39 U.S.C. § 5402 Contracts For Transportation of Mail By Air

• Library: United States Statutes
• Edition: 2023
• Currency: Current through P.L. 118-34 (published on www.congress.gov on 12/26/2023), except for [P. L. 118-31]
• Year: 2023
• Citation: 39 U.S.C. § 5402

(a) In this section-

(1) the term "acceptance point" means the point at which nonpriority bypass mail originates;

(2) the terms foreign air carrier,¹ "air carrier", "interstate air transportation", "foreign air carrier".² and "foreign air transportation" have the meanings given such terms in section 40102(a) of title 49, United States Code;

(3) the term "base fare" means the fare paid to the carrier issuing the passenger ticket or carrying nonmail freight which may entail service being provided by more than 1 carrier;

(4) the term "bush carrier" means a carrier operating aircraft certificated within the payload capacity requirements of subsection (g)(1)(A)(iv)(I) on a city pair route;

(5) the term "bush passenger carrier" means a passenger carrier that meets the requirements of subsection (g)(1)(A)(iv)(I) and provides passenger service on a city pair route;

(6) the term "bush route" means an air route in which only a bush carrier is tendered nonpriority bypass mail between the origination point, being either an acceptance point or a hub, as determined by the Postal Service, and the destination city;

(7) the term "certificated air carrier" means an air carrier that holds a certificate of public convenience and necessity issued under section 41102(a) of title 49;

(8) the term "city pair" means service between an origin and destination city pair;

(9) the term "code-share relationship" means a relationship pursuant to which any certificated air carrier or foreign air carrier's designation code is used to identify a flight operated by another air carrier or foreign air carrier;

(10) the term "composite rate"-

(A) means a combination of mainline and bush linehaul rates and a single terminal handling payment at a bush terminal handling rate paid to a bush carrier for a direct flight from an acceptance point to a bush destination beyond a hub point; and

(B) shall be based on the mainline rate paid to the hub, plus the lowest bush rate paid to bush carriers in the State of Alaska for the distance traveled from the hub point to the destination point;

(11) the term "equitable tender" means the practice of the Postal Service of equitably distributing mail on a fair and reasonable basis between those air carriers that offer equivalent services and costs between 2 communities in accordance with the regulations of the Postal Service;

(12) the term "existing mainline carrier" means a mainline carrier (as defined in this subsection) that on January 1, 2001, was-

(A) certified under part 121;

(B) qualified to provide mainline nonpriority bypass mail service; and

(C) actually engaged in the carriage, on scheduled service within the State of Alaska, of mainline nonpriority bypass mail tendered to it under its designator code.³

(13) the term "mainline carrier" means a carrier operating aircraft under part 121 and certificated within the payload capacity requirements of subsection (g)(1)(A)(iv)(II) on a given city pair route;

(14) the term "mainline route" means a city pair in which a mainline carrier is tendered nonpriority bypass mail;

(15) the term "new", when referencing a carrier, means a carrier that-

(A) meets the respective requirements of subclause (I) or (II) of subsection (g)(1)(A)(iv), depending on the type of route being served and the size of aircraft being used to provide service;

(B) began providing nonpriority bypass mail service on a city pair route in the State of Alaska after January 1, 2001; and

(C) is not comprised of previously qualified existing mainline carriers as a result of merger or sale;

(16) the term "part 121" means part 121 of title 14, Code of Federal Regulations;

(17) the term "part 135" means part 135 of title 14, Code of Federal Regulations;

(18) the term "scheduled service" means-

(A) flights are operated in common carriage available to the general public under a published schedule;

(B) flight schedules are announced in advance in systems specified by the Postal Service, in addition to the Official Airline Guide or the air cargo equivalent of that Guide;

(C) flights depart whether full or not; and

(D) customers contract for carriage separately on a regular basis;

(19) the term "Secretary" means the Secretary of Transportation;

(20) the term "121 bush passenger carrier" means a bush passenger carrier providing passenger service on bush routes under part 121;

(21) the term "121 mainline passenger carrier" means a mainline carrier providing passenger service through scheduled service on routes under part 121;

(22) the term "121 passenger aircraft" means an aircraft flying passengers on a city pair route that is operated under part 121;

(23) the term "121 passenger carrier" means a passenger carrier that provides scheduled service under part 121;

(24) the term "135 bush passenger carrier" means a bush passenger carrier providing passenger service through scheduled service on bush routes under part 135; and

(25) the term "135 passenger carrier" means a passenger carrier that provides scheduled service under part 135.

(b) INTERNATIONAL MAIL.-

(1) IN GENERAL.-

(A) Except as otherwise provided in this subsection, the Postal Service may contract for the transportation of mail by aircraft between any of the points in foreign air transportation only with certificated air carriers. A contract may be awarded to a certificated air carrier to transport mail by air between any of the points in foreign air transportation that the Secretary of Transportation has authorized the carrier to serve either directly or through a code-share relationship with one or more foreign air carriers.

(B) If the Postal Service has sought offers or proposals from certificated air carriers to transport mail in foreign air transportation between points, or pairs of points within a geographic region or regions, and has not received offers or proposals that meet Postal Service requirements at a fair and reasonable price from at least 2 such carriers, the Postal Service may seek offers or proposals from foreign air carriers. Where service in foreign air transportation meeting the Postal Service's requirements is unavailable at a fair and reasonable price from at least 2 certificated air carriers, either directly or through a code-share relationship with one or more foreign air carriers, the Postal Service may contract with foreign air carriers to provide the service sought if, when the Postal Service seeks offers or proposals from foreign air carriers, it also seeks an offer or proposal to provide that service from any certificated air carrier providing service between those points, or pairs of points within a geographic region or regions, on the same terms and conditions that are being sought from foreign air carriers.

(C) For purposes of this subsection, the Postal Service shall use a methodology for determining fair and reasonable prices for the Postal Service designated region or regions developed in consultation with, and with the concurrence of, certificated air carriers representing at least 51 percent of available ton miles in the markets of interest.

(D) For purposes of this subsection, ceiling prices determined pursuant to the methodology used under subparagraph (C) shall be presumed to be fair and reasonable if they do not exceed the ceiling prices derived from-

(i) a weighted average based on market rate data furnished by the International Air Transport Association or a subsidiary unit thereof; or

(ii) if such data are not available from those sources, such other neutral, regularly updated set of weighted average market rates as the Postal Service, with the concurrence of certificated air carriers representing at least 51 percent of available ton miles in the markets of interest, may designate.

(E) If, for purposes of subparagraph (D)(ii), concurrence cannot be attained, then the most recently available market rate data described in this subparagraph shall continue to apply for the relevant market or markets.

(2) CONTRACT PROCESS.-The Postal Service shall contract for foreign air transportation as set forth in paragraph (1) through an open procurement process that will provide-

(A) potential offerors with timely notice of business opportunities in sufficient detail to allow them to make a proposal;

(B) requirements, proposed terms and conditions, and evaluation criteria to potential offerors; and

(C) an opportunity for unsuccessful offerors to receive prompt feedback upon request.

(3) EMERGENCY OR UNANTICIPATED CONDITIONS; INADEQUATE LIFT SPACE.-The Postal Service may enter into contracts to transport mail by air in foreign air transportation with a certificated air carrier or a foreign air carrier without complying with the requirements of paragraphs (b)(1) and (2) if-

(A) emergency or unanticipated conditions exist that make it impractical for the Postal Service to comply with such requirements; or

(B) its demand for lift exceeds the space available to it under existing contracts and-

(i) there is insufficient time available to seek additional lift using procedures that comply with those requirements without compromising the Postal Service's service commitments to its own customers; and

(ii) the Postal Service first offers any certificated air carrier holding a contract to carry mail between the relevant points the opportunity to carry such excess volumes under the terms of its existing contract.

(c) GOOD FAITH EFFORT REQUIRED.-The Postal Service and potential offerors shall put a good-faith effort into resolving disputes concerning the award of contracts made under subsection (b).

(d) If the Postal Service determines that service by certificated air carriers or combination of air carriers between any pair or pairs of points in foreign air transportation is not adequate for its purposes, it may contract, without advertising for bids, in such manner and under such terms and conditions as it may deem appropriate, with any air taxi operator or combination thereof for such air transportation service. Contracts made under this subsection may be renewed at the existing rate by mutual agreement between the holder and the Postal Service. The Postal Service, with the consent of the air taxi operator, may adjust the compensation under such contracts for increased or decreased costs occasioned by changed conditions occurring during the contract term. The Postal Service shall cancel such a contract when the Secretary authorizes an additional certificated carrier or carriers to provide service between any pair or pairs of points covered by the contract, and such carrier or carriers inaugurate schedules adequate for its purposes.