[Federal Register Volume 78, Number 118 (Wednesday, June 19, 2013)]
[Proposed Rules]
[Pages 36723-36725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14531]


=======================================================================
-----------------------------------------------------------------------

GENERAL SERVICES ADMINISTRATION

41 CFR Part 102-117

[FMR Case 2012-102-5; Docket 2012-0017, Sequence 1]
RIN 3090-AJ34


Federal Management Regulation (FMR); Restrictions on 
International Transportation of Freight and Household Goods

AGENCY: Office of Governmentwide Policy (OGP), General Services 
Administration (GSA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: GSA is proposing to amend the Federal Management Regulation 
(FMR) provisions pertaining to the use of United States air carriers 
for cargo under the provisions of the ``Fly America Act.'' This 
proposed rule would additionally update the current provisions in the 
FMR regarding the Cargo Preference Act of 1954, as amended. Also, this 
proposed rule would amend the Federal Management Regulation (FMR) to 
state clearly that this part applies to all agencies and wholly-owned 
Government corporations except where otherwise expressly provided.

DATES: Interested parties should submit comments in writing on or 
before July 19, 2013 to be considered in the formulation of a final 
rule.

ADDRESSES: Submit comments in response to FMR Case 2012-102-5 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FMR Case 
2012-102-5,'' select the link ``Submit a Comment'' that corresponds 
with ``FMR case 2012-102-5.'' Follow the instructions provided at the 
``Submit a Comment'' screen. Please include your name, company name (if 
any), and ``FMR Case 2012-102-5'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street NE., 7th 
Floor, Washington, DC 20417. Instructions: Please submit comments only 
and cite FMR Case 2012-102-5, in all correspondence related to this 
case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business 
confidential information provided.

FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat at 202-501-
4755, for information pertaining to status or publication schedules. 
For clarification of content, contact Ms. Lee Gregory, Office of 
Governmentwide Policy, at 202-501-1533 or email at [email protected]. 
Please cite FMR case 2012-102-5.

SUPPLEMENTARY INFORMATION: 
    This proposed rule, if adopted, would inform readers where to find 
additional information regarding bilateral or multilateral air 
transport agreements, 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.
    As these agreements qualify as exceptions to the use of U.S. flag 
air carrier service mandated by FMR section 102-117.135(a), this 
proposed rule, if adopted, would advise of an Internet-based source of 
information regarding the use of foreign air carriers under the terms 
of these bilateral or multilateral agreements. Additionally, this 
proposed rule would incorporate language regarding other exceptions to 
the Fly America Act and would more clearly define who would be subject 
to the provisions implementing the Fly America Act and the Cargo 
Preference Act.

A. Background

    The Fly America Act, 49 U.S.C. 40118, requires the use of United 
States air carrier service for all air cargo transportation services 
funded by the United States Government. The requirements of the Fly 
America Act apply whenever the air transportation of the cargo is 
funded by the U.S. Government. One exception to this requirement is 
transportation provided under a bilateral or multilateral air

[[Page 36724]]

transport 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.
    The United States Government has entered into several air transport 
agreements that allow Federally-funded transportation services for 
cargo movements to use foreign air carriers under certain 
circumstances. For example, on April 25 and April 30, 2007, the United 
States-European Union (EU) Air Transport Agreement (U.S.-EU Agreement) 
was signed, providing EU air carriers the right to transport cargo, 
including household goods, on scheduled and charter flights funded by 
the United States Government (excluding transportation funded by the 
Secretary of Defense or in the Secretary of a military department), 
between any point in the United States and any point in an EU Member 
State or between any two points outside the United States for which a 
U.S. Government civilian Department, Agency, or instrumentality (1) 
obtains the transportation for itself or in carrying out an arrangement 
under which payment is made by the U.S. Government or payment is made 
from amounts provided for use of the U.S. Government; or (2) provides 
transportation to or for a foreign country or international or other 
organization without reimbursement.
    The United States Government and the European Union amended the 
U.S.-EU Agreement with a Protocol signed on June 24, 2010. In the 
amended agreement, the United States further extended the rights of EU 
air carriers to transport cargo on scheduled and charter flights funded 
by the United States Government between any point in the United States 
and any point outside the United States, or between any two points 
outside the United States. Norway and Iceland joined the U.S.-EU Air 
transportation agreement as amended by the Protocol on June 21, 2011, 
granting carriers from those countries the same rights.
    The United States has air transport agreements with Australia, 
Switzerland, and Japan, which allow carriers from those countries to 
transport cargo subject to the Fly America Act between their respective 
home countries and the United States and between two points outside the 
United States. The provisions in the agreements with Australia and 
Switzerland became effective on October 1, 2008. The provisions in the 
agreement with Japan took effect on October 1, 2011.
    The United States previously entered into an agreement with Saudi 
Arabia regarding Federally-funded transportation services for cargo 
movements under which Saudi Arabian air carriers are permitted to 
transport cargo from Saudi Arabia to the United States and from the 
United States to Saudi Arabia when the transportation is funded by U.S. 
Government contractors providing services to Federal Government 
entities.
    Accordingly, rather than amend the FMR to include language from 
each of these agreements, and thereafter amending the FMR each time 
there is a change in air transport agreements that affect U.S. 
Government-funded cargo transportation, GSA is issuing this proposed 
rule which, if adopted, would provide an Internet-based source of 
information (http://www.state.gov/e/eb/tra/ata/index.htm) relating to 
such agreements. This approach would allow GSA to provide and quickly 
update relevant information as new agreements are signed or current 
agreements are amended without invoking the regulatory process. In the 
future, if GSA were to determine that further guidance is necessary, 
GSA may issue FMR Bulletins, or involve the regulatory process, as 
appropriate.
    Additionally, GSA is proposing to update the FMR to include 
additional exceptions to the Fly America Act, such as cargo 
transportation services that are fully reimbursed by a third party, 
e.g., a foreign government, an international agency, or other 
organization. As the Federal Government is not expending any of its own 
funds, such services are not covered by the Fly America Act.
    In accordance with 49 U.S.C. Sec.  40118(c), GSA is proposing 
regulations under which agencies may expend appropriations for cargo 
transportation using foreign air carriers when it is deemed necessary. 
There have been limited circumstances in the past where the use of a 
foreign air carrier was deemed necessary. For example, when the 
Government Accountability Office (formerly the General Accounting 
Office), had responsibility for implementing the Fly America Act, the 
Comptroller General held that when time requirements could not be met 
the use of a foreign flag carrier was deemed necessary. (See The 
Honorable Norman Y. Mineta Chairman, Subcommittee on Aviation Committee 
on Public Works and Transportation, House of Representatives, 
Comptroller General, B-210293, June 13, 1983).
    The use of foreign carriers should be very limited and approval 
should only be granted after a determination that one or more of these 
circumstances exist: no U.S. flag air carrier can provide the specific 
air transportation needed, no U.S. flag air carrier can accomplish the 
agency's mission, no U.S. flag air carrier can meet the time 
requirements in cases of emergency, there is a lack of or inadequate 
U.S. flag air carrier aircraft, or to avoid an unreasonable risk to 
safety. This rule proposes to include a provision stating that use of a 
foreign air carrier is permissible in these circumstances, but these 
circumstances should be rare.
    Further, this proposed rule would update section 102-117.135(b) to 
include the current telephone number, email address, and Web site for 
the U.S. Department of Transportation Maritime Administration (MARAD), 
Office of Cargo Preference and Domestic Trade. This proposed rule would 
also identify the Web site for agencies to go to for information that 
MARAD requires to be submitted by the shipping Department or Agency 
when cargo is shipped subject to 46 U.S.C. 55305, the Cargo Preference 
Act of 1954, as amended.
    Finally, GSA is proposing to revise the language in FMR section 
102-117.15 to state clearly that this part applies to all agencies and 
wholly-owned Government corporations except as otherwise expressly 
provided.

B. Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. This is 
not a significant regulatory action, and therefore, would not be 
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule would not be a major 
rule under 5 U.S.C. 804.

C. Regulatory Flexibility Act

    While these revisions are substantive, this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 
601, et seq. The proposed rule is also exempt from the Administrative 
Procedure Act per 5 U.S.C. 553 (a)(2) because it applies to agency 
management or personnel.

[[Page 36725]]

D. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FMR would not impose recordkeeping or information 
collection requirements, or the collection of information from 
offerors, contractors, or members of the public that require the 
approval of the Office of Management and Budget (OMB) under 44 U.S.C. 
3501, et seq.

E. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is also exempt from Congressional review 
prescribed under 5 U.S.C. 801 since it relates to agency management or 
personnel.

List of Subjects in 41 CFR Part 102-117

    Transportation Management.

    Dated: May 20, 2013.
Kathleen M. Turco,
Associate Administrator, Office of Governmentwide Policy.
    For the reasons set forth in the preamble, GSA proposes to amend 41 
CFR Part 102-117 as follows:

PART 102-117-TRANSPORTATION MANAGEMENT

0
1. The authority citation for 41 CFR Part 102-117 is revised to read as 
follows:

    Authority: 31 U.S.C. 3726; 40 U.S.C. 121(c); 40 U.S.C. 501, et 
seq.; 46 U.S.C. 55305; 49 U.S.C. 40118.

0
2. Revise Sec.  102-117.15 to read as follows:


Sec.  102-117.15  To whom does this part apply?

    This part applies to all agencies and wholly-owned Government 
corporations as defined in 5 U.S.C. 101, et seq. and 31 U.S.C. 9101(3), 
except as otherwise expressly provided.
    3. Revise Sec.  102-117.135 to read as follows:


Sec.  102-117.135  What are the international transportation 
restrictions?

    Several statutes mandate the use of U.S. flag carriers for 
international shipments, such as 49 U.S.C. 40118, commonly referred to 
as the ``Fly America Act'', and 46 U.S.C. 55305, the Cargo Preference 
Act of 1954, as amended. The principal restrictions are as follows:
    (a) Air cargo: This subsection applies to all air cargo 
transportation services where the transportation is funded by the U.S. 
Government, including that shipped by contractors, grantees, and others 
when the transportation is financed by the Government. The Fly America 
Act, 49 U.S.C. 40118, requires the use of U.S. flag air carrier service 
for all air cargo movements funded by the U.S. Government, except when 
one of the following exceptions applies:
    (1) 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.
    (i) Information on bilateral or multilateral air transport 
agreements impacting United States Government procured transportation 
can be accessed at http://www.state.gov/e/eb/tra/ata/index.htm; and
    (ii) If determined appropriate, GSA may periodically issue FMR 
Bulletins providing further guidance on bilateral or multilateral air 
transportation agreements impacting United States Government procured 
transportation. These bulletins may be accessed at http://www.gsa.gov/bulletins;
    (2) When the costs of transportation are reimbursed in full by a 
third party, such as a foreign government, an international agency, or 
other organization; or
    (3) Use of a foreign air carrier is determined to be a matter of 
necessity by your agency, on a case-by-case basis, when:
    (i) No U.S. flag air carrier can provide the specific air 
transportation needed;
    (ii) No U.S. flag air carrier can meet the time requirements in 
cases of emergency;
    (iii) There is a lack of or inadequate U.S. flag air carrier 
aircraft;
    (iv) There is an unreasonable risk to safety; or
    (v) No U.S. flag air carrier can accomplish the agency's mission.

    Note to Sec.  102-117.135(a)(3): The use of foreign flag air 
carriers should be rare.

    (b) Ocean cargo: International movement of property by water is 
subject to the Cargo Preference Act of 1954, as amended, 46 U.S.C. 
55305, and the implementing regulations found at 46 CFR Part 381, which 
require the use of a U.S. flag carrier for 50% of the tonnage shipped 
by each Department or Agency when service is available. The U.S. 
Maritime Administration (MARAD) monitors agency compliance with these 
laws. All Departments or Agencies shipping Government-impelled cargo 
must comply with the provisions of 46 CFR 381.3. For further 
information contact the U.S. Department of Transportation, Maritime 
Administration (MARAD), Tel: 1-800-996-2723, Email: 
[email protected]. For further information on international ocean 
shipping, go to: http://www.marad.dot.gov/cargopreference.

[FR Doc. 2013-14531 Filed 6-18-13; 8:45 am]
BILLING CODE 6820-14-P