Foreign Airlines: Can They Transport Dod Cargo?

The US Department of Defense (DoD) can use foreign airlines for cargo transportation, but only under specific circumstances. The Fly America Act mandates that all air travel and cargo transportation services funded by the federal government must use a US flag air carrier service. However, there are exceptions to this rule, such as when a US carrier service is unavailable or if using one would extend the travel time by 24 hours or more. In such cases, the DoD can utilise foreign airlines for their cargo transportation needs. It's important to note that travellers using DoD funds are generally not permitted to take advantage of Open Skies Agreements and must usually opt for American carriers unless they meet certain exemptions outlined in the Fly America Act.

The Fly America Act requires federally-funded travel to use US-flagged airlines

The Act requires that all federally-funded air travel and cargo transportation services use a US-flagged carrier. A US-flagged carrier is an airline that holds a certificate under 49 U.S.C. 41102 but does not include foreign carriers operating under a permit. The US government will not reimburse airline tickets that do not comply with the Fly America Act.

There are, however, some exceptions to the Fly America Act. These include:

• When a US carrier is not available.
• When using a US carrier would extend the travel time by 24 hours or more.
• When a US carrier does not offer a non-stop or direct flight, and using a US carrier increases the number of aircraft changes outside the US by two or more, extends travel time by six hours or more, or requires a connecting time of four hours or more at an overseas interchange point.
• When the flight time is less than three hours and using a US-flagged carrier doubles the flight time.
• When there is an applicable Open Skies Agreement in place that meets the requirements of the Fly America Act.

Open Skies Agreements are agreements between the US government and foreign governments that allow the use of foreign air carriers for government-funded international travel. While the US has over 100 Open Skies Agreements, only a few meet the requirements of the Fly America Act. These include agreements with the European Union (including non-EU members Norway and Iceland), Australia, Saudi Arabia, Switzerland, and Japan.

It is important to note that the exceptions provided by Open Skies Agreements do not apply if the transportation is funded by the Department of Defense.

The Civil Reserve Air Fleet (CRAF) provides economical emergency airlift capacity for the government

The Civil Reserve Air Fleet (CRAF) is a cooperative, voluntary program involving the Department of Transportation (DOT), the Department of Defense (DOD), and the U.S. civil air carrier industry. It was established in 1951, following the Berlin Airlift, to augment DOD aircraft capability during national defense-related crises.

The CRAF provides economical emergency airlift capacity for the government. In return for volunteering their aircraft to the CRAF program through contractual agreements with the U.S. Transportation Command (USTRANSCOM), civil carriers are given preference for carrying commercial peacetime cargo and passenger traffic for the DOD. This arrangement provides the government with an extremely economical source of emergency airlift capacity, as well as reasonable costs for peacetime military transportation.

The CRAF has two main segments: international and national (domestic). As of September 2022, the Civil Reserve Air Fleet consists of 450 aircraft from 25 airlines, with 413 aircraft for international operations and 37 for domestic operations. These numbers are subject to change on a monthly basis.

The CRAF has been activated three times: during Operation Desert Shield, Operation Iraqi Freedom, and in 2021 as part of Operation Allies Refuge in Afghanistan.

The Department of Defense (DoD) has its own request procedures for US military transportation

Firstly, the request must certify that the mission to be performed is in the national interest of the United States. Sufficient details must be included to enable the Department of State to evaluate and determine that the request meets this criterion. Additionally, the request must certify that one of the grounds set forth in 14 FAM 552(a) is satisfied. This includes situations where commercial transportation is not available or is unable to satisfy the requirement. Commercial transportation, in this context, refers to both US and foreign carriers, including scheduled or chartered flights, or surface modes of transportation.

The memorandum or request for US military transportation should also include the following information:

• Departure and arrival dates and locations for the flight
• Number of passengers and the names and titles of any VIPs or dignitaries travelling
• Any special requirements, such as secure communications or medical needs
• A statement specifying whether the flight is reimbursable or non-reimbursable
• Contact information for both the State Department and DoD points of contact
• A sentence stating that the request has been cleared by the Department of State's Office of the Legal Adviser

Furthermore, when requesting DoD assistance for the US Embassy in Baghdad, the following statement should be included: "Consistent with NSPD-36, the Department of State requests…. The Department of State requests this support on a non-reimbursable basis under such authorities that may be available to DoD."

It is important to note that when the transportation is being requested in connection with activities that are of direct interest to the DoD or relate to their mission, this should be clearly stated. In such cases, the request should be for transportation on a non-reimbursable basis. Otherwise, it should be anticipated that the DoD will provide air transportation on a reimbursable basis, and the requesting agency will be required to reimburse the DoD as per the Economy Act. Therefore, it is essential to ensure that the necessary funding and legal authority to pay for transportation are in place.

DoD-funded travel cannot use Open Skies Agreements for government-funded travel

The Fly America Act requires that all air travel and cargo transportation services funded by the federal government use a "U.S. flag" air carrier service. This applies to federal government employees and their dependents, consultants, contractors, grantees, and other travellers whose travel is paid for by the federal government. The Act does not apply if a U.S. air carrier is not available, if using a U.S. carrier would extend the travel time by 24 hours or more, or if a U.S. carrier does not offer a nonstop or direct flight between origin and destination.

The biggest exception to the Fly America Act is the Open Skies Agreement. This agreement allows travellers to use foreign air carriers for government-funded international travel. However, travellers using Department of Defense (DoD) funds are not permitted to take advantage of Open Skies Agreements. They must use an American carrier unless they qualify for an exemption as noted in FTR 301-10.135, sections (a), (d), (e), (f), and (g).

The United States currently has Open Skies Agreements with the European Union (28 countries), Australia, Switzerland, and Japan. The agreement with the European Union permits the use of an EU air carrier for travel outside the United States, including Iceland and Norway, which are not EU members but are members of the EU air treaty. The agreements with Australia, Switzerland, and Japan permit the use of their air carriers for international travel between the U.S. and these countries as long as a "City Pair" fare is not available between the cities of origin and destination.

DoD-funded travel is restricted to US-flagged carriers unless an exemption is met

The US government has specific requirements for the transportation of cargo and people. All air travel and cargo transportation services funded by the federal government are required to use a "US-flag" air carrier service. This includes:

• Federal government employees and their dependents
• Consultants, contractors, and grantees
• Other travelers whose travel is paid for by the federal government

The Fly America Act, which is derived from 49 U.S.C. 40118, outlines these requirements. The Act states that travel across the US border using a foreign airline is prohibited. If travel does not comply with the Act, the government will not reimburse the airline ticket.

There are, however, some exceptions to the Fly America Act. These include:

• When a US air carrier is unavailable
• When using a US carrier service would extend the travel time by 24 hours or more
• When a US carrier does not offer a non-stop or direct flight between the origin and destination, and using a US carrier increases the number of aircraft changes outside the US by two or more
• When the flight time from origin to destination is less than three hours and using a US-flag carrier doubles the flight time
• When there is an applicable Open Skies Agreement in effect that meets the requirements of the Fly America Act

It is important to note that the exceptions provided by Open Skies Agreements for government-funded travel do not apply if the transportation is funded by the Department of Defense.

In addition to the Fly America Act, the Federal Travel Regulation, Office of Management and Budget (OMB) Circular A-126, and the White House Chief of Staff Memorandum on the Use of Military Aircraft on White House Support Missions ("Daley Memo") also provide guidance on the use of US government aircraft.

The Civil Reserve Air Fleet (CRAF) is another program that provides airline capacity to support wartime situations and provides peacetime government contracts to airlines that commit planes to CRAF.

The Cargo Preference program further outlines that certain percentages of cargo must be carried on US-flagged vessels when supported by federal funding. Military cargo, for example, requires 100% US-flagged vessels, while civilian agency cargo and agricultural cargo require at least 50%.

Frequently asked questions