FLY AMERICA ACT

See Open Skies Agreements for exceptions to the ACT.

USE OF UNITED STATES FLAG AIR CARRIERS

WHEN DO THE RESTRICTIONS OF THE FLY AMERICA ACT APPLY?

The restrictions of the Fly America Act apply whenever travel is financed by U.S. Government funds. Essentially, if your travel is paid for by the U.S. Government you have to use a U.S. flag air carrier. U.S. flag air carrier means that the carrier providing the service holds a certificate under 49 U.S.C. § 41102, and the services are authorized by such a certificate, or by exemption or regulation. Additionally, U.S. flag air carrier service is also defined as service provided under a code share agreement with a foreign air carrier. A code share agreement is common industry practice. It is a marketing arrangement where one airline puts its code on the flights of another airline in order to coordinate services and advertise and sell the other airline’s services as its own, i.e., the code-share flights are marketed by U.S. carriers as their own flights. Some or all of the transportation is provided by another carrier which carries its partner’s designator code. Regulations promulgated by the Department of Transportation require airlines involved in code sharing to inform prospective passengers as soon as possible during calls to reservation offices when the flight involves a code share and to identify the carrier actually providing the service. The airlines must do this, even if the customer has not asked to book the flight. Therefore, when you book a flight with an airline, they are required to tell you if a code share agreement exists that will affect your travel. If you are not sure, ask the airlines representative. Additionally, when using a code share, the ticket, or documentation for an electronic ticket, identifies the U.S. flag air carrier’s designator code and flight number. The designator code and flight number are the essential features because this shows how the money flows.

[EXAMPLES]

Use of a U.S. flag air carrier is when air services are provided by a U.S. flag carrier. The ticket may be booked by either a U.S. flag carrier or a foreign carrier (Examples 1a and 1b) or when there is a code sharing agreement with a foreign air carrier (Example 2).

SOME GENERAL EXCEPTIONS TO THE FLY AMERICA ACT

To every rule, there are some exceptions, and the Fly America Act is no different. As a matter of fact, there are many exceptions to the Act. Some of the exceptions are listed below.

A matter of necessity. It is determined that use of a foreign air carrier is a matter of necessity. How does one make that determination? 41 CFR 301-10.138 gives some guidance. Using a foreign air-carrier is deemed a necessity when service by a U.S. air-carrier is available, but cannot provide the air transportation needed or use of the U.S. air-carrier will not accomplish the agency’s mission. Some circumstances dictating a necessity are when an agency determines that use of a foreign air-carrier is necessary for medical reasons, or if use is required to avoid an unreasonable risk to a traveler’s safety (requires written approval by an agency on a case-by case basis), or when a traveler can’t purchase a ticket in his/her authorized class of service on a U.S. air-carrier, but can purchase one in his/her authorized class on a foreign air-carrier.

Travel under a bilateral agreement. Transportation is provided under a bilateral or multilateral air transportation agreement between the U.S. and another country. The Secretary of Transportation has to have determined that the agreement meets the requirement of the Fly America Act.

Employees of Certain Agencies. Another exception applies to officers and employees of the Department of State, U.S. Information Agency, U.S. International Development Corporation Agency, or the Arms Control Agency whose travel is paid for by funds appropriated to one of those agencies and the travel is between two places outside the U.S.

No U.S. Air-Carrier Service on that Particular Leg. If there is no U.S. air-carrier that provides service on a certain leg of your flight, then you may use a foreign air carrier. But only to or from the nearest exchange point on a usually traveled route to connect with a U.S. air-carrier.

Involuntary Re-routing. You can use a foreign air-carrier if a U.S. air carrier involuntarily re-routes your travel and puts you on a foreign air carrier.

Saving a Substantial Amount of Time. You can use a foreign air carrier if service on the foreign air carrier would be three hours or less, AND use of a U.S. air-carrier would at least double your en route travel time.

Costs of Transportation Reimbursed by a Third Party. You may use a foreign air-carrier when the costs of your transportation are reimbursed in full by a third party, such as a foreign government or international agency.

SOME SPECIFIC EXCEPTIONS TO THE FLY AMERICA ACT In addition to the general exceptions above, there are some specific exceptions to be aware of, and they depend on whether your origin and destination are outside of the U.S., or whether your travel is between another country and the U.S.

Travel between the U.S. and another country. Below are some exceptions to keep in mind that only apply when your travel is between the U.S. and another country.
(1) If a U.S. flag air carrier offers nonstop or direct service (no aircraft change) from your origin to your destination, you have to use a U.S. air carrier, UNLESS, use of the U.S. air carrier would extend your travel time, including a delay at your origin, by 24 hours or more.
(2) 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. air carrier on every portion of your route where the U.S. carrier provides service, unless, when compared to using a foreign air carrier, use of the U.S. carrier would (a) increase the number of aircraft changes you make outside the U.S. by 2 or more; (b) use of the U.S. air carrier would extend your travel time by at least 6 hours or more, or (c) the use of a U.S. air carrier would require a connecting time of 4 hours or more at an overseas interchange point.

Travel solely outside the U.S. Below are some exceptions to the Fly America Act requirements that apply when you travel solely outside the U.S., and a U.S. flag air carrier provides service between your origin and destination. Basically, you have to use the U.S. air carrier unless, when compared to using a foreign air carrier, use of the U.S. air carrier would:
(1) increase the number of aircraft changes you have to make en route by 2 or more;
(2) extend your travel time by 6 hours or more; or
(3) require a connecting time of 4 hours or more at an overseas interchange point.

DOCUMENTATION REQUIRED WHEN USING A FOREIGN AIR CARRIER
When using a foreign air carrier, a grantee will need to provide a certification as to why a foreign air carrier must be used. According to section 301-10.142, the certification must include
(a) the traveler’s name;
(b) the dates of travel;
(c) the origin and destination of travel;
(d) a detailed itinerary of the travel, including the name of the air carrier and flight number for each leg of the trip; and
(e) a statement explaining why the travel performed by the grantee met one of the exceptions to the requirements of the Fly America Act.

Sample Certification/Justification

Checklist to assist in determining qualifications for a waiver of the restrictions of the Fly America Act

For a complete description of the rules for the Fly America Act as defined by the Federal Travel Regulations, please click the following link: Use of United States Flag Air Carriers