Collapse to view only [§ 40119. Repealed.

§ 40101.
Policy
(a)
Economic Regulation.—
In carrying out subpart II of this part and those provisions of subpart IV applicable in carrying out subpart II, the Secretary of Transportation shall consider the following matters, among others, as being in the public interest and consistent with public convenience and necessity:
(1) assigning and maintaining safety as the highest priority in air commerce.
(2) before authorizing new air transportation services, evaluating the safety implications of those services.
(3) preventing deterioration in established safety procedures, recognizing the clear intent, encouragement, and 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 deceptive practices.
(5) coordinating transportation by, and improving relations among, air carriers, and encouraging fair wages and working conditions.
(6)
placing maximum reliance on competitive market forces and on actual and potential competition—
(A) to provide the needed air transportation system; and
(B) to encourage efficient and well-managed air carriers to earn adequate profits and attract capital, considering any material differences between interstate air transportation and foreign air transportation.
(7)
developing and maintaining a sound regulatory system that is responsive to the needs of the public and in which decisions are reached promptly to make it easier to adapt the air transportation system to the present and future needs of—
(A) the commerce of the United States;
(B) the United States Postal Service; and
(C) the national defense.
(8)
encouraging air transportation at major urban areas through secondary or satellite airports if consistent with regional airport plans of regional and local authorities, and if endorsed by appropriate State authorities—
(A) encouraging the transportation by air carriers that provide, in a specific market, transportation exclusively at those airports; and
(B) fostering an environment that allows those carriers to establish themselves and develop secondary or satellite airport services.
(9) preventing unfair, deceptive, predatory, or anticompetitive practices in air transportation.
(10) avoiding unreasonable industry concentration, excessive market domination, monopoly powers, and other conditions that would tend to allow at least one air carrier or foreign air carrier unreasonably to increase prices, reduce services, or exclude competition in air transportation.
(11) maintaining a complete and convenient system of continuous scheduled interstate air transportation for small communities and isolated areas with direct financial assistance from the United States Government when appropriate.
(12)
encouraging, developing, and maintaining an air transportation system relying on actual and potential competition—
(A) to provide efficiency, innovation, and low prices; and
(B) to decide on the variety and quality of, and determine prices for, air transportation services.
(13) encouraging entry into air transportation markets by new and existing air carriers and the continued strengthening of small air carriers to ensure a more effective and competitive airline industry.
(14) promoting, encouraging, and developing civil aeronautics and a viable, privately-owned United States air transport industry.
(15) strengthening the competitive position of air carriers to at least ensure equality with foreign air carriers, including the attainment of the opportunity for air carriers to maintain and increase their profitability in foreign air transportation.
(16) ensuring that consumers in all regions of the United States, including those in small communities and rural and remote areas, have access to affordable, regularly scheduled air service.
(b)
All-Cargo Air Transportation Considerations.—
In carrying out subpart II of this part and those provisions of subpart IV applicable in carrying out subpart II, the Secretary of Transportation shall consider the following matters, among others and in addition to the matters referred to in subsection (a) of this section, as being in the public interest for all-cargo air transportation:
(1)
encouraging and developing an expedited all-cargo air transportation system provided by private enterprise and 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, quality, and price of services provided.
(3) providing services without unreasonable discrimination, unfair or deceptive practices, or predatory pricing.
(c)
General Safety Considerations.—
In carrying out subpart III of this part and those provisions of subpart IV applicable in carrying out subpart III, the Administrator of the Federal 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 airspace.
(d)
Safety Considerations in Public Interest.—
In carrying out subpart III of this part and those provisions of subpart IV applicable in carrying out subpart III, the Administrator shall consider the following matters, among others, as being in the public interest:
(1) assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce.
(2) regulating air commerce in a way that best promotes safety and fulfills national defense requirements.
(3) encouraging and developing civil aeronautics, including new aviation technology.
(4) controlling the use of the navigable airspace and regulating civil and military operations in that airspace in the interest of the safety and efficiency of both of those operations.
(5) consolidating research and development for air navigation facilities and the installation and operation of those facilities.
(6) developing and operating a common system of air traffic control and navigation for military and civil aircraft.
(7) providing assistance to law enforcement agencies in the enforcement of laws related to regulation of controlled substances, to the extent consistent with aviation safety.
(e)
International Air Transportation.—
In formulating United States international air transportation policy, the Secretaries of State and Transportation shall develop a negotiating policy emphasizing the greatest degree of competition compatible with a well-functioning international air transportation system, including the following:
(1) strengthening the competitive position of air carriers to ensure at least equality with foreign air carriers, including the attainment of the opportunity for air carriers to maintain and increase their profitability in foreign air transportation.
(2) freedom of air carriers and foreign air carriers to offer prices that correspond to consumer demand.
(3) the fewest possible restrictions on charter air transportation.
(4) the maximum degree of multiple and permissive international authority for air carriers so that they will be able to respond quickly to a shift in market demand.
(5) eliminating operational and marketing restrictions to the greatest extent possible.
(6) integrating domestic and international air transportation.
(7) increasing the number of nonstop United States gateway cities.
(8) opportunities for carriers of foreign countries to increase their access to places in the United States if exchanged for benefits of similar magnitude for air carriers or the traveling public with permanent linkage between rights granted and rights given away.
(9)
eliminating discrimination and unfair competitive practices faced by United States airlines in foreign air 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 provide foreign air transportation from among competing applicants, the Secretary of Transportation shall consider, in addition to the matters specified in subsections (a) and (b) of this section, the strengthening of competition among air carriers operating in the United States to prevent unreasonable concentration in the air carrier industry.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1094; Pub. L. 104–264, title IV, § 401(a), Oct. 9, 1996, 110 Stat. 3255; Pub. L. 106–181, title II, § 201, Apr. 5, 2000, 114 Stat. 91.)
§ 40102.
Definitions
(a)
General Definitions.—
In this part—
(1) “aeronautics” means the science and art of flight.
(2) “air carrier” means a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.
(3) “air commerce” means foreign air commerce, interstate air commerce, the transportation of mail by aircraft, the operation of aircraft within the limits of a Federal airway, or the operation of aircraft that directly affects, or may endanger safety in, foreign or interstate air commerce.
(4)
“air navigation facility” means a facility used, available for use, or designed for use, in aid of air navigation, including—
(A) a landing area;
(B) runway lighting and airport surface visual and other navigation aids;
(C) apparatus, equipment, software, or service for distributing aeronautical and meteorological information to air traffic control facilities or aircraft;
(D) communication, navigation, or surveillance equipment for air-to-ground or air-to-air applications;
(E) any structure, equipment, or mechanism for guiding or controlling flight in the air or the landing and takeoff of aircraft; and
(F) buildings, equipment, and systems dedicated to the national airspace system.
(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 Aviation Administration may provide otherwise for individuals employed outside the United States, who is directly in charge of inspecting, maintaining, overhauling, or repairing aircraft, aircraft engines, propellers, or appliances; or
(C) who serves as an aircraft dispatcher or air traffic control-tower operator.
(9) “airport” means a landing area used regularly by aircraft for receiving or discharging passengers or cargo.
(10) “all-cargo air transportation” means the transportation by aircraft in interstate air transportation of only property or only mail, or both.
(11) “appliance” means an instrument, equipment, apparatus, a part, an appurtenance, or an accessory used, capable of being used, or intended to be used, in operating or controlling aircraft in flight, including a parachute, communication equipment, and another mechanism installed in or attached to aircraft during flight, and not a part of an aircraft, aircraft engine, or propeller.
(12) “cargo” means property, mail, or both.
(13) “charter air carrier” means an air carrier holding a certificate of public convenience and necessity that authorizes it to provide charter air transportation.
(14) “charter air transportation” means charter trips in air transportation authorized under this part.
(15)
“citizen of the United States” means—
(A) an individual who is a citizen of the United States;
(B) a partnership each of whose partners is an individual who is a citizen of the United States; or
(C) a corporation or association organized under the laws of the United States or a State, the District of Columbia, or a territory or possession of the United States, of which the president and at least two-thirds of the board of directors and other managing officers are citizens of the United States, which is under the actual control of citizens of the United States, and in which at least 75 percent of the voting interest is owned or controlled by persons that are citizens of the United States.
(16) “civil aircraft” means an aircraft except a public aircraft.
(17) “civil aircraft of the United States” means an aircraft registered under chapter 441 of this title.
(18)
“conditional sales contract” means a contract—
(A)
for the sale of an aircraft, aircraft engine, propeller, appliance, or spare part, under which the buyer takes possession of the property but title to the property vests in the buyer at a later time on—
(i) paying any part of the purchase price;
(ii) performing another condition; or
(iii) the happening of a contingency; or
(B)
to bail or lease an aircraft, aircraft engine, propeller, appliance, or spare part, under which the bailee or lessee—
(i) agrees to pay an amount substantially equal to the value of the property; and
(ii) is to become, or has the option of becoming, the owner of the property on complying with the contract.
(19) “conveyance” means an instrument, including a conditional sales contract, affecting title to, or an interest in, property.
(20) “Federal airway” means a part of the navigable airspace that the Administrator designates as a Federal airway.
(21) “foreign air carrier” means a person, not a citizen of the United States, undertaking by any means, directly or indirectly, to provide foreign air transportation.
(22) “foreign air commerce” means the transportation of passengers or property by aircraft for compensation, the transportation of mail by aircraft, or the operation of aircraft in furthering a business or vocation, between a place in the United States and a place outside the United States when any part of the transportation or operation is by aircraft.
(23) “foreign air transportation” means the transportation of passengers or property by aircraft as a common carrier for compensation, or the transportation of mail by aircraft, between a place in the United States and a place outside the United States when any part of the transportation is by aircraft.
(24)
“interstate air commerce” means the transportation of passengers or property by aircraft for compensation, the transportation of mail by aircraft, or the operation of aircraft in furthering a business or vocation—
(A)
between a place in—
(i) a State, territory, or possession of the United States and a place in the District of Columbia or another State, territory, or possession of the United States;
(ii) a State and another place in the same State through the airspace over a place outside the State;
(iii) the District of Columbia and another place in the District of Columbia; or
(iv) a territory or possession of the United States and another place in the same territory or possession; and
(B) when any part of the transportation or operation is by aircraft.
(25)
“interstate air transportation” means the transportation of passengers or property by aircraft as a common carrier for compensation, or the transportation of mail by aircraft—
(A)
between a place in—
(i) a State, territory, or possession of the United States and a place in the District of Columbia or another State, territory, or possession of the United States;
(ii) Hawaii and another place in Hawaii through the airspace over a place outside Hawaii;
(iii) the District of Columbia and another place in the District of Columbia; or
(iv) a territory or possession of the United States and another place in the same territory or possession; and
(B) when any part of the transportation is by aircraft.
(26) “intrastate air carrier” means a citizen of the United States undertaking by any means to provide only intrastate air transportation.
(27) “intrastate air transportation” means the transportation by a common carrier of passengers or property for compensation, entirely in the same State, by turbojet-powered aircraft capable of carrying at least 30 passengers.
(28) “landing area” means a place on land or water, including an airport or intermediate landing field, used, or intended to be used, for the takeoff and landing of aircraft, even when facilities are not provided for sheltering, servicing, or repairing aircraft, or for receiving or discharging passengers or cargo.
(29) “large hub airport” means a commercial service airport (as defined in section 47102) that has at least 1.0 percent of the passenger boardings.
(30) “mail” means United States mail and foreign transit mail.
(31) “medium hub airport” means a commercial service airport (as defined in section 47102) that has at least 0.25 percent but less than 1.0 percent of the passenger boardings.
(32) “navigable airspace” means airspace above the minimum altitudes of flight prescribed by regulations under this subpart and subpart III of this part, including airspace needed to ensure safety in the takeoff and landing of aircraft.
(33) “navigate aircraft” and “navigation of aircraft” include piloting aircraft.
(34) “nonhub airport” means a commercial service airport (as defined in section 47102) that has less than 0.05 percent of the passenger boardings.
(35)
“operate aircraft” and “operation of aircraft” mean using aircraft for the purposes of air navigation, including—
(A) the navigation of aircraft; and
(B) causing or authorizing the operation of aircraft with or without the right of legal control of the aircraft.
(36)
“passenger boardings”—
(A) means, unless the context indicates otherwise, revenue passenger boardings in the United States in the prior calendar year on an aircraft in service in air commerce, as the Secretary determines under regulations the Secretary prescribes; and
(B) includes passengers who continue on an aircraft in international flight that stops at an airport in the 48 contiguous States, Alaska, or Hawaii for a nontraffic purpose.
(37) “person”, in addition to its meaning under section 1 of title 1, includes a governmental authority and a trustee, receiver, assignee, and other similar representative.
(38) “predatory” means a practice that violates the antitrust laws as defined in the first section of the Clayton Act (15 U.S.C. 12).
(39) “price” means a rate, fare, or charge.
(40) “propeller” includes a part, appurtenance, and accessory of a propeller.
(41)
“public aircraft” means any of the following:
(A) Except with respect to an aircraft described in subparagraph (E), an aircraft used only for the United States Government, except as provided in section 40125(b).
(B) An aircraft owned by the Government and operated by any person for purposes related to crew training, equipment development, or demonstration, except as provided in section 40125(b).
(C) An aircraft owned and operated by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in section 40125(b).
(D) An aircraft exclusively leased for at least 90 continuous days by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of one of these governments, except as provided in section 40125(b).
(E) An aircraft owned or operated by the armed forces or chartered to provide transportation or other commercial air service to the armed forces under the conditions specified by section 40125(c). In the preceding sentence, the term “other commercial air service” means an aircraft operation that (i) is within the United States territorial airspace; (ii) the Administrator of the Federal Aviation Administration determines is available for compensation or hire to the public, and (iii) must comply with all applicable civil aircraft rules under title 14, Code of Federal Regulations.
(F) An unmanned aircraft that is owned and operated by, or exclusively leased for at least 90 continuous days by, an Indian Tribal government, as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122), except as provided in section 40125(b).
(42) “small hub airport” means a commercial service airport (as defined in section 47102) that has at least 0.05 percent but less than 0.25 percent of the passenger boardings.
(43) “spare part” means an accessory, appurtenance, or part of an aircraft (except an aircraft engine or propeller), aircraft engine (except a propeller), propeller, or appliance, that is to be installed at a later time in an aircraft, aircraft engine, propeller, or appliance.
(44)
“State authority” means an authority of a State 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 required to consult with or consider the views of a State authority under subpart II of this part.
(45) “ticket agent” means a person (except an air carrier, a foreign air carrier, or an employee of an air carrier or foreign air carrier) that as a principal or agent sells, offers for sale, negotiates for, or holds itself out as selling, providing, or arranging for, air transportation.
(46) “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.
(47)
“air traffic control system” means the combination of elements used to safely and efficiently monitor, direct, control, and guide aircraft in the United States and United States-assigned airspace, including—
(A) allocated electromagnetic spectrum and physical, real, personal, and intellectual property assets making up facilities, equipment, and systems employed to detect, track, and guide aircraft movement;
(B) laws, regulations, orders, directives, agreements, and licenses;
(C) published procedures that explain required actions, activities, and techniques used to ensure adequate aircraft separation; and
(D) trained personnel with specific technical capabilities to satisfy the operational, engineering, management, and planning requirements for air traffic control.
(b)
Limited Definition.—
In subpart II of this part, “control” means control by any means.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1097; Pub. L. 103–305, title VI, § 601(b)(2)(B), Aug. 23, 1994, 108 Stat. 1606; Pub. L. 103–411, § 3(a), Oct. 25, 1994, 108 Stat. 4236; Pub. L. 103–429, § 6(46), Oct. 31, 1994, 108 Stat. 4384; Pub. L. 105–137, § 6, Dec. 2, 1997, 111 Stat. 2641; Pub. L. 106–181, title III, § 301, title VII, § 702(a), Apr. 5, 2000, 114 Stat. 115, 155; Pub. L. 108–176, title II, § 225(a), title VIII, § 807, Dec. 12, 2003, 117 Stat. 2528, 2588; Pub. L. 110–181, div. A, title X, § 1078(a), Jan. 28, 2008, 122 Stat. 334; Pub. L. 112–95, title II, § 205, Feb. 14, 2012, 126 Stat. 39; Pub. L. 115–254, div. B, title III, § 355(a), Oct. 5, 2018, 132 Stat. 3305.)
§ 40103.
Sovereignty and use of airspace
(a)
Sovereignty and Public Right of Transit.—
(1) The United States Government has exclusive sovereignty of airspace of the United States.
(2) A citizen of the United States has a public right of transit through the navigable airspace. To further that right, the Secretary of Transportation shall consult with the Architectural and Transportation Barriers Compliance Board established under section 502 of the Rehabilitation Act of 1973 (29 U.S.C. 792) before prescribing a regulation or issuing an order or procedure that will have a significant impact on the accessibility of commercial airports or commercial air transportation for handicapped individuals.
(b)
Use of Airspace.—
(1) The Administrator of the Federal Aviation Administration shall develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. The Administrator may modify or revoke an assignment when required in the public interest.
(2)
The Administrator shall prescribe air traffic regulations on the flight of aircraft (including regulations on safe altitudes) for—
(A) navigating, protecting, and identifying aircraft;
(B) protecting individuals and property on the ground;
(C) using the navigable airspace efficiently; and
(D) preventing collision between aircraft, between aircraft and land or water vehicles, and between aircraft and airborne objects.
(3)
To establish security provisions that will encourage and allow maximum use of the navigable airspace by civil aircraft consistent with national security, the Administrator, in consultation with the Secretary of Defense, shall—
(A) establish areas in the airspace the Administrator decides are necessary 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 available facilities in those areas.
(4) Notwithstanding the military exception in section 553(a)(1) of title 5, subchapter II of chapter 5 of title 5 applies to a regulation prescribed under this subsection.
(c)
Foreign Aircraft.—
A foreign aircraft, not part of the armed forces of a foreign country, may be navigated in the United States as provided in section 41703 of this title.
(d)
Aircraft of Armed Forces of Foreign Countries.—
Aircraft of the armed forces of a foreign country may be navigated in the United States only when authorized by the Secretary of State.
(e)
No Exclusive Rights at Certain Facilities.—
A person does not have an exclusive right to use an air navigation facility on which Government money has been expended. However, providing services at an airport by only one fixed-based operator is not an exclusive right if—
(1) it is unreasonably costly, burdensome, or impractical for more than one fixed-based operator to provide the services; and
(2) allowing more than one fixed-based operator to provide the services requires a reduction in space leased under an agreement existing on September 3, 1982, between the operator and the airport.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1101.)
§ 40104.
Promotion of civil aeronautics and safety of air commerce
(a)
Developing Civil Aeronautics and Safety of Air Commerce.—
The Administrator of the Federal Aviation Administration shall encourage the development of civil aeronautics and safety of air commerce in and outside the United States. In carrying out this subsection, the Administrator shall take action that the Administrator considers necessary to establish, within available resources, a program to distribute civil aviation information in each region served by the Administration. The program shall provide, on request, informational material and expertise on civil aviation to State and local school administrators, college and university officials, and officers of other interested organizations.
(b)
International Role of the FAA.—
(1)
In general.—
The Administrator shall promote and achieve global improvements in the safety, efficiency, and environmental effect of air travel by exercising leadership with the Administrator’s foreign counterparts, in the International Civil Aviation Organization and its subsidiary organizations, and other international organizations and fora, and with the private sector.
(2)
Bilateral and multilateral engagement; technical assistance.—
The Administrator shall—
(A)
in consultation with the Secretary of State, engage bilaterally and multilaterally, including with the International Civil Aviation Organization, on an ongoing basis to bolster international collaboration, data sharing, and harmonization of international aviation safety requirements including through—
(i) sharing of continued operational safety information;
(ii) prioritization of pilot training deficiencies, including manual flying skills and flight crew training, to discourage over reliance on automation, further bolstering the components of airmanship;
(iii) encouraging the consideration of the safety advantages of appropriate Federal regulations, which may include relevant Federal regulations pertaining to flight crew training requirements; and
(iv) prioritizing any other flight crew training areas that the Administrator believes will enhance all international aviation safety; and
(B)
seek to expand technical assistance provided by the Federal Aviation Administration in support of enhancing international aviation safety, including by—
(i) promoting and enhancing effective oversight systems, including operational safety enhancements identified through data collection and analysis;
(ii) promoting and encouraging compliance with international safety standards by counterpart civil aviation authorities;
(iii) minimizing cybersecurity threats and vulnerabilities across the aviation ecosystem;
(iv) supporting the sharing of safety information, best practices, risk assessments, and mitigations through established international aviation safety groups; and
(v) providing technical assistance on any other aspect of aviation safety that the Administrator determines is likely to enhance international aviation safety.
(c)
Airport Capacity Enhancement Projects at Congested Airports.—
In carrying out subsection (a), the Administrator shall take action to encourage the construction of airport capacity enhancement projects at congested airports as those terms are defined in section 47175.
(d)
Promotion of United States Aerospace Standards, Products, and Services Abroad.—
The Secretary shall take appropriate actions to—
(1) promote United States aerospace-related safety standards abroad;
(2) facilitate and vigorously defend approvals of United States aerospace products and services abroad;
(3) with respect to bilateral partners, utilize bilateral safety agreements and other mechanisms to improve validation of United States certificated aeronautical products, services, and appliances and enhance mutual acceptance in order to eliminate redundancies and unnecessary costs; and
(4) with respect to the aeronautical safety authorities of a foreign country, streamline validation and coordination processes.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1102; Pub. L. 103–429, § 6(47), Oct. 31, 1994, 108 Stat. 4384; Pub. L. 104–264, title IV, § 401(b)(1), Oct. 9, 1996, 110 Stat. 3255; Pub. L. 108–176, title III, § 303, title VIII, § 813, Dec. 12, 2003, 117 Stat. 2533, 2590; Pub. L. 115–254, div. B, title II, § 241, title V, § 539(a), Oct. 5, 2018, 132 Stat. 3257, 3370; Pub. L. 116–260, div. V, title I, § 119(f)(1), (2), Dec. 27, 2020, 134 Stat. 2342.)
§ 40105.
International negotiations, agreements, and obligations
(a)
Advice and Consultation.—
The Secretary of State shall advise the Administrator of the Federal Aviation Administration and the Secretaries of Transportation and Commerce, and consult with them as appropriate, about negotiations for an agreement with a government of a foreign country to establish or develop air navigation, including air routes and services. The Secretary of Transportation shall consult with the Secretary of State in carrying out this part to the extent this part is related to foreign air transportation.
(b)
Actions of Secretary and Administrator.—
(1)
In carrying out this part, the Secretary of Transportation and the Administrator—
(A) shall act consistently with obligations of the United States Government under an international agreement;
(B) shall consider applicable laws and requirements of a foreign country; and
(C) may not limit compliance by an air carrier with obligations or liabilities imposed by the government of a foreign country when the Secretary takes any action related to a certificate of public convenience and necessity issued under chapter 411 of this title.
(2) This subsection does not apply to an agreement between an air carrier or an officer or representative of an air carrier and the government of a foreign country, if the Secretary of Transportation disapproves the agreement because it is not in the public interest. Section 40106(b)(2) of this title applies to this subsection.
(c)
Consultation on International Air Transportation Policy.—
In carrying out section 40101(e) of this title, the Secretaries of State and Transportation, to the maximum extent practicable, shall consult on broad policy goals and individual negotiations with—
(1) the Secretaries of Commerce and Defense;
(2) airport operators;
(3) scheduled air carriers;
(4) charter air carriers;
(5) airline labor;
(6) consumer interest groups;
(7) travel agents and tour organizers; and
(8) other groups, institutions, and governmental authorities affected by international aviation policy.
(d)
Congressional Observers at International Aviation Negotiations.—
The President shall grant to at least one representative of each House of Congress the privilege of attending international aviation negotiations as an observer if the privilege is requested in advance in writing.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1102.)
§ 40106.
Emergency powers
(a)
Deviations From Regulations.—
Appropriate military authority may authorize aircraft of the armed forces of the United States to deviate from air traffic regulations prescribed under section 40103(b)(1) and (2) of this title when the authority decides the deviation is essential to the national defense because of a military emergency or urgent military necessity. The authority shall—
(1) give the Administrator of the Federal Aviation Administration prior notice of the deviation at the earliest practicable time; and
(2) to the extent time and circumstances allow, make every reasonable effort to consult with the Administrator and arrange for the deviation in advance on a mutually agreeable basis.
(b)
Suspension of Authority.—
(1)
When the President decides that the government of a foreign country is acting inconsistently with the Convention for the Suppression of Unlawful Seizure of Aircraft or that the government of a foreign country allows territory under its jurisdiction to be used as a base of operations or training of, or as a sanctuary for, or arms, aids, or abets, a terrorist organization that knowingly uses the unlawful seizure, or the threat of an unlawful seizure, of an aircraft as an instrument of policy, the President may suspend the authority of—
(A) an air carrier or foreign air carrier to provide foreign air transportation to and from that foreign country;
(B) a person to operate aircraft in foreign air commerce to and from that foreign country;
(C) a foreign air carrier to provide foreign air transportation between the United States and another country that maintains air service with the foreign country; and
(D) a foreign person to operate aircraft in foreign air commerce between the United States and another country that maintains air service with the foreign country.
(2) The President may act under this subsection without notice or a hearing. The suspension remains in effect for as long as the President decides is necessary to ensure the security of aircraft against unlawful seizure. Notwithstanding section 40105(b) of this title
(3) An air carrier or foreign air carrier may not provide foreign air transportation, and a person may not operate aircraft in foreign air commerce, in violation of a suspension of authority under this subsection.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1103.)
§ 40107.
Presidential transfers
(a)
General Authority.—
The President may transfer to the Administrator of the Federal Aviation Administration a duty, power, activity, or facility of a department, agency, or 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 selecting, developing, testing, evaluating, establishing, operating, or maintaining a system, procedure, facility, or device for safe and efficient air navigation and air traffic control. In making a transfer, the President may transfer records and property and make officers and employees from the department, agency, instrumentality, or unit available to the Administrator.
(b)
During War.—
If war occurs, the President by executive order may transfer to the Secretary of Defense a duty, power, activity, or facility of the Administrator. In making the transfer, the President may transfer records, property, officers, and employees of the Administration to the Department of Defense.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1104.)
§ 40108.
Training schools
(a)
Authority To Operate.—
The Administrator of the Federal Aviation Administration may operate schools to train officers and employees of the Administration to carry out duties, powers, and activities of the Administrator.
(b)
Attendance.—
The Administrator may authorize officers and employees of other departments, agencies, or instrumentalities of the United States Government, officers and employees of governments of foreign countries, and individuals from the aeronautics 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 additional cost. The amount received may be credited to the appropriation current when the expenditures are or were paid, the appropriation current when the amount is received, or both.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1104.)
§ 40109.
Authority to exempt
(a)
Air Carriers and Foreign Air Carriers Not Engaged Directly 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 Secretary decides are in the public interest.
(b)
Safety Regulation.—
The Administrator of the Federal Aviation Administration may grant an exemption from a regulation prescribed in carrying out sections 1
1 So in original. Probably should be “section”.
40103(b)(1) and (2) of this title when the Administrator decides the exemption is in the public interest.
(c)
Other Economic Regulation.—
Except as provided in this section, the Secretary may exempt to the extent the Secretary considers necessary a person or class of persons from a provision of chapter 411, chapter 413 (except sections 41307 and 41310(b)–(f)), chapter 415 (except sections 41502, 41505, and 41507–41509), chapter 417 (except sections 41703, 41704, 41710, 41713, and 41714), chapter 419, subchapter II of chapter 421, and sections 44909(a), 44909(b), and 46301(b) of this title, or a regulation or term prescribed under any of those provisions, when the Secretary decides that the exemption is consistent with the public interest.
(d)
Labor Requirements.—
The Secretary may not exempt an air carrier from section 42112 of this title. However, the Secretary may exempt from section 42112(b)(1) and (2) an air carrier not providing scheduled air transportation, and the operations conducted during daylight hours by an air carrier providing scheduled air transportation, when the Secretary decides that—
(1) because of the limited extent of, or unusual circumstances affecting, 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 provisions, that sets maximum flying hours for pilots or copilots.
(f)
Smaller Aircraft.—
(1)
An air carrier is exempt from section 41101(a)(1) of this title, and the Secretary may exempt an air carrier from another provision of subpart II of this part, if the air carrier—
(A)
(i) provides passenger transportation only with aircraft having a maximum capacity of 55 passengers; or
(ii) provides the transportation of cargo only with aircraft having a maximum payload of less than 18,000 pounds; and
(B) complies with liability insurance requirements and other regulations the Secretary prescribes.
(2) The Secretary may increase the passenger or payload capacities when the public interest requires.
(3)
(A) An exemption under this subsection applies to an air carrier providing air transportation between 2 places in Alaska, or between Alaska and Canada, only if the carrier is authorized by Alaska to provide the transportation.
(B) The Secretary may limit the number or location of places that may be served by an air carrier providing transportation only in Alaska under an exemption from section 41101(a)(1) of this title, or the frequency with which the transportation may be provided, only when the Secretary decides that providing the transportation substantially impairs the ability of an air carrier holding a certificate issued by the Secretary to provide its authorized transportation, including the minimum transportation requirement for Alaska specified under section 41732(b)(1)(B) of this title.
(g)
Emergency Air Transportation by Foreign Air Carriers.—
(1)
To the extent that the Secretary decides an exemption is in the public interest, the Secretary may exempt by order a foreign air carrier from the requirements and limitations of this part for not more than 30 days to allow the foreign air carrier to carry passengers or cargo in interstate air transportation in certain markets if the Secretary finds that—
(A) because of an emergency created by unusual circumstances not arising in the normal course of business, air carriers holding certificates under section 41102 of this title cannot accommodate traffic in those markets;
(B)
all possible efforts have been made to accommodate the traffic by using the resources of the air carriers, including the use of—
(i) foreign aircraft, or sections of foreign aircraft, under lease or charter to the air carriers; and
(ii) the air carriers’ reservations systems to the extent practicable;
(C) the exemption is necessary to avoid unreasonable hardship for the traffic in the markets that cannot be accommodated by the air carriers; and
(D) granting the exemption will not result in an unreasonable advantage to any party in a labor dispute where the inability to accommodate traffic in a market is a result of the dispute.
(2)
When the Secretary grants an exemption to a foreign air carrier under this subsection, the Secretary shall—
(A) ensure that air transportation that the foreign air carrier provides under the exemption is made available on reasonable terms;
(B) monitor continuously the passenger load factor of air carriers in the market that hold certificates under section 41102 of this title; and
(C) review the exemption at least every 30 days (or, in the case of an exemption that is necessary to provide and sustain air transportation in American Samoa between the islands of Tutuila and Manu’a, at least every 180 days) to ensure that the unusual circumstances that established the need for the exemption still exist.
(3)
Renewal of exemptions.—
(A)
In general.—
Except as provided in subparagraph (B), the Secretary may renew an exemption (including renewals) under this subsection for not more than 30 days.
(B)
Exception.—
The Secretary may renew an exemption (including renewals) under this subsection that is necessary to provide and sustain air transportation in American Samoa between the islands of Tutuila and Manu’a for not more than 180 days.
(4)
Continuation of exemptions.—
An exemption granted by the Secretary under this subsection 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.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1104; Pub. L. 104–287, § 5(65), Oct. 11, 1996, 110 Stat. 3395; Pub. L. 115–254, div. B, title IV, § 402, div. K, title I, § 1991(c)(1), Oct. 5, 2018, 132 Stat. 3328, 3627.)
§ 40110.
General procurement authority
(a)
General.—
In carrying out this part, the Administrator of the Federal Aviation Administration—
(1) to the extent that amounts are available for obligation, may acquire services or, by condemnation or otherwise, an interest in property, including an interest in airspace immediately adjacent to and needed for airports and other air navigation facilities owned by the United States Government and operated by the Administrator;
(2) may construct and improve laboratories and other test facilities; and
(3)
may dispose of any interest in property for adequate compensation, and the amount so received shall—
(A) be credited to the appropriation current when the amount is received;
(B) be merged with and available for the purposes of such appropriation; and
(C) remain available until expended.
(b)
Purchase of Housing Units.—
(1)
Authority.—
In carrying out this part, the Administrator may purchase a housing unit (including a condominium or a housing unit in a building owned by a cooperative) that is located outside the contiguous United States if the cost of the unit is $300,000 or less.
(2)
Adjustments for inflation.—
For fiscal years beginning after September 30, 1997, the Administrator may adjust the dollar amount specified in paragraph (1) to take into account increases in local housing costs.
(3)
Continuing obligations.—
Notwithstanding section 1341 of title 31, the Administrator may purchase a housing unit under paragraph (1) even if there is an obligation thereafter to pay necessary and reasonable fees duly assessed upon such unit, including fees related to operation, maintenance, taxes, and insurance.
(4)
Certification to congress.—
The Administrator may purchase a housing unit under paragraph (1) only if, at least 30 days before completing the purchase, the Administrator transmits to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report containing—
(A) a description of the housing unit and its price;
(B) a certification that the price does not exceed the median price of housing units in the area; and
(C) a certification that purchasing the housing unit is the most cost-beneficial means of providing necessary accommodations in carrying out this part.
(5)
Payment of fees.—
The Administrator may pay, when due, fees resulting from the purchase of a housing unit under this subsection from any amounts made available to the Administrator.
(c)
Duties and Powers.—
When carrying out subsection (a) of this section, the Administrator of the Federal Aviation Administration may—
(1) notwithstanding section 1341(a)(1) of title 31, lease an interest in property for not more than 20 years;
(2) consider the reasonable probable future use of the underlying land in making an award for a condemnation of an interest in airspace;
(3) construct, or acquire an interest in, a public building (as defined in section 3301(a) of title 40) only under a delegation of authority from the Administrator of General Services; and
(4) dispose of property under subsection (a)(2) of this section, except for airport and airway property and technical equipment used for the special purposes of the Administration, only under sections 121, 123, and 126 and chapter 5 of title 40.
(d)
Acquisition Management System.—
(1)
In general.—
In consultation with such non-governmental experts in acquisition management systems as the Administrator may employ, and notwithstanding provisions of Federal acquisition law, the Administrator shall develop and implement an acquisition management system for the Administration that addresses the unique needs of the agency and, at a minimum, provides for—
(A) more timely and cost-effective acquisitions of equipment, services, property, and materials; and
(B) the resolution of bid protests and contract disputes related thereto, using consensual alternative dispute resolution techniques to the maximum extent practicable.
(2)
Applicability of federal acquisition law.—
The following provisions of Federal acquisition law shall not apply to the new acquisition management system developed and implemented pursuant to paragraph (1):
(A) Division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.
(B) Division B (except sections 1704 and 2303) of subtitle I of title 41.
(C) The Federal Acquisition Streamlining Act of 1994 (Public Law 103–355). However, section 4705 of title 41 shall apply to the new acquisition management system developed and implemented pursuant to paragraph (1). For the purpose of applying section 4705 of title 41 to the system, the term “executive agency” is deemed to refer to the Federal Aviation Administration.
(D) The Small Business Act (15 U.S.C. 631 et seq.), except that all reasonable opportunities to be awarded contracts shall be provided to small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals.
(E) The Competition in Contracting Act.
(F) Subchapter V of chapter 35 of title 31, relating to the procurement protest system.
(G) The Federal Acquisition Regulation and any laws not listed in subparagraphs (A) through (F) providing authority to promulgate regulations in the Federal Acquisition Regulation.
(3)
Certain provisions of division b (except sections 1704 and 2303) of subtitle i of title 41.—
Notwithstanding paragraph (2)(B), chapter 21 of title 41 shall apply to the new acquisition management system developed and implemented under paragraph (1) with the following modifications:
(A) Sections 2101 and 2106 of title 41 shall not apply.
(B) Within 90 days after the date of the enactment of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, the Administrator shall adopt definitions for the acquisition management system that are consistent with the purpose and intent of the Office of Federal Procurement Policy Act.1
1 See References in Text note below.
(C) After the adoption of those definitions, the criminal, civil, and administrative remedies provided under the Office of Federal Procurement Policy Act 1 apply to the acquisition management system.
(D) In the administration of the acquisition management system, the Administrator may take adverse personnel action under section 27(e)(3)(A)(iv) of the Office of Federal Procurement Policy Act 1 in accordance with the procedures contained in the Administration’s personnel management system.
(4)
Adjudication of certain bid protests and contract disputes.—
A bid protest or contract dispute that is not addressed or resolved through alternative dispute resolution shall be adjudicated by the Administrator through Dispute Resolution Officers or Special Masters of the Federal Aviation Administration Office of Dispute Resolution for Acquisition, acting pursuant to sections 46102, 46104, 46105, 46106 and 46107 and shall be subject to judicial review under section 46110 and to section 504 of title 5.
(5)
Annual report on the purchase of foreign manufactured articles.—
(A)
Report.—
(i) Not later than 90 days after the end of the fiscal year, the Secretary of Transportation shall submit a report to Congress on the dollar amount of acquisitions subject to the Buy American Act made by the agency from entities that manufacture the articles, materials, or supplies outside of the United States in such fiscal year.
(ii) The report required by clause (i) shall only include acquisitions with total value exceeding the micro-purchase level.
(B)
Contents.—
The report required by subparagraph (A) shall separately indicate—
(i) the dollar value of any articles, materials, or supplies purchased that were manufactured outside of the United States; and
(ii) a summary of the total procurement funds spent on goods manufactured in the United States versus funds spent on goods manufactured outside of the United States.
(C)
Availability of report.—
The Secretary shall make the report under subparagraph (A) publicly available on the agency’s website not later than 30 days after submission to Congress.
(e)
Prohibition on Release of Offeror Proposals.—
(1)
General rule.—
Except as provided in paragraph (2), a proposal in the possession or control of the Administrator may not be made available to any person under section 552 of title 5.
(2)
Exception.—
Paragraph (1) shall not apply to any portion of a proposal of an offeror the disclosure of which is authorized by the Administrator pursuant to procedures published in the Federal Register. The Administrator shall provide an opportunity for public comment on the procedures for a period of not less than 30 days beginning on the date of such publication in order to receive and consider the views of all interested parties on the procedures. The procedures shall not take effect before the 60th day following the date of such publication.
(3)
Proposal defined.—
In this subsection, the term “proposal” means information contained in or originating from any proposal, including a technical, management, or cost proposal, submitted by an offeror in response to the requirements of a solicitation for a competitive proposal.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1106; Pub. L. 103–429, § 6(48), (80), Oct. 31, 1994, 108 Stat. 4384, 4388; Pub. L. 104–264, title XII, § 1201, Oct. 9, 1996, 110 Stat. 3279; Pub. L. 106–181, title III, § 307(b), title VII, § 703, Apr. 5, 2000, 114 Stat. 125, 156; Pub. L. 107–217, § 3(n)(5), Aug. 21, 2002, 116 Stat. 1302; Pub. L. 108–176, title II, §§ 222, 224(a), (b), Dec. 12, 2003, 117 Stat. 2527; Pub. L. 108–178, § 4(k), Dec. 15, 2003, 117 Stat. 2642; Pub. L. 111–350, § 5(o)(7), Jan. 4, 2011, 124 Stat. 3853; Pub. L. 112–95, title II, §§ 206, 210, Feb. 14, 2012, 126 Stat. 39, 44; Pub. L. 115–254, div. B, title V, § 544, Oct. 5, 2018, 132 Stat. 3374.)
§ 40111.
Multiyear procurement contracts for services and related items
(a)
General Authority.—
Notwithstanding section 1341(a)(1)(B) of title 31, the Administrator of the Federal Aviation Administration may make a contract of not more than 5 years for the following types of services and items of supply related to those services for which amounts otherwise would be available for obligation only in the fiscal year for which appropriated:
(1) operation, maintenance, and support of facilities and installations.
(2) operation, maintenance, and modification of aircraft, vehicles, and other highly complex equipment.
(3) specialized training requiring high quality instructor skills, including training of pilots and aircrew members and foreign language training.
(4) base services, including ground maintenance, aircraft refueling, bus transportation, and refuse collection and disposal.
(b)
Required Findings.—
The Administrator may make a contract under this section only if the Administrator finds that—
(1) there will be a continuing requirement for the service consistent with current plans for the proposed contract period;
(2) providing the service will require a substantial initial investment in plant or equipment, or will incur a substantial contingent liability for assembling, training, or transporting a specialized workforce; and
(3) the contract will promote the best interests of the United States by encouraging effective competition and promoting economies in operation.
(c)
Considerations.—
When making a contract under this 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 subsequent fiscal year. The cost of ending the contract may be paid from—
(1) an appropriation originally available for carrying out the contract;
(2) an appropriation currently available for procuring the type of service concerned and not otherwise obligated; or
(3) amounts appropriated for payments to end the contract.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1107.)
§ 40112.
Multiyear procurement contracts for property
(a)
General Authority.—
Notwithstanding section 1341(a)(1)(B) of title 31 and to the extent that amounts otherwise are available for obligation, the Administrator of the Federal Aviation Administration may make a contract of more than one but not more than 5 fiscal years to purchase property, except a contract to construct, alter, or make a major repair or improvement to real property.
(b)
Required Findings.—
The Administrator may make a contract under this section if the Administrator finds that—
(1) the contract will promote the safety or efficiency of the national airspace system and will result in reduced total contract costs;
(2) the minimum need for the property to be purchased is expected to remain substantially unchanged during the proposed contract period in terms of production rate, procurement rate, and total quantities;
(3) there is a reasonable expectation that throughout the proposed contract period the Administrator will request 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 acquiring property under this section to promote the use of contracts under this section in a way that will allow the most efficient use of those contracts. The regulations may provide for a cancellation provision in the contract to the extent the provision is necessary and in the best interest of the United States. The provision may include consideration of recurring and nonrecurring costs of the contractor associated with producing the item to be delivered under the contract. The regulations shall provide that, to the 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, vendors, or suppliers; and
(B) on accrual of a payment or other benefit accruing on a contract under this section to a subcontractor, vendor, or supplier participating in the contract, the payment or benefit shall be delivered in the most expeditious way practicable; and
(2)
this section and regulations prescribed under this section may not be carried out in a way that precludes or curtails the existing ability of the Administrator to provide for—
(A) competition in producing items to be delivered under a contract under this section; or
(B) ending a prime contract when performance is deficient with respect to cost, quality, or schedule.
(d)
Contract Provisions.—
(1)
A contract under this section may—
(A) be used for the advance procurement of components, parts, and material necessary to manufacture equipment to be used in the national airspace system;
(B) provide that performance under the contract after the first year is subject to amounts being appropriated; and
(C) contain a negotiated priced option for varying the number of end items to be procured over the period of the contract.
(2) If feasible and practicable, an advance procurement contract may be made to achieve economic-lot purchases and more efficient production rates.
(e)
Cancellation Payment and Notice of Cancellation Ceiling.—
(1) If a contract under this section provides that performance is subject to an appropriation being made, it also may provide for a cancellation payment to be made to the contractor if the appropriation is not made.
(2) Before awarding a contract under this section containing a cancellation ceiling of more than $100,000,000, the Administrator shall give written notice of the proposed contract and cancellation ceiling to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives. The contract may not be awarded until the end of the 30-day period beginning on the date of the notice.
(f)
Ending Contracts.—
A contract made under this section shall be ended if amounts are not made available to continue the contract into a subsequent fiscal year. The cost of ending the contract may be paid from—
(1) an appropriation originally available for carrying out the contract;
(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.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1108; Pub. L. 104–106, div. E, title LVI, § 5606, Feb. 10, 1996, 110 Stat. 700; Pub. L. 104–287, § 5(9), Oct. 11, 1996, 110 Stat. 3389.)
§ 40113.
Administrative
(a)
General Authority.—
The Secretary of Transportation (or the Administrator of the Transportation Security Administration with respect to security duties and powers designated to be carried out by that Administrator or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by that Administrator) may take action the Secretary, Administrator of the Transportation Security Administration, or Administrator of the Federal Aviation Administration, as appropriate, considers necessary to carry out this part, including conducting investigations, prescribing regulations, standards, and procedures, and issuing orders.
(b)
Hazardous Material.—
In carrying out this part, the Secretary has the same authority to regulate the transportation of hazardous material by air that the Secretary has under section 5103 of this title. However, this subsection does not prohibit or regulate the transportation of a firearm (as defined in section 232 of title 18) or ammunition for a firearm, when transported by an individual for personal use.
(c)
Governmental Assistance.—
The Secretary (or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator) may use the assistance of the Administrator of the National Aeronautics and Space Administration and any research or technical department, agency, or instrumentality of the United States Government on matters related to aircraft fuel and oil, and to the design, material, workmanship, construction, performance, maintenance, and operation of aircraft, aircraft engines, propellers, 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 authorize duplicating laboratory research activities of a department, agency, or instrumentality.
(d)
Indemnification.—
The Administrator of the Federal Aviation Administration may indemnify an officer or employee of the Federal Aviation 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.
(e)
Assistance to Foreign Aviation Authorities.—
(1)
Safety-related training and operational services.—
The Administrator may provide safety-related training and operational services to foreign aviation authorities (whether public or private) with or without reimbursement, if the Administrator determines that providing such services promotes aviation safety or efficiency. The Administrator may also provide technical assistance related to all aviation safety-related training and operational services in connection with bilateral and multilateral agreements, including further bolstering the components of airmanship. The Administrator is authorized to participate in, and submit offers in response to, competitions to provide these services, and to contract with foreign aviation authorities to provide these services consistent with section 106(l)(6). To the extent practicable, air travel reimbursed under this subsection shall be conducted on United States air carriers.
(2)
Reimbursement sought.—
The Administrator shall actively seek reimbursement for services provided under this subsection from foreign aviation authorities capable of providing such reimbursement. The Administrator is authorized, notwithstanding any other provision of law or policy, to accept payments for services provided under this subsection in arrears.
(3)
Crediting appropriations.—
Funds received by the Administrator pursuant to this section shall—
(A) be credited to the appropriation current when the amount is received;
(B) be merged with and available for the purposes of such appropriation; and
(C) remain available until expended.
(4)
Reporting.—
Not later than December 31, 1995, and annually thereafter, the Administrator shall transmit to Congress a list of the foreign aviation authorities to which the Administrator provided services under this subsection in the preceding fiscal year. Such list shall specify the dollar value of such services and any reimbursement received for such services.
(5)
Authorization of appropriations.—
There is authorized to be appropriated to the Administrator, $5,000,000 for each of fiscal years 2021 through 2023, to carry out this subsection. Amounts appropriated under the preceding sentence for any fiscal year shall remain available until expended.
(f)
Application of Certain Regulations to Alaska.—
In amending title 14, Code of Federal Regulations, in a manner affecting intrastate aviation in Alaska, the Administrator of the Federal Aviation Administration shall consider the extent to which Alaska is not served by transportation modes other than aviation, and shall establish such regulatory distinctions as the Administrator considers appropriate.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1110; Pub. L. 103–305, title II, § 202, Aug. 23, 1994, 108 Stat. 1582; Pub. L. 106–181, title I, § 156(a), Apr. 5, 2000, 114 Stat. 89; Pub. L. 107–71, title I, § 140(c), Nov. 19, 2001, 115 Stat. 641; Pub. L. 112–95, title II, § 207, Feb. 14, 2012, 126 Stat. 39; Pub. L. 115–254, div. K, title I, § 1991(c)(2), Oct. 5, 2018, 132 Stat. 3627; Pub. L. 116–260, div. V, title I, § 119(g), Dec. 27, 2020, 134 Stat. 2342.)
§ 40114.
Reports and records
(a)
Written Reports.—
(1) Except as provided in this part, the Secretary of Transportation (or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator) shall make a written report of each proceeding and investigation under this part in which a formal hearing was held and shall provide a copy to each party to the proceeding or investigation. The report shall include the decision, conclusions, order, and requirements of the Secretary or Administrator as appropriate.
(2) The Secretary (or the Administrator with respect to aviation safety duties and powers designated to be carried out by the Administrator) shall have all reports, orders, decisions, and regulations the Secretary or Administrator, as appropriate, issues or prescribes published in the form and way best adapted for public use. A publication of the Secretary or Administrator is competent evidence of its contents.
(b)
Public Records.—
Except as provided in subpart II of this part, copies of tariffs and arrangements filed with the Secretary under subpart II, and the statistics, tables, and figures contained in reports made to the Secretary under subpart II, are public records. The Secretary is the custodian of those records. A public record, or a copy or extract of it, certified by the Secretary under the seal of the Department of Transportation is competent evidence in an investigation by the Secretary and in a judicial proceeding.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1110.)
§ 40115.
Withholding information
(a)
Objections to Disclosure.—
(1)
A person may object to the public disclosure of information—
(A) in a record filed under this part; or
(B) obtained under this part by the Secretary of Transportation or State or the United States Postal Service.
(2)
An objection must be in writing and must state the reasons for the objection. The Secretary of Transportation or State or the Postal Service shall order the information withheld from public disclosure when the appropriate Secretary or the Postal Service decides that disclosure of the information would—
(A) prejudice the United States Government in preparing and presenting its position in international negotiations; or
(B) have an adverse effect on the competitive position of an air carrier in foreign air transportation.
(b)
Withholding Information From Congress.—
This section does not authorize information to be withheld from a committee of Congress authorized to have the information.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1111.)
§ 40116.
State taxation
(a)
Definition.—
In this section, “State” includes the District of Columbia, a territory or possession of the United States, and a political authority of at least 2 States.
(b)
Prohibitions.—
Except as provided in subsection (c) of this section and section 40117 of this title, a State, a political subdivision of a State, and any person that has purchased or leased an airport under section 47134 of this title may not levy or collect a tax, fee, head charge, or other charge on—
(1) an individual traveling in air commerce;
(2) the transportation of an individual traveling in air commerce;
(3) the sale of air transportation; or
(4) the gross receipts from that air commerce or 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 Interstate Commerce.—
(1)
In this subsection—
(A) “air carrier transportation property” means property (as defined by the Secretary of Transportation) that an air carrier providing air transportation owns or uses.
(B) “assessment” means valuation for a property tax levied by a taxing district.
(C) “assessment jurisdiction” means a geographical area in a State used in determining the assessed value of property for ad valorem taxation.
(D) “commercial and industrial property” means property (except transportation property and land used primarily for agriculture or timber growing) devoted to a commercial or industrial use and subject to a property tax levy.
(2)
(A)
A State, political subdivision of a State, or authority acting for a State or political subdivision may not do any of the following acts because those acts unreasonably burden and discriminate against interstate commerce:
(i) assess air carrier transportation property at a value that has a higher ratio to the true market value of the property than the ratio that the assessed value of other commercial and industrial property of the same type in the same assessment jurisdiction has to the true market value of the other commercial and industrial property.
(ii) levy or collect a tax on an assessment that may not be made under clause (i) of this subparagraph.
(iii) levy or collect an ad valorem property tax on air carrier transportation property at a tax rate greater than the tax rate applicable to commercial and industrial property in the same assessment jurisdiction.
(iv) levy or collect a tax, fee, or charge, first taking effect after August 23, 1994, exclusively upon any business located at a commercial service airport or operating as a permittee of such an airport other than a tax, fee, or charge wholly utilized for airport or aeronautical purposes.
(v) except as otherwise provided under section 47133, levy or collect a tax, fee, or charge, first taking effect after the date of enactment of this clause, upon any business located at a commercial service airport or operating as a permittee of such an airport that is not generally imposed on sales or services by that State, political subdivision, or authority unless wholly utilized for airport or aeronautical purposes.
(B) Subparagraph (A) of this paragraph does not apply to an in lieu tax completely used for airport and aeronautical purposes.
(e)
Other Allowable Taxes and Charges.—
Except as provided in subsection (d) of this section, a State or political subdivision of a State may levy or collect—
(1) taxes (except those taxes enumerated in subsection (b) of this section), including property taxes, net income taxes, franchise taxes, and sales or use taxes on the sale of goods or services; and
(2) reasonable rental charges, landing fees, and other service charges from aircraft operators for using airport facilities of an airport owned or operated by that State or subdivision.
(f)
Pay of Air Carrier Employees.—
(1)
In this subsection—
(A) “pay” means money received by an employee for services.
(B) “State” means a State of the United States, the District of Columbia, and a territory or possession of the United States.
(C) an employee is deemed to have earned 50 percent of the employee’s pay in a State or political subdivision of a State in which the scheduled flight time of the employee in the State or subdivision is more than 50 percent of the total scheduled flight time of the employee when employed during the calendar year.
(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 residence of the employee.
(B) the State or political subdivision of the State in which the employee earns more than 50 percent of the pay received by the employee from the carrier.
(3)
Compensation paid by an air carrier to an employee described in subsection (a) in connection with such employee’s authorized leave or other authorized absence from regular duties on the carrier’s aircraft in order to perform services on behalf of the employee’s airline union shall be subject to the income tax laws of only the following:
(A) The State or political subdivision of the State that is the residence of the employee.
(B) The State or political subdivision of the State in which the employee’s scheduled flight time would have been more than 50 percent of the employee’s total scheduled flight time for the calendar year had the employee been engaged full time in the performance of regularly assigned duties on the carrier’s aircraft.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1111; Pub. L. 103–305, title I, § 112(e), title II, § 208, Aug. 23, 1994, 108 Stat. 1576, 1588; Pub. L. 104–264, title I, § 149(b), Oct. 9, 1996, 110 Stat. 3226; Pub. L. 104–287, § 5(66), Oct. 11, 1996, 110 Stat. 3395; Pub. L. 115–254, div. B, title I, § 159(a), Oct. 5, 2018, 132 Stat. 3220.)
§ 40117.
Passenger facility charges
(a)
Definitions.—
In this section, the following definitions apply:
(1)
Airport, commercial service airport, and public agency.—
The terms “airport”, “commercial service airport”, and “public agency” have the meaning those terms have under section 47102.
(2)
Eligible agency.—
The term “eligible agency” means a public agency that controls a commercial service airport.
(3)
Eligible airport-related project.—
The term “eligible airport-related project” means any of the following projects:
(A) A project for airport development or airport planning under subchapter I of chapter 471.
(B) A project for terminal development described in section 47119(a).
(C) A project for costs of terminal development referred to in subparagraph (B) incurred after August 1, 1986, at an airport that did not have more than .25 percent of the total annual passenger boardings in the United States in the most recent calendar year for which data is available and at which total passenger boardings declined by at least 16 percent between calendar year 1989 and calendar year 1997.
(D) A project for airport noise capability planning under section 47505.
(E) A project to carry out noise compatibility measures eligible for assistance under section 47504, whether or not a program for those measures has been approved under section 47504.
(F) A project for constructing gates and related areas at which passengers board or exit aircraft. In the case of a project required to enable additional air service by an air carrier with less than 50 percent of the annual passenger boardings at an airport, the project for constructing gates and related areas may include structural foundations and floor systems, exterior building walls and load-bearing interior columns or walls, windows, door and roof systems, building utilities (including heating, air conditioning, ventilation, plumbing, and electrical service), and aircraft fueling facilities adjacent to the gate.
(G) A project for converting vehicles and ground support equipment used at a commercial service airport to low-emission technology (as defined in section 47102) or to use cleaner burning conventional fuels, retrofitting of any such vehicles or equipment that are powered by a diesel or gasoline engine with emission control technologies certified or verified by the Environmental Protection Agency to reduce emissions, or acquiring for use at a commercial service airport vehicles and ground support equipment that include low-emission technology or use cleaner burning fuels if the airport is located in an air quality nonattainment area (as defined in section 171(2) of the Clean Air Act (42 U.S.C. 7501(2))) or a maintenance area referred to in section 175A of such Act (42 U.S.C. 7505a) and if such project will result in an airport receiving appropriate emission credits as described in section 47139.
(4)
Ground support equipment.—
The term “ground support equipment” means service and maintenance equipment used at an airport to support aeronautical operations and related activities.
(5)
Passenger facility charge.—
The term “passenger facility charge” means a charge imposed under this section.
(6)
Passenger facility revenue.—
The term “passenger facility revenue” means revenue derived from a passenger facility charge.
(b)
General Authority.—
(1) The Secretary of Transportation may authorize under this section an eligible agency to impose a passenger facility charge of $1, $2, or $3 on each paying passenger of an air carrier or foreign air carrier boarding an aircraft at an airport the agency controls to finance an eligible airport-related project, including making payments for debt service on indebtedness incurred to carry out the project, to be carried out in connection with the airport or any other airport the agency controls.
(2) A State, political subdivision of a State, or authority of a State or political subdivision that is not the eligible agency may not regulate or prohibit the imposition or collection of a passenger facility charge or the use of the passenger facility revenue.
(3) A passenger facility charge may be imposed on a passenger of an air carrier or foreign air carrier originating or connecting at the commercial service airport that the agency controls.
(4) In lieu of authorizing a charge under paragraph (1), the Secretary may authorize under this section an eligible agency to impose a passenger facility charge of $4.00 or $4.50 on each paying passenger of an air carrier or foreign air carrier boarding an aircraft at an airport the agency controls to finance an eligible airport-related project, including making payments for debt service on indebtedness incurred to carry out the project.
(5)
Maximum cost for certain low-emission technology projects.—
The maximum cost that may be financed by imposition of a passenger facility charge under this section for a project described in subsection (a)(3)(G) with respect to a vehicle or ground support equipment may not exceed the incremental amount of the project cost that is greater than the cost of acquiring a vehicle or equipment that is not low-emission and would be used for the same purpose, or the cost of low-emission retrofitting, as determined by the Secretary.
(6)
Debt service for certain projects.—
In addition to the uses specified in paragraphs (1) and (4), the Secretary may authorize a passenger facility charge imposed under paragraph (1) or (4) to be used for making payments for debt service on indebtedness incurred to carry out at the airport a project that is not an eligible airport-related project if the Secretary determines that such use is necessary due to the financial need of the airport.
(7)
Noise mitigation for certain schools.—
(A)
In general.—
In addition to the uses specified in paragraphs (1), (4), and (6), the Secretary may authorize a passenger facility charge imposed under paragraph (1) or (4) at a large hub airport that is the subject of an amended judgment and final order in condemnation filed on January 7, 1980, by the Superior Court of the State of California for the county of Los Angeles, to be used for a project to carry out noise mitigation for a building, or for the replacement of a relocatable building with a permanent building, in the noise impacted area surrounding the airport at which such building is used primarily for educational purposes, notwithstanding the air easement granted or any terms to the contrary in such judgment and final order, if—
(i) the Secretary determines that the building is adversely affected by airport noise;
(ii) the building is owned or chartered by the school district that was the plaintiff in case number 986,442 or 986,446, which was resolved by such judgment and final order;
(iii) the project is for a school identified in 1 of the settlement agreements effective February 16, 2005, between the airport and each of the school districts;
(iv) in the case of a project to replace a relocatable building with a permanent building, the eligible project costs are limited to the actual structural construction costs necessary to mitigate aircraft noise in instructional classrooms to an interior noise level meeting current standards of the Federal Aviation Administration; and
(v) the project otherwise meets the requirements of this section for authorization of a passenger facility charge.
(B)
Eligible project costs.—
In subparagraph (A)(iv), the term “eligible project costs” means the difference between the cost of standard school construction and the cost of construction necessary to mitigate classroom noise to the standards of the Federal Aviation Administration.
(c)
Applications.—
(1) An eligible agency must submit to the Secretary an application for authority to impose a passenger facility charge. The application shall contain information and be in the form that the Secretary may require by regulation.
(2)
Before submitting an application, the eligible agency must provide reasonable notice to, and an opportunity for consultation with, air carriers and foreign air carriers operating at the airport. The Secretary shall prescribe regulations that define reasonable notice and contain at least the following requirements:
(A) The agency must provide written notice of individual projects being considered for financing by a passenger facility charge and the date and location of a meeting to present the projects to air carriers and foreign air carriers operating at the airport.
(B) Not later than 30 days after written notice is provided under subparagraph (A) of this paragraph, each air carrier and foreign air carrier operating at the airport must provide to the agency written notice of receipt of the notice. Failure of a carrier to provide the notice may be deemed certification of agreement with the project by the carrier under subparagraph (D) of this paragraph.
(C) Not later than 45 days after written notice is provided under subparagraph (A) of this paragraph, the agency must conduct a meeting to provide air carriers and foreign air carriers with descriptions of projects and justifications and a detailed financial plan for projects.
(D) Not later than 30 days after the meeting, each air carrier and foreign air carrier must provide to the agency certification of agreement or disagreement with projects (or total plan for the projects). Failure to provide the certification is deemed certification of agreement with the project by the carrier. A certification of disagreement is void if it does not contain the reasons for the disagreement.
(E) The agency must include in its application or notice submitted under subparagraph (A) copies of all certifications of agreement or disagreement received under subparagraph (D).
(F) For the purpose of this section, an eligible agency providing notice and an opportunity for consultation to an air carrier or foreign air carrier is deemed to have satisfied the requirements of this paragraph if the eligible agency limits such notices and consultations to air carriers and foreign air carriers that have a significant business interest at the airport. In the subparagraph, the term “significant business interest” means an air carrier or foreign air carrier that had no less than 1.0 percent of passenger boardings at the airport in the prior calendar year, had at least 25,000 passenger boardings at the airport in the prior calendar year, or provides scheduled service at the airport.
(3)
Before submitting an application, the eligible agency must provide reasonable notice and an opportunity for public comment. The Secretary shall prescribe regulations that define reasonable notice and provide for at least the following under this paragraph:
(A)
A requirement that the eligible agency provide public notice of intent to collect a passenger facility charge so as to inform those interested persons and agencies that may be affected. The public notice may include—
(i) publication in local newspapers of general circulation;
(ii) publication in other local media; and
(iii) posting the notice on the agency’s Internet website.
(B) A requirement for submission of public comments no sooner than 30 days, and no later than 45 days, after the date of the publication of the notice.
(C) A requirement that the agency include in its application or notice submitted under subparagraph (A) copies of all comments received under subparagraph (B).
(4) After receiving an application, the Secretary may provide notice and an opportunity to air carriers, foreign air carriers, and other interested persons to comment on the application. The Secretary shall make a final decision on the application not later than 120 days after receiving it.
(d)
Limitations on Approving Applications.—
The Secretary may approve an application that an eligible agency has submitted under subsection (c) of this section to finance a specific project only if the Secretary finds, based on the application, that—
(1) the amount and duration of the proposed passenger facility charge will result in revenue (including interest and other returns on the revenue) that is not more than the amount necessary to finance the specific project;
(2)
each project is an eligible airport-related project that will—
(A) preserve or enhance capacity, safety, or security of the national air transportation system;
(B) reduce noise resulting from an airport that is part of the system; or
(C) provide an opportunity for enhanced competition between or among air carriers and foreign air carriers;
(3) the application includes adequate justification for each of the specific projects; and
(4) in the case of an application to impose a charge of more than $3.00 for an eligible surface transportation or terminal project, the agency has made adequate provision for financing the airside needs of the airport, including runways, taxiways, aprons, and aircraft gates.
(e)
Limitations on Imposing Charges.—
(1)
An eligible agency may impose a passenger facility charge only—
(A) if the Secretary approves an application that the agency has submitted under subsection (c) of this section; and
(B) subject to terms the Secretary may prescribe to carry out the objectives of this section.
(2)
A passenger facility charge may not be collected from a passenger—
(A) for more than 2 boardings on a one-way trip or a trip in each direction of a round trip;
(B) for the boarding to an eligible place under subchapter II of chapter 417 of this title for which essential air service compensation is paid under subchapter II;
(C) enplaning at an airport if the passenger did not pay for the air transportation which resulted in such enplanement, including any case in which the passenger obtained the ticket for the air transportation with a frequent flier award coupon without monetary payment;
(D) on flights, including flight segments, between 2 or more points in Hawaii;
(E) in Alaska aboard an aircraft having a seating capacity of less than 60 passengers; and
(F) enplaning at an airport if the passenger did not pay for the air transportation which resulted in such enplanement due to charter arrangements and payment by the Department of Defense.
(f)
Limitations on Contracts, Leases, and Use Agreements.—
(1) A contract between an air carrier or foreign air carrier and an eligible agency made at any time may not impair the authority of the agency to impose a passenger facility charge or to use the passenger facility revenue as provided in this section.
(2) A project financed with a passenger facility charge may not be subject to an exclusive long-term lease or use agreement of an air carrier or foreign air carrier, as defined by regulations of the Secretary.
(3) A lease or use agreement of an air carrier or foreign air carrier related to a project whose construction or expansion was financed with a passenger facility charge may not restrict the eligible agency from financing, developing, or assigning new capacity at the airport with passenger facility revenue.
(g)
Treatment of Revenue.—
(1) Passenger facility revenue is not airport revenue for purposes of establishing a price under a contract between an eligible agency and an air carrier or foreign air carrier.
(2) An eligible agency may not include in its price base the part of the capital costs of a project paid for by using passenger facility revenue to establish a price under a contract between the agency and an air carrier or foreign air carrier.
(3) For a project for terminal development, gates and related areas, or a facility occupied or used by at least one air carrier or foreign air carrier on an exclusive or preferential basis, a price payable by an air carrier or foreign air carrier using the facilities must at least equal the price paid by an air carrier or foreign air carrier using a similar facility at the airport that was not financed with passenger facility revenue.
(4) Passenger facility revenues that are held by an air carrier or an agent of the carrier after collection of a passenger facility charge constitute a trust fund that is held by the air carrier or agent for the beneficial interest of the eligible agency imposing the charge. Such carrier or agent holds neither legal nor equitable interest in the passenger facility revenues except for any handling fee or retention of interest collected on unremitted proceeds as may be allowed by the Secretary.
(h)
Compliance.—
(1) As necessary to ensure compliance with this section, the Secretary shall prescribe regulations requiring recordkeeping and auditing of accounts maintained by an air carrier or foreign air carrier and its agent collecting a passenger facility charge and by the eligible agency imposing the charge.
(2) The Secretary periodically shall audit and review the use by an eligible agency of passenger facility revenue. After review and a public hearing, the Secretary may end any part of the authority of the agency to impose a passenger facility charge 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 under subchapter I of chapter 471 of this title if the Secretary decides a passenger facility charge 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 charge takes effect;
(2)
shall—
(A) require an air carrier or foreign air carrier and its agent to collect a passenger facility charge 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 charge, is paid promptly to the eligible agency for which they are collected; and
(D) require that the amount collected for any air transportation be noted on the ticket for that air transportation; and
(3)
may permit an eligible agency to request that collection of a passenger facility charge be waived for—
(A) passengers enplaned by any class of air carrier or foreign air carrier if the number of passengers enplaned by the carriers in the class constitutes not more than one percent of the total number of passengers enplaned annually at the airport at which the charge is imposed; or
(B)
passengers enplaned on a flight to an airport—
(i) that has fewer than 2,500 passenger boardings each year and receives scheduled passenger service; or
(ii) in a community which has a population of less than 10,000 and is not connected by a land highway or vehicular way to the land-connected National Highway System within a State.
(j)
Limitation on Certain Actions.—
A State, political subdivision of a State, or authority of a State or political subdivision that is not the eligible agency may not tax, regulate, or prohibit or otherwise attempt to control in any manner, the imposition or collection of a passenger facility charge or the use of the revenue from the passenger facility charge.
(k)
Competition Plans.—
(1)
In general.—
Beginning in fiscal year 2001, no eligible agency may impose a passenger facility charge under this section with respect to a covered airport (as such term is defined in section 47106(f)) unless the agency has submitted to the Secretary a written competition plan in accordance with such section. This subsection does not apply to passenger facility charges in effect before the date of the enactment of this subsection.
(2)
Secretary shall ensure implementation and compliance.—
The Secretary shall review any plan submitted under paragraph (1) to ensure that it meets the requirements of this section, and shall review its implementation from time-to-time to ensure that each covered airport successfully implements its plan.
(l)
Pilot Program for Passenger Facility Charge Authorizations.—
(1)
In general.—
The Secretary shall establish a pilot program to test alternative procedures for authorizing eligible agencies for airports to impose passenger facility charges. An eligible agency may impose in accordance with the provisions of this subsection a passenger facility charge under this section. For purposes of the pilot program, the procedures in this subsection shall apply instead of the procedures otherwise provided in this section.
(2)
Notice and opportunity for consultation.—
The eligible agency must provide reasonable notice and an opportunity for consultation to air carriers and foreign air carriers in accordance with subsection (c)(2) and must provide reasonable notice and opportunity for public comment in accordance with subsection (c)(3).
(3)
Notice of intention.—
The eligible agency must submit to the Secretary a notice of intention to impose a passenger facility charge under this subsection. The notice shall include—
(A) information that the Secretary may require by regulation on each project for which authority to impose a passenger facility charge is sought;
(B) the amount of revenue from passenger facility charges that is proposed to be collected for each project; and
(C) the level of the passenger facility charge that is proposed.
(4)
Acknowledgement of receipt and indication of objection.—
The Secretary shall acknowledge receipt of the notice and indicate any objection to the imposition of a passenger facility charge under this subsection for any project identified in the notice within 30 days after receipt of the eligible agency’s notice.
(5)
Authority to impose charge.—
Unless the Secretary objects within 30 days after receipt of the eligible agency’s notice, the eligible agency is authorized to impose a passenger facility charge in accordance with the terms of its notice under this subsection.
(6)
Regulations.—
The Secretary shall propose such regulations as may be necessary to carry out this subsection.
(7)
Acknowledgement not an order.—
An acknowledgement issued under paragraph (4) shall not be considered an order issued by the Secretary for purposes of section 46110.
(m)
Financial Management of Charges.—
(1)
Handling of charges.—
A covered air carrier shall segregate in a separate account passenger facility revenue equal to the average monthly liability for charges collected under this section by such carrier or any of its agents for the benefit of the eligible agencies entitled to such revenue.
(2)
Trust fund status.—
If a covered air carrier or its agent fails to segregate passenger facility revenue in violation of the subsection, the trust fund status of such revenue shall not be defeated by an inability of any party to identify and trace the precise funds in the accounts of the air carrier.
(3)
Prohibition.—
A covered air carrier and its agents may not grant to any third party any security or other interest in passenger facility revenue.
(4)
Compensation to eligible entities.—
A covered air carrier that fails to comply with any requirement of this subsection, or otherwise unnecessarily causes an eligible entity to expend funds, through litigation or otherwise, to recover or retain payment of passenger facility revenue to which the eligible entity is otherwise entitled shall be required to compensate the eligible agency for the costs so incurred.
(5)
Interest on amounts.—
A covered air carrier that collects passenger facility charges is entitled to receive the interest on passenger facility charge accounts if the accounts are established and maintained in compliance with this subsection.
(6)
Existing regulations.—
The provisions of section 158.49 of title 14, Code of Federal Regulations, that permit the commingling of passenger facility charges with other air carrier revenue shall not apply to a covered air carrier.
(7)
Covered air carrier defined.—
In this section, the term “covered air carrier” means an air carrier that files for chapter 7 or chapter 11 of title 11 bankruptcy protection, or has an involuntary chapter 7 of title 11 bankruptcy proceeding commenced against it, after the date of enactment of this subsection.
(n)
Use of Revenues at Previously Associated Airport.—
Notwithstanding the requirements relating to airport control under subsection (b)(1), the Secretary may authorize use of a passenger facility charge under subsection (b) to finance an eligible airport-related project if—
(1) the eligible agency seeking to impose the new charge controls an airport where a $2.00 passenger facility charge became effective on January 1, 2013; and
(2) the location of the project to be financed by the new charge is at an airport that was under the control of the same eligible agency that had controlled the airport described in paragraph (1).
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1113; Pub. L. 103–305, title II, §§ 203, 204(a)(1), (b), Aug. 23, 1994, 108 Stat. 1582, 1583; Pub. L. 104–264, title I, § 142(b)(2), title XII, § 1202, Oct. 9, 1996, 110 Stat. 3221, 3280; Pub. L. 104–287, § 5(67), Oct. 11, 1996, 110 Stat. 3395; Pub. L. 106–181, title I, §§ 105(a), (b), 135(a), (b), 151, 152(a), 155(c), Apr. 5, 2000, 114 Stat. 71, 83, 86–88; Pub. L. 108–176, title I, §§ 121(a)–(c), 122–123(d), 124, Dec. 12, 2003, 117 Stat. 2499–2502; Pub. L. 110–253, § 3(c)(1), June 30, 2008, 122 Stat. 2417; Pub. L. 110–330, § 5(a), Sept. 30, 2008, 122 Stat. 3718; Pub. L. 110–337, § 1, Oct. 2, 2008, 122 Stat. 3729; Pub. L. 111–12, § 5(a), Mar. 30, 2009, 123 Stat. 1458; Pub. L. 111–69, § 5(a), Oct. 1, 2009, 123 Stat. 2055; Pub. L. 111–116, § 5(a), Dec. 16, 2009, 123 Stat. 3032; Pub. L. 111–153, § 5(a), Mar. 31, 2010, 124 Stat. 1085; Pub. L. 111–161, § 5(a), Apr. 30, 2010, 124 Stat. 1127; Pub. L. 111–197, § 5(a), July 2, 2010, 124 Stat. 1354; Pub. L. 111–216, title I, § 104(a), Aug. 1, 2010, 124 Stat. 2349; Pub. L. 111–249, § 5(a), Sept. 30, 2010, 124 Stat. 2628; Pub. L. 111–329, § 5(a), Dec. 22, 2010, 124 Stat. 3567; Pub. L. 112–7, § 5(a), Mar. 31, 2011, 125 Stat. 32; Pub. L. 112–16, § 5(a), May 31, 2011, 125 Stat. 219; Pub. L. 112–21, § 5(a), June 29, 2011, 125 Stat. 234; Pub. L. 112–27, § 5(a), Aug. 5, 2011, 125 Stat. 271; Pub. L. 112–30, title II, § 205(a), Sept. 16, 2011, 125 Stat. 358; Pub. L. 112–91, § 5(a), Jan. 31, 2012, 126 Stat. 4; Pub. L. 112–95, title I, §§ 111(a)–(c)(1), 152(e)(1), Feb. 14, 2012, 126 Stat. 17, 18, 34; Pub. L. 114–190, title II, § 2302, July 15, 2016, 130 Stat. 638; Pub. L. 115–254, div. B, title I, § 121, div. B, title V, § 539(b), Oct. 5, 2018, 132 Stat. 3201, 3370.)
§ 40118.
Government-financed air transportation
(a)
Transportation by Air Carriers Holding Certificates.—
A department, agency, or instrumentality of the United States Government shall take necessary steps to ensure that the transportation of passengers and property by air is provided by an air carrier holding a certificate under section 41102 of this title if—
(1)
the department, agency, or instrumentality—
(A) obtains the transportation for itself or in carrying out an arrangement under which payment is made by the Government or payment is made from amounts provided for the use of the Government; or
(B) provides the transportation to or for a foreign country or international or other organization without reimbursement;
(2) the transportation is authorized by the certificate or by regulation or exemption of the Secretary of Transportation; and
(3)
the air carrier is—
(A) available, if the transportation is between a place in the United States and a place outside the United States; or
(B) reasonably available, if the transportation is between 2 places outside the United States.
(b)
Transportation by Foreign Air Carriers.—
This section does not preclude the transportation of passengers and property by a foreign air carrier if the transportation is provided under a bilateral or multilateral air transportation agreement to which the Government and the government of a foreign country are parties if the agreement—
(1) is consistent with the goals for international aviation policy of section 40101(e) of this title; and
(2) provides for the exchange of rights or benefits of similar magnitude.
(c)
Proof.—
The Administrator of General Services shall prescribe regulations under which agencies may allow the expenditure of an appropriation for transportation in violation of this section only when satisfactory proof is presented showing the necessity for the transportation.
(d)
Certain Transportation by Air Outside the United States.—
Notwithstanding subsections (a) and (c) of this section, any amount appropriated to the Secretary of State or the Administrator of the Agency for International Development may be used to pay for the transportation of an officer or employee of the Department of State or one of those agencies, a dependent of the officer or employee, and accompanying baggage, by a foreign air carrier when the transportation is between 2 places outside the United States.
(e)
Relationship to Other Laws.—
This section does not affect the application of the antidiscrimination provisions of this part.
(f)
Prohibition of Certification or Contract Clause.—
(1) No certification by a contractor, and no contract clause, may be required in the case of a contract for the transportation of commercial products in order to implement a requirement in this section.
(2) In paragraph (1), the term “commercial product” has the meaning given such term in section 103 of title 41, except that it shall not include a contract for the transportation by air of passengers.
(g)
Training Requirements.—
The Administrator of General Services shall ensure that any contract entered into for provision of air transportation with a domestic carrier under this section requires that the contracting air carrier submits to the Administrator of General Services, the Secretary of Transportation, the Administrator of the Transportation Security Administration, the Secretary of Labor and the Commissioner of U.S. Customs and Border Protection an annual report regarding—
(1) the number of personnel trained in the detection and reporting of potential human trafficking (as described in paragraphs (9) and (10) 1
1 See References in Text note below.
of section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102)), including the training required under section 44734(a)(4);
(2) the number of notifications of potential human trafficking victims received from staff or other passengers; and
(3) whether the air carrier notified the National Human Trafficking Hotline or law enforcement at the relevant airport of the potential human trafficking victim for each such notification of potential human trafficking, and if so, when the notification was made.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1116; Pub. L. 103–355, title VIII, § 8301(h), Oct. 13, 1994, 108 Stat. 3398; Pub. L. 104–287, § 5(68), Oct. 11, 1996, 110 Stat. 3395; Pub. L. 104–316, title I, § 127(d), Oct. 19, 1996, 110 Stat. 3840; Pub. L. 105–277, div. G, subdiv. A, title XII, § 1225(h), title XIII, § 1335(p), title XIV, § 1422(b)(6), Oct. 21, 1998, 112 Stat. 2681–775, 2681–789, 2681–793; Pub. L. 108–176, title VIII, § 806, Dec. 12, 2003, 117 Stat. 2588; Pub. L. 111–350, § 5(o)(8), Jan. 4, 2011, 124 Stat. 3854; Pub. L. 115–232, div. A, title VIII, § 836(g)(9), Aug. 13, 2018, 132 Stat. 1874; Pub. L. 115–425, title I, § 111(a), Jan. 8, 2019, 132 Stat. 5475.)
[§ 40119.
Repealed. Pub. L. 115–254, div. K, title I, § 1991(c)(3), Oct. 5, 2018, 132 Stat. 3627]
§ 40120.
Relationship to other laws
(a)
Nonapplication.—
Except as provided in the International Navigational Rules Act of 1977 (33 U.S.C. 1601 et seq.), the navigation and shipping laws of the United States and the rules for the prevention of collisions do not apply to aircraft or to the navigation of vessels related to those aircraft.
(b)
Extending Application Outside United States.—
The President may extend (in the way and for periods the President considers necessary) the application of this part to outside the United States when—
(1) an international arrangement gives the United States Government authority to make the extension; and
(2) the President decides the extension is in the national interest.
(c)
Additional Remedies.—
A remedy under this part is in addition to any other remedies provided by law.
(Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1117.)
§ 40121.
Air traffic control modernization reviews
(a)
Required Terminations of Acquisitions.—
The Administrator of the Federal Aviation Administration shall terminate any acquisition program initiated after the date of the enactment of the Air Traffic Management System Performance Improvement Act of 1996 and funded under the Facilities and Equipment account that—
(1) is more than 50 percent over the cost goal established for the program;
(2) fails to achieve at least 50 percent of the performance goals established for the program; or
(3) is more than 50 percent behind schedule as determined in accordance with the schedule goal established for the program.
(b)
Authorized Termination of Acquisition Programs.—
The Administrator shall consider terminating, under the authority of subsection (a), any substantial acquisition program that—
(1) is more than 10 percent over the cost goal established for the program;
(2) fails to achieve at least 90 percent of the performance goals established for the program; or
(3) is more than 10 percent behind schedule as determined in accordance with the schedule goal established for the program.
(c)
Exceptions and Report.—
(1)
Continuance of program, etc.—
Notwithstanding subsection (a), the Administrator may continue an acquisitions program required to be terminated under subsection (a) if the Administrator determines that termination would be inconsistent with the development or operation of the national air transportation system in a safe and efficient manner.
(2)
Department of defense.—
The Department of Defense shall have the same exemptions from acquisition laws as are waived by the Administrator under section 40110(d)(2) of this title when engaged in joint actions to improve or replenish the national air traffic control system. The Administration may acquire real property, goods, and services through the Department of Defense, or other appropriate agencies, but is bound by the acquisition laws and regulations governing those cases.
(3)
Report.—
If the Administrator makes a determination under paragraph (1), the Administrator shall transmit a copy of the determination, together with a statement of the basis for the determination, to the Committees on Appropriations of the Senate and the House of Representatives, the Committee on Commerce, Science, and Transportation of the Senate, and the Committee on Transportation and Infrastructure of the House of Representatives.
(Added Pub. L. 104–264, title II, § 252, Oct. 9, 1996, 110 Stat. 3236; amended Pub. L. 106–181, title III, § 307(c)(2), Apr. 5, 2000, 114 Stat. 126.)
§ 40122.
Federal Aviation Administration personnel management system
(a)
In General.—
(1)
Consultation and negotiation.—
In developing and making changes to the personnel management system initially implemented by the Administrator of the Federal Aviation Administration on April 1, 1996, the Administrator shall negotiate with the exclusive bargaining representatives of employees of the Administration certified under section 7111 of title 5 and consult with other employees of the Administration.
(2)
Dispute resolution.—
(A)
Mediation.—
If the Administrator does not reach an agreement under paragraph (1) or the provisions referred to in subsection (g)(2)(C) with the exclusive bargaining representative of the employees, the Administrator and the bargaining representative—
(i) shall use the services of the Federal Mediation and Conciliation Service to attempt to reach such agreement in accordance with part 1425 of title 29, Code of Federal Regulations (as in effect on the date of enactment of the FAA Modernization and Reform Act of 2012); or
(ii) may by mutual agreement adopt alternative procedures for the resolution of disputes or impasses arising in the negotiation of the collective-bargaining agreement.
(B)
Mid-term bargaining.—
If the services of the Federal Mediation and Conciliation Service under subparagraph (A)(i) do not lead to the resolution of issues in controversy arising from the negotiation of a mid-term collective-bargaining agreement, the Federal Service Impasses Panel shall assist the parties in resolving the impasse in accordance with section 7119 of title 5.
(C)
(i)
Assistance from federal service impasses panel.—
If the services of the Federal Mediation and Conciliation Service under subparagraph (A)(i) do not lead to the resolution of issues in controversy arising from the negotiation of a term collective-bargaining agreement, the Administrator and the exclusive bargaining representative of the employees (in this subparagraph referred to as the “parties”) shall submit their issues in controversy to the Federal Service Impasses Panel. The Panel shall assist the parties in resolving the impasse by asserting jurisdiction and ordering binding arbitration by a private arbitration board consisting of 3 members.
(ii)
Appointment of arbitration board.—
The Executive Director of the Panel shall provide for the appointment of the 3 members of a private arbitration board under clause (i) by requesting the Director of the Federal Mediation and Conciliation Service to prepare a list of not less than 15 names of arbitrators with Federal sector experience and by providing the list to the parties. Not later than 10 days after receiving the list, the parties shall each select one person from the list. The 2 arbitrators selected by the parties shall then select a third person from the list not later than 7 days after being selected. If either of the parties fails to select a person or if the 2 arbitrators are unable to agree on the third person in 7 days, the parties shall make the selection by alternately striking names on the list until one arbitrator remains.
(iii)
Framing issues in controversy.—
If the parties do not agree on the framing of the issues to be submitted for arbitration, the arbitration board shall frame the issues.
(iv)
Hearings.—
The arbitration board shall give the parties a full and fair hearing, including an opportunity to present evidence in support of their claims and an opportunity to present their case in person, by counsel, or by other representative as they may elect.
(v)
Decisions.—
The arbitration board shall render its decision within 90 days after the date of its appointment. Decisions of the arbitration board shall be conclusive and binding upon the parties.
(vi)
Matters for consideration.—
The arbitration board shall take into consideration such factors as—
(I) the effect of its arbitration decisions on the Federal Aviation Administration’s ability to attract and retain a qualified workforce;(II) the effect of its arbitration decisions on the Federal Aviation Administration’s budget; and(III) any other factors whose consideration would assist the board in fashioning a fair and equitable award.
(vii)
Costs.—
The parties shall share costs of the arbitration equally.
(3)
Ratification of agreements.—
Upon reaching a voluntary agreement or at the conclusion of the binding arbitration under paragraph (2)(C), the final agreement, except for those matters decided by an arbitration board, shall be subject to ratification by the exclusive bargaining representative of the employees, if so requested by the bargaining representative, and the final agreement shall be subject to approval by the head of the agency in accordance with the provisions referred to in subsection (g)(2)(C).
(4)
Cost savings and productivity goals.—
The Administration and the exclusive bargaining representatives of the employees shall use every reasonable effort to find cost savings and to increase productivity within each of the affected bargaining units.
(5)
Annual budget discussions.—
The Administration and the exclusive bargaining representatives of the employees shall meet annually for the purpose of finding additional cost savings within the Administration’s annual budget as it applies to each of the affected bargaining units and throughout the agency.
(b)
Expert Evaluation.—
On the date that is 3 years after the personnel management system is implemented, the Administration shall employ outside experts to provide an independent evaluation of the effectiveness of the system within 3 months after such date. For this purpose, the Administrator may utilize the services of experts and consultants under section 3109 of title 5 without regard to the limitation imposed by the last sentence of section 3109(b) of such title, and may contract on a sole source basis, notwithstanding any other provision of law to the contrary.
(c)
Pay Restriction.—
No officer or employee of the Administration may receive an annual rate of basic pay in excess of the annual rate of basic pay payable to the Administrator.
(d)
Ethics.—
The Administration shall be subject to Executive Order No. 12674 and regulations and opinions promulgated by the Office of Government Ethics, including those set forth in section 2635 of title 5 of the Code of Federal Regulations.
(e)
Employee Protections.—
Until July 1, 1999, basic wages (including locality pay) and operational differential pay provided employees of the Administration shall not be involuntarily adversely affected by reason of the enactment of this section, except for unacceptable performance or by reason of a reduction in force or reorganization or by agreement between the Administration and the affected employees’ exclusive bargaining representative.
(f)
Labor-Management Agreements.—
Except as otherwise provided by this title, all labor-management agreements covering employees of the Administration that are in effect on the effective date of the Air Traffic Management System Performance Improvement Act of 1996 shall remain in effect until their normal expiration date, unless the Administrator and the exclusive bargaining representative agree to the contrary.
(g)
Personnel Management System.—
(1)
In general.—
In consultation with the employees of the Administration and such non-governmental experts in personnel management systems as he may employ, and notwithstanding the provisions of title 5 and other Federal personnel laws, the Administrator shall develop and implement, not later than January 1, 1996, a personnel management system for the Administration that addresses the unique demands on the agency’s workforce. Such a new system shall, at a minimum, provide for greater flexibility in the hiring, training, compensation, and location of personnel.
(2)
Applicability of title 5.—
The provisions of title 5 shall not apply to the new personnel management system developed and implemented pursuant to paragraph (1), with the exception of—
(A) section 2302(b), relating to whistleblower protection, including the provisions for investigation and enforcement as provided in chapter 12 of title 5;
(B) sections 3304(f), to the extent consistent with the Federal Aviation Administration’s status as an excepted service agency, 3308–3320, 3330a, 3330b, 3330c, and 3330d, relating to veterans’ preference;
(C) chapter 71, relating to labor-management relations;
(D) section 7204, relating to antidiscrimination;
(E) chapter 73, relating to suitability, security, and conduct;
(F) chapter 81, relating to compensation for work injury;
(G) chapters 83–85, 87, and 89, relating to retirement, unemployment compensation, and insurance coverage;
(H) sections 1204, 1211–1218, 1221, and 7701–7703, relating to the Merit Systems Protection Board;
(I)
subsections (b), (c), and (d) of section 4507 (relating to Meritorious Executive or Distinguished Executive rank awards) and subsections (b) and (c) of section 4507a (relating to Meritorious Senior Professional or Distinguished Senior Professional rank awards), except that—
(i)
for purposes of applying such provisions to the personnel management system—
(I) the term “agency” means the Department of Transportation;(II) the term “senior executive” means a Federal Aviation Administration executive;(III) the term “career appointee” means a Federal Aviation Administration career executive; and(IV) the term “senior career employee” means a Federal Aviation Administration career senior professional;
(ii) receipt by a career appointee or a senior career employee of the rank of Meritorious Executive or Meritorious Senior Professional entitles the individual to a lump-sum payment of an amount equal to 20 percent of annual basic pay, which shall be in addition to the basic pay paid under the Federal Aviation Administration Executive Compensation Plan; and
(iii) receipt by a career appointee or a senior career employee of the rank of Distinguished Executive or Distinguished Senior Professional entitles the individual to a lump-sum payment of an amount equal to 35 percent of annual basic pay, which shall be in addition to the basic pay paid under the Federal Aviation Administration Executive Compensation Plan; and
(J) subject to paragraph (4) of this subsection, section 6329, relating to disabled veteran leave.
(3)
Appeals to merit systems protection board.—
Under the new personnel management system developed and implemented under paragraph (1), an employee of the Administration may submit an appeal to the Merit Systems Protection Board and may seek judicial review of any resulting final orders or decisions of the Board from any action that was appealable to the Board under any law, rule, or regulation as of March 31, 1996. Notwithstanding any other provision of law, retroactive to April 1, 1996, the Board shall have the same remedial authority over such employee appeals that it had as of March 31, 1996.
(4)
Certification of disabled veteran leave.—
In order to verify that leave credited to an employee pursuant to paragraph (2)(J) is used for treating a service-connected disability, that employee shall, notwithstanding section 6329(c) of title 5, submit to the Assistant Administrator for Human Resource Management of the Federal Aviation Administration certification, in such form and manner as the Administrator of the Federal Aviation Administration may prescribe, that the employee used that leave for purposes of being furnished treatment for that disability by a health care provider.
(5)
Paid parental leave.—
The Administrator shall implement a paid parental leave benefit for employees of the Administration that is, at a minimum, consistent with the paid parental leave benefits provided under section 6382 of title 5.
(6)
Effective date.—
This subsection shall take effect on April 1, 1996.
(h)
Right To Contest Adverse Personnel Actions.—
An employee of the Federal Aviation Administration who is the subject of a major adverse personnel action may contest the action either through any contractual grievance procedure that is applicable to the employee as a member of the collective bargaining unit or through the Administration’s internal process relating to review of major adverse personnel actions of the Administration, known as Guaranteed Fair Treatment, or under section 40122(g)(3).
(i)
Election of Forum.—
Where a major adverse personnel action may be contested through more than one of the indicated forums (such as the contractual grievance procedure, the Federal Aviation Administration’s internal process, or that of the Merit Systems Protection Board), an employee must elect the forum through which the matter will be contested. Nothing in this section is intended to allow an employee to contest an action through more than one forum unless otherwise allowed by law.
(j)
Definition.—
In this section, the term “major adverse personnel action” means a suspension of more than 14 days, a reduction in pay or grade, a removal for conduct or performance, a nondisciplinary removal, a furlough of 30 days or less (but not including placement in a nonpay status as the result of a lapse of appropriations or an enactment by Congress), or a reduction in force action.
(Added Pub. L. 104–264, title II, § 253, Oct. 9, 1996, 110 Stat. 3237; amended Pub. L. 106–181, title III, §§ 307(a), 308, Apr. 5, 2000, 114 Stat. 124, 126; Pub. L. 112–95, title VI, §§ 601, 602, 611, Feb. 14, 2012, 126 Stat. 109, 111, 117; Pub. L. 114–242, § 2(a), (b), Oct. 7, 2016, 130 Stat. 978; Pub. L. 115–254, div. B, title V, § 531, Oct. 5, 2018, 132 Stat. 3366; Pub. L. 116–283, div. A, title XI, § 1103(c)(1), Jan. 1, 2021, 134 Stat. 3887.)
§ 40123.
Protection of voluntarily submitted information
(a)
In General.—
Notwithstanding any other provision of law, neither the Administrator of the Federal Aviation Administration, nor any agency receiving information from the Administrator, shall disclose voluntarily-provided safety or security related information if the Administrator finds that—
(1) the disclosure of the information would inhibit the voluntary provision of that type of information and that the receipt of that type of information aids in fulfilling the Administrator’s safety and security responsibilities; and
(2) withholding such information from disclosure would be consistent with the Administrator’s safety and security responsibilities.
(b)
Regulations.—
The Administrator shall issue regulations to carry out this section.
(Added Pub. L. 104–264, title IV, § 402(a), Oct. 9, 1996, 110 Stat. 3255.)
§ 40124.
Interstate agreements for airport facilities

Congress consents to a State making an agreement, not in conflict with a law of the United States, with another State to develop or operate an airport facility.

(Added Pub. L. 104–287, § 5(69)(A), Oct. 11, 1996, 110 Stat. 3395, § 40121; renumbered § 40124, Pub. L. 105–102, § 3(d)(1)(B), Nov. 20, 1997, 111 Stat. 2215.)
§ 40125.
Qualifications for public aircraft status
(a)
Definitions.—
In this section, the following definitions apply:
(1)
Commercial purposes.—
The term “commercial purposes” means the transportation of persons or property for compensation or hire, but does not include the operation of an aircraft by the armed forces for reimbursement when that reimbursement is required by any Federal statute, regulation, or directive, in effect on November 1, 1999, or by one government on behalf of another government under a cost reimbursement agreement if the government on whose behalf the operation is conducted certifies to the Administrator of the Federal Aviation Administration that the operation is necessary to respond to a significant and imminent threat to life or property (including natural resources) and that no service by a private operator is reasonably available to meet the threat.
(2)
Governmental function.—
The term “governmental function” means an activity undertaken by a government, such as national defense, intelligence missions, firefighting, search and rescue, law enforcement (including transport of prisoners, detainees, and illegal aliens), aeronautical research, or biological or geological resource management.
(3)
Qualified non-crewmember.—
The term “qualified non-crewmember” means an individual, other than a member of the crew, aboard an aircraft—
(A) operated by the armed forces or an intelligence agency of the United States Government; or
(B) whose presence is required to perform, or is associated with the performance of, a governmental function.
(4)
Armed forces.—
The term “armed forces” has the meaning given such term by section 101 of title 10.
(b)
Aircraft Owned by Governments.—
An aircraft described in subparagraph (A), (B), (C), (D), or (F) of section 40102(a)(41) does not qualify as a public aircraft under such section when the aircraft is used for commercial purposes or to carry an individual other than a crewmember or a qualified non-crewmember.
(c)
Aircraft Owned or Operated by the Armed Forces.—
(1)
In general.—
Subject to paragraph (2), an aircraft described in section 40102(a)(41)(E) qualifies as a public aircraft if—
(A) the aircraft is operated in accordance with title 10;
(B) the aircraft is operated in the performance of a governmental function under title 14, 31, 32, or 50 and the aircraft is not used for commercial purposes; or
(C) the aircraft is chartered to provide transportation or other commercial air service to the armed forces and the Secretary of Defense (or the Secretary of the department in which the Coast Guard is operating) designates the operation of the aircraft as being required in the national interest.
(2)
Limitation.—
An aircraft that meets the criteria set forth in paragraph (1) and that is owned or operated by the National Guard of a State, the District of Columbia, or any territory or possession of the United States, qualifies as a public aircraft only to the extent that it is operated under the direct control of the Department of Defense.
(d)
Search and Rescue Purposes.—
An aircraft described in section 40102(a)(41)(D) that is not exclusively leased for at least 90 continuous days by the government of a State, the District of Columbia, or a territory or possession of the United States or a political subdivision of 1 of those governments, qualifies as a public aircraft if the Administrator determines that—
(1) there are extraordinary circumstances;
(2) the aircraft will be used for the performance of search and rescue missions;
(3) a community would not otherwise have access to search and rescue services; and
(4) a government entity demonstrates that granting the waiver is necessary to prevent an undue economic burden on that government.
(Added Pub. L. 106–181, title VII, § 702(b)(1), Apr. 5, 2000, 114 Stat. 155; amended Pub. L. 110–181, div. A, title X, § 1078(b), (c), Jan. 28, 2008, 122 Stat. 334; Pub. L. 112–141, div. C, title V, § 35003, July 6, 2012, 126 Stat. 843; Pub. L. 115–254, div. B, title III, § 355(b), Oct. 5, 2018, 132 Stat. 3305.)
§ 40126.
Severable services contracts for periods crossing fiscal years
(a)
In General.—
The Administrator of the Federal Aviation Administration may enter into a contract for procurement of severable services for a period that begins in 1 fiscal year and ends in the next fiscal year if (without regard to any option to extend the period of the contract) the contract period does not exceed 1 year.
(b)
Obligation of Funds.—
Funds made available for a fiscal year may be obligated for the total amount of a contract entered into under the authority of subsection (a).
(Added Pub. L. 106–181, title VII, § 705(a), Apr. 5, 2000, 114 Stat. 157.)
§ 40127.
Prohibitions on discrimination
(a)
Persons in Air Transportation.—
An air carrier or foreign air carrier may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry.
(b)
Use of Private Airports.—
Notwithstanding any other provision of law, no State or local government may prohibit the use or full enjoyment of a private airport within its jurisdiction by any person on the basis of that person’s race, color, national origin, religion, sex, or ancestry.
(Added Pub. L. 106–181, title VII, § 706(a), Apr. 5, 2000, 114 Stat. 157.)
§ 40128.
Overflights of national parks
(a)
In General.—
(1)
General requirements.—
A commercial air tour operator may not conduct commercial air tour operations over a national park or tribal lands, as defined by this section, except—
(A) in accordance with this section;
(B) in accordance with conditions and limitations prescribed for that operator by the Administrator; and
(C) in accordance with any applicable air tour management plan or voluntary agreement under subsection (b)(7) for the park or tribal lands.
(2)
Application for operating authority.—
(A)
Application required.—
Before commencing commercial air tour operations over a national park or tribal lands, a commercial air tour operator shall apply to the Administrator for authority to conduct the operations over the park or tribal lands.
(B)
Competitive bidding for limited capacity parks.—
Whenever an air tour management plan limits the number of commercial air tour operations over a national park during a specified time frame, the Administrator, in cooperation with the Director, shall issue operation specifications to commercial air tour operators that conduct such operations. The operation specifications shall include such terms and conditions as the Administrator and the Director find necessary for management of commercial air tour operations over the park. The Administrator, in cooperation with the Director, shall develop an open competitive process for evaluating proposals from persons interested in providing commercial air tour operations over the park. In making a selection from among various proposals submitted, the Administrator, in cooperation with the Director, shall consider relevant factors, including—
(i) the safety record of the person submitting the proposal or pilots employed by the person;
(ii) any quiet aircraft technology proposed to be used by the person submitting the proposal;
(iii) the experience of the person submitting the proposal with commercial air tour operations over other national parks or scenic areas;
(iv) the financial capability of the person submitting the proposal;
(v) any training programs for pilots provided by the person submitting the proposal; and
(vi) responsiveness of the person submitting the proposal to any relevant criteria developed by the National Park Service for the affected park.
(C)
Number of operations authorized.—
In determining the number of authorizations to issue to provide commercial air tour operations over a national park, the Administrator, in cooperation with the Director, shall take into consideration the provisions of the air tour management plan, the number of existing commercial air tour operators and current level of service and equipment provided by any such operators, and the financial viability of each commercial air tour operation.
(D)
Cooperation with nps.—
Before granting an application under this paragraph, the Administrator, in cooperation with the Director, shall develop an air tour management plan in accordance with subsection (b) and implement such plan.
(E)
Time limit on response to atmp applications.—
The Administrator shall make every effort to act on any application under this paragraph and issue a decision on the application not later than 24 months after it is received or amended.
(F)
Priority.—
In acting on applications under this paragraph to provide commercial air tour operations over a national park, the Administrator shall give priority to an application under this paragraph in any case in which a new entrant commercial air tour operator is seeking operating authority with respect to that national park.
(3)
Exception.—
Notwithstanding paragraph (1), commercial air tour operators may conduct commercial air tour operations over a national park under part 91 of title 14, Code of Federal Regulations if—
(A) such activity is permitted under part 119 of such title;
(B) the operator secures a letter of agreement from the Administrator and the national park superintendent for that national park describing the conditions under which the operations will be conducted; and
(C) the total number of operations under this exception is limited to not more than five flights in any 30-day period over a particular park.
(4)
Special rule for safety requirements.—
Notwithstanding subsection (c), an existing commercial air tour operator shall apply, not later than 90 days after the date of the enactment of this section, for operating authority under part 119, 121, or 135 of title 14, Code of Federal Regulations. A new entrant commercial air tour operator shall apply for such authority before conducting commercial air tour operations over a national park or tribal lands. The Administrator shall make every effort to act on any such application for a new entrant and issue a decision on the application not later than 24 months after it is received or amended.
(5)
Exemption for national parks with 50 or fewer flights each year.—
(A)
In general.—
Notwithstanding paragraph (1), a national park that has 50 or fewer commercial air tour operations over the park each year shall be exempt from the requirements of this section, except as provided in subparagraph (B).
(B)
Withdrawal of exemption.—
If the Director determines that an air tour management plan or voluntary agreement is necessary to protect park resources and values or park visitor use and enjoyment, the Director shall withdraw the exemption of a park under subparagraph (A).
(C)
List of parks.—
(i)
In general.—
The Director and Administrator shall jointly publish a list each year of national parks that are covered by the exemption provided under this paragraph.
(ii)
Notification of withdrawal of exemption.—
The Director shall inform the Administrator, in writing, of each determination to withdraw an exemption under subparagraph (B).
(D)
Annual report.—
A commercial air tour operator conducting commercial air tour operations over a national park that is exempt from the requirements of this section shall submit to the Administrator and the Director a report each year that includes the number of commercial air tour operations the operator conducted during the preceding 1-year period over such park.
(b)
Air Tour Management Plans.—
(1)
Establishment.—
(A)
In general.—
The Administrator, in cooperation with the Director, shall establish an air tour management plan for any national park or tribal land for which such a plan is not in effect whenever a person applies for authority to conduct a commercial air tour operation over the park. The air tour management plan shall be developed by means of a public process in accordance with paragraph (4).
(B)
Objective.—
The objective of any air tour management plan shall be to develop acceptable and effective measures to mitigate or prevent the significant adverse impacts, if any, of commercial air tour operations upon the natural and cultural resources, visitor experiences, and tribal lands.
(C)
Exception.—
An application to begin or expand commercial air tour operations at Crater Lake National Park or Great Smoky Mountains National Park may be denied without the establishment of an air tour management plan by the Director of the National Park Service if the Director determines that such operations would adversely affect park resources or visitor experiences.
(2)
Environmental determination.—
In establishing an air tour management plan under this subsection, the Administrator and the Director shall each sign the environmental decision document required by section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332) which may include a finding of no significant impact, an environmental assessment, or an environmental impact statement and the record of decision for the air tour management plan.
(3)
Contents.—
An air tour management plan for a national park—
(A) may prohibit commercial air tour operations over a national park in whole or in part;
(B) may establish conditions for the conduct of commercial air tour operations over a national park, including commercial air tour routes, maximum or minimum altitudes, time-of-day restrictions, restrictions for particular events, maximum number of flights per unit of time, intrusions on privacy on tribal lands, and mitigation of noise, visual, or other impacts;
(C) shall apply to all commercial air tour operations over a national park that are also within ½ mile outside the boundary of a national park;
(D) shall include incentives (such as preferred commercial air tour routes and altitudes, relief from caps and curfews) for the adoption of quiet aircraft technology by commercial air tour operators conducting commercial air tour operations over a national park;
(E) shall provide for the initial allocation of opportunities to conduct commercial air tour operations over a national park if the plan includes a limitation on the number of commercial air tour operations for any time period; and
(F) shall justify and document the need for measures taken pursuant to subparagraphs (A) through (E) and include such justifications in the record of decision.
(4)
Procedure.—
In establishing an air tour management plan for a national park or tribal lands, the Administrator and the Director shall—
(A) hold at least one public meeting with interested parties to develop the air tour management plan;
(B) publish the proposed plan in the Federal Register for notice and comment and make copies of the proposed plan available to the public;
(C) comply with the regulations set forth in sections 1501.3 and 1501.5 through 1501.8 of title 40, Code of Federal Regulations (for purposes of complying with the regulations, the Federal Aviation Administration shall be the lead agency and the National Park Service is a cooperating agency); and
(D) solicit the participation of any Indian tribe whose tribal lands are, or may be, overflown by aircraft involved in a commercial air tour operation over the park or tribal lands to which the plan applies, as a cooperating agency under the regulations referred to in subparagraph (C).
(5)
Judicial review.—
An air tour management plan developed under this subsection shall be subject to judicial review.
(6)
Amendments.—
The Administrator, in cooperation with the Director, may make amendments to an air tour management plan. Any such amendments shall be published in the Federal Register for notice and comment. A request for amendment of an air tour management plan shall be made in such form and manner as the Administrator may prescribe.
(7)
Voluntary agreements.—
(A)
In general.—
As an alternative to an air tour management plan, the Director and the Administrator may enter into a voluntary agreement with a commercial air tour operator (including a new entrant commercial air tour operator and an operator that has interim operating authority) that has applied to conduct commercial air tour operations over a national park to manage commercial air tour operations over such national park.
(B)
Park protection.—
A voluntary agreement under this paragraph with respect to commercial air tour operations over a national park shall address the management issues necessary to protect the resources of such park and visitor use of such park without compromising aviation safety or the air traffic control system and may—
(i) include provisions such as those described in subparagraphs (B) through (E) of paragraph (3);
(ii) include provisions to ensure the stability of, and compliance with, the voluntary agreement; and
(iii) provide for fees for such operations.
(C)
Public review.—
The Director and the Administrator shall provide an opportunity for public review of a proposed voluntary agreement under this paragraph and shall consult with any Indian tribe whose tribal lands are, or may be, flown over by a commercial air tour operator under a voluntary agreement under this paragraph. After such opportunity for public review and consultation, the voluntary agreement may be implemented without further administrative or environmental process beyond that described in this subsection.
(D)
Termination.—
(i)
In general.—
A voluntary agreement under this paragraph may be terminated at any time at the discretion of—
(I) the Director, if the Director determines that the agreement is not adequately protecting park resources or visitor experiences; or(II) the Administrator, if the Administrator determines that the agreement is adversely affecting aviation safety or the national aviation system.
(ii)
Effect of termination.—
If a voluntary agreement with respect to a national park is terminated under this subparagraph, the operators shall conform to the requirements for interim operating authority under subsection (c) until an air tour management plan for the park is in effect.
(c)
Interim Operating Authority.—
(1)
In general.—
Upon application for operating authority, the Administrator shall grant interim operating authority under this subsection to a commercial air tour operator for commercial air tour operations over a national park or tribal lands for which the operator is an existing commercial air tour operator.
(2)
Requirements and limitations.—
Interim operating authority granted under this subsection—
(A)
shall provide annual authorization only for the greater of—
(i) the number of flights used by the operator to provide the commercial air tour operations over a national park within the 12-month period prior to the date of the enactment of this section; or
(ii) the average number of flights per 12-month period used by the operator to provide such operations within the 36-month period prior to such date of enactment, and, for seasonal operations, the number of flights so used during the season or seasons covered by that 12-month period;
(B) may not provide for an increase in the number of commercial air tour operations over a national park conducted during any time period by the commercial air tour operator above the number that the air tour operator was originally granted unless such an increase is agreed to by the Administrator and the Director;
(C) shall be published in the Federal Register to provide notice and opportunity for comment;
(D) may be revoked by the Administrator for cause;
(E) shall terminate 180 days after the date on which an air tour management plan is established for the park or tribal lands;
(F) shall promote protection of national park resources, visitor experiences, and tribal lands;
(G) shall promote safe commercial air tour operations;
(H) shall promote the adoption of quiet technology, as appropriate; and
(I)
may allow for modifications of the interim operating authority without further environmental review beyond that described in this subsection, if—
(i) adequate information regarding the existing and proposed operations of the operator under the interim operating authority is provided to the Administrator and the Director;
(ii) the Administrator determines that there would be no adverse impact on aviation safety or the air traffic control system; and
(iii) the Director agrees with the modification, based on the professional expertise of the Director regarding the protection of the resources, values, and visitor use and enjoyment of the park.
(3)
New entrant air tour operators.—
(A)
In general.—
The Administrator, in cooperation with the Director, may grant interim operating authority under this paragraph to an air tour operator for a national park or tribal lands for which that operator is a new entrant air tour operator without further environmental process beyond that described in this paragraph, if—
(i)
(ii) the Administrator agrees that there would be no adverse impact on aviation safety or the air traffic control system; and
(iii) the Director agrees, based on the Director’s professional expertise regarding the protection of park resources and values and visitor use and enjoyment.
(B)
Safety limitation.—
The Administrator may not grant interim operating authority under subparagraph (A) if the Administrator determines that it would create a safety problem at the park or on the tribal lands, or the Director determines that it would create a noise problem at the park or on the tribal lands.
(C)
ATMP limitation.—
The Administrator may grant interim operating authority under subparagraph (A) of this paragraph only if the air tour management plan for the park or tribal lands to which the application relates has not been developed within 24 months after the date of the enactment of this section.
(d)
Commercial Air Tour Operator Reports.—
(1)
Report.—
Each commercial air tour operator conducting a commercial air tour operation over a national park under interim operating authority granted under subsection (c) or in accordance with an air tour management plan or voluntary agreement under subsection (b) shall submit to the Administrator and the Director a report regarding the number of commercial air tour operations over each national park that are conducted by the operator and such other information as the Administrator and Director may request in order to facilitate administering the provisions of this section.
(2)
Report submission.—
Not later than 90 days after the date of enactment of the FAA Modernization and Reform Act of 2012, the Administrator and the Director shall jointly issue an initial request for reports under this subsection. The reports shall be submitted to the Administrator and the Director with a frequency and in a format prescribed by the Administrator and the Director.
(e)
Exemptions.—
This section shall not apply to—
(1) the Grand Canyon National Park; or
(2) tribal lands within or abutting the Grand Canyon National Park.
(f)
Lake Mead.—
This section shall not apply to any air tour operator while flying over or near the Lake Mead National Recreation Area, solely as a transportation route, to conduct an air tour over the Grand Canyon National Park. For purposes of this subsection, an air tour operator flying over the Hoover Dam in the Lake Mead National Recreation Area en route to the Grand Canyon National Park shall be deemed to be flying solely as a transportation route.
(g)
Definitions.—
In this section, the following definitions apply:
(1)
Commercial air tour operator.—
The term “commercial air tour operator” means any person who conducts a commercial air tour operation over a national park.
(2)
Existing commercial air tour operator.—
The term “existing commercial air tour operator” means a commercial air tour operator that was actively engaged in the business of providing commercial air tour operations over a national park at any time during the 12-month period ending on the date of the enactment of this section.
(3)
New entrant commercial air tour operator.—
The term “new entrant commercial air tour operator” means a commercial air tour operator that—
(A) applies for operating authority as a commercial air tour operator for a national park or tribal lands; and
(B) has not engaged in the business of providing commercial air tour operations over the national park or tribal lands in the 12-month period preceding the application.
(4)
Commercial air tour operation over a national park.—
(A)
In general.—
The term “commercial air tour operation over a national park” means any flight, conducted for compensation or hire in a powered aircraft where a purpose of the flight is sightseeing over a national park, within ½ mile outside the boundary of any national park (except the Grand Canyon National Park), or over tribal lands (except those within or abutting the Grand Canyon National Park), during which the aircraft flies—
(i) below a minimum altitude, determined by the Administrator in cooperation with the Director, above ground level (except solely for purposes of takeoff or landing, or necessary for safe operation of an aircraft as determined under the rules and regulations of the Federal Aviation Administration requiring the pilot-in-command to take action to ensure the safe operation of the aircraft); or
(ii) less than 1 mile laterally from any geographic feature within the park (unless more than ½ mile outside the boundary).
(B)
Factors to consider.—
In making a determination of whether a flight is a commercial air tour operation over a national park for purposes of this section, the Administrator may consider—
(i) whether there was a holding out to the public of willingness to conduct a sightseeing flight for compensation or hire;
(ii) whether a narrative that referred to areas or points of interest on the surface below the route of the flight was provided by the person offering the flight;
(iii) the area of operation;
(iv) the frequency of flights conducted by the person offering the flight;
(v) the route of flight;
(vi) the inclusion of sightseeing flights as part of any travel arrangement package offered by the person offering the flight;
(vii) whether the flight would have been canceled based on poor visibility of the surface below the route of the flight; and
(viii) any other factors that the Administrator and the Director consider appropriate.
(5)
National park.—
The term “national park” means any unit of the National Park System.
(6)
Tribal lands.—
The term “tribal lands” means Indian country (as that term is defined in section 1151 of title 18) that is within or abutting a national park.
(7)
Administrator.—
The term “Administrator” means the Administrator of the Federal Aviation Administration.
(8)
Director.—
The term “Director” means the Director of the National Park Service.
(Added Pub. L. 106–181, title VIII, § 803(a), Apr. 5, 2000, 114 Stat. 186; amended Pub. L. 108–176, title III, § 323(a), Dec. 12, 2003, 117 Stat. 2541; Pub. L. 109–115, div. A, title I, § 177, Nov. 30, 2005, 119 Stat. 2427; Pub. L. 112–95, title V, § 501, Feb. 14, 2012, 126 Stat. 100; Pub. L. 112–141, div. C, title V, § 35002, July 6, 2012, 126 Stat. 843; Pub. L. 115–254, div. B, title V, § 539(c), Oct. 5, 2018, 132 Stat. 3370.)
§ 40129.
Collaborative decisionmaking pilot program
(a)
Establishment.—
Not later than 90 days after the date of enactment of this section, the Administrator of the Federal Aviation Administration shall establish a collaborative decisionmaking pilot program in accordance with this section.
(b)
Duration.—
Except as provided in subsection (k), the pilot program shall be in effect for a period of 2 years.
(c)
Guidelines.—
(1)
Issuance.—
The Administrator, with the concurrence of the Attorney General, shall issue guidelines concerning the pilot program. Such guidelines, at a minimum, shall—
(A) define a capacity reduction event;
(B) establish the criteria and process for determining when a capacity reduction event exists that warrants the use of collaborative decisionmaking among carriers at airports participating in the pilot program; and
(C) prescribe the methods of communication to be implemented among carriers during such an event.
(2)
Views.—
The Administrator may obtain the views of interested parties in issuing the guidelines.
(d)
Effect of Determination of Existence of Capacity Reduction Event.—
Upon a determination by the Administrator that a capacity reduction event exists, the Administrator may authorize air carriers and foreign air carriers operating at an airport participating in the pilot program to communicate for a period of time not to exceed 24 hours with each other concerning changes in their respective flight schedules in order to use air traffic capacity most effectively. The Administration shall facilitate and monitor such communication. The Attorney General, or the Attorney General’s designee, may monitor such communication.
(e)
Selection of Participating Airports.—
Not later than 30 days after the date on which the Administrator establishes the pilot program, the Administrator shall select 2 airports to participate in the pilot program from among the most capacity-constrained airports in the Nation based on the Administration’s Airport Capacity Benchmark Report 2001 or more recent data on airport capacity that is available to the Administrator. The Administrator shall select an airport for participation in the pilot program if the Administrator determines that collaborative decisionmaking among air carriers and foreign air carriers would reduce delays at the airport and have beneficial effects on reducing delays in the national airspace system as a whole.
(f)
Eligibility of Air Carriers.—
An air carrier or foreign air carrier operating at an airport selected to participate in the pilot program is eligible to participate in the pilot program if the Administrator determines that the carrier has the operational and communications capability to participate in the pilot program.
(g)
Modification or Termination of Pilot Program at an Airport.—
The Administrator, with the concurrence of the Attorney General, may modify or end the pilot program at an airport before the term of the pilot program has expired, or may ban an air carrier or foreign air carrier from participating in the program, if the Administrator determines that the purpose of the pilot program is not being furthered by participation of the airport or air carrier or if the Secretary of Transportation, with the concurrence of the Attorney General, finds that the pilot program or the participation of an air carrier or foreign air carrier in the pilot program has had, or is having, an adverse effect on competition among carriers.
(h)
Antitrust Immunity.—
(1)
In general.—
Unless, within 5 days after receiving notice from the Secretary of the Secretary’s intention to exercise authority under this subsection, the Attorney General submits to the Secretary a written objection to such action, including reasons for such objection, the Secretary may exempt an air carrier’s or foreign air carrier’s activities that are necessary to participate in the pilot program under this section from the antitrust laws for the sole purpose of participating in the pilot program. Such exemption shall not extend to any discussions, agreements, or activities outside the scope of the pilot program.
(2)
Antitrust laws defined.—
In this section, the term “antitrust laws” has the meaning given that term in the first section of the Clayton Act (15 U.S.C. 12).
(i)
Consultation With Attorney General.—
The Secretary shall consult with the Attorney General regarding the design and implementation of the pilot program, including determining whether a limit should be set on the number of occasions collaborative decisionmaking could be employed during the initial 2-year period of the pilot program.
(j)
Evaluation.—
(1)
In general.—
Before the expiration of the 2-year period for which the pilot program is authorized under subsection (b), the Administrator shall determine whether the pilot program has facilitated more effective use of air traffic capacity and the Secretary, with the concurrence of the Attorney General, shall determine whether the pilot program has had an adverse effect on airline competition or the availability of air services to communities. The Administrator shall also examine whether capacity benefits resulting from the participation in the pilot program of an airport resulted in capacity benefits to other parts of the national airspace system.
(2)
Obtaining necessary data.—
The Administrator may require participating air carriers and airports to provide data necessary to evaluate the pilot program’s impact.
(k)
Extension of Pilot Program.—
At the end of the 2-year period for which the pilot program is authorized, the Administrator, with the concurrence of the Attorney General, may continue the pilot program for an additional 2 years and expand participation in the program to up to 7 additional airports if the Administrator determines pursuant to subsection (j) that the pilot program has facilitated more effective use of air traffic capacity and if the Secretary, with the concurrence of the Attorney General, determines that the pilot program has had no adverse effect on airline competition or the availability of air services to communities. The Administrator shall select the additional airports to participate in the extended pilot program in the same manner in which airports were initially selected to participate.
(Added Pub. L. 108–176, title IV, § 423(a), Dec. 12, 2003, 117 Stat. 2552.)
§ 40130.
FAA authority to conduct criminal history record checks
(a)
Criminal History Background Checks.—
(1)
Access to information.—
The Administrator of the Federal Aviation Administration, for certification purposes of the Administration only, is authorized—
(A) to conduct, in accordance with the established request process, a criminal history background check of an airman in the criminal repositories of the Federal Bureau of Investigation and States by submitting positive identification of the airman to a fingerprint-based repository in compliance with section 217 of the National Crime Prevention and Privacy Compact Act of 1998 (42 U.S.C. 14616); 1
1 See References in Text note below.
and
(B) to receive relevant criminal history record information regarding the airman checked.
(2)
Release of information.—
In accessing a repository referred to in paragraph (1), the Administrator shall be subject to the conditions and procedures established by the Department of Justice or the State, as appropriate, for other governmental agencies conducting background checks for noncriminal justice purposes.
(3)
Limitation.—
The Administrator may not use the authority under paragraph (1) to conduct criminal investigations.
(4)
Reimbursement.—
The Administrator may collect reimbursement to process the fingerprint-based checks under this subsection, to be used for expenses incurred, including Federal Bureau of Investigation fees, in providing these services.
(b)
Designated Employees.—
The Administrator shall designate, by order, employees of the Administration who may carry out the authority described in subsection (a).
(Added Pub. L. 112–95, title VIII, § 802(a), Feb. 14, 2012, 126 Stat. 118.)