Federal Management Regulation (FMR); Restrictions on International Transportation of Freight and Household Goods, 33474-33477 [2014-13652]
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Federal Register / Vol. 79, No. 112 / Wednesday, June 11, 2014 / Rules and Regulations
Pesticide chemical
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CAS Reg. No.
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5. In § 180.960, the table is amended
by revising the following entry to read
as follows:
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Limits
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§ 180.960 Polymers; exemptions from the
requirement of a tolerance.
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Polymer
CAS Reg. No.
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a-alkyl-w-hydroxypoly (oxypropylene) and/or
poly (oxyethylene) polymers where the alkyl
chain contains a minimum of six carbons and
a minimum number average molecular weight
(in amu) 1,100.
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9002–92–0; 9004–95–9; 9004–98–2; 9005–00–9; 9035–85–2; 9038–29–3; 9038–43–1; 9040–
05–5; 9043–30–5; 9087–53–0; 25190–05–0; 24938–91–8; 25231–21–4; 26183–52–8;
26468–86–0; 26636–39–5; 27252–75–1; 27306–79–2; 31726–34–8; 34398–01–1; 34398–
05–5; 37251–67–5; 37311–00–5; 37311–01–6; 37311–02–7; 37311–04–9; 39587–22–9;
50861–66–0; 52232–09–4; 52292–17–8; 52609–19–5; 57679–21–7; 59112–62–8; 60828–
78–6; 61702–78–1; 61725–89–1; 61791–13–7; 61791–20–6; 61791–28–4; 61804–34–0;
61827–42–7; 61827–84–7; 62648–50–4; 63303–01–5; 63658–45–7; 63793–60–2; 64366–
70–7; 64415–24–3; 64415–25–4; 64425–86–1; 65104–72–5; 65150–81–4; 66455–14–9:
66455–15–0; 67254–71–1; 67763–08–0; 68002–96–0; 68002–97–1; 68131–39–5; 68131–
40–8; 68154–96–1; 68154–97–2; 68154–98–3; 68155–01–1; 68213–23–0; 68213–24–1;
68238–81–3; 68238–82–4; 68409–58–5; 68409–59–6; 68439–30–5; 68439–45–2; 68439–
46–3; 68439–48–5; 68439–49–6; 68439–50–9; 68439–51–0; 68439–53–2; 68439–54–3;
68458–88–8; 68526–94–3; 68526–95–4; 68551–12–2; 68551–13–3; 68551–14–4; 68603–
20–3; 68603–25–8; 68920–66–1; 68920–69–4; 68937–66–6; 68951–67–7; 68954–94–9;
68987–81–5; 68991–48–0; 69011–36–5; 69013–18–9; 69013–19–0; 69227–20–9; 69227–
21–0; 69227–22–1; 69364–63–2; 70750–27–5; 70879–83–3; 70955–07–6; 71011–10–4;
71060–57–6; 71243–46–4; 72066–65–0; 72108–90–8; 72484–69–6; 72854–13–8; 72905–
87–4; 73018–31–2; 73049–34–0; 74432–13–6; 74499–34–6; 78330–19–5; 78330–20–8;
78330–21–9; 78330–23–1; 79771–03–2; 84133–50–6; 85422–93–1; 97043–91–9; 97953–
22–5; 102782–43–4; 103331–86–8; 103657–84–7; 103657–85–8; 103818–93–5; 103819–
03–0; 106232–83–1; 111905–54–5; 116810–31–2; 116810–32–3; 116810–33–4; 120313–
48–6; 120944–68–5; 121617–09–2; 126646–02–4; 126950–62–7; 127036–24–2; 139626–
71–4; 152231–44–2; 154518–36–2; 157627–86–6; 157627–88–8; 157707–41–0; 157707–
43–2; 159653–49–3; 160875–66–1; 160901–20–2; 160901–09–7; 160901–19–9; 161025–
21–4; 161025–22–5; 166736–08–9; 169107–21–5; 172588–43–1; 176022–76–7; 196823–
11–7; 287935–46–0; 288260–45–7; 303176–75–2; 954108–36–2
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AGENCY:
the Cargo Preference Act of 1954, as
amended; and clarifying FMR language
to state clearly that this part applies to
all agencies and wholly-owned
Government corporations except where
otherwise expressly provided.
DATES: This final rule is effective June
11, 2014.
FOR FURTHER INFORMATION CONTACT: Lee
Gregory, Office of Asset and
Transportation Management, Office of
Government-wide Policy, General
Services Administration, 1800 F Street
NW., Washington, DC 20405, by phone
at (202) 507–0871 or by email at
lee.gregory@gsa.gov. Please cite FMR
Case 2012–102–5.
SUPPLEMENTARY INFORMATION:
GSA is amending the Federal
Management Regulation (FMR)
provisions pertaining to the use of
United States air carriers for cargo under
the ‘‘Fly America Act’’; updating the
current provisions in the FMR regarding
A. Background
GSA reviewed the transportation
management policy regarding
international shipments and published a
proposed rule in the Federal Register on
June 19, 2013 (78 FR 36723).
The Fly America Act, 49 U.S.C.
40118, requires the use of United States
air carrier service for all air cargo
[FR Doc. 2014–13383 Filed 6–10–14; 8:45 am]
BILLING CODE 6560–50–P
GENERAL SERVICES
ADMINISTRATION
41 CFR Part 102–117
[Change 2014–03; FMR Case 2012–102–5;
Docket 2012–0017, Sequence 1]
RIN 3090–AJ34
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Federal Management Regulation
(FMR); Restrictions on International
Transportation of Freight and
Household Goods
Office of Government-wide
Policy (OGP), General Services
Administration (GSA).
ACTION: Final rule.
SUMMARY:
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transportation services funded by the
United States (U.S.) Government. One
exception to this requirement is
transportation provided under a
bilateral or multilateral air transport
agreement, to which the U.S.
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 U.S. 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 StatesEuropean 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 U.S.
Government (excluding transportation
funded by the Secretary of Defense or in
the Secretary of a military department),
between any point in the U.S. and any
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point in an EU Member State or between
any two points outside the U.S. 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 U.S. Government and the
European Union amended the U.S.-EU
Agreement with a Protocol signed on
June 24, 2010. In the amended
agreement, the U.S. further extended the
rights of EU air carriers to transport
cargo on scheduled and charter flights
funded by the U.S. 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 U.S. Government 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 U.S. Government 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
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 final
rule that directs customers to the
Department of State Internet-based
source of information (https://
www.state.gov/e/eb/tra/ata/index.htm)
relating to such agreements. This
approach will allow GSA to provide and
quickly update relevant information as
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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 updating the
FMR to include 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.
Further, in accordance with 49 U.S.C.
40118(c), GSA is amending 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 agency 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 when using a U.S. flag air carrier.
Further, this final rule updates FMR
section 102–117.135(b) to include the
current telephone number, email
address, and Web site for the
Department of Transportation Maritime
Administration (MARAD), Office of
Cargo Preference and Domestic Trade.
This final rule also identifies 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 revising the language
in FMR section 102–117.15 to state
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33475
clearly that this part applies to all
agencies and wholly-owned
Government corporations except as
otherwise expressly provided.
B. Public Comments and Responses
In the proposed rule, GSA provided
the public a 30-day comment period
which ended on July 19, 2013. GSA
received five recommendations from the
National Air Carrier Association
(NACA). NACA represents 16 member
carriers who transport cargo and
passengers on both scheduled and nonscheduled U.S. domestic and
international flights. NACA comments
related to the focus of the proposed
change; how GSA will monitor and
control compliance with the Fly
America Act; and questioned how there
will be consistency of interpretations by
U.S. Government agencies for the
exceptions listed.
Comment: There must be a
mechanism to ensure U.S. Government
agencies arrange flights using foreign
flag air carriers only when it is a matter
of necessity, on a case-by-case basis,
according to the exceptions listed in the
amendment.
Response: Regulatory and other
guidance already exists that allows
agencies to use foreign flag air carriers
only when it is a matter of necessity.
These include the Comptroller General
Decision B–138942, issued March 31,
1981, requiring agency decision and
certifications to be attached to the
voucher; the Federal Acquisition
Regulation (FAR) that governs Federal
contracts for civilian agencies in Part 47,
Transportation, which contains
guidance for the implementation of the
Fly America Act (48 CFR 47.403 and
47.404); the Federal Travel Regulation
(FTR) which addresses Federal travel
and relocation (41 CFR 301–10.141, et
seq.), and agency policy that regulates
the use of foreign flag carriers.
Comment: Each of the exceptions is
subject to interpretation, but the one
referring to ‘‘. . . an unreasonable risk
to safety’’ appears to be particularly
questionable. Which U.S. Government
agency will be responsible to make the
determination that the flight is too risky
for an U.S. flag carrier? U.S. flag carriers
must be included in the risk assessment.
Response: Additional language for
clarification regarding ‘‘an unreasonable
risk to safety’’ has been incorporated
into this final rule. An agency decision
must be supported by an advisory alert
issued by the Federal Aviation
Administration, Department of State, or
the Transportation Security
Administration.
Comment: There must be proof
supplied in every case by agencies
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arranging flights using foreign flag air
carriers.
Response: As identified in the
response to the first comment above,
regulatory and other guidance already
exists for agencies to follow for flights
using foreign flag air carriers.
Comment: GSA should announce to
the public, in advance, all flights
proposed by U.S. Government agencies
that would use foreign flag air carriers
in accordance with this amendment,
including the proof as to why a foreign
flag air carrier is proposed to be used.
This will allow U.S. air carriers the
opportunity to comment, object, and
appeal the intent to use a foreign flag
carrier. GSA should propose a simple
method to announce these flights to the
public.
Response: The comments are outside
the scope of this rule.
Comment: Note following (3)(v) of
this amendment: The use of foreign flag
air carriers should be rare. NACA urges
GSA to replace this note with: (1) A
transparent mechanism to allow
advance notice of proposed use of
foreign carriers, (2) an appeal process
for U.S. flag carriers to object, and (3) a
commitment to continue monitoring use
of foreign flag air carriers by U.S.
Government agencies. Only then will it
be possible to ensure strict compliance
with all provisions of the Fly America
Act.
Response: The proposed amendment
‘‘note’’ text following (3)(v) has been
placed into the regulation at section
102–117.135(a), Air Cargo. GSA agrees
that the use of foreign-flag air carriers
should be rare.
The comments regarding the three
steps are outside the scope of this rule.
It is each agency’s responsibility to
procure and manage their foreign air
carrier transportation requirements.
D. Executive Orders 12866 and 13563
C. Changes
This final rule—
• 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.
• Updates current provisions
pertaining to the use of U.S. air carriers
for cargo under the provisions of 49
U.S.C. 40118, commonly referred to as
the ‘‘Fly America Act,’’ and the 46
U.S.C. 55305, the Cargo Preference Act
of 1954, as amended.
• Clarifies the exceptions to the
requirement of using U.S. flag air
carriers.
• Revises contact information and
Web sites for the Department of
Transportation, Maritime
Administration (MARAD).
G. Small Business Regulatory
Enforcement Fairness Act
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Executive Orders (E.O.) 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.
E. Regulatory Flexibility Act
While these revisions are substantive,
this final rule will 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. This final rule
is also exempt from the Regulatory
Flexibility Act per 5 U.S.C. 553(a)(2)
because it applies to agency
management or personnel.
F. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the 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.
This final 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
Air Cargo, International
Transportation, Ocean Cargo,
Transportation Management, U.S. flag
carriers.
Dated: April 3, 2014.
Dan Tangherlini,
Administrator of General Services.
For the reasons set forth in the
preamble, 41 CFR Part 102–117 is
amended as follows:
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PART 102–117—TRANSPORTATION
MANAGEMENT
1. The authority citation for 41 CFR
Part 102–117 continues 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.
2. Revise § 102–117.15 to read as
follows:
■
§ 102–117.15
apply?
To whom does this part
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 § 102–117.135 to read as
follows:
§ 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: The use of foreign-flag
air carriers when funded by the U.S.
Government should be rare.
International movement of cargo by air
is subject to the Fly America Act, 49
U.S.C. 40118, which requires the use of
U.S. flag air carrier service for all air
cargo movements funded by the U.S.
Government, including cargo shipped
by contractors, grantees, and others at
Government expense, except when one
of the following exceptions applies:
(1) 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 Department of Transportation has
determined meets the requirements of
the Fly America Act.
(i) Information on bilateral or
multilateral air transport agreements
impacting U.S. Government procured
transportation can be accessed at
https://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 U.S. Government
procured transportation. These bulletins
may be accessed at https://www.gsa.gov/
bulletins;
(2) When the costs of transportation
are reimbursed in full by a third party,
such as a foreign government, an
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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 when using a U.S. flag carrier
aircraft (e.g., terrorist threats). Written
approval of the use of foreign air carrier
service based on an unreasonable risk to
safety must be approved by your agency
on a case-by-case basis and must be
supported by a travel advisory notice
issued by the Federal Aviation
Administration, Department of State, or
the Transportation Security
Administration; or
(v) No U.S. flag air carrier can
accomplish the agency’s mission.
(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
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 MARAD, Tel: 1–800–996–2723,
Email: cargo.marad@dot.gov. For further
information on international ocean
shipping, go to: https://
www.marad.dot.gov/cargopreference.
[FR Doc. 2014–13652 Filed 6–10–14; 8:45 am]
BILLING CODE 6820–14–P
GENERAL SERVICES
ADMINISTRATION
41 CFR Part 102–192
[Change 2014–02; FMR Case 2008–102–4;
Docket 2008–0001; Sequence 7]
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RIN 3090–AI79
Federal Management Regulation
(FMR); Mail Management;
Requirements for Agencies
Office of Asset and
Transportation Management (MA),
Office of Government-wide Policy
(OGP), GSA.
ACTION: Final rule.
AGENCY:
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The U.S. General Services
Administration (GSA) is amending the
Federal Management Regulation (FMR)
by revising its mail management policy.
This amendment revises the term
‘‘commercial payment process’’ and
removes the requirement that agencies
pay the United States Postal Service
(USPS) using only commercial payment
processes. This final rule changes the
date of the annual mail management
report, removes the description of
facility and program mail manager
responsibilities, and requires all
agencies to expand existing mail
security policy to include guidance for
employees receiving incoming and
sending outgoing official mail at
alternative worksites. Finally, this final
rule encourages agencies to implement
the process of mail consolidation,
increase sustainable activities in their
mail programs, and makes editorial and
technical corrections. This case is
included in GSA’s retrospective review
of existing regulations under Executive
Order 13563.
DATES: Effective: August 11, 2014.
ADDRESSES: Additional information is
available at www.gsa.gov/
improvingregulations.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Linda
Willoughby, Office of Government-wide
Policy, Mail Management Policy, at
202–219–1083, or by email at
linda.willoughby@gsa.gov. Please cite
FMR case 2008–102–4. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat (MVCB), 1800 F Street NW.,
Washington, DC 20405, 202–501–4755.
SUPPLEMENTARY INFORMATION:
SUMMARY:
A. Background
GSA is amending this regulation to
reverse an interim rule first issued on
June 6, 2002, in the Federal Register (67
FR 38896) that required all payments to
the United States Postal Service (USPS)
to be made using commercial payment
processes, not the Official Mail
Accounting System (OMAS). As a result
of agency comments and waiver
requests received, it became clear that
many agencies were unable to move to
commercial payment. Additionally,
enhancements in OMAS allowed for
accountability to agencies at the
program level, which is important for
cost containment. This rule allows
agencies to pay the USPS using
commercial payment processes, their
existing OMAS account, or a
combination of the two. This approach
is consistent with comments received
on the proposed rule published in the
Federal Register on January 9, 2009 (74
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33477
FR 870). In addition, this rule
incorporates several changes that GSA
drafted in conjunction with the Federal
Mail Executive Council.
A proposed rule was published in the
Federal Register on May 13, 2013 (FMR
Case 2008–102–4 at 78 FR 27908), that
received 11 comments. Of these, 9
comments recommended keeping the
annual reporting threshold for agencies
with mail expenditures of $1 million or
more (‘‘large agencies’’). GSA concurs
with these comments and kept the
reporting requirement for large agencies
for two reasons. First, the current
reporting from large agencies is thought
to represent over 95 percent of mail
expenditures. This is sufficient for the
development of data-driven policy.
Second, the reporting requirement
would be too burdensome for small
agencies and would be costly. Members
of the Small Agency Council (SAC)
submitted 7 of 9 comments requesting to
retain the large agency reporting
requirement. SAC members have 6,000
or fewer employees. According to SAC,
about 33 percent of the 90 agencies are
micro-agencies with less than 100
employees and have mail expenditures
under $20,000. Thus, GSA agrees that
the proposed, expanded reporting
requirement would be too burdensome
on small agencies with low mail
expenditures.
Three comments were received on
commercial payment. As the proposed
change was to allow payment to the
USPS from either commercial or
through OMAS, the request for GSA to
continue accepting deviation requests
for OMAS is unnecessary. The
definition of payment to non-USPS
service providers was expanded in
response to one comment received that
the current definition was too limited.
One commenter requested that GSA
retain roles and responsibilities of the
mail program and center managers in
the regulation. GSA does not adopt this
request as the information was
duplicative and best used as a guide, as
the requestor indicated. Lastly, GSA
adopted some editorial comments and
has addressed these comments below in
the ‘‘Changes to the Current FMR’’
section.
Two comments received were in
support of keeping the consolidation of
internal and external mail operations, as
well as, supporting the sustainability
activities in the mail program by
incorporating strategies in accordance
with Executive Order 13514. GSA
appreciates these comments.
B. Changes to the Current FMR
This final rule:
E:\FR\FM\11JNR1.SGM
11JNR1
]]>Agencies
[Federal Register Volume 79, Number 112 (Wednesday, June 11, 2014)]
[Rules and Regulations]
[Pages 33474-33477]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-13652]
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GENERAL SERVICES ADMINISTRATION
41 CFR Part 102-117
[Change 2014-03; 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 Government-wide Policy (OGP), General Services
Administration (GSA).
ACTION: Final rule.
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SUMMARY: GSA is amending the Federal Management Regulation (FMR)
provisions pertaining to the use of United States air carriers for
cargo under the ``Fly America Act''; updating the current provisions in
the FMR regarding the Cargo Preference Act of 1954, as amended; and
clarifying FMR language to state clearly that this part applies to all
agencies and wholly-owned Government corporations except where
otherwise expressly provided.
DATES: This final rule is effective June 11, 2014.
FOR FURTHER INFORMATION CONTACT: Lee Gregory, Office of Asset and
Transportation Management, Office of Government-wide Policy, General
Services Administration, 1800 F Street NW., Washington, DC 20405, by
phone at (202) 507-0871 or by email at lee.gregory@gsa.gov. Please cite
FMR Case 2012-102-5.
SUPPLEMENTARY INFORMATION:
A. Background
GSA reviewed the transportation management policy regarding
international shipments and published a proposed rule in the Federal
Register on June 19, 2013 (78 FR 36723).
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 (U.S.) Government. One exception to this
requirement is transportation provided under a bilateral or
multilateral air transport agreement, to which the U.S. 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 U.S. 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 U.S. Government (excluding transportation funded by the Secretary
of Defense or in the Secretary of a military department), between any
point in the U.S. and any
[[Page 33475]]
point in an EU Member State or between any two points outside the U.S.
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 U.S. Government and the European Union amended the U.S.-EU
Agreement with a Protocol signed on June 24, 2010. In the amended
agreement, the U.S. further extended the rights of EU air carriers to
transport cargo on scheduled and charter flights funded by the U.S.
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 U.S. Government 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 U.S. Government 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
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 final rule that directs customers
to the Department of State Internet-based source of information (https://www.state.gov/e/eb/tra/ata/index.htm) relating to such agreements.
This approach will 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 updating the FMR to include 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.
Further, in accordance with 49 U.S.C. 40118(c), GSA is amending
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 agency
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 when using a U.S. flag air carrier.
Further, this final rule updates FMR section 102-117.135(b) to
include the current telephone number, email address, and Web site for
the Department of Transportation Maritime Administration (MARAD),
Office of Cargo Preference and Domestic Trade. This final rule also
identifies 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 revising 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. Public Comments and Responses
In the proposed rule, GSA provided the public a 30-day comment
period which ended on July 19, 2013. GSA received five recommendations
from the National Air Carrier Association (NACA). NACA represents 16
member carriers who transport cargo and passengers on both scheduled
and non-scheduled U.S. domestic and international flights. NACA
comments related to the focus of the proposed change; how GSA will
monitor and control compliance with the Fly America Act; and questioned
how there will be consistency of interpretations by U.S. Government
agencies for the exceptions listed.
Comment: There must be a mechanism to ensure U.S. Government
agencies arrange flights using foreign flag air carriers only when it
is a matter of necessity, on a case-by-case basis, according to the
exceptions listed in the amendment.
Response: Regulatory and other guidance already exists that allows
agencies to use foreign flag air carriers only when it is a matter of
necessity. These include the Comptroller General Decision B-138942,
issued March 31, 1981, requiring agency decision and certifications to
be attached to the voucher; the Federal Acquisition Regulation (FAR)
that governs Federal contracts for civilian agencies in Part 47,
Transportation, which contains guidance for the implementation of the
Fly America Act (48 CFR 47.403 and 47.404); the Federal Travel
Regulation (FTR) which addresses Federal travel and relocation (41 CFR
301-10.141, et seq.), and agency policy that regulates the use of
foreign flag carriers.
Comment: Each of the exceptions is subject to interpretation, but
the one referring to ``. . . an unreasonable risk to safety'' appears
to be particularly questionable. Which U.S. Government agency will be
responsible to make the determination that the flight is too risky for
an U.S. flag carrier? U.S. flag carriers must be included in the risk
assessment.
Response: Additional language for clarification regarding ``an
unreasonable risk to safety'' has been incorporated into this final
rule. An agency decision must be supported by an advisory alert issued
by the Federal Aviation Administration, Department of State, or the
Transportation Security Administration.
Comment: There must be proof supplied in every case by agencies
[[Page 33476]]
arranging flights using foreign flag air carriers.
Response: As identified in the response to the first comment above,
regulatory and other guidance already exists for agencies to follow for
flights using foreign flag air carriers.
Comment: GSA should announce to the public, in advance, all flights
proposed by U.S. Government agencies that would use foreign flag air
carriers in accordance with this amendment, including the proof as to
why a foreign flag air carrier is proposed to be used. This will allow
U.S. air carriers the opportunity to comment, object, and appeal the
intent to use a foreign flag carrier. GSA should propose a simple
method to announce these flights to the public.
Response: The comments are outside the scope of this rule.
Comment: Note following (3)(v) of this amendment: The use of
foreign flag air carriers should be rare. NACA urges GSA to replace
this note with: (1) A transparent mechanism to allow advance notice of
proposed use of foreign carriers, (2) an appeal process for U.S. flag
carriers to object, and (3) a commitment to continue monitoring use of
foreign flag air carriers by U.S. Government agencies. Only then will
it be possible to ensure strict compliance with all provisions of the
Fly America Act.
Response: The proposed amendment ``note'' text following (3)(v) has
been placed into the regulation at section 102-117.135(a), Air Cargo.
GSA agrees that the use of foreign-flag air carriers should be rare.
The comments regarding the three steps are outside the scope of
this rule. It is each agency's responsibility to procure and manage
their foreign air carrier transportation requirements.
C. Changes
This final rule--
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.
Updates current provisions pertaining to the use of U.S.
air carriers for cargo under the provisions of 49 U.S.C. 40118,
commonly referred to as the ``Fly America Act,'' and the 46 U.S.C.
55305, the Cargo Preference Act of 1954, as amended.
Clarifies the exceptions to the requirement of using U.S.
flag air carriers.
Revises contact information and Web sites for the
Department of Transportation, Maritime Administration (MARAD).
D. Executive Orders 12866 and 13563
Executive Orders (E.O.) 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.
E. Regulatory Flexibility Act
While these revisions are substantive, this final rule will 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. This final rule is also exempt from the Regulatory
Flexibility Act per 5 U.S.C. 553(a)(2) because it applies to agency
management or personnel.
F. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the 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.
G. Small Business Regulatory Enforcement Fairness Act
This final 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
Air Cargo, International Transportation, Ocean Cargo,
Transportation Management, U.S. flag carriers.
Dated: April 3, 2014.
Dan Tangherlini,
Administrator of General Services.
For the reasons set forth in the preamble, 41 CFR Part 102-117 is
amended as follows:
PART 102-117--TRANSPORTATION MANAGEMENT
0
1. The authority citation for 41 CFR Part 102-117 continues 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.
0
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: The use of foreign-flag air carriers when funded by
the U.S. Government should be rare. International movement of cargo by
air is subject to the Fly America Act, 49 U.S.C. 40118, which requires
the use of U.S. flag air carrier service for all air cargo movements
funded by the U.S. Government, including cargo shipped by contractors,
grantees, and others at Government expense, except when one of the
following exceptions applies:
(1) 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
Department of Transportation has determined meets the requirements of
the Fly America Act.
(i) Information on bilateral or multilateral air transport
agreements impacting U.S. Government procured transportation can be
accessed at https://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 U.S. Government procured
transportation. These bulletins may be accessed at https://www.gsa.gov/bulletins;
(2) When the costs of transportation are reimbursed in full by a
third party, such as a foreign government, an
[[Page 33477]]
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 when using a U.S. flag
carrier aircraft (e.g., terrorist threats). Written approval of the use
of foreign air carrier service based on an unreasonable risk to safety
must be approved by your agency on a case-by-case basis and must be
supported by a travel advisory notice issued by the Federal Aviation
Administration, Department of State, or the Transportation Security
Administration; or
(v) No U.S. flag air carrier can accomplish the agency's mission.
(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 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
MARAD, Tel: 1-800-996-2723, Email: cargo.marad@dot.gov. For further
information on international ocean shipping, go to: https://www.marad.dot.gov/cargopreference.
[FR Doc. 2014-13652 Filed 6-10-14; 8:45 am]
BILLING CODE 6820-14-P
