### §9515. Charter air transportation services: minimum annual purchase amount for carriers participating in Civil Reserve Air Fleet

(a) In General.—The Secretary shall take steps to—

(1) improve the predictability in Department of Defense charter requirements;

(2) strengthen Civil Reserve Airlift Fleet participation to assure adequate capacity is available to meet steady-state, surge and mobilization requirements; and

(3) provide incentives for commercial air carriers to provide newer, more efficient and reliable aircraft for Department of Defense service rather than older, fully depreciated aircraft.

(b) Consideration of Recommendations.—In carrying out subsection (a), the Secretary shall consider the recommendations on courses of action for the Civil Reserve Air Fleet as outlined in the report required by section 356 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110–181).

(c) Contracts for Charter Air Transportation Services.—The Secretary may award to an air carrier or an air carrier contractor team arrangement participating in the Civil Reserve Air Fleet on a fiscal year basis a one-year contract for charter air transportation services with a minimum purchase amount under such contract determined in accordance with this section.

(d) Eligible Charter Air Transportation Carriers.—In order to be eligible for payments under the minimum purchase amount provided by this section, an air carrier (or any air carrier participating in an air carrier contractor team arrangement)—

(1) if under contract with the Department of Defense in the prior fiscal year, shall have an average on-time pick up rate, based on factors within such air carrier's control, of at least 90 percent;

(2) shall offer such amount of commitment to the Civil Reserve Air Fleet in excess of the minimum required for participation in the Civil Reserve Air Fleet as the Secretary shall specify for purposes of this section; and

(3) may not have refused a Department of Defense request to act as a host for other Civil Reserve Air Fleet carriers at intermediate staging bases during the prior fiscal year.

(e) Aggregate Minimum Purchase Amount.—(1) The aggregate amount of the minimum purchase amount for all contracts awarded under subsection (c) for a fiscal year shall be based on forecast needs, but may not exceed the amount equal to 80 percent of the average annual expenditure of the Department of Defense for charter air transportation services during the five-fiscal year period ending in the fiscal year before the fiscal year for which such contracts are awarded.

(2) In calculating the average annual expenditure of the Department of Defense for charter air transportation services for purposes of paragraph (1), the Secretary shall omit from the calculation any fiscal year exhibiting unusually high demand for charter air transportation services if the Secretary determines that the omission of such fiscal year from the calculation will result in a more accurate forecast of anticipated charter air transportation services for purposes of that paragraph.

(f) Allocation of Minimum Purchase Among Charter Air Transportation Contracts.—(1) The aggregate amount of the minimum purchase amount for all contracts awarded under subsection (c) for a fiscal year, as determined under subsection (e), shall be allocated among all air carriers and air carrier contractor team arrangements awarded contracts under subsection (c) for such fiscal year in proportion to the commitments of such carriers to the Civil Reserve Air Fleet for such fiscal year.

(2) In determining the minimum purchase amount payable under paragraph (1) under a contract under subsection (c) for charter air transportation services provided by an air carrier or air carrier contractor team arrangement during the fiscal year covered by such contract, the Secretary may adjust the amount allocated to such carrier or arrangement under paragraph (1) to take into account periods during such fiscal year when charter air transportation services of such carrier or a carrier in such arrangement are unavailable for usage by the Department of Defense, including during periods of refused business or suspended operations or when such carrier is placed in nonuse status pursuant to section 2640 of this title for safety reasons.

(g) Distribution of Amounts.—If any amount available under this section for the minimum purchase of charter air transportation services from a carrier or air carrier contractor team arrangement for a fiscal year under a contract under subsection (c) is not utilized to purchase charter air transportation services from the carrier or arrangement in such fiscal year, such amount shall be provided to the carrier or arrangement before the first day of the following fiscal year.

(h) Commitment of Funds.—(1) The Secretary of each military department shall transfer to the transportation working capital fund a percentage of the total amount anticipated to be required in such fiscal year for the payment of minimum purchase amounts under all contracts awarded under subsection (c) for such fiscal year equivalent to the percentage of the anticipated use of charter air transportation services by such military department during such fiscal year from all carriers under contracts awarded under subsection (c) for such fiscal year.

(2) Any amounts required to be transferred under paragraph (1) shall be transferred by the last day of the fiscal year concerned to meet the requirements of subsection (g) unless minimum purchase amounts have already been distributed by the Secretary under subsection (g) as of that date.

(i) Availability of Airlift Services.—(1) From the total amount of charter air transportation services available for a fiscal year under all contracts awarded under subsection (c) for such fiscal year, a military department shall be entitled to obtain a percentage of such services equal to the percentage of the contribution of the military department to the transportation working capital fund for such fiscal year under subsection (h).

(2) A military department may transfer any entitlement to charter air transportation services under paragraph (1) to any other military department or to any other agency, element, or component of the Department of Defense.

(j) Definition.—In this section, the term "charter air transportation" has the meaning given such term in section 40102(14) of title 49.

(Added Pub. L. 110–417, [div. A], title X, §1033(a), Oct. 14, 2008, 122 Stat. 4591; amended Pub. L. 111–383, div. A, title X, §1075(b)(50), Jan. 7, 2011, 124 Stat. 4371; Pub. L. 112–239, div. A, title X, §§1055, 1076(b)(4), (f)(44), Jan. 2, 2013, 126 Stat. 1938, 1949, 1955; Pub. L. 116–283, div. A, title III, §342, Jan. 1, 2021, 134 Stat. 3538; Pub. L. 117–81, div. A, title X, §1083(a)(2)(C), Dec. 27, 2021, 135 Stat. 1922.)

#### **Editorial Notes**

#### References in Text

Section 356 of the National Defense Authorization Act for Fiscal Year 2008, referred to in subsec. (b), is section 356 of Pub. L. 110–181, div. A, title III, Jan. 28, 2008, 122 Stat. 74, which is not classified to the Code.

#### Amendments

2021—Pub. L. 117–81 substituted "Secretary" for "Secretary of Defense" wherever appearing.

Subsec. (k). Pub. L. 116–283 struck out subsec. (k). Text read as follows: "The authorities in this section shall expire on December 31, 2020."

2013—Subsec. (a)(3). Pub. L. 112–239, §1055(b)(1), struck out "passenger" after "commercial air".

Subsec. (b). Pub. L. 112–239, §1076(f)(44), substituted "required by section 356 of the National Defense Authorization Act for Fiscal Year 2008" for "required by section 1356 of the National Defense Authorization Act for Fiscal Year 2008".

Subsec. (j). Pub. L. 112–239, §1076(b)(4), made technical amendment to directory language of Pub. L. 111–383, §1075(b)(50)(C). See 2011 Amendment note below.

Pub. L. 112–239, §1055(b)(2), struck out ", except that it only means such transportation for which the Secretary of Defense has entered into a contract for the purpose of passenger travel" before period at end.

Subsec. (k). Pub. L. 112–239, §1055(a), substituted "December 31, 2020" for "December 31, 2015".

2011—Subsec. (b). Pub. L. 111–383, §1075(b)(50)(A), which directed substitution of "section 1356 of the National Defense Authorization Act for Fiscal Year 2008" for "Section 1356 of the National Defense Authorization Act for 2008" was executed by making the substitution for "Section 356 of the National Defense Authorization Act for 2008" to reflect the probable intent of Congress.

Subsec. (f)(2). Pub. L. 111–383, §1075(b)(50)(B), substituted "arrangement under paragraph (1)" for "arrangement under paragraph (2)".

Subsec. (j). Pub. L. 111–383, §1075(b)(50)(C), as amended by Pub. L. 112–239, §1076(b)(4), struck out "United States Code," after "title 49,".

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 2013 Amendment

Amendment by section 1076(b)(4) of Pub. L. 112–239 effective Jan. 7, 2011, and as if included in Pub. L. 111–383 as enacted.

#### Report to Congress; Limitation on Exercise of Authority

Pub. L. 110–417, [div. A], title X, §1033(c), Oct. 14, 2008, 122 Stat. 4593, provided that:

"(1) Report.—The Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a written report on the actions taken under subsections (a) and (b) of section 9515 of title 10, United States Code, as added by subsection (a), along with the anticipated risks and benefits of such actions.

"(2) Limitation.—No authority under subsections (c) through (I) [sic] of such section may be implemented until 30 days after the date on which the Secretary submits the report required under paragraph (1)."