The Fly America Act (Act) refers to the provisions contained in 49 USCS § 40118. The Act requires the recipient to use U.S. flag air carriers for international air transportation of personnel and property, to the extent that service by those carriers is available[i].
However, there are certain exceptions to the rule requiring the usage of U.S. flag air carrier service for all air travel funded by the U.S. government. They are[ii]:
- when the use of a foreign air carrier is determined to be a matter of necessity; or
- when the transportation is provided under a bilateral or multilateral air transportation agreement to which the U.S. government and the government of a foreign country are parties, and which the U.S. Department of Transportation has determined as meeting the requirements of the Act.
According to provisions contained in the Act, a department, agency, or instrumentality of the U.S. government should take necessary steps to ensure that the transportation of passengers and property by air is provided by an air carrier holding a certificate issued by the secretary of transportation under 49 USCS § 41102. Further, any amount appropriated to the secretary of state or the administrator of the agency for international development can be used to pay for the transportation of an officer, or employee of the Department of State, or one of those agencies, a dependent of the officer or employee, and accompanying baggage, by a foreign air carrier, when the transportation is between two places outside the U.S.
According to the U.S. Department of State, the Act applies equally to non-U.S. nationals and non-U.S. companies, or their representatives both within the U.S. and outside its territories, irrespective of the enforcement difficulties or possible infringements of international law and personal liberty. However, non-U.S. nationals and companies regard the Act as highly anti-competitive and as unfairly favoring the U.S. airlines.
The provisions of the Act do not apply to cases where the payment or ticket was paid in full directly by a non-federal source or reimbursed to the agency by a non-federal source[iii].
The employees who travel overseas on foreign air carrier, when service by U.S. air carriers is available in violation of the Act, are personally liable for cost, even if they may have been ignorant of the Act and relied upon arrangements made by a government contractor. However, the employee’s liability can be shifted to the contractor, if the contract contains provision by which the contractor can be held accountable for such scheduling errors. Accordingly, the lack of knowledge of the Act will not justify the failure to comply with the provisions of the Act.
[i] 14 CFR 1274.930.
[ii] 41 CFR 301-10.135.
[iii] 41 CFR 304-3.8.