376
(2) A judge of a court of the United States or a State court of record
or a United States magistrate may issue a warrant for an inspection or im-
poundment under section 32706 of this title within the territorial jurisdic-
tion of the court or magistrate. The warrant must be based on an affidavit
that—
(A) establishes probable cause to issue the warrant; and
(B) is sworn to before the judge or magistrate by an officer or em-
ployee who knows the facts alleged in the affidavit.
(3) The judge or magistrate shall issue the warrant when the judge or
magistrate decides there is a reasonable basis for believing that probable
cause exists to issue the warrant. The warrant must—
(A) identify the premises, property, or motor vehicle to be inspected
and the items or type of property to be impounded;
(B) state the purpose of the inspection, the basis for issuing the war-
rant, and the name of the affiant;
(C) direct an individual authorized under section 32706 of this title
to inspect the premises, property, or vehicle for the purpose stated in
the warrant and, when appropriate, to impound the property specified
in the warrant;
(D) direct that the warrant be served during the hours specified in
the warrant; and
(E) name the judge or magistrate with whom proof of service is to
be filed.
(4) A warrant under this section is not required when—
(A) the owner, operator, or agent in charge of the premises consents;
(B) it is reasonable to believe that the mobility of the motor vehicle
to be inspected makes it impractical to obtain a warrant;
(C) an application for a warrant cannot be made because of an emer-
gency;
(D) records are to be inspected and copied under section
32706(e)(1)(A) of this title; or
(E) a warrant is not constitutionally required.
(c) SERVICE AND IMPOUNDMENT OF PROPERTY.—(1) A warrant issued
under this section must be served and proof of service filed not later than
10 days after its issuance date. The judge or magistrate may allow addi-
tional time in the warrant if the Secretary of Transportation demonstrates
a need for additional time. Proof of service must be filed promptly with a
written inventory of the property impounded under the warrant. The inven-
tory shall be made in the presence of the individual serving the warrant and
the individual from whose possession or premises the property was im-
pounded, or if that individual is not present, a credible individual except the
377
individual making the inventory. The individual serving the warrant shall
verify the inventory. On request, the judge or magistrate shall send a copy
of the inventory to the individual from whose possession or premises the
property was impounded and to the applicant for the warrant.
(2) When property is impounded under a warrant, the individual serving
the warrant shall—
(A) give the person from whose possession or premises the property
was impounded a copy of the warrant and a receipt for the property;
or
(B) leave the copy and receipt at the place from which the property
was impounded.
(3) The judge or magistrate shall file the warrant, proof of service, and
all documents filed about the warrant with the clerk of the United States
district court for the judicial district in which the inspection is made.
§ 32708. Confidentiality of information
(a) GENERAL.—Information obtained by the Secretary of Transportation
under this chapter related to a confidential matter referred to in section
1905 of title 18 may be disclosed only—
(1) to another officer or employee of the United States Government
for use in carrying out this chapter; or
(2) in a proceeding under this chapter.
(b) WITHHOLDING INFORMATION FROM CONGRESS.—This section does
not authorize information to be withheld from a committee of Congress au-
thorized to have the information.
§ 32709. Penalties and enforcement
(a) CIVIL PENALTY.—(1) A person that violates this chapter or a regula-
tion prescribed or order issued under this chapter is liable to the United
States Government for a civil penalty of not more than $2,000 for each vio-
lation. A separate violation occurs for each motor vehicle or device involved
in the violation. The maximum penalty under this subsection for a related
series of violations is $100,000.
(2) The Secretary of Transportation shall impose a civil penalty under
this subsection. The Attorney General shall bring a civil action to collect the
penalty. Before referring a penalty claim to the Attorney General, the Sec-
retary may compromise the amount of the penalty. Before compromising the
amount of the penalty, the Secretary shall give the person charged with a
violation an opportunity to establish that the violation did not occur.
(3) In determining the amount of a civil penalty under this subsection,
the Secretary shall consider—
(A) the nature, circumstances, extent, and gravity of the violation;
378
(B) with respect to the violator, the degree of culpability, any history
of prior violations, the ability to pay, and any effect on the ability to
continue doing business; and
(C) other matters that justice requires.
(b) CRIMINAL PENALTY.—A person that knowingly and willfully violates
this chapter or a regulation prescribed or order issued under this chapter
shall be fined under title 18, imprisoned for not more than 3 years, or both.
If the person is a corporation, the penalties of this subsection also apply
to a director, officer, or individual agent of a corporation who knowingly
and willfully authorizes, orders, or performs an act in violation of this chap-
ter or a regulation prescribed or order issued under this chapter.
(c) CIVIL ACTIONS BY ATTORNEY GENERAL.—The Attorney General may
bring a civil action to enjoin a violation of this chapter or a regulation pre-
scribed or order issued under this chapter. The action may be brought in
the United States district court for the judicial district in which the viola-
tion occurred or the defendant is found, resides, or does business. Process
in the action may be served in any other judicial district in which the de-
fendant resides or is found. A subpena for a witness in the action may be
served in any judicial district.
(d) CIVIL ACTIONS BY STATES.—(1) When a person violates this chapter
or a regulation prescribed or order issued under this chapter, the chief law
enforcement officer of the State in which the violation occurs may bring a
civil action—
(A) to enjoin the violation; or
(B) to recover amounts for which the person is liable under section
32710 of this title for each person on whose behalf the action is
brought.
(2) An action under this subsection may be brought in an appropriate
United States district court or in a State court of competent jurisdiction.
The action must be brought not later than 2 years after the claim accrues.
§ 32710. Civil actions by private persons
(a) VIOLATION AND AMOUNT OF DAMAGES.—A person that violates this
chapter or a regulation prescribed or order issued under this chapter, with
intent to defraud, is liable for 3 times the actual damages or $1,500, which-
ever is greater.
(b) CIVIL ACTIONS.—A person may bring a civil action to enforce a claim
under this section in an appropriate United States district court or in an-
other court of competent jurisdiction. The action must be brought not later
than 2 years after the claim accrues. The court shall award costs and a rea-
sonable attorney’s fee to the person when a judgment is entered for that
person.
379
§ 32711. Relationship to State law
Except to the extent that State law is inconsistent with this chapter, this
chapter does not—
(1) affect a State law on disconnecting, altering, or tampering with
an odometer with intent to defraud; or
(2) exempt a person from complying with that law.
CHAPTER 329—AUTOMOBILE FUEL ECONOMY
Sec.
32901.
Definitions.
32902.
Average fuel economy standards.
32903.
Credits for exceeding average fuel economy standards.
32904.
Calculation of average fuel economy.
32905.
Manufacturing incentives for alternative fuel automobiles.
32906.
Maximum fuel economy increase for alternative fuel automobiles.
32907.
Reports and tests of manufacturers.
32908.
Fuel economy information.
32909.
Judicial review of regulations.
32910.
Administrative.
32911.
Compliance.
32912.
Civil penalties.
32913.
Compromising and remitting civil penalties.
32914.
Collecting civil penalties.
32915.
Appealing civil penalties.
32916.
Reports to Congress.
32917.
Standards for executive agency automobiles.
32918.
Preemption.
§ 32901. Definitions
(a) GENERAL.—In this chapter—
(1) ‘‘alternative fuel’’ means—
(A) methanol;
(B) denatured ethanol;
(C) other alcohols;
(D) except as provided in subsection (b) of this section, a mix-
ture containing at least 85 percent of methanol, denatured etha-
nol, and other alcohols by volume with gasoline or other fuels;
(E) natural gas;
(F) liquefied petroleum gas;
(G) hydrogen;
(H) coal derived liquid fuels;
(I) fuels (except alcohol) derived from biological materials;
(J) electricity (including electricity from solar energy); and
(K) any other fuel the Secretary of Transportation prescribes by
regulation that is not substantially petroleum and that would yield
substantial energy security and environmental benefits.
(2) ‘‘alternative fueled automobile’’ means an automobile that is a—
(A) dedicated automobile; or
(B) dual fueled automobile.
380
(3) except as provided in section 32908 of this title, ‘‘automobile’’
means a 4-wheeled vehicle that is propelled by fuel, or by alternative
fuel, manufactured primarily for use on public streets, roads, and high-
ways (except a vehicle operated only on a rail line), and rated at—
(A) not more than 6,000 pounds gross vehicle weight; or
(B) more than 6,000, but less than 10,000, pounds gross vehicle
weight, if the Secretary decides by regulation that—
(i) an average fuel economy standard under this chapter
for the vehicle is feasible; and
(ii) an average fuel economy standard under this chapter
for the vehicle will result in significant energy conservation or
the vehicle is substantially used for the same purposes as a
vehicle rated at not more than 6,000 pounds gross vehicle
weight.
(4) ‘‘automobile manufactured by a manufacturer’’ includes every
automobile manufactured by a person that controls, is controlled by, or
is under common control with the manufacturer, but does not include
an automobile manufactured by the person in a model year that is ex-
ported not later than 30 days after the end of that model year.
(5) ‘‘average fuel economy’’ means average fuel economy determined
under section 32904 of this title.
(6) ‘‘average fuel economy standard’’ means a performance standard
specifying a minimum level of average fuel economy applicable to a
manufacturer in a model year.
(7) ‘‘dedicated automobile’’ means an automobile that operates only
on alternative fuel.
(8) ‘‘dual fueled automobile’’ means an automobile that—
(A) is capable of operating on alternative fuel and on gasoline
or diesel fuel;
(B) provides equal or superior energy efficiency, as calculated
for the applicable model year during fuel economy testing for the
United States Government, when operating on alternative fuel as
when operating on gasoline or diesel fuel;
(C) for model years 1993–1995 for an automobile capable of op-
erating on a mixture of an alternative fuel and gasoline or diesel
fuel and if the Administrator of the Environmental Protection
Agency decides to extend the application of this subclause, for an
additional period ending not later than the end of the last model
year to which section 32905(b) and (d) of this title applies, pro-
vides equal or superior energy efficiency, as calculated for the ap-
plicable model year during fuel economy testing for the Govern-
381
ment, when operating on a mixture of alternative fuel and gasoline
or diesel fuel containing exactly 50 percent gasoline or diesel fuel
as when operating on gasoline or diesel fuel; and
(D) for a passenger automobile, meets or exceeds the minimum
driving range prescribed under subsection (c) of this section.
(9) ‘‘fuel’’ means—
(A) gasoline;
(B) diesel oil; or
(C) other liquid or gaseous fuel that the Secretary decides by
regulation to include in this definition as consistent with the need
of the United States to conserve energy.
(10) ‘‘fuel economy’’ means the average number of miles traveled by
an automobile for each gallon of gasoline (or equivalent amount of
other fuel) used, as determined by the Administrator under section
32904(c) of this title.
(11) ‘‘import’’ means to import into the customs territory of the
United States.
(12) ‘‘manufacture’’ (except under section 32902(d) of this title)
means to produce or assemble in the customs territory of the United
States or to import.
(13) ‘‘manufacturer’’ means—
(A) a person engaged in the business of manufacturing auto-
mobiles, including a predecessor or successor of the person to the
extent provided under regulations prescribed by the Secretary; and
(B) if more than one person is the manufacturer of an auto-
mobile, the person specified under regulations prescribed by the
Secretary.
(14) ‘‘model’’ means a class of automobiles as decided by regulation
by the Administrator after consulting and coordinating with the Sec-
retary.
(15) ‘‘model year’’, when referring to a specific calendar year,
means—
(A) the annual production period of a manufacturer, as decided
by the Administrator, that includes January 1 of that calendar
year; or
(B) that calendar year if the manufacturer does not have an an-
nual production period.
(16) ‘‘passenger automobile’’ means an automobile that the Sec-
retary decides by regulation is manufactured primarily for transporting
not more than 10 individuals, but does not include an automobile capa-
ble of off-highway operation that the Secretary decides by regulation—
382
(A) has a significant feature (except 4-wheel drive) designed for
off-highway operation; and
(B) is a 4-wheel drive automobile or is rated at more than 6,000
pounds gross vehicle weight.
(b) The Secretary may prescribe regulations changing the percentage re-
ferred to in subsection (a)(1)(D) of this section to not less than 70 percent
because of requirements relating to cold start, safety, or vehicle functions.
(c) MINIMUM DRIVING RANGES FOR DUAL FUELED PASSENGER AUTO-
MOBILES.—(1) The Secretary shall prescribe by regulation the minimum
driving range that dual fueled automobiles that are passenger automobiles
must meet when operating on alternative fuel to be dual fueled automobiles
under sections 32905 and 32906 of this title. A determination whether a
dual fueled automobile meets the minimum driving range requirement under
this paragraph shall be based on the combined Agency city/highway fuel
economy as determined for average fuel economy purposes for those auto-
mobiles.
(2)(A) The Secretary may prescribe a lower range for a specific model
than that prescribed under paragraph (1) of this subsection. A manufac-
turer may petition for a lower range than that prescribed under paragraph
(1) for a specific model.
(B) If the Secretary prescribes a minimum driving range of 200 miles
for dual fueled automobiles (except electric automobiles) under paragraph
(1) of this subsection, subparagraph (A) of this paragraph does not apply
to dual fueled automobiles (except electric automobiles).
(C) The minimum driving range prescribed for dual fueled automobiles
(except electric automobiles) under subparagraph (A) of this paragraph or
paragraph (1) of this subsection must be at least 200 miles.
(3) In prescribing a minimum driving range under paragraph (1) of this
subsection and in taking an action under paragraph (2) of this subsection,
the Secretary shall consider the purpose set forth in section 3 of the Alter-
native Motor Fuels Act of 1988 (Public Law 100–494, 102 Stat. 2442),
consumer acceptability, economic practicability, technology, environmental
impact, safety, drivability, performance, and other factors the Secretary con-
siders relevant.
§ 32902. Average fuel economy standards
(a) NON-PASSENGER AUTOMOBILES.—At least 18 months before the be-
ginning of each model year, the Secretary of Transportation shall prescribe
by regulation average fuel economy standards for automobiles (except pas-
senger automobiles) manufactured by a manufacturer in that model year.
Each standard shall be the maximum feasible average fuel economy level
that the Secretary decides the manufacturers can achieve in that model
383
year. The Secretary may prescribe separate standards for different classes
of automobiles.
(b) PASSENGER AUTOMOBILES.—Except as provided in this section, the
average fuel economy standard for passenger automobiles manufactured by
a manufacturer in a model year after model year 1984 shall be 27.5 miles
a gallon.
(c) AMENDING PASSENGER AUTOMOBILE STANDARDS.—(1) Subject to
paragraph (2) of this subsection, the Secretary of Transportation may pre-
scribe regulations amending the standard under subsection (b) of this sec-
tion for a model year to a level that the Secretary decides is the maximum
feasible average fuel economy level for that model year. Section 553 of title
5 applies to a proceeding to amend the standard. However, any interested
person may make an oral presentation and a transcript shall be taken of
that presentation.
(2) If an amendment increases the standard above 27.5 miles a gallon
or decreases the standard below 26.0 miles a gallon, the Secretary of Trans-
portation shall submit the amendment to Congress. The procedures of sec-
tion 551 of the Energy Policy and Conservation Act (42 U.S.C. 6421) apply
to an amendment, except that the 15 calendar days referred to in section
551(c) and (d) of the Act (42 U.S.C. 6421(c), (d)) are deemed to be 60
calendar days, and the 5 calendar days referred to in section 551(f)(4)(A)
of the Act (42 U.S.C. 6421(f)(4)(A)) are deemed to be 20 calendar days.
If either House of Congress disapproves the amendment under those proce-
dures, the amendment does not take effect.
(d) EXEMPTIONS.—(1) Except as provided in paragraph (2) of this sub-
section, on application of a manufacturer that manufactured (whether in the
United States or not) fewer than 10,000 passenger automobiles in the model
year 2 years before the model year for which the application is made, the
Secretary of Transportation may exempt by regulation the manufacturer
from a standard under subsection (b) or (c) of this section. An exemption
for a model year applies only if the manufacturer manufactures (whether
in the United States or not) fewer than 10,000 passenger automobiles in
the model year. The Secretary may exempt a manufacturer only if the Sec-
retary—
(A) finds that the applicable standard under those subsections is
more stringent than the maximum feasible average fuel economy level
that the manufacturer can achieve; and
(B) prescribes by regulation an alternative average fuel economy
standard for the passenger automobiles manufactured by the exempted
manufacturer that the Secretary decides is the maximum feasible aver-
384
age fuel economy level for the manufacturers to which the standard ap-
plies.
(2) Notwithstanding paragraph (1) of this subsection, an importer reg-
istered under section 30141(c) of this title may not be exempted as a manu-
facturer under paragraph (1) for a motor vehicle that the importer—
(A) imports; or
(B) brings into compliance with applicable motor vehicle safety
standards prescribed under chapter 301 of this title for an individual
under section 30142 of this title.
(3) The Secretary of Transportation may prescribe an alternative average
fuel economy standard applicable to an individually exempted manufacturer,
to all automobiles to which this subsection applies, or to classes of passenger
automobiles, as defined under regulations of the Secretary, manufactured by
exempted manufacturers.
(4) The Secretary of Transportation may prescribe the contents of an ap-
plication for an exemption.
(e) EMERGENCY VEHICLES.—(1) In this subsection, ‘‘emergency vehicle’’
means an automobile manufactured primarily for use—
(A) as an ambulance or combination ambulance-hearse;
(B) by the United States Government or a State or local government
for law enforcement; or
(C) for other emergency uses prescribed by regulation by the Sec-
retary of Transportation.
(2) A manufacturer may elect to have the fuel economy of an emergency
vehicle excluded in applying a fuel economy standard under subsection (a),
(b), (c), or (d) of this section. The election is made by providing written
notice to the Secretary of Transportation and to the Administrator of the
Environmental Protection Agency.
(f) CONSIDERATIONS ON DECISIONS ON MAXIMUM FEASIBLE AVERAGE
FUEL ECONOMY.—When deciding maximum feasible average fuel economy
under this section, the Secretary of Transportation shall consider techno-
logical feasibility, economic practicability, the effect of other motor vehicle
standards of the Government on fuel economy, and the need of the United
States to conserve energy.
(g) REQUIREMENTS FOR OTHER AMENDMENTS.—(1) The Secretary of
Transportation may prescribe regulations amending an average fuel econ-
omy standard prescribed under subsection (a) or (d) of this section if the
amended standard meets the requirements of subsection (a) or (d), as ap-
propriate.
(2) When the Secretary of Transportation prescribes an amendment
under this section that makes an average fuel economy standard more strin-
385
gent, the Secretary shall prescribe the amendment (and submit the amend-
ment to Congress when required under subsection (c)(2) of this section) at
least 18 months before the beginning of the model year to which the amend-
ment applies.
(h) LIMITATIONS.—In carrying out subsections (c), (f), and (g) of this
section, the Secretary of Transportation—
(1) may not consider the fuel economy of dedicated automobiles; and
(2) shall consider dual fueled automobiles to be operated only on gas-
oline or diesel fuel.
(i) SECRETARY OF ENERGY COMMENTS.—(1) Before issuing a notice pro-
posing to prescribe or amend an average fuel economy standard under sub-
section (a), (c), or (g) of this section, the Secretary of Transportation shall
give the Secretary of Energy at least 10 days from the receipt of the notice
during which the Secretary of Energy may, if the Secretary of Energy con-
cludes that the proposed standard would adversely affect the conservation
goals of the Secretary of Energy, provide written comments to the Secretary
of Transportation about the impact of the standard on those goals. To the
extent the Secretary of Transportation does not revise a proposed standard
to take into account comments of the Secretary of Energy on any adverse
impact of the standard, the Secretary of Transportation shall include those
comments in the notice.
(2) Before taking final action on a standard or an exemption from a
standard under this section, the Secretary of Transportation shall notify the
Secretary of Energy and provide the Secretary of Energy a reasonable time
to comment.
(j) CONSULTATION.—The Secretary of Transportation shall consult with
the Secretary of Energy in carrying out this section and section 32903 of
this title.
§ 32903. Credits for exceeding average fuel economy stand-
ards
(a) EARNING AND PERIOD FOR APPLYING CREDITS.—When the average
fuel economy of passenger automobiles manufactured by a manufacturer in
a particular model year exceeds an applicable average fuel economy stand-
ard under section 32902(b)–(d) of this title (determined by the Secretary
of Transportation without regard to credits under this section), the manu-
facturer earns credits. The credits may be applied to—
(1) any of the 3 consecutive model years immediately before the
model year for which the credits are earned; and
(2) to the extent not used under clause (1) of this subsection, any
of the 3 consecutive model years immediately after the model year for
which the credits are earned.
386
(b) PERIOD OF AVAILABILITY AND PLAN FOR FUTURE CREDITS.—(1)
Except as provided in paragraph (2) of this subsection, credits under this
section are available to a manufacturer at the end of the model year in
which earned.
(2)(A) Before the end of a model year, if a manufacturer has reason to
believe that its average fuel economy for passenger automobiles will be less
than the applicable standard for that model year, the manufacturer may
submit a plan to the Secretary of Transportation demonstrating that the
manufacturer will earn sufficient credits under this section within the next
3 model years to allow the manufacturer to meet that standard for the
model year involved. Unless the Secretary finds that the manufacturer is
unlikely to earn sufficient credits under the plan, the Secretary shall ap-
prove the plan. Those credits are available for the model year involved if—
(i) the Secretary approves the plan; and
(ii) the manufacturer earns those credits as provided by the plan.
(B) If the average fuel economy of a manufacturer is less than the appli-
cable standard under section 32902(b)–(d) of this title after applying credits
under subsection (a)(1) of this section, the Secretary of Transportation shall
notify the manufacturer and give the manufacturer a reasonable time (of
at least 60 days) to submit a plan.
(c) DETERMINING NUMBER OF CREDITS.—The number of credits a man-
ufacturer earns under this section equals the product of—
(1) the number of tenths of a mile a gallon by which the average
fuel economy of the passenger automobiles manufactured by the manu-
facturer in the model year in which the credits are earned exceeds the
applicable average fuel economy standard under section 32902(b)–(d)
of this title; times
(2) the number of passenger automobiles manufactured by the man-
ufacturer during that model year.
(d) APPLYING CREDITS FOR PASSENGER AUTOMOBILES.—The Secretary
of Transportation shall apply credits to a model year on the basis of the
number of tenths of a mile a gallon by which the manufacturer involved was
below the applicable average fuel economy standard for that model year and
the number of passenger automobiles manufactured that model year by the
manufacturer. Credits applied to a model year are no longer available for
another model year. Before applying credits, the Secretary shall give the
manufacturer written notice and reasonable opportunity to comment.
(e) APPLYING CREDITS FOR NON-PASSENGER AUTOMOBILES.—Credits
for a manufacturer of automobiles that are not passenger automobiles are
earned and applied to a model year in which the average fuel economy of
that class of automobiles is below the applicable average fuel economy
387
standard under section 32902(a) of this title, to the same extent and in the
same way as provided in this section for passenger automobiles.
(f) REFUND OF COLLECTED PENALTY.—When a civil penalty has been
collected under this chapter from a manufacturer that has earned credits
under this section, the Secretary of the Treasury shall refund to the manu-
facturer the amount of the penalty to the extent the penalty is attributable
to credits available under this section.
§ 32904. Calculation of average fuel economy
(a) METHOD OF CALCULATION.—(1) The Administrator of the Environ-
mental Protection Agency shall calculate the average fuel economy of a
manufacturer subject to—
(A) section 32902(a) of this title in a way prescribed by the Admin-
istrator; and
(B) section 32902(b)–(d) of this title by dividing—
(i) the number of passenger automobiles manufactured by the
manufacturer in a model year; by
(ii) the sum of the fractions obtained by dividing the number
of passenger automobiles of each model manufactured by the man-
ufacturer in that model year by the fuel economy measured for
that model.
(2)(A) In this paragraph, ‘‘electric vehicle’’ means a vehicle powered pri-
marily by an electric motor drawing electrical current from a portable
source.
(B) If a manufacturer manufactures an electric vehicle, the Administrator
shall include in the calculation of average fuel economy under paragraph (1)
of this subsection equivalent petroleum based fuel economy values deter-
mined by the Secretary of Energy for various classes of electric vehicles.
The Secretary shall review those values each year and determine and pro-
pose necessary revisions based on the following factors:
(i) the approximate electrical energy efficiency of the vehicle, consid-
ering the kind of vehicle and the mission and weight of the vehicle.
(ii) the national average electrical generation and transmission effi-
ciencies.
(iii) the need of the United States to conserve all forms of energy
and the relative scarcity and value to the United States of all fuel used
to generate electricity.
(iv) the specific patterns of use of electric vehicles compared to pe-
troleum-fueled vehicles.
(b) SEPARATE CALCULATIONS FOR PASSENGER AUTOMOBILES MANU-
FACTURED DOMESTICALLY AND NOT DOMESTICALLY.—(1) In this sub-
section—
388
(A) a passenger automobile is deemed to be manufactured domesti-
cally in a model year if at least 75 percent of the cost to the manufac-
turer is attributable to value added in the United States or Canada,
unless the assembly of the automobile is completed in Canada and the
automobile is imported into the United States more than 30 days after
the end of the model year; and
(B) the fuel economy of a passenger automobile that is not manufac-
tured domestically is deemed to be equal to the average fuel economy
of all passenger automobiles that are not manufactured domestically.
(2)(A) Except as provided in paragraphs (4) and (5) of this subsection,
the Administrator shall make separate calculations under subsection
(a)(1)(B) of this section for—
(i) passenger automobiles manufactured domestically by a manufac-
turer (or included in this category under paragraph (3) of this sub-
section); and
(ii) passenger automobiles not manufactured domestically by that
manufacturer (or excluded from this category under paragraph (3) of
this subsection).
(B) Passenger automobiles described in subparagraph (A)(i) and (ii) of
this paragraph are deemed to be manufactured by separate manufacturers
under this chapter.
(3)(A) A manufacturer may submit to the Secretary of Transportation for
approval a plan, including supporting material, stating the actions and the
deadlines for taking the actions, that will ensure that the model or models
referred to in subparagraph (B) of this paragraph will be manufactured do-
mestically before the end of the 4th model year covered by the plan. The
Secretary promptly shall consider and act on the plan. The Secretary shall
approve the plan unless—
(i) the Secretary finds that the plan is inadequate to meet the re-
quirements of this paragraph; or
(ii) the manufacturer previously has submitted a plan approved by
the Secretary under this paragraph.
(B) If the plan is approved, the Administrator shall include under para-
graph (2)(A)(i) and exclude under paragraph (2)(A)(ii) of this subsection,
for each of the 4 model years covered by the plan, not more than 150,000
passenger automobiles manufactured by that manufacturer but not qualify-
ing as domestically manufactured if—
(i) the model or models involved previously have not been manufac-
tured domestically;
389
(ii) at least 50 percent of the cost to the manufacturer of each of
the automobiles is attributable to value added in the United States or
Canada;
(iii) the automobiles, if their assembly was completed in Canada, are
imported into the United States not later than 30 days after the end
of the model year; and
(iv) the model or models are manufactured domestically before the
end of the 4th model year covered by the plan.
(4)(A) A manufacturer may file with the Secretary of Transportation a
petition for an exemption from the requirement of separate calculations
under paragraph (2)(A) of this subsection if the manufacturer began auto-
mobile production or assembly in the United States—
(i) after December 22, 1975, and before May 1, 1980; or
(ii) after April 30, 1980, if the manufacturer has engaged in the pro-
duction or assembly in the United States for at least one model year
ending before January 1, 1986.
(B) The Secretary of Transportation shall grant the exemption unless the
Secretary finds that the exemption would result in reduced employment in
the United States related to motor vehicle manufacturing during the period
of the exemption. An exemption under this paragraph is effective for 5
model years or, if requested by the manufacturer, a longer period provided
by the Secretary in the order granting the exemption. The exemption applies
to passenger automobiles manufactured by that manufacturer during the pe-
riod of the exemption.
(C) Before granting an exemption, the Secretary of Transportation shall
provide notice of, and reasonable opportunity for, written or oral comment
about the petition. The period for comment shall end not later than 60 days
after the petition is filed, except that the Secretary may extend the period
for not more than another 30 days. The Secretary shall decide whether to
grant or deny the exemption, and publish notice of the decision in the Fed-
eral Register, not later than 90 days after the petition is filed, except that
the Secretary may extend the time for decision to a later date (not later
than 150 days after the petition is filed) if the Secretary publishes notice
of, and reasons for, the extension in the Federal Register. If the Secretary
does not make a decision within the time provided in this subparagraph, the
petition is deemed to have been granted. Not later than 30 days after the
end of the decision period, the Secretary shall submit a written statement
of the reasons for not making a decision to the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on Energy
and Commerce of the House of Representatives.
390
(5)(A) A person adversely affected by a decision of the Secretary of
Transportation granting or denying an exemption may file, not later than
30 days after publication of the notice of the decision, a petition for review
in the United States Court of Appeals for the District of Columbia Circuit.
That court has exclusive jurisdiction to review the decision and to affirm,
remand, or set aside the decision under section 706(2)(A)–(D) of title 5.
(B) A judgment of the court under this subparagraph may be reviewed
by the Supreme Court under section 1254 of title 28. Application for review
by the Supreme Court must be made not later than 30 days after entry
of the court’s judgment.
(C) A decision of the Secretary of Transportation on a petition for an
exemption under this paragraph may be reviewed administratively or judi-
cially only as provided in this paragraph.
(6) Notwithstanding section 32903 of this title, during a model year when
an exemption under this paragraph is effective for a manufacturer—
(A) credit may not be earned under section 32903(a) of this title by
the manufacturer; and
(B) credit may not be made available under section 32903(b)(2) of
this title for the manufacturer.
(c) TESTING AND CALCULATION PROCEDURES.—The Administrator shall
measure fuel economy for each model and calculate average fuel economy
for a manufacturer under testing and calculation procedures prescribed by
the Administrator. However, except under section 32908 of this title, the
Administrator shall use the same procedures for passenger automobiles the
Administrator used for model year 1975 (weighted 55 percent urban cycle
and 45 percent highway cycle), or procedures that give comparable results.
A measurement of fuel economy or a calculation of average fuel economy
(except under section 32908) shall be rounded off to the nearest .1 of a
mile a gallon. The Administrator shall decide on the quantity of other fuel
that is equivalent to one gallon of gasoline. To the extent practicable, a fuel
economy test shall be carried out with emissions tests under section 206 of
the Clean Air Act (42 U.S.C. 7525).
(d) EFFECTIVE DATE OF PROCEDURE OR AMENDMENT.—The Adminis-
trator shall prescribe a procedure under this section, or an amendment (ex-
cept a technical or clerical amendment) in a procedure, at least 12 months
before the beginning of the model year to which the procedure or amend-
ment applies.
(e) REPORTS
AND CONSULTATION.—The Administrator shall report
measurements and calculations under this section to the Secretary of Trans-
portation and shall consult and coordinate with the Secretary in carrying
out this section.
391
§ 32905. Manufacturing incentives for alternative fuel auto-
mobiles
(a) DEDICATED AUTOMOBILES.—Except as provided in subsection (c) of
this section or section 32904(a)(2) of this title, for any model of dedicated
automobile manufactured by a manufacturer after model year 1992, the fuel
economy measured for that model shall be based on the fuel content of the
alternative fuel used to operate the automobile. A gallon of a liquid alter-
native fuel used to operate a dedicated automobile is deemed to contain .15
gallon of fuel.
(b) DUAL FUELED AUTOMOBILES.—Except as provided in subsection (d)
of this section or section 32904(a)(2) of this title, for any model of dual
fueled automobile manufactured by a manufacturer in model years 1993–
2004, the Administrator of the Environmental Protection Agency shall
measure the fuel economy for that model by dividing 1.0 by the sum of—
(1) .5 divided by the fuel economy measured under section 32904(c)
of this title when operating the model on gasoline or diesel fuel; and
(2) .5 divided by the fuel economy measured under subsection (a)
of this section when operating the model on alternative fuel.
(c) GASEOUS FUEL DEDICATED AUTOMOBILES.—For any model of gase-
ous fuel dedicated automobile manufactured by a manufacturer after model
year 1992, the Administrator shall measure the fuel economy for that model
based on the fuel content of the gaseous fuel used to operate the auto-
mobile. One hundred cubic feet of natural gas is deemed to contain .823
gallon equivalent of natural gas. The Secretary of Transportation shall de-
termine the appropriate gallon equivalent of other gaseous fuels. A gallon
equivalent of gaseous fuel is deemed to have a fuel content of .15 gallon
of fuel.
(d) GASEOUS FUEL DUAL FUELED AUTOMOBILES.—For any model of
gaseous fuel dual fueled automobile manufactured by a manufacturer in
model years 1993–2004, the Administrator shall measure the fuel economy
for that model by dividing 1.0 by the sum of—
(1) .5 divided by the fuel economy measured under section 32904(c)
of this title when operating the model on gasoline or diesel fuel; and
(2) .5 divided by the fuel economy measured under subsection (c) of
this section when operating the model on gaseous fuel.
(e) FUEL ECONOMY CALCULATIONS.—The Administrator shall calculate
the manufacturer’s average fuel economy under section 32904(a)(1) of this
title for each model described under subsections (a)–(d) of this section by
using as the denominator the fuel economy measured for each model under
subsections (a)–(d).
392
(f) EXTENDING APPLICATION OF SUBSECTIONS (b) AND (d).—Not later
than December 31, 2001, the Secretary of Transportation shall—
(1) extend by regulation the application of subsections (b) and (d)
of this section for not more than 4 consecutive model years immediately
after model year 2004 and explain the basis on which the extension is
granted; or
(2) publish a notice explaining the reasons for not extending the ap-
plication of subsections (b) and (d) of this section.
(g) STUDY AND REPORT.—Not later than September 30, 2000, the Sec-
retary of Transportation, in consultation with the Secretary of Energy and
the Administrator, shall complete a study of the success of the policy of sub-
sections (b) and (d) of this title, and submit to the Committees on Com-
merce, Science, and Transportation and Governmental Affairs of the Senate
and the Committee on Energy and Commerce of the House of Representa-
tives a report on the results of the study, including preliminary conclusions
on whether the application of subsections (b) and (d) should be extended
for up to 4 more model years. The study and conclusions shall consider—
(1) the availability to the public of alternative fueled automobiles and
alternative fuel;
(2) energy conservation and security;
(3) environmental considerations; and
(4) other relevant factors.
§ 32906. Maximum fuel economy increase for alternative fuel
automobiles
(a) MAXIMUM INCREASES.—(1)(A) For each of the model years 1993–
2004 for each category of automobile (except an electric automobile), the
maximum increase in average fuel economy for a manufacturer attributable
to dual fueled automobiles is 1.2 miles a gallon.
(B) If the application of section 32905(b) and (d) of this title is extended
under section 32905(f) of this title, for each category of automobile (except
an electric automobile) the maximum increase in average fuel economy for
a manufacturer for each of the model years 2005–2008 attributable to dual
fueled automobiles is .9 mile a gallon.
(2) In applying paragraph (1) of this subsection, the Administrator of the
Environmental Protection Agency shall determine the increase in a manu-
facturer’s average fuel economy attributable to dual fueled automobiles by
subtracting from the manufacturer’s average fuel economy calculated under
section 32905(e) of this title the number equal to what the manufacturer’s
average fuel economy would be if it were calculated by the formula in sec-
tion 32904(a)(1) of this title by including as the denominator for each
model of dual fueled automobile the fuel economy when the automobiles are
393
operated on gasoline or diesel fuel. If the increase attributable to dual fueled
automobiles for any model year described—
(A) in paragraph (1)(A) of this subsection is more than 1.2 miles
a gallon, the limitation in paragraph (1)(A) applies; and
(B) in paragraph (1)(B) of this subsection is more than .9 mile a
gallon, the limitation in paragraph (1)(B) applies.
(b) OFFSETS.—Notwithstanding this section and sections 32901(c) and
32905 of this title, if the Secretary of Transportation reduces the average
fuel economy standard for passenger automobiles for any model year below
27.5 miles a gallon, an increase in average fuel economy for passenger auto-
mobiles of more than .7 mile a gallon to which a manufacturer of dual
fueled automobiles would otherwise be entitled is reduced by an amount
equal to the amount of the reduction in the standard. However, the increase
may not be reduced to less than .7 mile a gallon.
§ 32907. Reports and tests of manufacturers
(a) MANUFACTURER REPORTS.—(1) A manufacturer shall report to the
Secretary of Transportation on—
(A) whether the manufacturer will comply with an applicable average
fuel economy standard under section 32902 of this title for the model
year for which the report is made;
(B) the actions the manufacturer has taken or intends to take to
comply with the standard; and
(C) other information the Secretary requires by regulation.
(2) A manufacturer shall submit a report under paragraph (1) of this
subsection during the 30 days—
(A) before the beginning of each model year; and
(B) beginning on the 180th day of the model year.
(3) When a manufacturer decides that actions reported under paragraph
(1)(B) of this subsection are not sufficient to ensure compliance with that
standard, the manufacturer shall report to the Secretary additional actions
the manufacturer intends to take to comply with the standard and include
a statement about whether those actions are sufficient to ensure compliance.
(4) This subsection does not apply to a manufacturer for a model year
for which the manufacturer is subject to an alternative average fuel econ-
omy standard under section 32902(d) of this title.
(b) RECORDS, REPORTS, TESTS, INFORMATION, AND INSPECTION.—(1)
Under regulations prescribed by the Secretary or the Administrator of the
Environmental Protection Agency to carry out this chapter, a manufacturer
shall keep records, make reports, conduct tests, and provide items and infor-
mation. On request and display of proper credentials, an officer or employee
designated by the Secretary or Administrator may inspect automobiles and
394
records of the manufacturer. An inspection shall be made at a reasonable
time and in a reasonable way.
(2) The district courts of the United States may—
(A) issue an order enforcing a requirement or request under para-
graph (1) of this subsection; and
(B) punish a failure to obey the order as a contempt of court.
§ 32908. Fuel economy information
(a) DEFINITIONS.—In this section—
(1) ‘‘automobile’’ includes an automobile rated at not more than
8,500 pounds gross vehicle weight regardless of whether the Secretary
of Transportation has applied this chapter to the automobile under sec-
tion 32901(a)(3)(B) of this title.
(2) ‘‘dealer’’ means a person residing or located in a State, the Dis-
trict of Columbia, or a territory or possession of the United States, and
engaged in the sale or distribution of new automobiles to the first per-
son (except a dealer buying as a dealer) that buys the automobile in
good faith other than for resale.
(b) LABELING REQUIREMENTS AND CONTENTS.—(1) Under regulations
of the Administrator of the Environmental Protection Agency, a manufac-
turer of automobiles shall attach a label to a prominent place on each auto-
mobile manufactured in a model year. The dealer shall maintain the label.
The label shall contain the following information:
(A) the fuel economy of the automobile.
(B) the estimated annual fuel cost of operating the automobile.
(C) the range of fuel economy of comparable automobiles of all man-
ufacturers.
(D) a statement that a booklet is available from the dealer to assist
in making a comparison of fuel economy of other automobiles manufac-
tured by all manufacturers in that model year.
(E) the amount of the automobile fuel efficiency tax imposed on the
sale of the automobile under section 4064 of the Internal Revenue Code
of 1986 (26 U.S.C. 4064).
(F) other information required or authorized by the Administrator
that is related to the information required by clauses (A)–(D) of this
paragraph.
(2) The Administrator may allow a manufacturer to comply with this sub-
section by—
(A) disclosing the information on the label required under section 3
of the Automobile Information Disclosure Act (15 U.S.C. 1232); and
395
(B) including the statement required by paragraph (1)(E) of this
subsection at a time and in a way that takes into account special cir-
cumstances or characteristics.
(3) For dedicated automobiles manufactured after model year 1992, the
fuel economy of those automobiles under paragraph (1)(A) of this sub-
section is the fuel economy for those automobiles when operated on alter-
native fuel, measured under section 32905 (a) or (c) of this title, multiplied
by .l5. Each label required under paragraph (1) of this subsection for dual
fueled automobiles shall—
(A) indicate the fuel economy of the automobile when operated on
gasoline or diesel fuel;
(B) clearly identify the automobile as a dual fueled automobile;
(C) clearly identify the fuels on which the automobile may be oper-
ated; and
(D) contain a statement informing the consumer that the additional
information required by subsection (c)(2) of this section is published
and distributed by the Secretary of Energy.
(c) FUEL ECONOMY INFORMATION BOOKLET.—(1) The Administrator
shall prepare the booklet referred to in subsection (b)(1)(D) of this section.
The booklet—
(A) shall be simple and readily understandable;
(B) shall contain information on fuel economy and estimated annual
fuel costs of operating automobiles manufactured in each model year;
and
(C) may contain information on geographical or other differences in
estimated annual fuel costs.
(2)(A) For dual fueled automobiles manufactured after model year 1992,
the booklet published under paragraph (1) shall contain additional informa-
tion on—
(i) the energy efficiency and cost of operation of those automobiles
when operated on gasoline or diesel fuel as compared to those auto-
mobiles when operated on alternative fuel; and
(ii) the driving range of those automobiles when operated on gasoline
or diesel fuel as compared to those automobiles when operated on alter-
native fuel.
(B) For dual fueled automobiles, the booklet published under paragraph
(1) also shall contain—
(i) information on the miles a gallon achieved by the automobiles
when operated on alternative fuel; and
396
(ii) a statement explaining how the information made available under
this paragraph can be expected to change when the automobile is oper-
ated on mixtures of alternative fuel and gasoline or diesel fuel.
(3) The Secretary of Energy shall publish and distribute the booklet. The
Administrator shall prescribe regulations requiring dealers to make the
booklet available to prospective buyers.
(d) DISCLOSURE.—A disclosure about fuel economy or estimated annual
fuel costs under this section does not establish a warranty under a law of
the United States or a State.
(e) VIOLATIONS.—A violation of subsection (b) of this section is—
(1) a violation of section 3 of the Automobile Information Disclosure
Act (15 U.S.C. 1232); and
(2) an unfair or deceptive act or practice in or affecting commerce
under the Federal Trade Commission Act (15 U.S.C. 41 et seq.), ex-
cept sections 5(m) and 18 (15 U.S.C. 45(m), 57a).
(f) CONSULTATION.—The Administrator shall consult with the Federal
Trade Commission and the Secretaries of Transportation and Energy in
carrying out this section.
§ 32909. Judicial review of regulations
(a) FILING AND VENUE.—(1) A person that may be adversely affected
by a regulation prescribed in carrying out section 32901–32904 or 32908
of this title may apply for review of the regulation by filing a petition for
review in the United States Court of Appeals for the District of Columbia
Circuit or in the court of appeals of the United States for the circuit in
which the person resides or has its principal place of business.
(2) A person adversely affected by a regulation prescribed under section
32912(c)(1) of this title may apply for review of the regulation by filing a
petition for review in the court of appeals of the United States for the cir-
cuit in which the person resides or has its principal place of business.
(b) TIME FOR FILING AND JUDICIAL PROCEDURES.—The petition must
be filed not later than 59 days after the regulation is prescribed, except that
a petition for review of a regulation prescribing an amendment of a stand-
ard submitted to Congress under section 32902(c)(2) of this title must be
filed not later than 59 days after the end of the 60-day period referred to
in section 32902(c)(2). The clerk of the court shall send immediately a copy
of the petition to the Secretary of Transportation or the Administrator of
the Environmental Protection Agency, whoever prescribed the regulation.
The Secretary or the Administrator shall file with the court a record of the
proceeding in which the regulation was prescribed.
(c) ADDITIONAL PROCEEDINGS.—(1) When reviewing a regulation under
subsection (a)(1) of this section, the court, on request of the petitioner, may
397
order the Secretary or the Administrator to receive additional submissions
if the court is satisfied the additional submissions are material and there
were reasonable grounds for not presenting the submissions in the proceed-
ing before the Secretary or Administrator.
(2) The Secretary or the Administrator may amend or set aside the regu-
lation, or prescribe a new regulation because of the additional submissions
presented. The Secretary or Administrator shall file an amended or new reg-
ulation and the additional submissions with the court. The court shall re-
view a changed or new regulation.
(d) SUPREME COURT REVIEW AND ADDITIONAL REMEDIES.—A judg-
ment of a court under this section may be reviewed only by the Supreme
Court under section 1254 of title 28. A remedy under subsections (a)(1)
and (c) of this section is in addition to any other remedies provided by law.
§ 32910. Administrative
(a) GENERAL POWERS.—(1) In carrying out this chapter, the Secretary
of Transportation or the Administrator of the Environmental Protection
Agency may—
(A) inspect and copy records of any person at reasonable times;
(B) order a person to file written reports or answers to specific ques-
tions, including reports or answers under oath; and
(C) conduct hearings, administer oaths, take testimony, and subpena
witnesses and records the Secretary or Administrator considers advis-
able.
(2) A witness summoned under paragraph (1)(C) of this subsection is en-
titled to the same fee and mileage the witness would have been paid in a
court of the United States.
(b) CIVIL ACTIONS TO ENFORCE.—A civil action to enforce a subpena
or order of the Secretary or Administrator under subsection (a) of this sec-
tion may be brought in the district court of the United States for the judi-
cial district in which the proceeding by the Secretary or Administrator was
conducted. The court may punish a failure to obey an order of the court
to comply with the subpena or order of the Secretary or Administrator as
a contempt of court.
(c) DISCLOSURE OF INFORMATION.—The Secretary and the Adminis-
trator shall disclose information obtained under this chapter (except infor-
mation obtained under section 32904(c) of this title) under section 552 of
title 5. However, the Secretary or Administrator may withhold information
under section 552(b)(4) of title 5 only if the Secretary or Administrator de-
cides that disclosure of the information would cause significant competitive
damage. A matter referred to in section 552(b)(4) and relevant to an ad-
ministrative or judicial proceeding under this chapter may be disclosed in
398
that proceeding. A measurement or calculation under section 32904(c) of
this title shall be disclosed under section 552 of title 5 without regard to
section 552(b).
(d) REGULATIONS.—The Administrator may prescribe regulations to
carry out duties of the Administrator under this chapter.
§ 32911. Compliance
(a) GENERAL.—A person commits a violation if the person fails to comply
with this chapter and regulations and standards prescribed and orders is-
sued under this chapter (except sections 32902, 32903, 32908(b), and
32917(b) and regulations and standards prescribed and orders issued under
those sections). The Secretary of Transportation shall conduct a proceeding,
with an opportunity for a hearing on the record, to decide whether a person
has committed a violation. Any interested person may participate in a pro-
ceeding under this subsection.
(b) AUTOMOBILE MANUFACTURERS.—A manufacturer of automobiles
commits a violation if the manufacturer fails to comply with an applicable
average fuel economy standard under section 32902 of this title. Compliance
is determined after considering credits available to the manufacturer under
section 32903 of this title. If average fuel economy calculations under sec-
tion 32904(c) of this title indicate that a manufacturer has violated this
subsection, the Secretary shall conduct a proceeding, with an opportunity
for a hearing on the record, to decide whether a violation has been commit-
ted. The Secretary may not conduct the proceeding if further measurements
of fuel economy, further calculations of average fuel economy, or other in-
formation indicates a violation has not been committed. The results of the
measurements and calculations and the information shall be published in
the Federal Register. Any interested person may participate in a proceeding
under this subsection.
§ 32912. Civil penalties
(a) GENERAL PENALTY.—A person that violates section 32911(a) of this
title is liable to the United States Government for a civil penalty of not
more than $10,000 for each violation. A separate violation occurs for each
day the violation continues.
(b) PENALTY
FOR MANUFACTURER VIOLATIONS
OF FUEL ECONOMY
STANDARDS.—Except as provided in subsection (c) of this section, a manu-
facturer that violates a standard prescribed for a model year under section
32902 of this title is liable to the Government for a civil penalty of $5 mul-
tiplied by each .1 of a mile a gallon by which the applicable average fuel
economy standard under that section exceeds the average fuel economy—
399
(1)(A) calculated under section 32904(a)(1)(A) of this title for auto-
mobiles to which the standard applies manufactured by the manufac-
turer during the model year;
(B) multiplied by the number of those automobiles; and
(C) reduced by the credits available to the manufacturer under sec-
tion 32903 of this title for the model year; and
(2)(A) calculated under section 32904(a)(1)(B) of this title for pas-
senger automobiles manufactured by the manufacturer during the
model year;
(B) multiplied by the number of those automobiles; and
(C) reduced by the credits available to the manufacturer under sec-
tion 32903 of this title for the model year.
(c) HIGHER PENALTY AMOUNTS.—(1)(A) The Secretary of Transpor-
tation shall prescribe by regulation a higher amount for each .1 of a mile
a gallon to be used in calculating a civil penalty under subsection (b) of this
section, if the Secretary decides that the increase in the penalty—
(i) will result in, or substantially further, substantial energy con-
servation for automobiles in model years in which the increased penalty
may be imposed; and
(ii) will not have a substantial deleterious impact on the economy of
the United States, a State, or a region of a State.
(B) The amount prescribed under subparagraph (A) of this paragraph
may not be more than $10 for each .1 of a mile a gallon.
(C) The Secretary may make a decision under subparagraph (A)(ii) of
this paragraph only when the Secretary decides that it is likely that the in-
crease in the penalty will not—
(i) cause a significant increase in unemployment in a State or a re-
gion of a State;
(ii) adversely affect competition; or
(iii) cause a significant increase in automobile imports.
(D) A higher amount prescribed under subparagraph (A) of this para-
graph is effective for the model year beginning at least 18 months after the
regulation stating the higher amount becomes final.
(2) The Secretary shall publish in the Federal Register a proposed regu-
lation under this subsection and a statement of the basis for the regulation
and provide each manufacturer of automobiles a copy of the proposed regu-
lation and the statement. The Secretary shall provide a period of at least
45 days for written public comments on the proposed regulation. The Sec-
retary shall submit a copy of the proposed regulation to the Federal Trade
Commission and request the Commission to comment on the proposed regu-
lation within that period. After that period, the Secretary shall give inter-
400
ested persons and the Commission an opportunity at a public hearing to
present oral information, views, and arguments and to direct questions
about disputed issues of material fact to—
(A) other interested persons making oral presentations;
(B) employees and contractors of the Government that made written
comments or an oral presentation or participated in the development
or consideration of the proposed regulation; and
(C) experts and consultants that provided information to a person
that the person includes, or refers to, in an oral presentation.
(3) The Secretary may restrict the questions of an interested person and
the Commission when the Secretary decides that the questions are duplica-
tive or not likely to result in a timely and effective resolution of the issues.
A transcript shall be kept of a public hearing under this subsection. A copy
of the transcript and written comments shall be available to the public at
the cost of reproduction.
(4) The Secretary shall publish a regulation prescribed under this sub-
section in the Federal Register with the decisions required under paragraph
(1) of this subsection.
(5) An officer or employee of a department, agency, or instrumentality
of the Government violates section 1905 of title 18 by disclosing, except in
an in camera proceeding by the Secretary or a court, information—
(A) provided to the Secretary or the court during consideration or
review of a regulation prescribed under this subsection; and
(B) decided by the Secretary to be confidential under section 11(d)
of the Energy Supply and Environmental Coordination Act of 1974 (15
U.S.C. 796(d)).
(d) WRITTEN NOTICE REQUIREMENT.—The Secretary shall impose a
penalty under this section by written notice.
§ 32913. Compromising and remitting civil penalties
(a) GENERAL AUTHORITY AND LIMITATIONS.—The Secretary of Trans-
portation may compromise or remit the amount of a civil penalty imposed
under section 32912(a) or (b) of this title. However, the amount of a pen-
alty imposed under section 32912(b) may be compromised or remitted only
to the extent—
(1) necessary to prevent the insolvency or bankruptcy of the manu-
facturer of automobiles;
(2) the manufacturer shows that the violation was caused by an act
of God, a strike, or a fire; or
(3) the Federal Trade Commission certifies under subsection (b)(1)
of this section that a reduction in the penalty is necessary to prevent
a substantial lessening of competition.
401
(b) PENALTY REDUCTION BY COMMISSION.—(1) A manufacturer liable
for a civil penalty under section 32912(b) of this title may apply to the
Commission for a certification that the penalty should be reduced to prevent
a substantial lessening of competition in the segment of the motor vehicle
industry subject to the standard that was violated. The Commission shall
make the certification when it finds that reduction is necessary to prevent
the lessening. The Commission shall state in the certification the maximum
amount by which the penalty may be reduced.
(2) An application under this subsection must be made not later than 30
days after the Secretary decides that the manufacturer has violated section
32911(b) of this title. To the maximum extent practicable, the Commission
shall make a decision on an application by the 90th day after the applica-
tion is filed. A proceeding under this subsection may not delay the manufac-
turer’s liability for the penalty for more than 90 days after the application
is filed.
(3) When a civil penalty is collected in a civil action under this chapter
before a decision of the Commission under this subsection is final, the pay-
ment shall be paid to the court in which the action was brought. The court
shall deposit the payment in the general fund of the Treasury on the 90th
day after the decision of the Commission becomes final. When the court is
holding payment of a penalty reduced under subsection (a)(3) of this sec-
tion, the Secretary shall direct the court to remit the appropriate amount
of the penalty to the manufacturer.
§ 32914. Collecting civil penalties
(a) CIVIL ACTIONS.—If a person does not pay a civil penalty after it be-
comes a final order of the Secretary of Transportation or a judgment of
a court of appeals of the United States for a circuit, the Attorney General
shall bring a civil action in an appropriate district court of the United
States to collect the penalty. The validity and appropriateness of the final
order imposing the penalty is not reviewable in the action.
(b) PRIORITY OF CLAIMS.—A claim of a creditor against a bankrupt or
insolvent manufacturer of automobiles has priority over a claim of the Unit-
ed States Government against the manufacturer for a civil penalty under
section 32912(b) of this title when the creditor’s claim is for credit extended
before a final judgment (without regard to section 32913(b)(1) and (2) of
this title) in an action to collect under subsection (a) of this section.
§ 32915. Appealing civil penalties
Any interested person may appeal a decision of the Secretary of Trans-
portation to impose a civil penalty under section 32912(a) or (b) of this
title, or of the Federal Trade Commission under section 32913(b)(1) of this
title, in the United States Court of Appeals for the District of Columbia
402
Circuit or in the court of appeals of the United States for the circuit in
which the person resides or has its principal place of business. A person ap-
pealing a decision must file a notice of appeal with the court not later than
30 days after the decision and, at the same time, send a copy of the notice
by certified mail to the Secretary or the Commission. The Secretary or the
Commission promptly shall file with the court a certified copy of the record
of the proceeding in which the decision was made.
§ 32916. Reports to Congress
(a) ANNUAL REPORT.—Not later than January 15 of each year, the Sec-
retary of Transportation shall submit to each House of Congress, and pub-
lish in the Federal Register, a report on the review by the Secretary of aver-
age fuel economy standards prescribed under this chapter.
(b) JOINT EXAMINATIONS AFTER GRANTING EXEMPTIONS.—(1) After an
exemption has been granted under section 32904(b)(4) of this title, the Sec-
retaries of Transportation and Labor shall conduct annually a joint exam-
ination of the extent to which section 32904(b)(4)—
(A) achieves the purposes of this chapter;
(B) improves fuel efficiency (thereby facilitating conservation of pe-
troleum and reducing petroleum imports);
(C) has promoted employment in the United States related to auto-
mobile manufacturing;
(D) has not caused unreasonable harm to the automobile manufac-
turing sector in the United States; and
(E) has permitted manufacturers that have assembled passenger
automobiles deemed to be manufactured domestically under section
32904(b)(1)(A) of this title thereafter to assemble in the United States
passenger automobiles of the same model that have less than 75 per-
cent of their value added in the United States or Canada, together with
the reasons.
(2) The Secretary of Transportation shall include the results of the exam-
ination under paragraph (1) of this subsection in each report submitted
under subsection (a) of this section more than 180 days after an exemption
has been granted under section 32904(b)(4) of this title, or submit the re-
sults of the examination directly to Congress before the report is submitted
when circumstances warrant.
§ 32917. Standards for executive agency automobiles
(a) DEFINITION.—In this section, ‘‘executive agency’’ has the same mean-
ing given that term in section 105 of title 5.
(b) FLEET AVERAGE FUEL ECONOMY.—(1) The President shall prescribe
regulations that require passenger automobiles leased for at least 60 con-
secutive days or bought by executive agencies in a fiscal year to achieve a
403
fleet average fuel economy (determined under paragraph (2) of this sub-
section) for that year of at least the greater of—
(A) 18 miles a gallon; or
(B) the applicable average fuel economy standard under section
32902(b) or (c) of this title for the model year that includes January
1 of that fiscal year.
(2) Fleet average fuel economy is—
(A) the total number of passenger automobiles leased for at least 60
consecutive days or bought by executive agencies in a fiscal year (ex-
cept automobiles designed for combat-related missions, law enforcement
work, or emergency rescue work); divided by
(B) the sum of the fractions obtained by dividing the number of
automobiles of each model leased or bought by the fuel economy of that
model.
§ 32918. Preemption
(a) GENERAL.—When an average fuel economy standard prescribed under
this chapter is in effect, a State or a political subdivision of a State may
not adopt or enforce a law or regulation on fuel economy standards or aver-
age fuel economy standards for automobiles covered by an average fuel
economy standard under this chapter.
(b) REQUIREMENTS MUST BE IDENTICAL.—When a requirement under
section 32908 of this title is in effect, a State or a political subdivision of
a State may adopt or enforce a law or regulation on disclosure of fuel econ-
omy or fuel operating costs for an automobile covered by section 32908 only
if the law or regulation is identical to that requirement.
(c) STATE AND POLITICAL SUBDIVISION AUTOMOBILES.—A State or a
political subdivision of a State may prescribe requirements for fuel economy
for automobiles obtained for its own use.
CHAPTER 331—THEFT PREVENTION
Sec.
33101.
Definitions.
33102.
Theft prevention standard for high theft lines.
33103.
Theft prevention standard for other lines.
33104.
Designation of high theft vehicle lines and parts.
33105.
Cost limitations.
33106.
Exemption for passenger motor vehicles equipped with anti-theft devices.
33107.
Voluntary vehicle identification standards.
33108.
Monitoring compliance of manufacturers.
33109.
National Stolen Passenger Motor Vehicle Information System.
33110.
Verifications involving junk and salvage motor vehicles.
33111.
Verifications involving motor vehicle major parts.
33112.
Insurance reports and information.
33113.
Theft reports.
33114.
Prohibited acts.
33115.
Civil penalties and enforcement.
33116.
Confidentiality of information.
33117.
Judicial review.
404
33118.
Preemption of State and local law.
§ 33101. Definitions
In this chapter—
(1) ‘‘chop shop’’ means a building, lot, facility, or other structure or
premise at which at least one person engages in receiving, concealing,
destroying, disassembling, dismantling, reassembling, or storing a pas-
senger motor vehicle or passenger motor vehicle part that has been un-
lawfully obtained—
(A) to alter, counterfeit, deface, destroy, disguise, falsify, forge,
obliterate, or remove the identity of the vehicle or part, including
the vehicle identification number or a derivative of that number;
and
(B) to distribute, sell, or dispose of the vehicle or part in inter-
state or foreign commerce.
(2) ‘‘covered major part’’ means a major part selected under sections
33102(c)(1) and 33104 of this title for coverage by the vehicle theft
prevention standard prescribed under section 33102 or 33103.
(3) ‘‘existing line’’ means a line introduced into commerce before
January 1, 1990.
(4) ‘‘first purchaser’’ means the person making the first purchase
other than for resale.
(5) ‘‘line’’ means a name that a manufacturer of motor vehicles ap-
plies to a group of motor vehicle models of the same make that have
the same body or chassis, or otherwise are similar in construction or
design.
(6) ‘‘major part’’ means—
(A) the engine;
(B) the transmission;
(C) each door to the passenger compartment;
(D) the hood;
(E) the grille;
(F) each bumper;
(G) each front fender;
(H) the deck lid, tailgate, or hatchback;
(I) each rear quarter panel;
(J) the trunk floor pan;
(K) the frame or, for a unitized body, the supporting structure
serving as the frame; and
(L) any other part of a passenger motor vehicle that the Sec-
retary of Transportation by regulation specifies as comparable in
405
design or function to any of the parts listed in subclauses (A)–
(K) of this clause.
(7) ‘‘major replacement part’’ means a major part that is—
(A) an original major part in or on a completed motor vehicle
and customized or modified after manufacture of the vehicle but
before the time of its delivery to the first purchaser; or
(B) not installed in or on a motor vehicle at the time of its de-
livery to the first purchaser and the equitable or legal title to the
vehicle has not been transferred to a first purchaser.
(8) ‘‘model year’’ has the same meaning given that term in section
32901(a) of this title.
(9) ‘‘new line’’ means a line introduced into commerce after Decem-
ber 31, 1989.
(10) ‘‘passenger motor vehicle’’ includes a multipurpose passenger
vehicle or light duty truck when that vehicle or truck is rated at not
more than 6,000 pounds gross vehicle weight.
(11) ‘‘vehicle theft prevention standard’’ means a minimum perform-
ance standard for identifying major parts of new motor vehicles and
major replacement parts by inscribing or affixing numbers or symbols
on those parts.
§ 33102. Theft prevention standard for high theft lines
(a) GENERAL.—(1) The Secretary of Transportation by regulation shall
prescribe a vehicle theft prevention standard that conforms to the require-
ments of this chapter. The standard shall apply to—
(A) covered major parts that manufacturers install in passenger
motor vehicles in lines designated under section 33104 of this title as
high theft lines; and
(B) major replacement parts for the major parts described in clause
(A) of this paragraph.
(2) The standard may apply only to—
(A) major parts that manufacturers install in passenger motor vehi-
cles having a model year designation later than the calendar year in
which the standard takes effect; and
(B) major replacement parts manufactured after the standard takes
effect.
(b) STANDARD REQUIREMENTS.—The standard shall be practicable and
provide relevant objective criteria.
(c) LIMITATIONS ON MAJOR PART AND REPLACEMENT PART STAND-
ARDS.—(1) For a major part installed by the manufacturer of the motor
vehicle, the standard may not require a part to have more than one identi-
fication.
406
(2) For a major replacement part, the standard may not require—
(A) identification of a part not designed as a replacement for a
major part required to be identified under the standard; or
(B) the inscribing or affixing of identification except a symbol identi-
fying the manufacturer and a common symbol identifying the part as
a major replacement part.
(d) RECORDS AND REPORTS.—This chapter does not authorize the Sec-
retary to require a person to keep records or make reports, except as pro-
vided in sections 33104(c), 33106(c), 33108(a), and 33112 of this title.
§ 33103.
Theft prevention standard for others lines
(a) GENERAL.—Not later than October 25, 1994, the Secretary of Trans-
portation shall prescribe a vehicle theft standard that conforms to the re-
quirements of this chapter for covered major parts that manufacturers in-
stall in passenger motor vehicles (except light duty trucks) in not more than
50 precent of the lines not designated under section 33104 of this title as
high theft lines.
(b) EXTENSION OF APPLICATION.—(1) Not later than 3 years after the
standard is prescribed under subsection (a) of this section and based on the
finding of the Attorney General under subsection (c) of this section to apply
the standard, the Secretary shall apply that standard to covered major parts
and major replacement parts for covered parts that manufacturers install
in the lines of passenger motor vehicles (except light duty trucks)—
(A) not designated under section 33104 of this title as high theft
lines; and
(B) not covered by the standard prescribed under subsection (a) of
this section.
(2) The Secretary shall include as part of the regulatory proceeding under
this subsection the finding of, and the record developed by, the Attorney
General under subsection (c) of this section.
(c) INITIAL REVIEW OF EFFECTIVENESS.—Before the Secretary begins a
regulatory proceeding under subsection (b) of this section, the Attorney
General shall make a finding that the Secretary shall apply the standard
prescribed under subsection (a) of this section unless the Attorney General
finds, based on information collected and analyzed under section 33112 of
this title and other information the Attorney General develops after provid-
ing notice and an opportunity for a public hearing, that applying the stand-
ard prescribed in subsection (a) to the remaining lines of passenger motor
vehicles (except light duty trucks) not covered by that standard would not
substantially inhibit chop shop operations and motor vehicle thefts. The At-
torney General also shall consider and include in the record additional costs,
effectiveness, competition, and available alternative factors. The Attorney
407
General shall submit to the Secretary the finding and record on which the
finding is based.
(d) LONG RANGE REVIEW OF EFFECTIVENESS.—(1) Not later than De-
cember 31, 1999, the Attorney General shall make separate findings, after
notice and an opportunity for a public hearing, on the following:
(A) whether the application of the standard under subsection (a) or
(b) of this subsection, or both, have been effective in substantially in-
hibiting the operation of chop shops and motor vehicle theft.
(B) whether the anti-theft devices for which the Secretary has grant-
ed exemptions under section 33106 of this title are an effective sub-
stitute for parts marking in substantially inhibiting motor vehicle theft.
(2)(A) In making the finding under paragraph (1)(A) of this subsection,
the Attorney General shall—
(i) consider the additional cost, competition, and available alter-
natives;
(ii) base that finding on information collected and analyzed under
section 33112 of this title;
(iii) consider the effectiveness, the extent of use, and the extent to
which civil and criminal penalties under section 33115(b) of this title
and section 2322 of title 18 on chop shops have been effective in sub-
stantially inhibiting operation of chop shops and motor vehicle theft;
(iv) base that finding on the 3-year and 5-year reports issued by the
Secretary under section 33113 of this title; and
(v) base that finding on other information the Attorney General de-
velops and includes in the public record.
(B) The Attorney General shall submit a finding under paragraph (1)(A)
of this subsection promptly to the Secretary. If the Attorney General finds
that the application of the standard under subsection (a) or (b) of this sec-
tion, or both, has not been effective, the Secretary shall issue, not later than
180 days after receiving that finding, an order terminating the standard the
Attorney General found was ineffective. The termination is effective for the
model year beginning after the order is issued.
(3) In making a finding under paragraph (1)(B) of this subsection, the
Secretary shall consider the additional cost, competition, and available alter-
natives. If the Attorney General finds that the anti–theft devices are an ef-
fective substitute, the Secretary shall continue to grant exemptions under
section 33106 of this title for the model years after model year 2000 at one
of the following levels that the Attorney General decides: at the level author-
ized before October 25, 1992, or at the level provided in section
33106(b)(2)(C) of this title for model year 2000.
408
(e) EFFECTIVE DATE OF STANDARD.—A standard prescribed under this
section takes effect at least 6 months after the date the standard is pre-
scribed, except that the Secretary may prescribe an earlier effective date if
the Secretary—
(1) decides with good cause that the earlier date is in the public in-
terest; and
(2) publishes the reasons for the decision.
(f) NOTIFICATION OF CONGRESS.—The Secretary and the Attorney Gen-
eral shall inform the appropriate legislative committees of Congress with ju-
risdiction over this part and section 2322 of title 18 of actions taken or
planned under this section.
§ 33104. Designation of high theft vehicle lines and parts
(a) DESIGNATION, NONAPPLICATION, SELECTION, AND PROCEDURES.—
(1) For purposes of the standard under section 33102 of this title, the fol-
lowing are high theft lines:
(A) a passenger motor vehicle line determined under subsection (b)
of this section to have had a new passenger motor vehicle theft rate
in the 2-year period covering calendar years 1990 and 1991 greater
than the median theft rate for all new passenger motor vehicle thefts
in that 2-year period.
(B) a passenger motor vehicle line initially introduced into commerce
in the United States after December 31, 1989, that is selected under
paragraph (3) of this subsection as likely to have a theft rate greater
than the median theft rate referred to in clause (A) of this paragraph.
(C) subject to paragraph (2) of this subsection, a passenger motor
vehicle line having (for existing lines) or likely to have (for new lines)
a theft rate below the median theft rate referred to in clause (A) of
this paragraph, if the major parts in the vehicles are selected under
paragraph (3) of this subsection as interchangeable with the majority
of the major parts that are subject to the standard and are contained
in the motor vehicles of a line described in clause (A) or (B) of this
paragraph.
(2) The standard may not apply to any major part of a line described
in paragraph (1)(C) of this subsection if all the passenger motor vehicles
of lines that are, or are likely to be, below the median theft rate, and that
contain parts interchangeable with the major parts of the line involved, ac-
count (for existing lines), or the Secretary of Transportation determines
they are likely to account (for new lines), for more than 90 percent of the
total annual production of all lines of that manufacturer containing those
interchangeable parts.
409
(3) The lines, and the major parts of the passenger motor vehicles in
those lines, that are to be subject to the standard may be selected by agree-
ment between the manufacturer and the Secretary. If the manufacturer and
the Secretary disagree on the selection, the Secretary shall select the lines
and parts, after notice to the manufacturer and opportunity for written
comment, and subject to the confidentiality requirements of this chapter.
(4) To the maximum extent practicable, the Secretary shall prescribe rea-
sonable procedures designed to ensure that a selection under paragraph (3)
of this subsection is made at least 6 months before the first applicable
model year beginning after the selection.
(5) A manufacturer may not be required to comply with the standard
under a selection under paragraph (3) of this subsection for a model year
beginning earlier than 6 months after the date of the selection.
(6) A passenger motor vehicle line subject on October 25, 1992, to parts
marking requirements under sections 602 and 603 of the Motor Vehicle In-
formation and Cost Savings Act (Public Law 92–513, 86 Stat. 947), as
added by section 101(a) of the Motor Vehicle Theft Law Enforcement Act
of 1984 (Public Law 98–547, 98 Stat. 2756), continues to be subject to
the requirements of this section and section 33102 of this title unless the
line is exempted under section 33106 of this title.
(b) DETERMINING THEFT RATE FOR PASSENGER VEHICLES.—(1) In this
subsection, ‘‘new passenger motor vehicle thefts’’, when used in reference to
a calendar year, means thefts in the United States in that year of passenger
motor vehicles with the same model-year designation as that calendar year.
(2) Under subsection (a) of this section, the theft rate for passenger
motor vehicles of a line shall be determined by a fraction—
(A) the numerator of which is the number of new passenger motor
vehicle thefts for that line during the 2-year period referred to in sub-
section (a)(1)(A) of this section; and
(B) the denominator of which is the sum of the respective production
volumes of all passenger motor vehicles of that line (as reported to the
Administrator of the Environmental Protection Agency under chapter
329 of this title) that are of model years 1990 and 1991 and are dis-
tributed for sale in commerce in the United States.
(3) Under subsection (a) of this section, the median theft rate for all new
passenger motor vehicle thefts during that 2-year period is the theft rate
midway between the highest and the lowest theft rates determined under
paragraph (2) of this subsection. If there is an even number of theft rates
determined under paragraph (2), the median theft rate is the arithmetic av-
erage of the 2 adjoining theft rates midway between the highest and the
lowest of those theft rates.
410
(4) In consultation with the Director of the Federal Bureau of Investiga-
tion, the Secretary periodically shall obtain from the most reliable source
accurate and timely theft and recovery information and publish the informa-
tion for review and comment. To the greatest extent possible, the Secretary
shall use theft information reported by United States Government, State,
and local police. After publication and opportunity for comment, the Sec-
retary shall use the theft information to determine the median theft rate
under this subsection. The Secretary and the Director shall take any nec-
essary actions to improve the accuracy, reliability, and timeliness of the in-
formation, including ensuring that vehicles represented as stolen are really
stolen.
(5) The Secretary periodically (but not more often than once every 2
years) shall prescribe by regulation the median theft rate under this sub-
section.
(c) PROVIDING INFORMATION.—The Secretary by regulation shall require
each manufacturer to provide information necessary to select under sub-
section (a)(3) of this section the high theft lines and the major parts to be
subject to the standard.
(d) APPLICATION.—Except as provided in section 33106 of this title, the
Secretary may not make the standard inapplicable to a line that has been
subject to the standard.
§ 33105. Cost limitations
(a) MAXIMUM MANUFACTURER COSTS.—A standard under section 33102
or 33103 of this title may not impose—
(1) on a manufacturer of motor vehicles, compliance costs of more
than $15 a motor vehicle; or
(2) on a manufacturer of major replacement parts, compliance costs
for each part of more than the reasonable amount (but less than $15)
that the Secretary of Transportation specifies in the standard.
(b) COSTS INVOLVED IN ENGINES AND TRANSMISSIONS.—For a manu-
facturer engaged in identifying engines or transmissions on October 25,
1984, in a way that substantially complies with the standard—
(1) the costs of identifying engines and transmissions may not be
considered in calculating the manufacturer’s costs under subsection (a)
of this section; and
(2) the manufacturer may not be required under the standard to
conform to any identification system for engines and transmissions that
imposes greater costs on the manufacturer than are incurred under the
identification system used by the manufacturer on October 25, 1984.
(c) COST ADJUSTMENTS.—(1) In this subsection—
(A) ‘‘base period’’ means calendar year 1984.
411
(B) ‘‘price index’’ means the average over a calendar year of the
Consumer Price Index (all items—United States city average) pub-
lished monthly by the Secretary of Labor.
(2) At the beginning of each calendar year, as necessary data become
available from the Bureau of Labor Statistics, the Secretary of Labor shall
certify to the Secretary of Transportation and publish in the Federal Reg-
ister the percentage difference between the price index for the 12 months
before the beginning of the calendar year and the price index for the base
period. For model years beginning in that calendar year, the amounts speci-
fied in subsection (a) of this section shall be adjusted by the percentage dif-
ference.
§ 33106. Exemption for passenger motor vehicles equipped
with anti-theft devices
(a) DEFINITIONS.—In this section—
(1) ‘‘anti-theft device’’ means a device to reduce or deter theft that—
(A) is in addition to the theft-deterrent devices required by
motor vehicle safety standard numbered 114 in section 571.114 of
title 49, Code of Federal Regulations;
(B) the manufacturer believes will be effective in reducing or de-
terring theft of motor vehicles; and
(C) does not use a signaling device reserved by State law for
use on police, emergency, or official vehicles, or on schoolbuses.
(2) ‘‘standard equipment’’ means equipment already installed in a
motor vehicle when it is delivered from the manufacturer and not an
accessory or other item that the first purchaser customarily has the op-
tion to have installed.
(b) GRANTING EXEMPTIONS
AND LIMITATIONS.—(1) A manufacturer
may petition the Secretary of Transportation for an exemption from a re-
quirement of a standard prescribed under section 33102 or 33103 of this
title for a line of passenger motor vehicles equipped as standard equipment
with an anti-theft device that the Secretary decides is likely to be as effec-
tive in reducing and deterring motor vehicle theft as compliance with the
standard.
(2) The Secretary may grant an exemption—
(A) for model year 1987, for not more than 2 lines of a manufac-
turer;
(B) for each of the model years 1988–1996, for not more than 2 ad-
ditional lines of a manufacturer;
(C) for each of the model years 1997–2000, for not more than one
additional line of a manufacturer; and
412
(D) for each of the model years after model year 2000, for the num-
ber of lines that the Attorney General decides under section
33103(d)(3) of this title.
(3) An additional exemption granted under subparagraph (2) (B) or (C)
of this paragraph does not affect an exemption previously granted.
(c) PETITIONING PROCEDURE.—A petition must be filed not later than
8 months before the start of production for the first model year covered by
the petition. The petition must include—
(1) a detailed description of the device;
(2) the reasons for the manufacturer’s conclusion that the device will
be effective in reducing and deterring theft of motor vehicles; and
(3) additional information the Secretary reasonably may require to
make the decision described in subsection (b)(1) of this section.
(d) DECISIONS AND APPROVALS.—The Secretary shall make a decision
about a petition filed under this section not later than 120 days after the
date the petition is filed. A decision approving a petition must be based on
substantial evidence. The Secretary may approve a petition in whole or in
part. If the Secretary does not make a decision within the 120-day period,
the petition shall be deemed to be approved and the manufacturer shall be
exempt from the standard for the line covered by the petition for the subse-
quent model year.
(e) RESCISSIONS.—The Secretary may rescind an exemption if the Sec-
retary decides that the anti-theft device has not been as effective in reducing
and deterring motor vehicle theft as compliance with the standard. A rescis-
sion may be effective only—
(1) for a model year after the model year in which the rescission oc-
curs; and
(2) at least 6 months after the manufacturer receives written notice
of the rescission from the Secretary.
§ 33107. Voluntary vehicle identification standards
(a) ELECTION TO INSCRIBE OR AFFIX IDENTIFYING MARKS.—The Sec-
retary of Transportation by regulation may prescribe a vehicle theft preven-
tion standard under which a person may elect to inscribe or affix an identi-
fying number or symbol on major parts of a motor vehicle manufactured
or owned by the person for purposes of section 511 of title 18 and related
provisions. The standard may include provisions for registration of the iden-
tification with the Secretary or a person designated by the Secretary.
(b) STANDARD REQUIREMENTS.—The standard under this section shall
be practicable and provide relevant objective criteria.
413
(c) VOLUNTARY COMPLIANCE.—Compliance with the standard under this
section is voluntary. Failure to comply does not subject a person to a pen-
alty or enforcement under this chapter.
(d) COMPLIANCE
WITH
OTHER
STANDARDS.—Compliance with the
standard under this section does not relieve a manufacturer from a require-
ment of a standard prescribed under section 33102 or 33103 of this title.
§ 33108. Monitoring compliance of manufacturers
(a) RECORDS, REPORTS, INFORMATION, AND INSPECTION.—To enable
the Secretary of Transportation to decide whether a manufacturer of motor
vehicles containing a part subject to a standard prescribed under section
33102 or 33103 of this title, or a manufacturer of major replacement parts
subject to the standard, is complying with this chapter and the standard,
the Secretary may require the manufacturer to—
(1) keep records;
(2) make reports;
(3) provide items and information; and
(4) allow an officer or employee designated by the Secretary to in-
spect the vehicles and parts and relevant records of the manufacturer.
(b) ENTRY AND INSPECTION.—To enforce this chapter, an officer or em-
ployee designated by the Secretary, on presenting appropriate credentials
and a written notice to the owner, operator, or agent in charge, may inspect
a facility in which motor vehicles containing major parts subject to the
standard, or major replacement parts subject to the standard, are manufac-
tured, held for introduction into interstate commerce, or held for sale after
introduction into interstate commerce. An inspection shall be conducted at
a reasonable time, in a reasonable way, and with reasonable promptness.
(c) CERTIFICATION OF COMPLIANCE.—(1) A manufacturer of a motor ve-
hicle subject to the standard, and a manufacturer of a major replacement
part subject to the standard, shall provide at the time of delivery of the ve-
hicle or part a certification that the vehicle or part conforms to the applica-
ble motor vehicle theft prevention standard. The certification shall accom-
pany the vehicle or part until its delivery to the first purchaser. The Sec-
retary by regulation may prescribe the type and form of the certification.
(2) This subsection does not apply to a motor vehicle or major replace-
ment part that is—
(A) intended only for export;
(B) labeled only for export on the vehicle or replacement part and
the outside of any container until exported; and
(C) exported.
(d) NOTIFICATION OF ERROR.—A manufacturer shall notify the Sec-
retary if the manufacturer discovers that—
414
(1) there is an error in the identification (required by the standard)
applied to a major part installed by the manufacturer in a motor vehi-
cle during its assembly, or to a major replacement part manufactured
by the manufacturer; and
(2) the motor vehicle or major replacement part has entered inter-
state commerce.
§ 33109.
National Stolen Passenger Motor Vehicle Informa-
tion System
(a) GENERAL REQUIREMENTS.—(1) Not later than July 25, 1993, the
Attorney General shall establish, and thereafter maintain, a National Stolen
Passenger Motor Vehicle Information System containing the vehicle identi-
fication numbers of stolen passenger motor vehicles and stolen passenger
motor vehicle parts. The System shall be located in the National Crime In-
formation Center and shall include at least the following information on
each passenger motor vehicle reported to a law enforcement authority as
stolen and not recovered:
(A) the vehicle identification number.
(B) the make and model year.
(C) the date on which the vehicle was reported as stolen.
(D) the location of the law enforcement authority that received the
report of the theft of the vehicle.
(E) the identification numbers of the vehicle parts (or derivatives of
those numbers), at the time of the theft, if those numbers are different
from the vehicle identification number of the vehicle.
(2) In establishing the System, the Attorney General shall consult with—
(A) State and local law enforcement authorities; and
(B) the National Crime Information Center Policy Advisory Board
to ensure the security of the information in the System and that the
System will not compromise the security of stolen passenger motor ve-
hicle and passenger motor vehicle parts information in the System.
(3) If the Attorney General decides that the Center is not able to perform
the functions of the System, the Attorney General shall make an agreement
for the operation of the System separate from the Center.
(4) The Attorney General shall prescribe by regulation the effective date
of the System.
(b) REQUESTS FOR INFORMATION.—(1) The Attorney General shall pre-
scribe by regulation procedures under which an individual or entity intend-
ing to transfer a passenger motor vehicle or passenger motor vehicle part
may obtain information on whether the vehicle or part is listed in the Sys-
tem as stolen.
415
(2) On request of an insurance carrier, a person lawfully selling or dis-
tributing passenger motor vehicle parts in interstate commerce, or an indi-
vidual or enterprise engaged in the business of repairing passenger motor
vehicles, the Attorney General (or the entity the Attorney General des-
ignates) immediately shall inform the insurance carrier, person, individual,
or enterprise whether the System has a record of a vehicle or vehicle part
with a particular vehicle identification number (or derivative of that num-
ber) being reported as stolen. The Attorney General may require appro-
priate verification to ensure that the request is legitimate and will not com-
promise the security of the System.
(c) ADVISORY COMMITTEE.—(1) Not later than December 24, 1992, the
Attorney General shall establish in the Department of Justice an advisory
committee. The Attorney General shall develop the System with the advice
and recommendations of the committee.
(2)(A) The committee is composed of the following 10 members:
(i) the Attorney General.
(ii) the Secretary of Transportation.
(iii) one individual who is qualified to represent the interests of the
law enforcement community at the State level.
(iv) one individual who is qualified to represent the interests of the
law enforcement community at the local level.
(v) one individual who is qualified to represent the interests of the
automotive recycling industry.
(vi) one individual who is qualified to represent the interests of the
automotive repair industry.
(vii) one individual who is qualified to represent the interests of the
automotive rebuilders industry.
(viii) one individual who is qualified to represent the interests of the
automotive parts suppliers industry.
(ix) one individual who is qualified to represent the interests of the
insurance industry.
(x) one individual who is qualified to represent the interests of con-
sumers.
(B) The Attorney General shall appoint the individuals described in sub-
paragraph (A)(iii)–(x) of this paragraph and shall serve as chairman of the
committee.
(3) The committee shall make recommendations on developing and carry-
ing out—
(A) the National Stolen Passenger Motor Vehicle Information Sys-
tem; and
(B) the verification system under section 33110 of this title.
416
(4) Not later than April 25, 1993, the committee shall submit to the At-
torney General, the Secretary, and Congress a report including the rec-
ommendations of the committee.
§ 33110. Verifications involving junk and salvage motor vehi-
cles
(a) DEFINITION.—In this section, ‘‘vehicle identification number’’ means
a unique identification number (or derivative of that number) assigned to
a passenger motor vehicle by a manufacturer in compliance with applicable
regulations.
(b) GENERAL REQUIREMENTS.—(1) If an insurance carrier selling com-
prehensive motor vehicle insurance coverage obtains possession of and trans-
fers a junk motor vehicle or a salvage motor vehicle, the carrier shall—
(A) under procedures the Attorney General prescribes by regulation
under section 33109 of this title in consultation with the Secretary of
Transportation, verify whether the vehicle is reported as stolen; and
(B) provide the purchaser or transferee of the vehicle from the insur-
ance carrier verification identifying the vehicle identification number
and verifying that the vehicle has not been reported as stolen or, if re-
ported as stolen, that the carrier has recovered the vehicle and has
proper legal title to the vehicle.
(2)(A) This subsection does not prohibit an insurance carrier from trans-
ferring a motor vehicle if, within a reasonable period of time during normal
business operations (as decided by the Attorney General under section
33109 of this title) using reasonable efforts, the carrier—
(i) has not been informed under the procedures prescribed in section
33109 of this title that the vehicle has not been reported as stolen; or
(ii) has not otherwise established whether the vehicle has been re-
ported as stolen.
(B) When a carrier transfers a motor vehicle for which the carrier has
not established whether the vehicle has been reported as stolen, the carrier
shall provide written certification to the transferee that the carrier has not
established whether the vehicle has been reported as stolen.
(c) REGULATIONS.—In consultation with the Secretary, the Attorney
General shall prescribe regulations necessary to ensure that verification per-
formed and provided by an insurance carrier under subsection (b)(1)(B) of
this section is uniform, effective, and resistant to fraudulent use.
§ 33111.
Verifications involving motor vehicle major parts
(a) GENERAL REQUIREMENTS.—A person engaged in the business of sal-
vaging, dismantling, recycling, or repairing passenger motor vehicles may
not knowingly sell in commerce or transfer or install a major part marked
with an identification number without—
417
(1) first establishing, through a procedure the Attorney General by
regulation prescribes in consultation with the Secretary of Transpor-
tation under section 33109 of this title, that the major part has not
been reported as stolen; and
(2) providing the purchaser or transferee with a verification—
(A) identifying the vehicle identification number (or derivative
of that number) of that major part; and
(B) verifying that the major part has not been reported as sto-
len.
(b) NONAPPLICATION.—(1) Subsection (a) of this section does not apply
to a person that—
(A) is the manufacturer of the major part;
(B) has purchased the major part directly from the manufacturer;
or
(C) has received a verification from an insurance carrier under sec-
tion 33110 of this title that the motor vehicle from which the major
part is derived has not been reported as stolen, or that the carrier has
not established whether that vehicle has been stolen.
(2) A person described under paragraph (1)(C) of this subsection that
subsequently transfers or sells in commerce the motor vehicle or a major
part of the vehicle shall provide the verification received from the carrier
to the person to whom the vehicle or part is transferred or sold.
(c) REGULATIONS.—The Attorney General shall prescribe regulations to
carry out this section. The regulations shall include regulations prescribed
in consultation with the Secretary that are necessary to ensure that a ver-
ification a person provides under subsection (a)(2) of this section is uni-
form, effective, and resistant to fraudulent use.
§ 33112. Insurance reports and information
(a) PURPOSES.—The purposes of this section are—
(1) to prevent or discourage the theft of motor vehicles, particularly
those stolen for the removal of certain parts;
(2) to prevent or discourage the sale and distribution in interstate
commerce of used parts that are removed from those vehicles; and
(3) to help reduce the cost to consumers of comprehensive insurance
coverage for motor vehicles.
(b) DEFINITIONS.—In this section—
(1) ‘‘insurer’’ includes a person (except a governmental authority)
having a fleet of at least 20 motor vehicles that are used primarily for
rental and are not covered by a theft insurance policy issued by an in-
surer of passenger motor vehicles.
418
(2) ‘‘motor vehicle’’ includes a truck, a multipurpose passenger vehi-
cle, and a motorcycle.
(c) ANNUAL INFORMATION REQUIREMENT.—(1) An insurer providing
comprehensive coverage for motor vehicles shall provide annually to the Sec-
retary of Transportation information on—
(A) the thefts and recoveries (in any part) of motor vehicles;
(B) the number of vehicles that have been recovered intact;
(C) the rating rules and plans, such as loss information and rating
characteristics, used by the insurer to establish premiums for com-
prehensive coverage, including the basis for the premiums, and pre-
mium penalties for motor vehicles considered by the insurer as more
likely to be stolen;
(D) the actions taken by the insurer to reduce the premiums, includ-
ing changing rate levels for comprehensive coverage because of a reduc-
tion in thefts of motor vehicles;
(E) the actions taken by the insurer to assist in deterring or reduc-
ing thefts of motor vehicles; and
(F) other information the Secretary requires to carry out this chap-
ter and to make the report and findings required by this chapter.
(2) The information on thefts and recoveries shall include an explanation
on how the information is obtained, the accuracy and timeliness of the infor-
mation, and the use made of the information, including the extent and fre-
quency of reporting the information to national, public, and private entities
such as the Federal Bureau of Investigation and State and local police.
(d) REPORTS ON REDUCED CLAIMS PAYMENTS.—An insurer shall report
promptly in writing to the Secretary if the insurer, in paying a claim under
an adjustment or negotiation between the insurer and the insured for a sto-
len motor vehicle—
(1) reduces the payment to the insured by the amount of the value,
salvage or otherwise, of a recovered part subject to a standard pre-
scribed under section 33102 or 33103 of this title; and
(2) the reduction is not made at the express election of the insured.
(e) GENERAL EXEMPTIONS.—The Secretary shall exempt from this sec-
tion, for one or more years, an insurer that the Secretary decides should
be exempted because—
(1) the cost of preparing and providing the information is excessive
in relation to the size of the insurer’s business; and
(2) the information from that insurer will not contribute significantly
to carrying out this chapter.
(f) SMALL INSURER EXEMPTIONS.—(1) In this subsection, ‘‘small in-
surer’’ means an insurer whose premiums for motor vehicle insurance issued
419
directly or through an affiliate, including a pooling arrangement established
under State law or regulation for the issuance of motor vehicle insurance,
account for—
(A) less than one percent of the total premiums for all forms of
motor vehicle insurance issued by insurers in the United States; and
(B) less than 10 percent of the total premiums for all forms of motor
vehicle insurance issued by insurers in any State.
(2) The Secretary shall exempt by regulation a small insurer from this
section if the Secretary finds that the exemption will not significantly affect
the validity or usefulness of the information collected and compiled under
this section, nationally or State-by-State. However, the Secretary may not
exempt an insurer under this paragraph that is considered an insurer only
because of subsection (b)(1) of this section.
(3) Regulations under this subsection shall provide that eligibility as a
small insurer shall be based on the most recent calendar year for which ade-
quate information is available, and that, once attained, the eligibility shall
continue without further demonstration of eligibility for one or more years,
as the Secretary considers appropriate.
(g) PRESCRIBED FORM.—Information required by this section shall be
provided in the form the Secretary prescribes.
(h) PERIODIC COMPILATIONS.—Subject to section 552 of title 5, the Sec-
retary periodically shall compile and publish information obtained by the
Secretary under this section, in a form that will be helpful to the public,
the police, and Congress.
(i) CONSULTATION.—In carrying out this section, the Secretary shall con-
sult with public and private agencies and associations the Secretary consid-
ers appropriate.
§ 33113. Theft reports
(a) TRUCK, MULTIPURPOSE PASSENGER VEHICLE, AND MOTORCYCLE
REPORT.—Not later than October 25, 1995, the Secretary of Transpor-
tation shall submit a report to Congress that includes—
(1) information on the number of trucks, multipurpose passenger ve-
hicles, and motorcycles distributed for sale in interstate commerce that
are stolen and recovered annually, compiled by model, make, and line;
(2) information on the extent to which trucks, multipurpose pas-
senger vehicles, and motorcycles stolen annually are dismantled to re-
cover parts or are exported;
(3) a description of the market for the stolen parts;
(4) information on the premiums charged by insurers of comprehen-
sive coverage of trucks, multipurpose passenger vehicles, or motor-
420
cycles, including any increase in the premiums charged because any of
those motor vehicles is a likely candidate for theft;
(5) an assessment of whether the identification of parts of trucks,
multipurpose passenger vehicles, and motorcycles is likely—
(A) to decrease the theft rate of those motor vehicles;
(B) to increase the recovery rate of those motor vehicles;
(C) to decrease the trafficking in stolen parts of those motor ve-
hicles;
(D) to stem the export and import of those stolen motor vehicles
or parts; or
(E) to have benefits greater than the costs of the identification;
and
(6) recommendations on whether, and to what extent, the identifica-
tion of trucks, multipurpose passenger vehicles, and motorcycles should
be required by law.
(b) MOTOR VEHICLE REPORT.—Not later than October 25, 1997, the
Secretary shall submit a report to Congress that includes—
(1) information on—
(A) the methods and procedures used by public and private enti-
ties to collect, compile, and disseminate information on the theft
and recovery of motor vehicles, including classes of motor vehicles;
and
(B) the reliability and timeliness of the information and how the
information can be improved;
(2) information on the number of motor vehicles distributed for sale
in interstate commerce that are stolen and recovered annually, com-
piled by class, model, make, and line;
(3) information on the extent to which motor vehicles stolen annually
are dismantled to recover parts or are exported;
(4) a description of the market for the stolen parts;
(5) information on—
(A) the costs to manufacturers and purchasers of passenger
motor vehicles of compliance with the standards prescribed under
this chapter;
(B) the beneficial impacts of the standards and the monetary
value of the impacts; and
(C) the extent to which the monetary value is greater than the
costs;
(6) information on the experience of officials of the United States
Government, States, and localities in—
421
(A) making arrests and successfully prosecuting persons for vio-
lating a law set forth in title II or III of the Motor Vehicle Theft
Law Enforcement Act of 1984;
(B) preventing or reducing the number and rate of thefts of
motor vehicles that are dismantled for parts subject to this chap-
ter; and
(C) preventing or reducing the availability of used parts that
are stolen from motor vehicles subject to this chapter;
(7) information on the premiums charged by insurers of comprehen-
sive coverage of motor vehicles subject to this chapter, including any
increase in the premiums charged because a motor vehicle is a likely
candidate for theft, and the extent to which the insurers have reduced
for the benefit of consumers the premiums, or foregone premium in-
creases, because of this chapter;
(8) information on the adequacy and effectiveness of laws of the
United States and the States aimed at preventing the distribution and
sale of used parts that have been removed from stolen motor vehicles
and the adequacy of systems available to enforcement personnel for
tracing parts to determine if they have been stolen from a motor vehi-
cle;
(9) an assessment of whether the identification of parts of other
classes of motor vehicles is likely—
(A) to decrease the theft rate of those vehicles;
(B) to increase the recovery rate of those vehicles;
(C) to decrease the trafficking in stolen parts of those vehicles;
(D) to stem the export and import of those stolen vehicles,
parts, or components; or
(E) to have benefits greater than the costs of the identification;
and
(10) other relevant and reliable information available to the Sec-
retary about the impact, including the beneficial impact, of the laws set
forth in titles II and III of the Motor Vehicle Theft Law Enforcement
Act of 1984 on law enforcement, consumers, and manufacturers; and
(11) recommendations (including, as appropriate, legislative and ad-
ministrative recommendations) for—
(A) continuing without change the standards prescribed under
this chapter;
(B) amending this chapter to cover more or fewer lines of pas-
senger motor vehicles;
(C) amending this chapter to cover other classes of motor vehi-
cles; or
422
(D) ending the standards for all future motor vehicles.
(c) BASES OF REPORTS.—(1) The reports under subsections (a) and (b)
of this section each shall be based on—
(A) information reported under this chapter by insurers of motor ve-
hicles and manufacturers of motor vehicles and major replacement
parts;
(B) information provided by the Federal Bureau of Investigation;
(C) experience obtained in carrying out this chapter;
(D) experience of the Government under the laws set forth in titles
II and III of the Motor Vehicle Theft Law Enforcement Act of 1984;
and
(E) other relevant and reliable information available to the Sec-
retary.
(2) In preparing each report, the Secretary shall consult with the Attor-
ney General and State and local law enforcement officials, as appropriate.
(3) The report under subsection (b) of this section shall—
(A) cover a period of at least 4 years after the standards required
by this chapter are prescribed; and
(B) reflect any information, as appropriate, from the report under
subsection (a) of this section, updated from the date of the report.
(4) At least 90 days before submitting each report to Congress, the Sec-
retary shall publish a proposed report for public review and an opportunity
of at least 45 days for written comment. The Secretary shall consider those
comments in preparing the report to be submitted and include a summary
of the comments with the submitted report.
§ 33114. Prohibited acts
(a) GENERAL.—A person may not—
(1) manufacture for sale, sell, offer for sale, introduce or deliver for
introduction in interstate commerce, or import into the United States,
a motor vehicle or major replacement part subject to a standard pre-
scribed under section 33102 or 33103 of this title, unless it conforms
to the standard;
(2) fail to comply with a regulation prescribed by the Secretary of
Transportation or Attorney General under this chapter;
(3) fail to keep specified records, refuse access to or copying of
records, fail to make reports or provide items or information, or fail
or refuse to allow entry or inspection, as required by this chapter;
(4) fail to provide the certification required by section 33108(c) of
this title, or provide a certification that the person knows, or in the
exercise of reasonable care has reason to know, is false or misleading
in a material respect; or
423
(5) knowingly—
(A) own, operate, maintain, or control a chop shop;
(B) conduct operations in a chop shop; or
(C) transport a passenger motor vehicle or passenger motor ve-
hicle part to or from a chop shop.
(b) NONAPPLICATION.—Subsection (a)(1) of this section does not apply
to a person establishing that in the exercise of reasonable care the person
did not have reason to know that the motor vehicle or major replacement
part was not in conformity with the standard.
§ 33115. Civil penalties and enforcement
(a) GENERAL PENALTY AND CIVIL ACTIONS TO COLLECT.—(1) A person
that violates section 33114(a)(1)–(4) of this title is liable to the United
States Government for a civil penalty of not more than $1,000 for each vio-
lation. The failure of more than one part of a single motor vehicle to con-
form to an applicable standard under section 33102 or 33103 of this title
is only a single violation. The maximum penalty under this subsection for
a related series of violations is $250,000.
(2) The Secretary of Transportation imposes a civil penalty under this
subsection. The Secretary may compromise the amount of a penalty.
(3) In determining the amount of a civil penalty or compromise under
this subsection, the Secretary shall consider the size of the person’s business
and the gravity of the violation.
(4) The Attorney General shall bring a civil action in a United States dis-
trict court to collect a civil penalty imposed under this subsection.
(5) The Government may deduct the amount of a civil penalty imposed
or compromised under this subsection from amounts it owes the person lia-
ble for the penalty.
(b) CHOP SHOP PENALTY AND ENFORCEMENT.—(1) A person that vio-
lates section 33114(a)(5) of this title is liable to the Government for a civil
penalty of not more than $100,000 a day for each violation.
(2) As appropriate and in consultation with the Attorney General, the
Secretary shall—
(A) bring a civil action for a temporary or permanent injunction to
restrain a person violating section 33114(a)(5) of this section;
(B) impose and recover the penalty described in paragraph (1) of
this subsection; or
(C) take both the actions described in clauses (A) and (B) of this
paragraph.
(c) CIVIL ACTIONS TO ENFORCE.—(1) The Attorney General may bring
a civil action in a United States district court to enjoin a violation of this
chapter or the sale, offer for sale, introduction or delivery for introduction
424
in interstate commerce, or importation into the United States, of a pas-
senger motor vehicle containing a major part, or of a major replacement
part, that is subject to the standard and is determined before the sale of
the vehicle or part to a first purchaser not to conform to the standard.
(2)(A) When practicable, the Secretary—
(i) shall notify a person against whom an action under this sub-
section is planned;
(ii) shall give the person an opportunity to present that person’s
views; and
(iii) except for a knowing and willful violation, shall give the person
a reasonable opportunity to comply.
(B) The failure of the Secretary to comply with subparagraph (A) of this
paragraph does not prevent a court from granting appropriate relief.
(d) JURY TRIAL DEMAND.—In a trial for criminal contempt for violating
an injunction or restraining order issued under subsection (c) of this sec-
tion, the violation of which is also a violation of this chapter, the defendant
may demand a jury trial. The defendant shall be tried as provided in rule
42(b) of the Federal Rules of Criminal Procedure (18 App. U.S.C.).
(e) VENUE.—A civil action under subsection (a) or (c) of this section may
be brought in the judicial district in which the violation occurred or the de-
fendant resides, is found, or transacts business. Process in the action may
be served in any other judicial district in which the defendant resides or is
found. A subpena for a witness in the action may be served in any judicial
district.
§ 33116. Confidentiality of information
(a) GENERAL.—Information obtained by the Secretary of Transportation
under this chapter related to a confidential matter referred to in section
1905 of title 18 may be disclosed only—
(1) to another officer or employee of the United States Government
for use in carrying out this chapter; or
(2) in a proceeding under this chapter (except a proceeding under
section 33104(a)(3)).
(b) WITHHOLDING INFORMATION FROM CONGRESS.—This section does
not authorize information to be withheld from a committee of Congress au-
thorized to have the information.
§ 33117. Judicial review
A person that may be adversely affected by a regulation prescribed under
this chapter may obtain judicial review of the regulation under section
32909 of this title. A remedy under this section is in addition to any other
remedies provided by law.
425
§ 33118. Preemption of State and local law
When a motor vehicle theft prevention standard prescribed under section
33102 or 33103 of this title is in effect, a State or political subdivision of
a State may not have a different motor vehicle theft prevention standard
for a motor vehicle or major replacement part.
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.
RATES .............................................................................................................
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
PART D—MISCELLANEOUS
491.
BUY-AMERICAN PREFERENCES ..............................................................
49101
PART A—AIR COMMERCE AND SAFETY
SUBPART I—GENERAL
CHAPTER 401—GENERAL PROVISIONS
Sec.
40101.
Policy.
40102.
Definitions.
40103.
Sovereignty and use of airspace.
40104.
Promotion of civil aeronautics and 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.
426
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.
§ 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, rec-
ognizing the clear intent, encouragement, and dedication 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 commerce 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 de-
ceptive 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 dif-
ferences between interstate air transportation and foreign air
transportation.
(7) developing and maintaining a sound regulatory system that is re-
sponsive 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.
427
(8) encouraging air transportation at major urban areas through sec-
ondary or satellite airports if consistent with regional airport plans of
regional and local authorities, and if endorsed by appropriate State au-
thorities—
(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 carriers to estab-
lish themselves and develop secondary or satellite airport services.
(9) preventing unfair, deceptive, predatory, or anticompetitive prac-
tices 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 in-
crease rates, reduce services, or exclude competition in air transpor-
tation.
(11) maintaining a complete and convenient system of continuous
scheduled interstate air transportation for small communities and iso-
lated areas with direct financial assistance from the United States Gov-
ernment when appropriate.
(12) encouraging, developing, and maintaining an air transportation
system relying on actual and potential competition—
(A) to provide efficiency, innovation, and low rates; and
(B) to decide on the variety and quality of, and determine rates
for, air transportation services.
(13) encouraging entry into air transportation markets by new and
existing air carriers and the continued strengthening of small air car-
riers to ensure a more effective and competitive 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 profit-
ability in foreign air transportation.
(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:
428
(1) encouraging and developing an expedited all-cargo air transpor-
tation system provided by private enterprise and responsive 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 transportation system
relying on competitive market forces to decide the extent, variety, qual-
ity, 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 sub-
part III, the Administrator of the Federal Aviation 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 air-
space.
(d) SAFETY CONSIDERATIONS IN PUBLIC INTEREST.—In carrying out
subpart III of this part and those provisions of subpart IV applicable in car-
rying out subpart III, the Administrator shall consider the following mat-
ters, among others, as being in the public interest:
(1) regulating air commerce in a way that best promotes its develop-
ment and safety and fulfills national defense requirements.
(2) promoting, encouraging, and developing civil aeronautics.
(3) 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.
(4) consolidating research and development for air navigation facili-
ties and the installation and operation of those facilities.
(5) developing and operating a common system of air traffic control
and navigation for military and civil aircraft.
(6) providing assistance to law enforcement agencies in the enforce-
ment of laws related to regulation of controlled substances, to the ex-
tent 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:
429
(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 profit-
ability in foreign air transportation.
(2) freedom of air carriers and foreign air carriers to offer rates that
correspond to consumer demand.
(3) the fewest possible restrictions on charter air transportation.
(4) the maximum degree of multiple and permissive international au-
thority 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 simi-
lar 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 transportation, 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 pro-
vide foreign air transportation from among competing applicants, the Sec-
retary 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 com-
merce, the transportation of mail by aircraft, the operation of aircraft
within the limits of a Federal airway, or the operation of aircraft that
430
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 informa-
tion, signaling, radio-directional finding, or radio or other electro-
magnetic 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 designed 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 Federal Avia-
tion Administration may provide otherwise for individuals em-
ployed outside the United States, who is directly in charge of in-
specting, 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 re-
ceiving or discharging passengers or cargo.
(10) ‘‘all-cargo air transportation’’ means the transportation by air-
craft 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, in-
cluding a parachute, communication equipment, and another mecha-
nism 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.
431
(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 trans-
portation 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, of which the president and at
least two-thirds of the board of directors and other managing offi-
cers are 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 aircraft.
(17) ‘‘civil aircraft of the United States’’ means an aircraft reg-
istered under chapter 441 of this title.
(18) ‘‘conditional sales contract’’ means a contract—
(A) for the sale of an aircraft, aircraft engine, propeller, appli-
ance, 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, propeller, appli-
ance, 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.
(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 Unit-
ed States, undertaking by any means, directly or indirectly, to provide
foreign air transportation.
433
(26) ‘‘intrastate air carrier’’ means a citizen of the United States un-
dertaking 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 pro-
vided for sheltering, servicing, or repairing aircraft, or for receiving or
discharging passengers or cargo.
(29) ‘‘mail’’ means United States mail and foreign transit mail.
(30) ‘‘navigable airspace’’ means airspace above the minimum alti-
tudes of flight prescribed by regulations under subparts I and III of
this part, including airspace needed to ensure safety in the takeoff and
landing of aircraft.
(31) ‘‘navigate aircraft’’ and ‘‘navigation of aircraft’’ include piloting
aircraft.
(32) ‘‘operate aircraft’’ and ‘‘operation of aircraft’’ mean using air-
craft 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.
(33) ‘‘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.
(34) ‘‘predatory’’ means a practice that violates the antitrust laws
as defined in the first section of the Clayton Act (15 U.S.C. 12).
(35) ‘‘propeller’’ includes a part, appurtenance, and accessory of a
propeller.
(36) ‘‘public aircraft’’—
(A) means an aircraft—
(i) used only for the United States Government; or
(ii) owned and operated (except for commercial purposes),
or exclusively leased for at least 90 continuous days, by a
government (except the United States Government), including
a State, the District of Columbia, or a territory or possession
of the United States, or political subdivision of that govern-
ment; but
(B) does not include a government-owned aircraft transporting
passengers or property for commercial purposes.
434
(37) ‘‘rate’’ means a rate, fare, or charge for air transportation.
(38) ‘‘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.
(39) ‘‘State authority’’ means an authority of a State designated
under State law—
(A) to receive notice required to be given a State authority
under subpart II of this part; or
(B) as the representative of the State before the Secretary of
Transportation in any matter about which the Secretary is re-
quired to consult with or consider the views of a State authority
under subpart II of this part.
(40) ‘‘territory or possession of the United States’’ means—
(A) the Canal Zone, but this definition does not affect the juris-
diction of the President over air navigation in the Canal Zone; and
(B) any other territory or possession of the United States.
(41) ‘‘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, negotiates for, or holds it-
self out as selling, providing, or arranging for, air transportation.
(42) ‘‘United States’’ means the States of the United States, the
District of Columbia, and the territories and possessions of the United
States, including the territorial sea and the overlying airspace.
(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 Transpor-
tation 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 com-
mercial airports or commercial air transportation for handicapped individ-
uals.
(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
435
to ensure the safety of aircraft and the efficient use of airspace. The Admin-
istrator 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 maxi-
mum use of the navigable airspace by civil aircraft consistent with national
security, the Administrator, in consultation with the Secretary of Defense,
shall—
(A) establish areas in the airspace the Administrator decides are nec-
essary in the interest of national defense; and
(B) by regulation or order, restrict or prohibit flight of civil aircraft
that the Administrator cannot identify, locate, and control with avail-
able 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, including the Canal Zone, 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 Govern-
ment 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 serv-
ices 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 air commerce
The Administrator of the Federal Aviation Administration shall encour-
age the development of civil aeronautics and air commerce in and outside
436
the United States. In carrying out this section, the Administrator shall take
action that the Administrator considers necessary to establish, within avail-
able resources, a program to distribute civil aviation information in each re-
gion 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.
§ 40105. International negotiations, agreements, and obliga-
tions
(a) ADVICE AND CONSULTATION.—The Secretary of State shall advise
the Administrator of the Federal Aviation Administration and the Secretar-
ies 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 car-
rying out this part to the extent this part is related to foreign air transpor-
tation.
(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 Gov-
ernment 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 agree-
ment 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;
437
(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 NEGO-
TIATIONS.—The President shall grant to at least one representative of each
House of Congress the privilege of attending international aviation negotia-
tions as an observer if the privilege is requested in advance in writing.
§ 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 reason-
able effort to consult with the Administrator and arrange for the devi-
ation 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 Con-
vention for the Suppression of Unlawful Seizure of Aircraft or that the gov-
ernment 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 sei-
zure, 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 trans-
portation 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 transportation be-
tween 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 be-
tween 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 hear-
ing. The suspension remains in effect for as long as the President decides
is necessary to ensure the security of aircraft against unlawful seizure. Not-
438
withstanding section 40105(b) of this title, the authority of the President
to suspend rights under this subsection is a condition to a certificate of pub-
lic convenience and necessity, air carrier operating certificate, foreign air
carrier or foreign aircraft permit, or foreign air carrier operating specifica-
tion issued by the Secretary of Transportation under this part.
(3) An air carrier or foreign air carrier may not provide foreign air trans-
portation, 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 Adminis-
trator of the Federal Aviation Administration a duty, power, activity, or fa-
cility of a department, agency, or instrumentality 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 se-
lecting, developing, testing, evaluating, establishing, operating, or maintain-
ing a system, procedure, facility, or device for safe and efficient air naviga-
tion and air traffic control. In making a transfer, the President may trans-
fer records and property and make officers and employees from the depart-
ment, 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 De-
partment of Defense.
§ 40108. Training schools
(a) AUTHORITY TO OPERATE.—The Administrator of the Federal Avia-
tion Administration may operate schools to train officers and employees of
the Administration to carry out duties, powers, and activities of the Admin-
istrator.
(b) ATTENDANCE.—The Administrator may authorize officers and em-
ployees of other departments, agencies, or instrumentalities of the United
States Government, officers and employees of governments of foreign coun-
tries, and individuals from the aeronautics industry 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 ad-
ditional cost. The amount received may be credited to the appropriation cur-
rent when the expenditures are or were paid, the appropriation current
when the amount is received, or both.
439
§ 40109. Authority to exempt
(a) AIR CARRIERS AND FOREIGN AIR CARRIERS NOT ENGAGED DI-
RECTLY IN OPERATING AIRCRAFT.—(1) The Secretary of Transportation
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 Sec-
retary 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 car-
rying out sections 40103(b)(1) and (2), 40119, 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, sections
41301–41306, 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, or a regulation or term prescribed under any of those provisions, when
the Secretary decides that the exemption is consistent with the public inter-
est.
(d) LABOR REQUIREMENTS.—The Secretary may not exempt an air car-
rier from section 42112 of this title. However, the Secretary may exempt
from section 42112(b)(1) and (2) an air carrier not providing scheduled air
transportation, and the operations conducted during daylight hours by an
air carrier providing scheduled air transportation, when the Secretary de-
cides that—
(1) because of the limited extent of, or unusual circumstances affect-
ing, the operation of the air carrier, the enforcement of section
42112(b)(1) and (2) of this title is or would be an unreasonable burden
on the air carrier that would obstruct its development and prevent it
from beginning or continuing operations; and
(2) the exemption would not affect adversely the public interest.
(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 provi-
sions, that sets maximum flying hours for pilots or copilots.
440
(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 regula-
tions 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 pro-
viding air transportation between 2 places in Alaska, or between Alaska and
Canada, only if the carrier is authorized by Alaska to provide the transpor-
tation.
(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 certificate issued by the Secretary to provide its authorized
transportation, including the minimum transportation requirement for Alas-
ka 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 inter-
est, the Secretary may exempt by order a foreign air carrier from the re-
quirements 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 trans-
portation 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 certifi-
cates 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 prac-
ticable;
441
(C) the exemption is necessary to avoid unreasonable hardship for
the traffic in the markets that cannot be accommodated by the air car-
riers; and
(D) granting the exemption will not result in an unreasonable advan-
tage 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 pro-
vides 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.
§ 40110. General procurement authority
(a) GENERAL.—In carrying out this part, the Administrator of the Fed-
eral Aviation Administration may—
(1) acquire, to the extent that amounts are available for obligation,
services or an interest in property, including an interest in airspace im-
mediately adjacent to and needed for airports and other air navigation
facilities owned by the United States Government and operated by the
Administrator;
(2) dispose of an interest in property for adequate compensation; and
(3) construct and improve laboratories and other test facilities.
(b) DUTIES AND POWERS.—When carrying out subsection (a) of this sec-
tion, the Administrator of the Federal Aviation Administration—
(1) is the senior procurement executive referred to in section 16(3)
of the Office of Federal Procurement Policy Act (41 U.S.C. 414(3))
for approving the justification for using procedures other than competi-
tive procedures, as required under section 303(f)(1)(B)(iii) of the Fed-
eral Property and Administrative Services Act of 1949 (41 U.S.C.
253(f)(1)(B)(iii)); and
(2) may—
442
(A) lease an interest in property for not more than 20 years;
(B) consider the reasonable probable future use of the underly-
ing land in making an award for a condemnation of an interest
in airspace;
(C) construct, or acquire an interest in, a public building (as
defined in section 13 of the Public Buildings Act of 1959 (40
U.S.C. 612)) only under a delegation of authority from the Ad-
ministrator of General Services;
(D) use procedures other than competitive procedures, as pro-
vided under section 303(c) of the Federal Property and Adminis-
trative Services Act of 1949 (41 U.S.C. 253(c));
(E) use procedures other than competitive procedures only when
the property or services needed by the Administrator of the Fed-
eral Aviation Administration are available from only one respon-
sible 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
(F) 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
title II of the Federal Property and Administrative Services Act
of 1949 (40 U.S.C. 481 et seq.).
§ 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 appro-
priated:
(1) Operation, maintenance, and support of facilities and installa-
tions.
(2) Operation, maintenance, and modification of aircraft, vehicles,
and other highly complex equipment.
(3) Specialized training requiring high quality instructor skills, in-
cluding 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—
443
(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 oper-
ation.
(c) CONSIDERATIONS.—When making a contract under this section, 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 reasonable
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 sub-
sequent fiscal year. The cost of ending the contract may be paid from—
(1) an appropriation originally available for carrying out the con-
tract;
(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 obliga-
tion, 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 or a contract to purchase property to which
section 111 of the Federal Property and Administrative Services Act of
1949 (40 U.S.C. 759) applies.
444
(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 appropriations for the
contract at the level required to avoid cancellation;
(4) there is a stable design for the property to be acquired and the
technical risks associated with the property are not excessive; and
(5) the estimates of the contract costs and the anticipated savings
from the contract are realistic.
(c) REGULATIONS.—The Administrator shall prescribe regulations for ac-
quiring 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 provision may include consideration of recurring and non-
recurring costs of the contractor associated with producing the item to be
delivered under the contract. The regulations shall provide that, to the
extent 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 subcontractors, ven-
dors, or suppliers; and
(B) on accrual of a payment or other benefit accruing on a con-
tract under this section to a subcontractor, vendor, or supplier
participating in the contract, the payment or benefit shall be deliv-
ered 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 abil-
ity of the Administrator to provide for—
(A) competition in producing items to be delivered under a con-
tract 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—
445
(A) be used for the advance procurement of components, parts, and
material necessary to manufacture equipment to be used in the na-
tional 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 CEIL-
ING.—(1) If a contract under this section provides that performance is sub-
ject 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 cancella-
tion 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 Commit-
tee on Public Works and Transportation of the House of Representatives.
The contract may not be awarded until the end of the 30-day period begin-
ning 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 sub-
sequent fiscal year. The cost of ending the contract may be paid from—
(1) an appropriation originally available for carrying out the con-
tract;
(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 Ad-
ministrator of the Federal Aviation Administration with respect to aviation
safety duties and powers designated to be carried out by the Administrator)
may take action the Secretary or Administrator, as appropriate, considers
necessary to carry out this part, including conducting investigations, pre-
scribing 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 trans-
ported by an individual for personal use.
446
(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 Ad-
ministration and any research or technical department, agency, or instru-
mentality 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, propel-
lers, appliances, and air navigation facilities. Each department, agency, and
instrumentality may conduct scientific and technical 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 au-
thorize duplicating laboratory research activities of a department, agency,
or instrumentality.
(d) INDEMNIFICATION.—The Administrator of the Federal Aviation Ad-
ministration may indemnify an officer or employee of the Administration
against a claim or judgment arising out of an act that the Administrator
decides was committed within the scope of the official duties of the officer
or employee.
§ 40114. Reports and records
(a) WRITTEN REPORTS.—(1) Except as provided in this part, the Sec-
retary of Transportation (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) 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 investiga-
tion. The report shall include the decision, conclusions, order, and require-
ments of the Secretary or Administrator as appropriate.
(2) The Secretary (or the Administrator with respect to aviation safety
duties and powers designated to be carried out by the Administrator) shall
have all reports, orders, decisions, and regulations the Secretary or Adminis-
trator, 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 custo-
dian of those records. A public record, or a copy or extract of it, certified
by the Secretary under the seal of the Department of Transportation is
447
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 appro-
priate Secretary or the Postal Service decides that disclosure of the informa-
tion would—
(A) prejudice the United States Government in preparing and pre-
senting its position in international negotiations; or
(B) have an adverse effect on the competitive position of an air car-
rier in foreign air transportation.
(b) WITHHOLDING INFORMATION FROM CONGRESS.—This section does
not authorize information to be withheld from a committee of Congress au-
thorized to have the information.
§ 40116. State taxation
(a) DEFINITION.—In this section, ‘‘State’’ includes the District of Colum-
bia, 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 or political subdivision of a State
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 transportation.
(c) AIRCRAFT TAKING OFF OR LANDING IN STATE.—A State or political
subdivision of a State may levy or collect a tax on or related 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 INTER-
STATE 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;
448
(B) ‘‘assessment’’ means valuation for a property tax levied by a tax-
ing district;
(C) ‘‘assessment jurisdiction’’ means a geographical area in a State
used in determining the assessed value of property for ad valorem tax-
ation; and
(D) ‘‘commercial and industrial property’’ means property (except
transportation property and land used primarily for agriculture or tim-
ber 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 com-
merce:
(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 mar-
ket 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 trans-
portation property at a tax rate greater than the tax rate applicable
to commercial and industrial property in the same assessment jurisdic-
tion.
(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 services.
(B) ‘‘State’’ means a State of the United States, the District of Co-
lumbia, and a territory or possession of the United States.
(C) an employee is deemed to have earned 50 percent of the employ-
ee’s pay in a State or political subdivision of a State in which the
449
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.
(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 income tax laws of
only the following:
(A) the State or political subdivision of the State that is the resi-
dence of the employee.
(B) the State or political subdivision of the State in which the em-
ployee earns more than 50 percent of the pay received by the employee
from the carrier.
§ 40117. Passenger facility fees
(a) DEFINITIONS.—In this section—
(1) ‘‘airport’’, ‘‘commercial service airport’’, and ‘‘public agency’’
have the same meanings given those terms in section 47102 of this
title.
(2) ‘‘eligible agency’’ means a public agency that controls a commer-
cial service airport.
(3) ‘‘eligible airport-related project’’ means a project—
(A) for airport development or airport planning under sub-
chapter I of chapter 471 of this title;
(B) for terminal development described in section 47110(d) of
this title;
(C) for airport noise capability planning under section 47505 of
this title;
(D) to carry out noise compatibility measures eligible for assist-
ance under section 47504 of this title, whether or not a program
for those measures has been approved under section 47504; and
(E) for constructing gates and related areas at which pas-
sengers board or exit aircraft.
(4) ‘‘passenger facility fee’’ means a fee imposed under this section.
(5) ‘‘passenger facility revenue’’ means revenue derived from a pas-
senger facility fee.
(b) GENERAL AUTHORITY.—(1) The Secretary of Transportation may au-
thorize 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 serv-
ice on indebtedness incurred to carry out the project, to be carried out in
connection with the airport or any other airport the agency controls.
450
(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 pro-
hibit 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 car-
rier or foreign air carrier originating or connecting at the commercial serv-
ice airport that the agency controls.
(c) APPLICATIONS.—(1) An eligible agency must submit to the Secretary
an application for authority to impose a passenger facility fee. The applica-
tion 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 pre-
scribe regulations that define reasonable notice and contain at least the fol-
lowing 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 no-
tice of receipt of the notice. Failure of a carrier to provide the notice
may be deemed certification of agreement with the project by the car-
rier 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 meet-
ing 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 agree-
ment 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.
(3) After receiving an application, the Secretary shall provide notice and
an opportunity to air carriers, foreign air carriers, and other interested per-
sons to comment on the application. The Secretary shall make a final deci-
sion on the application not later than 120 days after receiving it.
451
(d) LIMITATIONS ON APPROVING APPLICATIONS.—The Secretary may ap-
prove 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 reve-
nue) that is not more than the amount necessary to finance the specific
project; and
(2) each project is an eligible airport-related project that will—
(A) preserve or enhance capacity, safety, or security of the na-
tional 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.
(e) LIMITATIONS ON IMPOSING FEES.—(1) An eligible agency may im-
pose a passenger facility fee only—
(A) if the Secretary approves an application that the agency has sub-
mitted 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 chap-
ter 417 of this title for which essential air service compensation is paid
under subchapter II; and
(C) for a project the Secretary does not approve under this section
before October 1, 1993, if, during the fiscal year ending September 30,
1993, the amount available for obligation under subchapter II of chap-
ter 417 of this title is less than $38,600,000, except that this clause—
(i) does not apply if the amount available for obligation under
subchapter II of chapter 417 of this title is less than $38,600,000
because of sequestration or other general appropriations reduc-
tions applied proportionately to appropriations accounts through-
out an appropriation law; and
(ii) does not affect the authority of the Secretary to approve the
imposition of a fee or the use of revenues, derived from a fee im-
posed under an approval made under this section, by a public
agency that has received an approval to impose a fee under this
452
section before September 30, 1993, regardless of whether the fee
is being imposed on September 30, 1993.
(f) LIMITATIONS ON CONTRACTS, LEASES, AND USE AGREEMENTS.—(1)
A contract between an air carrier or foreign air carrier and an eligible agen-
cy 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 relat-
ed to a project whose construction or expansion was financed with a pas-
senger facility fee may not restrict the eligible agency from financing, devel-
oping, or assigning new capacity at the airport with passenger facility
revenue.
(g) TREATMENT OF REVENUE.—(1) Passenger facility revenue is not air-
port revenue for purposes of establishing a rate, fee, or charge under a con-
tract between an eligible agency and an air carrier or foreign air carrier.
(2) An eligible agency may not include in its rate base the part of the
capital costs of a project paid for by using passenger facility revenue to es-
tablish a rate, fee, or charge 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 rate, fee, or charge payable by an
air carrier or foreign air carrier using the facilities must at least equal the
rate, fee, or charge paid by an air carrier or foreign air carrier using a simi-
lar facility at the airport that was not financed with passenger facility
revenue.
(h) COMPLIANCE.—(1) As necessary to ensure compliance with this sec-
tion, 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 impos-
ing the fee.
(2) The Secretary periodically shall audit and review the use by an eligi-
ble 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 extent 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
453
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; and
(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.
§ 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 Gov-
ernment; or
(B) provides the transportation to or for a foreign country or
international or other organization without reimbursement;
(2) the transportation is authorized by the certificate or by regula-
tion 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.
454
(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 mag-
nitude.
(c) PROOF.—The Comptroller General shall allow the expenditure of an
appropriation for transportation in violation of this section only when satis-
factory proof is presented showing the necessity for the transportation.
(d) TRANSPORTATION
BY FOREIGN AIR CARRIERS.—Notwithstanding
subsections (a) and (c) of this section, any amount appropriated to the Sec-
retary of State, the Director of the United States Information Agency, the
Director of the United States International Development Cooperation Agen-
cy, or the Director of the Arms Control and Disarmament Agency 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 em-
ployee, and accompanying baggage, by a foreign air carrier when the trans-
portation 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.
§ 40119. Security and research and development activities
(a) GENERAL REQUIREMENTS.—The Administrator of the Federal Avia-
tion Administration shall conduct research (including behavioral 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 violence and aircraft piracy.
(b) DISCLOSURE.—(1) Notwithstanding section 552 of title 5, the Admin-
istrator shall prescribe regulations prohibiting disclosure of information ob-
tained or developed in carrying out security or research and development
activities under section 44501(a) or (c), 44502(a)(1) or (3), (b), or (c),
44504, 44505, 44507, 44508, 44511, 44512, 44513, 44901, 44903(a), (b),
(c), or (e), 44905, 44912, 44935, 44936, or 44938(a) or (b) of this title
if the Administrator 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 the safety of passengers in air transportation.
455
(2) Paragraph (1) of this subsection does not authorize information to
be withheld from a committee of Congress authorized to have the informa-
tion.
(c) TRANSFERS OF DUTIES AND POWERS PROHIBITED.—Except as oth-
erwise provided by law, the Administrator 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 Naviga-
tional Rules Act of 1977 (33 U.S.C. 1601 et seq.), the navigation and ship-
ping 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 Govern-
ment 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.
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 cer-
tificates.
41111.
Simplified procedure to apply for, amend, modify, suspend, and transfer certificates.
41112.
Liability insurance and financial responsibility.
§ 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 car-
rier 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
456
(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 au-
thority—
(1) may provide transportation for passengers and property that in-
cludes 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 author-
izing 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 pe-
riod.
(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 sec-
tion for foreign air transportation, must find that the transportation is con-
sistent with the public convenience and necessity.
(c) TEMPORARY CERTIFICATES.—The Secretary may issue a certificate
under subsection (a) of this section for interstate air transportation (except
the transportation of passengers) or foreign air transportation for a tem-
porary period of time (whether the application is for permanent or tem-
porary authority) when the Secretary decides that a test period is desir-
able—
457
(1) to decide if the projected services, efficiencies, methods, and rates
and the projected results will materialize and remain 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 Presi-
dent 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 Sec-
retary of Transportation for a certificate authorizing the citizen to provide
all-property 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 certifi-
cate 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.
(c) TERMS.—The Secretary may impose terms the Secretary considers
necessary when issuing a certificate under this section. However, the Sec-
retary may not impose terms that restrict the places served or rates 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 proce-
dures 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 prescribe a
regulation or issue an order restricting the marketability, flexibility, acces-
sibility, or variety of charter air transportation provided under a certificate
issued under section 41102 of this title only to the extent required by the