Compilation of Selected Aviation Laws

As Amended Through April 1, 2006

Office of the Assistant General Counsel for Legislation

U.S. Department of Transportation

April 2006

PDF version available for download:

http://testimony.ost.dot.gov/compilation/

Contents

Subject Source Page

Department of Transportation Subtitle I of title 49, United States Code (partial) 2

Aviation Programs Subtitle VII of title 49, United States Code 23

Commercial Space Transportation Subtitle IX of title 49, United States Code 246

Tax provisions relating to air transportation §§ 4041, 4081, 4261-4263, 4271, 4272, 4281, 4282, 4291, 4293, 7275 of the Internal Revenue

Code of 1986

260

Airport and Airway Trust Fund §§ 9500, 9502, 9503, 9601, 9602 of the Internal

Revenue Code of 1986

270

"the Wright Amendment" Section 29 of the International Air Transportation

Competition Act of 1979

277

NOTE: A single '*' symbol marks a bracketed change from statutory text made to improve clarity.

1

2

SUBTITLE I—DEPARTMENT OF TRANSPORTATION

TITLE 49—TRANSPORTATION

SUBTITLE Sec.

I. DEPARTMENT OF TRANSPORTATION ................................................ 101

II. OTHER GOVERNMENT AGENCIES ...................................................... 1101

III. GENERAL AND INTERMODAL PROGRAMS ....................................... 5101

IV. INTERSTATE TRANSPORTATION ........................................................ 10101

V. RAIL PROGRAMS ..................................................................................... 20101

VI. MOTOR VEHICLE AND DRIVER PROGRAMS ..................................... 30101

VII. AVIATION PROGRAMS ............................................................................ 40101

VIII. PIPELINES ................................................................................................ 60101

IX. COMMERCIAL SPACE TRANSPORTATION ......................................... 70101

X. MISCELLANEOUS .................................................................................... 80101

SUBTITLE I—DEPARTMENT OFTRANSPORTATION

CHAPTER Sec.

1. ORGANIZATION .....................................................................................101

3. GENERAL DUTIES AND POWERS ........................................................301

CHAPTER 1—ORGANIZATION

Sec.

101. Purpose.

102. Department of Transportation.

103. Federal Railroad Administration.

104. Federal Highway Administration.

105. National Highway Traffic Safety Administration.

106. Federal Aviation Administration.

107. Federal Transit Administration.

108. Pipeline and Hazardous Materials Safety Administration.

109. Maritime Administration.

110. Saint Lawrence Seaway Development Corporation.

111. Bureau of Transportation Statistics. 112. Research and Innovative Technology Administration.

113. Federal Motor Carrier Safety Administration.

114. Transportation Security Administration.

115. Transportation Security Oversight Board.

§ 101. Purpose

(a) The national objectives of general welfare, economic growth

and stability, and security of the United States require the development

of transportation policies and programs that contribute to providing

fast, safe, efficient, and convenient transportation at the lowest cost

consistent with those and other national objectives, including the

efficient use and conservation of the resources of the United States.

(b) A Department of Transportation is necessary in the public

interest and to— (1) ensure the coordinated and effective administration of the

transportation programs of the United States Government;

(2) make easier the development and improvement of co- ordinated transportation service to be provided by private en- terprise to the greatest extent feasible;
3

(3) encourage cooperation of Federal, State, and local gov- ernments, carriers, labor, and other interested persons to

achieve transportation objectives;

(4) stimulate technological advances in transportation, through research and development or otherwise;

(5) provide general leadership in identifying and solving

transportation problems; and

(6) develop and recommend to the President and Congress

transportation policies and programs to achieve transportation

objectives considering the needs of the public, users, carriers, industry, labor, and national defense.

§ 102. Department of Transportation

(a) The Department of Transportation is an executive department of

the United States Government at the seat of Government.

(b) The head of the Department is the Secretary of Transportation. The Secretary is appointed by the President, by and with the advice and

consent of the Senate.

(c) The Department has a Deputy Secretary of Transportation

appointed by the President, by and with the advice and consent of the

Senate. The Deputy Secretary—

(1) shall carry out duties and powers prescribed by the

Secretary; and

(2) acts for the Secretary when the Secretary is absent or

unable to serve or when the office of Secretary is vacant.

(d) The Department has an Under Secretary of Transportation for

Policy appointed by the President, by and with the advice and consent

of the Senate. The Under Secretary shall provide leadership in the

development of policy for the Department, supervise the policy activities

of Assistant Secretaries with primary responsibility for aviation, international, and other transportation policy development and carry out

other powers and duties prescribed by the Secretary. The Under

Secretary acts for the Secretary when the Secretary and the Deputy

Secretary are absent or unable to serve, or when the offices of

Secretary and Deputy Secretary are vacant.

(e) The Department has 4 Assistant Secretaries and a General

Counsel appointed by the President, by and with the advice and consent

of the Senate. The Department also has an Assistant Secretary of

Transportation for Administration appointed in the competitive service by

the Secretary, with the approval of the President. They shall carry out

duties and powers prescribed by the Secretary. An Assistant Secretary

or the General Counsel, in the order prescribed by the Secretary, acts

for the Secretary when the Secretary, Deputy Secretary, and Under

Secretary of Transportation for Policy are absent or unable to serve, or

when the offices of the Secretary, Deputy Secretary, and Under

Secretary of Transportation for Policy are vacant.

(f) Deputy Assistant Secretary for Tribal Government Affairs.

(1) ESTABLISHMENT. In accordance with Federal policies

promoting Indian self determination, the Department of

Transportation shall have, within the office of the Secretary, a

Deputy Assistant Secretary for Tribal Government Affairs

appointed by the President to plan, coordinate, and implement the

Department of Transportation policy and programs serving Indian

tribes and tribal organizations and to coordinate tribal

transportation programs and activities in all offices and

administrations of the Department and to be a participant in any

negotiated rulemaking relating to, or having an impact on, projects,

programs, or funding associated with the tribal transportation

program.

(2) RESERVATION OF TRUST OBLIGATIONS.

(A) RESPONSIBILITY OF SECRETARY. In carrying out this title,

the Secretary shall be responsible to exercise the trust

obligations of the United States to Indians and Indian tribes to

ensure that the rights of a tribe or individual Indian are

protected.

(B) PRESERVATION OF UNITED STATES RESPONSIBILITY.

Nothing in this title shall absolve the United States from any

responsibility to Indians and Indian tribes, including

responsibilities derived from the trust relationship and any

treaty, executive order, or agreement between the United

States and an Indian tribe

(g) The Department shall have a seal that shall be judicially

recognized.

* * * * * * *

§ 106. Federal Aviation Administration

(a) The Federal Aviation Administration is an administration in the

Department of Transportation.

(b) The head of the Administration is the Administrator. The

Administration has a Deputy Administrator. They are appointed by the

President, by and with the advice and consent of the Senate. When

making an appointment, the President shall consider the fitness of the

individual to carry out efficiently the duties and powers of the office. Except as provided in subsection (f) or in other provisions of law, the

Administrator reports directly to the Secretary of Transportation. The

term of office for any individual appointed as Administrator after August

23, 1994, shall be 5 years.

(c) the Administrator must—

(1) be a citizen of the United States;

(2) be a civilian; and

(3) have experience in a field directly related to aviation.

(d)(1) The Deputy Administrator must be a citizen of the

United States and have experience in a field directly related to

aviation. An officer on active duty in an armed force may be appointed

as Deputy Administrator. However, if the Administrator is a former

regular officer of an armed force, the Deputy Administrator may not be

an officer on active duty in an armed force, a retired regular officer of an

armed force, or a former regular officer of an armed force.

(2) The annual rate of basic pay of the Deputy Administrator shall

be set by the Secretary but shall not exceed the annual rate of basic pay

payable to the Administrator of the Federal Aviation Administration.
4

(3) An officer on active duty or a retired officer serving as Deputy

Administrator is entitled to hold a rank and grade not lower than that

held when appointed as Deputy Administrator. The Deputy

Administrator may elect to receive (A) the pay provided by law for the

Deputy Administrator, or (B) the pay and allowances or the retired pay

of the military grade held. If the Deputy Administrator elects to receive

the military pay and allowances or retired pay, the Administration shall

reimburse the appropriate military department from funds available for

the expenses of the Administration.

(4) The appointment and service of a member of the armed forces

as a Deputy Administrator does not affect the status, office, rank, or

grade held by that member, or a right or benefit arising from the status,

office, rank, or grade. The Secretary of a military department does not

control the member when the member is carrying out duties and powers

of the Deputy Administrator.

(e) The Administrator and the Deputy Administrator may not have a

pecuniary interest in, or own stock in or bonds of, an aeronautical

enterprise, or engage in another business, vocation, or employment.

(f) AUTHORITY OF THE SECRETARY AND THE ADMINISTRATOR.—

(1) AUTHORITY OF THE SECRETARY.—Except as provided in

paragraph (2), the Secretary of Transportation shall carry out the

duties and powers, and controls the personnel and activities, of the

Administration. Neither the Secretary nor the Administrator may

submit decisions for the approval of, or be bound by the

decisions or recommendations of, a committee, board, or

organization established by executive order.

(2) AUTHORITY OF THE ADMINISTRATOR.—The Administrator—

(A) is the final authority for carrying out all functions, powers, and duties of the Administration relating to—

(i) the appointment and employment of all officers

and employees of the Administration (other than Pres- idential and political appointees);

(ii) the acquisition and maintenance of property, services, and equipment of the Administration;

(iii) except as otherwise provided in paragraph (3),

the promulgation of regulations, rules, orders, circulars,

bulletins, and other official publications of the

Administration; and

(iv) any obligation imposed on the Administrator, or

power conferred on the Administrator, by the Air Traffic

Management System Performance Improvement Act of

1996 (or any amendment made by that Act);

(B) shall offer advice and counsel to the President with

respect to the appointment and qualifications of any officer or

employee of the Administration to be appointed by the

President or as a political appointee;

(C) may delegate, and authorize successive redelegations of, to an officer or employee of the Administration any

function, power, or duty conferred upon the Administrator,

unless such delegation is prohibited by law; and

(D) except as otherwise provided for in this title, and

notwithstanding any other provision of law, shall not be

required to coordinate, submit for approval or concurrence, or

seek the advice or views of the Secretary or any other officer

or employee of the Department of Transportation on any

matter with respect to which the Administrator is the final

authority.

(3) REGULATIONS.—

(A) IN GENERAL.—In the performance of the functions of

the Administrator and the Administration, the Administrator is

authorized to issue, rescind, and revise such regulations as are

necessary to carry out those functions. The issuance of such

regulations shall be governed by the provisions of chapter 5 of

title 5. The Administrator shall act upon all petitions for

rulemaking no later than 6 months after the date such petitions

are filed by dismissing such petitions, by informing the

petitioner of an intention to dismiss, or by issuing a notice of

proposed rulemaking or advanced notice of proposed

rulemaking. The Administrator shall issue a final regulation, or

take other final action, not later than 16 months after the last

day of the public comment period for the regulations or, in the

case of an advanced notice of proposed rulemaking, if

issued, not later than 24 months after the date of publication in

the Federal Register of notice of the proposed rulemaking. On

February 1 and August 1 of each year the Administrator shall

submit to the Committee on Transportation and Infrastructure

of the House of Representatives and the Committee on

Commerce, Science, and Transportation of the Senate a

letter listing each deadline the Administrator missed under

this subparagraph during the 6-month period ending on such

date, including an explanation for missing the deadline and a

projected date on which the action that was subject to the

deadline will be taken.

(B) APPROVAL OF SECRETARY OF TRANSPORTATION.—(i)

The Administrator may not issue a proposed regulation or final

regulation that is likely to result in the expenditure by State,

local, and tribal governments in the aggregate, or by the

private sector, of $250,000,000 or more (adjusted annually for

inflation beginning with the year following the date of the

enactment of the Wendell H. Ford Aviation Investment and

Reform Act for the 21st Century [enacted Apr. 5, 2000] in any

year, or any regulation which is significant, unless the

Secretary of Transportation approves the issuance of the

regulation in advance. For purposes of this paragraph, a

regulation is significant if the Administrator, in consultation with

the Secretary (as appropriate), determines that the regulation

is likely to—

(I) have an annual effect on the economy of

$250,000,000 or more or adversely affect in a substantial and material way the economy, a sector of the

economy, productivity, competition, jobs, the environ-
5

ment, public health or safety, or State, local, or tribal

governments or communities; or

(II) raise novel or significant legal or policy issues

arising out of legal mandates that may substantially and

materially affect other transportation modes.

(ii) In an emergency, the Administrator may issue a

regulation described in clause (i) without prior approval by the

Secretary, but any such emergency regulation is subject to

ratification by the Secretary after it is issued and shall be

rescinded by the Administrator within 5 days (excluding

Saturdays, Sundays, and legal public holidays) after

issuance if the Secretary fails to ratify its issuance.

(iii) Any regulation that does not meet the criteria of clause

(i), and any regulation or other action that is a routine or

frequent action or a procedural action, may be issued by

the Administrator without review or approval by the Secretary.

(iv) The Administrator shall submit a copy of any regulation requiring approval by the Secretary under clause (i) to

the Secretary, who shall either approve it or return it to the

Administrator with comments within 45 days after receiving

it. (C) PERIODIC REVIEW.—(i) Beginning on the date

which is 3 years after the date of the enactment of the Air

Traffic Management System Performance Improvement Act

of 1996 [enacted Oct. 9, 1996], the Administrator shall review

any unusually burdensome regulation issued by the

Administrator after such date of enactment beginning not later

than 3 years after the effective date of the regulation to

determine if the cost assumptions were accurate, the benefit of

the regulations, and the need to continue such regulations in

force in their present form.

(ii) The Administrator may identify for review under the

criteria set forth in clause (i) unusually burdensome regulations

that were issued before the date of the enactment of the Air

Traffic Management System Performance Improvement Act of

1996 [enacted Oct. 9, 1996] and that have been in force for

more than 3 years.

(iii) For purposes of this subparagraph, the term ‘‘unusually burdensome regulation’’ means any regulation that

results in the annual expenditure by State, local, and tribal

governments in the aggregate, or by the private sector, of

$25,000,000 or more (adjusted annually for inflation beginning with the year following the date of the enactment of the

Air Traffic Management System Performance Act of 1996)

[enacted Oct. 9, 1996] in any year.

(iv) The periodic review of regulations may be performed by advisory committees and the Management Advisory Council established under subsection (p).

(4) DEFINITION OF POLITICAL APPOINTEE.—For purposes of this

subsection, the term ‘‘political appointee’’ means any individual

who—

(A) is employed in a position listed in sections 5312

through 5316 of title 5 (relating to the Executive Schedule);

(B) is a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive

Service, as defined under paragraphs (5), (6), and (7), respectively, of section 3132(a) of title 5; or

(C) is employed in a position in the executive branch of the

Government of a confidential or policy-determining character

under schedule C of subpart C of part 213 of title 5 of the Code

of Federal Regulations.

(g) DUTIES AND POWERS OF ADMINISTRATOR.—(1) Except as

provided in paragraph (2) of this subsection, the Administrator shall

carry out—

(A) duties and powers of the Secretary of Transportation under

subsection (f) of this section related to aviation safety

(except those related to transportation, packaging, marking, or

description of hazardous material) and stated in sections

308(b), 1132(c) and (d), 40101(c), 40103(b), 40106(a), 40108,

40109(b), 40113(a), 40113(c), 40113(d), 40113(e), 40114(a), and

40119, chapter 445 (except sections 44501(b), 44502(a)(2),

44502(a)(3), 44502(a)(4), 44503, 44506, 44509, 44510, 44514,

and 44515), chapter 447 (except sections 44717, 44718(a),

44718(b), 44719, 44720, 44721(b), 44722, and 44723), chapter

449 (except sections 44903(d), 44904, 44905, 44907–44911, 44913, 44915, and 44931–44934), chapter 451, chapter 453, sections 46104, 46301(d) and (h)(2), 46303(c), 46304–46308,

46310, 46311, and 46313–46316, chapter 465, and sections

47504(b)(related to flight procedures), 47508(a), and 48107 of this

title; and

(B) additional duties and powers prescribed by the Sec- retary of Transportation.

(2) In carrying out sections 40119, 44901, 44903(a)–(c) and (e), 44906, 44912, 44935–44937, 44938(a) and (b), and 48107 of this title, paragraph (1)(A) of this subsection does not apply to duties and powers

vested in the Director of Intelligence and Security by section 44931 of

this title.

(h) Section 40101(d) of this title applies to duties and powers

specified in subsection (g)(1) of this section. Any of those duties and

powers may be transferred to another part of the Department only when

specifically provided by law or a reorganization plan submitted

under chapter 9 of title 5. A decision of the Administrator in carrying out

those duties or powers is administratively final.

(i) The Deputy Administrator shall carry out duties and powers

prescribed by the Administrator. The Deputy Administrator acts for the

Administrator when the Administrator is absent or unable to serve, or

when the office of the Administrator is vacant. (j) There is established within the Federal Aviation Administration

an institute to conduct civil aeromedical research under section 44507 of

this title. Such institute shall be known as the ‘‘Civil Aeromedical

Institute’’. Research conducted by the institute should take appropriate

advantage of capabilities of other government agencies, universities,
6

or the private sector.

(k) AUTHORIZATION OF APPROPRIATIONS FOR OPERATIONS.—

(1) SALARIES, OPERATIONS, AND MAINTENANCE.— There is

authorized to be appropriated to the Secretary of Transportation for

salaries, operations, and maintenance of the Administration—

(A) $7,591,000,000 for fiscal year 2004;

(B) $7,732,000,000 for fiscal year 2005;

(C) $7,889,000,000 for fiscal year 2006; and

(D) $8,064,000,000 for fiscal year 2007.

Such sums shall remain available until expended.

(2) AUTHORIZED EXPENDITURES.—Out of amounts appropriated under paragraph (1), the following expenditures are

authorized:

(A) Such sums as may be necessary for fiscal years

2004 through 2007 to support infrastructure systems development for both general aviation and the vertical flight

industry.

(B) Such sums as may be necessary for fiscal years

2004 through 2007 to establish helicopter approach procedures using current technologies (such as the Global Positioning System) to support all-weather, emergency medical

service for trauma patients.

(C) Such sums as may be necessary for fiscal years

2004 through 2007 to revise existing terminal and en route

procedures and instrument flight rules to facilitate the

takeoff, flight, and landing of tiltrotor aircraft and to improve

the national airspace system by separating such aircraft from

congested flight paths of fixed-wing aircraft.

(D) Such sums as may be necessary for fiscal years

2004 through 2007 for the Center for Management

Development of the Federal Aviation Administration to

operate training courses and to support associated student

travel for both residential and field courses.

(E) Such sums as may be necessary for fiscal years

2004 through 2007 to carry out and expand the Air Traffic

Control Collegiate Training Initiative.

(F) Such sums as may be necessary for fiscal years 2004

through 2007 for the completion of the Alaska aviation safety

project with respect to the 3 dimensional mapping of Alaska’s

main aviation corridors.

(G) Such sums as may be necessary for fiscal years

2004 through 2007 to carry out the Aviation Safety Reporting

System.

(l) PERSONNEL AND SERVICES.—

(1) OFFICERS AND EMPLOYEES.—Except as provided in sec- tion subsections (a) and (g) of section 40122, the Administrator is

authorized, in the performance of the functions of the Ad- ministrator, to appoint, transfer, and fix the compensation of such

officers and employees, including attorneys, as may be

necessary to carry out the functions of the Administrator and the

Administration. In fixing compensation and benefits of officers and

employees, the Administrator shall not engage in any type of

bargaining, except to the extent provided for in section 40122(a),

nor shall the Administrator be bound by any requirement to

establish such compensation or benefits at particular levels.

(2) EXPERTS AND CONSULTANTS.—The Administrator is authorized to obtain the services of experts and consultants in accordance with section 3109 of title 5.

(3) TRANSPORTATION AND PER DIEM EXPENSES.—The Administrator is authorized to pay transportation expenses, and per

diem in lieu of subsistence expenses, in accordance with chapter

57 of title 5.

(4) USE OF PERSONNEL FROM OTHER AGENCIES.—The Administrator is authorized to utilize the services of personnel of any

other Federal agency (as such term is defined under section

551(1) of title 5).

(5) VOLUNTARY SERVICES.—

(A) GENERAL RULE.—In exercising the authority to accept gifts and voluntary services under section 326 of this

title, and without regard to section 1342 of title 31, the Administrator may not accept voluntary and uncompensated

services if such services are used to displace Federal employees employed on a full-time, part-time, or seasonal

basis.

(B) INCIDENTAL EXPENSES.—The Administrator is authorized to provide for incidental expenses, including

transportation, lodging, and subsistence, for volunteers

who provide voluntary services under this subsection.

(C) LIMITED TREATMENT AS FEDERAL EMPLOYEES.—An

individual who provides voluntary services under this subsection shall not be considered a Federal employee for any

purpose other than for purposes of chapter 81 of title 5, relating to compensation for work injuries, and chapter 171 of

title 28, relating to tort claims.

(6) CONTRACTS.—The Administrator is authorized to enter into

and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary to carry out the

functions of the Administrator and the Administration. The

Administrator may enter into such contracts, leases, cooperative

agreements, and other transactions with any Federal agency

(as such term is defined in section 551(1) of title 5) or any

instrumentality of the United States, any State, territory, or

possession, or political subdivision thereof, any other governmental entity, or any person, firm, association, corporation, or

educational institution, on such terms and conditions as the

Administrator may consider appropriate.

(m) COOPERATION BY ADMINISTRATOR.—With the consent of ap- propriate officials, the Administrator may, with or without reimbursement, use or accept the services, equipment, personnel, and

facilities of any other Federal agency (as such term is defined in section
7

551(1) of title 5) and any other public or private entity. The Administrator

may also cooperate with appropriate officials of other public and

private agencies and instrumentalities concerning the use of services,

equipment, personnel, and facilities. The head of each Federal agency

shall cooperate with the Administrator in making the services,

equipment, personnel, and facilities of the Federal agency available

to the Administrator. The head of a Federal agency is authorized,

notwithstanding any other provision of law, to transfer to or to receive

from the Administration, without reimbursement, supplies, personnel,

services, and equipment other than administrative supplies or

equipment.

(n) ACQUISITION.—

(1) IN GENERAL.—The Administrator is authorized—

(A) to acquire (by purchase, lease, condemnation, or

otherwise), construct, improve, repair, operate, and

maintain—

(i) air traffic control facilities and equipment;

(ii) research and testing sites and facilities; and

(iii) such other real and personal property (including office space and patents), or any interest therein,

within and outside the continental United States as the

Administrator considers necessary;

(B) to lease to others such real and personal

property; and

(C) to provide by contract or otherwise for eating facilities and other necessary facilities for the welfare of employees of the Administration at the installations of the

Administration, and to acquire, operate, and maintain

equipment for these facilities.

(2) TITLE.—Title to any property or interest therein acquired pursuant to this subsection shall be held by the Government of the United States.

(o) TRANSFERS OF FUNDS.—The Administrator is authorized to

accept transfers of unobligated balances and unexpended balances of

funds appropriated to other Federal agencies (as such term is defined in

section 551(1) of title 5) to carry out functions transferred by law to the

Administrator or functions transferred pursuant to law to the

Administrator on or after the date of the enactment of the Air Traffic

Management System Performance Improvement Act of 1996 [enacted

Oct. 9, 1996].

(p) MANAGEMENT ADVISORY COUNCIL AND AIR TRAFFIC SERVICES

BOARD.—

(1) ESTABLISHMENT.—Within 3 months after the date of the

enactment of the Air Traffic Management System Performance

Improvement Act of 1996 [enacted Oct. 9, 1996], the Administrator

shall establish an advisory council which shall be known as the

Federal Aviation Management Advisory Council (in this subsection

referred to as the ‘‘Council’’). With respect to Administration

management, policy, spending, funding, and regulatory matters

affecting the aviation industry, the Council may submit comments,

recommended modifications, and dissenting views to the

Administrator. The Administrator shall include in any submission to

Congress, the Secretary, or the general public, and in any

submission for publication in the Federal Register, a description of

the comments, recommended modifications, and dissenting

views received from the Council, together with the reasons for any

differences between the views of the Council and the views or

actions of the Administrator.

(2) MEMBERSHIP.—The Council shall consist of 13 members,

who shall consist of—

(A) a designee of the Secretary of Transportation;

(B) a designee of the Secretary of Defense;

(C) 10 members representing aviation interests, appointed by—

(i) in the case of initial appointments to the Council,

the President by and with the advice and consent of the

Senate, except that initial appointments made after

May1, 2003, shall be made by the Secretary of

Transportation; and

(ii) in the case of subsequent appointments to the

Council, the Secretary of Transportation; and

(D) 1 member appointed, from among individuals who are

the leaders of their respective unions of air traffic control

system employees, by the Secretary of Transportation. (3) QUALIFICATIONS.—No officer or employee of the United

States Government may be appointed to the Council under

paragraph (2)(C) or to the Air Traffic Services Committee. (4) FUNCTIONS.—

(A) IN GENERAL.—(i) The Council shall provide advice and

counsel to the Administrator on issues which affect or are

affected by the operations of the Administrator. The Council

shall function as an oversight resource for management, policy,

spending, and regulatory matters under the jurisdiction of the

Administration.

(ii) The Council shall review the rulemaking cost-benefit analysis process and develop recommendations to improve the analysis and ensure that the public interest is

fully protected.

(iii) The Council shall review the process through

which the Administration determines to use advisory circulars and service bulletins.

(B) MEETINGS.—The Council shall meet on a regular and

periodic basis or at the call of the chairman or of the

Administrator.

(C) ACCESS TO DOCUMENTS AND STAFF.—The Adminis- tration may give the Council or Air Traffic Services Committee

appropriate access to relevant documents and personnel of the

Administration, and the Administrator shall make available,

consistent with the authority to withhold commercial and other

proprietary information under section 552 of title 5 (commonly
8

known as the ‘‘Freedom of Information Act’’), cost data

associated with the acquisition and operation of air traffic

service systems. Any member of the Council or Air Traffic

Services Committee who receives commercial or other

proprietary data from the Administrator shall be subject to the

provisions of section 1905 of title 18, pertaining to unauthorized

disclosure of such information.

(5) FEDERAL ADVISORY COMMITTEE ACT NOT TO APPLY.—The

Federal Advisory Committee Act (5 U.S.C. App.) does not apply to

the Council, the Air Traffic Services Committee, or such aviation

rulemaking committees as the Administrator shall designate.

(6) ADMINISTRATIVE MATTERS.—

(A) TERMS OF MEMBERS APPOINTED UNDER PARAGRAPH

(2)(C).—Members of the Council appointed under paragraph

(2)(C) shall be appointed for a term of 3 years. Of the

members first appointed by the President under paragraph

(2)(C)—

(i) 3 shall be appointed for terms of 1 year;

(ii) 4 shall be appointed for terms of 2 years; and

(iii) 3 shall be appointed for terms of 3 years.

(B) TERM FOR AIR TRAFFIC CONTROL REPRESENTATIVE.—The member appointed under paragraph (2)(D) shall

be appointed for a term of 3 years, except that the term of such

individual shall end whenever the individual no longer meets

the requirements of paragraph (2)(D).

(C) TERMS FOR AIR TRAFFIC SERVICES COMMITTEE

MEMBERS.—The members appointed to the Air Traffic Services

Committee shall be appointed for a term of 5 years, except that

the first members of the Committee shall be the members of

the Air Traffic Services Subcommittee of the Council on the

day before the date of enactment of the Vision 100—Century

of Aviation Reauthorization Act [enacted Dec. 12, 2003] who

shall serve in an advisory capacity until such time as the

President appoints the members of the Committee under

paragraph (7).

(D) REAPPOINTMENT.—An individual may not be appointed to the Committee to more than two 5-year terms.

(E) VACANCY.—Any vacancy on the Council or Committee

shall be filled in the same manner as the original appointment,

except that any vacancy caused by a member appointed by

the President under paragraph (2)(C)(i) shall be filled by the

Secretary in accordance with paragraph (2)(C)(ii). Any member

appointed to fill a vacancy occurring before the expiration of

the term for which the member’s predecessor was appointed

shall be appointed for the remainder of that term.

(F) CONTINUATION IN OFFICE.—A member of the Council or

Committee whose term expires shall continue to serve until the

date on which the member’s successor takes office.

(G) REMOVAL.—Any member of the Council appointed

under paragraph (2)(D) may be removed for cause by the

President or Secretary whoever makes the appointment.

Any member of the Committee may be removed for cause

by the Secretary.

(H) CLAIMS AGAINST MEMBERS OF COMMITTEE.—

(i) IN GENERAL.—A member appointed to the

Committee shall have no personal liability under

Federal law with respect to any claim arising out of or

resulting from an act or omission by such member

within the scope of service as a member of the

Committee.

(ii) EFFECT ON OTHER LAW.—This subparagraph

shall not be construed—

(I) to affect any other immunity or protection that may

be available to a member of the Subcommittee under

applicable law with respect to such transactions;

(II) to affect any other right or remedy against

the United States under applicable law; or

(III) to limit or alter in any way the immunities that are

available under applicable law for Federal officers and

employees.

(I) ETHICAL CONSIDERATIONS.—

(i) FINANCIAL DISCLOSURE.—During the entire period

that an individual is serving as a member of the

Committee, such individual shall be treated as serving as

an officer or employee referred to in section 101(f ) of

the Ethics in Government Act of 1978 for purposes of title

I of such Act; except that section 101(d) of such Act shall

apply without regard to the number of days of service in

the position.

(ii) RESTRICTIONS ON POST-EMPLOYMENT.—For

purposes of section 207(c) of title 18, an individual who is a

member of the Committee shall be treated as an employee

referred to in section 207(c)(2)(A)(i) of such title during the

entire period the individual is a member of the

Committee; except that subsections (c)(2)(B) and (f) of

section 207 of such title shall not apply.

(J) CHAIRMAN; VICE CHAIRMAN.—The Council shall

elect a chair and a vice chair from among the members ap- pointed under paragraph (2)(C), each of whom shall serve for a

term of 1 year. The vice chair shall perform the duties of the

chairman in the absence of the chairman.

(K) TRAVEL AND PER DIEM.—Each member of the

Council or Committee shall be paid actual travel expenses, and

per diem in lieu of subsistence expenses when away from his

or her usual place of residence, in accordance with section

5703 of title 5.

(L) DETAIL OF PERSONNEL FROM THE ADMINISTRATION.—The Administrator shall make available to the

Council or Committee such staff, information, and

administrative services and assistance as may reasonably be
9

required to enable the Council or Committee to carry out its

responsibilities under this subsection.

(7) AIR TRAFFIC SERVICES COMMITTEE.—

(A) ESTABLISHMENT.— The Administrator shall establish a

committee that is independent of the Council by converting the

Air Traffic Services Subcommittee of the Council, as in effect

on the day before the date of enactment of the Vision 100—

Century of Aviation Reauthorization Act [enacted Dec. 12,

2003], into such committee. The committee shall be known as

the Air Traffic Services Committee (in this subsection referred

to as the "Committee").

(B) Membership and qualifications.— Subject to paragraph

(6)(C), the Committee shall consist of five members, one of

whom shall be the Administrator and shall serve as

chairperson. The remaining members shall be appointed by

the President with the advice and consent of the Senate and—

(i) shall have a fiduciary responsibility to represent the

public interest;

(ii) shall be citizens of the United States; and

(iii) shall be appointed without regard to political

affiliation and solely on the basis of their professional

experience and expertise in one or more of the following

areas and, in the aggregate, should collectively bring to

bear expertise in all of the following areas:

(I) Management of large service organizations.

(II) Customer service.

(III) Management of large procurements.

(IV) Information and communications technology.

(V) Organizational development.

(VI) Labor relations.

(C) Prohibitions on members of committee.— No member

of the Committee may—

(i) have a pecuniary interest in, or own stock in or

bonds of, an aviation or aeronautical enterprise, except an

interest in a diversified mutual fund or an interest that is

exempt from the application of section 208 of title 18;

(ii) engage in another business related to aviation or

aeronautics; or

(iii) be a member of any organization that engages, as

a substantial part of its activities, in activities to influence

aviation-related legislation.

(D) GENERAL RESPONSIBILITIES.—

(i) OVERSIGHT.—The Committee shall oversee the

administration, management, conduct, direction, and

supervision of the air traffic control system.

(ii) CONFIDENTIALITY.—The Committee shall ensure

that appropriate confidentiality is maintained in the

exercise of its duties.

(E) SPECIFIC RESPONSIBILITIES.—The Committee shall

have the following specific responsibilities:

(i) STRATEGIC PLANS.—To review, approve, and

monitor the strategic plan for the air traffic control

system, including the establishment of—

(I) a mission and objectives;

(II) standards of performance relative to such

mission and objectives, including safety, efficiency,

and productivity; and

(III) annual and long-range strategic plans.

(ii) MODERNIZATION AND IMPROVEMENT.—To review and approve—

(I) methods to accelerate air traffic control

modernization and improvements in aviation safety

related to air traffic control; and

(II) procurements of air traffic control equipment

in excess of $100,000,000.

(iii) OPERATIONAL PLANS.—To review the operational functions of the air traffic control system,

including—

(I) plans for modernization of the air traffic control

system;

(II) plans for increasing productivity or implementing cost-saving measures; and

(III) plans for training and education.

(iv) MANAGEMENT.—To—

(I) review and approve the Administrator’s ap- pointment of a Chief Operating Officer under section

106(r);

(II) review the Administrator’s selection, eval- uation, and compensation of senior executives of the

Administration who have program management

responsibility over significant functions of the air

traffic control system;

(III) review and approve the Administrator’s plans

for any major reorganization of the Administration that

would impact on the management of the air traffic

control system;

(IV) review and approve the Administrator’s cost

accounting and financial management structure and

technologies to help ensure efficient and cost- effective air traffic control operation; and

(V) review the performance and compensation of

managers responsible for major acquisition

projects, including the ability of the managers to meet

schedule and budget targets.

(v) BUDGET.—To—

(I) review and make recommendations on the

budget request of the Administration related to the air

traffic control system prepared by the Administrator;

(II) submit such budget recommendations to

the Secretary; and

(III) base such recommendations on the annual
10

and long-range strategic plans.

(F) COMMITTEE PERSONNEL MATTERS AND EXPENSES.—

(i) PERSONNEL MATTERS.—The Committee may

appoint and terminate for purposes of employment by the

Committee any personnel that may be necessary to

enable the Committee to perform its duties, and may

procure temporary and intermittent services under section

40122.

(ii) TRAVEL EXPENSES.—Each member of the

Committee shall receive travel expenses, including per

diem in lieu of subsistence, in accordance with applicable

provisions under subchapter I of chapter 57 of title 5,

United States Code.

(G) ADMINISTRATIVE MATTERS.—

(i) POWERS OF CHAIR.—Except as otherwise provided by a majority vote of the Committee, the

powers of the chairperson shall include—

(I) establishing committees;

(II) setting meeting places and times;

(III) establishing meeting agendas; and

(IV) developing rules for the conduct of business.

(ii) MEETINGS.—The Committee shall meet at least

quarterly and at such other times as the chairperson

determines appropriate.

(iii) QUORUM.—Three members of the

Committee shall constitute a quorum. A majority of

members present and voting shall be required for the

Committee to take action.

(H) REPORTS.—

(i) ANNUAL.—The Committee shall each year report

with respect to the conduct of its responsibilities under this

title to the Secretary, the Committee on Transportation and

Infrastructure of the House of Representatives, and the

Committee on Commerce, Science, and Transportation of

the Senate.

(ii) ADDITIONAL REPORT.—If a determination by the

Committee under subparagraph (D)(i) that the

organization and operation of the air traffic control

system are not allowing the Administration to carry out its

mission, the Committee shall report such

determination to the Secretary, the Committee on

Transportation and Infrastructure of the House of

Representatives, and the Committee on Commerce,

Science, and Transportation of the Senate.

(iii) ACTION OF ADMINISTRATOR ON REPORT.—Not

later than 60 days after the date of a report of the

Committee under this subparagraph, the Administrator

shall take action with respect to such report. If the

Administrator overturns a recommendation of the

Committee, the Administrator shall report such action to

the President, the Committee on Transportation and

Infrastructure of the House of Representatives, and the

Committee on Commerce, Science, and Transportation of

the Senate.

(iv) COMPTROLLER GENERAL’S REPORT.—Not later

than April 30, 2003, the Comptroller General of the United

States shall transmit to the Committee on

Transportation and Infrastructure of the House of

Representatives and the Committee on Commerce,

Science, and Transportation of the Senate a report on the

success of the Committee in improving the performance

of the air traffic control system.

(I) AUTHORIZATION.—There are authorized to be

appropriated to the Committee such sums as may be

necessary for the Committee to carry out its activities. (8) AIR TRAFFIC CONTROL SYSTEM DEFINED.—In this sec- tion, the term ‘‘air traffic control system’’ has the meaning such

term has under section 40102(a).

(q) AIRCRAFT NOISE OMBUDSMAN.—

(1) ESTABLISHMENT.—There shall be in the Administration an

Aircraft Noise Ombudsman.

(2) GENERAL DUTIES AND RESPONSIBILITIES.—The Ombuds- man shall—

(A) be appointed by the Administrator;

(B) serve as a liaison with the public on issues regarding

aircraft noise; and

(C) be consulted when the Administration proposes

changes in aircraft routes so as to minimize any increases in

aircraft noise over populated areas.

(3) NUMBER OF FULL-TIME EQUIVALENT EMPLOYEES.—The

appointment of an Ombudsman under this subsection shall not

result in an increase in the number of full-time equivalent employees in the Administration.

(r) CHIEF OPERATING OFFICER.—

(1) IN GENERAL.—

(A) APPOINTMENT.—There shall be a Chief Operating

Officer for the air traffic control system to be appointed by the

Administrator, with the approval of the Air Traffic Services

Committee. The Chief Operating Officer shall report directly to

the Administrator and shall be subject to the authority of the

Administrator.

(B) QUALIFICATIONS.—The Chief Operating Officer

shall have a demonstrated ability in management and

knowledge of or experience in aviation. (C) TERM.—The Chief Operating Officer shall be appointed for a term of 5 years.

(D) REMOVAL.—The Chief Operating Officer shall

serve at the pleasure of the Administrator, except that the
11

Administrator shall make every effort to ensure stability and

continuity in the leadership of the air traffic control system.

(E) VACANCY.—Any individual appointed to fill a vacancy in

the position of Chief Operating Officer occurring before the

expiration of the term for which the individual’s predecessor

was appointed shall be appointed for the remainder of that

term.

(2) COMPENSATION.—

(A) IN GENERAL.—The Chief Operating Officer shall be

paid at an annual rate of basic pay to be determined by the

Administrator, with the approval of the Air Traffic Services

Committee. The annual rate may not exceed the annual

compensation paid under section 102 of title 3. The Chief

Operating Officer shall be subject to the post-employment

provisions of section 207 of title 18 as if the position of Chief

Operating Officer were described in section

207(c)(2)(A)(i) of that title.

(B) BONUS.—In addition to the annual rate of basic pay

authorized by subparagraph (A), the Chief Operating Officer

may receive a bonus for any calendar year not to exceed 30

percent of the annual rate of basic pay, based upon the

Administrator’s evaluation of the Chief Operating Officer’s

performance in relation to the performance goals set forth in

the performance agreement described in paragraph (3).

(3) ANNUAL PERFORMANCE AGREEMENT.—The Administrator and the Chief Operating Officer, in consultation with the Air

Traffic Services Committee, shall enter into an annual performance

agreement that sets forth measurable organization and individual

goals for the Chief Operating Officer in key operational areas. The

agreement shall be subject to review and renegotiation on an

annual basis.

(4) ANNUAL PERFORMANCE REPORT.—The Chief Operating

Officer shall prepare and transmit to the Secretary of Transportation,

the Committee on Transportation and Infrastructure of the House of

Representatives, and the Committee on Commerce, Science, and

Transportation of the Senate an annual management report containing such information as may be prescribed by the Secretary.

(5) RESPONSIBILITIES.—The Administrator may delegate to the

Chief Operating Officer, or any other authority within the

Administration responsibilities, including the following:

(A) STRATEGIC PLANS.—To implement the strategic plan of

the Administration for the air traffic control system in order to

further—

(i) a mission and objectives;

(ii) standards of performance relative to such mission and objectives, including safety, efficiency, and

productivity;

(iii) annual and long-range strategic plans; and

(iv) methods of the Administration to accelerate air

traffic control modernization and improvements in aviation

safety related to air traffic control.

(B) OPERATIONS.—To oversee the day-to-day operational

functions of the Administration for air traffic control, including—

(i) modernization of the air traffic control system;

(ii) increasing productivity or implementing costsaving measures;

(iii) training and education; and

(iv) the management of cost-reimbursable contracts.

(C) BUDGET.—To—

(i) develop a budget request of the Administration

related to the air traffic control system;

(ii) submit such budget request to the Administrator and the Committee; and

(iii) ensure that the budget request supports the

agency's annual and long-range strategic plans for air

traffic control services.

* * * * * * *

§ 114. Transportation Security Administration

(a) IN GENERAL.—The Transportation Security Administration shall

be an administration of the Department of Transportation.

(b) UNDER SECRETARY.— (1) APPOINTMENT.—The head of the Administration shall be

the Under Secretary of Transportation for Security. The Under

Secretary shall be appointed by the President, by and with the

advice and consent of the Senate.

(2) QUALIFICATIONS.—The Under Secretary must—

(A) be a citizen of the United States; and

(B) have experience in a field directly related to trans- portation or security.

(3) TERM.—The term of office of an individual appointed as the

Under Secretary shall be 5 years.

(c) LIMITATION ON OWNERSHIP OF STOCKS AND BONDS.—The

Under Secretary may not own stock in or bonds of a transportation or

security enterprise or an enterprise that makes equipment that could be

used for security purposes.

(d) FUNCTIONS.—The Under Secretary shall be responsible for

security in all modes of transportation, including—

(1) carrying out chapter 449, relating to civil aviation security, and related research and development activities; and

(2) security responsibilities over other modes of transpor- tation that are exercised by the Department of Transportation.

(e) SCREENING OPERATIONS.—The Under Secretary shall—

(1) be responsible for day-to-day Federal security screening

operations for passenger air transportation and intrastate air

transportation under sections 44901 and 44935;

(2) develop standards for the hiring and retention of security

screening personnel;

(3) train and test security screening personnel; and
12

(4) be responsible for hiring and training personnel to provide security screening at all airports in the United States

where screening is required under section 44901, in consultation

with the Secretary of Transportation and the heads of other

appropriate Federal agencies and departments.

(f) ADDITIONAL DUTIES AND POWERS.—In addition to carrying out

the functions specified in subsections (d) and (e), the Under Secretary

shall—

(1) receive, assess, and distribute intelligence information

related to transportation security;

(2) assess threats to transportation;

(3) develop policies, strategies, and plans for dealing with

threats to transportation security;

(4) make other plans related to transportation security, including coordinating countermeasures with appropriate departments, agencies, and instrumentalities of the United States

Government;

(5) serve as the primary liaison for transportation security to

the intelligence and law enforcement communities;

(6) on a day-to-day basis, manage and provide operational

guidance to the field security resources of the Administration,

including Federal Security Managers as provided by section

44933;

(7) enforce security-related regulations and requirements;

(8) identify and undertake research and development activities necessary to enhance transportation security;

(9) inspect, maintain, and test security facilities, equipment, and systems;

(10) ensure the adequacy of security measures for the

transportation of cargo;

(11) oversee the implementation, and ensure the adequacy, of

security measures at airports and other transportation facilities;

(12) require background checks for airport security screen- ing personnel, individuals with access to secure areas of airports, and other transportation security personnel;

(13) work in conjunction with the Administrator of the

Federal Aviation Administration with respect to any actions or

activities that may affect aviation safety or air carrier operations;

(14) work with the International Civil Aviation Organization and

appropriate aeronautic authorities of foreign governments under

section 44907 to address security concerns on passenger flights

by foreign air carriers in foreign air transportation; and

(15) carry out such other duties, and exercise such other

powers, relating to transportation security as the Under Secretary

considers appropriate, to the extent authorized by law.

(g) NATIONAL EMERGENCY RESPONSIBILITIES.— (1) IN GENERAL.—Subject to the direction and control of the

Secretary, the Under Secretary, during a national emergency, shall

have the following responsibilities:

(A) To coordinate domestic transportation, including

aviation, rail, and other surface transportation, and maritime

transportation (including port security).

(B) To coordinate and oversee the transportation-related responsibilities of other departments and agencies of the

Federal Government other than the Department of Defense

and the military departments.

(C) To coordinate and provide notice to other departments and agencies of the Federal Government, and appropriate agencies of State and local governments, including

departments and agencies for transportation, law enforcement, and border control, about threats to transportation.

(D) To carry out such other duties, and exercise such

other powers, relating to transportation during a national

emergency as the Secretary shall prescribe.

(2) AUTHORITY OF OTHER DEPARTMENTS AND AGENCIES.—

The authority of the Under Secretary under this subsection

shall not supersede the authority of any other department or

agency of the Federal Government under law with respect to

transportation or transportation-related matters, whether or not

during a national emergency.

(3) CIRCUMSTANCES.—The Secretary shall prescribe the circumstances constituting a national emergency for purposes of this

subsection.

(h) MANAGEMENT OF SECURITY INFORMATION.—In consultation with

the Transportation Security Oversight Board, the Under Secretary

shall—

(1) enter into memoranda of understanding with Federal

agencies or other entities to share or otherwise cross-check as

necessary data on individuals identified on Federal agency

databases who may pose a risk to transportation or national

security;

(2) establish procedures for notifying the Administrator of the

Federal Aviation Administration, appropriate State and local law

enforcement officials, and airport or airline security officers of the

identity of individuals known to pose, or suspected of posing, a risk

of air piracy or terrorism or a threat to airline or passenger safety;

(3) in consultation with other appropriate Federal agencies

and air carriers, establish policies and procedures requiring air

carriers—

(A) to use information from government agencies to

identify individuals on passenger lists who may be a

threat to civil aviation or national security; and

(B) if such an individual is identified, notify appropriate law enforcement agencies, prevent the individual

from boarding an aircraft, or take other appropriate action with

respect to that individual; and

(4) consider requiring passenger air carriers to share passenger lists with appropriate Federal agencies for the purpose of

identifying individuals who may pose a threat to aviation safety or
13

national security.

(i) VIEW OF NTSB.—In taking any action under this section that

could affect safety, the Under Secretary shall give great weight to

the timely views of the National Transportation Safety Board.

(j) ACQUISITIONS.—

(1) IN GENERAL.—The Under Secretary is authorized—

(A) to acquire (by purchase, lease, condemnation, or

otherwise) such real property, or any interest therein,

within and outside the continental United States, as the Under

Secretary considers necessary;

(B) to acquire (by purchase, lease, condemnation, or

otherwise) and to construct, repair, operate, and maintain

such personal property (including office space and patents), or any interest therein, within and outside the continental United States, as the Under Secretary considers

necessary;

(C) to lease to others such real and personal property

and to provide by contract or otherwise for necessary facilities for the welfare of its employees and to acquire, maintain,

and operate equipment for these facilities;

(D) to acquire services, including such personal services

as the Secretary determines necessary, and to acquire

(by purchase, lease, condemnation, or otherwise) and to

construct, repair, operate, and maintain research and testing

sites and facilities; and

(E) in cooperation with the Administrator of the Federal

Aviation Administration, to utilize the research and

development facilities of the Federal Aviation Administration.

(2) TITLE.—Title to any property or interest therein acquired pursuant to this subsection shall be held by the Government of the United States. (k) TRANSFERS OF FUNDS.—The Under Secretary is authorized to

accept transfers of unobligated balances and unexpended balances of

funds appropriated to other Federal agencies (as such term is

defined in section 551(1) of title 5) to carry out functions transferred, on

or after the date of enactment of the Aviation and Transportation

Security Act [enacted Nov. 19, 2001], by law to the Under Secretary.

(l) REGULATIONS.— (1) IN GENERAL.—The Under Secretary is authorized to

issue, rescind, and revise such regulations as are necessary to

carry out the functions of the Administration.

(2) EMERGENCY PROCEDURES.— (A) IN GENERAL.—Notwithstanding any other provision of

law or executive order (including an executive order re- quiring a cost-benefit analysis), if the Under Secretary de- termines that a regulation or security directive must be issued

immediately in order to protect transportation security, the

Under Secretary shall issue the regulation or security directive

without providing notice or an opportunity for comment and

without prior approval of the Secretary.

(B) REVIEW BY TRANSPORTATION SECURITY OVERSIGHT

BOARD.—Any regulation or security directive issued under this

paragraph shall be subject to review by the Transportation

Security Oversight Board established under section

115. Any regulation or security directive issued under this

paragraph shall remain effective for a period not to exceed

90 days unless ratified or disapproved by the Board or rescinded by the Under Secretary.

(3) FACTORS TO CONSIDER.—In determining whether to

issue, rescind, or revise a regulation under this section, the Under

Secretary shall consider, as a factor in the final determination,

whether the costs of the regulation are excessive in relation to the

enhancement of security the regulation will provide. The Under

Secretary may waive requirements for an analysis that

estimates the number of lives that will be saved by the regulation

and the monetary value of such lives if the Under Secretary

determines that it is not feasible to make such an estimate.

(4) AIRWORTHINESS OBJECTIONS BY FAA.—

(A) IN GENERAL.—The Under Secretary shall not take an

aviation security action under this title if the Administrator of

the Federal Aviation Administration notifies the Under

Secretary that the action could adversely affect the

airworthiness of an aircraft.

(B) REVIEW BY SECRETARY.—Notwithstanding subparagraph (A), the Under Secretary may take such an action, after

receiving a notification concerning the action from the

Administrator under subparagraph (A), if the Secretary of

Transportation subsequently approves the action.

(m) PERSONNEL AND SERVICES; COOPERATION BY UNDER SECRETARY.—

(1) AUTHORITY OF UNDER SECRETARY.—In carrying out the

functions of the Administration, the Under Secretary shall

have the same authority as is provided to the Administrator of the

Federal Aviation Administration under subsections (l) and

(m) of section 106. (2) AUTHORITY OF AGENCY HEADS.—The head of a Federal

agency shall have the same authority to provide services, sup- plies, equipment, personnel, and facilities to the Under Secretary

as the head has to provide services, supplies, equipment, personnel, and facilities to the Administrator of the Federal

Aviation Administration under section 106(m).

(n) PERSONNEL MANAGEMENT SYSTEM.—The personnel man- agement system established by the Administrator of the Federal

Aviation Administration under section 40122 shall apply to employees

of the Transportation Security Administration, or, subject to the

requirements of such section, the Under Secretary may make such

modifications to the personnel management system with respect to

such employees as the Under Secretary considers appropriate, such

as adopting aspects of other personnel systems of the Department of

Transportation. (o) ACQUISITION MANAGEMENT SYSTEM.—The acquisition management system established by the Administrator of the Federal
14

Aviation Administration under section 40110 shall apply to acquisitions of equipment, supplies, and materials by the Transportation

Security Administration, or, subject to the requirements of such

section, the Under Secretary may make such modifications to the

acquisition management system with respect to such acquisitions of

equipment, supplies, and materials as the Under Secretary considers appropriate, such as adopting aspects of other acquisition

management systems of the Department of Transportation.

(p) AUTHORITY OF INSPECTOR GENERAL.—The Transportation

Security Administration shall be subject to the Inspector General Act of

1978 (5 U.S.C. App.) and other laws relating to the authority of the

Inspector General of the Department of Transportation.

(q) LAW ENFORCEMENT POWERS.—

(1) IN GENERAL.—The Under Secretary may designate an

employee of the Transportation Security Administration or other

Federal agency to serve as a law enforcement officer.

(2) POWERS.—While engaged in official duties of the Administration as required to fulfill the responsibilities under this

section, a law enforcement officer designated under paragraph (1)

may—

(A) carry a firearm;

(B) make an arrest without a warrant for any offense

against the United States committed in the presence of the

officer, or for any felony cognizable under the laws of the

United States if the officer has probable cause to believe that

the person to be arrested has committed or is committing the

felony; and

(C) seek and execute warrants for arrest or seizure of

evidence issued under the authority of the United States upon

probable cause that a violation has been committed.

(3) GUIDELINES ON EXERCISE OF AUTHORITY.—The authority

provided by this subsection shall be exercised in accordance with

guidelines prescribed by the Under Secretary, in consultation with

the Attorney General of the United States, and shall include

adherence to the Attorney General’s policy on use of deadly force.

(4) REVOCATION OR SUSPENSION OF AUTHORITY.—The powers authorized by this subsection may be rescinded or

suspended should the Attorney General determine that the Under

Secretary has not complied with the guidelines prescribed in

paragraph (3) and conveys the determination in writing to the

Secretary of Transportation and the Under Secretary.

(r) AUTHORITY TO EXEMPT.—The Under Secretary may grant an

exemption from a regulation prescribed in carrying out this section if

the Under Secretary determines that the exemption is in the public

interest.

(s) NONDISCLOSURE OF SECURITY ACTIVITIES.—

(1) IN GENERAL.—Notwithstanding section 552 of title 5, the

Under Secretary shall prescribe regulations prohibiting the

disclosure of information obtained or developed in carrying out

security under authority of the Aviation and Transportation

Security Act (Public Law 107–71) or under chapter 449 of this title

if the Under Secretary decides that disclosing the information

would—

(A) be an unwarranted invasion of personal privacy;

(B) reveal a trade secret or privileged or confidential

commercial or financial information; or

(C) be detrimental to the security of transportation.

(2) AVAILABILITY OF INFORMATION TO CONGRESS.—Paragraph (1) does not authorize information to be withheld from a

committee of Congress authorized to have the information.

(3) LIMITATION ON TRANSFERABILITY OF DUTIES.—Except as

otherwise provided by law, the Under Secretary may not transfer a

duty or power under this subsection to another department,

agency, or instrumentality of the United States.

(t) TRANSPORTATION SECURITY STRATEGIC PLANNING.

(1) IN GENERAL. The Secretary of Homeland Security shall

develop, prepare, implement, and update, as needed--

(A) a National Strategy for Transportation Security; and

(B) transportation modal security plans.

(2) ROLE OF SECRETARY OF TRANSPORTATION. The Secretary of

Homeland Security shall work jointly with the Secretary of

Transportation in developing, revising, and updating the

documents required by paragraph (1).

(3) CONTENTS OF NATIONAL STRATEGY FOR TRANSPORTATION

SECURITY. The National Strategy for Transportation Security shall

include the following:

(A) An identification and evaluation of the transportation

assets in the United States that, in the interests of national

security and commerce, must be protected from attack or

disruption by terrorist or other hostile forces, including modal

security plans for aviation, bridge and tunnel, commuter rail

and ferry, highway, maritime, pipeline, rail, mass transit, overthe-road bus, and other public transportation infrastructure

assets that could be at risk of such an attack or disruption.

(B) The development of risk-based priorities across all

transportation modes and realistic deadlines for addressing

security needs associated with those assets referred to in

subparagraph (A).

(C) The most appropriate, practical, and cost-effective

means of defending those assets against threats to their

security.

(D) A forward-looking strategic plan that sets forth the

agreed upon roles and missions of Federal, State, regional,

and local authorities and establishes mechanisms for

encouraging private sector cooperation and participation in

the implementation of such plan.

(E) A comprehensive delineation of response and

recovery responsibilities and issues regarding threatened and

executed acts of terrorism within the United States.

(F) A prioritization of research and development
15

objectives that support transportation security needs, giving a

higher priority to research and development directed toward

protecting vital transportation assets.

(4) SUBMISSIONS OF PLANS TO CONGRESS.

(A) INITIAL STRATEGY. The Secretary of Homeland

Security shall submit the National Strategy for Transportation

Security, including the transportation modal security plans,

developed under this subsection to the appropriate

congressional committees not later than April 1, 2005.

(B) SUBSEQUENT VERSIONS. After December 31, 2005, the

Secretary of Homeland Security shall submit the National

Strategy for Transportation Security, including the

transportation modal security plans and any revisions to the

National Strategy for Transportation Security and the

transportation modal security plans, to appropriate

congressional committees not less frequently than April 1 of

each even-numbered year.

(C) PERIODIC PROGRESS REPORT.

(I) REQUIREMENT FOR REPORT. Each year, in

conjunction with the submission of the budget to

Congress under section 1105(a) of title 31, United States

Code, the Secretary of Homeland Security shall submit

to the appropriate congressional committees an

assessment of the progress made on implementing the

National Strategy for Transportation Security.

(ii) CONTENT. Each progress report under this

subparagraph shall include, at a minimum,

recommendations for improving and implementing the

National Strategy for Transportation Security and the

transportation modal security plans that the Secretary, in

consultation with the Secretary of Transportation,

considers appropriate.

(D) CLASSIFIED MATERIAL. Any part of the National

Strategy for Transportation Security or the transportation

modal security plans that involve information that is properly

classified under criteria established by Executive order shall

be submitted to the appropriate congressional committees

separately in a classified format.

(E) APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED. In

this subsection, the term "appropriate congressional

committees" means the Committee on Transportation and

Infrastructure and the Select Committee on Homeland

Security of the House of Representatives and the Committee

on Commerce, Science, and Transportation and the

Committee on Homeland Security and Governmental Affairs

of the Senate.

(5) PRIORITY STATUS.

(A) IN GENERAL. The National Strategy for Transportation

Security shall be the governing document for Federal

transportation security efforts.

(B) OTHER PLANS AND REPORTS. The National Strategy for

Transportation Security shall include, as an integral part or as

an appendix--

(i) the current National Maritime Transportation

Security Plan under section 70103 of title 46;

(ii) the report required by section 44938 of this title;

(iii) transportation modal security plans required

under this section; and

(iv) any other transportation security plan or report

that the Secretary of Homeland Security determines

appropriate for inclusion.

§ 115. Transportation Security Oversight Board

(a) IN GENERAL.—There is established in the Department of

Homeland Security a board to be known as the ‘‘Transportation Security Oversight Board’’.

(b) MEMBERSHIP.—

(1) NUMBER AND APPOINTMENT.—The Board shall be composed of 7 members as follows:

(A) The Secretary of Homeland Security, or the Secretary’s designee.

(B) The Secretary of Transportation, or the Secretary’s

designee.

(C) The Attorney General, or the Attorney General’s

designee.

(D) The Secretary of Defense, or the Secretary’s designee.

(E) The Secretary of the Treasury, or the Secretary’s

designee.

(F) The Director of the Central Intelligence Agency, or the

Director’s designee.

(G) One member appointed by the President to represent the National Security Council.

(2) CHAIRPERSON.—The Chairperson of the Board shall be the

Secretary of Homeland Security.

(c) DUTIES.—The Board shall—

(1) review and ratify or disapprove any regulation or security

directive issued by the Under Secretary of Transportation for

security under section 114(l)(2) within 30 days after the date

of issuance of such regulation or directive;

(2) facilitate the coordination of intelligence, security, and law

enforcement activities affecting transportation;

(3) facilitate the sharing of intelligence, security, and law

enforcement information affecting transportation among Federal

agencies and with carriers and other transportation providers as

appropriate;

(4) explore the technical feasibility of developing a common

database of individuals who may pose a threat to transportation or national security;

(5) review plans for transportation security;
16

(6) make recommendations to the Under Secretary regarding matters reviewed under paragraph (5).

(d) QUARTERLY MEETINGS.—The Board shall meet at least

quarterly.

(e) CONSIDERATION OF SECURITY INFORMATION.—A majority of the

Board may vote to close a meeting of the Board to the public, except

that meetings shall be closed to the public whenever classified,

sensitive security information, or information protected in accordance

with section 40119(b), will be discussed.

CHAPTER 3—GENERAL DUTIES AND POWERS

SUBCHAPTER I—DUTIES OF THE SECRETARY OF TRANSPORTATION

Sec.

301. Leadership, consultation, and cooperation.

302. Policy standards for transportation.

303. Policy on lands, wildlife and waterfowl refuges, and historic sites.

303a. Development of water transportation. 304. Joint activities with the Secretary of Housing and Urban Development. 305. Transportation investment standards and criteria.

306. Prohibited discrimination. 307. Safety information and intervention in Interstate Commerce Commission proceedings.

308. Reports.

309. High-speed ground transportation.

SUBCHAPTER II—ADMINISTRATIVE

321. Definitions.

322. General powers. 323. Personnel. 324. Members of the armed forces.

325. Advisory committees.

326. Gifts.

327. Administrative working capital fund.

328. Transportation Systems Center working capital fund.

329. Transportation information.

330. Research contracts.

331. Service, supplies, and facilities at remote places.

332. Minority Resource Center.

333. Responsibility for rail transportation unification and coordination projects.

334. [Repealed]

335. [Repealed]

336. Civil penalty procedures.

337. Budget request for the Director of Intelligence

and Security.

SUBCHAPTER III—MISCELLANEOUS

351. Judicial review of actions in carrying out certain transferred duties and powers.

352. Authority to carry out certain transferred duties and powers.

353. Toxicological testing of officers and employees.

SUBCHAPTER I—DUTIES OF THE SECRETARY OF

TRANSPORTATION

§ 301. Leadership, consultation, and cooperation

The Secretary of Transportation shall—

(1) under the direction of the President, exercise leadership in

transportation matters, including those matters affecting national

defense and those matters involving national or regional

emergencies;

(2) provide leadership in the development of transportation

policies and programs, and make recommendations to the

President and Congress for their consideration and implemen- tation;

(3) coordinate Federal policy on intermodal transportation and

initiate policies to promote efficient intermodal transportation in the

United States;

(4) promote and undertake the development, collection, and dissemination of technological, statistical, economic, and other

information relevant to domestic and international transportation;

(5) consult and cooperate with the Secretary of Labor in

compiling information regarding the status of labor-management contracts and other labor-management problems and in

promoting industrial harmony and stable employment conditions in

all modes of transportation;

(6) promote and undertake research and development related to transportation, including noise abatement, with particular

attention to aircraft noise, and including basic highway vehicle

science;

(7) consult with the heads of other departments, agencies, and

instrumentalities of the United States Government on the

transportation requirements of the Government, including encouraging them to establish and observe policies consistent

with maintaining a coordinated transportation system in procuring

transportation or in operating their own transport services;

(8) consult and cooperate with State and local governments, carriers, labor, and other interested persons, including,

when appropriate, holding informal public hearings; and

(9) develop and coordinate Federal policy on financing

transportation infrastructure, including the provision of direct

Federal credit assistance and other techniques used to leverage

Federal transportation funds.

§ 302. Policy standards for transportation

(a) The Secretary of Transportation is governed by the transportation policy of sections 10101 and 13101 of this title in addition to

other laws.

(b) This subtitle and chapters 221 and 315 of this title do not

authorize, without appropriate action by Congress, the adoption,

revision, or implementation of a transportation policy or investment standards or criteria.

(c) The Secretary shall consider the needs—
17

(1) for effectiveness and safety in transportation systems; and

(2) of national defense.

(d)(1) It is the policy of the United States to promote the con- struction and commercialization of high-speed ground transpor- tation systems by—

(A) conducting economic and technological research;

(B) demonstrating advancements in high-speed ground

transportation technologies;

(C) establishing a comprehensive policy for the develop- ment of such systems and the effective integration of the various

high-speed ground transportation technologies; and

(D) minimizing the long-term risks of investors.

(2) It is the policy of the United States to establish in the

shortest time practicable a United States designed and constructed

magnetic levitation transportation technology capable of operating along

Federal-aid highway rights-of-way, as part of a national

transportation system of the United States.

(e) INTERMODAL TRANSPORTATION.—It is the policy of the United

States Government to encourage and promote development of a

national intermodal transportation system in the United States to

move people and goods in an energy-efficient manner, provide the

foundation for improved productivity growth, strengthen the Nation’s

ability to compete in the global economy, and obtain the optimum yield

from the Nation’s transportation resources.

§ 303. Policy on lands, wildlife and waterfowl refuges, and historic

sites

(a) It is the policy of the United States Government that special

effort should be made to preserve the natural beauty of the countryside

and public park and recreation lands, wildlife and waterfowl refuges, and

historic sites.

(b) The Secretary of Transportation shall cooperate and consult

with the Secretaries of the Interior, Housing and Urban Development,

and Agriculture, and with the States, in developing transportation plans

and programs that include measures to maintain or enhance the natural

beauty of lands crossed by transportation activities or facilities.

(c) APPROVAL OF PROGRAMS AND PROJECTS.—Subject to subsection

(d), the Secretary may approve a transportation program or project

(other than any project for a park road or parkway under section 204 of

title 23) requiring the use of publicly owned land of a public park,

recreation area, or wildlife and waterfowl refuge of national, State, or

local significance, or land of a historic site of national, State, or local

significance (as determined by the Federal, State, or local officials

having jurisdiction over the park, area, refuge, or site) only if—

(1) there is no prudent and feasible alternative to using that

land; and

(2) the program or project includes all possible planning to

minimize harm to the park, recreation area, wildlife and waterfowl

refuge, or historic site resulting from the use.

(d) DE MINIMUM IMPACTS.—

(1) REQUIREMENTS.—

(A) REQUIREMENTS FOR HISTORIC SITES. The requirements of

this section shall be considered to be satisfied with respect to

an area described in paragraph (2) if the Secretary determines,

in accordance with this subsection, that a transportation

program or project will have a de minimis impact on the area.

(B) REQUIREMENTS FOR PARKS, RECREATION AREAS, AND

WILDLIFE OR WATERFOWL REFUGES. The requirements of

subsection (c)(1) shall be considered to be satisfied with respect

to an area described in paragraph (3) if the Secretary

determines, in accordance with this subsection, that a

transportation program or project will have a de minimis impact

on the area. The requirements of subsection (c)(2) with respect

to an area described in paragraph (3) shall not include an

alternatives analysis.

(C) CRITERIA. In making any determination under this

subsection, the Secretary shall consider to be part of a

transportation program or project any avoidance, minimization,

mitigation, or enhancement measures that are required to be

implemented as a condition of approval of the transportation

program or project.

(2) HISTORIC SITES. With respect to historic sites, the Secretary

may make a finding of de minimis impact only if--

(A) the Secretary has determined, in accordance with the

consultation process required under section 106 of the National

Historic Preservation Act ( 16 U.S.C. 470f ), that--

(i) the transportation program or project will have no

adverse effect on the historic site; or

(ii) there will be no historic properties affected by the

transportation program or project;

(B) the finding of the Secretary has received written

concurrence from the applicable State historic preservation

officer or tribal historic preservation officer (and from the

Advisory Council on Historic Preservation if the Council is

participating in the consultation process); and

(C) the finding of the Secretary has been developed in

consultation with parties consulting as part of the process

referred to in subparagraph (A).

(3) PARKS, RECREATION AREAS, AND WILDLIFE OR WATERFOWL

REFUGES. With respect to parks, recreation areas, or wildlife or

waterfowl refuges, the Secretary may make a finding of de minimis

impact only if--

(A) the Secretary has determined, after public notice and

opportunity for public review and comment, that the

transportation program or project will not adversely affect the

activities, features, and attributes of the park, recreation area, or

wildlife or waterfowl refuge eligible for protection under this

section; and

(B) the finding of the Secretary has received concurrence

from the officials with jurisdiction over the park, recreation area,
18

or wildlife or waterfowl refuge.

§ 303a. Development of water transportation

(a) POLICY.—It is the policy of Congress—

(1) to promote, encourage, and develop water transportation, service, and facilities for the commerce of the United States;

and

(2) to foster and preserve rail and water transportation.

(b) DEFINITION.—In this section, ‘‘inland waterway’’ includes the

Great Lakes.

(c) REQUIREMENTS.—The Secretary of Transportation shall—

(1) investigate the types of vessels suitable for different

classes of inland waterways to promote, encourage, and de- velop inland waterway transportation facilities for the com- merce of the United States;

(2) investigate water terminals, both for inland waterway traffic

and for through traffic by water and rail, including the necessary

docks, warehouses, and equipment, and investigate railroad spurs

and switches connecting with those water terminals, to develop the

types most appropriate for different locations and for transferring

passengers or property between water carriers and rail carriers

more expeditiously and economically;

(3) consult with communities, cities, and towns about the

location of water terminals, and cooperate with them in preparing

plans for terminal facilities;

(4) investigate the existing status of water transportation on the

different inland waterways of the United States to learn the extent to

which—

(A) the waterways are being used to their capacity and are

meeting the demands of traffic; and

(B) water carriers using those waterways are interchanging traffic with rail carriers;

(5) investigate other matters that may promote and encourage inland water transportation; and

(6) compile, publish, and distribute information about

transportation on inland waterways that the Secretary considers useful to the commercial interests of the United States.

§ 304. Joint activities with the Secretary of Housing and

Urban Development

(a) The Secretary of Transportation and the Secretary of Housing

and Urban Development shall—

(1) consult and exchange information about their respective

transportation policies and activities;

(2) carry out joint planning, research, and other activities;

(3) coordinate assistance for local transportation projects; and

(4) jointly study methods by which policies and programs of the

United States Government can ensure that urban transportation

systems most effectively serve both transportation needs of the

United States and the comprehensively planned development of

urban areas.

(b) The Secretaries shall report on April 1 of each year to the

President, for submission to Congress, on their studies and other

activities under this section, including legislative recommendations they

consider desirable.

§ 305. Transportation investment standards and criteria

(a) Subject to sections 301–304 of this title, the Secretary of

Transportation shall develop standards and criteria to formulate and

economically evaluate all proposals for investing amounts of the United

States Government in transportation facilities and equipment. Based

on experience, the Secretary shall revise the standards and criteria.

When approved by Congress, the Secretary shall prescribe standards

and criteria developed or revised under this subsection. This subsection

does not apply to—

(1) the acquisition of transportation facilities or equipment by a

department, agency, or instrumentality of the Government to provide

transportation for its use;

(2) an inter-oceanic canal located outside the 48 contiguous

States;

(3) defense features included at the direction of the Department of

Defense in designing and constructing civil air, sea, or land

transportation;

(4) foreign assistance programs;

(5) water resources projects; or

(6) grant-in-aid programs authorized by law.

(b) A department, agency, or instrumentality of the Government

preparing a survey, plan, or report that includes a proposal about which

the Secretary has prescribed standards and criteria under subsection

(a) of this section shall—

(1) prepare the survey, plan, or report under those standards

and criteria and on the basis of information provided by the

Secretary on the—

(A) projected growth of transportation needs and traffic in

the affected area;

(B) the relative efficiency of various modes of transpor- tation;

(C) the available transportation services in the area;

and

(D) the general effect of the proposed investment on

existing modes of transportation and on the regional and national

economy;

(2) coordinate the survey, plan, or report—

(A) with the Secretary and include the views and comments of the Secretary; and

(B) as appropriate, with other departments, agencies, and

instrumentalities of the Government, States, and local

governments, and include their views and comments; and

(3) send the survey, plan, or report to the President for

disposition under law and procedure established by the President.
19

* * * * * * *

§ 308. Reports

(a) As soon as practicable after the end of each fiscal year, the

Secretary of Transportation shall report to the President, for submission to Congress, on the activities of the Department of Transportation during the prior fiscal year.

(b) The Secretary shall submit to the President and Congress each

year a report on the aviation activities of the Department. The report

shall include—

(1) collected information the Secretary considers valuable in

deciding questions about—

(A) the development and regulation of civil aeronautics;

(B) the use of airspace of the United States; and

(C) the improvement of the air navigation and traffic

control system; and

(2) recommendations for additional legislation and other

action the Secretary considers necessary.

(c) The Secretary shall submit to Congress each year a report on

the conditions of the public ports of the United States, including the—

(1) economic and technological development of the ports;

(2) extent to which the ports contribute to the national

welfare and security; and

(3) factors that may impede the continued development of the

ports.

(d) [Repealed by section 1121(h) of Public Law 104–66 (109

Stat. 724).]

(e)(1) The Secretary shall submit to Congress in March 1998, and

in March of each even-numbered year thereafter, a report of estimates

by the Secretary on the current performance and condition of public

mass transportation systems with recommendations for necessary

administrative or legislative changes.

(2) In reporting to Congress under this subsection, the Secretary shall prepare a complete assessment of public transportation

facilities in the United States. The Secretary also shall assess future

needs for those facilities and estimate future capital requirements and

operation and maintenance requirements for one-year, 5-year, and 10-year periods at specified levels of service.

* * * * * * *

SUBCHAPTER II—ADMINISTRATIVE

§ 321. Definitions

In this subchapter, ‘‘aeronautics’’, ‘‘air commerce’’, and ‘‘air

navigation facility’’ have the same meanings given those terms in

section 40102(a) of this title.

§ 322. General powers

(a) The Secretary of Transportation may prescribe regulations to

carry out the duties and powers of the Secretary. An officer of the

Department of Transportation may prescribe regulations to carry out

the duties and powers of the officer.

(b) The Secretary may delegate, and authorize successive delegations of, duties and powers of the Secretary to an officer or employee of the Department. An officer of the Department may delegate,

and authorize successive delegations of, duties and powers of the

officer to another officer or employee of the Department. However, the

duties and powers specified in sections 103(c)(1), 104(c)(1), and

106(g)(1) of this title may not be delegated to an officer or employee

outside the Administration concerned.

(c) On a reimbursable basis when appropriate, the Secretary may,

in carrying out aviation duties and powers—

(1) use the available services, equipment, personnel, and

facilities of other civilian or military departments, agencies, and

instrumentalities of the United States Government, with their

consent;

(2) cooperate with those departments, agencies, and instrumentalities in establishing and using aviation services, equipment,

and facilities of the Department; and

(3) confer and cooperate with, and use the services,

records, and facilities of, State, territorial, municipal, and other

agencies.

(d) The Secretary may make expenditures to carry out aviation

duties and powers, including expenditures for—

(1) rent and personal services;

(2) travel expenses;

(3) office furniture, equipment, supplies, lawbooks, newspapers, periodicals, and reference books, including exchanges;

(4) printing and binding;

(5) membership in and cooperation with domestic or foreign

organizations related to, or a part of, the civil aeronautics industry

or the art of aeronautics;

(6) payment of allowances and other benefits to employees

stationed in foreign countries to the same extent authorized for

members of the Foreign Service of comparable grade;

(7) investigations and studies about aeronautics; and

(8) acquiring, exchanging, operating, and maintaining pas- senger-carrying aircraft and automobiles and other property.

(e) The Secretary may negotiate, without advertising, the purchase of technical or special property related to air navigation

when the Secretary decides that—

(1) making the property would require a substantial initial

investment or an extended period of preparation; and

(2) procurement by advertising would likely result in additional

cost to the Government by duplication of investment or would

result in duplication of necessary preparation that would
20

unreasonably delay procuring the property.

§ 323. Personnel

(a) The Secretary of Transportation may appoint and fix the pay of

officers and employees of the Department of Transportation and may

prescribe their duties and powers.

(b) The Secretary may procure services under section 3109 of title

5. However, an individual may be paid not more than $100 a day for

services.

§ 324. Members of the armed forces

(a) The Secretary of Transportation—

(1) to ensure that national defense interests are safe-guarded

properly and that the Secretary is advised properly about the needs and

special problems of the armed forces, shall provide for participation of

members of the armed forces in carrying out the duties and powers of

the Secretary related to the regulation and protection of air traffic,

including providing for, and research and development of, air navigation

facilities, and the allocation of airspace; and

(2) may provide for participation of members of the armed forces in

carrying out other duties and powers of the Secretary. (b) A member of the Coast Guard on active duty may be ap- pointed, detailed, or assigned to a position in the Department of

Transportation, except the position of Secretary, Deputy Secretary, or

Assistant Secretary for Administration. A retired member of the Coast

Guard may be appointed, detailed, or assigned to a position in the

Department.

(c) The Secretary of Transportation and the Secretary of a military

department may make cooperative agreements, including

agreements on reimbursement as may be considered appropriate by the

Secretaries, under which a member of the armed forces may be

appointed, detailed, or assigned to the Department of Transpor- tation under this section. The Secretary of Transportation shall

send a report each year to the appropriate committees of Congress on

agreements made to carry out subsection (a)(2) of this section, including

the number, rank, and position of each member appointed, detailed, or assigned under those agreements.

(d) The Secretary of a military department does not control the

duties and powers of a member of the armed forces appointed, de- tailed, or assigned under this section when those duties and powers

pertain to the Department of Transportation. A member of the

armed forces appointed, detailed, or assigned under subsection

(a)(2) of this section may not be charged against a statutory limitation on

grades or strengths of the armed forces. The appointment, detail, or

assignment and service of a member under this section to a position in

the Department of Transportation does not affect the status, office, rank,

or grade held by that member, or a right or benefit arising from that

status, office, rank, or grade.

§ 325. Advisory committees

(a) Without regard to the provisions of title 5 governing appointment in the competitive service, the Secretary of Transportation

may appoint advisory committees to consult with and advise the

Secretary in carrying out the duties and powers of the Secretary.

(b) While attending a committee meeting or otherwise serving at the

request of the Secretary, a member of an advisory committee may be

paid not more than $100 a day. A member is entitled to reimbursement

for expenses under section 5703 of title 5. This subsection does not

apply to individuals regularly employed by the United States

Government.

(c) A member of an advisory committee advising the Secretary in

carrying out aviation duties and powers may serve for not more than

100 days in a calendar year.

§ 326. Gifts

(a) The Secretary of Transportation may accept and use conditional or unconditional gifts of property for the Department of

Transportation. The Secretary may accept a gift of services in carrying

out aviation duties and powers. Property accepted under this section

and proceeds from that property must be used, as nearly as possible,

under the terms of the gift.

(b) The Department has a fund in the Treasury. Disbursements from the fund are made on order of the Secretary. The fund

consists of—

(1) gifts of money;

(2) income from property accepted under this section and

proceeds from the sale of that property; and

(3) income from securities under subsection (c) of this sec- tion.

(c) On request of the Secretary of Transportation, the Secretary of

the Treasury may invest and reinvest amounts in the fund in securities

of, or in securities whose principal and interest is guaranteed by, the

United States Government.

(d) Property accepted under this section is a gift to or for the use of

the Government under the Internal Revenue Code of 1954

(26 U.S.C. 1 et seq.).

§ 327. Administrative working capital fund

(a) The Department of Transportation has an administrative working

capital fund. Amounts in the fund are available for expenses of

operating and maintaining common administrative services the

Secretary of Transportation decides are desirable for the efficiency and

economy of the Department. The services may include—

(1) a central supply service for stationery and other supplies

and equipment through which adequate stocks may be maintained

to meet the requirements of the Department;

(2) central messenger, mail, telephone, and other communications services;

(3) office space;
21

(4) central services for document reproduction, and for

graphics and visual aids; and

(5) a central library service.

(b) Amounts in the fund are available without regard to fiscal year

limitation. Amounts may be appropriated to the fund.

(c) The fund consists of—

(1) amounts appropriated to the fund;

(2) the reasonable value of stocks of supplies, equipment, and

other assets and inventories on order that the Secretary transfers to

the fund, less the related liabilities and unpaid obligations;

(3) amounts received from the sale or exchange of property;

and

(4) payments received for loss or damage to property of the

fund.

(d) The fund shall be reimbursed, in advance, from amounts

available to the Department or from other sources, for supplies and

services at rates that will approximate the expenses of operation,

including the accrual of annual leave and the depreciation of equipment. Amounts in the fund, in excess of amounts transferred or appropriated to maintain the fund, shall be deposited in the Treasury as

miscellaneous receipts. All assets, liabilities, and prior losses are

considered in determining the amount of the excess.

§ 328. Transportation Systems Center working capital fund

(a) The Department of Transportation has a Transportation

Systems Center working capital fund. Amounts in the fund are

available for financing the activities of the Center, including research,

development, testing, evaluation, analysis, and related activities the

Secretary of Transportation approves, for the Department, other

agencies, State and local governments, other public authorities, private

organizations, and foreign countries.

(b) Amounts in the fund are available without regard to fiscal year

limitation. Amounts may be appropriated to the fund.

(c) The capital of the fund consists of—

(1) amounts appropriated to the fund;

(2) net assets of the Center as of October 1, 1980, including

unexpended advances made to the Center for which valid

obligations were incurred before October 1, 1980;

(3) the reasonable value of property and other assets

transferred to the fund after September 30, 1980, less the related

liabilities and unpaid obligations; and

(4) the reasonable value of property and other assets donated

to the fund.

(d) The fund shall be reimbursed or credited with—

(1) advance payments from applicable funds or appropria- tions of the Department and other agencies, and with advance

payments from other sources, the Secretary authorizes, for—

(A) services at rates that will recover the expenses of

operation, including the accrual of annual leave and over- head; and

(B) acquiring property and equipment under regulations the Secretary prescribes; and

(2) receipts from the sale or exchange of property or in

payment for loss or damage of property held by the fund.

(e) The Secretary shall deposit at the end of each fiscal year, in the

Treasury as miscellaneous receipts, amounts accruing in the fund that

the Secretary decides are in excess of the needs of the fund.

§ 329. Transportation information

(a) The Secretary of Transportation may collect and collate

transportation information the Secretary decides will contribute to the

improvement of the transportation system of the United States. To the

greatest practical extent, the Secretary shall use information available

from departments, agencies, and instrumentalities of the United States

Government and other sources. To the extent practical, the Secretary

shall make available to other Government departments, agencies, and

instrumentalities and to the public the information collected under this

subsection.

(b) The Secretary shall—

(1) collect and disseminate information on civil aeronautics

(other than that collected and disseminated by the National

Transportation Safety Board under chapter 11 of this title) including at a minimum, information on (A) the origin and destination

of passengers in interstate air transportation (as that term is used in

part A of subtitle VII of this title), and (B) the number of passengers

traveling by air between any two points in interstate air

transportation; except that in no case shall the Secretary require an

air carrier to provide information on the number of passengers or

the amount of cargo on a specific flight if the flight and the

flight number under which such flight operates are used solely for

interstate air transportation and are not used for providing

essential air transportation under subchapter II of chapter 417 of

this title;

(2) study the possibilities of developing air commerce and the

aeronautical industry; and

(3) exchange information on civil aeronautics with governments of foreign countries through appropriate departments,

agencies, and instrumentalities of the Government.

(c)(1) On the written request of a person, a State, territory, or

possession of the United States, or a political subdivision of a

State, territory, or possession, the Secretary may—

(A) make special statistical studies on foreign and domestic

transportation;

(B) make special studies on other matters related to duties and

powers of the Secretary;

(C) prepare, from records of the Department of Transpor- tation, special statistical compilations; and

(D) provide transcripts of studies, tables, and other records of

the Department.

(2) The person or governmental authority requesting information

under paragraph (1) of this subsection must pay the actual cost of
22

preparing the information. Payments shall be deposited in the Treasury

in an account that the Secretary shall administer. The Secretary may

use amounts in the account for the ordinary expenses incidental to

getting and providing the information.

(d) To assist in carrying out duties and powers under part A of

subtitle VII of this title, the Secretary of Transportation shall maintain

separate cooperative agreements with the Secretary of Defense

and the Administrator of the National Aeronautics and Space

Administration for the timely exchange of information on their

programs, policies, and requirements directly related to carrying out that

part.

(e) INCIDENTS AND COMPLAINTS INVOLVING PASSENGER AND BAGGAGE

SECURITY SCREENING.—

(1) PUBLICATION OF DATA.—The Secretary of Transportation

shall publish data on incidents and complaints involving passenger

and baggage security screening in a manner comparable to other

consumer complaint and incident data.

(2) MONTHLY REPORTS FROM SECRETARY OF HOMELAND

SECURITY.— To assist in the publication of data under paragraph (1),

the Secretary of Transportation may request the Secretary of

Homeland Security to periodically report on the number of

complaints about security screening received by the Secretary of

Homeland Security.

§ 330. Research contracts

(a) The Secretary of Transportation may make contracts with

educational institutions, public and private agencies and organizations,

and persons for scientific or technological research into a problem

related to programs carried out by the Secretary. Before making a

contract, the Secretary must require the institution, agency,

organization, or person to show that it is able to carry out the contract.

(b) In carrying out this section, the Secretary shall—

(1) give advice and assistance the Secretary believes will best

carry out the duties and powers of the Secretary;

(2) participate in coordinating all research started under this

section;

(3) indicate the lines of inquiry most important to the Secretary; and

(4) encourage and assist in establishing and maintaining

cooperation by and between contractors and between them and

other research organizations, the Department of Transportation, and other departments, agencies, and instrumentalities of

the United States Government.

(c) The Secretary may distribute publications containing information the Secretary considers relevant to research carried out

under this section.

§ 331. Service, supplies, and facilities at remote places

(a) When necessary and not otherwise available, the Secretary of

Transportation may provide for, construct, or maintain the following for

officers and employees of the Department of Transportation and their

dependents stationed in remote places:

(1) emergency medical services and supplies.

(2) food and other subsistence supplies.

(3) messing facilities.

(4) motion picture equipment and film for recreation and

training.

(5) living and working quarters and facilities.

(6) reimbursement for food, clothing, medicine, and other

supplies provided by an officer or employee in an emergency for

the temporary relief of individuals in distress.

(b) The Secretary shall prescribe reasonable charges for medical

treatment provided under subsection (a)(1) of this section and for

supplies and services provided under subsection (a)(2) and (3) of this

section. Amounts received under this subsection shall be credited

to the appropriation from which the expenditure was made.

(c) When appropriations for a fiscal year for aviation duties and

powers have not been made before June 1 immediately before the

beginning of the fiscal year, the Secretary may designate an officer, and

authorize that officer, to incur obligations to buy and transport supplies

to carry out those duties and powers at installations outside the 48

contiguous States and the District of Columbia. The amount obligated

under this subsection in a fiscal year may be not more than 75 percent

of the amount available for buying and transporting supplies to those

installations for the then current fiscal year. Payment of obligations

under this subsection shall be made from appropriations for the next

fiscal year when available.

* * * * * * *
23

SUBTITLE VII—AVIATION PROGRAMS

SUBTITLE VII—AVIATION PROGRAMS

PART A—AIR COMMERCE AND SAFETY

SUBPART I—GENERAL

CHAPTER Sec.

401. GENERAL PROVISIONS .......................................................................... 40101

SUBPART II—ECONOMIC REGULATION

411. AIR CARRIER CERTIFICATES ............................................................... 41101

413. FOREIGN AIR TRANSPORTATION ....................................................... 41301

415. PRICING ..................................................................................................... 41501

417. OPERATIONS OF CARRIERS ................................................................. 41701

419. TRANSPORTATION OF MAIL ................................................................ 41901

421. LABOR-MANAGEMENT PROVISIONS .................................................. 42101

SUBPART III—SAFETY

441. REGISTRATION AND RECORDATION OF AIRCRAFT ...................... 44101

443. INSURANCE .............................................................................................. 44301

445. FACILITIES, PERSONNEL, AND RESEARCH ..................................... 44501

447. SAFETY REGULATION ............................................................................ 44701

449. SECURITY .................................................................................................. 44901

451. ALCOHOL AND CONTROLLED SUBSTANCES TESTING ................. 45101

453. FEES ........................................................................................................... 45301

SUBPART IV—ENFORCEMENT AND PENALTIES

461. INVESTIGATIONS AND PROCEEDINGS ............................................. 46101

463. PENALTIES ............................................................................................... 46301

465. SPECIAL AIRCRAFT JURISDICTION OF THE UNITED STATES .... 46501

PART B—AIRPORT DEVELOPMENT AND NOISE

471. AIRPORT DEVELOPMENT ..................................................................... 47101

473. INTERNATIONAL AIRPORT FACILITIES ............................................ 47301

475. NOISE ......................................................................................................... 47501

PART C—FINANCING

481. AIRPORT AND AIRWAY TRUST FUND AUTHORIZATIONS ............ 48101

482. ADVANCE APPROPRIATIONS FOR AIRPORT AND AIRWAY

TRUST FACILITIES .............................................................................. 48201

483. Aviation Security Funding ........................................................................ 48301

PART D—PUBLIC AIRPORTS

491. METROPOLITAN WASHINGTON AIRPORTS ...................................... 49101

PART E—MISCELLANEOUS

501. BUY-AMERICAN PREFERENCES .......................................................... 50101
24

PART A—AIR COMMERCE AND SAFETY

SUBPART I—GENERAL

CHAPTER 401—GENERAL PROVISIONS

40101. Policy.

40102. Definitions.

40103. Sovereignty and use of airspace.

40104. Promotion of civil aeronautics and safety of air commerce.

40105. International negotiations, agreements, and obligations.

40106. Emergency powers.

40107. Presidential transfers.

40108. Training schools.

40109. Authority to exempt.

40110. General procurement authority.

40111. Multiyear procurement contracts for services and related items.

40112. Multiyear procurement contracts for property.

40113. Administrative.

40114. Reports and records.

40115. Withholding information.

40116. State taxation.

40117. Passenger facility fees.

40118. Government-financed air transportation.

40119. Security and research and development activities.

40120. Relationship to other laws.

40121. Air traffic control modernization reviews.

40122. Federal Aviation Administration personnel management system.

40123. Protection of voluntarily submitted information.

40124. Interstate agreements for airport facilities.

40125. Qualifications for public aircraft status.

40126. Severable services contracts for periods crossing fiscal years.

40127. Prohibitions on discrimination.

40128. Overflights of national parks.

40129. Collaborative decisionmaking pilot program.

§ 40101. Policy

(a) ECONOMIC REGULATION.—In carrying out subpart II of this

part and those provisions of subpart IV applicable in carrying out

subpart II, the Secretary of Transportation shall consider the following matters, among others, as being in the public interest and

consistent with public convenience and necessity:

(1) assigning and maintaining safety as the highest priority in air commerce.

(2) before authorizing new air transportation services,

evaluating the safety implications of those services.

(3) preventing deterioration in established safety procedures, recognizing the clear intent, encouragement, and dedica- tion of Congress to further the highest degree of safety in air

transportation and air commerce, and to maintain the safety

vigilance that has evolved in air transportation and air com- merce and has come to be expected by the traveling and shipping public.

(4) the availability of a variety of adequate, economic, efficient, and low-priced services without unreasonable discrimination or unfair or deceptive practices.

(5) coordinating transportation by, and improving relations

among, air carriers, and encouraging fair wages and working

conditions.

(6) placing maximum reliance on competitive market forces

and on actual and potential competition—

(A) to provide the needed air transportation system;

and

(B) to encourage efficient and well-managed air

carriers to earn adequate profits and attract capital, considering any material differences between interstate

air transportation and foreign air transportation.

(7) developing and maintaining a sound regulatory system

that is responsive to the needs of the public and in which decisions are reached promptly to make it easier to adapt the air

transportation system to the present and future needs of—

(A) the commerce of the United States;

(B) the United States Postal Service; and

(C) the national defense.

(8) encouraging air transportation at major urban areas

through secondary or satellite airports if consistent with regional airport plans of regional and local authorities, and if en- dorsed by appropriate State authorities—

(A) encouraging the transportation by air carriers that

provide, in a specific market, transportation exclusively at

those airports; and

(B) fostering an environment that allows those car- riers to establish themselves and develop secondary or satellite airport services.

(9) preventing unfair, deceptive, predatory, or anticompeti- tive practices in air transportation.

(10) avoiding unreasonable industry concentration, excessive market domination, monopoly powers, and other conditions that would tend to allow at least one air carrier or foreign air carrier unreasonably to increase prices, reduce services, or exclude competition in air transportation.

(11) maintaining a complete and convenient system of continuous scheduled interstate air transportation for small communities and isolated areas with direct financial assistance

from the United States Government when appropriate.

(12) encouraging, developing, and maintaining an air

transportation system relying on actual and potential

competition—

(A) to provide efficiency, innovation, and low prices;

and

(B) to decide on the variety and quality of, and

determine prices for, air transportation services.

(13) encouraging entry into air transportation markets by

new and existing air carriers and the continued strengthening

of small air carriers to ensure a more effective and competitive
25

airline industry.

(14) promoting, encouraging, and developing civil aeronautics and a viable, privately-owned United States air transport industry.

(15) strengthening the competitive position of air carriers

to at least ensure equality with foreign air carriers, including

the attainment of the opportunity for air carriers to maintain

and increase their profitability in foreign air transportation. (16) ensuring that consumers in all regions of the United

States, including those in small communities and rural and re- mote areas, have access to affordable, regularly scheduled air

service.

(b) ALL-CARGO AIR TRANSPORTATION CONSIDERATIONS.—In carrying out subpart II of this part and those provisions of subpart IV

applicable in carrying out subpart II, the Secretary of Transportation shall consider the following matters, among others and in

addition to the matters referred to in subsection (a) of this section,

as being in the public interest for all-cargo air transportation:

(1) encouraging and developing an expedited all-cargo air

transportation system provided by private enterprise and re- sponsive to—

(A) the present and future needs of shippers;

(B) the commerce of the United States; and

(C) the national defense.

(2) encouraging and developing an integrated transpor- tation system relying on competitive market forces to decide

the extent, variety, quality, and price of services provided.

(3) providing services without unreasonable discrimination, unfair or deceptive practices, or predatory pricing. (c) GENERAL SAFETY CONSIDERATIONS.—In carrying out subpart III of this part and those provisions of subpart IV applicable

in carrying out subpart III, the Administrator of the Federal Avia- tion Administration shall consider the following matters:

(1) the requirements of national defense and commercial

and general aviation. (2) the public right of freedom of transit through the navigable airspace.

(d) SAFETY CONSIDERATIONS IN PUBLIC INTEREST.—In carrying

out subpart III of this part and those provisions of subpart IV applicable in carrying out subpart III, the Administrator shall consider the following matters, among others, as being in the public

interest:

(1) assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce.

(2) regulating air commerce in a way that best promotes

safety and fulfills national defense requirements.

(3) encouraging and developing civil aeronautics, including

new aviation technology.

(4) controlling the use of the navigable airspace and regulating civil and military operations in that airspace in the interest of the safety and efficiency of both of those operations.

(5) consolidating research and development for air navigation facilities and the installation and operation of those facilities.

(6) developing and operating a common system of air traffic control and navigation for military and civil aircraft.

(7) providing assistance to law enforcement agencies in the

enforcement of laws related to regulation of controlled substances, to the extent consistent with aviation safety.

(e) INTERNATIONAL AIR TRANSPORTATION.—In formulating

United States international air transportation policy, the Secretaries of State and Transportation shall develop a negotiating policy emphasizing the greatest degree of competition compatible with

a well-functioning international air transportation system, including the following:

(1) strengthening the competitive position of air carriers to

ensure at least equality with foreign air carriers, including the

attainment of the opportunity for air carriers to maintain and

increase their profitability in foreign air transportation.

(2) freedom of air carriers and foreign air carriers to offer

prices that correspond to consumer demand.

(3) the fewest possible restrictions on charter air transpor- tation.

(4) the maximum degree of multiple and permissive international authority for air carriers so that they will be able to

respond quickly to a shift in market demand.

(5) eliminating operational and marketing restrictions to

the greatest extent possible.

(6) integrating domestic and international air transportation.

(7) increasing the number of nonstop United States gateway cities.

(8) opportunities for carriers of foreign countries to increase their access to places in the United States if exchanged

for benefits of similar magnitude for air carriers or the traveling public with permanent linkage between rights granted

and rights given away.

(9) eliminating discrimination and unfair competitive practices faced by United States airlines in foreign air transpor- tation, including—

(A) excessive landing and user fees;

(B) unreasonable ground handling requirements;

(C) unreasonable restrictions on operations;

(D) prohibitions against change of gauge; and

(E) similar restrictive practices.

(10) promoting, encouraging, and developing civil aeronautics and a viable, privately-owned United States air transport industry.

(f) STRENGTHENING COMPETITION.—In selecting an air carrier

to provide foreign air transportation from among competing appli-
26

cants, the Secretary of Transportation shall consider, in addition to

the matters specified in subsections (a) and (b) of this section, the

strengthening of competition among air carriers operating in the

United States to prevent unreasonable concentration in the air carrier industry.

§ 40102. Definitions

(a) GENERAL DEFINITIONS.—In this part—

(1) ‘‘aeronautics’’ means the science and art of flight.

(2) ‘‘air carrier’’ means a citizen of the United States undertaking by any means, directly or indirectly, to provide air

transportation.

(3) ‘‘air commerce’’ means foreign air commerce, interstate

air commerce, the transportation of mail by aircraft, the operation of aircraft within the limits of a Federal airway, or the

operation of aircraft that directly affects, or may endanger

safety in, foreign or interstate air commerce. (4) ‘‘air navigation facility’’ means a facility used, available

for use, or designed for use, in aid of air navigation, including—

(A) a landing area;

(B) a light;

(C) apparatus or equipment for distributing weather

information, signaling, radio-directional finding, or radio or

other electromagnetic communication; and

(D) another structure or mechanism for guiding or

controlling flight in the air or the landing and takeoff of

aircraft.

(5) ‘‘air transportation’’ means foreign air transportation, interstate air transportation, or the transportation of mail by

aircraft.

(6) ‘‘aircraft’’ means any contrivance invented, used, or de- signed to navigate, or fly in, the air.

(7) ‘‘aircraft engine’’ means an engine used, or intended to

be used, to propel an aircraft, including a part, appurtenance, and accessory of the engine, except a propeller.

(8) ‘‘airman’’ means an individual— (A) in command, or as pilot, mechanic, or member of

the crew, who navigates aircraft when under way;

(B) except to the extent the Administrator of the Fed- eral Aviation Administration may provide otherwise for individuals employed outside the United States, who is directly in charge of inspecting, maintaining, overhauling, or

repairing aircraft, aircraft engines, propellers, or appliances; or

(C) who serves as an aircraft dispatcher or air traffic

control-tower operator.

(9) ‘‘airport’’ means a landing area used regularly by aircraft for receiving or discharging passengers or cargo.

(10) ‘‘all-cargo air transportation’’ means the transportation by aircraft in interstate air transportation of only property or only mail, or both.

(11) ‘‘appliance’’ means an instrument, equipment, apparatus, a part, an appurtenance, or an accessory used, capable

of being used, or intended to be used, in operating or controlling aircraft in flight, including a parachute, communication

equipment, and another mechanism installed in or attached to

aircraft during flight, and not a part of an aircraft, aircraft engine, or propeller.

(12) ‘‘cargo’’ means property, mail, or both.

(13) ‘‘charter air carrier’’ means an air carrier holding a

certificate of public convenience and necessity that authorizes

it to provide charter air transportation.

(14) ‘‘charter air transportation’’ means charter trips in air

transportation authorized under this part.

(15) ‘‘citizen of the United States’’ means—

(A) an individual who is a citizen of the United States;

(B) a partnership each of whose partners is an individual who is a citizen of the United States; or

(C) a corporation or association organized under the

laws of the United States or a State, the District of Columbia, or a territory or possession of the United States,

ofwhich the president and at least two-thirds of the board

of directors and other managing officers are citizens of

the United States, which is under the actual control of

citizens of the United States, and in which at least 75

percent of the voting interest is owned or controlled by

persons that are citizens of the United States.

(16) ‘‘civil aircraft’’ means an aircraft except a public air- craft.

(17) ‘‘civil aircraft of the United States’’ means an aircraft

registered under chapter 441 of this title.

(18) ‘‘conditional sales contract’’ means a contract—

(A) for the sale of an aircraft, aircraft engine, pro- peller, appliance, or spare part, under which the buyer

takes possession of the property but title to the property

vests in the buyer at a later time on—

(i) paying any part of the purchase price;

(ii) performing another condition; or

(iii) the happening of a contingency; or

(B) to bail or lease an aircraft, aircraft engine, pro- peller, appliance, or spare part, under which the bailee or

lessee—

(i) agrees to pay an amount substantially equal to

the value of the property; and

(ii) is to become, or has the option of becoming,

the owner of the property on complying with the contract.

(19) ‘‘conveyance’’ means an instrument, including a conditional sales contract, affecting title to, or an interest in, property.
27

(20) ‘‘Federal airway’’ means a part of the navigable airspace that the Administrator designates as a Federal airway. (21) ‘‘foreign air carrier’’ means a person, not a citizen of

the United States, undertaking by any means, directly or indirectly, to provide foreign air transportation.

(22) ‘‘foreign air commerce’’ means the transportation of

passengers or property by aircraft for compensation, the transportation of mail by aircraft, or the operation of aircraft in furthering a business or vocation, between a place in the United

States and a place outside the United States when any part of

the transportation or operation is by aircraft.

(23) ‘‘foreign air transportation’’ means the transportation

of passengers or property by aircraft as a common carrier for

compensation, or the transportation of mail by aircraft, between a place in the United States and a place outside the

United States when any part of the transportation is by aircraft.

(24) ‘‘interstate air commerce’’ means the transportation of

passengers or property by aircraft for compensation, the transportation of mail by aircraft, or the operation of aircraft in furthering a business or vocation—

(A) between a place in—

(i) a State, territory, or possession of the United

States and a place in the District of Columbia or another State, territory, or possession of the United

States;

(ii) a State and another place in the same State

through the airspace over a place outside the State;

(iii) the District of Columbia and another place in

the District of Columbia; or

(iv) a territory or possession of the United States

and another place in the same territory or possession;

and

(B) when any part of the transportation or operation

is by aircraft.

(25) ‘‘interstate air transportation’’ means the transpor- tation of passengers or property by aircraft as a common car- rier for compensation, or the transportation of mail by

aircraft—

(A) between a place in— (i) a State, territory, or possession of the United

States and a place in the District of Columbia or an- other State, territory, or possession of the United

States;

(ii) Hawaii and another place in Hawaii through

the airspace over a place outside Hawaii;

(iii) the District of Columbia and another place in

the District of Columbia; or

(iv) a territory or possession of the United States

and another place in the same territory or possession;

and

(B) when any part of the transportation is by aircraft.

(26) ‘‘intrastate air carrier’’ means a citizen of the United

States undertaking by any means to provide only intrastate air

transportation.

(27) ‘‘intrastate air transportation’’ means the transportation by a common carrier of passengers or property for compensation, entirely in the same State, by turbojet-powered aircraft capable of carrying at least 30 passengers.

(28) ‘‘landing area’’ means a place on land or water, including an airport or intermediate landing field, used, or intended

to be used, for the takeoff and landing of aircraft, even when

facilities are not provided for sheltering, servicing, or repairing

aircraft, or for receiving or discharging passengers or cargo.

(29) ‘‘large hub airport’’ means a commercial service airport (as defined in section 47102) that has at least 1.0 percent

of the passenger boardings.

(30) ‘‘mail’’ means United States mail and foreign transit

mail.

(31) ‘‘medium hub airport’’ means a commercial service airport (as defined in section 47102) that has at least 0.25 percent

but less than 1.0 percent of the passenger boardings.

(32) ‘‘navigable airspace’’ means airspace above the minimum altitudes of flight prescribed by regulations under this

subpart and subpart III of this part, including airspace needed

to ensure safety in the takeoff and landing of aircraft.

(33) ‘‘navigate aircraft’’ and ‘‘navigation of aircraft’’ include

piloting aircraft.

(34) ‘‘nonhub airport’’ means a commercial service airport

(as defined in section 47102) that has less than 0.05 percent

of the passenger boardings.

(35) ‘‘operate aircraft’’ and ‘‘operation of aircraft’’ mean

using aircraft for the purposes of air navigation, including—

(A) the navigation of aircraft; and

(B) causing or authorizing the operation of aircraft

with or without the right of legal control of the aircraft.

(36) ‘‘passenger boardings’’—

(A) means, unless the context indicates otherwise, revenue passenger boardings in the United States in the prior

calendar year on an aircraft in service in air commerce, as

the Secretary determines under regulations the Secretary

prescribes; and

(B) includes passengers who continue on an aircraft in

international flight that stops at an airport in the 48 contiguous States, Alaska, or Hawaii for a nontraffic purpose.

(37) ‘‘person’’, in addition to its meaning under section 1 of

title 1, includes a governmental authority and a trustee, receiver, assignee, and other similar representative.

(38) ‘‘predatory’’ means a practice that violates the antitrust laws as defined in the first section of the Clayton Act (15

U.S.C. 12).
28

(39) ‘‘price’’ means a rate, fare, or charge.

(40) ‘‘propeller’’ includes a part, appurtenance, and accessory of a propeller.

(41) ‘‘public aircraft’’ means any of the following:

(A) Except with respect to an aircraft described in subparagraph (E), an aircraft used only for the United States

Government, except as provided in section 40125(b).

(B) An aircraft owned by the Government and operated by any person for purposes related to crew training, equipment development, or demonstration, except as provided in section 40125(b).

(C) An aircraft owned and operated by the government

of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of

one of these governments, except as provided in section

40125(b).

(D) An aircraft exclusively leased for at least 90 continuous days by the government of a State, the District of

Columbia, or a territory or possession of the United States

or a political subdivision of one of these governments, except as provided in section 40125(b).

(E) An aircraft owned or operated by the armed forces

or chartered to provide transportation to the armed forces

under the conditions specified by section 40125(c).

(42) ‘‘small hub airport’’ means a commercial service airport (as defined in section 47102) that has at least 0.05 percent

but less than 0.25 percent of the passenger boardings.

(43) ‘‘spare part’’ means an accessory, appurtenance, or

part of an aircraft (except an aircraft engine or propeller), aircraft engine (except a propeller), propeller, or appliance, that

is to be installed at a later time in an aircraft, aircraft engine,

propeller, or appliance.

(44) ‘‘State authority’’ means an authority of a State des- ignated under State law— (A) to receive notice required to be given a State au- thority under subpart II of this part; or

(B) as the representative of the State before the Sec- retary of Transportation in any matter about which the

Secretary is required to consult with or consider the views

of a State authority under subpart II of this part. (45) ‘‘ticket agent’’ means a person (except an air carrier, a foreign air carrier, or an employee of an air carrier or foreign

air carrier) that as a principal or agent sells, offers for sale, ne- gotiates for, or holds itself out as selling, providing, or arrang- ing for, air transportation.

(46) ‘‘United States’’ means the States of the United

States, the District of Columbia, and the territories and posses- sions of the United States, including the territorial sea and the

overlying airspace.

(47) ‘‘air traffic control system’’ means the combination of

elements used to safely and efficiently monitor, direct, control,

and guide aircraft in the United States and United States-as- signed airspace, including— (A) allocated electromagnetic spectrum and physical,

real, personal, and intellectual property assets making up

facilities, equipment, and systems employed to detect,

track, and guide aircraft movement;

(B) laws, regulations, orders, directives, agreements,

and licenses;

(C) published procedures that explain required actions,

activities, and techniques used to ensure adequate aircraft

separation; and

(D) trained personnel with specific technical capabilities to satisfy the operational, engineering, management,

and planning requirements for air traffic control.

(b) LIMITED DEFINITION.—In subpart II of this part, ‘‘control’’

means control by any means.

§ 40103. Sovereignty and use of airspace

(a) SOVEREIGNTY AND PUBLIC RIGHT OF TRANSIT.—(1) The

United States Government has exclusive sovereignty of airspace of

the United States.

(2) A citizen of the United States has a public right of transit

through the navigable airspace. To further that right, the Secretary

of Transportation shall consult with the Architectural and Transportation Barriers Compliance Board established under section 502

of the Rehabilitation Act of 1973 (29 U.S.C. 792) before prescribing

a regulation or issuing an order or procedure that will have a significant impact on the accessibility of commercial airports or commercial air transportation for handicapped individuals. (b) USE OF AIRSPACE.—(1) The Administrator of the Federal

Aviation Administration shall develop plans and policy for the use

of the navigable airspace and assign by regulation or order the use

of the airspace necessary to ensure the safety of aircraft and the

efficient use of airspace. The Administrator may modify or revoke

an assignment when required in the public interest.

(2) The Administrator shall prescribe air traffic regulations on

the flight of aircraft (including regulations on safe altitudes) for—

(A) navigating, protecting, and identifying aircraft;

(B) protecting individuals and property on the ground;

(C) using the navigable airspace efficiently; and

(D) preventing collision between aircraft, between aircraft

and land or water vehicles, and between aircraft and airborne

objects.

(3) To establish security provisions that will encourage and

allow maximum use of the navigable airspace by civil aircraft con- sistent with national security, the Administrator, in consultation

with the Secretary of Defense, shall—

(A) establish areas in the airspace the Administrator de- cides are necessary in the interest of national defense; and

(B) by regulation or order, restrict or prohibit flight of civil
29

aircraft that the Administrator cannot identify, locate, and control with available facilities in those areas.

(4) Notwithstanding the military exception in section 553(a)(1)

of title 5, subchapter II of chapter 5 of title 5 applies to a regulation prescribed under this subsection.

(c) FOREIGN AIRCRAFT.—A foreign aircraft, not part of the

armed forces of a foreign country, may be navigated in the United

States as provided in section 41703 of this title.

(d) AIRCRAFT OF ARMED FORCES OF FOREIGN COUNTRIES.—Aircraft of the armed forces of a foreign country may be navigated in

the United States only when authorized by the Secretary of State.

(e) NO EXCLUSIVE RIGHTS AT CERTAIN FACILITIES.—A person

does not have an exclusive right to use an air navigation facility

on which Government money has been expended. However, providing services at an airport by only one fixed-based operator is not

an exclusive right if—

(1) it is unreasonably costly, burdensome, or impractical

for more than one fixed-based operator to provide the services;

and

(2) allowing more than one fixed-based operator to provide

the services requires a reduction in space leased under an

agreement existing on September 3, 1982, between the operator and the airport.

§ 40104. Promotion of civil aeronautics and safety of air

commerce

(a) DEVELOPING CIVIL AERONAUTICS AND SAFETY OF AIR COMMERCE.—The Administrator of the Federal Aviation Administration

shall encourage the development of civil aeronautics and safety of

air commerce in and outside the United States. In carrying out this

subsection, the Administrator shall take action that the Administrator considers necessary to establish, within available resources,

a program to distribute civil aviation information in each region

served by the Administration. The program shall provide, on request, informational material and expertise on civil aviation to

State and local school administrators, college and university officials, and officers of other interested organizations.

(b) INTERNATIONAL ROLE OF THE FAA.—The Administrator

shall promote and achieve global improvements in the safety, efficiency, and environmental effect of air travel by exercising leadership with the Administrator’s foreign counterparts, in the International Civil Aviation Organization and its subsidiary organizations, and other international organizations and fora, and with the

private sector.

(c) AIRPORT CAPACITY ENHANCEMENT PROJECTS AT CONGESTED

AIRPORTS.—In carrying out subsection (a), the Administrator shall

take action to encourage the construction of airport capacity enhancement projects at congested airports as those terms are defined in section 47176.

§ 40105. International negotiations, agreements, and

obligations

(a) ADVICE AND CONSULTATION.—The Secretary of State shall

advise the Administrator of the Federal Aviation Administration

and the Secretaries of Transportation and Commerce, and consult

with them as appropriate, about negotiations for an agreement

with a government of a foreign country to establish or develop air

navigation, including air routes and services. The Secretary of

Transportation shall consult with the Secretary of State in carrying

out this part to the extent this part is related to foreign air trans- portation.

(b) ACTIONS OF SECRETARY AND ADMINISTRATOR.—(1) In carrying out this part, the Secretary of Transportation and the

Administrator—

(A) shall act consistently with obligations of the United

States Government under an international agreement;

(B) shall consider applicable laws and requirements of a

foreign country; and

(C) may not limit compliance by an air carrier with obligations or liabilities imposed by the government of a foreign

country when the Secretary takes any action related to a certificate of public convenience and necessity issued under chapter 411 of this title.

(2) This subsection does not apply to an agreement between an

air carrier or an officer or representative of an air carrier and the

government of a foreign country, if the Secretary of Transportation

disapproves the agreement because it is not in the public interest.

Section 40106(b)(2) of this title applies to this subsection.

(c) CONSULTATION ON INTERNATIONAL AIR TRANSPORTATION

POLICY.—In carrying out section 40101(e) of this title, the Secretaries of State and Transportation, to the maximum extent practicable, shall consult on broad policy goals and individual negotiations with—

(1) the Secretaries of Commerce and Defense;

(2) airport operators;

(3) scheduled air carriers;

(4) charter air carriers;

(5) airline labor;

(6) consumer interest groups;

(7) travel agents and tour organizers; and

(8) other groups, institutions, and governmental authorities affected by international aviation policy.

(d) CONGRESSIONAL OBSERVERS AT INTERNATIONAL AVIATION

NEGOTIATIONS.—The President shall grant to at least one representative of each House of Congress the privilege of attending

international aviation negotiations as an observer if the privilege

is requested in advance in writing.
30

§ 40106. Emergency powers

(a) DEVIATIONS FROM REGULATIONS.—Appropriate military authority may authorize aircraft of the armed forces of the United

States to deviate from air traffic regulations prescribed under section 40103(b)(1) and (2) of this title when the authority decides the

deviation is essential to the national defense because of a military

emergency or urgent military necessity. The authority shall—

(1) give the Administrator of the Federal Aviation Administration prior notice of the deviation at the earliest practicable

time; and

(2) to the extent time and circumstances allow, make every

reasonable effort to consult with the Administrator and arrange for the deviation in advance on a mutually agreeable

basis.

(b) SUSPENSION OF AUTHORITY.—(1) When the President decides that the government of a foreign country is acting inconsistently with the Convention for the Suppression of Unlawful Seizure

of Aircraft or that the government of a foreign country allows territory under its jurisdiction to be used as a base of operations or

training of, or as a sanctuary for, or arms, aids, or abets, a terrorist

organization that knowingly uses the unlawful seizure, or the

threat of an unlawful seizure, of an aircraft as an instrument of

policy, the President may suspend the authority of—

(A) an air carrier or foreign air carrier to provide foreign

air transportation to and from that foreign country;

(B) a person to operate aircraft in foreign air commerce to

and from that foreign country;

(C) a foreign air carrier to provide foreign air transpor- tation between the United States and another country that

maintains air service with the foreign country; and

(D) a foreign person to operate aircraft in foreign air commerce between the United States and another country that

maintains air service with the foreign country.

(2) The President may act under this subsection without notice

or a hearing. The suspension remains in effect for as long as the

President decides is necessary to ensure the security of aircraft

against unlawful seizure. Notwithstanding section 40105(b) of this

title, the authority of the President to suspend rights under this

subsection is a condition to a certificate of public convenience and

necessity, air carrier operating certificate, foreign air carrier or foreign aircraft permit, or foreign air carrier operating specification

issued by the Secretary of Transportation under this part. (3) An air carrier or foreign air carrier may not provide foreign

air transportation, and a person may not operate aircraft in foreign

air commerce, in violation of a suspension of authority under this

subsection.

§ 40107. Presidential transfers

(a) GENERAL AUTHORITY.—The President may transfer to the

Administrator of the Federal Aviation Administration a duty,

power, activity, or facility of a department, agency, or instrumen- tality of the executive branch of the United States Government, or

an officer or unit of a department, agency, or instrumentality of the

executive branch, related primarily to selecting, developing, testing,

evaluating, establishing, operating, or maintaining a system,

procedure, facility, or device for safe and efficient air navigation

and air traffic control. In making a transfer, the President may

transfer records and property and make officers and employees from

the department, agency, instrumentality, or unit available to the

Administrator.

(b) DURING WAR.—If war occurs, the President by executive

order may transfer to the Secretary of Defense a duty, power, activity, or facility of the Administrator. In making the transfer, the

President may transfer records, property, officers, and employees of

the Administration to the Department of Defense.

§ 40108. Training schools

(a) AUTHORITY TO OPERATE.—The Administrator of the Federal

Aviation Administration may operate schools to train officers and

employees of the Administration to carry out duties, powers, and

activities of the Administrator.

(b) ATTENDANCE.—The Administrator may authorize officers

and employees of other departments, agencies, or instrumentalities

of the United States Government, officers and employees of governments of foreign countries, and individuals from the aeronautics in- dustry to attend those schools. However, if the attendance of any

of those officers, employees, or individuals increases the cost of operating the schools, the Administrator may require the payment or

transfer of amounts or other consideration to offset the additional

cost. The amount received may be credited to the appropriation

current when the expenditures are or were paid, the appropriation

current when the amount is received, or both.

§ 40109. Authority to exempt

(a) AIR CARRIERS AND FOREIGN AIR CARRIERS NOT ENGAGED

DIRECTLY IN OPERATING AIRCRAFT.—(1) The Secretary of Transpor- tation may exempt from subpart II of this part—

(A) an air carrier not engaged directly in operating aircraft

in air transportation; or

(B) a foreign air carrier not engaged directly in operating

aircraft in foreign air transportation.

(2) The exemption is effective to the extent and for periods that

the Secretary decides are in the public interest.

(b) SAFETY REGULATION.—The Administrator of the Federal

Aviation Administration may grant an exemption from a regulation

prescribed in carrying out sections 40103(b)(1) and (2), 40119,
31

44901, 44903, 44906, and 44935–44937 of this title when the Administrator decides the exemption is in the public interest.

(c) OTHER ECONOMIC REGULATION.—Except as provided in this

section, the Secretary may exempt to the extent the Secretary considers necessary a person or class of persons from a provision of

chapter 411, chapter 413 (except sections 41307 and 41310(b)–(f)),

chapter 415 (except sections 41502, 41505, and 41507–41509),

chapter 417 (except sections 41703, 41704, 41710, 41713, and

41714), chapter 419, subchapter II of chapter 421, and sections

44909 and 46301(b) of this title, or a regulation or term prescribed

under any of those provisions, when the Secretary decides that the

exemption is consistent with the public interest. (d) LABOR REQUIREMENTS.—The Secretary may not exempt an

air carrier from section 42112 of this title. However, the Secretary

may exempt from section 42112(b)(1) and (2) an air carrier not pro- viding scheduled air transportation, and the operations conducted

during daylight hours by an air carrier providing scheduled air

transportation, when the Secretary decides that—

(1) because of the limited extent of, or unusual cir- cumstances affecting, the operation of the air carrier, the en- forcement of section 42112(b)(1) and (2) of this title is or would

be an unreasonable burden on the air carrier that would ob- struct its development and prevent it from beginning or con- tinuing operations; and

(2) the exemption would not affect adversely the public in- terest.

(e) MAXIMUM FLYING HOURS.—The Secretary may not exempt

an air carrier under this section from a provision referred to in

subsection (c) of this section, or a regulation or term prescribed

under any of those provisions, that sets maximum flying hours for

pilots or copilots. (f) SMALLER AIRCRAFT.—(1) An air carrier is exempt from section 41101(a)(1) of this title, and the Secretary may exempt an air

carrier from another provision of subpart II of this part, if the air

carrier—

(A)(i) provides passenger transportation only with aircraft

having a maximum capacity of 55 passengers; or

(ii) provides the transportation of cargo only with aircraft

having a maximum payload of less than 18,000 pounds; and

(B) complies with liability insurance requirements and

other regulations the Secretary prescribes.

(2) The Secretary may increase the passenger or payload capacities when the public interest requires. (3)(A) An exemption under this subsection applies to an air

carrier providing air transportation between 2 places in Alaska, or

between Alaska and Canada, only if the carrier is authorized by

Alaska to provide the transportation.

(B) The Secretary may limit the number or location of places

that may be served by an air carrier providing transportation only

in Alaska under an exemption from section 41101(a)(1) of this title,

or the frequency with which the transportation may be provided,

only when the Secretary decides that providing the transportation

substantially impairs the ability of an air carrier holding a certifi- cate issued by the Secretary to provide its authorized transportation, including the minimum transportation requirement for

Alaska specified under section 41732(b)(1)(B) of this title.

(g) EMERGENCY AIR TRANSPORTATION BY FOREIGN AIR CARRIERS.—(1) To the extent that the Secretary decides an exemption

is in the public interest, the Secretary may exempt by order a foreign air carrier from the requirements and limitations of this part

for not more than 30 days to allow the foreign air carrier to carry

passengers or cargo in interstate air transportation in certain markets if the Secretary finds that—

(A) because of an emergency created by unusual circumstances not arising in the normal course of business, air

carriers holding certificates under section 41102 of this title

cannot accommodate traffic in those markets;

(B) all possible efforts have been made to accommodate the

traffic by using the resources of the air carriers, including the

use of—

(i) foreign aircraft, or sections of foreign aircraft,

under lease or charter to the air carriers; and

(ii) the air carriers’ reservations systems to the extent

practicable;

(C) the exemption is necessary to avoid unreasonable hardship for the traffic in the markets that cannot be accommodated by the air carriers; and

(D) granting the exemption will not result in an unreasonable advantage to any party in a labor dispute where the inability to accommodate traffic in a market is a result of the

dispute.

(2) When the Secretary grants an exemption to a foreign air

carrier under this subsection, the Secretary shall—

(A) ensure that air transportation that the foreign air carrier provides under the exemption is made available on reasonable terms;

(B) monitor continuously the passenger load factor of air

carriers in the market that hold certificates under section

41102 of this title; and

(C) review the exemption at least every 30 days to ensure

that the unusual circumstances that established the need for

the exemption still exist.

(3) The Secretary may renew an exemption (including renewals) under this subsection for not more than 30 days. An exemption

may continue for not more than 5 days after the unusual circumstances that established the need for the exemption cease.

(h) NOTICE AND OPPORTUNITY FOR HEARING.—The Secretary

may act under subsections (d) and (f)(3)(B) of this section only after

giving the air carrier notice and an opportunity for a hearing.
32

§ 40110. General procurement authority

(a) GENERAL.—In carrying out this part, the Administrator of

the Federal Aviation Administration—

(1) to the extent that amounts are available for obligation,

may acquire services or, by condemnation or otherwise, an interest in property, including an interest in airspace immediately adjacent to and needed for airports and other air navigation facilities owned by the United States Government and

operated by the Administrator;

(2) may dispose of an interest in property for adequate

compensation; and

(3) may construct and improve laboratories and other test

facilities.

(b) PURCHASE OF HOUSING UNITS.—

(1) AUTHORITY.—In carrying out this part, the Administrator may purchase a housing unit (including a condominium

or a housing unit in a building owned by a cooperative) that

is located outside the contiguous United States if the cost of

the unit is $300,000 or less.

(2) ADJUSTMENTS FOR INFLATION.—For fiscal years beginning after September 30, 1997, the Administrator may adjust

the dollar amount specified in paragraph (1) to take into account increases in local housing costs.

(3) CONTINUING OBLIGATIONS.—Notwithstanding section

1341 of title 31, the Administrator may purchase a housing

unit under paragraph (1) even if there is an obligation thereafter to pay necessary and reasonable fees duly assessed upon

such unit, including fees related to operation, maintenance,

taxes, and insurance.

(4) CERTIFICATION TO CONGRESS.—The Administrator may

purchase a housing unit under paragraph (1) only if, at least

30 days before completing the purchase, the Administrator

transmits to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on

Commerce, Science, and Transportation of the Senate a report

containing—

(A) a description of the housing unit and its price;

(B) a certification that the price does not exceed the

median price of housing units in the area; and

(C) a certification that purchasing the housing unit is

the most cost-beneficial means of providing necessary accommodations in carrying out this part.

(5) PAYMENT OF FEES.—The Administrator may pay, when

due, fees resulting from the purchase of a housing unit under

this subsection from any amounts made available to the Administrator.

(c) DUTIES AND POWERS.—When carrying out subsection (a) of

this section, the Administrator of the Federal Aviation Administration may—

(1) notwithstanding section 1341(a)(1) of title 31, lease an

interest in property for not more than 20 years;

(2) consider the reasonable probable future use of the underlying land in making an award for a condemnation of an interest in airspace;

(3) construct, or acquire an interest in, a public building

(as defined in section 3301(a) of title 40) only under a delegation of authority from the Administrator of General Services;

(4) use procedures other than competitive procedures only

when the property or services needed by the Administrator of

the Federal Aviation Administration are available from only

one responsible source or only from a limited number of responsible sources and no other type of property or services will

satisfy the needs of the Administrator; and

(5) dispose of property under subsection (a)(2) of this section, except for airport and airway property and technical

equipment used for the special purposes of the Administration,

only under sections 121, 123, and 126 and chapter 5 of title 40.

(d) ACQUISITION MANAGEMENT SYSTEM.—

(1) IN GENERAL.—In consultation with such non-governmental experts in acquisition management systems as the Administrator may employ, and notwithstanding provisions of

Federal acquisition law, the Administrator shall develop and

implement an acquisition management system for the Administration that addresses the unique needs of the agency and, at

a minimum, provides for—

(A) more timely and cost-effective acquisitions of

equipment, services, property, and materials; and

(B) the resolution of bid protests and contract disputes

related thereto, using consensual alternative dispute resolution techniques to the maximum extent practicable.

(2) APPLICABILITY OF FEDERAL ACQUISITION LAW.—The fol- lowing provisions of Federal acquisition law shall not apply to

the new acquisition management system developed and implemented pursuant to paragraph (1):

(A) Title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 252–266).

(B) The Office of Federal Procurement Policy Act (41

U.S.C. 401 et seq.).

(C) The Federal Acquisition Streamlining Act of 1994

(Public Law 103–355), except for section 315 (41 U.S.C. 265). For the purpose of applying section 315 of that Act

to the system, the term ‘‘executive agency’’ is deemed to

refer to the Federal Aviation Administration.

(D) The Small Business Act (15 U.S.C. 631 et seq.), except that all reasonable opportunities to be awarded contracts shall be provided to small business concerns and

small business concerns owned and controlled by socially

and economically disadvantaged individuals.

(E) The Competition in Contracting Act.
33

(F) Subchapter V of chapter 35 of title 31, relating to

the procurement protest system.

(G) The Brooks Automatic Data Processing Act (40

U.S.C. 759).

(H) The Federal Acquisition Regulation and any laws

not listed in subparagraphs (A) through (G) providing authority to promulgate regulations in the Federal Acquisition Regulation.

(3) CERTAIN PROVISIONS OF THE OFFICE OF FEDERAL PROCUREMENT POLICY ACT.—Notwithstanding paragraph (2)(B),

section 27 of the Office of Federal Procurement Policy Act (41

U.S.C. 423) shall apply to the new acquisition management

system developed and implemented under paragraph (1) with

the following modifications:

(A) Subsections (f ) and (g) shall not apply.

(B) Within 90 days after the date of the enactment of

the Wendell H. Ford Aviation Investment and Reform Act

for the 21st Century [ Apr. 5, 2000], the Administrator

shall adopt definitions for the acquisition management

system that are consistent with the purpose and intent of

the Office of Federal Procurement Policy Act.

(C) After the adoption of those definitions, the criminal, civil, and administrative remedies provided under the

Office of Federal Procurement Policy Act apply to the acquisition management system.

(D) In the administration of the acquisition management system, the Administrator may take adverse personnel action under section 27(e)(3)(A)(iv) of the Office of

Federal Procurement Policy Act in accordance with the

procedures contained in the Administration’s personnel

management system.

(4) ADJUDICATION OF CERTAIN BID PROTESTS AND CONTRACT

DISPUTES.—A bid protest or contract dispute that is not ad- dressed or resolved through alternative dispute resolution shall

be adjudicated by the Administrator through Dispute Resolu- tion Officers or Special Masters of the Federal Aviation Admin- istration Office of Dispute Resolution for Acquisition, acting

pursuant to sections 46102, 46104, 46105, 46106 and 46107

and shall be subject to judicial review under section 46110 and

to section 504 of title 5.

(e) PROHIBITION ON RELEASE OF OFFEROR PROPOSALS.—

(1) GENERAL RULE.—Except as provided in paragraph (2), a proposal in the possession or control of the Administrator

may not be made available to any person under section 552 of

title 5.

(2) EXCEPTION.—Paragraph (1) shall not apply to any portion of a proposal of an offeror the disclosure of which is authorized by the Administrator pursuant to procedures published in the Federal Register. The Administrator shall provide

an opportunity for public comment on the procedures for a period of not less than 30 days beginning on the date of such

publication in order to receive and consider the views of all interested parties on the procedures. The procedures shall not

take effect before the 60th day following the date of such publication.

(3) PROPOSAL DEFINED.—In this subsection, the term ‘‘proposal’’ means information contained in or originating from any

proposal, including a technical, management, or cost proposal,

submitted by an offeror in response to the requirements of a

solicitation for a competitive proposal.

§ 40111. Multiyear procurement contracts for services and

related items

(a) GENERAL AUTHORITY.—Notwithstanding section

1341(a)(1)(B) of title 31, the Administrator of the Federal Aviation

Administration may make a contract of not more than 5 years for

the following types of services and items of supply related to those

services for which amounts otherwise would be available for obligation only in the fiscal year for which appropriated:

(1) operation, maintenance, and support of facilities and

installations.

(2) operation, maintenance, and modification of aircraft,

vehicles, and other highly complex equipment.

(3) specialized training requiring high quality instructor

skills, including training of pilots and aircrew members and

foreign language training.

(4) base services, including ground maintenance, aircraft

refueling, bus transportation, and refuse collection and disposal.

(b) REQUIRED FINDINGS.—The Administrator may make a contract under this section only if the Administrator finds that—

(1) there will be a continuing requirement for the service

consistent with current plans for the proposed contract period;

(2) providing the service will require a substantial initial

investment in plant or equipment, or will incur a substantial

contingent liability for assembling, training, or transporting a

specialized workforce; and

(3) the contract will promote the best interests of the

United States by encouraging effective competition and promoting economies in operation.

(c) CONSIDERATIONS.—When making a contract under this sec- tion, the Administrator shall be guided by the following:

(1) The part of the cost of a plant or equipment amortized

as a cost of contract performance may not be more than the

ratio between the period of contract performance and the anticipated useful commercial life (instead of physical life) of the

plant or equipment, considering the location and specialized

nature of the plant or equipment, obsolescence, and other similar factors.

(2) The Administrator shall consider the desirability of—

(A) obtaining an option to renew the contract for a rea-
34

sonable period of not more than 3 years, at a price that

does not include charges for nonrecurring costs already

amortized; and

(B) reserving in the Administrator the right, on payment of the unamortized part of the cost of the plant or

equipment, to take title to the plant or equipment under

appropriate circumstances.

(d) ENDING CONTRACTS.—A contract made under this section

shall be ended if amounts are not made available to continue the

contract into a subsequent fiscal year. The cost of ending the contract may be paid from—

(1) an appropriation originally available for carrying out

the contract;

(2) an appropriation currently available for procuring the

type of service concerned and not otherwise obligated; or

(3) amounts appropriated for payments to end the contract.

§ 40112. Multiyear procurement contracts for property

(a) GENERAL AUTHORITY.—Notwithstanding section

1341(a)(1)(B) of title 31 and to the extent that amounts otherwise

are available for obligation, the Administrator of the Federal Aviation Administration may make a contract of more than one but not

more than 5 fiscal years to purchase property, except a contract to

construct, alter, or make a major repair or improvement to real

property.

(b) REQUIRED FINDINGS.—The Administrator may make a contract under this section if the Administrator finds that—

(1) the contract will promote the safety or efficiency of the

national airspace system and will result in reduced total contract costs;

(2) the minimum need for the property to be purchased is

expected to remain substantially unchanged during the proposed contract period in terms of production rate, procurement

rate, and total quantities;

(3) there is a reasonable expectation that throughout the

proposed contract period the Administrator will request appro- priations for the contract at the level required to avoid can- cellation;

(4) there is a stable design for the property to be acquired

and the technical risks associated with the property are not ex- cessive; and

(5) the estimates of the contract costs and the anticipated

savings from the contract are realistic.

(c) REGULATIONS.—The Administrator shall prescribe regula- tions for acquiring property under this section to promote the use

of contracts under this section in a way that will allow the most

efficient use of those contracts. The regulations may provide for a

cancellation provision in the contract to the extent the provision is

necessary and in the best interest of the United States. The provi- sion may include consideration of recurring and nonrecurring costs

of the contractor associated with producing the item to be delivered

under the contract. The regulations shall provide that, to the ex- tent practicable—

(1) to broaden the aviation industrial base—

(A) a contract under this section shall be used to seek, retain, and promote the use under that contract of sub- contractors, vendors, or suppliers; and

(B) on accrual of a payment or other benefit accruing

on a contract under this section to a subcontractor, vendor,

or supplier participating in the contract, the payment or

benefit shall be delivered in the most expeditious way

practicable; and

(2) this section and regulations prescribed under this section may not be carried out in a way that precludes or curtails

the existing ability of the Administrator to provide for—

(A) competition in producing items to be delivered

under a contract under this section; or

(B) ending a prime contract when performance is deficient with respect to cost, quality, or schedule.

(d) CONTRACT PROVISIONS.—(1) A contract under this section

may—

(A) be used for the advance procurement of components, parts, and material necessary to manufacture equipment to be

used in the national airspace system;

(B) provide that performance under the contract after the

first year is subject to amounts being appropriated; and

(C) contain a negotiated priced option for varying the number of end items to be procured over the period of the contract. (2) If feasible and practicable, an advance procurement contract may be made to achieve economic-lot purchases and more efficient production rates.

(e) CANCELLATION PAYMENT AND NOTICE OF CANCELLATION

CEILING.—(1) If a contract under this section provides that performance is subject to an appropriation being made, it also may

provide for a cancellation payment to be made to the contractor if

the appropriation is not made.

(2) Before awarding a contract under this section containing a

cancellation ceiling of more than $100,000,000, the Administrator

shall give written notice of the proposed contract and cancellation

ceiling to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives. The contract may not

be awarded until the end of the 30-day period beginning on the

date of the notice.

(f) ENDING CONTRACTS.—A contract made under this section

shall be ended if amounts are not made available to continue the

contract into a subsequent fiscal year. The cost of ending the contract may be paid from—

(1) an appropriation originally available for carrying out

the contract;
35

(2) an appropriation currently available for procuring the

type of property concerned and not otherwise obligated; or

(3) amounts appropriated for payments to end the contract.

§ 40113. Administrative

(a) GENERAL AUTHORITY.—The Secretary of Transportation (or

the Under Secretary of Transportation for Security with respect to

security duties and powers designated to be carried out by the

Under Secretary or the Administrator of the Federal Aviation Ad- ministration with respect to aviation safety duties and powers designated to be carried out by the Administrator) may take action the

Secretary, Under Secretary, or Administrator, as appropriate, considers necessary to carry out this part, including conducting investigations, prescribing regulations, standards, and procedures, and

issuing orders.

(b) HAZARDOUS MATERIAL.—In carrying out this part, the Secretary has the same authority to regulate the transportation of

hazardous material by air that the Secretary has under section

5103 of this title. However, this subsection does not prohibit or regulate the transportation of a firearm (as defined in section 232 of

title 18) or ammunition for a firearm, when transported by an indi- vidual for personal use.

(c) GOVERNMENTAL ASSISTANCE.—The Secretary (or the Administrator of the Federal Aviation Administration with respect to

aviation safety duties and powers designated to be carried out by

the Administrator) may use the assistance of the Administrator of

the National Aeronautics and Space Administration and any re- search or technical department, agency, or instrumentality of the

United States Government on matters related to aircraft fuel and

oil, and to the design, material, workmanship, construction, per- formance, maintenance, and operation of aircraft, aircraft engines,

propellers, appliances, and air navigation facilities. Each department, agency, and instrumentality may conduct scientific and tech- nical research, investigations, and tests necessary to assist the Secretary or Administrator of the Federal Aviation Administration in

carrying out this part. This part does not authorize duplicating laboratory research activities of a department, agency, or instrumentality.

(d) INDEMNIFICATION.—The Under Secretary of Transportation

for Security or the Administrator of the Federal Aviation Administration may indemnify an officer or employee of the Transportation

Security Administration or Federal Aviation Administration, as the

case may be, against a claim or judgment arising out of an act that

the Under Secretary or Administrator, as the case may be, decides

was committed within the scope of the official duties of the officer

or employee.

(e) ASSISTANCE TO FOREIGN AVIATION AUTHORITIES.—

(1) SAFETY-RELATED TRAINING AND OPERATIONAL SERV- ICES.—The Administrator may provide safety-related training

and operational services to foreign aviation authorities with or

without reimbursement, if the Administrator determines that

providing such services promotes aviation safety. To the extent

practicable, air travel reimbursed under this subsection shall

be conducted on United States air carriers.

(2) REIMBURSEMENT SOUGHT.—The Administrator shall actively seek reimbursement for services provided under this

subsection from foreign aviation authorities capable of providing such reimbursement.

(3) CREDITING APPROPRIATIONS.—Funds received by the

Administrator pursuant to this section shall be credited to the

appropriation from which the expenses were incurred in providing such services.

(4) REPORTING.—Not later than December 31, 1995, and

annually thereafter, the Administrator shall transmit to Congress a list of the foreign aviation authorities to which the Ad- ministrator provided services under this subsection in the preceding fiscal year. Such list shall specify the dollar value of

such services and any reimbursement received for such serv- ices.

(f) APPLICATION OF CERTAIN REGULATIONS TO ALASKA.—In

amending title 14, Code of Federal Regulations, in a manner affecting intrastate aviation in Alaska, the Administrator of the Federal

Aviation Administration shall consider the extent to which Alaska

is not served by transportation modes other than aviation, and

shall establish such regulatory distinctions as the Administrator

considers appropriate.

§ 40114. Reports and records

(a) WRITTEN REPORTS.—(1) Except as provided in this part, the

Secretary of Transportation (or the Administrator of the Federal

Aviation Administration with respect to aviation safety duties and

powers designated to be carried out by the Administrator) shall

make a written report of each proceeding and investigation under

this part in which a formal hearing was held and shall provide a

copy to each party to the proceeding or investigation. The report

shall include the decision, conclusions, order, and requirements of

the Secretary or Administrator as appropriate.

(2) The Secretary (or the Administrator with respect to avia- tion safety duties and powers designated to be carried out by the

Administrator) shall have all reports, orders, decisions, and regulations the Secretary or Administrator, as appropriate, issues or prescribes published in the form and way best adapted for public use.

A publication of the Secretary or Administrator is competent evidence of its contents.

(b) PUBLIC RECORDS.—Except as provided in subpart II of this

part, copies of tariffs and arrangements filed with the Secretary

under subpart II, and the statistics, tables, and figures contained

in reports made to the Secretary under subpart II, are public

records. The Secretary is the custodian of those records. A public

record, or a copy or extract of it, certified by the Secretary under
36

the seal of the Department of Transportation is competent evidence

in an investigation by the Secretary and in a judicial proceeding.

§ 40115. Withholding information

(a) OBJECTIONS TO DISCLOSURE.—(1) A person may object to

the public disclosure of information—

(A) in a record filed under this part; or

(B) obtained under this part by the Secretary of Transportation or State or the United States Postal Service.

(2) An objection must be in writing and must state the reasons

for the objection. The Secretary of Transportation or State or the

Postal Service shall order the information withheld from public disclosure when the appropriate Secretary or the Postal Service decides that disclosure of the information would—

(A) prejudice the United States Government in preparing

and presenting its position in international negotiations; or

(B) have an adverse effect on the competitive position of an

air carrier in foreign air transportation.

(b) WITHHOLDING INFORMATION FROM CONGRESS.—This section

does not authorize information to be withheld from a committee of

Congress authorized to have the information.

§ 40116. State taxation

(a) DEFINITION.—In this section, ‘‘State’’ includes the District of

Columbia, a territory or possession of the United States, and a political authority of at least 2 States.

(b) PROHIBITIONS.—Except as provided in subsection (c) of this

section and section 40117 of this title, a State, a political subdivi- sion of a State, and any person that has purchased or leased an

airport under section 47134 of this title may not levy or collect a

tax, fee, head charge, or other charge on—

(1) an individual traveling in air commerce;

(2) the transportation of an individual traveling in air commerce;

(3) the sale of air transportation; or

(4) the gross receipts from that air commerce or transpor- tation.

(c) AIRCRAFT TAKING OFF OR LANDING IN STATE.—A State or

political subdivision of a State may levy or collect a tax on or re- lated to a flight of a commercial aircraft or an activity or service

on the aircraft only if the aircraft takes off or lands in the State

or political subdivision as part of the flight.

(d) UNREASONABLE BURDENS AND DISCRIMINATION AGAINST

INTERSTATE COMMERCE.—(1) In this subsection—

(A) ‘‘air carrier transportation property’’ means property

(as defined by the Secretary of Transportation) that an air carrier providing air transportation owns or uses.

(B) ‘‘assessment’’ means valuation for a property tax levied

by a taxing district.

(C) ‘‘assessment jurisdiction’’ means a geographical area in

a State used in determining the assessed value of property for

ad valorem taxation.

(D) ‘‘commercial and industrial property’’ means property

(except transportation property and land used primarily for agriculture or timber growing) devoted to a commercial or industrial use and subject to a property tax levy.

(2)(A) A State, political subdivision of a State, or authority acting for a State or political subdivision may not do any of the following acts because those acts unreasonably burden and discriminate against interstate commerce:

(i) assess air carrier transportation property at a value

that has a higher ratio to the true market value of the property than the ratio that the assessed value of other commercial

and industrial property of the same type in the same assessment jurisdiction has to the true market value of the other

commercial and industrial property.

(ii) levy or collect a tax on an assessment that may not be

made under clause (i) of this subparagraph.

(iii) levy or collect an ad valorem property tax on air carrier transportation property at a tax rate greater than the tax

rate applicable to commercial and industrial property in the

same assessment jurisdiction.

(iv) levy or collect a tax, fee, or charge, first taking effect

after August 23, 1994, exclusively upon any business located at

a commercial service airport or operating as a permittee of

such an airport other than a tax, fee, or charge wholly utilized

for airport or aeronautical purposes.

(B) Subparagraph (A) of this paragraph does not apply to an

in lieu tax completely used for airport and aeronautical purposes.

(e) OTHER ALLOWABLE TAXES AND CHARGES.—Except as provided in subsection (d) of this section, a State or political subdivision of a State may levy or collect—

(1) taxes (except those taxes enumerated in subsection (b)

of this section), including property taxes, net income taxes,

franchise taxes, and sales or use taxes on the sale of goods or

services; and

(2) reasonable rental charges, landing fees, and other service charges from aircraft operators for using airport facilities of

an airport owned or operated by that State or subdivision.

(f) PAY OF AIR CARRIER EMPLOYEES.—(1) In this subsection—

(A) ‘‘pay’’ means money received by an employee for serv- ices.

(B) ‘‘State’’ means a State of the United States, the District

of Columbia, and a territory or possession of the United States.

(C) an employee is deemed to have earned 50 percent of

the employee’s pay in a State or political subdivision of a State

in which the scheduled flight time of the employee in the State

or subdivision is more than 50 percent of the total scheduled

flight time of the employee when employed during the calendar

year.
37

(2) The pay of an employee of an air carrier having regularly

assigned duties on aircraft in at least 2 States is subject to the in- come tax laws of only the following:

(A) the State or political subdivision of the State that is

the residence of the employee.

(B) the State or political subdivision of the State in which

the employee earns more than 50 percent of the pay received

by the employee from the carrier. (3) Compensation paid by an air carrier to an employee de- scribed in subsection (a) in connection with such employee’s author- ized leave or other authorized absence from regular duties on the

carrier’s aircraft in order to perform services on behalf of the em- ployee’s airline union shall be subject to the income tax laws of

only the following:

(A) The State or political subdivision of the State that is

the residence of the employee.

(B) The State or political subdivision of the State in which

the employee’s scheduled flight time would have been more

than 50 percent of the employee’s total scheduled flight time

for the calendar year had the employee been engaged full time

in the performance of regularly assigned duties on the carrier’s

aircraft.

§ 40117. Passenger facility fees

(a) DEFINITIONS.—In this section, the following definitions

apply:

(1) AIRPORT, COMMERCIAL SERVICE AIRPORT, AND PUBLIC

AGENCY.—The terms ‘‘airport’’, ‘‘commercial service airport’’, and ‘‘public agency’’ have the meaning those terms have under

section 47102.

(2) ELIGIBLE AGENCY.—The term ‘‘eligible agency’’ means a

public agency that controls a commercial service airport.

(3) ELIGIBLE AIRPORT-RELATED PROJECT.—The term ‘‘eligi- ble airport-related project’’ means any of the following projects:

(A) A project for airport development or airport planning under subchapter I of chapter 471. (B) A project for terminal development described in

section 47110(d).

(C) A project for costs of terminal development referred to in subparagraph (B) incurred after August 1,

1986, at an airport that did not have more than .25 percent of the total annual passenger boardings in the United

States in the most recent calendar year for which data is

available and at which total passenger boardings declined

by at least 16 percent between calendar year 1989 and calendar year 1997.

(D) A project for airport noise capability planning

under section 47505.

(E) A project to carry out noise compatibility measures

eligible for assistance under section 47504, whether or not

a program for those measures has been approved under

section 47504.

(F) A project for constructing gates and related areas

at which passengers board or exit aircraft. In the case of

a project required to enable additional air service by an air

carrier with less than 50 percent of the annual passenger

boardings at an airport, the project for constructing gates

and related areas may include structural foundations and

floor systems, exterior building walls and load-bearing interior columns or walls, windows, door and roof systems,

building utilities (including heating, air conditioning, ventilation, plumbing, and electrical service), and aircraft fueling facilities adjacent to the gate. (G) A project for converting vehicles and ground sup- port equipment used at a commercial service airport to

low-emission technology (as defined in section 47102) or to

use cleaner burning conventional fuels, retrofitting of any

such vehicles or equipment that are powered by a diesel or

gasoline engine with emission control technologies certified

or verified by the Environmental Protection Agency to re- duce emissions, or acquiring for use at a commercial

service airport vehicles and ground support equipment that

include low-emission technology or use cleaner burning

fuels if the airport is located in an air quality

nonattainment area (as defined in section 171(2) of the

Clean Air Act (42 U.S.C. 7501(2))) or a maintenance area

referred to in sec- tion 175A of such Act (42 U.S.C. 7505a)

and if such project will result in an airport receiving

appropriate emission credits as described in section 47139.

(4) GROUND SUPPORT EQUIPMENT.—The term ‘‘ground support equipment’’ means service and maintenance equipment

used at an airport to support aeronautical operations and related activities.

(5) PASSENGER FACILITY FEE.—The term ‘‘passenger facility

fee’’ means a fee imposed under this section. (6) PASSENGER FACILITY REVENUE.—The term ‘‘passenger

facility revenue’’ means revenue derived from a passenger facility fee. (b) GENERAL AUTHORITY.—(1) The Secretary of Transportation

may authorize under this section an eligible agency to impose a

passenger facility fee of $1, $2, or $3 on each paying passenger of

an air carrier or foreign air carrier boarding an aircraft at an airport the agency controls to finance an eligible airport-related

project, including making payments for debt service on indebtedness incurred to carry out the project, to be carried out in connection with the airport or any other airport the agency controls.

(2) A State, political subdivision of a State, or authority of a

State or political subdivision that is not the eligible agency may not

regulate or prohibit the imposition or collection of a passenger facility fee or the use of the passenger facility revenue.

(3) A passenger facility fee may be imposed on a passenger of

an air carrier or foreign air carrier originating or connecting at the
38

commercial service airport that the agency controls.

(4) In lieu of authorizing a fee under paragraph (1), the Secretary may authorize under this section an eligible agency to impose a passenger facility fee of $4.00 or $4.50 on each paying passenger of an air carrier or foreign air carrier boarding an aircraft

at an airport the agency controls to finance an eligible airport-related project, including making payments for debt service on indebtedness incurred to carry out the project, if the Secretary

finds—

(A) in the case of an airport that has more than .25 percent of the total number of annual boardings in the United

States, that the project will make a significant contribution to

improving air safety and security, increasing competition

among air carriers, reducing current or anticipated congestion,

or reducing the impact of aviation noise on people living near

the airport; and

(B) that the project cannot be paid for from funds reasonably expected to be available for the programs referred to in

section 48103.

(5) MAXIMUM COST FOR CERTAIN LOW-EMISSION TECHNOLOGY PROJECTS.—The maximum cost that may be financed

by imposition of a passenger facility fee under this section for

a project described in subsection (a)(3)(G) with respect to a vehicle or ground support equipment may not exceed the incremental amount of the project cost that is greater than the cost

of acquiring a vehicle or equipment that is not low-emission

and would be used for the same purpose, or the cost of lowemission retrofitting, as determined by the Secretary.

(6) DEBT SERVICE FOR CERTAIN PROJECTS.—In addition to

the uses specified in paragraphs (1) and (4), the Secretary may

authorize a passenger facility fee imposed under paragraph (1)

or (4) to be used for making payments for debt service on indebtedness incurred to carry out at the airport a project that

is not an eligible airport-related project if the Secretary determines that such use is necessary due to the financial need of

the airport.

(c) APPLICATIONS.—(1) An eligible agency must submit to the

Secretary an application for authority to impose a passenger facil- ity fee. The application shall contain information and be in the

form that the Secretary may require by regulation.

(2) Before submitting an application, the eligible agency must

provide reasonable notice to, and an opportunity for consultation

with, air carriers and foreign air carriers operating at the airport.

The Secretary shall prescribe regulations that define reasonable

notice and contain at least the following requirements:

(A) The agency must provide written notice of individual

projects being considered for financing by a passenger facility

fee and the date and location of a meeting to present the

projects to air carriers and foreign air carriers operating at the

airport.

(B) Not later than 30 days after written notice is provided

under subparagraph (A) of this paragraph, each air carrier and

foreign air carrier operating at the airport must provide to the

agency written notice of receipt of the notice. Failure of a carrier to provide the notice may be deemed certification of agreement with the project by the carrier under subparagraph (D)

of this paragraph.

(C) Not later than 45 days after written notice is provided

under subparagraph (A) of this paragraph, the agency must

conduct a meeting to provide air carriers and foreign air carriers with descriptions of projects and justifications and a detailed financial plan for projects.

(D) Not later than 30 days after the meeting, each air carrier and foreign air carrier must provide to the agency certification of agreement or disagreement with projects (or total

plan for the projects). Failure to provide the certification is

deemed certification of agreement with the project by the carrier. A certification of disagreement is void if it does not contain the reasons for the disagreement. (E) The agency must include in its application or notice

submitted under subparagraph (A) copies of all certifications of

agreement or disagreement received under subparagraph (D).

(F) For the purpose of this section, an eligible agency pro- viding notice and an opportunity for consultation to an air car- rier or foreign air carrier is deemed to have satisfied the re- quirements of this paragraph if the eligible agency limits such

notices and consultations to air carriers and foreign air car- riers that have a significant business interest at the airport. In

the subparagraph, the term ‘‘significant business interest’’ means an air carrier or foreign air carrier that had no less

than 1.0 percent of passenger boardings at the airport in the

prior calendar year, had at least 25,000 passenger boardings at

the airport in the prior calendar year, or provides scheduled

service at the airport.

(3) Before submitting an application, the eligible agency must

provide reasonable notice and an opportunity for public comment. The Secretary shall prescribe regulations that define reasonable

notice and provide for at least the following under this paragraph:

(A) A requirement that the eligible agency provide public

notice of intent to collect a passenger facility fee so as to inform those interested persons and agencies that may be affected. The public notice may include—

(i) publication in local newspapers of general circulation;

(ii) publication in other local media; and

(iii) posting the notice on the agency’s Internet

website.

(B) A requirement for submission of public comments no

sooner than 30 days, and no later than 45 days, after the date

of the publication of the notice.

(C) A requirement that the agency include in its applica-
39

tion or notice submitted under subparagraph (A) copies of all

comments received under subparagraph (B).

(4) After receiving an application, the Secretary may provide

notice and an opportunity to air carriers, foreign air carriers, and

other interested persons to comment on the application. The Secretary shall make a final decision on the application not later than

120 days after receiving it.

(d) LIMITATIONS ON APPROVING APPLICATIONS.—The Secretary

may approve an application that an eligible agency has submitted

under subsection (c) of this section to finance a specific project only

if the Secretary finds, based on the application, that—

(1) the amount and duration of the proposed passenger facility fee will result in revenue (including interest and other returns on the revenue) that is not more than the amount necessary to finance the specific project;

(2) each project is an eligible airport-related project that

will—

(A) preserve or enhance capacity, safety, or security of

the national air transportation system;

(B) reduce noise resulting from an airport that is part

of the system; or

(C) provide an opportunity for enhanced competition

between or among air carriers and foreign air carriers;

(3) the application includes adequate justification for each

of the specific projects; and

(4) in the case of an application to impose a fee of more

than $3.00 for an eligible surface transportation or terminal

project, the agency has made adequate provision for financing

the airside needs of the airport, including runways, taxiways, aprons, and aircraft gates.

(e) LIMITATIONS ON IMPOSING FEES.—(1) An eligible agency

may impose a passenger facility fee only—

(A) if the Secretary approves an application that the agen- cy has submitted under subsection (c) of this section; and

(B) subject to terms the Secretary may prescribe to carry

out the objectives of this section.

(2) A passenger facility fee may not be collected from a

passenger—

(A) for more than 2 boardings on a one-way trip or a trip

in each direction of a round trip;

(B) for the boarding to an eligible place under subchapter

II of chapter 417 of this title for which essential air service

compensation is paid under subchapter II;

(C) enplaning at an airport if the passenger did not pay for

the air transportation which resulted in such enplanement, including any case in which the passenger obtained the ticket for

the air transportation with a frequent flier award coupon without monetary payment;

(D) on flights, including flight segments, between 2 or

more points in Hawaii;

(E) in Alaska aboard an aircraft having a seating capacity

of less than 60 passengers; and

(F) enplaning at an airport if the passenger did not pay for

the air transportation which resulted in such enplanement due

to charter arrangements and payment by the Department of

Defense.

(f) LIMITATIONS ON CONTRACTS, LEASES, AND USE AGREEMENTS.—(1) A contract between an air carrier or foreign air carrier

and an eligible agency made at any time may not impair the authority of the agency to impose a passenger facility fee or to use

the passenger facility revenue as provided in this section.

(2) A project financed with a passenger facility fee may not be

subject to an exclusive long-term lease or use agreement of an air

carrier or foreign air carrier, as defined by regulations of the Secretary.

(3) A lease or use agreement of an air carrier or foreign air carrier related to a project whose construction or expansion was financed with a passenger facility fee may not restrict the eligible

agency from financing, developing, or assigning new capacity at the

airport with passenger facility revenue.

(g) TREATMENT OF REVENUE.—(1) Passenger facility revenue is

not airport revenue for purposes of establishing a price under a

contract between an eligible agency and an air carrier or foreign

air carrier.

(2) An eligible agency may not include in its price base the

part of the capital costs of a project paid for by using passenger facility revenue to establish a price under a contract between the

agency and an air carrier or foreign air carrier. (3) For a project for terminal development, gates and related

areas, or a facility occupied or used by at least one air carrier or

foreign air carrier on an exclusive or preferential basis, a price pay- able by an air carrier or foreign air carrier using the facilities must

at least equal the price paid by an air carrier or foreign air carrier

using a similar facility at the airport that was not financed with

passenger facility revenue.

(4) Passenger facility revenues that are held by an air carrier

or an agent of the carrier after collection of a passenger facility fee

constitute a trust fund that is held by the air carrier or agent for

the beneficial interest of the eligible agency imposing the fee. Such

carrier or agent holds neither legal nor equitable interest in the

passenger facility revenues except for any handling fee or retention

of interest collected on unremitted proceeds as may be allowed by

the Secretary.

(h) COMPLIANCE.—(1) As necessary to ensure compliance with

this section, the Secretary shall prescribe regulations requiring recordkeeping and auditing of accounts maintained by an air carrier

or foreign air carrier and its agent collecting a passenger facility

fee and by the eligible agency imposing the fee.

(2) The Secretary periodically shall audit and review the use

by an eligible agency of passenger facility revenue. After review

and a public hearing, the Secretary may end any part of the authority of the agency to impose a passenger facility fee to the ex-
40

tent the Secretary decides that the revenue is not being used as

provided in this section. (3) The Secretary may set off amounts necessary to ensure

compliance with this section against amounts otherwise payable to

an eligible agency under subchapter I of chapter 471 of this title

if the Secretary decides a passenger facility fee is excessive or that

passenger facility revenue is not being used as provided in this section.

(i) REGULATIONS.—The Secretary shall prescribe regulations

necessary to carry out this section. The regulations—

(1) may prescribe the time and form by which a passenger

facility fee takes effect;

(2) shall—

(A) require an air carrier or foreign air carrier and its

agent to collect a passenger facility fee that an eligible

agency imposes under this section;

(B) establish procedures for handling and remitting

money collected;

(C) ensure that the money, less a uniform amount the

Secretary determines reflects the average necessary and

reasonable expenses (net of interest accruing to the carrier

and agent after collection and before remittance) incurred

in collecting and handling the fee, is paid promptly to the

eligible agency for which they are collected; and

(D) require that the amount collected for any air

transportation be noted on the ticket for that air transportation; and

(3) may permit an eligible agency to request that collection

of a passenger facility fee be waived for—

(A) passengers enplaned by any class of air carrier or

foreign air carrier if the number of passengers enplaned by

the carriers in the class constitutes not more than one percent of the total number of passengers enplaned annually

at the airport at which the fee is imposed; or

(B) passengers enplaned on a flight to an airport—

(i) that has fewer than 2,500 passenger boardings

each year and receives scheduled passenger service; or

(ii) in a community which has a population of less

than 10,000 and is not connected by a land highway

or vehicular way to the land-connected National Highway System within a State.

(j) LIMITATION ON CERTAIN ACTIONS.—A State, political subdivision of a State, or authority of a State or political subdivision

that is not the eligible agency may not tax, regulate, or prohibit or

otherwise attempt to control in any manner, the imposition or col- lection of a passenger facility fee or the use of the revenue from the

passenger facility fee.

(k) COMPETITION PLANS.—

(1) IN GENERAL.—Beginning in fiscal year 2001, no eligible

agency may impose a passenger facility fee under this section

with respect to a covered airport (as such term is defined in

section 47106(f)) unless the agency has submitted to the Secretary a written competition plan in accordance with such section. This subsection does not apply to passenger facility fees

in effect before the date of the enactment of this subsection.

(2) SECRETARY SHALL ENSURE IMPLEMENTATION AND COMPLIANCE.—The Secretary shall review any plan submitted

under paragraph (1) to ensure that it meets the requirements

of this section, and shall review its implementation from timeto-time to ensure that each covered airport successfully implements its plan.

(l) PILOT PROGRAM FOR PASSENGER FACILITY FEE AUTHORIZATIONS AT NONHUB AIRPORTS.—

(1) IN GENERAL.—The Secretary shall establish a pilot program to test alternative procedures for authorizing eligible

agencies for nonhub airports to impose passenger facility fees.

An eligible agency may impose in accordance with the provisions of this subsection a passenger facility fee under this section. For purposes of the pilot program, the procedures in this

subsection shall apply instead of the procedures otherwise provided in this section.

(2) NOTICE AND OPPORTUNITY FOR CONSULTATION.—The eligible agency must provide reasonable notice and an opportunity for consultation to air carriers and foreign air carriers

in accordance with subsection (c)(2) and must provide reason- able notice and opportunity for public comment in accordance

with subsection (c)(3).

(3) NOTICE OF INTENTION.—The eligible agency must sub- mit to the Secretary a notice of intention to impose a passenger

facility fee under this subsection. The notice shall include—

(A) information that the Secretary may require by regulation on each project for which authority to impose a

passenger facility fee is sought;

(B) the amount of revenue from passenger facility fees

that is proposed to be collected for each project; and

(C) the level of the passenger facility fee that is pro- posed.

(4) ACKNOWLEDGEMENT OF RECEIPT AND INDICATION OF OBJECTION.—The Secretary shall acknowledge receipt of the notice and indicate any objection to the imposition of a passenger

facility fee under this subsection for any project identified in

the notice within 30 days after receipt of the eligible agency’s

notice.

(5) AUTHORITY TO IMPOSE FEE.—Unless the Secretary objects within 30 days after receipt of the eligible agency’s notice,

the eligible agency is authorized to impose a passenger facility

fee in accordance with the terms of its notice under this subsection.

(6) REGULATIONS.—Not later than 180 days after the date

of enactment of this subsection, the Secretary shall propose
41

such regulations as may be necessary to carry out this sub- section. (7) SUNSET.—This subsection shall cease to be effective beginning on the date that is 3 years after the date of issuance

of regulations to carry out this subsection. (8) ACKNOWLEDGEMENT NOT AN ORDER.—An acknowledgement issued under paragraph (4) shall not be considered an

order issued by the Secretary for purposes of section 46110.

(m) FINANCIAL MANAGEMENT OF FEES.—

(1) HANDLING OF FEES.—A covered air carrier shall segregate in a separate account passenger facility revenue equal

to the average monthly liability for fees collected under this

section by such carrier or any of its agents for the benefit of

the eligible agencies entitled to such revenue.

(2) TRUST FUND STATUS.—If a covered air carrier or its

agent fails to segregate passenger facility revenue in violation

of the subsection, the trust fund status of such revenue shall

not be defeated by an inability of any party to identify and

trace the precise funds in the accounts of the air carrier.

(3) PROHIBITION.—A covered air carrier and its agents may

not grant to any third party any security or other interest in

passenger facility revenue.

(4) COMPENSATION TO ELIGIBLE ENTITIES.—A covered air

carrier that fails to comply with any requirement of this subsection, or otherwise unnecessarily causes an eligible entity to

expend funds, through litigation or otherwise, to recover or retain payment of passenger facility revenue to which the eligible

entity is otherwise entitled shall be required to compensate the

eligible agency for the costs so incurred.

(5) INTEREST ON AMOUNTS.—A covered air carrier that collects passenger facility fees is entitled to receive the interest

on passenger facility fee accounts if the accounts are established and maintained in compliance with this subsection.

(6) EXISTING REGULATIONS.—The provisions of section

158.49 of title 14, Code of Federal Regulations, that permit the

commingling of passenger facility fees with other air carrier

revenue shall not apply to a covered air carrier.

(7) COVERED AIR CARRIER DEFINED.—In this section, the

term ‘‘covered air carrier’’ means an air carrier that files for

chapter 7 or chapter 11 of title 11 bankruptcy protection, or

has an involuntary chapter 7 of title 11 bankruptcy proceeding

commenced against it, after the date of enactment of this subsection.

§ 40118. Government-financed air transportation

(a) TRANSPORTATION BY AIR CARRIERS HOLDING CERTIFICATES.—A department, agency, or instrumentality of the United

States Government shall take necessary steps to ensure that the

transportation of passengers and property by air is provided by an

air carrier holding a certificate under section 41102 of this title if—

(1) the department, agency, or instrumentality—

(A) obtains the transportation for itself or in carrying

out an arrangement under which payment is made by the

Government or payment is made from amounts provided

for the use of the Government; or

(B) provides the transportation to or for a foreign

country or international or other organization without re- imbursement;

(2) the transportation is authorized by the certificate or by

regulation or exemption of the Secretary of Transportation;

and

(3) the air carrier is—

(A) available, if the transportation is between a place

in the United States and a place outside the United States;

or

(B) reasonably available, if the transportation is between 2 places outside the United States.

(b) TRANSPORTATION BY FOREIGN AIR CARRIERS.—This section

does not preclude the transportation of passengers and property by

a foreign air carrier if the transportation is provided under a bilateral or multilateral air transportation agreement to which the Government and the government of a foreign country are parties if the

agreement—

(1) is consistent with the goals for international aviation

policy of section 40101(e) of this title; and

(2) provides for the exchange of rights or benefits of similar magnitude.

(c) PROOF.—The Administrator of General Services shall prescribe regulations under which agencies may allow the expenditure

of an appropriation for transportation in violation of this section

only when satisfactory proof is presented showing the necessity for

the transportation.

(d) CERTAIN TRANSPORTATION BY AIR OUTSIDE THE UNITED

STATES.—Notwithstanding subsections (a) and (c) of this section, any amount appropriated to the Secretary of State or the Administrator of the Agency for International Development may be used to

pay for the transportation of an officer or employee of the Depart- ment of State or one of those agencies, a dependent of the officer

or employee, and accompanying baggage, by a foreign air carrier

when the transportation is between 2 places outside the United

States.

(e) RELATIONSHIP TO OTHER LAWS.—This section does not affect the application of the antidiscrimination provisions of this part.

(f) PROHIBITION OF CERTIFICATION OR CONTRACT CLAUSE.—(1)

No certification by a contractor, and no contract clause, may be re- quired in the case of a contract for the transportation of commer- cial items in order to implement a requirement in this section.

(2) In paragraph (1), the term ‘‘commercial item’’ has the

meaning given such term in section 4(12) of the Office of Federal

Procurement Policy Act (41 U.S.C. 403(12)), except that it shall not

include a contract for the transportation by air of passengers.
42

§ 40119. Security and research and development activities

(a) GENERAL REQUIREMENTS.—The Under Secretary of Trans- portation for Security and the Administrator of the Federal Avia- tion Administration each shall conduct research (including behav- ioral research) and development activities appropriate to develop, modify, test, and evaluate a system, procedure, facility, or device

to protect passengers and property against acts of criminal vio- lence, aircraft piracy, and terrorism and to ensure security.

(b) DISCLOSURE.—(1) Notwithstanding section 552 of title 5 and

the establishment of a Department of Homeland Security, the Secretary of Transportation shall prescribe regulations prohibiting dis- closure of information obtained or developed in ensuring security

under this title if the Secretary of Transportation decides disclosing

the information would—

(A) be an unwarranted invasion of personal privacy;

(B) reveal a trade secret or privileged or confidential commercial or financial information; or

(C) be detrimental to transportation safety.

(2) Paragraph (1) of this subsection does not authorize information to be withheld from a committee of Congress authorized to

have the information.

(c) TRANSFERS OF DUTIES AND POWERS PROHIBITED.—Except as

otherwise provided by law, the Under Secretary may not transfer

a duty or power under this section to another department, agency,

or instrumentality of the United States Government.

§ 40120. Relationship to other laws

(a) NONAPPLICATION.—Except as provided in the International

Navigational Rules Act of 1977 (33 U.S.C. 1601 et seq.), the navigation and shipping laws of the United States and the rules for the

prevention of collisions do not apply to aircraft or to the navigation

of vessels related to those aircraft.

(b) EXTENDING APPLICATION OUTSIDE UNITED STATES.—The

President may extend (in the way and for periods the President

considers necessary) the application of this part to outside the

United States when—

(1) an international arrangement gives the United States

Government authority to make the extension; and

(2) the President decides the extension is in the national

interest. (c) ADDITIONAL REMEDIES.—A remedy under this part is in addition to any other remedies provided by law.

§ 40121. Air traffic control modernization reviews

(a) REQUIRED TERMINATIONS OF ACQUISITIONS.—The Administrator of the Federal Aviation Administration shall terminate any

acquisition program initiated after the date of the enactment of the

Air Traffic Management System Performance Improvement Act of

1996 [enacted Oct. 9, 1996] and funded under the Facilities and

Equipment account that—

(1) is more than 50 percent over the cost goal established

for the program;

(2) fails to achieve at least 50 percent of the performance

goals established for the program; or

(3) is more than 50 percent behind schedule as determined

in accordance with the schedule goal established for the pro- gram.

(b) AUTHORIZED TERMINATION OF ACQUISITION PROGRAMS.—

The Administrator shall consider terminating, under the authority

of subsection (a), any substantial acquisition program that—

(1) is more than 10 percent over the cost goal established

for the program;

(2) fails to achieve at least 90 percent of the performance

goals established for the program; or

(3) is more than 10 percent behind schedule as determined

in accordance with the schedule goal established for the pro- gram.

(c) EXCEPTIONS AND REPORT.—

(1) CONTINUANCE OF PROGRAM, ETC.—Notwithstanding

subsection (a), the Administrator may continue an acquisitions

program required to be terminated under subsection (a) if the

Administrator determines that termination would be inconsistent with the development or operation of the national air

transportation system in a safe and efficient manner.

(2) DEPARTMENT OF DEFENSE.—The Department of Defense

shall have the same exemptions from acquisition laws as are

waived by the Administrator under section 40110(d)(2) of this

title when engaged in joint actions to improve or replenish the

national air traffic control system. The Administration may acquire real property, goods, and services through the Department of Defense, or other appropriate agencies, but is bound

by the acquisition laws and regulations governing those cases.

(3) REPORT.—If the Administrator makes a determination

under paragraph (1), the Administrator shall transmit a copy

of the determination, together with a statement of the basis for

the determination, to the Committees on Appropriations of the

Senate and the House of Representatives, the Committee on

Commerce, Science, and Transportation of the Senate, and the

Committee on Transportation and Infrastructure of the House

of Representatives.

§ 40122. Federal Aviation Administration personnel management system

(a) IN GENERAL.—

(1) CONSULTATION AND NEGOTIATION.—In developing and

making changes to the personnel management system initially

implemented by the Administrator of the Federal Aviation Administration on April 1, 1996, the Administrator shall negotiate with the exclusive bargaining representatives of employ-
43

ees of the Administration certified under section 7111 of title

5 and consult with other employees of the Administration. (2) MEDIATION.—If the Administrator does not reach an

agreement under paragraph (1) with the exclusive bargaining

representatives, the services of the Federal Mediation and Conciliation Service shall be used to attempt to reach such agreement. If the services of the Federal Mediation and Conciliation

Service do not lead to an agreement, the Administrator’s proposed change to the personnel management system shall not

take effect until 60 days have elapsed after the Administrator

has transmitted the proposed change, along with the objections

of the exclusive bargaining representatives to the change, and

the reasons for such objections, to Congress. The 60-day period

shall not include any period during which Congress has adjourned sine die.

(3) COST SAVINGS AND PRODUCTIVITY GOALS.—The Administration and the exclusive bargaining representatives of the employees shall use every reasonable effort to find cost savings

and to increase productivity within each of the affected bargaining units.

(4) ANNUAL BUDGET DISCUSSIONS.—The Administration

and the exclusive bargaining representatives of the employees

shall meet annually for the purpose of finding additional cost

savings within the Administration’s annual budget as it applies to each of the affected bargaining units and throughout

the agency.

(b) EXPERT EVALUATION.—On the date that is 3 years after the

personnel management system is implemented, the Administration

shall employ outside experts to provide an independent evaluation

of the effectiveness of the system within 3 months after such date.

For this purpose, the Administrator may utilize the services of experts and consultants under section 3109 of title 5 without regard

to the limitation imposed by the last sentence of section 3109(b) of

such title, and may contract on a sole source basis, notwithstanding

any other provision of law to the contrary.

(c) PAY RESTRICTION.—No officer or employee of the Administration may receive an annual rate of basic pay in excess of the annual rate of basic pay payable to the Administrator.

(d) ETHICS.—The Administration shall be subject to Executive

Order No. 12674 and regulations and opinions promulgated by the

Office of Government Ethics, including those set forth in section

2635 of title 5 of the Code of Federal Regulations.

(e) EMPLOYEE PROTECTIONS.—Until July 1, 1999, basic wages

(including locality pay) and operational differential pay provided

employees of the Administration shall not be involuntarily adversely affected by reason of the enactment of this section, except

for unacceptable performance or by reason of a reduction in force

or reorganization or by agreement between the Administration and

the affected employees’ exclusive bargaining representative.

(f) LABOR-MANAGEMENT AGREEMENTS.—Except as otherwise

provided by this title, all labor-management agreements covering

employees of the Administration that are in effect on the effective

date of the Air Traffic Management System Performance Improvement Act of 1996 [enacted Oct. 9, 1996] shall remain in effect

until their normal expiration date, unless the Administrator and

the exclusive bargaining representative agree to the contrary.

(g) PERSONNEL MANAGEMENT SYSTEM.—

(1) IN GENERAL.—In consultation with the employees of the

Administration and such non-governmental experts in personnel management systems as he may employ, and notwithstanding the provisions of title 5 and other Federal personnel

laws, the Administrator shall develop and implement, not later

than January 1, 1996, a personnel management system for the

Administration that addresses the unique demands on the

agency’s workforce. Such a new system shall, at a minimum,

provide for greater flexibility in the hiring, training, compensation, and location of personnel.

(2) APPLICABILITY OF TITLE 5.—The provisions of title 5

shall not apply to the new personnel management system developed and implemented pursuant to paragraph (1), with the

exception of—

(A) section 2302(b), relating to whistleblower protection, including the provisions for investigation and enforcement as provided in chapter 12 of title 5;

(B) sections 3308–3320, relating to veterans’ pref- erence;

(C) chapter 71, relating to labor-management relations;

(D) section 7204, relating to antidiscrimination;

(E) chapter 73, relating to suitability, security, and

conduct;

(F) chapter 81, relating to compensation for work injury;

(G) chapters 83–85, 87, and 89, relating to retirement,

unemployment compensation, and insurance coverage; and

(H) sections 1204, 1211–1218, 1221, and 7701–7703,

relating to the Merit Systems Protection Board.

(3) APPEALS TO MERIT SYSTEMS PROTECTION BOARD.— Under the new personnel management system developed and

implemented under paragraph (1), an employee of the Administration may submit an appeal to the Merit Systems Protection Board and may seek judicial review of any resulting final

orders or decisions of the Board from any action that was appealable to the Board under any law, rule, or regulation as of

March 31, 1996.

(4) EFFECTIVE DATE.—This subsection shall take effect on

April 1, 1996.

(h) RIGHT TO CONTEST ADVERSE PERSONNEL ACTIONS.—An em- ployee of the Federal Aviation Administration who is the subject of

a major adverse personnel action may contest the action either
44

through any contractual grievance procedure that is applicable to

the employee as a member of the collective bargaining unit or

through the Administration’s internal process relating to review of

major adverse personnel actions of the Administration, known as

Guaranteed Fair Treatment, or under section 40122(g)(3).

(i) ELECTION OF FORUM.—Where a major adverse personnel action may be contested through more than one of the indicated forums (such as the contractual grievance procedure, the Federal

Aviation Administration’s internal process, or that of the Merit

Systems Protection Board), an employee must elect the forum

through which the matter will be contested. Nothing in this section

is intended to allow an employee to contest an action through more

than one forum unless otherwise allowed by law.

(j) DEFINITION.—In this section, the term ‘‘major adverse personnel action’’ means a suspension of more than 14 days, a reduc- tion in pay or grade, a removal for conduct or performance, a nondisciplinary removal, a furlough of 30 days or less (but not including placement in a nonpay status as the result of a lapse of appropriations or an enactment by Congress), or a reduction in force action.

§ 40123. Protection of voluntarily submitted information

(a) IN GENERAL.—Notwithstanding any other provision of law,

neither the Administrator of the Federal Aviation Administration,

nor any agency receiving information from the Administrator, shall

disclose voluntarily-provided safety or security related information

if the Administrator finds that—

(1) the disclosure of the information would inhibit the voluntary provision of that type of information and that the receipt of that type of information aids in fulfilling the Administrator’s safety and security responsibilities; and

(2) withholding such information from disclosure would be

consistent with the Administrator’s safety and security responsibilities.

(b) REGULATIONS.—The Administrator shall issue regulations

to carry out this section.

§ 40124. Interstate agreements for airport facilities

Congress consents to a State making an agreement, not in con- flict with a law of the United States, with another State to develop

or operate an airport facility.

§ 40125. Qualifications for public aircraft status

(a) DEFINITIONS.—In this section, the following definitions

apply:

(1) COMMERCIAL PURPOSES.—The term ‘‘commercial purposes’’ means the transportation of persons or property for

compensation or hire, but does not include the operation of an

aircraft by the armed forces for reimbursement when that reimbursement is required by any Federal statute, regulation, or

directive, in effect on November 1, 1999, or by one government

on behalf of another government under a cost reimbursement

agreement if the government on whose behalf the operation is

conducted certifies to the Administrator of the Federal Aviation Administration that the operation is necessary to respond

to a significant and imminent threat to life or property (including natural resources) and that no service by a private operator is reasonably available to meet the threat.

(2) GOVERNMENTAL FUNCTION.—The term ‘‘governmental

function’’ means an activity undertaken by a government, such

as national defense, intelligence missions, firefighting, search

and rescue, law enforcement (including transport of prisoners, detainees, and illegal aliens), aeronautical research, or biological or geological resource management.

(3) QUALIFIED NON-CREWMEMBER.—The term ‘‘qualified

non-crewmember’’ means an individual, other than a member

of the crew, aboard an aircraft— (A) operated by the armed forces or an intelligence

agency of the United States Government; or

(B) whose presence is required to perform, or is associ- ated with the performance of, a governmental function. (4) ARMED FORCES.—The term ‘‘armed forces’’ has the

meaning given such term by section 101 of title 10.

(b) AIRCRAFT OWNED BY GOVERNMENTS.—An aircraft described

in subparagraph (A), (B), (C), or (D) of section 40102(a)(37) does not

qualify as a public aircraft under such section when the aircraft is

used for commercial purposes or to carry an individual other than

a crewmember or a qualified non-crewmember.

(c) AIRCRAFT OWNED OR OPERATED BY THE ARMED FORCES.—

(1) IN GENERAL.—Subject to paragraph (2), an aircraft de- scribed in section 40102(a)(37)(E) qualifies as a public aircraft

if—

(A) the aircraft is operated in accordance with title 10;

(B) the aircraft is operated in the performance of a

governmental function under title 14, 31, 32, or 50 and the

aircraft is not used for commercial purposes; or

(C) the aircraft is chartered to provide transportation

to the armed forces and the Secretary of Defense (or the

Secretary of the department in which the Coast Guard is

operating) designates the operation of the aircraft as being

required in the national interest.

(2) LIMITATION.—An aircraft that meets the criteria set

forth in paragraph (1) and that is owned or operated by the

National Guard of a State, the District of Columbia, or any territory or possession of the United States, qualifies as a public

aircraft only to the extent that it is operated under the direct

control of the Department of Defense.

§ 40126. Severable services contracts for periods crossing fiscal years

(a) IN GENERAL.—The Administrator of the Federal Aviation
45

Administration may enter into a contract for procurement of severable services for a period that begins in 1 fiscal year and ends in

the next fiscal year if (without regard to any option to extend the

period of the contract) the contract period does not exceed 1 year.

(b) OBLIGATION OF FUNDS.—Funds made available for a fiscal

year may be obligated for the total amount of a contract entered

into under the authority of subsection (a).

§ 40127. Prohibitions on discrimination

(a) PERSONS IN AIR TRANSPORTATION.—An air carrier or foreign

air carrier may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex,

or ancestry.

(b) USE OF PRIVATE AIRPORTS.—Notwithstanding any other

provision of law, no State or local government may prohibit the use

or full enjoyment of a private airport within its jurisdiction by any

person on the basis of that person’s race, color, national origin, religion, sex, or ancestry.

§ 40128. Overflights of national parks

(a) IN GENERAL.— (1) GENERAL REQUIREMENTS.—A commercial air tour oper- ator may not conduct commercial air tour operations over a na- tional park or tribal lands, as defined by this section, except—

(A) in accordance with this section;

(B) in accordance with conditions and limitations pre- scribed for that operator by the Administrator; and

(C) in accordance with any applicable air tour manage- ment plan for the park or tribal lands.

(2) APPLICATION FOR OPERATING AUTHORITY.—

(A) APPLICATION REQUIRED.—Before commencing com- mercial air tour operations over a national park or tribal

lands, a commercial air tour operator shall apply to the

Administrator for authority to conduct the operations over

the park or tribal lands.

(B) COMPETITIVE BIDDING FOR LIMITED CAPACITY

PARKS.—Whenever an air tour management plan limits the

number of commercial air tour operations over a national

park during a specified time frame, the Administrator, in

cooperation with the Director, shall issue operation specifications to commercial air tour operators that conduct

such operations. The operation specifications shall include

such terms and conditions as the Administrator and the

Director find necessary for management of commercial air

tour operations over the park. The Administrator, in cooperation with the Director, shall develop an open competitive process for evaluating proposals from persons interested in providing commercial air tour operations over the

park. In making a selection from among various proposals

submitted, the Administrator, in cooperation with the Director, shall consider relevant factors, including—

(i) the safety record of the person submitting the

proposal or pilots employed by the person;

(ii) any quiet aircraft technology proposed to be

used by the person submitting the proposal;

(iii) the experience of the person submitting the

proposal with commercial air tour operations over

other national parks or scenic areas;

(iv) the financial capability of the person submitting the proposal;

(v) any training programs for pilots provided by

the person submitting the proposal; and

(vi) responsiveness of the person submitting the

proposal to any relevant criteria developed by the National Park Service for the affected park.

(C) NUMBER OF OPERATIONS AUTHORIZED.—In determining the number of authorizations to issue to provide

commercial air tour operations over a national park, the

Administrator, in cooperation with the Director, shall take

into consideration the provisions of the air tour management plan, the number of existing commercial air tour operators and current level of service and equipment provided by any such operators, and the financial viability of

each commercial air tour operation.

(D) COOPERATION WITH NPS.—Before granting an application under this paragraph, the Administrator, in cooperation with the Director, shall develop an air tour management plan in accordance with subsection (b) and implement such plan.

(E) TIME LIMIT ON RESPONSE TO ATMP APPLICATIONS.—

The Administrator shall make every effort to act on any

application under this paragraph and issue a decision on

the application not later than 24 months after it is received or amended.

(F) PRIORITY.—In acting on applications under this

paragraph to provide commercial air tour operations over

a national park, the Administrator shall give priority to an

application under this paragraph in any case in which a

new entrant commercial air tour operator is seeking operating authority with respect to that national park.

(3) EXCEPTION.—Notwithstanding paragraph (1), commercial air tour operators may conduct commercial air tour operations over a national park under part 91 of the title 14, Code

of Federal Regulations if—

(A) such activity is permitted under part 119 of such

title;

(B) the operator secures a letter of agreement from the

Administrator and the national park superintendent for

that national park describing the conditions under which

the operations will be conducted; and
46

(C) the total number of operations under this exception is limited to not more than five flights in any 30-day

period over a particular park.

(4) SPECIAL RULE FOR SAFETY REQUIREMENTS.—Notwithstanding subsection (c), an existing commercial air tour operator shall apply, not later than 90 days after the date of the

enactment of this section, for operating authority under part

119, 121, or 135 of title 14, Code of Federal Regulations. A new

entrant commercial air tour operator shall apply for such au- thority before conducting commercial air tour operations over

a national park or tribal lands. The Administrator shall make

every effort to act on any such application for a new entrant

and issue a decision on the application not later than 24

months after it is received or amended.

(b) AIR TOUR MANAGEMENT PLANS.—

(1) ESTABLISHMENT.—

(A) IN GENERAL.—The Administrator, in cooperation

with the Director, shall establish an air tour management

plan for any national park or tribal land for which such a

plan is not in effect whenever a person applies for authority to conduct a commercial air tour operation over the

park. The air tour management plan shall be developed by

means of a public process in accordance with paragraph

(4).

(B) OBJECTIVE.—The objective of any air tour management plan shall be to develop acceptable and effective

measures to mitigate or prevent the significant adverse

impacts, if any, of commercial air tour operations upon the

natural and cultural resources, visitor experiences, and

tribal lands.

(2) ENVIRONMENTAL DETERMINATION.—In establishing an

air tour management plan under this subsection, the Administrator and the Director shall each sign the environmental decision document required by section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332) which may include

a finding of no significant impact, an environmental assessment, or an environmental impact statement and the record of

decision for the air tour management plan.

(3) CONTENTS.—An air tour management plan for a national park—

(A) may prohibit commercial air tour operations over

a national park in whole or in part;

(B) may establish conditions for the conduct of commercial air tour operations over a national park, including

commercial air tour routes, maximum or minimum alti- tudes, time-of-day restrictions, restrictions for particular

events, maximum number of flights per unit of time, intrusions on privacy on tribal lands, and mitigation of noise,

visual, or other impacts;

(C) shall apply to all commercial air tour operations

over a national park that are also within 1⁄2 mile outside

the boundary of a national park;

(D) shall include incentives (such as preferred commercial air tour routes and altitudes, relief from caps and

curfews) for the adoption of quiet aircraft technology by

commercial air tour operators conducting commercial air

tour operations over a national park;

(E) shall provide for the initial allocation of opportunities to conduct commercial air tour operations over a national park if the plan includes a limitation on the number

of commercial air tour operations for any time period; and

(F) shall justify and document the need for measures

taken pursuant to subparagraphs (A) through (E) and include such justifications in the record of decision.

(4) PROCEDURE.—In establishing an air tour management

plan for a national park or tribal lands, the Administrator and

the Director shall—

(A) hold at least one public meeting with interested

parties to develop the air tour management plan;

(B) publish the proposed plan in the Federal Register

for notice and comment and make copies of the proposed

plan available to the public;

(C) comply with the regulations set forth in sections

1501.3 and 1501.5 through 1501.8 of title 40, Code of Federal Regulations (for purposes of complying with the regulations, the Federal Aviation Administration shall be the

lead agency and the National Park Service is a cooperating

agency); and

(D) solicit the participation of any Indian tribe whose

tribal lands are, or may be, overflown by aircraft involved

in a commercial air tour operation over the park or tribal

lands to which the plan applies, as a cooperating agency

under the regulations referred to in subparagraph (C). (5) JUDICIAL REVIEW.—An air tour management plan de- veloped under this subsection shall be subject to judicial re- view.

(6) AMENDMENTS.—The Administrator, in cooperation with

the Director, may make amendments to an air tour management plan. Any such amendments shall be published in the

Federal Register for notice and comment. A request for amendment of an air tour management plan shall be made in such

form and manner as the Administrator may prescribe.

(c) INTERIM OPERATING AUTHORITY.—

(1) IN GENERAL.—Upon application for operating authority, the Administrator shall grant interim operating authority

under this subsection to a commercial air tour operator for

commercial air tour operations over a national park or tribal

lands for which the operator is an existing commercial air tour

operator.

(2) REQUIREMENTS AND LIMITATIONS.—Interim operating
47

authority granted under this subsection—

(A) shall provide annual authorization only for the

greater of—

(i) the number of flights used by the operator to

provide the commercial air tour operations over a national park within the 12-month period prior to the

date of the enactment of this section; or

(ii) the average number of flights per 12-month

period used by the operator to provide such operations

within the 36-month period prior to such date of enactment, and, for seasonal operations, the number of

flights so used during the season or seasons covered

by that 12-month period;

(B) may not provide for an increase in the number of

commercial air tour operations over a national park conducted during any time period by the commercial air tour

operator above the number that the air tour operator was

originally granted unless such an increase is agreed to by

the Administrator and the Director;

(C) shall be published in the Federal Register to provide notice and opportunity for comment;

(D) may be revoked by the Administrator for cause;

(E) shall terminate 180 days after the date on which

an air tour management plan is established for the park

or tribal lands;

(F) shall promote protection of national park resources, visitor experiences, and tribal lands;

(G) shall promote safe commercial air tour operations;

(H) shall promote the adoption of quiet technology, as

appropriate; and

(I) shall allow for modifications of the interim operating authority based on experience if the modification improves protection of national park resources and values

and of tribal lands. (3) NEW ENTRANT AIR TOUR OPERATORS.—

(A) IN GENERAL.—The Administrator, in cooperation

with the Director, may grant interim operating authority

under this paragraph to an air tour operator for a national

park or tribal lands for which that operator is a new entrant air tour operator if the Administrator determines the

authority is necessary to ensure competition in the provision of commercial air tour operations over the park or

tribal lands.

(B) SAFETY LIMITATION.—The Administrator may not

grant interim operating authority under subparagraph (A)

if the Administrator determines that it would create a

safety problem at the park or on the tribal lands, or the

Director determines that it would create a noise problem

at the park or on the tribal lands.

(C) ATMP LIMITATION.—The Administrator may grant

interim operating authority under subparagraph (A) of this

paragraph only if the air tour management plan for the

park or tribal lands to which the application relates has

not been developed within 24 months after the date of the

enactment of this section.

(d) EXEMPTIONS.—This section shall not apply to—

(1) the Grand Canyon National Park; or

(2) tribal lands within or abutting the Grand Canyon National Park.

(e) LAKE MEAD.—This section shall not apply to any air tour

operator while flying over or near the Lake Mead National Recreation Area, solely as a transportation route, to conduct an air tour

over the Grand Canyon National Park. For purposes of this

subsection, an air tour operator flying over the Hoover Dam in the

Lake Mead National Recreation Area en route to the Grand Canyon

National Park shall be deemed to be flying solely as a transportation

route.

(f ) DEFINITIONS.—In this section, the following definitions

apply:

(1) COMMERCIAL AIR TOUR OPERATOR.—The term ‘‘commercial air tour operator’’ means any person who conducts a commercial air tour operation over a national park.

(2) EXISTING COMMERCIAL AIR TOUR OPERATOR.—The term

‘‘existing commercial air tour operator’’ means a commercial air

tour operator that was actively engaged in the business of providing commercial air tour operations over a national park at

any time during the 12-month period ending on the date of the

enactment of this section.

(3) NEW ENTRANT COMMERCIAL AIR TOUR OPERATOR.—The

term ‘‘new entrant commercial air tour operator’’ means a commercial air tour operator that—

(A) applies for operating authority as a commercial air

tour operator for a national park or tribal lands; and

(B) has not engaged in the business of providing commercial air tour operations over the national park or tribal

lands in the 12-month period preceding the application.

(4) COMMERCIAL AIR TOUR OPERATION OVER A NATIONAL

PARK.—

(A) IN GENERAL.—The term ‘‘commercial air tour operation over a national park’’ means any flight, conducted for

compensation or hire in a powered aircraft where a purpose of the flight is sightseeing over a national park, within 1⁄2 mile outside the boundary of any national park (except the Grand Canyon National Park), or over tribal

lands (except those within or abutting the Grand Canyon

National Park), during which the aircraft flies—

(i) below a minimum altitude, determined by the

Administrator in cooperation with the Director, above

ground level (except solely for purposes of takeoff or

landing, or necessary for safe operation of an aircraft as
48

determined under the rules and regulations of the Federal

Aviation Administration requiring the pilot-in- command to

take action to ensure the safe operation of the aircraft); or

(ii) less than 1 mile laterally from any geographic

feature within the park (unless more than 1⁄2 mile outside the boundary).

(B) FACTORS TO CONSIDER.—In making a determina- tion of whether a flight is a commercial air tour operation

over a national park for purposes of this section, the Ad- ministrator may consider—

(i) whether there was a holding out to the public

of willingness to conduct a sightseeing flight for com- pensation or hire;

(ii) whether a narrative that referred to areas or

points of interest on the surface below the route of the

flight was provided by the person offering the flight;

(iii) the area of operation;

(iv) the frequency of flights conducted by the person offering the flight;

(v) the route of flight;

(vi) the inclusion of sightseeing flights as part of

any travel arrangement package offered by the person

offering the flight;

(vii) whether the flight would have been canceled

based on poor visibility of the surface below the route

of the flight; and

(viii) any other factors that the Administrator and

the Director consider appropriate.

(5) NATIONAL PARK.—The term ‘‘national park’’ means any

unit of the National Park System.

(6) TRIBAL LANDS.—The term ‘‘tribal lands’’ means Indian

country (as that term is defined in section 1151 of title 18) that

is within or abutting a national park.

(7) ADMINISTRATOR.—The term ‘‘Administrator’’ means the

Administrator of the Federal Aviation Administration.

(8) DIRECTOR.—The term ‘‘Director’’ means the Director of

the National Park Service.

§ 40129. Collaborative decisionmaking pilot program

(a) ESTABLISHMENT.—Not later than 90 days after the date of

enactment of this section, the Administrator of the Federal Avia- tion Administration shall establish a collaborative decisionmaking

pilot program in accordance with this section.

(b) DURATION.—Except as provided in subsection (k), the pilot

program shall be in effect for a period of 2 years.

(c) GUIDELINES.—

(1) ISSUANCE.—The Administrator, with the concurrence of

the Attorney General, shall issue guidelines concerning the

pilot program. Such guidelines, at a minimum, shall—

(A) define a capacity reduction event;

(B) establish the criteria and process for determining

when a capacity reduction event exists that warrants the

use of collaborative decisionmaking among carriers at air- ports participating in the pilot program; and

(C) prescribe the methods of communication to be im- plemented among carriers during such an event.

(2) VIEWS.—The Administrator may obtain the views of interested parties in issuing the guidelines.

(d) EFFECT OF DETERMINATION OF EXISTENCE OF CAPACITY RE- DUCTION EVENT.—Upon a determination by the Administrator that

a capacity reduction event exists, the Administrator may authorize

air carriers and foreign air carriers operating at an airport partici- pating in the pilot program to communicate for a period of time not

to exceed 24 hours with each other concerning changes in their re- spective flight schedules in order to use air traffic capacity most ef- fectively. The Administration shall facilitate and monitor such com- munication. The Attorney General, or the Attorney General’s des- ignee, may monitor such communication.

(e) SELECTION OF PARTICIPATING AIRPORTS.—Not later than 30

days after the date on which the Administrator establishes the

pilot program, the Administrator shall select 2 airports to participate in the pilot program from among the most capacity-constrained airports in the Nation based on the Administration’s Airport Capacity Benchmark Report 2001 or more recent data on airport capacity that is available to the Administrator. The Administrator shall select an airport for participation in the pilot program

if the Administrator determines that collaborative decisionmaking

among air carriers and foreign air carriers would reduce delays at

the airport and have beneficial effects on reducing delays in the national airspace system as a whole.

(f) ELIGIBILITY OF AIR CARRIERS.—An air carrier or foreign air

carrier operating at an airport selected to participate in the pilot

program is eligible to participate in the pilot program if the Administrator determines that the carrier has the operational and communications capability to participate in the pilot program. (g) MODIFICATION OR TERMINATION OF PILOT PROGRAM AT AN

AIRPORT.—The Administrator, with the concurrence of the Attorney

General, may modify or end the pilot program at an airport before

the term of the pilot program has expired, or may ban an air carrier or foreign air carrier from participating in the program, if the

Administrator determines that the purpose of the pilot program is

not being furthered by participation of the airport or air carrier or

if the Secretary of Transportation, with the concurrence of the Attorney General, finds that the pilot program or the participation of

an air carrier or foreign air carrier in the pilot program has had,

or is having, an adverse effect on competition among carriers.

(h) ANTITRUST IMMUNITY.—

(1) IN GENERAL.—Unless, within 5 days after receiving notice from the Secretary of the Secretary’s intention to exercise

authority under this subsection, the Attorney General submits

to the Secretary a written objection to such action, including
49

reasons for such objection, the Secretary may exempt an air

carrier’s or foreign air carrier’s activities that are necessary to

participate in the pilot program under this section from the

antitrust laws for the sole purpose of participating in the pilot

program. Such exemption shall not extend to any discussions,

agreements, or activities outside the scope of the pilot program.

(2) ANTITRUST LAWS DEFINED.—In this section, the term

‘‘antitrust laws’’ has the meaning given that term in the first

section of the Clayton Act (15 U.S.C. 12).

(i) CONSULTATION WITH ATTORNEY GENERAL.—The Secretary

shall consult with the Attorney General regarding the design and

implementation of the pilot program, including determining wheth- er a limit should be set on the number of occasions collaborative

decisionmaking could be employed during the initial 2-year period

of the pilot program.

(j) EVALUATION.—

(1) IN GENERAL.—Before the expiration of the 2-year period

for which the pilot program is authorized under subsection (b),

the Administrator shall determine whether the pilot program

has facilitated more effective use of air traffic capacity and the

Secretary, with the concurrence of the Attorney General, shall

determine whether the pilot program has had an adverse effect

on airline competition or the availability of air services to communities. The Administrator shall also examine whether capacity benefits resulting from the participation in the pilot program of an airport resulted in capacity benefits to other parts

of the national airspace system.

(2) OBTAINING NECESSARY DATA.—The Administrator may

require participating air carriers and airports to provide data

necessary to evaluate the pilot program’s impact.

(k) EXTENSION OF PILOT PROGRAM.—At the end of the 2-year

period for which the pilot program is authorized, the Administrator, with the concurrence of the Attorney General, may continue

the pilot program for an additional 2 years and expand participation in the program to up to 7 additional airports if the Administrator determines pursuant to subsection (j) that the pilot program

has facilitated more effective use of air traffic capacity and if the

Secretary, with the concurrence of the Attorney General, determines that the pilot program has had no adverse effect on airline

competition or the availability of air services to communities. The

Administrator shall select the additional airports to participate in

the extended pilot program in the same manner in which airports

were initially selected to participate.
50

SUBPART II—ECONOMIC REGULATION

CHAPTER 411—AIR CARRIER CERTIFICATES

Sec.

41101. Requirement for a certificate.

41102. General, temporary, and charter air transportation certificates of air carriers.

41103. All-cargo air transportation certificates of air carriers.

41104. Additional limitations and requirements of charter air carriers.

41105. Transfers of certificates.

41106. Airlift service.

41107. Transportation of mail.

41108. Applications for certificates.

41109. Terms of certificates. 41110. Effective periods and amendments, modifications, suspensions, and revocations of certificates.

41111. Simplified procedure to apply for, amend, modify, suspend,

and transfer certificates.

41112. Liability insurance and financial responsibility.

41113. Plans to address needs of families of passengers involved in aircraft accidents.

§ 41101. Requirement for a certificate

(a) GENERAL.—Except as provided in this chapter or another

law—

(1) an air carrier may provide air transportation only if the

air carrier holds a certificate issued under this chapter authorizing the air transportation;

(2) a charter air carrier may provide charter air transportation only if the charter air carrier holds a certificate issued

under this chapter authorizing the charter air transportation;

and

(3) an air carrier may provide all-cargo air transportation

only if the air carrier holds a certificate issued under this

chapter authorizing the all-cargo air transportation.

(b) THROUGH SERVICE AND JOINT TRANSPORTATION.—A citizen

of the United States providing transportation in a State of passengers or property as a common carrier for compensation with aircraft capable of carrying at least 30 passengers, under authority

granted by the appropriate State authority—

(1) may provide transportation for passengers and property

that includes through service by the citizen over its routes in

the State and in air transportation by an air carrier or foreign

air carrier; and

(2) subject to sections 41309 and 42111 of this title, may

make an agreement with an air carrier or foreign air carrier

to provide the joint transportation.

(c) PROPRIETARY OR EXCLUSIVE RIGHT NOT CONFERRED.—A

certificate issued under this chapter does not confer a proprietary

or exclusive right to use airspace, an airway of the United States,

or an air navigation facility.

§ 41102. General, temporary, and charter air transportation

certificates of air carriers

(a) ISSUANCE.—The Secretary of Transportation may issue a

certificate of public convenience and necessity to a citizen of the

United States authorizing the citizen to provide any part of the following air transportation the citizen has applied for under section

41108 of this title:

(1) air transportation as an air carrier.

(2) temporary air transportation as an air carrier for a limited period.

(3) charter air transportation as a charter air carrier.

(b) FINDINGS REQUIRED FOR ISSUANCE.—(1) Before issuing a

certificate under subsection (a) of this section, the Secretary must

find that the citizen is fit, willing, and able to provide the transportation to be authorized by the certificate and to comply with this

part and regulations of the Secretary.

(2) In addition to the findings under paragraph (1) of this subsection, the Secretary, before issuing a certificate under subsection

(a) of this section for foreign air transportation, must find that the

transportation is consistent with the public convenience and necessity.

(c) TEMPORARY CERTIFICATES.—The Secretary may issue a cer- tificate under subsection (a) of this section for interstate air trans- portation (except the transportation of passengers) or foreign air

transportation for a temporary period of time (whether the applica- tion is for permanent or temporary authority) when the Secretary

decides that a test period is desirable—

(1) to decide if the projected services, efficiencies, methods, and prices and the projected results will materialize and re- main for a sustained period of time; or

(2) to evaluate the new transportation.

(d) FOREIGN AIR TRANSPORTATION.—The Secretary shall submit each decision authorizing the provision of foreign air transportation to the President under section 41307 of this title.

§ 41103. All-cargo air transportation certificates of air car- riers

(a) APPLICATIONS.—A citizen of the United States may apply to

the Secretary of Transportation for a certificate authorizing the citizen to provide all-cargo air transportation. The application must

contain information and be in the form the Secretary by regulation

requires.

(b) ISSUANCE.—Not later than 180 days after an application for

a certificate is filed under this section, the Secretary shall issue the

certificate to a citizen of the United States authorizing the citizen, as an air carrier, to provide any part of the all-cargo air transportation applied for unless the Secretary finds that the citizen is not

fit, willing, and able to provide the all-cargo air transportation to

be authorized by the certificate and to comply with regulations of

the Secretary.
51

(c) TERMS.—The Secretary may impose terms the Secretary

considers necessary when issuing a certificate under this section.

However, the Secretary may not impose terms that restrict the

places served or prices charged by the holder of the certificate.

(d) EXEMPTIONS AND STATUS.—A citizen issued a certificate

under this section—

(1) is exempt in providing the transportation under the

certificate from the requirements of—

(A) section 41101(a)(1) of this title and regulations or

procedures prescribed under section 41101(a)(1); and

(B) other provisions of this part and regulations or

procedures prescribed under those provisions when the

Secretary finds under regulations of the Secretary that the

exemption is appropriate; and

(2) is an air carrier under this part except to the extent

the carrier is exempt under this section from a requirement of

this part.

§ 41104. Additional limitations and requirements of charter

air carriers

(a) RESTRICTIONS.—The Secretary of Transportation may pre- scribe a regulation or issue an order restricting the marketability,

flexibility, accessibility, or variety of charter air transportation provided under a certificate issued under section 41102 of this title

only to the extent required by the public interest. A regulation prescribed or order issued under this subsection may not be more restrictive than a regulation related to charter air transportation

that was in effect on October 1, 1978.

(b) SCHEDULED OPERATIONS.—

(1) IN GENERAL.—Except as provided in paragraphs (3) and

(4), an air carrier, including an indirect air carrier, may not

provide, in aircraft designed for more than 9 passenger seats, regularly scheduled charter air transportation, for which the

public is provided in advance a schedule containing the depar- ture location, departure time, and arrival location of the flight, to or from an airport that—

(A) does not have an airport operating certificate

issued under part 139 of title 14, Code of Federal Regula- tions (or any subsequent similar regulation); or

(B) has an airport operating certificate issued under

part 139 of title 14, Code of Federal Regulations (or any

subsequent similar regulation) if the airport—

(i) is a reliever airport (as defined in section

47102) and is designated as such in the national plan

of integrated airports maintained under section 47103;

and

(ii) is located within 20 nautical miles (22 statute

miles) of 3 or more airports that each annually account for at least 1 percent of the total United States

passenger enplanements and at least 2 of which are

operated by the sponsor of the reliever airport.

(2) DEFINITION.—In this paragraph, the term ‘‘regularly

scheduled charter air transportation’’ does not include operations for which the departure time, departure location, and

arrival location are specifically negotiated with the customer or

the customer’s representative.

(3) EXCEPTION.—This subsection does not apply to any airport in the State of Alaska or to any airport outside the United

States.

(4) WAIVERS.—The Secretary may waive the application of

paragraph (1)(B) in cases in which the Secretary determines

that the public interest so requires.

(c) ALASKA.—An air carrier holding a certificate issued under

section 41102 of this title may provide charter air transportation

between places in Alaska only to the extent the Secretary decides

the transportation is required by public convenience and necessity.

The Secretary may make that decision when issuing, amending, or

modifying the certificate. This subsection does not apply to a certificate issued under section 41102 to a citizen of the United States

who, before July 1, 1977—

(1) maintained a principal place of business in Alaska; and

(2) conducted air transport operations between places in

Alaska with aircraft with a certificate for gross takeoff weight

of more than 40,000 pounds.

(d) SUSPENSIONS.—(1) The Secretary shall suspend for not

more than 30 days any part of the certificate of a charter air carrier if the Secretary decides that the failure of the carrier to comply

with the requirements described in sections 41110(e) and 41112 of

this title, or a regulation or order of the Secretary under section

41110(e) or 41112, requires immediate suspension in the interest

of the rights, welfare, or safety of the public. The Secretary may

act under this paragraph without notice or a hearing.

(2) The Secretary shall begin immediately a hearing to decide

if the certificate referred to in paragraph (1) of this subsection

should be amended, modified, suspended, or revoked. Until the

hearing is completed, the Secretary may suspend the certificate for

additional periods totaling not more than 60 days. If the Secretary

decides that the carrier is complying with the requirements de- scribed in sections 41110(e) and 41112 of this title and regulations

and orders under sections 41110(e) and 41112, the Secretary immediately may end the suspension period and proceeding begun under

this subsection. However, the Secretary is not prevented from imposing a civil penalty on the carrier for violating the requirements

described in section 41110(e) or 41112 or a regulation or order

under section 41110(e) or 41112.

§ 41105. Transfers of certificates

(a) GENERAL.—A certificate issued under section 41102 of this

title may be transferred only when the Secretary of Transportation

approves the transfer as being consistent with the public interest.
52

(b) CERTIFICATION TO CONGRESS.—When a certificate is transferred, the Secretary shall certify to the Committee on Commerce,

Science, and Transportation of the Senate and the Committee on

Transportation and Infrastructure of the House of Representatives

that the transfer is consistent with the public interest. The Secretary shall include with the certification a report analyzing the effects of the transfer on—

(1) the viability of each carrier involved in the transfer;

(2) competition in the domestic airline industry; and

(3) the trade position of the United States in the international air transportation market.

§ 41106. Airlift service

(a) INTERSTATE TRANSPORTATION.—(1) Except as provided in

subsection (d) of this section, the transportation of passengers or

property by transport category aircraft in interstate air transportation obtained by the Secretary of Defense or the Secretary of a

military department through a contract for airlift service in the

United States may be provided only by an air carrier that—

(A) has aircraft in the civil reserve air fleet or offers to

place the aircraft in that fleet; and

(B) holds a certificate issued under section 41102 of this

title.

(2) The Secretary of Transportation shall act as expeditiously

as possible on an application for a certificate under section 41102

of this title to provide airlift service.

(b) TRANSPORTATION BETWEEN THE UNITED STATES AND FOR- EIGN LOCATIONS.—Except as provided in subsection (d), the transportation of passengers or property by transport category aircraft

between a place in the United States and a place outside the

United States obtained by the Secretary of Defense or the Secretary of a military department through a contract for airlift service shall be provided by an air carrier referred to in subsection (a).

(c) TRANSPORTATION BETWEEN FOREIGN LOCATIONS.—The

transportation of passengers or property by transport category aircraft between two places outside the United States obtained by the

Secretary of Defense or the Secretary of a military department

through a contract for airlift service shall be provided by an air

carrier that has aircraft in the civil reserve air fleet whenever

transportation by such an air carrier is reasonably available.

(d) EXCEPTION.—When the Secretary of Defense decides that

no air carrier holding a certificate under section 41102 is capable

of providing, and willing to provide, the airlift service, the Secretary of Defense may make a contract to provide the service with

an air carrier not having a certificate.

§ 41107. Transportation of mail

When the United States Postal Service finds that the needs of

the Postal Service require the transportation of mail by aircraft in

foreign air transportation or between places in Alaska, in addition

to the transportation of mail authorized under certificates in effect,

the Postal Service shall certify that finding to the Secretary of

Transportation with a statement about the additional transportation and facilities necessary to provide the additional transportation. A copy of each certification and statement shall be posted

for at least 20 days in the office of the Secretary. After notice and

an opportunity for a hearing, the Secretary shall issue a new certificate under section 41102 of this title, or amend or modify an existing certificate under section 41110(a)(2)(A) of this title, to provide the additional transportation and facilities if the Secretary

finds the additional transportation is required by the public convenience and necessity.

§ 41108. Applications for certificates

(a) FORM, CONTENTS, AND PROOF OF SERVICE.—To be issued a

certificate of public convenience and necessity under section 41102

of this title, a citizen of the United States must apply to the Secretary of Transportation. The application must—

(1) be in the form and contain information required by regulations of the Secretary; and

(2) be accompanied by proof of service on interested persons as required by regulations of the Secretary and on each

community that may be affected by the issuance of the certificate.

(b) NOTICE, RESPONSE, AND ACTIONS ON APPLICATIONS.—(1)

When an application is filed, the Secretary shall post a notice of

the application in the office of the Secretary and give notice of the

application to other persons as required by regulations of the Secretary. An interested person may file a response with the Secretary

opposing or supporting the issuance of the certificate. Not later

than 90 days after the application is filed, the Secretary shall—

(A) provide an opportunity for a public hearing on the application;

(B) begin the procedure under section 41111 of this title;

or

(C) dismiss the application on its merits. (2) An order of dismissal issued by the Secretary under para- graph (1)(C) of this subsection is a final order and may be reviewed

judicially under section 46110 of this title.

(3) If the Secretary provides an opportunity for a hearing

under paragraph (1)(A) of this subsection, an initial or rec- ommended decision shall be issued not later than 150 days after

the date the Secretary provides the opportunity. The Secretary

shall issue a final order on the application not later than 90 days

after the decision is issued. However, if the Secretary does not act

within the 90-day period, the initial or recommended decision on an

application to provide—

(A) interstate air transportation is a final order and may

be reviewed judicially under section 46110 of this title; and

(B) foreign air transportation shall be submitted to the
53

President under section 41307 of this title.

(4) If the Secretary acts under paragraph (1)(B) of this sub- section, the Secretary shall issue a final order on the application

not later than 180 days after beginning the procedure on the appli- cation.

(5) If a citizen applying for a certificate does not meet the procedural schedule adopted by the Secretary in a proceeding, the Secretary may extend the period for acting under paragraphs (3) and

(4) of this subsection by a period equal to the period of delay

caused by the citizen. In addition to an extension under this paragraph, an initial or recommended decision under paragraph (3) of

this subsection may be delayed for not more than 30 days in extraordinary circumstances.

(c) PROOF REQUIREMENTS.—(1) A citizen applying for a certificate must prove that the citizen is fit, willing, and able to provide

the transportation referred to in section 41102 of this title and to

comply with this part.

(2) A person opposing a citizen applying for a certificate must

prove that the transportation referred to in section 41102(b)(2) of

this title is not consistent with the public convenience and necessity. The transportation is deemed to be consistent with the public

convenience and necessity unless the Secretary finds, by a preponderance of the evidence, that the transportation is not consistent

with the public convenience and necessity.

§ 41109. Terms of certificates

(a) GENERAL.—(1) Each certificate issued under section 41102

of this title shall specify the type of transportation to be provided.

(2) The Secretary of Transportation—

(A) may prescribe terms for providing air transportation

under the certificate that the Secretary finds may be required

in the public interest; but

(B) may not prescribe a term preventing an air carrier

from adding or changing schedules, equipment, accommodations, and facilities for providing the authorized transportation

to satisfy business development and public demand.

(3) A certificate issued under section 41102 of this title to provide foreign air transportation shall specify the places between

which the air carrier is authorized to provide the transportation

only to the extent the Secretary considers practicable and otherwise only shall specify each general route to be followed. The

Secretary shall authorize an air carrier holding a certificate to

provide foreign air transportation to handle and transport mail of

countries other than the United States.

(4) A certificate issued under section 41102 of this title to pro- vide foreign charter air transportation shall specify the places be- tween which the air carrier is authorized to provide the transpor- tation only to the extent the Secretary considers practicable and

otherwise only shall specify each geographical area in which, or be- tween which, the transportation may be provided.

(5) As prescribed by regulation by the Secretary, an air carrier

other than a charter air carrier may provide charter trips or other

special services without regard to the places named or type of

transportation specified in its certificate. (b) MODIFYING TERMS.—(1) An air carrier may file with the

Secretary an application to modify any term of its certificate issued

under section 41102 of this title to provide interstate or foreign air

transportation. Not later than 60 days after an application is filed,

the Secretary shall—

(A) provide the carrier an opportunity for an oral evi- dentiary hearing on the record; or

(B) begin to consider the application under section 41111

of this title.

(2) The Secretary shall modify each term the Secretary finds

to be inconsistent with the criteria under section 40101(a) and (b)

of this title.

(3) An application under this subsection may not be dismissed

under section 41108(b)(1)(C) of this title.

§ 41110. Effective periods and amendments, modifications, suspensions, and revocations of certificates

(a) GENERAL.—(1) Each certificate issued under section 41102

of this title is effective from the date specified in it and remains

in effect until—

(A) the Secretary of Transportation suspends or revokes

the certificate under this section;

(B) the end of the period the Secretary specifies for an air

carrier having a certificate of temporary authority issued

under section 41102(a)(2) of this title; or

(C) the Secretary certifies that transportation is no longer

being provided under a certificate.

(2) On application or on the initiative of the Secretary and

after notice and an opportunity for a hearing or, except as provided

in paragraph (4) of this subsection, under section 41111 of this

title, the Secretary may—

(A) amend, modify, or suspend any part of a certificate if

the Secretary finds the public convenience and necessity require amendment, modification, or suspension; and

(B) revoke any part of a certificate if the Secretary finds

that the holder of the certificate intentionally does not comply

with this chapter, sections 41308–41310(a), 41501, 41503,

41504, 41506, 41510, 41511, 41701, 41702, 41705–41709,

41711, 41712, and 41731–41742, chapter 419, subchapter II of

chapter 421, and section 46301(b) of this title, a regulation or

order of the Secretary under any of those provisions, or a term

of its certificate.

(3) The Secretary may revoke a certificate under paragraph

(2)(B) of this subsection only if the holder of the certificate does not

comply, within a reasonable time the Secretary specifies, with an

order to the holder requiring compliance.
54

(4) A certificate to provide foreign air transportation may not

be amended, modified, suspended, or revoked under section 41111

of this title if the holder of the certificate requests an oral evidentiary hearing or the Secretary finds, under all the facts and circumstances, that the hearing is required in the public interest.

(b) ALL-CARGO AIR TRANSPORTATION.—The Secretary may

order that a certificate issued under section 41103 of this title authorizing all-cargo air transportation is ineffective if, after notice

and an opportunity for a hearing, the Secretary finds that the

transportation is not provided to the minimum extent specified by

the Secretary.

(c) FOREIGN AIR TRANSPORTATION.—(1) Notwithstanding subsection (a)(2)–(4) of this section, after notice and a reasonable opportunity for the affected air carrier to present its views, but without a hearing, the Secretary may suspend or revoke the authority

of an air carrier to provide foreign air transportation to a place

under a certificate issued under section 41102 of this title if the

carrier—

(A) notifies the Secretary, under section 41734(a) of this

title or a regulation of the Secretary, that it intends to suspend

all transportation to that place; or

(B) does not provide regularly scheduled transportation to

the place for 90 days immediately before the date the Secretary

notifies the carrier of the action the Secretary proposes.

(2) Paragraph (1)(B) of this subsection does not apply to a place

provided seasonal transportation comparable to the transportation

provided during the prior year.

(d) TEMPORARY CERTIFICATES.—On application or on the initiative of the Secretary, the Secretary may—

(1) review the performance of an air carrier issued a certificate under section 41102(c) of this title on the basis that the

air carrier will provide innovative or low-priced air transpor- tation under the certificate; and

(2) amend, modify, suspend, or revoke the certificate or authority under subsection (a)(2) or (c) of this section if the air

carrier has not provided, or is not providing, the transpor- tation.

(e) CONTINUING REQUIREMENTS.—(1) To hold a certificate

issued under section 41102 of this title, an air carrier must continue to be fit, willing, and able to provide the transportation authorized by the certificate and to comply with this part and regulations of the Secretary.

(2) After notice and an opportunity for a hearing, the Secretary

shall amend, modify, suspend, or revoke any part of a certificate

issued under section 41102 of this title if the Secretary finds that

the air carrier—

(A) is not fit, willing, and able to provide the transportation authorized by the certificate and to comply with this

part and regulations of the Secretary; or

(B) does not file reports necessary for the Secretary to

decide if the carrier is complying with the requirements of

clause (A) of this paragraph. (f) ILLEGAL IMPORTATION OF CONTROLLED SUBSTANCES.—The

Secretary—

(1) in consultation with appropriate departments, agencies, and instrumentalities of the United States Government, shall

reexamine immediately the fitness of an air carrier that—

(A) violates the laws and regulations of the United

States related to the illegal importation of a controlled

substance; or

(B) does not adopt available measures to prevent the

illegal importation of a controlled substance into the

United States on its aircraft; and

(2) when appropriate, shall amend, modify, suspend, or re- voke the certificate of the carrier issued under this chapter.

(g) RESPONSES.—An interested person may file a response with

the Secretary opposing or supporting the amendment, modification,

suspension, or revocation of a certificate under subsection (a) of

this section.

§ 41111. Simplified procedure to apply for, amend, modify,

suspend, and transfer certificates

(a) GENERAL REQUIREMENTS.—(1) The Secretary of Transportation shall prescribe regulations that simplify the procedure for—

(A) acting on an application for a certificate to provide air

transportation under section 41102 of this title; and

(B) amending, modifying, suspending, or transferring any

part of that certificate under section 41105 or 41110(a) or (c)

of this title.

(2) Regulations under this section shall provide for notice and

an opportunity for each interested person to file appropriate written evidence and argument. An oral evidentiary hearing is not required to be provided under this section.

(b) WHEN SIMPLIFIED PROCEDURE USED.—The Secretary may

use the simplified procedure to act on an application for a certificate to provide air transportation under section 41102 of this title,

or to amend, modify, suspend, or transfer any part of that certificate under section 41105 or 41110(a) or (c) of this title, when the

Secretary decides the use of the procedure is in the public interest.

(c) CONTENTS.—(1) To the extent the Secretary finds practicable, regulations under this section shall include each standard

the Secretary will apply when—

(A) deciding whether to use the simplified procedure; and

(B) making a decision on an action in which the procedure

is used.

(2) The regulations may provide that written evidence and ar- gument may be filed under section 41108(b) of this title as a part

of a response opposing or supporting the issuance of a certificate.
55

§ 41112. Liability insurance and financial responsibility

(a) LIABILITY INSURANCE.—The Secretary of Transportation

may issue a certificate to a citizen of the United States to provide

air transportation as an air carrier under section 41102 of this title

only if the citizen complies with regulations and orders of the

Secretary governing the filing of an insurance policy or selfinsurance plan approved by the Secretary. The policy or plan

must be suffi- cient to pay, not more than the amount of the

insurance, for bodily injury to, or death of, an individual or for

loss of, or damage to, property of others, resulting from the

operation or maintenance of the aircraft under the certificate. A

certificate does not remain in effect unless the carrier complies

with this subsection.

(b) FINANCIAL RESPONSIBILITY.—To protect passengers and

shippers using an aircraft operated by an air carrier issued a certificate under section 41102 of this title, the Secretary may require

the carrier to file a performance bond or equivalent security in the

amount and on terms the Secretary prescribes. The bond or security must be sufficient to ensure the carrier adequately will pay the

passengers and shippers when the transportation the carrier

agrees to provide is not provided. The Secretary shall prescribe the

amounts to be paid under this subsection.

§ 41113. Plans to address needs of families of passengers involved in aircraft accidents

(a) SUBMISSION OF PLANS.—Each air carrier holding a certificate of public convenience and necessity under section 41102 of this

title shall submit to the Secretary and the Chairman of the National Transportation Safety Board a plan for addressing the needs

of the families of passengers involved in any aircraft accident involving an aircraft of the air carrier and resulting in a major loss

of life.

(b) CONTENTS OF PLANS.—A plan to be submitted by an air carrier under subsection (a) shall include, at a minimum, the fol- lowing:

(1) A plan for publicizing a reliable, toll-free telephone

number, and for providing staff, to handle calls from the fami- lies of the passengers.

(2) A process for notifying the families of the passengers, before providing any public notice of the names of the passengers, either by utilizing the services of the organization designated for the accident under section 1136(a)(2) of this title or

the services of other suitably trained individuals.

(3) An assurance that the notice described in paragraph (2)

will be provided to the family of a passenger as soon as the air

carrier has verified that the passenger was aboard the aircraft

(whether or not the names of all of the passengers have been

verified) and, to the extent practicable, in person.

(4) An assurance that the air carrier will provide to the director of family support services designated for the accident

under section 1136(a)(1) of this title, and to the organization

designated for the accident under section 1136(a)(2) of this

title, immediately upon request, a list (which is based on the

best available information at the time of the request) of the

names of the passengers aboard the aircraft (whether or not

such names have been verified), and will periodically update

the list.

(5) An assurance that the family of each passenger will be

consulted about the disposition of all remains and personal effects of the passenger within the control of the air carrier. (6) An assurance that if requested by the family of a pas- senger, any possession of the passenger within the control of

the air carrier (regardless of its condition) will be returned to

the family unless the possession is needed for the accident in- vestigation or any criminal investigation.

(7) An assurance that any unclaimed possession of a pas- senger within the control of the air carrier will be retained by

the air carrier for at least 18 months. (8) An assurance that the family of each passenger will be

consulted about construction by the air carrier of any monu- ment to the passengers, including any inscription on the monu- ment.

(9) An assurance that the treatment of the families of non- revenue passengers (and any other victim of the accident) will

be the same as the treatment of the families of revenue pas- sengers.

(10) An assurance that the air carrier will work with any

organization designated under section 1136(a)(2) of this title on

an ongoing basis to ensure that families of passengers receive

an appropriate level of services and assistance following each

accident.

(11) An assurance that the air carrier will provide reason- able compensation to any organization designated under section 1136(a)(2) of this title for services provided by the organization.

(12) An assurance that the air carrier will assist the family

of a passenger in traveling to the location of the accident and

provide for the physical care of the family while the family is

staying at such location.

(13) An assurance that the air carrier will commit sufficient resources to carry out the plan. (14) An assurance that, upon request of the family of a

passenger, the air carrier will inform the family of whether the

passenger’s name appeared on a preliminary passenger manifest for the flight involved in the accident.

(15) An assurance that the air carrier will provide adequate training to the employees and agents of the carrier to

meet the needs of survivors and family members following an

accident.

(16) An assurance that the air carrier, in the event that
56

the air carrier volunteers assistance to United States citizens

within the United States with respect to an aircraft accident

outside the United States involving major loss of life, will consult with the Board and the Department of State on the provision of the assistance.

(17)(A) An assurance that, in the case of an accident that

results in significant damage to a manmade structure or other

property on the ground that is not government-owned, the air

carrier will promptly provide notice, in writing, to the extent

practicable, directly to the owner of the structure or other

property about liability for any property damage and means for

obtaining compensation.

(B) At a minimum, the written notice shall advise an

owner (i) to contact the insurer of the property as the authoritative source for information about coverage and compensation;

(ii) to not rely on unofficial information offered by air carrier

representatives about compensation by the air carrier for accident-site property damage; and (iii) to obtain photographic or

other detailed evidence of property damage as soon as possible

after the accident, consistent with restrictions on access to the

accident site.

(18) An assurance that, in the case of an accident in which

the National Transportation Safety Board conducts a public

hearing or comparable proceeding at a location greater than 80

miles from the accident site, the air carrier will ensure that

the proceeding is made available simultaneously by electronic

means at a location open to the public at both the origin city

and destination city of the air carrier’s flight if that city is located in the United States.

(c) CERTIFICATE REQUIREMENT.—The Secretary may not approve an application for a certificate of public convenience and necessity under section 41102 of this title unless the applicant has in- cluded as part of such application a plan that meets the requirements of subsection (b).

(d) LIMITATION ON LIABILITY.—An air carrier shall not be liable

for damages in any action brought in a Federal or State court arising out of the performance of the air carrier in preparing or providing a passenger list, or in providing information concerning a

preliminary passenger manifest, pursuant to a plan submitted by

the air carrier under subsection (b), unless such liability was

caused by conduct of the air carrier which was grossly negligent or

which constituted intentional misconduct.

(e) AIRCRAFT ACCIDENT AND PASSENGER DEFINED.—In this section, the terms ‘‘aircraft accident’’ and ‘‘passenger’’ have the meanings such terms have in section 1136 of this title.

(f) STATUTORY CONSTRUCTION.—Nothing in this section may be

construed as limiting the actions that an air carrier may take, or

the obligations that an air carrier may have, in providing assistance to the families of passengers involved in an aircraft accident.

CHAPTER 413—FOREIGN AIR

TRANSPORTATION

Sec.

41301. Requirement for a permit.

41302. Permits of foreign air carriers.

41303. Transfers of permits.

41304. Effective periods and amendments, modifications, suspensions, and revocations of permits.

41305. Applications for permits. 41306. Simplified procedure to apply for, amend, modify, and suspend permits.

41307. Presidential review of actions about foreign air transportation.

41308. Exemption from the antitrust laws. 41309. Cooperative agreements and requests.

41310. Discriminatory practices. 41311. Gambling restrictions. 41312. Ending or suspending foreign air transportation.

41313. Plans to address needs of families of passengers involved in foreign air carrier accidents.

§ 41301. Requirement for a permit

A foreign air carrier may provide foreign air transportation

only if the foreign air carrier holds a permit issued under this

chapter authorizing the foreign air transportation.

§ 41302. Permits of foreign air carriers

The Secretary of Transportation may issue a permit to a person (except a citizen of the United States) authorizing the person

to provide foreign air transportation as a foreign air carrier if the

Secretary finds that—

(1) the person is fit, willing, and able to provide the foreign

air transportation to be authorized by the permit and to comply with this part and regulations of the Secretary; and

(2)(A) the person is qualified, and has been designated by

the government of its country, to provide the foreign air transportation under an agreement with the United States Government; or

(B) the foreign air transportation to be provided under the

permit will be in the public interest.

§ 41303. Transfers of permits

A permit issued under section 41302 of this title may be transferred only when the Secretary of Transportation approves the

transfer because the transfer is in the public interest.

§ 41304. Effective periods and amendments, modifications,

suspensions, and revocations of permits

(a) GENERAL.—The Secretary of Transportation may prescribe

the period during which a permit issued under section 41302 of

this title is in effect. After notice and an opportunity for a hearing,

the Secretary may amend, modify, suspend, or revoke the permit
57

if the Secretary finds that action to be in the public interest.

(b) SUSPENSIONS AND RESTRICTIONS.—Without a hearing, but

subject to the approval of the President, the Secretary—

(1) may suspend summarily the permits of foreign air carriers of a foreign country, or amend, modify, or limit the operations of the foreign air carriers under the permits, when the

Secretary finds—

(A) the action is in the public interest; and

(B) the government, an aeronautical authority, or a

foreign air carrier of the foreign country, over the objection

of the United States Government, has—

(i) limited or denied the operating rights of an air

carrier; or

(ii) engaged in unfair, discriminatory, or restrictive practices that have a substantial adverse competitive impact on an air carrier related to air transportation to, from, through, or over the territory of the

foreign country; and

(2) to make this subsection effective, may restrict operations between the United States and the foreign country by

a foreign air carrier of a third country.

(c) ILLEGAL IMPORTATION OF CONTROLLED SUBSTANCES.—The

Secretary—

(1) in consultation with appropriate departments, agencies,

and instrumentalities of the Government, shall reexamine

immediately the fitness of a foreign air carrier that— (A) violates the laws and regulations of the United

States related to the illegal importation of a controlled

substance; or

(B) does not adopt available measures to prevent the

illegal importation of a controlled substance into the

United States on its aircraft; and

(2) when appropriate, shall amend, modify, suspend, or

revoke the permit of the carrier issued under this chapter.

(d) RESPONSES.—An interested person may file a response with

the Secretary opposing or supporting the amendment, modification,

suspension, or revocation of a permit under subsection (a) of this

section.

§ 41305. Applications for permits

(a) FORM, CONTENTS, NOTICE, RESPONSE, AND ACTIONS ON APPLICATIONS.—(1) A person must apply in writing to the Secretary

of Transportation to be issued a permit under section 41302 of this

title. The Secretary shall prescribe regulations to require that the

application be— (A) verified;

(B) in a certain form and contain certain information;

(C) served on interested persons; and

(D) accompanied by proof of service on those persons.

(2) When an application is filed, the Secretary shall post a

notice of the application in the office of the Secretary and give

notice of the application to other persons as required by regulations

of the Secretary. An interested person may file a response with the

Secretary opposing or supporting the issuance of the permit. The

Secretary shall act on an application as expeditiously as possible.

(b) TERMS.—The Secretary may impose terms for providing

foreign air transportation under the permit that the Secretary

finds may be required in the public interest.

§ 41306. Simplified procedure to apply for, amend, modify,

and suspend permits

(a) REGULATIONS.—The Secretary of Transportation shall prescribe regulations that simplify the procedure for—

(1) acting on an application for a permit to provide foreign

air transportation under section 41302 of this title; and

(2) amending, modifying, or suspending any part of that

permit under section 41304(a) or (b) of this title.

(b) NOTICE AND OPPORTUNITY TO RESPOND.—Regulations

under this section shall provide for notice and an opportunity for

each interested person to file appropriate written evidence and argument. An oral evidentiary hearing is not required to be provided

under this section.

§ 41307. Presidential review of actions about foreign air

transportation

The Secretary of Transportation shall submit to the President

for review each decision of the Secretary to issue, deny, amend,

modify, suspend, revoke, or transfer a certificate issued under section 41102 of this title authorizing an air carrier, or a permit

issued under section 41302 of this title authorizing a foreign air

carrier, to provide foreign air transportation. The President may

disapprove the decision of the Secretary only if the reason for disapproval is based on foreign relations or national defense considerations that are under the jurisdiction of the President. The President may not disapprove a decision of the Secretary if the reason

is economic or related to carrier selection. A decision of the

Secretary—

(1) is void if the President disapproves the decision and

publishes the reasons (to the extent allowed by national secu- rity) for disapproval not later than 60 days after it is sub- mitted to the President; or

(2)(A) takes effect as a decision of the Secretary if the

President does not disapprove the decision not later than 60

days after the decision is submitted to the President; and

(B) when effective, may be reviewed judicially under sec- tion 46110 of this title.

§ 41308. Exemption from the antitrust laws

(a) DEFINITION.—In this section, ‘‘antitrust laws’’ has the same
58

meaning given that term in the first section of the Clayton Act (15

U.S.C. 12).

(b) EXEMPTION AUTHORIZED.—When the Secretary of Transportation decides it is required by the public interest, the Secretary,

as part of an order under section 41309 or 42111 of this title, may

exempt a person affected by the order from the antitrust laws to

the extent necessary to allow the person to proceed with the transaction specifically approved by the order and with any transaction

necessarily contemplated by the order.

(c) EXEMPTION REQUIRED.—In an order under section 41309 of

this title approving an agreement, request, modification, or cancellation, the Secretary, on the basis of the findings required under

section 41309(b)(1), shall exempt a person affected by the order

from the antitrust laws to the extent necessary to allow the person

to proceed with the transaction specifically approved by the order

and with any transaction necessarily contemplated by the order.

§ 41309. Cooperative agreements and requests

(a) FILING.—An air carrier or foreign air carrier may file with

the Secretary of Transportation a true copy of or, if oral, a true and

complete memorandum of, an agreement (except an agreement related to interstate air transportation), or a request for authority to

discuss cooperative arrangements (except arrangements related to

interstate air transportation), and any modification or cancellation

of an agreement, between the air carrier or foreign air carrier and

another air carrier, a foreign carrier, or another carrier.

(b) APPROVAL.—The Secretary of Transportation shall approve

an agreement, request, modification, or cancellation referred to in

subsection (a) of this section when the Secretary finds it is not adverse to the public interest and is not in violation of this part.

However, the Secretary shall disapprove—

(1) or, after periodic review, end approval of, an agreement, request, modification, or cancellation, that substantially

reduces or eliminates competition unless the Secretary finds

that—

(A) the agreement, request, modification, or

cancellation is necessary to meet a serious transportation

need or to achieve important public benefits

(including international comity and foreign policy

considerations); and

(B) the transportation need cannot be met or those

benefits cannot be achieved by reasonably available alternatives that are materially less anticompetitive; or

(2) an agreement that—

(A) is between an air carrier not directly operating air- craft in foreign air transportation and a carrier subject to

subtitle IV of this title; and

(B) governs the compensation the carrier may receive

for the transportation.

(c) NOTICE AND OPPORTUNITY TO RESPOND OR FOR HEARING.—

(1) When an agreement, request, modification, or cancellation is

filed, the Secretary of Transportation shall give the Attorney Gen- eral and the Secretary of State written notice of, and an opportunity to submit written comments about, the filing. On the initiative of the Secretary of Transportation or on request of the Attorney General or Secretary of State, the Secretary of Transportation

may conduct a hearing to decide whether an agreement, request,

modification, or cancellation is consistent with this part whether or

not it was approved previously.

(2) In a proceeding before the Secretary of Transportation applying standards under subsection (b)(1) of this section, a party opposing an agreement, request, modification, or cancellation has the

burden of proving that it substantially reduces or eliminates competition and that less anticompetitive alternatives are available.

The party defending the agreement, request, modification, or cancellation has the burden of proving the transportation need or public benefits.

(3) The Secretary of Transportation shall include the findings

required by subsection (b)(1) of this section in an order of the Secretary approving or disapproving an agreement, request, modification, or cancellation.

§ 41310. Discriminatory practices

(a) PROHIBITION.—An air carrier or foreign air carrier may not

subject a person, place, port, or type of traffic in foreign air transportation to unreasonable discrimination.

(b) REVIEW AND NEGOTIATION OF DISCRIMINATORY FOREIGN

CHARGES.—(1) The Secretary of Transportation shall survey

charges imposed on an air carrier by the government of a foreign

country or another foreign entity for the use of airport property or

airway property in foreign air transportation. If the Secretary of

Transportation decides that a charge is discriminatory, the Secretary promptly shall report the decision to the Secretary of State.

The Secretaries of State and Transportation promptly shall begin

negotiations with the appropriate government to end the discrimination. If the discrimination is not ended in a reasonable time

through negotiation, the Secretary of Transportation shall establish

a compensating charge equal to the discriminatory charge. With

the approval of the Secretary of State, the Secretary of the Treasury shall impose the compensating charge on a foreign air carrier

of that country as a condition to accepting the general declaration

of the aircraft of the foreign air carrier when it lands or takes off. (2) The Secretary of the Treasury shall maintain an account to

credit money collected under paragraph (1) of this subsection. An

air carrier shall be paid from the account an amount certified by

the Secretary of Transportation to compensate the air carrier for

the discriminatory charge paid to the government.

(c) ACTIONS AGAINST DISCRIMINATORY ACTIVITY.—(1) The Secretary of Transportation may take actions the Secretary considers

are in the public interest to eliminate an activity of a government
59

of a foreign country or another foreign entity, including a foreign

air carrier, when the Secretary, on the initiative of the Secretary

or on complaint, decides that the activity—

(A) is an unjustifiable or unreasonable discriminatory, predatory, or anticompetitive practice against an air carrier; or

(B) imposes an unjustifiable or unreasonable restriction on

access of an air carrier to a foreign market.

(2) The Secretary of Transportation may deny, amend, modify, suspend, revoke, or transfer under paragraph (1) of this subsection

a foreign air carrier permit or tariff under section 41302, 41303, 41304(a), 41504(c), 41507, or 41509 of this title.

(d) FILING OF, AND ACTING ON, COMPLAINTS.—(1) An air carrier, computer reservations system firm, or a department, agency,

or instrumentality of the United States Government may file a

complaint under subsection (c) or (g) of this section with the Secretary of Transportation. The Secretary shall approve, deny, or dismiss the complaint, set the complaint for a hearing or investigation, or begin another proceeding proposing remedial action not

later than 60 days after receiving the complaint. The Secretary

may extend the period for acting for additional periods totaling not

more than 30 days if the Secretary decides that with additional

time it is likely that a complaint can be resolved satisfactorily

through negotiations with the government of the foreign country or

foreign entity. The Secretary must act not later than 90 days after

receiving the complaint. However, the Secretary may extend this

90-day period for not more than an additional 90 days if, on the

last day of the initial 90-day period, the Secretary finds that—

(A) negotiations with the government have progressed to a

point that a satisfactory resolution of the complaint appears

imminent;

(B) an air carrier or computer reservations system firm

has not been subjected to economic injury by the government

or entity as a result of filing the complaint; and

(C) the public interest requires additional time before the

Secretary acts on the complaint.

(2) In carrying out paragraph (1) of this subsection and sub- section (c) of this section, the Secretary of Transportation shall—

(A) solicit the views of the Secretaries of Commerce and

State and the United States Trade Representative;

(B) give an affected air carrier or foreign air carrier reasonable notice and an opportunity to submit written evidence

and arguments within the time limits of this subsection; and

(C) submit to the President under section 41307 or

41509(f) of this title actions proposed by the Secretary of

Transportation. (e) REVIEW.—(1) The Secretaries of State, the Treasury, and

Transportation and the heads of other departments, agencies, and

instrumentalities of the Government shall keep under review, to

the extent of each of their jurisdictions, each form of discrimination

or unfair competitive practice to which an air carrier is subject

when providing foreign air transportation or a computer reservations system firm is subject when providing services with respect

to airline service. Each Secretary and head shall—

(A) take appropriate action to eliminate any discrimination

or unfair competitive practice found to exist; and

(B) request Congress to enact legislation when the authority to eliminate the discrimination or unfair practice is inadequate.

(2) The Secretary of Transportation shall report to Congress

annually on each action taken under paragraph (1) of this subsection and on the continuing program to eliminate discrimination

and unfair competitive practices. The Secretaries of State and the

Treasury each shall give the Secretary of Transportation information necessary to prepare the report.

(f) REPORTS.—Not later than 30 days after acting on a complaint under this section, the Secretary of Transportation shall report to the Committee on Transportation and Infrastructure of the

House of Representatives and the Committee on Commerce,

Science, and Transportation of the Senate on action taken under

this section on the complaint.

(g) ACTIONS AGAINST DISCRIMINATORY ACTIVITY BY FOREIGN

CRS SYSTEMS.—The Secretary of Transportation may take such actions as the Secretary considers are in the public interest to eliminate an activity of a foreign air carrier that owns or markets a

computer reservations system, or of a computer reservations system firm whose principal offices are located outside the United

States, when the Secretary, on the initiative of the Secretary or on

complaint, decides that the activity, with respect to airline

service—

(1) is an unjustifiable or unreasonable discriminatory,

predatory, or anticompetitive practice against a computer reservations system firm whose principal offices are located inside

the United States; or

(2) imposes an unjustifiable or unreasonable restriction on

access of such a computer reservations system to a foreign

market.

§ 41311. Gambling restrictions

(a) IN GENERAL.—An air carrier or foreign air carrier may not

install, transport, or operate, or permit the use of, any gambling

device on board an aircraft in foreign air transportation.

(b) DEFINITION.—In this section, the term ‘‘gambling device’’

means any machine or mechanical device (including gambling ap- plications on electronic interactive video systems installed on board

aircraft for passenger use)—

(1) which when operated may deliver, as the result of the

application of an element of chance, any money or property; or

(2) by the operation of which a person may become entitled

to receive, as the result of the application of an element of

chance, any money or property.
60

§ 41312. Ending or suspending foreign air transportation

(a) GENERAL.—An air carrier holding a certificate issued under

section 41102 of this title to provide foreign air transportation—

(1) may end or suspend the transportation to a place under

the certificate only when the carrier gives at least 90 days notice of its intention to end or suspend the transportation to the

Secretary of Transportation, any community affected by that

decision, and the State authority of the State in which a community is located; and

(2) if it is the only air carrier holding a certificate to provide non-stop or single-plane foreign air transportation between 2 places, may end or suspend the transportation between those places only when the carrier gives at least 60 days

notice of its intention to end or suspend the transportation to

the Secretary and each community directly affected by that decision.

(b) TEMPORARY SUSPENSION.—The Secretary may authorize the

temporary suspension of foreign air transportation under subsection (a) of this section when the Secretary finds the suspension

is in the public interest.

§ 41313. Plans to address needs of families of passengers involved in foreign air carrier accidents

(a) DEFINITIONS.—In this section, the following definitions

apply:

(1) AIRCRAFT ACCIDENT.—The term ‘‘aircraft accident’’

means any aviation disaster, regardless of its cause or sus- pected cause, that occurs within the United States; and

(2) PASSENGER.—The term ‘‘passenger’’ has the meaning

given such term by section 1136.

(b) SUBMISSION OF PLANS.—A foreign air carrier providing foreign air transportation under this chapter shall transmit to the

Secretary of Transportation and the Chairman of the National

Transportation Safety Board a plan for addressing the needs of the

families of passengers involved in an aircraft accident that involves

an aircraft under the control of the foreign air carrier and results

in a major loss of life.

(c) CONTENTS OF PLANS.—To the extent permitted by foreign

law which was in effect on the date of the enactment of this section, a plan submitted by a foreign air carrier under subsection (b)

shall include the following:

(1) TELEPHONE NUMBER.—A plan for publicizing a reliable,

toll-free telephone number and staff to take calls to such number from families of passengers involved in an aircraft accident

that involves an aircraft under the control of the foreign air

carrier and results in a significant loss of life.

(2) NOTIFICATION OF FAMILIES.—A process for notifying, in

person to the extent practicable, the families of passengers involved in an aircraft accident that involves an aircraft under

the control of the foreign air carrier and results in a significant

loss of life before providing any public notice of the names of

such passengers. Such notice shall be provided by using the

services of—

(A) the organization designated for the accident under

section 1136(a)(2); or

(B) other suitably trained individuals.

(3) NOTICE PROVIDED AS SOON AS POSSIBLE.—An assurance

that the notice required by paragraph (2) shall be provided as

soon as practicable after the foreign air carrier has verified the

identity of a passenger on the foreign aircraft, whether or not

the names of all of the passengers have been verified.

(4) LIST OF PASSENGERS.—An assurance that the foreign

air carrier shall provide, immediately upon request, and update a list (based on the best available information at the time

of the request) of the names of the passengers aboard the aircraft (whether or not such names have been verified), to—

(A) the director of family support services designated

for the accident under section 1136(a)(1); and

(B) the organization designated for the accident under

section 1136(a)(2).

(5) CONSULTATION REGARDING DISPOSITION OF REMAINS

AND EFFECTS.—An assurance that the family of each passenger

will be consulted about the disposition of any remains and personal effects of the passenger that are within the control of the

foreign air carrier.

(6) RETURN OF POSSESSIONS.—An assurance that, if requested by the family of a passenger, any possession (regardless of its condition) of that passenger that is within the control of the foreign air carrier will be returned to the family unless the possession is needed for the accident investigation or

a criminal investigation.

(7) UNCLAIMED POSSESSIONS RETAINED.—An assurance

that any unclaimed possession of a passenger within the control of the foreign air carrier will be retained by the foreign air

carrier for not less than 18 months after the date of the acci- dent.

(8) MONUMENTS.—An assurance that the family of each

passenger will be consulted about construction by the foreign

air carrier of any monument to the passengers built in the

United States, including any inscription on the monument.

(9) EQUAL TREATMENT OF PASSENGERS.—An assurance that

the treatment of the families of nonrevenue passengers will be

the same as the treatment of the families of revenue

passengers.

(10) SERVICE AND ASSISTANCE TO FAMILIES OF PASSEN- GERS.—An assurance that the foreign air carrier will work with

any organization designated under section 1136(a)(2) on an ongoing basis to ensure that families of passengers receive an appropriate level of services and assistance following an accident.
61

(11) COMPENSATION TO SERVICE ORGANIZATIONS.—An assurance that the foreign air carrier will provide reasonable

compensation to any organization designated under section

1136(a)(2) for services and assistance provided by the organization.

(12) TRAVEL AND CARE EXPENSES.—An assurance that the

foreign air carrier will assist the family of any passenger in

traveling to the location of the accident and provide for the

physical care of the family while the family is staying at such

location.

(13) RESOURCES FOR PLAN.—An assurance that the foreign

air carrier will commit sufficient resources to carry out the

plan.

(14) SUBSTITUTE MEASURES.—If a foreign air carrier does

not wish to comply with paragraph (10), (11), or (12), a description of proposed adequate substitute measures for the requirements of each paragraph with which the foreign air carrier

does not wish to comply.

(15) TRAINING OF EMPLOYEES AND AGENTS.—An assurance

that the foreign air carrier will provide adequate training to

the employees and agents of the carrier to meet the needs of

survivors and family members following an accident.

(16) CONSULTATION ON CARRIER RESPONSE NOT COVERED BY

PLAN.—An assurance that the foreign air carrier, in the event

that the foreign air carrier volunteers assistance to United

States citizens within the United States with respect to an air- craft accident outside the United States involving major loss of

life, the foreign air carrier will consult with the Board and the

Department of State on the provision of the assistance.

(17) NOTICE CONCERNING LIABILITY FOR MANMADE STRUCTURES.—

(A) IN GENERAL.—An assurance that, in the case of an

accident that results in significant damage to a manmade

structure or other property on the ground that is not government-owned, the foreign air carrier will promptly provide notice, in writing, to the extent practicable, directly to

the owner of the structure or other property about liability

for any property damage and means for obtaining compensation.

(B) MINIMUM CONTENTS.—At a minimum, the written

notice shall advise an owner (i) to contact the insurer of

the property as the authoritative source for information

about coverage and compensation; (ii) to not rely on unofficial information offered by foreign air carrier representatives about compensation by the foreign air carrier for accident-site property damage; and (iii) to obtain photographic

or other detailed evidence of property damage as soon as

possible after the accident, consistent with restrictions on

access to the accident site.

(18) SIMULTANEOUS ELECTRONIC TRANSMISSION OF NTSB

HEARING.—An assurance that, in the case of an accident in

which the National Transportation Safety Board conducts a

public hearing or comparable proceeding at a location greater

than 80 miles from the accident site, the foreign air carrier will

ensure that the proceeding is made available simultaneously

by electronic means at a location open to the public at both the

origin city and destination city of the foreign air carrier’s flight

if that city is located in the United States.

(d) PERMIT AND EXEMPTION REQUIREMENT.—The Secretary

shall not approve an application for a permit under section 41302

unless the applicant has included as part of the application or request for exemption a plan that meets the requirements of

subsection (c). (e) LIMITATION ON LIABILITY.—A foreign air carrier shall not be

liable for damages in any action brought in a Federal or State court

arising out of the performance of the foreign air carrier in pre- paring or providing a passenger list pursuant to a plan submitted

by the foreign air carrier under subsection (c), unless the liability

was caused by conduct of the foreign air carrier which was grossly

negligent or which constituted intentional misconduct.

CHAPTER 415—PRICING

Sec.

41501. Establishing reasonable prices, classifications, rules, practices, and divisions of joint prices for foreign air transportation. 41502. Establishing joint prices for through routes with other carriers.

41503. Establishing joint prices for through routes provided by State authorized

carriers. 41504. Tariffs for foreign air transportation.

41505. Uniform methods for establishing joint prices, and divisions of joint prices,

applicable to commuter air carriers. 41506. Price division filing requirements for foreign air transportation.

41507. Authority of the Secretary of Transportation to change prices, classifications, rules, and practices for foreign air transportation.

41508. Authority of the Secretary of Transportation to adjust divisions of joint

prices for foreign air transportation.

41509. Authority of the Secretary of Transportation to suspend, cancel, and reject

tariffs for foreign air transportation. 41510. Required adherence to foreign air transportation tariffs.

41511. Special prices for foreign air transportation.

§ 41501. Establishing reasonable prices, classifications,

rules, practices, and divisions of joint prices for

foreign air transportation

Every air carrier and foreign air carrier shall establish, comply

with, and enforce—

(1) reasonable prices, classifications, rules, and practices

related to foreign air transportation; and

(2) for joint prices established for foreign air transpor- tation, reasonable divisions of those prices among the participating air carriers or foreign air carriers without unreasonably

discriminating against any of those carriers.
62

§ 41502. Establishing joint prices for through routes with

other carriers

(a) JOINT PRICES.—An air carrier may establish reasonable

joint prices and through service with another carrier. However, an

air carrier not directly operating aircraft in air transportation (except an air express company) may not establish under this section

a joint price for the transportation of property with a carrier subject to subtitle IV of this title.

(b) PRICES, CLASSIFICATIONS, RULES, AND PRACTICES AND DIVISIONS OF JOINT PRICES.—For through service by an air carrier and

a carrier subject to subtitle IV of this title, the participating carriers shall establish—

(1) reasonable prices and reasonable classifications, rules,

and practices affecting those prices or the value of the transportation provided under those prices; and

(2) for joint prices established for the through service, reasonable divisions of those joint prices among the participating

carriers. (c) STATEMENTS INCLUDED IN TARIFFS.—An air carrier and a

carrier subject to subtitle IV of this title that are participating in

through service and joint prices shall include in their tariffs, filed

with the Secretary of Transportation, a statement showing the

through service and joint prices.

§ 41503. Establishing joint prices for through routes pro- vided by State authorized carriers

Subject to sections 41309 and 42111 of this title, a citizen of

the United States providing transportation under section 41101(b)

of this title may make an agreement with an air carrier or foreign

air carrier for joint prices for that transportation. The joint prices

agreed to must be the lowest of—

(1) the sum of the applicable prices for—

(A) the part of the transportation provided in the State

and approved by the appropriate State authority; and

(B) the part of the transportation provided by the air

carrier or foreign air carrier;

(2) a joint price established and filed under section 41504

of this title; or

(3) a joint price prescribed by the Secretary of Transpor- tation under section 41507 of this title.

§ 41504. Tariffs for foreign air transportation

(a) FILING AND CONTENTS.—In the way prescribed by regulation by the Secretary of Transportation, every air carrier and foreign air carrier shall file with the Secretary, publish, and keep

open to public inspection, tariffs showing the prices for the foreign

air transportation provided between places served by the carrier

and provided between places served by the carrier and places

served by another air carrier or foreign air carrier with which

through service and joint prices have been established. A tariff—

(1) shall contain—

(A) to the extent the Secretary requires by regulation, a description of the classifications, rules, and practices related to the foreign air transportation;

(B) a statement of the prices in money of the United

States; and

(C) other information the Secretary requires by regulation; and

(2) may contain—

(A) a statement of the prices in money that is not

money of the United States; and

(B) information that is required under the laws of a

foreign country in or to which the air carrier or foreign air

carrier is authorized to operate.

(b) CHANGES.—(1) Except as provided in paragraph (2) of this

subsection, an air carrier or foreign air carrier may change a price

or a classification, rule, or practice affecting that price or the value

of the transportation provided under that price, specified in a tariff

of the carrier for foreign air transportation only after 30 days after

the carrier has filed, published, and posted notice of the proposed

change in the same way as required for a tariff under subsection

(a) of this section. However, the Secretary may prescribe an alternative notice requirement, of at least 25 days, to allow an air

carrier or foreign air carrier to match a proposed change in a

pas- senger fare or a charge of another air carrier or foreign air

carrier. A notice under this paragraph must state plainly the

change pro- posed and when the change will take effect.

(2) If the effect of a proposed change would be to begin a pas- senger fare that is outside of, or not covered by, the range of pas- senger fares specified under section 41509(e)(2) and (3) of this title, the proposed change may be put into effect only on the expiration

of 60 days after the notice is filed under regulations prescribed by

the Secretary.

(c) REJECTION OF CHANGES.—The Secretary may reject a tariff

or tariff change that is not consistent with this section and regulations prescribed by the Secretary. A tariff or change that is rejected

is void.

§ 41505. Uniform methods for establishing joint prices, and

divisions of joint prices, applicable to commuter

air carriers

(a) DEFINITION.—In this section, ‘‘commuter air carrier’’ means

an air carrier providing transportation under section 40109(f) of

this title that provides at least 5 scheduled roundtrips a week between the same 2 places.

(b) GENERAL.—Except as provided in subsection (c) of this section, when the Secretary of Transportation prescribes under section

41508 or 41509 of this title a uniform method generally applicable

to establishing joint prices and divisions of joint prices for and between air carriers holding certificates issued under section 41102
63

of this title, the Secretary shall make that uniform method apply

to establishing joint prices and divisions of joint prices for and be- tween air carriers and commuter air carriers.

(c) NOTICE REQUIRED BEFORE MODIFYING, SUSPENDING, OR

ENDING TRANSPORTATION.—A commuter air carrier that has an

agreement with an air carrier to provide transportation for passengers and property that includes through service by the commuter air carrier over the commuter air carrier’s routes and air

transportation provided by the air carrier shall give the air carrier

and the Secretary at least 90 days’ notice before modifying, suspending, or ending the transportation. If the commuter air carrier

does not give that notice, the uniform method of establishing joint

prices and divisions of joint prices referred to in subsection (b) of

this section does not apply to the commuter air carrier.

§ 41506. Price division filing requirements for foreign air

transportation

Every air carrier and foreign air carrier shall keep currently

on file with the Secretary of Transportation, if the Secretary requires, the established divisions of all joint prices for foreign air

transportation in which the carrier participates.

§ 41507. Authority of the Secretary of Transportation to

change prices, classifications, rules, and practices

for foreign air transportation

(a) GENERAL.—When the Secretary of Transportation decides

that a price charged or received by an air carrier or foreign air carrier for foreign air transportation, or a classification, rule, or practice affecting that price or the value of the transportation provided

under that price, is or will be unreasonably discriminatory, the Secretary may—

(1) change the price, classification, rule, or practice as nec- essary to correct the discrimination; and

(2) order the air carrier or foreign air carrier to stop charg- ing or collecting the discriminatory price or carrying out the

discriminatory classification, rule, or practice.

(b) WHEN SECRETARY MAY ACT.—The Secretary may act under

this section on the Secretary’s own initiative or on a complaint filed

with the Secretary and only after notice and an opportunity for a

hearing.

§ 41508. Authority of the Secretary of Transportation to ad- just divisions of joint prices for foreign air trans- portation

(a) GENERAL.—When the Secretary of Transportation decides

that a division between air carriers, foreign air carriers, or both, of a joint price for foreign air transportation is or will be unreasonable or unreasonably discriminatory against any of those carriers,

the Secretary shall prescribe a reasonable division of the joint price

among those carriers. The Secretary may order the adjustment in

the division of the joint price to be made retroactively to the date

the complaint was filed, the date the order for an investigation was

made, or a later date the Secretary decides is reasonable.

(b) WHEN SECRETARY MAY ACT.—The Secretary may act under

this section on the Secretary’s own initiative or on a complaint filed

with the Secretary and only after notice and an opportunity for a

hearing.

§ 41509. Authority of the Secretary of Transportation to suspend, cancel, and reject tariffs for foreign air

transportation

(a) CANCELLATION AND REJECTION.—(1) On the initiative of the

Secretary of Transportation or on a complaint filed with the Secretary, the Secretary may conduct a hearing to decide whether a

price for foreign air transportation contained in an existing or

newly filed tariff of an air carrier or foreign air carrier, a classification, rule, or practice affecting that price, or the value of the transportation provided under that price, is lawful. The Secretary may

begin the hearing at once and without an answer or another formal

pleading by the air carrier or foreign air carrier, but only after reasonable notice. If, after the hearing, the Secretary decides that the

price, classification, rule, or practice is or will be unreasonable or

unreasonably discriminatory, the Secretary may cancel or reject the

tariff and prevent the use of the price, classification, rule, or practice.

(2) With or without a hearing, the Secretary may cancel or reject an existing or newly filed tariff of a foreign air carrier and prevent the use of a price, classification, rule, or practice when the

Secretary decides that the cancellation or rejection is in the public

interest. In deciding whether to cancel or reject a tariff of an air

carrier or foreign air carrier under this subsection, the

Secretary shall consider—

(A) the effect of the price on the movement of traffic;

(B) the need in the public interest of adequate and efficient

transportation by air carriers and foreign air carriers at the

lowest cost consistent with providing the transportation;

(C) the standards prescribed under law related to the char- acter and quality of transportation to be provided by air car- riers and foreign air carriers;

(D) the inherent advantages of transportation by aircraft;

(E) the need of the air carrier and foreign air carrier for

revenue sufficient to enable the air carrier and foreign air car- rier, under honest, economical, and efficient management, to

provide adequate and efficient air carrier and foreign air car- rier transportation;

(F) whether the price will be predatory or tend to monopo- lize competition among air carriers and foreign air carriers in

foreign air transportation;

(G) reasonably estimated or foreseeable future costs and

revenues for the air carrier or foreign air carrier for a reason- ably limited future period during which the price would be in
64

effect; and

(H) other factors. (b) SUSPENSION.—(1)(A) Pending a decision under subsection

(a)(1) of this section, the Secretary may suspend a tariff and the

use of a price contained in the tariff or a classification, rule, or

practice affecting that price.

(B) The Secretary may suspend a tariff of a foreign air carrier

and the use of a price, classification, rule, or practice when the suspension is in the public interest.

(2) A suspension becomes effective when the Secretary files

with the tariff and delivers to the air carrier or foreign air carrier

affected by the suspension a written statement of the reasons for

the suspension. To suspend a tariff, reasonable notice of the suspension must be given to the affected carrier.

(3) The suspension of a newly filed tariff may be for periods totaling not more than 365 days after the date the tariff otherwise

would go into effect. The suspension of an existing tariff may be for

periods totaling not more than 365 days after the effective date of

the suspension. The Secretary may rescind at any time the suspension of a newly filed tariff and allow the price, classification, rule,

or practice to go into effect.

(c) EFFECTIVE TARIFFS AND PRICES WHEN TARIFF IS SUSPENDED, CANCELED, OR REJECTED.—(1) If a tariff is suspended

pending the outcome of a proceeding under subsection (a) of this

section and the Secretary does not take final action in the proceeding during the suspension period, the tariff goes into effect at

the end of that period subject to cancellation when the proceeding

is concluded.

(2)(A) During the period of suspension, or after the cancellation

or rejection, of a newly filed tariff (including a tariff that has gone

into effect provisionally), the affected air carrier or foreign air carrier shall maintain in effect and use—

(i) the corresponding seasonal prices, or the classifications,

rules, and practices affecting those prices or the value of transportation provided under those prices, that were in effect for

the carrier immediately before the new tariff was filed; or

(ii) another price provided for under an applicable inter- governmental agreement or understanding.

(B) If the suspended, canceled, or rejected tariff is the first tar- iff of the carrier for the covered transportation, the carrier, for the

purpose of operations during the period of suspension or pending

effectiveness of a new tariff, may file another tariff containing a

price or another classification, rule, or practice affecting the price,

or the value of the transportation provided under the price, that is

in effect (and not subject to a suspension order) for any air carrier

providing the same transportation.

(3) If an existing tariff is suspended or canceled, the affected

air carrier or foreign air carrier, for the purpose of operations during the period of suspension or pending effectiveness of a new tariff, may file another tariff containing a price or another classification, rule, or practice affecting the price, or the value of the transportation provided under the price, that is in effect (and not subject

to a suspension order) for any air carrier providing the same transportation.

(d) RESPONSE TO REFUSAL OF FOREIGN COUNTRY TO ALLOW AIR

CARRIER TO CHARGE A PRICE.—When the Secretary finds that the

government or an aeronautical authority of a foreign country has

refused to allow an air carrier to charge a price contained in a tariff filed and published under section 41504 of this title for foreign

air transportation to the foreign country—

(1) the Secretary, without a hearing—

(A) may suspend any existing tariff of a foreign air

carrier providing transportation between the United States

and the foreign country for periods totaling not more than

365 days after the date of the suspension; and

(B) may order the foreign air carrier to charge, during

the suspension periods, prices that are the same as those

contained in a tariff (designated by the Secretary) of an air

carrier filed and published under section 41504 of this title

for foreign air transportation to the foreign country; and

(2) a foreign air carrier may continue to provide foreign air

transportation to the foreign country only if the government or

aeronautical authority of the foreign country allows an air carrier to start or continue foreign air transportation to the foreign country at the prices designated by the Secretary.

(e) STANDARD FOREIGN FARE LEVEL.—(1)(A) In this subsection,

‘‘standard foreign fare level’’ means—

(i) for a class of fares existing on October 1, 1979, the fare

between 2 places (as adjusted under subparagraph (B) of this

paragraph) filed for and allowed by the Civil Aeronautics

Board to go into effect after September 30, 1979, and before

August 13, 1980 (with seasonal fares adjusted by the percentage difference that prevailed between seasons in 1978), or the

fare established under section 1002(j)(8) of the Federal Aviation Act of 1958 (Public Law 85–726, 72 Stat. 731), as added

by section 24(a) of the International Air Transportation Competition Act of 1979 (Public Law 96–192, 94 Stat. 46); or

(ii) for a class of fares established after October 1, 1979, the fare between 2 places in effect on the effective date of the

establishment of the new class.

(B) At least once every 60 days for fuel costs, and at least once

every 180 days for other costs, the Secretary shall adjust the standard foreign fare level for the particular foreign air transportation

to which the standard foreign fare level applies by increasing or decreasing that level by the percentage change from the last previous

period in the actual operating cost for each available seat-mile. In

adjusting a standard foreign fare level, the Secretary may not

make an adjustment to costs actually incurred. In establishing a

standard foreign fare level and making adjustments in the level

under this paragraph, the Secretary may use all relevant or appro-
65

priate information reasonably available to the Secretary.

(2) The Secretary may not decide that a proposed fare for foreign air transportation is unreasonable on the basis that the fare

is too low or too high if the proposed fare is neither more than 5

percent higher nor 50 percent lower than the standard foreign fare

level for the same or essentially similar class of transportation. The

Secretary by regulation may increase the 50 percent specified in

this paragraph.

(3) Paragraph (2) of this subsection does not apply to a pro- posed fare that is not more than—

(A) 5 percent higher than the standard foreign fare level

when the Secretary decides that the proposed fare may be unreasonably discriminatory or that suspension of the fare is in

the public interest because of an unreasonable regulatory action by the government of a foreign country that is related to

a fare proposal of an air carrier; or

(B) 50 percent lower than the standard foreign fare level

when the Secretary decides that the proposed fare may be

predatory or discriminatory or that suspension of the fare is re- quired because of an unreasonable regulatory action by the

government of a foreign country that is related to a fare proposal of an air carrier.

(f) SUBMISSION OF ORDERS TO PRESIDENT.—The Secretary shall

submit to the President an order made under this section suspending, canceling, or rejecting a price for foreign air transportation, and an order rescinding the effectiveness of such an order,

before publishing the order. Not later than 10 days after its submission, the President may disapprove the order on finding disapproval is necessary for United States foreign policy or national

defense reasons.

(g) COMPLIANCE AS CONDITION OF CERTIFICATE OR PERMIT.—

This section and compliance with an order of the Secretary under

this section are conditions to any certificate or permit held by an

air carrier or foreign air carrier. An air carrier or foreign air carrier

may provide foreign air transportation only as long as the carrier

maintains prices for that transportation that comply with this section and orders of the Secretary under this section.

§ 41510. Required adherence to foreign air transportation

tariffs

(a) PROHIBITED ACTIONS BY AIR CARRIERS, FOREIGN AIR CARRIERS, AND TICKET AGENTS.—An air carrier, foreign air carrier, or

ticket agent may not—

(1) charge or receive compensation for foreign air transportation that is different from the price specified in the tariff of

the carrier that is in effect for that transportation;

(2) refund or remit any part of the price specified in the

tariff; or

(3) extend to any person a privilege or facility, related to

a matter required by the Secretary of Transportation to be

specified in a tariff for foreign air transportation, except as

specified in the tariff.

(b) PROHIBITED ACTIONS BY ANY PERSON.—A person may not

knowingly—

(1) pay compensation for foreign air transportation of property that is different from the price specified in the tariff in effect for that transportation; or

(2) solicit, accept, or receive—

(A) a refund or remittance of any part of the price

specified in the tariff; or

(B) a privilege or facility, related to a matter required

by the Secretary to be specified in a tariff for foreign air

transportation of property, except as specified in the tariff.

§ 41511. Special prices for foreign air transportation

(a) FREE AND REDUCED PRICING.—This chapter does not prohibit an air carrier or foreign air carrier, under terms the Secretary

of Transportation prescribes, from issuing or interchanging tickets

or passes for free or reduced-price foreign air transportation to or

for the following:

(1) a director, officer, or employee of the carrier (including

a retired director, officer, or employee who is receiving retirement benefits from an air carrier or foreign air carrier).

(2) a parent or the immediate family of such an officer or

employee or the immediate family of such a director.

(3) a widow, widower, or minor child of an employee of the

carrier who died as a direct result of a personal injury sustained when performing a duty in the service of the carrier.

(4) a witness or attorney attending a legal investigation in

which the air carrier is interested.

(5) an individual injured in an aircraft accident and a physician or nurse attending the individual.

(6) a parent or the immediate family of an individual injured or killed in an aircraft accident when the transportation

is related to the accident.

(7) an individual or property to provide relief in a general

epidemic, pestilence, or other emergency.

(8) other individuals under other circumstances the Secretary prescribes by regulation.

(b) SPACE-AVAILABLE BASIS.—Under terms the Secretary pre- scribes, an air carrier or foreign air carrier may grant reducedprice foreign air transportation on a space-available basis to the

following:

(1) a minister of religion.

(2) an individual who is at least 60 years of age and no

longer gainfully employed.

(3) an individual who is at least 65 years of age.

(4) an individual who has severely impaired vision or hearing or another physical or mental handicap and an accompanying attendant needed by that individual.
66

CHAPTER 417—OPERATIONS OF CARRIERS

Sec.

SUBCHAPTER I—REQUIREMENTS

41701. Classification of air carriers.

41702. Interstate air transportation.

41703. Navigation of foreign civil aircraft. 41704. Transporting property not to be transported in aircraft cabins.

41705. Discrimination against handicapped individuals.

41706. Prohibitions against smoking on scheduled flights.

41707. Incorporating contract terms into written instrument. 41708. Reports.

41709. Records of air carriers.

41710. Time requirements.

41711. Air carrier management inquiry and cooperation with other authorities.

41712. Unfair and deceptive practices and unfair methods of competition.

41713. Preemption of authority over prices, routes, and service.

41714. Availability of slots.

41715. Phase-out of slot rules at certain airports.

41716. Interim slot rules at New York airports.

41717. Interim application of slot rules at Chicago O’Hare International Airport.

41718. Special Rules for Ronald Reagan Washington National Airport.

41719. Air service termination notice. 41720. Joint venture agreements.

41721. Reports by carriers on incidents involving animals during air transport.

41722. Delay reduction actions.

41723. Notice concerning aircraft assembly.

SUBCHAPTER II—SMALL COMMUNITY AIR SERVICE

41731. Definitions.

41732. Basic essential air service.

41733. Level of basic essential air service.

41734. Ending, suspending, and reducing basic essential air service.

41735. Enhanced essential air service. 41736. Air transportation to noneligible places.

41737. Compensation guidelines, limitations, and claims.

41738. Fitness of air carriers.

41739. Air carrier obligations.

41740. Joint proposals.

41741. Insurance.

41742. Essential air service authorization.

41743. Airports not receiving sufficient service.’’.

41744. Preservation of basic essential air service at single carrier

dominated hub airports.

41745. Community and regional choice programs.

41746. Tracking service.

41747. EAS local participation program.

41748. Marketing program.

SUBCHAPTER III—REGIONAL AIR SERVICE INCENTIVE PROGRAM

41761. Purpose.

41762. Definitions. 41763. Federal credit instruments.

41764. Use of Federal facilities and assistance.

41765. Administrative expenses.

41766. Funding.

41767. Termination.

SUBCHAPTER I—REQUIREMENTS

§ 41701. Classification of air carriers

The Secretary of Transportation may establish—

(1) reasonable classifications for air carriers when required

because of the nature of the transportation provided by them;

and

(2) reasonable requirements for each class when the Sec- retary decides those requirements are necessary in the public

interest.

§ 41702. Interstate air transportation

An air carrier shall provide safe and adequate interstate air

transportation.

§ 41703. Navigation of foreign civil aircraft

(a) PERMITTED NAVIGATION.—A foreign aircraft, not part of the

armed forces of a foreign country, may be navigated in the United

States only—(1) if the country of registry grants a similar privilege to

aircraft of the United States;

(2) by an airman holding a certificate or license issued or

made valid by the United States Government or the country of

registry;

(3) if the Secretary of Transportation authorizes the navigation; and

(4) if the navigation is consistent with terms the Secretary

may prescribe.

(b) REQUIREMENTS FOR AUTHORIZING NAVIGATION.—The Secretary may authorize navigation under this section only if the Secretary decides the authorization is—

(1) in the public interest; and

(2) consistent with any agreement between the Government and the government of a foreign country.

(c) PROVIDING AIR COMMERCE.—The Secretary may authorize

an aircraft permitted to navigate in the United States under this

section to provide air commerce in the United States. However, the

aircraft may take on for compensation, at a place in the United

States, passengers or cargo destined for another place in the

United States only if—

(1) specifically authorized under section 40109(g) of this

title; or

(2) under regulations the Secretary prescribes authorizing

air carriers to provide otherwise authorized air transportation

with foreign registered aircraft under lease or charter to them

without crew. (d) PERMIT REQUIREMENTS NOT AFFECTED.—This section does

not affect section 41301 or 41302 of this title. However, a foreign

air carrier holding a permit under section 41302 does not need to

obtain additional authorization under this section for an operation
67

authorized by the permit.

(e) CARGO IN ALASKA.—

(1) IN GENERAL.—For the purposes of subsection (c), eligible cargo taken on or off any aircraft at a place in Alaska in

the course of transportation of that cargo by any combination

of 2 or more air carriers or foreign air carriers in either direction between a place in the United States and a place outside

the United States shall not be deemed to have broken its international journey in, be taken on in, or be destined for Alaska.

(2) ELIGIBLE CARGO.—For purposes of paragraph (1), the

term ‘‘eligible cargo’’ means cargo transported between Alaska

and any other place in the United States on a foreign air carrier (having been transported from, or thereafter being transported to, a place outside the United States on a different air

carrier or foreign air carrier) that is carried—

(A) under the code of a United States air carrier providing air transportation to Alaska;

(B) on an air carrier way bill of an air carrier pro- viding air transportation to Alaska;

(C) under a term arrangement or block space agree- ment with an air carrier; or

(D) under the code of a United States air carrier for

purposes of transportation within the United States.

§ 41704. Transporting property not to be transported in aircraft cabins

Under regulations or orders of the Secretary of Transportation,

an air carrier shall transport as baggage the property of a passenger traveling in air transportation that may not be carried in

an aircraft cabin because of a law or regulation of the United

States. The carrier is liable to pay an amount not more than the

amount declared to the carrier by that passenger for actual loss of, or

damage to, the property caused by the carrier. The carrier may

impose reasonable charges and conditions for its liability.

§ 41705. Discrimination against handicapped individuals

(a) IN GENERAL.—In providing air transportation, an air carrier, including (subject to section 40105(b)) any foreign air carrier,

may not discriminate against an otherwise qualified individual on

the following grounds:

(1) the individual has a physical or mental impairment

that substantially limits one or more major life activities.

(2) the individual has a record of such an impairment.

(3) the individual is regarded as having such an impairment.

(b) EACH ACT CONSTITUTES SEPARATE OFFENSE.—For purposes of

section 46301, a separate violation occurs under this section for

each individual act of discrimination prohibited by subsection (a).

(c) INVESTIGATION OF COMPLAINTS.—

(1) IN GENERAL.—The Secretary shall investigate each

complaint of a violation of subsection (a).

(2) PUBLICATION OF DATA.—The Secretary shall publish

disability-related complaint data in a manner comparable to

other consumer complaint data.

(3) REVIEW AND REPORT.—The Secretary shall regularly review all complaints received by air carriers alleging discrimination on the basis of disability and shall report annually to Congress on the results of such review. (4) TECHNICAL ASSISTANCE.—Not later than 180 days after

the date of the enactment of this subsection, the Secretary

shall—

(A) implement a plan, in consultation with the Depart- ment of Justice, the United States Architectural and

Transportation Barriers Compliance Board, and the Na- tional Council on Disability, to provide technical assistance to

air carriers and individuals with disabilities in under- standing the rights and responsibilities set forth in this

section; and

(B) ensure the availability and provision of appro- priate technical assistance manuals to individuals and en- tities with rights or responsibilities under this section.

§ 41706. Prohibitions against smoking on scheduled flights

(a) SMOKING PROHIBITION IN INTRASTATE AND INTERSTATE AIR

TRANSPORTATION.—An individual may not smoke in an aircraft in

scheduled passenger interstate air transportation or scheduled passenger intrastate air transportation.

(b) SMOKING PROHIBITION IN FOREIGN AIR TRANSPORTATION.—

The Secretary of Transportation shall require all air carriers and

foreign air carriers to prohibit smoking in any aircraft in scheduled

passenger foreign air transportation. (c) LIMITATION ON APPLICABILITY.—

(1) IN GENERAL.—If a foreign government objects to the application of subsection (b) on the basis that subsection (b) pro- vides for an extraterritorial application of the laws of the

United States, the Secretary shall waive the application of subsection (b) to a foreign air carrier licensed by that foreign gov- ernment at such time as an alternative prohibition negotiated

under paragraph (2) becomes effective and is enforced by the

Secretary. (2) ALTERNATIVE PROHIBITION.—If, pursuant to paragraph

(1), a foreign government objects to the prohibition under subsection (b), the Secretary shall enter into bilateral negotiations

with the objecting foreign government to provide for an alternative smoking prohibition.

(d) REGULATIONS.—The Secretary shall prescribe such regulations as are necessary to carry out this section.
68

§ 41707. Incorporating contract terms into written instrument

To the extent the Secretary of Transportation prescribes by

regulation, an air carrier may incorporate by reference in a ticket

or written instrument any term of the contract for providing interstate air transportation.

§ 41708. Reports

(a) APPLICATION.—To the extent the Secretary of Transportation finds necessary to carry out this subpart, this section and

section 41709 of this title apply to a person controlling an air carrier or affiliated (within the meaning of section 11343(c) of this

title) with a carrier.

(b) REQUIREMENTS.—The Secretary may require an air carrier or

foreign air carrier— (1)(A) to file annual, monthly, periodical, and special re- ports with the Secretary in the form and way prescribed by the

Secretary; and

(B) to file the reports under oath;

(2) to provide specific answers to questions on which the

Secretary considers information to be necessary; and

(3) to file with the Secretary a copy of each agreement, ar- rangement, contract, or understanding between the carrier and

another carrier or person related to transportation affected by

this subpart.

§ 41709. Records of air carriers

(a) REQUIREMENTS.—The Secretary of Transportation shall prescribe the form of records to be kept by an air carrier, including

records on the movement of traffic, receipts and expenditures of

money, and the time period during which the records shall be kept. A

carrier may keep only records prescribed or approved by the Secretary. However, a carrier may keep additional records if the additional records do not impair the integrity of the records prescribed or

approved by the Secretary and are not an unreasonable financial

burden on the carrier.

(b) INSPECTION.—(1) The Secretary at any time may—

(A) inspect the land, buildings, and equipment of an air

carrier or foreign air carrier when necessary to decide under

subchapter II of this chapter or section 41102, 41103, or 41302 of

this title whether a carrier is fit, willing, and able; and

(B) inspect records kept or required to be kept by an air

carrier, foreign air carrier, or ticket agent.

(2) The Secretary may employ special agents or auditors to

carry out this subsection.

§ 41710. Time requirements

When a matter requiring action of the Secretary of Transportation is submitted under section 40109(a) or (c)–(h), 41309, or

42111 of this title and an evidentiary hearing—

(1) is ordered, the Secretary shall make a final decision on

the matter not later than the last day of the 12th month that

begins after the date the matter is submitted; or

(2) is not ordered, the Secretary shall make a final decision

on the matter not later than the last day of the 6th month that

begins after the date the matter is submitted.

§ 41711. Air carrier management inquiry and cooperation

with other authorities

In carrying out this subpart, the Secretary of Transportation

may—

(1) inquire into the management of the business of an air

carrier and obtain from the air carrier, and a person controlling, controlled by, or under common control with the carrier,

information the Secretary decides reasonably is necessary to

carry out the inquiry;

(2) confer and hold a joint hearing with a State authority;

and

(3) exchange information related to aeronautics with a government of a foreign country through appropriate departments,

agencies, and instrumentalities of the United States Government.

§ 41712. Unfair and deceptive practices and unfair methods

of competition

(a) IN GENERAL.—On the initiative of the Secretary of Trans- portation or the complaint of an air carrier, foreign air carrier, or

ticket agent, and if the Secretary considers it is in the public inter- est, the Secretary may investigate and decide whether an air car- rier, foreign air carrier, or ticket agent has been or is engaged in

an unfair or deceptive practice or an unfair method of competition in

air transportation or the sale of air transportation. If the Sec- retary, after notice and an opportunity for a hearing, finds that an

air carrier, foreign air carrier, or ticket agent is engaged in an un- fair or deceptive practice or unfair method of competition, the Sec- retary shall order the air carrier, foreign air carrier, or ticket agent to

stop the practice or method.

(b) E-TICKET EXPIRATION NOTICE.—It shall be an unfair or deceptive practice under subsection (a) for any air carrier, foreign air

carrier, or ticket agent utilizing electronically transmitted tickets

for air transportation to fail to notify the purchaser of such a ticket of

its expiration date, if any.

§ 41713. Preemption of authority over prices, routes, and

service

(a) DEFINITION.—In this section, ‘‘State’’ means a State, the

District of Columbia, and a territory or possession of the United

States.

(b) PREEMPTION.—(1) Except as provided in this subsection, a

State, political subdivision of a State, or political authority of at

least 2 States may not enact or enforce a law, regulation, or other
69

provision having the force and effect of law related to a price,

route, or service of an air carrier that may provide air transpor- tation under this subpart.

(2) Paragraphs (1) and (4) of this subsection do not apply to air

transportation provided entirely in Alaska unless the transportation is air transportation (except charter air transportation) provided under a certificate issued under section 41102 of this title.

(3) This subsection does not limit a State, political subdivision of

a State, or political authority of at least 2 States that owns or

operates an airport served by an air carrier holding a certificate

issued by the Secretary of Transportation from carrying out its proprietary powers and rights.

(4) TRANSPORTATION BY AIR CARRIER OR CARRIER AFFILIATED WITH A DIRECT AIR CARRIER.—

(A) GENERAL RULE.—Except as provided in subparagraph (B), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a

law, regulation, or other provision having the force and

effect of law related to a price, route, or service of an air

carrier or carrier affiliated with a direct air carrier

through common controlling ownership when such carrier is

transporting property by aircraft or by motor vehicle

(whether or not such property has had or will have a prior

or subsequent air movement).

(B) MATTERS NOT COVERED.—Subparagraph (A)—

(i) shall not restrict the safety regulatory author- ity of a State with respect to motor vehicles, the authority of a State to impose highway route controls or

limitations based on the size or weight of the motor

vehicle or the hazardous nature of the cargo, or the

authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility

relating to insurance requirements and self-insurance

authorization; and

(ii) does not apply to the transportation of household goods, as defined in section 13102 of this title.

(C) APPLICABILITY OF PARAGRAPH (1).—This paragraph

shall not limit the applicability of paragraph (1).

§ 41714. Availability of slots

(a) MAKING SLOTS AVAILABLE FOR ESSENTIAL AIR SERVICE.—

(1) OPERATIONAL AUTHORITY.—If basic essential air service

under subchapter II of this chapter is to be provided from an

eligible point to a high density airport (other than Ronald

Reagan Washington National Airport), the Secretary of Transportation shall ensure that the air carrier providing or selected

to provide such service has sufficient operational authority at

the high density airport to provide such service. The operational authority shall allow flights at reasonable times taking

into account the needs of passengers with connecting flights.

(2) EXEMPTIONS.—If necessary to carry out the objectives

of paragraph (1), the Secretary shall by order grant exemptions

from the requirements of subparts K and S of part 93 of title

14, Code of Federal Regulations (pertaining to slots at high

density airports), to air carriers using Stage 3 aircraft or to

commuter air carriers, unless such an exemption would significantly increase operational delays.

(3) ASSURANCE OF ACCESS.—If the Secretary finds that an

exemption under paragraph (2) would significantly increase

operational delays, the Secretary shall take such action as may

be necessary to ensure that an air carrier providing or selected

to provide basic essential air service is able to obtain access to

a high density airport.

(4) ACTION BY THE SECRETARY.—The Secretary shall issue a

final order under this subsection on or before the 60th day

after receiving a request from an air carrier for operational authority under this subsection.

(b) SLOTS FOR FOREIGN AIR TRANSPORTATION.—

(1) EXEMPTIONS.—If the Secretary finds it to be in the public interest at a high density airport (other than Ronald

Reagan Washington National Airport), the Secretary may

grant by order exemptions from the requirements of subparts

K and S of part 93 of title 14, Code of Federal Regulations

(pertaining to slots at high density airports), to enable air carriers and foreign air carriers to provide foreign air transportation using Stage 3 aircraft.

(2) SLOT WITHDRAWALS.—The Secretary may not withdraw a

slot at Chicago O’Hare International Airport from an air carrier in order to allocate that slot to a carrier to provide foreign

air transportation.

(3) EQUIVALENT RIGHTS OF ACCESS.—The Secretary shall

not take a slot at a high density airport from an air carrier and

award such slot to a foreign air carrier if the Secretary determines that air carriers are not provided equivalent rights of access to airports in the country of which such foreign air carrier

is a citizen.

(4) CONVERSIONS OF SLOTS.—Effective May 1, 2000, slots

at Chicago O’Hare International Airport allocated to an air carrier as of November 1, 1999, to provide foreign air transportation shall be made available to such carrier to provide interstate or intrastate air transportation.

(c) SLOTS FOR NEW ENTRANTS.—If the Secretary finds it to be in

the public interest, the Secretary may by order grant exemptions

from the requirements under subparts K and S of part 93 of title

14, Code of Federal Regulations (pertaining to slots at high density

airports), to enable new entrant air carriers to provide air transportation at high density airports (other than Ronald Reagan Washington National Airport).

(d) SPECIAL RULES FOR RONALD REAGAN WASHINGTON NATIONAL AIRPORT.—
70

(1) IN GENERAL.—Notwithstanding sections 49104(a)(5)

and 49111(e) of this title, or any provision of this section, the

Secretary may, only under circumstances determined by the

Secretary to be exceptional, grant by order to an air carrier

currently holding or operating a slot at Ronald Reagan Washington National Airport an exemption from requirements

under subparts K and S of part 93 of title 14, Code of Federal

Regulations (pertaining to slots at Washington National Airport), to enable that carrier to provide air transportation with

Stage 3 aircraft at Ronald Reagan Washington National Airport; except that such exemption shall not—

(A) result in an increase in the total number of slots

per day at Ronald Reagan Washington National Airport;

(B) result in an increase in the total number of slots

at Ronald Reagan Washington National Airport from 7:00

ante meridiem to 9:59 post meridiem;

(C) increase the number of operations at Ronald

Reagan Washington National Airport in any 1-hour period

by more than 2 operations;

(D) result in the withdrawal or reduction of slots operated by an air carrier;

(E) result in a net increase in noise impact on sur- rounding communities resulting from changes in timing of

operations permitted under this subsection; and

(F) continue in effect on or after the date on which the

final rules issued under subsection (f) become effective.

(2) LIMITATION ON APPLICABILITY.—Nothing in this subsection shall adversely affect Exemption No. 5133, as from

time-to-time amended and extended.

(e) STUDY.— (1) MATTERS TO BE CONSIDERED.—The Secretary shall con- tinue the Secretary’s current examination of slot regulations

and shall ensure that the examination includes consideration

of—

(A) whether improvements in technology and proce- dures of the air traffic control system and the use of quiet- er aircraft make it possible to eliminate the limitations on

hourly operations imposed by the high density rule con- tained in part 93 of title 14 of the Code of Federal Regula- tions or to increase the number of operations permitted

under such rule;

(B) the effects of the elimination of limitations or an

increase in the number of operations allowed on each of

the following:

(i) congestion and delay in any part of the na- tional aviation system;

(ii) the impact of noise on persons living near the

airport;

(iii) competition in the air transportation system;

(iv) the profitability of operations of airlines serv- ing the airport; and

(v) aviation safety;

(C) the impact of the current slot allocation process

upon the ability of air carriers to provide essential air

service under subchapter II of this chapter;

(D) the impact of such allocation process upon the ability of new entrant air carriers to obtain slots in time periods that enable them to provide service;

(E) the impact of such allocation process on the ability of

foreign air carriers to obtain slots;

(F) the fairness of such process to air carriers and the

extent to which air carriers are provided equivalent rights

of access to the air transportation market in the countries

of which foreign air carriers holding slots are citizens;

(G) the impact, on the ability of air carriers to provide

domestic and international air service, of the withdrawal

of slots from air carriers in order to provide slots for foreign air carriers; and

(H) the impact of the prohibition on slot withdrawals in

subsections (b)(2) and (b)(3) of this section on the avia- tion

relationship between the United States Government and

foreign governments, including whether the prohibi- tion

in such subsections will require the withdrawal of slots

from general and military aviation in order to meet the

needs of air carriers and foreign air carriers providing

foreign air transportation (and the impact of such withdrawal on general aviation and military aviation) and

whether slots will become available to meet the needs of

air carriers and foreign air carriers to provide foreign air

transportation as a result of the planned relocation of Air

Force Reserve units and the Air National Guard at O’Hare

International Airport.

(2) REPORT.—Not later than January 31, 1995, the Secretary shall complete the current examination of slot regulations and shall transmit to the Committee on Commerce,

Science, and Transportation of the Senate and the Committee

on Transportation and Infrastructure of the House of Representatives a report containing the results of such examination.

(f) RULEMAKING.—The Secretary shall conduct a rulemaking

proceeding based on the results of the study described in subsection

(e). In the course of such proceeding, the Secretary shall issue a notice of proposed rulemaking not later than August 1, 1995, and

shall issue a final rule not later than 90 days after public comments are due on the notice of proposed rulemaking.

(g) WEEKEND OPERATIONS.—The Secretary shall consider the

advisability of revising section 93.227 of title 14, Code of Federal

Regulations, so as to eliminate weekend schedules from the deter- mination of whether the 80 percent standard of subsection (a)(1) of

that section has been met.

(h) DEFINITIONS.—In this section and sections 41715–41718
71

and 41734(h), the following definitions apply:

(1) COMMUTER AIR CARRIER.—The term ‘‘commuter air car- rier’’ means a commuter operator as defined or applied in subpart K or S of part 93 of title 14, Code of Federal Regulations.

(2) HIGH DENSITY AIRPORT.—The term ‘‘high density airport’’ means an airport at which the Administrator limits the

number of instrument flight rule takeoffs and landings of aircraft.

(3) NEW ENTRANT AIR CARRIER.—The term ‘‘new entrant

air carrier’’ means an air carrier that does not hold a slot at

the airport concerned and has never sold or given up a slot at

that airport after December 16, 1985, and a limited incumbent

carrier.

(4) SLOT.—The term ‘‘slot’’ means a reservation for an instrument flight rule takeoff or landing by an air carrier of an

aircraft in air transportation.

(5) LIMITED INCUMBENT AIR CARRIER.—The term ‘‘limited

incumbent air carrier’’ has the meaning given that term in subpart S of part 93 of title 14, Code of Federal Regulations; except that—

(A) ‘‘20’’ shall be substituted for ‘‘12’’ in sections

93.213(a)(5), 93.223(c)(3), and 93.225(h);

(B) for purposes of such sections, the term ‘‘slot’’ shall

include ‘‘slot exemptions’’; and

(C) for Ronald Reagan Washington National Airport,

the Administrator shall not count, for the purposes of section 93.213(a)(5), slots currently held by an air carrier but

leased out on a long-term basis by that carrier for use in

foreign air transportation and renounced by the carrier for

return to the Department of Transportation or the Federal

Aviation Administration.

(6) REGIONAL JET.—The term ‘‘regional jet’’ means a passenger, turbofan-powered aircraft with a certificated maximum

passenger seating capacity of less than 71.

(7) NONHUB AIRPORT.—The term ‘‘nonhub airport’’ means

an airport that had less than .05 percent of the total annual

boardings in the United States as determined under the Federal Aviation Administration’s Primary Airport Enplanement

Activity Summary for Calendar Year 1997.

(8) SMALL HUB AIRPORT.—The term ‘‘small hub airport’’

means an airport that had at least .05 percent, but less

than .25 percent, of the total annual boardings in the United

States as determined under the summary referred to in

paragraph (7).

(9) MEDIUM HUB AIRPORT.—The term ‘‘medium hub airport’’ means an airport that each year has at least .25 percent,

but less than 1.0 percent, of the total annual boardings in the

United States as determined under the summary referred to in

paragraph (7).

(i) 60-DAY APPLICATION PROCESS.—

(1) REQUEST FOR SLOT EXEMPTIONS.—Any slot exemption

request filed with the Secretary under this section or section

41716 or 41717 (other than subsection (c)) shall include—

(A) the names of the airports to be served;

(B) the times requested; and

(C) such additional information as the Secretary may

require.

(2) ACTION ON REQUEST; FAILURE TO ACT.—Within 60 days

after a slot exemption request under this section or section

41716 or 41717 (other than subsection (c)) is received by the

Secretary, the Secretary shall—

(A) approve the request if the Secretary determines

that the requirements of the section under which the request is made are met;

(B) return the request to the applicant for additional

information relating to the request to provide air transportation; or

(C) deny the request and state the reasons for its denial.

(3) 60-DAY PERIOD TOLLED FOR TIMELY REQUEST FOR MORE

INFORMATION.—If the Secretary returns under paragraph (2)(B)

the request for additional information during the first 20 days

after the request is filed, then the 60-day period under paragraph (2) shall be tolled until the date on which the additional

information is filed with the Secretary.

(4) FAILURE TO DETERMINE DEEMED APPROVAL.—If the Sec- retary neither approves the request under paragraph (2)(A) nor

denies the request under paragraph (2)(C) within the 60-day

period beginning on the date the request is received, excepting

any days during which the 60-day period is tolled under para- graph (3), then the request is deemed to have been approved

on the 61st day, after the request was filed with the Secretary.

(j) EXEMPTIONS MAY NOT BE TRANSFERRED.—No exemption

from the requirements of subparts K and S of part 93 of title 14,

Code of Federal Regulations, granted under this section or section

41716, 41717, or 41718 may be bought, sold, leased, or otherwise

transferred by the carrier to which it is granted.

(k) AFFILIATED CARRIERS.—For purposes of this section and

sections 41716, 41717, and 41718, an air carrier that operates

under the same designator code, or has or enters into a code-share

agreement, with any other air carrier shall not qualify for a new

slot or slot exemption as a new entrant or limited incumbent air

carrier at an airport if the total number of slots and slot exemptions held by the two carriers at the airport exceed 20 slots and

slot exemptions.

§ 41715. Phase-out of slot rules at certain airports

(a) TERMINATION.—The rules contained in subparts S and K of

part 93, title 14, Code of Federal Regulations, shall not apply—

(1) after July 1, 2002, at Chicago O’Hare International Air-
72

port; and

(2) after January 1, 2007, at LaGuardia Airport or John F. Kennedy International Airport.

(b) STATUTORY CONSTRUCTION.—Nothing in this section and

sections 41714 and 41716–41718 shall be construed—

(1) as affecting the Federal Aviation Administration’s au- thority for safety and the movement of air traffic; and

(2) as affecting any other authority of the Secretary to

grant exemptions under section 41714.

(c) FACTORS TO CONSIDER.—

(1) IN GENERAL.—Before the award of slot exemptions

under sections 41714 and 41716–41718, the Secretary of

Transportation may consider, among other determining factors,

whether the petitioning air carrier’s proposal provides the

maximum benefit to the United States economy, including the

number of United States jobs created by the air carrier, its

suppliers, and related activities. The Secretary should give

equal consideration to the consumer benefits associated with

the award of such exemptions.

(2) APPLICABILITY.—Paragraph (1) does not apply in any

case in which the air carrier requesting the slot exemption is

proposing to use under the exemption a type of aircraft for

which there is not a competing United States manufacturer.

§ 41716. Interim slot rules at New York airports

(a) EXEMPTIONS FOR AIR SERVICE TO SMALL AND NONHUB AIRPORTS.—Subject to section 41714(i), the Secretary of Transportation

shall grant, by order, exemptions from the requirements under subparts K and S of part 93 of title 14, Code of Federal Regulations

(pertaining to slots at high density airports) to any air carrier to

provide nonstop air transportation, using an aircraft with a certificated maximum seating capacity of less than 71, between

LaGuardia Airport or John F. Kennedy International Airport and a

small hub airport or nonhub airport—

(1) if the air carrier was not providing such air transportation during the week of November 1, 1999;

(2) if the number of flights to be provided between such

airports by the air carrier during any week will exceed the

number of flights provided by the air carrier between such air- ports during the week of November 1, 1999; or

(3) if the air transportation to be provided under the exemption will be provided with a regional jet as replacement of

turboprop air transportation that was being provided during

the week of November 1, 1999.

(b) EXEMPTIONS FOR NEW ENTRANT AND LIMITED INCUMBENT

AIR CARRIERS.—Subject to section 41714(i), the Secretary shall

grant, by order, exemptions from the requirements under subparts K

and S of part 93 of title 14, Code of Federal Regulations (pertaining to slots at high density airports), to any new entrant air

carrier or limited incumbent air carrier to provide air transportation to or from LaGuardia Airport or John F. Kennedy International Airport if the number of slot exemptions granted under

this subsection to such air carrier with respect to such airport

when added to the slots and slot exemptions held by such air carrier with respect to such airport does not exceed 20; except that the

Secretary may grant not to exceed 4 additional slot exemptions at

LaGuardia Airport to an incumbent air carrier operating at least 20 but

not more than 28 slots at such airport as of October 1, 2004, to provide

air transportation between LaGuardia Airport and a small hub airport or

nonhub airport.

(c) STAGE 3 AIRCRAFT REQUIRED.—An exemption may not be

granted under this section with respect to any aircraft that is not a

Stage 3 aircraft (as defined by the Secretary).

(d) PRESERVATION OF CERTAIN EXISTING SLOT-RELATED AIR

SERVICE.—An air carrier that provides air transportation of passengers from LaGuardia Airport or John F. Kennedy International

Airport to a small hub airport or nonhub airport, or to an airport

that is smaller than a nonhub airport, on or before the date of the

enactment of this subsection pursuant to an exemption from the requirements of subparts K and S of part 93 of title 14, Code of Federal Regulations (pertaining to slots at high density airports), or

where slots were issued to an air carrier conditioned on a specific

airport being served, may not terminate air transportation for that

route before July 1, 2003, unless—

(1) before October 1, 1999, the Secretary received a written

air service termination notice for that route; or

(2) after September 30, 1999, the air carrier submits an air

service termination notice under section 41719 for that route

and the Secretary determines that the carrier suffered excessive losses, including substantial losses on operations on that

route during any three quarters of the year immediately preceding the date of submission of the notice.

§ 41717. Interim application of slot rules at Chicago O’Hare

International Airport

(a) SLOT OPERATING WINDOW NARROWED.—Effective July 1,

2001, the requirements of subparts K and S of part 93 of title 14, Code of Federal Regulations, do not apply with respect to aircraft

operating before 2:45 post meridiem and after 8:14 post meridiem at

Chicago O’Hare International Airport.

(b) EXEMPTIONS FOR AIR SERVICE TO SMALL AND NONHUB AIRPORTS.—Effective May 1, 2000, subject to section 41714(i), the Secretary of Transportation shall grant, by order, exemptions from the

requirements of subparts K and S of part 93 of title 14, Code of

Federal Regulations (pertaining to slots at high density airports), to

any air carrier to provide nonstop air transportation, using an

aircraft with a certificated maximum seating capacity of less than

71, between Chicago O’Hare International Airport and a small hub

or nonhub airport—

(1) if the air carrier was not providing such air transpor-
73

tation during the week of November 1, 1999;

(2) if the number of flights to be provided between such

airports by the air carrier during any week will exceed the

number of flights provided by the air carrier between such airports during the week of November 1, 1999; or

(3) if the air transportation to be provided under the exemption will be provided with a regional jet as replacement of

turboprop air transportation that was being provided during

the week of November 1, 1999.

(c) EXEMPTIONS FOR NEW ENTRANT AND LIMITED INCUMBENT

AIR CARRIERS.—

(1) IN GENERAL.—The Secretary shall grant, by order, 30

exemptions from the requirements under subparts K and S of

part 93 of title 14, Code of Federal Regulations, to any new entrant air carrier or limited incumbent air carrier to provide air

transportation to or from Chicago O’Hare International Airport.

(2) DEADLINE FOR GRANTING EXEMPTIONS.—The Secretary

shall grant an exemption under paragraph (1) within 45 days

of the date of the request for such exemption if the person

making the request qualifies as a new entrant air carrier or

limited incumbent air carrier.

(d) SLOTS USED TO PROVIDE TURBOPROP SERVICE.—

(1) IN GENERAL.—Except as provided in paragraph (2), a

slot used to provide turboprop air transportation that is replaced with regional jet air transportation under subsection

(b)(3) may not be used, sold, leased, or otherwise transferred

after the date the slot exemption is granted to replace the turboprop air transportation.

(2) TWO-FOR-ONE EXCEPTION.—An air carrier that otherwise could not use 2 slots as a result of paragraph (1) may use 1

of such slots to provide air transportation.

(3) WITHDRAWAL OF SLOT.—If the Secretary determines

that an air carrier that is using a slot under paragraph (2) is

no longer providing the air transportation that replaced the

turboprop air transportation, the Secretary shall withdraw the

slot that is being used under paragraph (2).

(4) CONTINUATION.—If the Secretary determines that an

air carrier that is using a slot under paragraph (2) is no longer

providing the air transportation that replaced the turboprop

air transportation with a regional jet, the Secretary shall withdraw the slot being used by the air carrier under paragraph (2)

but shall allow the air carrier to continue to hold the exemption granted to the air carrier under subsection (b)(3).

(e) INTERNATIONAL SERVICE AT O’HARE AIRPORT.—

(1) TERMINATION OF REQUIREMENTS.—Subject to paragraph

(2), the requirements of subparts K and S of part 93 of title

14, Code of Federal Regulations, shall be of no force and effect

at Chicago O’Hare International Airport after May 1, 2000,

with respect to any aircraft providing foreign air transportation.

(2) EXCEPTION RELATING TO RECIPROCITY.—The Secretary

may limit access to Chicago O’Hare International Airport with

respect to foreign air transportation being provided by a foreign air carrier domiciled in a country to which an air carrier

provides nonstop air transportation from the United States if

the country in which that carrier is domiciled does not provide

reciprocal airport access for air carriers.

(f) STAGE 3 AIRCRAFT REQUIRED.—An exemption may not be

granted under this section with respect to any aircraft that is not a

Stage 3 aircraft (as defined by the Secretary).

(g) PRESERVATION OF CERTAIN EXISTING SLOT-RELATED AIR

SERVICE.—An air carrier that provides air transportation of passengers from Chicago O’Hare International Airport to a small hub

airport or nonhub airport, or to an airport that is smaller than a

nonhub airport, on or before the date of the enactment of this subsection pursuant to an exemption from the requirements of subparts K and S of part 93 of title 14, Code of Federal Regulations

(pertaining to slots at high density airports), or where slots were

issued to an air carrier conditioned on a specific airport being

served, may not terminate air transportation service for that route

for a period of 1 year after the date on which those requirements

cease to apply to such airport unless—

(1) before October 1, 1999, the Secretary received a written

air service termination notice for that route; or

(2) after September 30, 1999, the air carrier submits an air

service termination notice under section 41719 for that route

and the Secretary determines that the carrier suffered excessive losses, including substantial losses on operations on that

route during the calendar quarters immediately preceding submission of the notice.’’.

§ 41718. Special rules for Ronald Reagan Washington Na- tional Airport

(a) BEYOND-PERIMETER EXEMPTIONS.—The Secretary shall

grant, by order, 24 exemptions from the application of sections

49104(a)(5), 49109, 49111(e), and 41714 of this title to air carriers to

operate limited frequencies and aircraft on select routes between

Ronald Reagan Washington National Airport and domestic hub airports and exemptions from the requirements of subparts K and S

of part 93, Code of Federal Regulations, if the Secretary finds that

the exemptions will—

(1) provide air transportation with domestic network benefits in areas beyond the perimeter described in that section;

(2) increase competition by new entrant air carriers or in

multiple markets;

(3) not reduce travel options for communities served by

small hub airports and medium hub airports within the perimeter described in section 49109; and

(4) not result in meaningfully increased travel delays.
74

(b) WITHIN-PERIMETER EXEMPTIONS.—The Secretary shall

grant, by order, 20 exemptions from the requirements of sections

49104(a)(5), 49111(e), and 41714 of this title and subparts K and S

of part 93 of title 14, Code of Federal Regulations, to air carriers for

providing air transportation to airports within the perimeter established for civil aircraft operations at Ronald Reagan Washington

National Airport under section 49109. The Secretary shall develop

criteria for distributing slot exemptions for flights within the perimeter to such airports under this paragraph in a manner that

promotes air transportation—

(1) by new entrant air carriers and limited incumbent air

carriers;

(2) to communities without existing nonstop air transportation to Ronald Reagan Washington National Airport;

(3) to small communities;

(4) that will provide competitive nonstop air transportation

on a monopoly nonstop route to Ronald Reagan Washington

National Airport; or

(5) that will produce the maximum competitive benefits,

including low fares.

(c) LIMITATIONS.—

(1) STAGE 3 AIRCRAFT REQUIRED.—An exemption may not

be granted under this section with respect to any aircraft that is

not a Stage 3 aircraft (as defined by the Secretary).

(2) GENERAL EXEMPTIONS.—The exemptions granted under

subsections (a) and (b) may not be for operations between the

hours of 10:00 p.m. and 7:00 a.m. and may not increase the

number of operations at Ronald Reagan Washington National

Airport in any 1-hour period during the hours between 7:00

a.m. and 9:59 p.m. by more than 3 operations.

(3) ALLOCATION OF WITHIN-PERIMETER EXEMPTIONS.—Of

the exemptions granted under subsection (b)—

(A) without regard to the criteria contained in sub- section (b)(1), six shall be for air transportation to small

hub airports and nonhub airports;

(B) ten shall be for air transportation to medium hub

and smaller airports; and

(C) four shall be for air transportation to airports

without regard to their size.

(4) APPLICABILITY TO EXEMPTION NO. 5133.—Nothing in this

section affects Exemption No. 5133, as from time-to-time

amended and extended.

(d) APPLICATION PROCEDURES.—The Secretary shall establish

procedures to ensure that all requests for exemptions under this

section are granted or denied within 90 days after the date on

which the request is made.

(e) APPLICABILITY OF CERTAIN LAWS.—Neither the request for, nor the granting of an exemption, under this section shall be considered for purposes of any Federal law a major Federal action significantly affecting the quality of the human environment.

(f) COMMUTERS DEFINED.—For purposes of aircraft operations at

Ronald Reagan Washington National Airport under subpart K of part

93 of title 14, Code of Federal Regulations, the term ‘‘commuters’’ means aircraft operations using aircraft having a certificated maximum seating capacity of 76 or less.

§ 41719. Air service termination notice

(a) IN GENERAL.—An air carrier may not terminate interstate

air transportation from a nonhub airport included on the Secretary

of Transportation’s latest published list of such airports, unless

such air carrier has given the Secretary at least 45 days’ notice before such termination.

(b) EXCEPTIONS.—The requirements of subsection (a) shall not

apply when—

(1) the carrier involved is experiencing a sudden or unforeseen financial emergency, including natural weather related

emergencies, equipment-related emergencies, and strikes;

(2) the termination of transportation is made for seasonal

purposes only;

(3) the carrier involved has operated at the affected

nonhub airport for 180 days or less;

(4) the carrier involved provides other transportation by jet

from another airport serving the same community as the af- fected nonhub airport; or

(5) the carrier involved makes alternative arrangements, such as a change of aircraft size, or other types of arrange- ments with a part 121 or part 135 air carrier, that continues

uninterrupted service from the affected nonhub airport.

(c) WAIVERS FOR REGIONAL/COMMUTER CARRIERS.—Before January 1, 1995, the Secretary shall establish terms and conditions

under which regional/commuter carriers can be excluded from the

termination notice requirement.

(d) DEFINITIONS.—In this section, the following definitions

apply:

(1) PART 121 AIR CARRIER.—The term ‘‘part 121 air carrier’’

means an air carrier to which part 121 of title 14, Code of Fed- eral Regulations, applies.

(2) PART 135 AIR CARRIER.—The term ‘‘part 135 air carrier’’

means an air carrier to which part 135 of title 14, Code of Fed- eral Regulations, applies.

(3) REGIONAL/COMMUTER CARRIERS.—The term ‘‘regional/

commuter carrier’’ means— (A) a part 135 air carrier; or

(B) a part 121 air carrier that provides air transportation exclusively with aircraft having a seating capacity of

no more than 70 passengers.

(4) TERMINATION.—The term ‘‘termination’’ means the cessation of all service at an airport by an air carrier.
75

§ 41720. Joint venture agreements

(a) DEFINITIONS.—In this section, the following definitions

apply:

(1) JOINT VENTURE AGREEMENT.—The term ‘‘joint venture

agreement’’ means an agreement between two or more major

air carriers on or after January 1, 1998, with regard to (A)

code-sharing, blocked-space arrangements, long-term wet

leases (as defined in section 207.1 of title 14, Code of Federal

Regulations) of a substantial number (as defined by the Secretary by regulation) of aircraft, or frequent flyer programs, or

(B) any other cooperative working arrangement (as defined by

the Secretary by regulation) between 2 or more major air carriers that affects more than 15 percent of the total number of

available seat miles offered by the major air carriers.

(2) MAJOR AIR CARRIER.—The term ‘‘major air carrier’’

means a passenger air carrier that is certificated under chapter 411 of this title and included in Carrier Group III under

criteria contained in section 04 of part 241 of title 14, Code of

Federal Regulations.

(b) SUBMISSION OF JOINT VENTURE AGREEMENT.—At least 30

days before a joint venture agreement may take effect, each of the

major air carriers that entered into the agreement shall submit to

the Secretary—

(1) a complete copy of the joint venture agreement and all

related agreements; and

(2) other information and documentary material that the

Secretary may require by regulation.

(c) EXTENSION OF WAITING PERIOD.—

(1) IN GENERAL.—The Secretary may extend the 30-day period referred to in subsection (b) until— (A) in the case of a joint venture agreement with re- gard to code-sharing, the 150th day following the last day of

such period; and

(B) in the case of any other joint venture agreement, the 60th day following the last day of such period. (2) PUBLICATION OF REASONS FOR EXTENSION.—If the Secretary extends the 30-day period referred to in subsection (b),

the Secretary shall publish in the Federal Register the Secretary’s reasons for making the extension.

(d) TERMINATION OF WAITING PERIOD.—At any time after the

date of submission of a joint venture agreement under subsection

(b), the Secretary may terminate the waiting periods referred to in

subsections (b) and (c) with respect to the agreement.

(e) REGULATIONS.—The effectiveness of a joint venture agreement may not be delayed due to any failure of the Secretary to

issue regulations to carry out this section.

(f) MEMORANDUM TO PREVENT DUPLICATIVE REVIEWS.—

Promptly after the date of enactment of this section, the Secretary

shall consult with the Assistant Attorney General of the Antitrust

Division of the Department of Justice in order to establish, through a

written memorandum of understanding, preclearance procedures to

prevent unnecessary duplication of effort by the Secretary and the

Assistant Attorney General under this section and the antitrust laws

of the United States, respectively.

(g) PRIOR AGREEMENTS.—With respect to a joint venture agreement entered into before the date of enactment of this section as

to which the Secretary finds that—

(1) the parties submitted the agreement to the Secretary

before such date of enactment; and

(2) the parties submitted all information on the agreement

requested by the Secretary,

the waiting period described in paragraphs (2) and (3) shall

begin on the date, as determined by the Secretary, on which all

such information was submitted and end on the last day to which

the period could be extended under this section.

(h) LIMITATION ON STATUTORY CONSTRUCTION.—The authority

granted to the Secretary under this section shall not in any way

limit the authority of the Attorney General to enforce the antitrust

laws as defined in the first section of the Clayton Act (15 U.S.C.

12).

§ 41721. Reports by carriers on incidents involving animals

during air transport

(a) IN GENERAL.—An air carrier that provides scheduled pas- senger air transportation shall submit monthly to the Secretary a

report on any incidents involving the loss, injury, or death of an

animal (as defined by the Secretary of Transportation) during air

transport provided by the air carrier. The report shall be in such

form and contain such information as the Secretary determines appropriate. (b) TRAINING OF AIR CARRIER EMPLOYEES.—The Secretary

shall work with air carriers to improve the training of employees

with respect to the air transport of animals and the notification of

passengers of the conditions under which the air transport of ani- mals is conducted.

(c) SHARING OF INFORMATION.—The Secretary and the Secretary of Agriculture shall enter into a memorandum of under- standing to ensure the sharing of information that the Secretary

receives under subsection (a).

(d) PUBLICATION OF DATA.—The Secretary shall publish data

on incidents and complaints involving the loss, injury, or death of

an animal during air transport in a manner comparable to other

consumer complaint and incident data.

(e) AIR TRANSPORT.—For purposes of this section, the air trans- port of an animal includes the entire period during which an ani- mal is in the custody of an air carrier, from check-in of the animal

prior to departure until the animal is returned to the owner or

guardian of the animal at the final destination of the animal.
76

§ 41722. Delay reduction actions

(a) SCHEDULING REDUCTION MEETINGS.—The Secretary of

Transportation may request that air carriers meet with the Administrator of the Federal Aviation Administration to discuss flight reductions at severely congested airports to reduce overscheduling

and flight delays during hours of peak operation if—

(1) the Administrator determines that it is necessary to

convene such a meeting; and

(2) the Secretary determines that the meeting is necessary

to meet a serious transportation need or achieve an important

public benefit.

(b) MEETING CONDITIONS.—Any meeting under subsection (a)—

(1) shall be chaired by the Administrator;

(2) shall be open to all scheduled air carriers; and

(3) shall be limited to discussions involving the airports

and time periods described in the Administrator’s determination.

(c) FLIGHT REDUCTION TARGETS.—Before any such meeting is

held, the Administrator shall establish flight reduction targets for

the meeting and notify the attending air carriers of those targets

not less than 48 hours before the meeting.

(d) DELAY REDUCTION OFFERS.—An air carrier attending the

meeting shall make any offer to meet a flight reduction target to

the Administrator rather than to another carrier.

(e) TRANSCRIPT.—The Administrator shall ensure that a transcript of the meeting is kept and made available to the public not

later than 3 business days after the conclusion of the meeting.

§ 41723. Notice concerning aircraft assembly

The Secretary of Transportation shall require, beginning after

the last day of the 18-month period following the date of enactment

of this section, an air carrier using an aircraft to provide scheduled

passenger air transportation to display a notice, on an information

placard available to each passenger on the aircraft, that informs

the passengers of the nation in which the aircraft was finally assembled.

SUBCHAPTER II—SMALL COMMUNITY AIR SERVICE

§ 41731. Definitions

(a) GENERAL.—In this subchapter—

(1) ‘‘eligible place’’ means a place in the United States

that—

(A)(i) was an eligible point under section 419 of the

Federal Aviation Act of 1958 before October 1, 1988;

(ii) received scheduled air transportation at any time

after January 1, 1990; and

(iii) is not listed in Department of Transportation Orders 89–9–37 and 89–12–52 as a place ineligible for compensation under this subchapter; or

(B) determined, 1 on or after October 1, 1988, and before the date of the enactment of the Wendell H. Ford

Aviation Investment and Reform Act for the 21st Century

[enacted Apr. 5, 2000], under this subchapter by the

Secretary to be eligible to receive subsidized small

community air service under section 41736(a).

(2) ‘‘enhanced essential air service’’ means scheduled air

transportation to an eligible place of a higher level or quality

than basic essential air service described in section 41732 of

this title.

(b) LIMITATION ON AUTHORITY TO DECIDE A PLACE NOT AN ELIGIBLE PLACE.—The Secretary of Transportation may not decide

that a place described in subsection (a)(1) of this section is not an

eligible place on the basis of a passenger subsidy at that place or

on another basis that is not specifically stated in this subchapter.

§ 41732. Basic essential air service

(a) GENERAL.—Basic essential air service provided under section 41733 of this title is scheduled air transportation of passengers

and cargo—

(1) to a hub airport that has convenient connecting or single-plane air service to a substantial number of destinations

beyond that airport; or

(2) to a small hub or nonhub airport, when in Alaska or

when the nearest hub airport is more than 400 miles from an

eligible place.

(b) MINIMUM REQUIREMENTS.—Basic essential air service shall

include at least the following:

(1)(A) for a place not in Alaska, 2 daily round trips 6 days

a week, with not more than one intermediate stop on each

flight; or

(B) for a place in Alaska, a level of service at least equal

to that provided in 1976 or 2 round trips a week, whichever

is greater, except that the Secretary of Transportation and the

appropriate State authority of Alaska may agree to a different

level of service after consulting with the affected community. (2) flights at reasonable times considering the needs of

passengers with connecting flights at the airport and at prices

that are not excessive compared to the generally prevailing

prices of other air carriers for like service between similar

places.

(3) for a place not in Alaska, service provided in an aircraft

with an effective capacity of at least 15 passengers if the aver- age daily boardings at the place in any calendar year from

1976-1986 were more than 11 passengers unless—

(A) that level-of-service requirement would require

paying compensation in a fiscal year under section

41733(d) or 41734(d) or (e) of this title for the place when

compensation otherwise would not have been paid for that
77

place in that year; or

(B) the affected community agrees with the Secretary

in writing to the use of smaller aircraft to provide service

to the place.

(4) service accommodating the estimated passenger and

property traffic at an average load factor, for each class of traffic considering seasonal demands for the service, of not more

than—

(A) 50 percent; or

(B) 60 percent when service is provided by aircraft

with more than 14 passenger seats.

(5) service provided in aircraft with at least 2 engines and

using 2 pilots, unless scheduled air transportation has not been

provided to the place in aircraft with at least 2 engines and

using 2 pilots for at least 60 consecutive operating days at any

time since October 31, 1978.

(6) service provided by pressurized aircraft when the service is provided by aircraft that regularly fly above 8,000 feet

in altitude.

§ 41733. Level of basic essential air service

(a) DECISIONS MADE BEFORE OCTOBER 1, 1988.—For each eligible place for which a decision was made before October 1, 1988,

under section 419 of the Federal Aviation Act of 1958, establishing

the level of essential air transportation, the level of basic essential

air service for that place shall be the level established by the Secretary of Transportation for that place by not later than December

29, 1988.

(b) DECISIONS NOT MADE BEFORE OCTOBER 1, 1988.—(1) The

Secretary shall decide on the level of basic essential air service for

each eligible place for which a decision was not made before October 1, 1988, establishing the level of essential air transportation,

when the Secretary receives notice that service to that place will

be provided by only one air carrier. The Secretary shall make the

decision by the last day of the 6-month period beginning on the

date the Secretary receives the notice. The Secretary may impose

notice requirements necessary to carry out this subsection. Before

making a decision, the Secretary shall consider the views of any interested community and the appropriate State authority of the

State in which the community is located.

(2) Until the Secretary has made a decision on a level of basic

essential air service for an eligible place under this subsection, the

Secretary, on petition by an appropriate representative of the place,

shall prohibit an air carrier from ending, suspending, or reducing

air transportation to that place that appears to deprive the place

of basic essential air service.

(c) AVAILABILITY OF COMPENSATION.—(1) If the Secretary decides that basic essential air service will not be provided to an eligible place without compensation, the Secretary shall provide no- tice that an air carrier may apply to provide basic essential air

service to the place for compensation under this section. In selecting an applicant, the Secretary shall consider, among other

factors—

(A) the demonstrated reliability of the applicant in providing scheduled air service;

(B) the contractual and marketing arrangements the applicant has made with a larger carrier to ensure service beyond

the hub airport;

(C) the interline arrangements that the applicant has

made with a larger carrier to allow passengers and cargo of the

applicant at the hub airport to be transported by the larger

carrier through one reservation, ticket, and baggage check-in;

(D) the preferences of the actual and potential users of air

transportation at the eligible place, giving substantial weight

to the views of the elected officials representing the users; and

(E) for an eligible place in Alaska, the experience of the

applicant in providing, in Alaska, scheduled air service, or significant patterns of non-scheduled air service under an exemption granted under section 40109(a) and (c)–(h) of this title.

(2) Under guidelines prescribed under section 41737(a) of this

title, the Secretary shall pay the rate of compensation for providing

basic essential air service under this section and section 41734 of

this title.

(d) COMPENSATION PAYMENTS.—The Secretary shall pay compensation under this section at times and in the way the Secretary

decides is appropriate. The Secretary shall end payment of compensation to an air carrier for providing basic essential air service

to an eligible place when the Secretary decides the compensation

is no longer necessary to maintain basic essential air service to the

place.

(e) REVIEW.—The Secretary shall review periodically the level

of basic essential air service for each eligible place. Based on the

review and consultations with an interested community and the appropriate State authority of the State in which the community is

located, the Secretary may make appropriate adjustments in the

level of service, to the extent such adjustments are to a level not

less than the basic essential air service level established under subsection (a) for the airport that serves the community.

§ 41734. Ending, suspending, and reducing basic essential

air service

(a) NOTICE REQUIRED.—An air carrier may end, suspend, or reduce air transportation to an eligible place below the level of basic

essential air service established for that place under section 41733

of this title only after giving the Secretary of Transportation, the

appropriate State authority, and the affected communities at least

90 days’ notice before ending, suspending, or reducing that transportation.

(b) CONTINUATION OF SERVICE FOR 30 DAYS AFTER NOTICE PE-
78

RIOD.—If at the end of the notice period under subsection (a) of this

section the Secretary has not found another air carrier to provide

basic essential air service to the eligible place, the Secretary shall

require the carrier providing notice to continue to provide basic essential air service to the place for an additional 30-day period or

until another carrier begins to provide basic essential air service to

the place, whichever occurs first.

(c) CONTINUATION OF SERVICE FOR ADDITIONAL 30-DAY PERIODS.—If at the end of the 30-day period under subsection (b) of this

section the Secretary decides another air carrier will not provide

basic essential air service to the place on a continuing basis, the

Secretary shall require the carrier providing service to continue to

provide service for additional 30-day periods until another carrier

begins providing service on a continuing basis. At the end of each

30-day period, the Secretary shall decide if another carrier will pro- vide service on a continuing basis.

(d) CONTINUATION OF COMPENSATION AFTER NOTICE PERIOD.—

If an air carrier receiving compensation under section 41733 of this

title for providing basic essential air service to an eligible place is

required to continue to provide service to the place under this section after the 90-day notice period under subsection (a) of this section, the Secretary shall continue to pay that compensation after

the last day of that period. The Secretary shall pay the compensation until the Secretary finds another carrier to provide the service

to the place or the 90th day after the end of that notice period,

whichever is earlier. If, after the 90th day after the end of the 90-

day notice period, the Secretary has not found another carrier to

provide the service, the carrier required to continue to provide that

service shall receive compensation sufficient—

(1) to pay for the fully allocated actual cost to the carrier

of performing the basic essential air service that was being

provided when the 90-day notice was given under subsection

(a) of this section plus a reasonable return on investment that

is at least 5 percent of operating costs; and

(2) to provide the carrier an additional return that recognizes the demonstrated additional lost profits from opportunities foregone and the likelihood that those lost profits increase

as the period during which the carrier is required to provide

the service continues.

(e) COMPENSATION TO AIR CARRIERS ORIGINALLY PROVIDING

SERVICE WITHOUT COMPENSATION.—If the Secretary requires an

air carrier providing basic essential air service to an eligible place

without compensation under section 41733 of this title to continue

providing that service after the 90-day notice period required by

subsection (a) of this section, the Secretary shall provide the carrier

with compensation after the end of the 90-day notice period that

is sufficient—

(1) to pay for the fully allocated actual cost to the carrier

of performing the basic essential air service that was being

provided when the 90-day notice was given under subsection

(a) of this section plus a reasonable return on investment that

is at least 5 percent of operating costs; and

(2) to provide the carrier an additional return that recog- nizes the demonstrated additional lost profits from opportuni- ties foregone and the likelihood that those lost profits increase

as the period during which the carrier is required to provide

the service continues.

(f) FINDING REPLACEMENT CARRIERS.—When the Secretary requires an air carrier to continue to provide basic essential air service to an eligible place, the Secretary shall continue to make every

effort to find another carrier to provide at least that basic essential

air service to the place on a continuing basis.

(g) TRANSFER OF AUTHORITY.—If an air carrier, providing basic

essential air service under section 41733 of this title between an

eligible place and an airport at which the Administrator of the Federal Aviation Administration limits the number of instrument

flight rule takeoffs and landings of aircraft, provides notice under

subsection (a) of this section of an intention to end, suspend, or reduce that service and another carrier is found to provide the service, the Secretary shall require the carrier providing notice to

transfer any operational authority the carrier has to land or take

off at that airport related to the service to the eligible place to the

carrier that will provide the service, if—

(1) the carrier that will provide the service needs the authority; and

(2) the authority to be transferred is being used to provide

air service to another eligible place.

(h) NONCONSIDERATION OF SLOT AVAILABILITY.—In determining what is basic essential air service and in selecting an air

carrier to provide such service, the Secretary shall not consider as

a factor whether slots at a high density airport are available for

providing such service.

(i) EXEMPTION FROM HOLD-IN REQUIREMENTS.—If, after the

date of enactment of this subsection, an air carrier commences air

transportation to an eligible place that is not receiving scheduled

passenger air service as a result of the failure of the eligible place

to meet requirements contained in an appropriations Act, the air

carrier shall not be subject to the requirements of subsections (b)

and (c) with respect to such air transportation.

§ 41735. Enhanced essential air service

(a) PROPOSALS.—(1) A State or local government may submit a

proposal to the Secretary of Transportation for enhanced essential

air service to an eligible place for which basic essential air service

is being provided under section 41733 of this title. The proposal

shall—

(A) specify the level and type of enhanced essential air

service the State or local government considers appropriate;

and

(B) include an agreement related to compensation required
79

for the proposed service.

(2) The agreement submitted under paragraph (1)(B) of this

subsection shall provide that—

(A) the State or local government or a person pay 50 per- cent of the compensation required for the proposed service and

the United States Government pay the remaining 50 percent;

or

(B)(i) the Government pay 100 percent of the compensa- tion; and

(ii) if the proposed service is not successful for at least a

2-year period under the criteria prescribed by the Secretary

under paragraph (3) of this subsection, the eligible place is not

eligible for air service or air transportation for which com- pensation is paid by the Secretary under this subchapter.

(3) The Secretary shall prescribe by regulation objective cri- teria for deciding whether enhanced essential air service to an eli- gible place under this section is successful in terms of—

(A) increasing passenger usage of the airport facilities at

the place; and

(B) reducing the amount of compensation provided by the

Secretary under this subchapter for that service.

(b) DECISIONS.—Not later than 90 days after receiving a proposal under subsection (a) of this section, the Secretary shall—

(1) approve the proposal if the Secretary decides the proposal is reasonable; or

(2) if the Secretary decides the proposal is not reasonable,

disapprove the proposal and notify the State or local government of the disapproval and the reasons for the disapproval.

(c) COMPENSATION PAYMENTS.—(1) The Secretary shall pay

compensation under this section when and in the way the Secretary decides is appropriate. Compensation for enhanced essential

air service under this section may be paid only for the costs incurred in providing air service to an eligible place that are in addition to the costs incurred in providing basic essential air service to

the place under section 41733 of this title. The Secretary shall continue to pay compensation under this section only as long as—

(A) the air carrier maintains the level of enhanced essen- tial air service;

(B) the State or local government or person agreeing to

pay compensation under this section continues to pay the com- pensation; and

(C) the Secretary decides the compensation is necessary to

maintain the service to the place. (2) The Secretary may require the State or local government or

person agreeing to pay compensation under this section to make

advance payments or provide other security to ensure that timely

payments are made.

(d) REVIEW.—(1) The Secretary shall review periodically the

enhanced essential air service provided to each eligible place under

this section.

(2) For service for which the Government pays 50 percent of

the compensation, based on the review and consultation with the

affected community and the State or local government or person

paying the remaining 50 percent of the compensation, the Secretary shall make appropriate adjustments in the type and level of

service to the place.

(3) For service for which the Government pays 100 percent of

the compensation, based on the review and consultation with the

State or local government submitting the proposal, the Secretary

shall decide whether the service has succeeded for at least a 2-year

period under the criteria prescribed under subsection (a)(3) of this

section. If unsuccessful, the place is not eligible for air service or

air transportation for which compensation is paid by the Secretary

under this subchapter.

(e) ENDING, SUSPENDING, AND REDUCING AIR TRANSPORTATION.—An air carrier may end, suspend, or reduce air transportation to an eligible place below the level of enhanced essential air

service established for that place by the Secretary under this section only after giving the Secretary, the affected community, and

the State or local government or person paying compensation for

that service at least 30 days’ notice before ending, suspending, or

reducing the service. This subsection does not relieve the carrier of

an obligation under section 41734 of this title.

§ 41736. Air transportation to noneligible places

(a) PROPOSALS AND DECISIONS.—(1) A State or local government may propose to the Secretary of Transportation that the Secretary provide compensation to an air carrier to provide air transportation to a place that is not an eligible place under this subchapter. Not later than 90 days after receiving a proposal under

this section, the Secretary shall—

(A) decide whether to designate the place as eligible to receive compensation under this section; and

(B)(i) approve the proposal if the State or local government

or a person is willing and able to pay 50 percent of the compensation for providing the transportation, and notify the State

or local government of the approval; or

(ii) disapprove the proposal if the Secretary decides the

proposal is not reasonable under paragraph (2) of this subsection, and notify the State or local government of the disapproval and the reasons for the disapproval.

(2) In deciding whether a proposal is reasonable, the Secretary

shall consider, among other factors—

(A) the traffic-generating potential of the place;

(B) the cost to the United States Government of providing

the proposed transportation; and

(C) the distance of the place from the closest hub airport.

(b) APPROVAL FOR CERTAIN AIR TRANSPORTATION.—Notwith- standing subsection (a)(1)(B) of this section, the Secretary shall approve a proposal under this section to compensate an air carrier for

providing air transportation to a place in the 48 contiguous States
80

or the District of Columbia and designate the place as eligible for

compensation under this section if—

(1) at any time before October 23, 1978, the place was

served by a carrier holding a certificate under section 401 of

the Federal Aviation Act of 1958;

(2) the place is more than 50 miles from the nearest small

hub airport or an eligible place;

(3) the place is more than 150 miles from the nearest hub

airport; and

(4) the State or local government submitting the proposal

or a person is willing and able to pay 25 percent of the cost

of providing the compensated transportation.

Paragraph (4) does not apply to any community approved for serv- ice under this section during the period beginning October 1, 1991, and ending December 31, 1997.

(c) LEVEL OF AIR TRANSPORTATION.—(1) If the Secretary designates a place under subsection (a)(1) of this section as eligible for

compensation under this section, the Secretary shall decide, not

later than 6 months after the date of the designation, on the level

of air transportation to be provided under this section. Before making a decision, the Secretary shall consider the views of any interested community, the appropriate State authority of the State in

which the place is located, and the State or local government or

person agreeing to pay compensation for the transportation under

subsection (b)(4) of this section. (2) After making the decision under paragraph (1) of this subsection, the Secretary shall provide notice that any air carrier that

is willing to provide the level of air transportation established

under paragraph (1) for a place may submit an application to provide the transportation. In selecting an applicant, the Secretary

shall consider, among other factors—

(A) the factors listed in section 41733(c)(1) of this title; and

(B) the views of the State or local government or person

agreeing to pay compensation for the transportation.

(d) COMPENSATION PAYMENTS.—(1) The Secretary shall pay

compensation under this section when and in the way the Secretary decides is appropriate. The Secretary shall continue to pay

compensation under this section only as long as—

(A) the air carrier maintains the level of air transportation

established by the Secretary under subsection (c)(1) of this section;

(B) the State or local government or person agreeing to

pay compensation for transportation under this section continues to pay that compensation; and

(C) the Secretary decides the compensation is necessary to

maintain the transportation to the place. (2) The Secretary may require the State or local government or

person agreeing to pay compensation under this section to make

advance payments or provide other security to ensure that timely

payments are made.

(e) REVIEW.—The Secretary shall review periodically the level

of air transportation provided under this section. Based on the re- view and consultation with any interested community, the appropriate State authority of the State in which the community is located, and the State or local government or person paying compensation under this section, the Secretary may make appropriate

adjustments in the level of transportation.

(f) WITHDRAWAL OF ELIGIBILITY DESIGNATIONS.—After providing notice and an opportunity for interested persons to comment, the Secretary may withdraw the designation of a place under

subsection (a)(1) of this section as eligible to receive compensation

under this section if the place has received air transportation

under this section for at least 2 years and the Secretary decides the

withdrawal would be in the public interest. The Secretary by regulation shall prescribe standards for deciding whether the withdrawal of a designation under this subsection is in the public interest. The standards shall include the factors listed in subsection

(a)(2) of this section.

(g) ENDING, SUSPENDING, AND REDUCING AIR TRANSPORTATION.—An air carrier providing air transportation for compensation under this section may end, suspend, or reduce that transportation below the level of transportation established by the Secretary under this section only after giving the Secretary, the affected community, and the State or local government or person

paying compensation under this section at least 30 days’ notice before ending, suspending, or reducing the transportation.

§ 41737. Compensation guidelines, limitations, and claims

(a) COMPENSATION GUIDELINES.—(1) The Secretary of Transportation shall prescribe guidelines governing the rate of compensation payable under this subchapter. The guidelines shall be

used to determine the reasonable amount of compensation required

to ensure the continuation of air service or air transportation under

this subchapter. The guidelines shall—

(A) provide for a reduction in compensation when an air

carrier does not provide service or transportation agreed to be

provided;

(B) consider amounts needed by an air carrier to promote

public use of the service or transportation for which compensation is being paid; and

(C) include expense elements based on representative costs

of air carriers providing scheduled air transportation of passengers, property, and mail on aircraft of the type the Secretary decides is appropriate for providing the service or transportation for which compensation is being provided.

(2) Promotional amounts described in paragraph (1)(B) of this

subsection shall be a special, segregated element of the compensation provided to a carrier under this subchapter.

(b) REQUIRED FINDING.—The Secretary may pay compensation

to an air carrier for providing air service or air transportation
81

under this subchapter only if the Secretary finds the carrier is able

to provide the service or transportation in a reliable way.

(c) CLAIMS.—Not later than 15 days after receiving a written

claim from an air carrier for compensation under this subchapter,

the Secretary shall—

(1) pay or deny the United States Government’s share of

a claim; and

(2) if denying the claim, notify the carrier of the denial and

the reasons for the denial.

(d) AUTHORITY TO MAKE AGREEMENTS AND INCUR OBLIGATIONS.—(1) The Secretary may make agreements and incur obligations from the Airport and Airway Trust Fund established under

section 9502 of the Internal Revenue Code of 1986 (26 U.S.C. 9502)

to pay compensation under this subchapter. An agreement by the

Secretary under this subsection is a contractual obligation of the

Government to pay the Government’s share of the compensation. (2) Not more than $38,600,000 is available to the Secretary out

of the Fund for each of the fiscal years ending September 30, 1993– 1998, to incur obligations under this section. Amounts made avail- able under this section remain available until expended.

(e) ADJUSTMENTS TO ACCOUNT FOR SIGNIFICANTLY INCREASED

COSTS.—

(1) IN GENERAL.—If the Secretary determines that air car- riers are experiencing significantly increased costs in providing

air service or air transportation for which compensation is

being paid under this subchapter, the Secretary may increase

the rates of compensation payable under this subchapter with- out regard to any agreement or requirement relating to the re- negotiation of contracts or any notice requirement under sec- tion 41734.

(2) READJUSTMENT IF COSTS SUBSEQUENTLY DECLINE.—If

an adjustment is made under paragraph (1), and total unit

costs subsequently decrease to at least the total unit cost reflected in the compensation rate, then the Secretary may reverse the adjustment previously made under paragraph (1)

without regard to any agreement or requirement relating to

the renegotiation of contracts or any notice requirement under

section 41734. (3) SIGNIFICANTLY INCREASED COSTS DEFINED.—In this subsection, the term ‘‘significantly increased costs’’ means a total

unit cost increase (but not increases in individual unit costs)

of 10 percent or more in relation to the total unit cost reflected

in the compensation rate, based on the carrier’s internal audit

of its financial statements if such cost increase is incurred for

a period of at least 2 consecutive months.

§ 41738. Fitness of air carriers

Notwithstanding section 40109(a) and (c)–(h) of this title, an

air carrier may provide air service to an eligible place or air transportation to a place designated under section 41736 of this title

only when the Secretary of Transportation decides that—

(1) the carrier is fit, willing, and able to perform the serv- ice or transportation; and

(2) aircraft used to provide the service or transportation,

and operations related to the service or transportation, conform

to the safety standards prescribed by the Administrator of the

Federal Aviation Administration.

§ 41739. Air carrier obligations

If at least 2 air carriers make an agreement to operate under

or use a single carrier designator code to provide air transportation, the carrier whose code is being used shares responsibility

with the other carriers for the quality of transportation provided

the public under the code by the other carriers.

§ 41740. Joint proposals

The Secretary of Transportation shall encourage the submission of joint proposals, including joint fares, by 2 or more air carriers for providing air service or air transportation under this subchapter through arrangements that maximize the service or transportation to and from major destinations beyond the hub.

§ 41741. Insurance

The Secretary of Transportation may pay an air carrier compensation under this subchapter only when the carrier files with

the Secretary an insurance policy or self-insurance plan approved

by the Secretary. The policy or plan must be sufficient to pay for

bodily injury to, or death of, an individual, or for loss of or damage

to property of others, resulting from the operation of aircraft, but

not more than the amount of the policy or plan limits.

§ 41742. Essential air service authorization

(a) IN GENERAL.—

(1)AUTHORIZATION.—Out of the amounts received by the

Federal Aviation Administration credited to the account established under section 45303 of this title or otherwise provided

to the Administration, the sum of $50,000,000 is authorized

and shall be made available immediately for obligation and expenditure to carry out the essential air service program under

this subchapter for each fiscal year.

(2) ADDITIONAL FUNDS.—In addition to amounts authorized

under paragraph (1), there is authorized to be appropriated

$77,000,000 for each fiscal year to carry out the essential air

service program under this subchapter of which not more than

$12,000,000 per fiscal year may be used for the marketing incentive program for communities and for State marketing assistance.

(3) AUTHORIZATION FOR ADDITIONAL EMPLOYEES.—In addition to amounts authorized under paragraphs (1) and (2), there
82

are authorized to be appropriated such sums as may be necessary for the Secretary of Transportation to hire and employ

4 additional employees for the office responsible for carrying

out the essential air service program.

(b) FUNDING FOR SMALL COMMUNITY AIR SERVICE.—Notwithstanding any other provision of law, moneys credited to the account

established under section 45303(a) of this title, including the funds

derived from fees imposed under the authority contained in section

45301(a) of this title, shall be used to carry out the essential air

service program under this subchapter. Notwithstanding section

47114(g) of this title, any amounts from those fees that are not obligated or expended at the end of the fiscal year for the purpose of

funding the essential air service program under this subchapter

shall be made available to the Administration for use in improving

rural air safety under subchapter I of chapter 471 of this title and

shall be used exclusively for projects at rural airports under this

subchapter.

§ 41743. Airports not receiving sufficient service

(a) SMALL COMMUNITY AIR SERVICE DEVELOPMENT PROGRAM.—

The Secretary of Transportation shall establish a program that

meets the requirements of this section for improving air carrier

service to airports not receiving sufficient air carrier service.

(b) APPLICATION REQUIRED.—In order to participate in the program established under subsection (a), a community or consortium

of communities shall submit an application to the Secretary in such

form, at such time, and containing such information as the Secretary may require, including—

(1) an assessment of the need of the community or consortium for access, or improved access, to the national air transportation system; and

(2) an analysis of the application of the criteria in subsection (c) to that community or consortium.

(c) CRITERIA FOR PARTICIPATION.—In selecting communities, or

consortia of communities, for participation in the program established under subsection (a), the Secretary shall apply the following

criteria:

(1) SIZE.—For calendar year 1997, the airport serving the

community or consortium was not larger than a small hub airport, and—

(A) had insufficient air carrier service; or

(B) had unreasonably high air fares.

(2) CHARACTERISTICS.—The airport presents characteristics, such as geographic diversity or unique circumstances, that

will demonstrate the need for, and feasibility of, the program

established under subsection (a).

(3) STATE LIMIT.—Not more than 4 communities or consortia of communities, or a combination thereof, from the same

State may be selected to participate in the program in any fiscal year.

(4) OVERALL LIMIT.—No more than 40 communities or consortia of communities, or a combination thereof, may be selected to participate in the program in each year for which

funds are appropriated for the program. No community, consortia of communities, nor combination thereof may participate

in the program in support of the same project more than once,

but any community, consortia of communities, or combination

thereof may apply, subsequent to such participation, to participate in the program in support of a different project.

(5) PRIORITIES.—The Secretary shall give priority to communities or consortia of communities where—

(A) air fares are higher than the average air fares for

all communities;

(B) the community or consortium will provide a portion of the cost of the activity to be assisted under the program from local sources other than airport revenues;

(C) the community or consortium has established, or

will establish, a public-private partnership to facilitate air

carrier service to the public;

(D) the assistance will provide material benefits to a

broad segment of the travelling public, including business,

educational institutions, and other enterprises, whose access to the national air transportation system is limited;

and

(E) the assistance will be used in a timely fashion.

(d) TYPES OF ASSISTANCE.—The Secretary may use amounts

made available under this section—

(1) to provide assistance to an air carrier to subsidize serv- ice to and from an underserved airport for a period not to exceed 3 years;

(2) to provide assistance to an underserved airport to ob- tain service to and from the underserved airport; and

(3) to provide assistance to an underserved airport to im- plement such other measures as the Secretary, in consultation

with such airport, considers appropriate to improve air service

both in terms of the cost of such service to consumers and the

availability of such service, including improving air service

through marketing and promotion of air service and enhanced

utilization of airport facilities. (e) AUTHORITY TO MAKE AGREEMENTS.—

(1) IN GENERAL.—The Secretary may make agreements to

provide assistance under this section.

(2) AUTHORIZATION OF APPROPRIATIONS.—There is author- ized to be appropriated to the Secretary $20,000,000 for fiscal

year 2001, $27,500,000 for each of fiscal years 2002 and 2003, and $35,000,000 for each of fiscal years 2004 through 2008 to

carry out this section. Such sums shall remain available until

expended.

(f) ADDITIONAL ACTION.—Under the program established under

subsection (a), the Secretary shall work with air carriers providing

service to participating communities and major air carriers (as de-
83

fined in section 41716(a)(2)) serving large hub airports to facilitate

joint-fare arrangements consistent with normal industry practice. (g) DESIGNATION OF RESPONSIBLE OFFICIAL.—The Secretary

shall designate an employee of the Department of Transportation—

(1) to function as a facilitator between small communities

and air carriers;

(2) to carry out this section;

(3) to ensure that the Bureau of Transportation Statistics

collects data on passenger information to assess the service

needs of small communities;

(4) to work with and coordinate efforts with other Federal,

State, and local agencies to increase the viability of service to

small communities and the creation of aviation development

zones; and

(5) to provide policy recommendations to the Secretary and

Congress that will ensure that small communities have access

to quality, affordable air transportation services.

(h) AIR SERVICE DEVELOPMENT ZONE.—The Secretary shall

designate an airport in the program as an Air Service Development

Zone and work with the community or consortium on means to attract business to the area surrounding the airport, to develop land

use options for the area, and provide data, working with the Department of Commerce and other agencies.

§ 41744. Preservation of basic essential air service at single

carrier dominated hub airports

(a) IN GENERAL.—If the Secretary of Transportation deter- mines that extraordinary circumstances jeopardize the reliable performance of essential air service under this subchapter from a subsidized essential air service community to and from an essential

airport facility, the Secretary may require an air carrier that has

more than 60 percent of the total annual enplanements at the essential airport facility to take action to enable another air carrier

to provide reliable essential air service to that community. Actions

required by the Secretary under this subsection may include interline agreements, ground services, subleasing of gates, and the provision of any other service or facility necessary for the performance

of satisfactory essential air service to that community.

(b) ESSENTIAL AIRPORT FACILITY DEFINED.—In this section, the

term ‘‘essential airport facility’’ means a large hub airport in the

contiguous 48 States at which one air carrier has more than 60

percent of the total annual enplanements at that airport.

§ 41745. Community and regional choice programs

(a) ALTERNATE ESSENTIAL AIR SERVICE PILOT PROGRAM.—

(1) ESTABLISHMENT.—The Secretary of Transportation

shall establish an alternate essential air service pilot program

in accordance with the requirements of this section. (2) ASSISTANCE TO ELIGIBLE PLACES.—In carrying out the

program, the Secretary, instead of paying compensation to an

air carrier to provide essential air service to an eligible place, may provide assistance directly to a unit of local government

having jurisdiction over the eligible place or a State within the

boundaries of which the eligible place is located.

(3) USE OF ASSISTANCE.—A unit of local government or

State receiving assistance for an eligible place under the program may use the assistance for any of the following purposes:

(A) To provide assistance to air carriers that will use

smaller equipment to provide the service and to consider

increasing the frequency of service using such smaller

equipment if the Secretary determines that passenger

safety would not be compromised by the use of such smaller equipment and if the State or unit of local government

waives the minimum service requirements under section

41732(b).

(B) To provide assistance to an air carrier to provide

on-demand air taxi service to and from the eligible place.

(C) To provide assistance to a person to provide scheduled or on-demand surface transportation to and from the

eligible place and an airport in another place.

(D) In combination with other units of local government in the same region, to provide transportation services

to and from all the eligible places in that region at an airport or other transportation center that can serve all the

eligible places in that region.

(E) To purchase aircraft to provide transportation to

and from the eligible place or to purchase a fractional

share in an aircraft to provide such transportation after

the effective date of a rule the Secretary issues relating to

fractional ownership.

(F) To pay for other transportation or related services

that the Secretary may permit.

(b) COMMUNITY FLEXIBILITY PILOT PROGRAM.—

(1) IN GENERAL.—The Secretary shall establish a pilot program for not more than 10 eligible places or consortia of units

of local government.

(2) ELECTION.—Under the program, the sponsor of an airport serving an eligible place may elect to forego any essential

air service for which compensation is being provided under this

subchapter for a 10-year period in exchange for a grant from

the Secretary equal in value to twice the compensation paid to

provide such service in the most recent 12-month period.

(3) GRANT.—Notwithstanding any other provision of law,

the Secretary shall make a grant to each airport sponsor participating in the program for use on any project that—

(A) is eligible for assistance under chapter 471 and

complies with the requirements of that chapter;

(B) is located on the airport property; or

(C) will improve airport facilities in a way that would

make such facilities more usable for general aviation.
84

(c) FRACTIONALLY OWNED AIRCRAFT.—After the effective date

of the rule referred to in subsection (a)(3)(E), only those operating

rules that relate to an aircraft that is fractionally owned apply

when an aircraft described in subsection (a)(3)(E) is used to provide

transportation described in subsection (a)(3)(E).

(d) APPLICATIONS.—

(1) IN GENERAL.—An entity seeking to participate in a program under this section shall submit to the Secretary an application in such form and containing such information as the

Secretary may require.

(2) REQUIRED INFORMATION.—At a minimum, the application shall include—

(A) a statement of the amount of compensation or assistance required; and

(B) a description of how the compensation or assistance will be used.

(e) PARTICIPATION REQUIREMENTS.—An eligible place for which

compensation or assistance is provided under this section in a fiscal

year shall not be eligible in that fiscal year for the essential air

service that it would otherwise be entitled to under this subchapter.

(f) SUBSEQUENT PARTICIPATION.—A unit of local government

participating in the program under this subsection (a) in a fiscal

year shall not be prohibited from participating in the basic essential air service program under this subchapter in a subsequent fiscal year if such unit is otherwise eligible to participate in such program.

(g) FUNDING.—Amounts appropriated or otherwise made available to carry out the essential air service program under this subchapter shall be available to carry out this section.

§ 41746. Tracking service

The Secretary of Transportation shall require a carrier that

provides essential air service to an eligible place and that receives

compensation for such service under this subchapter to report not

less than semiannually—

(1) the percentage of flights to and from the place that arrive on time as defined by the Secretary; and

(2) such other information as the Secretary considers necessary to evaluate service provided to passengers traveling to

and from such place.

§ 41747. EAS local participation program

(a) IN GENERAL.—The Secretary of Transportation shall establish a pilot program under which not more than 10 designated essential air service communities located in proximity to hub airports

are required to assume 10 percent of their essential air service subsidy costs for a 4-year period.

(b) DESIGNATION OF COMMUNITIES.—

(1) IN GENERAL.—The Secretary may not designate any

community under this section unless it is located within 100

miles by road of a hub airport and is not located in a noncontiguous State. In making the designation, the Secretary

may take into consideration the total traveltime between a

community and the nearest hub airport, taking into account

terrain, traffic, weather, road conditions, and other relevant

factors.

(2) ONE COMMUNITY PER STATE.—The Secretary may not

designate—

(A) more than 1 community per State under this section; or

(B) a community in a State in which another community that is eligible to participate in the essential air service program has elected not to participate in the essential

air service program as part of a pilot program under section 41745.

(c) APPEAL OF DESIGNATION.—A community may appeal its

designation under this section. The Secretary may withdraw the

designation of a community under this section based on—

(1) the airport sponsor’s ability to pay; or

(2) the relative lack of financial resources in a community,

based on a comparison of the median income of the community

with other communities in the State.

(d) NON-FEDERAL SHARE.—

(1) NON-FEDERAL AMOUNTS.—For purposes of this section,

the non-Federal portion of the essential air service subsidy

may be derived from contributions in kind, or through reduction in the amount of the essential air service subsidy through

reduction of air carrier costs, increased ridership, prepurchase

of tickets, or other means. The Secretary shall provide assistance to designated communities in identifying potential means

of reducing the amount of the subsidy without adversely affecting air transportation service to the community.

(2) APPLICATION WITH OTHER MATCHING REQUIREMENTS.—

This section shall apply to the Federal share of essential air

service provided this subchapter, after the application of any

other non-Federal share matching requirements imposed by

law.

(e) ELIGIBILITY FOR OTHER PROGRAMS NOT AFFECTED.—Noth- ing in this section affects the eligibility of a community or consortium of communities, an airport sponsor, or any other person to

participate in any program authorized by this subchapter. A community designated under this section may participate in any program (including pilot programs) authorized by this subchapter for

which it is otherwise eligible— (1) without regard to any limitation on the number of com- munities that may participate in that program; and

(2) without reducing the number of other communities that

may participate in that program.
85

(f) SECRETARY TO REPORT TO CONGRESS ON IMPACT.—The Secretary shall transmit a report to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on

Transportation and Infrastructure of the House of Representatives

on—

(1) the economic condition of communities designated

under this section before their designation;

(2) the impact of designation under this section on such

communities at the end of each of the 3 years following their

designation; and

(3) the impact of designation on air traffic patterns affect- ing air transportation to and from communities designated

under this section.

§ 41748. Marketing program

(a) IN GENERAL.—The Secretary of Transportation shall establish a marketing incentive program for eligible places that receive

subsidized service by an air carrier under section 41733. Under the

program, the sponsor of the airport serving such an eligible place

may receive a grant of not more than $50,000 in a fiscal year to

develop and implement a marketing plan to increase passenger

boardings and the level of passenger usage of its airport facilities.

(b) MATCHING REQUIREMENT; SUCCESS BONUSES—

(1) IN GENERAL.—Except as provided in paragraphs (2) and

(3), not less than 25 percent of the publicly financed costs associated with a marketing plan to be developed and implemented

under this section shall come from non-Federal sources. For

purposes of this section—

(A) the non-Federal portion of the publicly financed

costs may be derived from contributions in kind; and

(B) matching contributions from a State or unit of

local government may not be derived, directly or indirectly,

from Federal funds, but the use by the State or unit of

local government of proceeds from the sale of bonds to provide the matching contribution is not considered to be a

contribution derived directly or indirectly from Federal

funds, without regard to the Federal income tax treatment

of interest paid on those bonds or the Federal income tax

treatment of those bonds.

(2) BONUS FOR 25-PERCENT INCREASE IN USAGE.—Except as

provided in paragraph (3), if, after any 12-month period during

which a marketing plan has been in effect under this section

with respect to an eligible place, the Secretary determines that

the marketing plan has increased average monthly boardings,

or the level of passenger usage, at the airport serving the eligi- ble place, by 25 percent or more, then only 10 percent of the

publicly financed costs associated with the marketing plan

shall be required to come from non-Federal sources under this

subsection for the following 12-month period.

(3) BONUS FOR 50-PERCENT INCREASE IN USAGE.—If, after

any 12-month period during which a marketing plan has been

in effect under this section with respect to an eligible place, the

Secretary determines that the marketing plan has increased

average monthly boardings, or the level of passenger usage, at

the airport serving the eligible place, by 50 percent or more,

then no portion of the publicly financed costs associated with

the marketing plan shall be required to come from non-Federal

sources under this subsection for the following 12-month period.

SUBCHAPTER III—REGIONAL AIR SERVICE INCENTIVE

PROGRAM

§ 41761. Purpose

The purpose of this subchapter is to improve service by jet aircraft to underserved markets by providing assistance, in the form

of Federal credit instruments, to commuter air carriers that purchase regional jet aircraft for use in serving those markets.

§ 41762. Definitions

In this subchapter, the following definitions apply:

(1) AIR CARRIER.—The term ‘‘air carrier’’ means any air

carrier holding a certificate of public convenience and necessity

issued by the Secretary of Transportation under section 41102.

(2) AIRCRAFT PURCHASE.—The term ‘‘aircraft purchase’’

means the purchase of commercial transport aircraft, including

spare parts normally associated with the aircraft.

(3) CAPITAL RESERVE SUBSIDY AMOUNT.—The term ‘‘capital

reserve subsidy amount’’ means the amount of budget authority sufficient to cover estimated long-term cost to the United

States Government of a Federal credit instrument, calculated

on a net present value basis, excluding administrative costs

and any incidental effects on Government receipts or outlays in

accordance with provisions of the Federal Credit Reform Act of

1990 (2 U.S.C. 661 et seq.).

(4) COMMUTER AIR CARRIER.—The term ‘‘commuter air carrier’’ means an air carrier that primarily operates aircraft designed to have a maximum passenger seating capacity of 75 or

less in accordance with published flight schedules.

(5) FEDERAL CREDIT INSTRUMENT.—The term ‘‘Federal

credit instrument’’ means a secured loan, loan guarantee, or

line of credit authorized to be made under this subchapter.

(6) FINANCIAL OBLIGATION.—The term ‘‘financial obligation’’ means any note, bond, debenture, or other debt obligation

issued by an obligor in connection with the financing of an aircraft purchase, other than a Federal credit instrument.

(7) LENDER.—The term ‘‘lender’’ means any non-Federal

qualified institutional buyer (as defined by section 230.144A(a)

of title 17, Code of Federal Regulations (or any successor regu-
86

lation) known as Rule 144A(a) of the Security and Exchange

Commission and issued under the Security Act of 1933 1 (15

U.S.C. 77a et seq.)), including—

(A) a qualified retirement plan (as defined in section

4974(c) of the Internal Revenue Code of 1986) that is a

qualified institutional buyer; and

(B) a governmental plan (as defined in section 414(d)

of the Internal Revenue Code of 1986) that is a qualified

institutional buyer.

(8) LINE OF CREDIT.—The term ‘‘line of credit’’ means an

agreement entered into by the Secretary with an obligor under

section 41763(d) to provide a direct loan at a future date upon

the occurrence of certain events.

(9) LOAN GUARANTEE.—The term ‘‘loan guarantee’’ means

any guarantee or other pledge by the Secretary under section

41763(c) to pay all or part of any of the principal of and interest on a loan or other debt obligation issued by an obligor and

funded by a lender.

(10) NEW ENTRANT AIR CARRIER.—The term ‘‘new entrant

air carrier’’ means an air carrier that has been providing air

transportation according to a published schedule for less than

5 years, including any person that has received authority from

the Secretary to provide air transportation but is not providing

air transportation.

(11) OBLIGOR.—The term ‘‘obligor’’ means a party primarily liable for payment of the principal of or interest on a

Federal credit instrument, which party may be a corporation,

partnership, joint venture, trust, or governmental entity, agency, or instrumentality.

(12) REGIONAL JET AIRCRAFT.—The term ‘‘regional jet aircraft’’ means a civil aircraft— (A) powered by jet propulsion; and

(B) designed to have a maximum passenger seating capacity of not less than 30 nor more than 75.

(13) SECURED LOAN.—The term ‘‘secured loan’’ means a direct loan funded by the Secretary in connection with the financing of an aircraft purchase under section 41763(b).

(14) UNDERSERVED MARKET.—The term ‘‘underserved market’’ means a passenger air transportation market (as defined

by the Secretary) that— (A) is served (as determined by the Secretary) by a

nonhub airport or a small hub airport;

(B) is not within a 40-mile radius of an airport that

each year has at least .25 percent of the total annual

boardings in the United States; and

(C) the Secretary determines does not have sufficient

air service.

§ 41763. Federal credit instruments

(a) IN GENERAL.—Subject to this section and section 41766, the

Secretary of Transportation may enter into agreements with one or

more obligors to make available Federal credit instruments, the

proceeds of which shall be used to finance aircraft purchases.

(b) SECURED LOANS.—

(1) TERMS AND LIMITATIONS.—

(A) IN GENERAL.—A secured loan under this section

with respect to an aircraft purchase shall be on such terms

and conditions and contain such covenants, representatives, warranties, and requirements (including requirements for audits) as the Secretary determines appropriate.

(B) MAXIMUM AMOUNT.—No secured loan may be made

under this section—

(i) that extends to more than 50 percent of the

purchase price (including the value of any manufacturer credits, post-purchase options, or other discounts) of the aircraft, including spare parts, to be

purchased; or

(ii) that, when added to the remaining balance on

any other Federal credit instruments made under this

subchapter, provides more than $100,000,000 of outstanding credit to any single obligor.

(C) FINAL PAYMENT DATE.—The final payment on the

secured loan shall not be due later than 18 years after the

date of execution of the loan agreement.

(D) SUBORDINATION.—The secured loan may be subordinate to claims of other holders of obligations in the event

of bankruptcy, insolvency, or liquidation of the obligor as

determined appropriate by the Secretary.

(E) FEES.—The Secretary, subject to appropriations, may establish fees at a level sufficient to cover all or a portion of the administrative costs to the United States Government of making a secured loan under this section. The

proceeds of such fees shall be deposited in an account to

be used by the Secretary for the purpose of administering

the program established under this subchapter and shall

be available upon deposit until expended.

(2) REPAYMENT.—

(A) SCHEDULE.—The Secretary shall establish a repayment schedule for each secured loan under this section

based on the projected cash flow from aircraft revenues

and other repayment sources.

(B) COMMENCEMENT.—Scheduled loan repayments of

principal and interest on a secured loan under this section

shall commence no later than 3 years after the date of execution of the loan agreement.

(3) PREPAYMENT.—

(A) USE OF EXCESS REVENUE.—After satisfying sched-
87

uled debt service requirements on all financial obligations

and secured loans and all deposit requirements under the

terms of any trust agreement, bond resolution, or similar

agreement securing financial obligations, the secured loan

may be prepaid at anytime without penalty.

(B) USE OF PROCEEDS OF REFINANCING.—The secured

loan may be prepaid at any time without penalty from proceeds of refinancing from non-Federal funding sources.

(c) LOAN GUARANTEES.—

(1) IN GENERAL.—A loan guarantee under this section with

respect to a loan made for an aircraft purchase shall be made

in such form and on such terms and conditions and contain

such covenants, representatives, warranties, and requirements

(including requirements for audits) as the Secretary determines appropriate. (2) MAXIMUM AMOUNT.—No loan guarantee shall be made

under this section— (A) that extends to more than the unpaid interest and

50 percent of the unpaid principal on any loan;

(B) that, for any loan or combination of loans, extends

to more than 50 percent of the purchase price (including

the value of any manufacturer credits, post-purchase op- tions, or other discounts) of the aircraft, including spare

parts, to be purchased with the loan or loan combination;

(C) on any loan with respect to which terms permit re- payment more than 15 years after the date of execution of

the loan; or

(D) that, when added to the remaining balance on any

other Federal credit instruments made under this sub- chapter, provides more than $100,000,000 of outstanding

credit to any single obligor. (3) FEES.—The Secretary, subject to appropriations, may

establish fees at a level sufficient to cover all or a portion of

the administrative costs to the United States Government of

making a loan guarantee under this section. The proceeds of

such fees shall be deposited in an account to be used by the

Secretary for the purpose of administering the program established under this subchapter and shall be available upon deposit until expended.

(d) LINES OF CREDIT.—

(1) IN GENERAL.—Subject to the requirements of this subsection, the Secretary may enter into agreements to make

available lines of credit to one or more obligors in the form of

direct loans to be made by the Secretary at future dates on the

occurrence of certain events for any aircraft purchase selected

under this section. (2) TERMS AND LIMITATIONS.—

(A) IN GENERAL.—A line of credit under this subsection with respect to an aircraft purchase shall be on

such terms and conditions and contain such covenants,

representatives, warranties, and requirements (including

requirements for audits) as the Secretary determines appropriate. (B) MAXIMUM AMOUNT.—

(i) TOTAL AMOUNT.—The amount of any line of

credit shall not exceed 50 percent of the purchase

price (including the value of any manufacturer credits,

post-purchase options, or other discounts) of the aircraft, including spare parts.

(ii) 1–YEAR DRAWS.—The amount drawn in any

year shall not exceed 20 percent of the total amount

of the line of credit.

(C) DRAWS.—Any draw on the line of credit shall represent a direct loan.

(D) PERIOD OF AVAILABILITY.—The line of credit shall

be available not more than 5 years after the aircraft purchase date.

(E) RIGHTS OF THIRD-PARTY CREDITORS.—

(i) AGAINST UNITED STATES GOVERNMENT.—A

third-party creditor of the obligor shall not have any

right against the United States Government with re- spect to any draw on the line of credit.

(ii) ASSIGNMENT.—An obligor may assign the line

of credit to one or more lenders or to a trustee on the

lender’s behalf.

(F) SUBORDINATION.—A direct loan under this subsection may be subordinate to claims of other holders of

obligations in the event of bankruptcy, insolvency, or liquidation of the obligor as determined appropriate by the

Secretary.

(G) FEES.—The Secretary, subject to appropriations, may establish fees at a level sufficient to cover all of a por- tion of the administrative costs to the United States Gov- ernment of providing a line of credit under this subsection. The proceeds of such fees shall be deposited in an account

to be used by the Secretary for the purpose of admin- istering the program established under this subchapter

and shall be available upon deposit until expended.

(3) REPAYMENT.—

(A) SCHEDULE.—The Secretary shall establish a repayment schedule for each direct loan under this subsection.

(B) COMMENCEMENT.—Scheduled loan repayments of

principal or interest on a direct loan under this subsection

shall commence no later than 3 years after the date of the

first draw on the line of credit and shall be repaid, with

interest, not later than 18 years after the date of the first

draw.

(e) RISK ASSESSMENT.—Before entering into an agreement

under this section to make available a Federal credit instrument,

the Secretary, in consultation with the Director of the Office of

Management and Budget, shall determine an appropriate capital

reserve subsidy amount for the Federal credit instrument based on
88

such credit evaluations as the Secretary deems necessary.

(f) CONDITIONS.— Subject to subsection (h), the Secretary may

only make a Federal credit instrument available under this section

if the Secretary finds that -

(1) the aircraft to be purchased with the Federal credit instrument is a regional jet aircraft needed to improve the service and efficiency of operation of a commuter air carrier or new

entrant air carrier;

(2) the commuter air carrier or new entrant air carrier enters into a legally binding agreement that requires the carrier

to use the aircraft to provide service to underserved markets;

and

(3) the prospective earning power of the commuter air carrier or new entrant air carrier, together with the character and

value of the security pledged, including the collateral value of

the aircraft being acquired and any other assets or pledges

used to secure the Federal credit instrument, furnish—

(A) reasonable assurances of the air carrier’s ability

and intention to repay the Federal credit instrument within the terms established by the Secretary—

(i) to continue its operations as an air carrier; and

(ii) to the extent that the Secretary determines to

be necessary, to continue its operations as an air carrier between the same route or routes being operated

by the air carrier at the time of the issuance of the

Federal credit instrument; and

(B) reasonable protection to the United States.

(g) LIMITATION ON COMBINED AMOUNT OF FEDERAL CREDIT INSTRUMENTS.—The Secretary shall not allow the combined amount

of Federal credit instruments available for any aircraft purchase

under this section to exceed—

(1) 50 percent of the cost of the aircraft purchase; or

(2) $100,000,000 for any single obligor.

(h) REQUIREMENT.—Subject to subsection (i), no Federal credit

instrument may be made under this section for the purchase of any

regional jet aircraft that does not comply with the stage 3 noise

levels of part 36 of title 14 of the Code of Federal Regulations, as

in effect on January 1, 1999.

(i) OTHER LIMITATIONS.—No Federal credit instrument shall be

made by the Secretary under this section for the purchase of a regional jet aircraft unless the commuter air carrier or new entrant

air carrier enters into a legally binding agreement that requires

the carrier to provide scheduled passenger air transportation to the

underserved market for which the aircraft is purchased for a period

of not less than 36 consecutive months after the date that aircraft

is placed in service.

§ 41764. Use of Federal facilities and assistance

(a) USE OF FEDERAL FACILITIES.—To permit the Secretary of

Transportation to make use of such expert advice and services as

the Secretary may require in carrying out this subchapter, the Secretary may use available services and facilities of other agencies

and instrumentalities of the United States Government—

(1) with the consent of the appropriate Federal officials; and

(2) on a reimbursable basis.

(b) ASSISTANCE.—The head of each appropriate department or

agency of the United States Government shall exercise the duties

and powers of that head in such manner as to assist in carrying

out the policy specified in section 41761.

(c) OVERSIGHT.—The Secretary shall make available to the

Comptroller General of the United States such information with respect to any Federal credit instrument made under this subchapter

as the Comptroller General may require to carry out the duties of

the Comptroller General under chapter 7 of title 31, United States

Code.

§ 41765. Administrative expenses

In carrying out this subchapter, the Secretary shall use funds

made available by appropriations to the Department of Transportation for the purpose of administration, in addition to the proceeds

of any fees collected under this subchapter, to cover administrative

expenses of the Federal credit instrument program under this subchapter.

§ 41766. Funding

Of the amounts appropriated under section 106(k) for each of

fiscal years 2001 through 2003, such sums as may be necessary

may be used to carry out this subchapter, including administrative

expenses.

§ 41767. Termination

(a) AUTHORITY TO ISSUE FEDERAL CREDIT INSTRUMENTS.—The

authority of the Secretary of Transportation to issue Federal credit

instruments under section 41763 shall terminate on the date that

is 5 years after the date of the enactment of this subchapter.

(b) CONTINUATION OF AUTHORITY TO ADMINISTER PROGRAM FOR

EXISTING FEDERAL CREDIT INSTRUMENTS.—On and after the termination date, the Secretary shall continue to administer the program established under this subchapter for Federal credit instruments issued under this subchapter before the termination date

until all obligations associated with such instruments have been

satisfied.

CHAPTER 419—TRANSPORTATION OF MAIL

Sec.

41901. General authority.

41902. Schedules for certain transportation of mail.

41903. Duty to provide certain transportation of mail.

41904. Noncitizens transporting mail to or in foreign countries. 41905. Regulating air carrier transportation of foreign mail.

41906. Emergency mail transportation.
89

41907. Prices for foreign transportation of mail.

41908. Prices for transporting mail of foreign countries.

41909. Duty to oppose unreasonable prices under the Universal Postal Union Convention.

41910. Weighing mail.

41911. Evidence of providing mail service.

41912. Effect on foreign postal arrangements.

§ 41901. General authority

(a) TITLE 39.—The United States Postal Service may provide

for the transportation of mail by aircraft in interstate air transportation under section 5402(e) and (f) of title 39.

(b) AUTHORITY TO PRESCRIBE PRICES.—Except as provided in

section 5402 of title 39, on the initiative of the Secretary of Transportation or on petition by the Postal Service or an air carrier, the

Secretary shall prescribe and publish—

(1) after notice and an opportunity for a hearing on the

record, reasonable prices to be paid by the Postal Service for

the transportation of mail by aircraft in foreign air transportation or between places in Alaska, the facilities used in and

useful for the transportation of mail, and the services related

to the transportation of mail for each carrier holding a certificate that authorizes that transportation;

(2) the methods used, whether by aircraft-mile, poundmile, weight, space, or a combination of those or other methods, to determine the prices for each air carrier or class of air

carriers; and

(3) the effective date of the prices.

(c) OTHER TRANSPORTATION.—In prescribing prices under subsection (b) of this section, the Secretary may include transportation

other than by aircraft that is incidental to transportation of mail

by aircraft or necessary because of emergency conditions related to

aircraft operations. (d) AUTHORITY TO PRESCRIBE DIFFERENT PRICES.—Considering

conditions peculiar to transportation by aircraft and to particular

air carriers or classes of air carriers, the Secretary may prescribe

different prices under this section for different air carriers or classes of air carriers and for different classes of service. In prescribing a

price for a carrier under this section, the Secretary shall consider, among other factors, the following:

(1) the condition that the carrier may hold and operate

under a certificate authorizing the transportation of mail only

by providing necessary and adequate facilities and service for

the transportation of mail.

(2) standards related to the character and quality of service to be provided that are prescribed by or under law.

(e) STATEMENTS ON PRICES.—A petition for prescribing a rea- sonable price under this section must include a statement of the

price the petitioner believes is reasonable.

(f) STATEMENTS ON REQUIRED SERVICES.—The Postal Service

shall introduce as part of the record in every proceeding under this

section a comprehensive statement of the services to be required of

the air carrier and other information the Postal Service has that

the Secretary considers material to the proceeding.

§ 41902. Schedules for certain transportation of mail

(a) REQUIREMENT.—Except as provided in section 41906 of this

title and section 5402 of title 39, an air carrier may transport mail

by aircraft in foreign air transportation or between places in Alaska only under a schedule designated or required to be established

under subsection (c) of this section for the transportation of mail.

(b) STATEMENTS ON PLACES AND SCHEDULES.—Every air carrier

shall file with the Secretary of Transportation and the United

States Postal Service a statement showing—

(1) the places between which the carrier is authorized to

provide foreign air transportation;

(2) the places between which the carrier is authorized to

transport mail in Alaska;

(3) every schedule of aircraft regularly operated by the carrier between places described in clauses (1) and (2) of this subsection and every change in each schedule; and

(4) for each schedule, the places served by the carrier and

the time of arrival at, and departure from, each place.

(c) DESIGNATING AND ADDITIONAL SCHEDULES.—The Postal

Service may—

(1) designate any schedule of an air carrier filed under

subsection (b)(3) of this section for the transportation of mail

between the places between which the carrier is authorized by

its certificate to transport mail; and

(2) require the carrier to establish additional schedules for

the transportation of mail between those places.

(d) CHANGING SCHEDULES.—A schedule designated or required to

be established for the transportation of mail under subsection (c) of

this section may be changed only after 10 days’ notice of the

change is filed as provided in subsection (b)(3) of this section. The

Postal Service may disapprove a proposed change in a schedule or

amend or modify the schedule or proposed change. (e) ORDERS.—An order of the Postal Service under this section

may become effective only after 10 days after the order is issued. A

person adversely affected by the order may appeal the order to the

Secretary before the end of the 10-day period under regulations the

Secretary prescribes. If the public convenience and necessity re- quire, the Secretary may amend, modify, suspend, or cancel the order. Pending a decision about the order, the Secretary may post- pone the

effective date of the order.

(f) PROCEEDINGS PREFERENCES.—The Secretary shall give pref- erence to a proceeding under this section over all other proceedings

before the Secretary under this subpart.

§ 41903. Duty to provide certain transportation of mail

(a) AIR CARRIERS.—Subject to subsection (b) of this section, an
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air carrier authorized by its certificate to transport mail by aircraft

in foreign air transportation or between places in Alaska shall— (1) provide facilities and services necessary and adequate to

provide that transportation; and

(2) transport mail between the places authorized in the

certificate for transportation of mail when required, and under

regulations prescribed, by the United States Postal Service.

(b) MAXIMUM MAIL LOAD.—The Secretary of Transportation

may prescribe the maximum mail load for a schedule or for an aircraft or type of aircraft for the transportation of mail by aircraft in

foreign air transportation or between places in Alaska. If the

Postal Service tenders to an air carrier mail exceeding the maximum load for transportation by the carrier under a schedule designated or required to be established for the transportation of mail

under section 41902(c) of this title, the carrier, as nearly in accordance with the schedule as the Secretary decides is possible, shall—

(1) provide facilities sufficient to transport the mail to the

extent the Secretary decides the carrier reasonably is able to

do so; and

(2) transport that mail.

§ 41904. Noncitizens transporting mail to or in foreign countries

United States Postal Service decides that it may be necessary to

have a person not a citizen of the United States transport mail by

aircraft to or in a foreign country, the Postal Service may make an

arrangement with the person, without advertising, to provide the

transportation.

§ 41905. Regulating air carrier transportation of foreign

mail

An air carrier holding a certificate that authorizes foreign air

transportation and transporting mail of a foreign country shall

transport that mail under the control of, and subject to regulation

by, the United States Government.

§ 41906. Emergency mail transportation

(a) CONTRACT AUTHORITY.—In an emergency caused by a flood, fire, or other disaster, the United States Postal Service may make a

contract without advertising to transport mail by aircraft to or

from a locality affected by the emergency when the available facili- ties of persons authorized to transport mail to or from the locality

are inadequate to meet the requirements of the Postal Service during the emergency. The contract may be only for periods necessary to

maintain mail service because of the inadequacy of the facilities.

Payment for transportation provided under the contract shall be

made at prices provided in the contract.

(b) TRANSPORTATION NOT AIR TRANSPORTATION.—Transportation provided under a contract made under subsection (a) of this

section is not air transportation within the meaning of this part.

§ 41907. Prices for foreign transportation of mail

(a) LIMITATIONS.—When air transportation is provided between

the United States and a foreign country both by aircraft owned or

operated by an air carrier holding a certificate under chapter 411 of

this title and by aircraft owned or operated by a foreign air car- rier, the United States Postal Service may not pay to or for the ac- count

of the foreign air carrier a price for transporting mail by air- craft

between the United States and the foreign country that the Postal

Service believes will result (over a reasonable period deter- mined by

the Postal Service considering exchange fluctuations and other

factors) in the foreign air carrier receiving a price for trans- porting

the mail that is higher than the price— (1) the government of a foreign country or foreign postal

administration pays to air carriers for transporting mail of the

foreign country by aircraft between the foreign country and the

United States; or

(2) determined by the Postal Service to be comparable to

the price the government of a foreign country or foreign postal

administration pays to air carriers for transporting mail of the

foreign country by aircraft between the foreign country and an

intermediate country on the route of the air carrier between

the foreign country and the United States.

(b) CHANGES.—The Secretary of Transportation shall act expeditiously on proposed changes in prices for transporting mail by

aircraft in foreign air transportation. When prescribing those

prices, the Secretary shall consider—

(1) the prices paid for transportation of mail under the

Universal Postal Union Convention as ratified by the United

States Government;

(2) the price-making elements used by the Universal Post- al

Union in prescribing its airmail prices; and

(3) the competitive disadvantage to United States flag air

carriers resulting from foreign air carriers receiving Universal

Postal Union prices for transporting United States mail and

national origin mail of their own countries.

§ 41908. Prices for transporting mail of foreign countries

(a) PRICE DETERMINATIONS.—The United States Postal Service

shall determine the prices that an air carrier holding a certificate

that authorizes foreign air transportation must charge a government of a foreign country or foreign postal administration for

transporting mail of the foreign country. The Postal Service shall

put those prices into effect under the postal convention regulating

postal relations between the United States and the foreign country or

as provided under this section. (b) CHANGES.—The Postal Service may authorize an air carrier

holding a certificate that authorizes foreign air transportation, under limitations the Postal Service prescribes, to change the

prices the carrier charges a government of a foreign country or for- eign postal administration for transporting mail of the foreign
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country in the foreign country or between the foreign country and

another foreign country. (c) COLLECTING COMPENSATION.—(1) When an air carrier holding a certificate that authorizes foreign air transportation transports mail of a foreign country— (A) under an arrangement with a government of a foreign

country or foreign postal administration made or approved

under this section, the carrier must collect its compensation for

the transportation from the foreign country under the arrange- ment; and

(B) without having an arrangement with a government of a

foreign country or foreign postal administration consistent with

this section, the compensation collected by the United States

Government for the transportation shall be for the ac- count of

the air carrier.

(2) An air carrier holding a certificate that authorizes foreign

air transportation is not entitled to receive compensation from both a

government of a foreign country or foreign postal administration and

the United States Government for transporting the same mail of the

foreign country.

§ 41909. Duty to oppose unreasonable prices under the Universal Postal Union Convention

The Secretary of State and the United States Postal Service

shall—

(1) take appropriate action to ensure that the prices paid

for transporting mail under the Universal Postal Union Convention are not higher than reasonable prices for transporting

mail; and

(2) oppose any existing or proposed Universal Postal Union

price that is higher than a reasonable price for transporting

mail.

§ 41910. Weighing mail

The United States Postal Service may weigh mail transported

by aircraft and make statistical and administrative computations

necessary in the interest of mail service. When the Secretary of

Transportation decides that additional or more frequent weighings

of mail are advisable or necessary to carry out this part, the Postal

Service shall provide the weighings, but it is not required to provide them for continuous periods of more than 30 days.

§ 41911. Evidence of providing mail service

When and in the form required by the United States Postal

Service, an air carrier transporting or handling—

(1) United States mail shall submit evidence, signed by an

authorized official, that the transportation or handling has

been provided; and

(2) mail of a foreign country shall submit evidence, signed

by an authorized official, of the amount of mail transported or

handled and the compensation payable and received for that

transportation or handling.

§ 41912. Effect on foreign postal arrangements

This part does not—

(1) affect an arrangement made by the United States Government with the postal administration of a foreign country related to the transportation of mail by aircraft; or

(2) impair the authority of the United States Postal Service to make such an arrangement.

CHAPTER 421—LABOR-MANAGEMENT PROVISIONS

SUBCHAPTER I—EMPLOYEE PROTECTION PROGRAM 1

Sec.

42101. Definitions. 42102. Payments to eligible protected employees.

42103. Duty to hire protected employees.

42104. Congressional review of regulations. 42105. Airline Employees Protective Account. 42106. Ending effective date.

SUBCHAPTER II—MUTUAL AID AGREEMENTS AND LABOR REQUIREMENTS

OF AIR CARRIERS

42111. Mutual aid agreements. 42112. Labor requirements of air carriers.

SUBCHAPTER III—WHISTLEBLOWER PROTECTION PROGRAM

42121. Protection of employees providing air safety information.

SUBCHAPTER I—EMPLOYEE PROTECTION PROGRAM— REPEALED BY PL 105-220 (112 STAT. 1059)

SUBCHAPTER II—MUTUAL AID AGREEMENTS AND LABOR

REQUIREMENTS OF AIR CARRIERS

§ 42111. Mutual aid agreements

An air carrier that will receive payments from another air carrier under an agreement between the air carriers for the time the

one air carrier is not providing foreign air transportation, or is providing reduced levels of foreign air transportation, because of a

labor strike must file a true copy of the agreement with the Secretary of Transportation and have it approved by the Secretary

under section 41309 of this title. Notwithstanding section 41309,

the Secretary shall approve the agreement only if it provides that— (1) the air carrier will receive payments of not more than

60 percent of direct operating expenses, including interest expenses, but not depreciation or amortization expenses;

(2) benefits may be paid for not more than 8 weeks, and

may not be for losses incurred during the first 30 days of a

strike; and

(3) on request of the striking employees, the dispute will
92

be submitted to binding arbitration under the Railway Labor

Act (45 U.S.C. 151 et seq.).

§ 42112. Labor requirements of air carriers

(a) DEFINITIONS.—In this section—

(1) ‘‘copilot’’ means an employee whose duties include as- sisting or relieving the pilot in manipulating an aircraft and

who is qualified to serve as, and has in effect an airman certifi- cate authorizing the employee to serve as, a copilot.

(2) ‘‘pilot’’ means an employee who is—

(A) responsible for manipulating or who manipulates

the flight controls of an aircraft when under way, includ- ing the landing and takeoff of an aircraft; and

(B) qualified to serve as, and has in effect an airman

certificate authorizing the employee to serve as, a pilot.

(b) DUTIES OF AIR CARRIERS.—An air carrier shall—

(1) maintain rates of compensation, maximum hours, and

other working conditions and relations for its pilots and copi- lots who are providing interstate air transportation in the 48

contiguous States and the District of Columbia to conform with

decision number 83, May 10, 1934, National Labor Board, not- withstanding any limitation in that decision on the period of its

effectiveness;

(2) maintain rates of compensation for its pilots and copi- lots who are providing foreign air transportation or air trans- portation only in one territory or possession of the United

States; and

(3) comply with title II of the Railway Labor Act (45 U.S.C.

181 et seq.) as long as it holds its certificate.

(c) MINIMUM ANNUAL RATE OF COMPENSATION.—A minimum

annual rate under subsection (b)(2) of this section may not be less

than the annual rate required to be paid for comparable service to a

pilot or copilot under subsection (b)(1) of this section.

(d) COLLECTIVE BARGAINING.—This section does not prevent pilots or copilots of an air carrier from obtaining by collective bargaining higher rates of compensation or more favorable working

conditions or relations.

SUBCHAPTER III—WHISTLEBLOWER PROTECTION

PROGRAM

§ 42121. Protection of employees providing air safety information

(a) DISCRIMINATION AGAINST AIRLINE EMPLOYEES.—No air carrier or contractor or subcontractor of an air carrier may discharge

an employee or otherwise discriminate against an employee with

respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)—

1) provided, caused to be provided, or is about to provide

(with any knowledge of the employer) or cause to be provided

to the employer or Federal Government information relating to

any violation or alleged violation of any order, regulation, or

standard of the Federal Aviation Administration or any other

provision of Federal law relating to air carrier safety under

this subtitle or any other law of the United States;

(2) has filed, caused to be filed, or is about to file (with any

knowledge of the employer) or cause to be filed a proceeding

relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or

any other provision of Federal law relating to air carrier safety

under this subtitle or any other law of the United States;

(3) testified or is about to testify in such a proceeding; or

(4) assisted or participated or is about to assist or partici- pate in such a proceeding. (b) DEPARTMENT OF LABOR COMPLAINT PROCEDURE.—

(1) FILING AND NOTIFICATION.—A person who believes that

he or she has been discharged or otherwise discriminated

against by any person in violation of subsection (a) may, not

later than 90 days after the date on which such violation oc- curs, file (or have any person file on his or her behalf) a com- plaint with the Secretary of Labor alleging such discharge or

discrimination. Upon receipt of such a complaint, the Secretary

of Labor shall notify, in writing, the person named in the com- plaint and the Administrator of the Federal Aviation Adminis- tration of the filing of the complaint, of the allegations con- tained in the complaint, of the substance of evidence sup- porting the complaint, and of the opportunities that will be af- forded to such person under paragraph (2).

(2) INVESTIGATION; PRELIMINARY ORDER.—

(A) IN GENERAL.—Not later than 60 days after the

date of receipt of a complaint filed under paragraph (1)

and after affording the person named in the complaint an

opportunity to submit to the Secretary of Labor a written

response to the complaint and an opportunity to meet with

a representative of the Secretary to present statements

from witnesses, the Secretary of Labor shall conduct an investigation and determine whether there is reasonable

cause to believe that the complaint has merit and notify,

in writing, the complainant and the person alleged to have

committed a violation of subsection (a) of the Secretary’s

findings. If the Secretary of Labor concludes that there is

a reasonable cause to believe that a violation of subsection

(a) has occurred, the Secretary shall accompany the Sec- retary’s findings with a preliminary order providing the relief prescribed by paragraph (3)(B). Not later than 30 days

after the date of notification of findings under this para- graph, either the person alleged to have committed the violation or the complainant may file objections to the findings or preliminary order, or both, and request a hearing

on the record. The filing of such objections shall not operate to stay any reinstatement remedy contained in the pre-
93

liminary order. Such hearings shall be conducted expeditiously. If a hearing is not requested in such 30-day period, the preliminary order shall be deemed a final order that

is not subject to judicial review.

(B) REQUIREMENTS.—

(i) REQUIRED SHOWING BY COMPLAINANT.—The

Secretary of Labor shall dismiss a complaint filed

under this subsection and shall not conduct an investigation otherwise required under subparagraph (A)

unless the complainant makes a prima facie showing

that any behavior described in paragraphs (1) through

(4) of subsection (a) was a contributing factor in the

unfavorable personnel action alleged in the complaint.

(ii) SHOWING BY EMPLOYER.—Notwithstanding a

finding by the Secretary that the complainant has

made the showing required under clause (i), no inves- tigation otherwise required under subparagraph (A)

shall be conducted if the employer demonstrates, by

clear and convincing evidence, that the employer

would have taken the same unfavorable personnel ac- tion in the absence of that behavior.

(iii) CRITERIA FOR DETERMINATION BY SECRETARY.—The Secretary may determine that a violation of subsection (a) has occurred only if the complainant demonstrates that any behavior described in

paragraphs (1) through (4) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint.

(iv) PROHIBITION.—Relief may not be ordered

under subparagraph (A) if the employer demonstrates

by clear and convincing evidence that the employer

would have taken the same unfavorable personnel action in the absence of that behavior.

(3) FINAL ORDER.—

(A) DEADLINE FOR ISSUANCE; SETTLEMENT AGREEMENTS.—Not later than 120 days after the date of conclusion of a hearing under paragraph (2), the Secretary of

Labor shall issue a final order providing the relief prescribed by this paragraph or denying the complaint. At any

time before issuance of a final order, a proceeding under

this subsection may be terminated on the basis of a settlement agreement entered into by the Secretary of Labor,

the complainant, and the person alleged to have committed

the violation. (B) REMEDY.—If, in response to a complaint filed

under paragraph (1), the Secretary of Labor determines

that a violation of subsection (a) has occurred, the Sec- retary of Labor shall order the person who committed such

violation to—

(i) take affirmative action to abate the violation;

(ii) reinstate the complainant to his or her former

position together with the compensation (including

back pay) and restore the terms, conditions, and privileges associated with his or her employment; and

(iii) provide compensatory damages to the complainant.

If such an order is issued under this paragraph, the Secretary of Labor, at the request of the complainant, shall

assess against the person against whom the order is issued

a sum equal to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reasonably incurred, as determined by the Secretary of Labor,

by the complainant for, or in connection with, the bringing the complaint upon which the order was issued. (C) FRIVOLOUS COMPLAINTS.—If the Secretary of Labor finds

that a complaint under paragraph (1) is frivolous or has been

brought in bad faith, the Secretary of Labor may award to the

prevailing employer a reasonable attorney’s fee not exceeding $1,000.

(4) REVIEW.—

(A) APPEAL TO COURT OF APPEALS.—Any person adversely

affected or aggrieved by an order issued under paragraph (3)

may obtain review of the order in the United States Court of

Appeals for the circuit in which the violation, with respect to which

the order was issued, allegedly occurred or the circuit in which the

complainant resided on the date of such violation. The petition for

review must be filed not later than 60 days after the date of the

issuance of the final order of the Secretary of Labor. Review

shall conform to chapter 7 of title 5, United States Code. The

commencement of proceedings under this subparagraph shall

not, unless ordered by the court, operate as a stay of the order.

(B) LIMITATION ON COLLATERAL ATTACK.—An order of the

Secretary of Labor with respect to which review could have been

obtained under subparagraph (A) shall not be subject to judicial

review in any criminal or other civil proceeding.

(5) ENFORCEMENT OF ORDER BY SECRETARY OF LABOR.—

Whenever any person has failed to comply with an order issued

under paragraph (3), the Secretary of Labor may file a civil action

in the United States district court for the district in which the

violation was found to occur to enforce such order. In actions

brought under this paragraph, the district courts shall have

jurisdiction to grant all appropriate relief including, but not limited

to, injunctive relief and compensatory damages.

(6) ENFORCEMENT OF ORDER BY PARTIES.—

(A) COMMENCEMENT OF ACTION.—A person on whose behalf

an order was issued under paragraph (3) may commence a civil

action against the person to whom such order was issued to

require compliance with such order. The appropriate United

States district court shall have jurisdiction, without regard to the

amount in controversy or the citizenship of the parties, to enforce

such order.
94

(B) ATTORNEY FEES.—The court, in issuing any final order

under this paragraph, may award costs of litigation (including

reasonable attorney and expert witness fees) to any party

whenever the court determines such award is appropriate.

(c) MANDAMUS.—Any nondiscretionary duty imposed by this

section shall be enforceable in a mandamus proceeding brought

under section 1361 of title 28, United States Code.

(d) NONAPPLICABILITY TO DELIBERATE VIOLATIONS.—

Subsection (a) shall not apply with respect to an employee of an air

carrier, contractor, or subcontractor who, acting without direction

from such air carrier, contractor, or subcontractor (or such person’s

agent), deliberately causes a violation of any requirement relating

to air carrier safety under this subtitle or any other law of the

United States.

(e) CONTRACTOR DEFINED.—In this section, the term ‘‘contractor’’ means a company that performs safety-sensitive functions

by contract for an air carrier.