This is the accessible text file for GAO report number GAO-04-34R entitled 'Issues Relating to Foreign Investment and Control of U.S. Airlines' which was released on December 01, 2003. This text file was formatted by the U.S. General Accounting Office (GAO) to be accessible to users with visual impairments, as part of a longer term project to improve GAO products' accessibility. Every attempt has been made to maintain the structural and data integrity of the original printed product. Accessibility features, such as text descriptions of tables, consecutively numbered footnotes placed at the end of the file, and the text of agency comment letters, are provided but may not exactly duplicate the presentation or format of the printed version. The portable document format (PDF) file is an exact electronic replica of the printed version. We welcome your feedback. Please E-mail your comments regarding the contents or accessibility features of this document to Webmaster@gao.gov. This is a work of the U.S. government and is not subject to copyright protection in the United States. It may be reproduced and distributed in its entirety without further permission from GAO. Because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately. October 30, 2003: The Honorable Trent Lott: Chairman: The Honorable John D. Rockefeller: Ranking Minority Member: Subcommittee on Aviation Committee on Commerce, Science, and Transportation: United States Senate: Subject: Issues Relating to Foreign Investment and Control of U.S. Airlines: In May 2003, the Bush Administration proposed amending the legislation that currently restricts foreign ownership of U.S. airlines, raising the allowable percentage of total foreign ownership of voting stock in U.S. airlines from 25 to 49 percent. The Department of Transportation (DOT) suggested that implementing this amendment could provide significant benefits to U.S. consumers and airlines, particularly by providing access to additional capital, which would help the financial health of the industry. DOT and the Department of State also maintain that these new limitations would bring the United States in line with current foreign ownership laws of the European Union (EU). Concerned about the effect that changes in foreign ownership and control requirements might have on the aviation industry, national interests, and consumers--and recognizing that we examined this issue in 1992 when DOT earlier proposed increasing the level of foreign ownership--you asked us to discuss two related topics: (1) current proposals to revise U.S. limits on foreign ownership and control, including information on current shareholders and past examples of efforts by foreign interests to purchase significant equity in U.S. air carriers and (2) whether key analytic issues raised in our 1992 report on foreign ownership and control remain relevant.[Footnote 1] This report summarizes the information we provided to Committee staff during our June 25, 2003, briefing pursuant to your request. The briefing slides, which provide more details about our analysis, are attached as enclosure I. In summary: Foreign airlines have attempted to invest in and influence the operations of U.S. airlines several times since the late 1980s. These foreign airlines have on occasion invested significant amounts of capital into U.S. airlines, only to later disinvest due in part to U.S. policies concerning airline control. The Administration's proposal does not seek to change U.S. law regarding control of air carriers. Our 1992 report identified five key issues relating to raising the limit on foreign investment in U.S. airlines. In general, those issues covered the potential impact of foreign investment on domestic competition, national security, employment, safety, and international competition. Because the current economic environment and the state of the aviation industry are similar to that in existence at the time of the prior report, we believe that most of these issues remain relevant today. Background: Congress first enacted citizenship requirements for U.S. airlines with the Air Commerce Act of 1926. That act required that U.S. citizens own at least 51 percent of any individual aircraft in order for it to be registered in the United States. Under the Civil Aeronautics Act of 1938, Congress required that U.S. citizens own or control at least 75 percent of the voting interests of U.S. airlines. This standard has remained the same since then.[Footnote 2] Under current U.S. law, in order to operate as a U.S. airline, an entity must obtain a certificate of public convenience and necessity or an exemption from the certification requirement from DOT. A prerequisite for obtaining such authority is U.S. "citizenship." Current U.S. law defines a "citizen of the United States" as an individual U.S. citizen, a partnership whose members are U.S. citizens, or a corporation or association organized under U.S. law where at least 75 percent of the voting interest is owned and controlled by U.S. citizens.[Footnote 3] The law also specifies that the President, as well as at least two-thirds of the Board of Directors of the corporation, must be U.S. citizens. In practice, DOT has interpreted control to mean that day-to-day management decisions must be made by U.S. citizens, even if there is substantial foreign investment in the airlines. That is, the law has been construed as requiring actual control of the enterprise to rest with U.S. citizens. In addition to DOT's initial citizenship evaluation of an airline when it first applies for certification, DOT again reviews the airline's citizenship status following any substantial change in an airline's ownership, management or operations.[Footnote 4] This is done on a case-by-case basis. In a March 2003 review of DOT's citizenship evaluation process, the DOT Inspector General found that no single document defines the process or criteria to be applied for the review and that DOT examines several factors when determining the issue of control.[Footnote 5] These factors include any significant contracts between the airline seeking citizenship and its business partners, voting rights held by U.S. and non-U.S. citizens, and the terms of any debt instruments or bankruptcy agreements. During its analysis, DOT determines whether a foreign entity's influence over any of these factors shifts the actual, day-to-day control of the airline from U.S. citizens to foreign citizens. DOT has previously proposed easing the restrictions on foreign investment in U.S. airlines. In 1991, the Secretary of Transportation proposed allowing foreign investors to own up to 49 percent of a U.S. airline's voting stock, although no legislative proposal was submitted to the Congress. According to DOT officials, the proposal was made in response to heavy losses suffered by U.S. airlines in 1990 and 1991, and experience gained in structuring foreign investments to maintain U.S. citizen control by working with two major U.S. airlines (Northwest Airlines (NW) and Continental Airlines) and their foreign investors. Congress did not adopt these proposals. Proposed Legislation Would Affect Ownership and Control of U.S. Airlines: The latest efforts to change U.S. foreign investment and control restrictions were submitted as two separate amendments to the Federal Aviation Administration (FAA) reauthorization bill (H.R. 2115 and S. 824). The Administration proposed an amendment that would relax the restrictions on foreign-owned voting stock of U.S. airlines from 25 to 49 percent, while not changing the policy that U.S. citizens control U.S. airlines. DOT suggested that increasing allowable foreign ownership limits would provide access to additional capital, which would provide several benefits that would help the financial health of the industry. This includes encouraging more efficient market-driven networks, creating opportunities for new airlines to enter the market, and bringing U.S. ownership limitations in line with European laws. DOT also sought to find additional tools for the airline industry to respond to unforeseen economic conditions, such as the recent effects of the Iraqi War or the Sudden Acute Respiratory Syndrome outbreak in Asia. A separate but related amendment addressed the issue of control of U.S. airlines. The House and Senate conference agreement on the FAA reauthorization bill includes a section that would revise the definition of "control."[Footnote 6] The bill would amend Section 40102(a)(15)(C) of title 49 to include in the criteria for meeting the citizenship requirement as "(airlines) which (are) under the actual control of citizens of the United States." In effect, this language would codify DOT's existing practice. There are differing levels of support by various aviation stakeholders for altering current foreign ownership and control statutes. Several key aviation stakeholders generally support the proposal of raising the allowable level of foreign ownership in U.S. airlines. Most major U.S. airlines favor increasing their access to foreign capital, and some have called for removing all restrictions regarding foreign ownership. The Air Transport Association issued its support in June 2003, citing the potential to create greater access to global capital for U.S. airlines, while also bringing U.S. foreign ownership laws into line with those of other countries.[Footnote 7] Certain international aviation organizations also support removing barriers to international investment and open markets. Both the International Civil Aviation Association and the International Air Transport Association support the liberalization of ownership and control. Other stakeholders, especially various labor groups, oppose increasing foreign ownership levels. For example, the Association of Flight Attendants has a preference that foreign ownership be handled on a case-by-case basis and not just as a blanket lifting of the limitations. They also support control of U.S. airlines by U.S. citizens. The AFL-CIO's Transport Trade Department also strongly opposes any relaxation of the rules on foreign control of domestic airlines, citing both national security and the economic welfare of U.S. workers among their concerns. Current Status of Foreign Investment in U.S. Airlines: As of July 2003, the amount of foreign investment in U.S. airlines remained limited. According to a major international investment bank, as of May 2003 no major stockholders--U.S. or foreign--owned more than 20 percent of any major U.S. network carrier.[Footnote 8] American Airlines and Delta Air Lines both had significant blocks of stock owned by single shareholders, but these were U.S. financial service firms. Both NW (18 percent), and Continental (13 percent) have shares held by Axa Financial, a U.S. subsidiary of the French-based Axa Group.[Footnote 9] Past Examples Show Control Has Been the Central Issue: Foreign airlines have attempted to invest in and influence the operations of U.S. airlines several times since the late 1980s. These foreign airlines have on occasion invested significant amounts of capital into U.S. airlines, only to later disinvest due in part to U.S. policies concerning airline control. In 1989, NW announced that it would be acquired in a leveraged buyout by Wings Acquisition, Inc. (Wings). KLM Royal Dutch Airlines (KLM) provided about 57 percent of the total equity in Wings and owned 5 percent of the voting shares of Wings. KLM also proposed to gain the right to appoint one member of Wings' 12-member Board of Directors and to form a financial advisory committee to advise Wings on the management of NW.[Footnote 10] In its review of the proposed transaction, DOT objected to the proposed deal's structure and issued a consent order, with NW and Wings agreeing to (1) place KLM's interest above 25 percent of the total equity in a voting trust, (2) terminate KLM's right to appoint a financial advisory committee, and (3) disqualify KLM's board member from participating in all decisions on competitive and international aviation matters. NW petitioned for reconsideration in 1991. DOT then permitted KLM to own 49 percent of the total equity investment in Wings and allowed increased representation on Wings' board, since the United States and the Netherlands had an open skies bilateral aviation agreement.[Footnote 11] DOT ordered modifications to the original investments and attached conditions to its approval to ensure that NW retained its decision- making independence from its foreign airline investor. In 1997, KLM decided to disinvest from NW and instead focused on building up an alliance without direct financial investment. KLM and NW formed the first international code-sharing alliance granted antitrust immunity in 1993.[Footnote 12] In 1992, British Airways (BA) proposed investing $750 million in USAir in an arrangement that would have created the world's largest airline alliance.[Footnote 13] In the original proposal, BA's investment would include about 44 percent of USAir's total equity, 21 percent of USAir's voting stock and representation on USAir's Board of Directors.[Footnote 14] BA included some important conditions to its investment, including one that it would have significant influence over major investment and financing decisions by USAir. DOT initiated a review of the proposal. BA withdrew its proposal before DOT issued a formal decision, in part because of changes being sought in the bilateral aviation agreement between the United States and the United Kingdom. BA later revised its proposal and invested $300 million, with an option to invest an additional $450 million in the future, and eliminated the governance condition. The alliance never functioned as the two airlines had hoped, according to court motions filed by USAir in 1996, and the BA-USAir alliance ended in 1997. Changes in the ownership, management, and operations of DHL Airways illustrate that it is sometimes difficult to determine the control of an airline. DHL Airways (now ASTAR Air Cargo) holds a certificate of public convenience and necessity from DOT, and thus was found to meet U.S. citizenship requirements. In the fall of 2000, DHL Airways reported to DOT that it had undergone a substantial change in ownership, involving Deutsche Post, the German postal monopoly. DOT conducted an informal review of its citizenship, as is standard practice, and in May 2002, informed DHL Airways that it met U.S. citizenship requirements. However, Federal Express and United Parcel Service petitioned for a public review, alleging that DHL no longer met the citizenship requirement. DOT initiated a public proceeding to examine the issue. In April 2003, P.L. 108-11 directed that DOT use an Administrative Law Judge to assist in resolving this issue. The Administrative Law Judge is to issue a recommended decision by December 1, 2003. DOT will then review that decision. Prior GAO Report Identified Five Key Issues Relating to Changes in Foreign Investment Laws: In 1992, we reported on the potential impact of changing U.S. airline foreign investment and control laws and evaluated DOT's 1991 proposal to allow for increased foreign investment in U.S. airlines.[Footnote 15] We found that the five key issues identified in the prior report are still relevant today. This proposal, according to DOT officials, was in response to the heavy losses suffered by U.S. airlines in 1990 and 1991, who were hurt by the generally weak economy. The report noted that six large U.S. airlines had declared bankruptcy and three of them had ceased operations. The report concluded that fewer airlines could mean less competition and higher fares. The report addressed five key areas that may be affected by changing ownership and control laws: Domestic competition - Allowing greater potential access to foreign capital could give U.S airlines, particularly those in financial difficulty, additional capital which would allow them to enhance their domestic competitive position.[Footnote 16] National security - U.S airlines, through their voluntary participation in the Civil Reserve Air Fleet (CRAF) program, provide the Department of Defense (DOD) with supplemental airlift capacity in emergencies.[Footnote 17] DOD was concerned that foreign investors might discourage continued participation in CRAF. Employment - Increased foreign investment could put jobs at risk--for example, those of U.S. pilots and crew on international routes; but it could also help stabilize U.S. airline employment by strengthening financially weak airlines. Safety - Increased foreign investment could place additional burdens on the Federal Aviation Administration's safety oversight responsibilities if foreign aircraft are transferred to U.S. registry. International competition - The impact of increased foreign investment on international competition depends, in part, on existing bilateral aviation agreements. These agreements set the conditions under which U.S. and foreign airlines operate and compete, and can restrict competition by limiting the service that can be offered. There may be opportunities for relaxing operating restrictions in some bilateral agreements in exchange for relaxing restrictions on foreign investment in U.S. airlines. Eligibility to invest in U.S. airlines could be restricted to airlines from nations that allow greater access to their aviation markets or do not subsidize their airlines. Issues Identified in Prior GAO Report Still Relevant Because Current Aviation Environment Is Similar to 1992: Although 11 years have passed since we reported on the potential effect of changing foreign investment and control limits on U.S. airlines, most of the issues that we identified still appear to be relevant. As in the early 1990s, the U.S. commercial airline industry in 2003 faces a weak economy, relatively high fuel prices, and military action in the Middle East. These conditions, as in the past, have contributed to weak passenger demand, decreased airlines revenues, and some airline bankruptcies. The airlines have likewise used some of the same basic strategies to control operating costs. For example, major airlines responded to the 1992 economic downturn by implementing cost-cutting programs, laying off employees, canceling or delaying aircraft deliveries and refocusing service. These same strategies have been implemented again since 2001 by major airlines. For example, United and American have made huge employee cutbacks, and Continental Airlines announced in July, 2003 that it plans to defer prior orders for additional Boeing planes until the domestic economy recovers. Some airlines also are again expressing interest in acquiring capital through foreign investment. Therefore, general issues identified in our prior report appear to be still relevant to U.S. interests. Domestic competition - U.S. airlines have made significant reductions in service, but continue to have more capacity than passenger demand. Airlines are seeking additional capital to provide operating funds to survive the reduced passenger traffic and revenues and avoid bankruptcy. The effect that airline bankruptcies might have on domestic competition is uncertain. Since most U.S. "legacy" airlines' balance sheets are considerably weaker than in 1992, DOT believes that the ability to access international capital markets is even more valuable to the airlines in the current economic environment.[Footnote 18] National security - While DOD has traditionally been concerned about increasing foreign ownership due to the belief that any foreign control of U.S. airlines would negatively affect CRAF, it presently has no official comment on the administration's latest proposal. Questions already exist regarding the effectiveness of DOD's program incentives, and it is unclear if these incentives will be affected by changes in foreign ownership restrictions. Employment - The impact of increased foreign investment on employment remains unclear. There are differing views on how changes in foreign investment restrictions could affect employment--would additional investment stimulate domestic aviation, thus domestic aviation employment, or would foreign investment lead to jobs being transferred to foreign workforces? DOT indicated that there is no evidence to suggest that increased foreign investment in U.S. airlines would have any effect on labor. DOT commented that, due to existing collective bargaining agreements and other regulatory requirements governing U.S. airlines and their employees, the administration's proposal would not affect the rights of labor or the obligation of airlines with respect to labor. International competition - While bilateral "open skies" agreements between the United State and many EU member states have improved the access, level of integration, and volume of travel across the Atlantic, other aviation agreements, such as the Bermuda II Accord, continue to limit airline integration and efficiencies.[Footnote 19] As the United States and EU start negotiations for a new aviation agreement, one of the primary negotiations points for EU officials will be the relaxing of current U.S. foreign investment and control restrictions.[Footnote 20] The effect that recent legislative proposals codifying control standards could have is unclear. DOT has stated that since 1992, many U.S. airlines have formed international alliances. These alliances may find mutual investments more desirable, either to sustain a valuable alliance partner experiencing financial difficulties or to solidify commercial relationships. At this time, we do not believe that the FAA safety workload issue raised in the 1992 report continues to be a significant relevant concern in the current environment. In addition to any legal obstacles to transferring foreign aircraft to U.S. registry, it is not clear what incentives exist that would encourage a foreign investor to do so. U.S. carriers have grounded a significant number of aircraft and have been operating less frequency with existing fleets over the past 2 years as a result of the downturn in demand. Also, even if such a change were to occur, it is unlikely that aircraft would be added in such numbers so as to materially increase FAA's safety oversight responsibilities over and above its current workload. Scope and Methodology: To address the administration's current proposal and discuss the potential affect on domestic competition, national security, airline employment, airline safety, and international competition, we conducted interviews with key stakeholders and industry experts. This included representatives from DOT, the European Union, various member states, and U.S. airlines. In addition, we reviewed the literature regarding foreign ownership regulations and implications, studied transcripts of speeches by key U.S. government personnel, and reviewed financial regulations and materials. Finally, we examined documents filed with DOT regarding citizenship of airlines. Agency Comments: We provided a draft report with briefing slides to DOT for review and formal comment. DOT provided technical comments, which we have incorporated into this report as appropriate. As agreed with your office, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from its date. At that time we will send copies to the Secretary of Transportation and other interested parties. We will also send copies to others upon request. In addition, this report will be available at no charge on our Web site at http://www.gao.gov. For further information on this report, please contract JayEtta Hecker at (202) 512-2834. Individuals making key contributions to this report included Steve Martin, Emily Pickrell, Tim Schindler, and Matt Zisman. JayEtta Z. Hecker: Director, Physical Infrastructure Issues: Signed by JayEtta Z. Hecker: Enclosure: Enclosure I: [See PDF for image] [End of figure] FOOTNOTES [1] U.S. General Accounting Office, Airline Competition: Impact of Change Foreign Investment and Control Limits on U.S. Airlines, GAO/ RCED-93-7 (Washington, D.C.: December, 1992). [2] The United States has restricted ownership and control of U.S. airlines for four primary reasons: (1) protection of the then-fledgling U.S. airline industry, (2) regulation of international air service through bilateral agreements, (3) concern about allowing foreign aircraft access to U.S. airspace, and (4) military reliance on civilian airlines to supplement airlift capacity. See U.S. General Accounting Office, Airline Competition: Impact of Changing Foreign Investment and Control Limits on U.S. Airlines, GAO/RCED-93-7 (Washington, D.C.: Dec. 9, 1992.). [3] 49 U.S.C. 40102. [4] 14 C.F.R. 204.5. [5] Department of Transportation, Office of Inspector General, Letter to the Honorable Don Young, Chairman, Committee on Transportation and Infrastructure, U.S. House of Representatives, March 4, 2003. [6] Section 807 of the conference report on H.R. 2115. [7] The Air Transport Association is the principal trade organization for large U.S. airlines. [8] Section 13(d) of the Securities Exchange Act of 1934, as amended, requires that any person who obtains beneficial ownership of 5 percent or more of any equity security must provide notice to the issuer of the security, to each exchange where the security is traded, and to the Securities and Exchange Commission (SEC). The notice must include detailed information on citizenship, the number of shares purchased, and other related business arrangements. [9] We omitted information on ownership for United Airlines and US Airways due to their respective ongoing and recent emergence from bankruptcy. [10] In addition, other foreign investors held about 15 percent of Wings' voting common stock, bringing the total voting stock held by foreign investors to about 20 percent of Wings' voting stock. [11] DOT allowed expansion of KLM's representation on Wings' board when the number of directors was increased and continued the disqualification provision regards decision on competitive and international issues. However, the order stated that appointment of foreign representatives to key positions on Wings' board, especially the position of chairman, would be "cause for us to review the citizenship of the affected air carrier." [12] "Code sharing" refers to the practice of airlines applying their names--and selling tickets via reservation systems--to flights operated by other carriers. [13] USAir officially changed its name to the current US Airways on February 27, 1997. [14] In 1992, we reported that the proposed investment included a number of potential benefits for the two airlines planning to integrate their services. It would have provided BA a secure partnership that could feed U.S. passengers to its international flights and allow USAir to better compete with U.S. airlines that have expanded their international routes systems by purchasing international route authority from struggling U.S. airlines. See U.S. General Accounting Office, Airline Competition: Impact of Changing Foreign Investment and Control Limits on U.S. Airlines, GAO/RCED-93-7 (Washington, D.C.: Dec. 9, 1992.) [15] U.S. General Accounting Office, Airline Competition: Impact of Changing Foreign Investment and Control Limits on U.S. Airlines, GAO/ RCED-93-7) (Washington, D.C: December, 1992). [16] The 1992 GAO report (GAO/RCED-93-7) noted that while foreign investment had potential benefits for U.S. airlines, it was not a panacea for preserving domestic competition, because other factors-- such as airline control over gates and other facilities at major U.S. airports--also affect airline competition. [17] Under the CRAF program, U.S. airlines commit and put under contract aircraft and crew for DOD's use during emergencies. The commercial airlines receive no compensation for their participation in the program unless they are activated, but they are given an incentive to participate by being made eligible to bid for DOD's peacetime airlift business and General Services Administration's city pair program. Airlines are paid for missions they fly at predetermined rates based on a weighted average of their costs plus a return on investment. [18] "Legacy" airlines generally refer to major U.S. airlines that operate network service, including both domestic and international operations, such as United, American, and Delta. [19] The "Bermuda II Accord" is the 1977 agreement between the United Kingdom and the United States that restricts UK and U.S. flights serving London Heathrow Airport to two airlines from each countries. [20] DOT has noted that any U.S.-EU agreement, which includes provisions on foreign investment would require implementing legislation.