation for 41 CFR part 301-10 continues to read
as follows:
Authority: 5 U.S.C. 5707; 40 U.S.C. 486(c); 49 U.S.C. 40118.
3. An undesignated center heading and sections 301-10.131 through
301-10.144 are added to read as follows:
Use of United States Flag Air Carriers
Sec.
301-10.131 What does United States mean?
301-10.132 Who is required to use a U.S. flag air carrier?
301-10.133 What is a U.S. flag air carrier?
301-10.134 What is U.S. flag air carrier service?
301-10.135 When must I travel using U.S. flag air carrier service?
301-10.136 What exceptions to the Fly America Act requirements
apply when I travel between the United States and another country?
301-10.137 What exceptions to the Fly America Act requirements
apply when I travel solely outside the United States, and a U.S.
flag air carrier provides service between my origin and destination?
301-10.138 In what circumstances is foreign air carrier service
deemed a matter of necessity?
301-10.139 May I travel by a foreign air carrier if the cost of my
ticket is less than traveling by a U.S. flag air carrier?
301-10.140 May I use a foreign air carrier if the service is
preferred by or more convenient for my agency or me?
301-10.141 Must I provide any special certification or documents if
I use a foreign air carrier?
301-10.142 What must the certification include?
301-10.143 What is my liability if I improperly use a foreign air
carrier?
Use of United States Flag Air Carriers
Sec. 301-10.131 What does United States mean?
For purposes of the use of United States flag air carriers, United
States means the 50 states, the District of Columbia, and the
territories and possessions of the United States (49 U.S.C. 40102).
Sec. 301-10.132 Who is required to use a U.S. flag air carrier?
Anyone whose air travel is financed by U.S. Government funds,
except as provided in Sec. 301-10.135, Sec. 301-10.136, and Sec. 301-
10.137.
Sec. 301-10.133 What is a U.S. flag air carrier?
An air carrier which holds a certificate under 49 U.S.C. 41102 but
does not include a foreign air carrier operating under a permit.
Sec. 301-10.134 What is U.S. flag air carrier service?
U.S. flag air carrier service is service provided on an air carrier
which holds a certificate under 49 U.S.C. 41102 and which service is
authorized either by the carrier's certificate or by exemption or
regulation. U.S. flag air carrier service also includes service
provided under a code share agreement with a foreign air carrier in
accordance with Title 14, Code of Federal Regulations when the ticket,
or documentation for an electronic ticket, identifies the U.S. flag air
carrier's designator code and flight number.
Sec. 301-10.135 When must I travel using U.S. flag air carrier
service?
You are required by 49 U.S.C. 40118, commonly referred to as the
``Fly
[[Page 63420]]
America Act,'' to use U.S. flag air carrier service for all air travel
funded by the U.S. Government, except as provided in Sec. 301-10.136
and Sec. 301-10.137 or when one of the following exceptions applies:
(a) Use of a foreign air carrier is determined to be a matter of
necessity in accordance with Sec. 301-10.138; or
(b) The transportation is provided under a bilateral or
multilateral air transportation agreement to which the United States
Government and the government of a foreign country are parties, and
which the Department of Transportation has determined meets the
requirements of the Fly America Act; or
(c) You are an officer or employee of the Department of State,
United States Information Agency, United States International
Development Cooperation Agency, or the Arms Control Disarmament Agency,
and your travel is paid with funds appropriated to one of these
agencies, and your travel is between two places outside the United
States; or
(d) No U.S. flag air carrier provides service on a particular leg
of the route, in which case foreign air carrier service may be used,
but only to or from the nearest interchange point on a usually traveled
route to connect with U.S. flag air carrier service; or
(e) A U.S. flag air carrier involuntarily reroutes your travel on a
foreign air carrier; or
(f) Service on a foreign air carrier would be three hours or less,
and use of the U.S. flag air carrier would at least double your en
route travel time; or
(g) When the costs of transportation are reimbursed in full by a
third party, such as a foreign government, international agency, or
other organization.
Sec. 301-10.136 What exceptions to the Fly America Act requirements
apply when I travel between the United States and another country?
The exceptions are:
(a) If a U.S. flag air carrier offers nonstop or direct service (no
aircraft change) from your origin to your destination, you must use the
U.S. flag air carrier service unless such use would extend your travel
time, including delay at origin, by 24 hours or more.
(b) If a U.S. flag air carrier does not offer nonstop or direct
service (no aircraft change) between your origin and your destination,
you must use a U.S. flag air carrier on every portion of the route
where it provides service unless, when compared to using a foreign air
carrier, such use would:
(1) Increase the number of aircraft changes you must make outside
of the U.S. by 2 or more; or
(2) Extend your travel time by at least 6 hours or more; or
(3) Require a connecting time of 4 hours or more at an overseas
interchange point.
Sec. 301-10.137 What exceptions to the Fly America Act requirements
apply when I travel solely outside the United States, and a U.S. flag
air carrier provides service between my origin and my destination?
You must always use a U.S. flag carrier for such travel, unless,
when compared to using a foreign air carrier, such use would:
(a) Increase the number of aircraft changes you must make en route
by 2 or more; or
(b) Extend your travel time by 6 hours or more; or
(c) Require a connecting time of 4 hours or more at an overseas
interchange point.
Sec. 301-10.138 In what circumstances is foreign air carrier service
deemed a matter of necessity?
(a) Foreign air carrier service is deemed a necessity when service
by a U.S. 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 foreign air carrier is
necessary for medical reasons, including use of foreign 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 foreign 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 foreign 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 foreign air carrier based on a threat against a
U.S. 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 foreign air
carrier based on a threat against 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 authorized class of
service on a U.S. flag air carrier, and a seat is available in your
authorized class of service on a foreign air carrier.
Sec. 301-10.139 May I travel by a foreign air carrier if the cost of
my ticket is less than traveling by a U.S. flag air carrier?
No. Foreign air carrier service may not be used solely based on the
cost of your ticket.
Sec. 301-10.140 May I use a foreign air carrier if the service is
preferred by or more convenient for my agency or me?
No. You must use U.S. flag air carrier service, unless you meet one
of the exceptions in Sec. 301-10.135, Sec. 301-10.136, or Sec. 301-
10.137 or unless foreign air carrier service is deemed a matter of
necessity under Sec. 301-10.138.
Sec. 301-10.141 Must I provide any special certification or documents
if I use a foreign air carrier?
Yes, you must provide a certification, as required in Sec. 301-
10.143 and any other documents required by your agency. Your agency
cannot pay your foreign air carrier fare if you do not provide the
required certification.
Sec. 301-10.142 What must the certification include?
The certification must include:
(a) Your name;
(b) The dates that you traveled;
(c) The origin and the destination of your travel;
(d) A detailed itinerary of your travel, name of the air carrier
and flight number for each leg of the trip; and
(e) A statement explaining why you met one of the exceptions in
Sec. 301-10.135, Sec. 301-10.136, or Sec. 301-10.137 or a copy of your
agency's written approval that foreign air carrier service was deemed a
matter of necessity in accordance with Sec. 301-10.138.
Sec. 301-10.143 What is my liability if I improperly use a foreign air
carrier?
You will not be reimbursed for any transportation cost for which
you improperly use foreign air carrier service. If you are authorized
by your agency to use U.S. flag air carrier service for your entire
trip, and you improperly use a foreign air carrier for any part of or
the entire trip (i.e., when not permitted under this regulation), your
transportation cost on the foreign air carrier will not be payable by
your agency. If your agency authorizes you to use U.S. flag air carrier
service for part of your trip and foreign air carrier service for
another part of your trip, and you improperly use a foreign air carrier
(i.e., when neither authorized to do so nor otherwise permitted under
this regulation), your agency will pay the transportation cost on the
foreign air
[[Page 63421]]
carrier for only the portion(s) of the trip for which you were
authorized to use foreign air carrier service. The agency must
establish internal procedures for denying reimbursement to travelers
when use of a foreign air carrier was neither authorized nor otherwise
permitted under this regulation.
Dated: November 5, 1998.
David J. Barram,
Administrator of General Services.
[FR Doc. 98-30344 Filed 11-12-98; 8:45 am]
BILLING CODE 6820-34-P
