§ 40109. — Authority to exempt.
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From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 49USC40109]
TITLE 49--TRANSPORTATION
SUBTITLE VII--AVIATION PROGRAMS
PART A--AIR COMMERCE AND SAFETY
subpart i--general
CHAPTER 401--GENERAL PROVISIONS
Sec. 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 40103(b)(1) and (2), 40119, 44901, 44903, 44906,
and 44935-44937 of this title when the Administrator decides the
exemption is in the public interest.
(c) Other Economic Regulation.--Except as provided in this section,
the Secretary may exempt to the extent the Secretary considers necessary
a person or class of persons from a provision of chapter 411, chapter
413 (except sections 41307 and 41310(b)-(f)), chapter 415 (except
sections 41502, 41505, and 41507-41509), chapter 417 (except sections
41703, 41704, 41710, 41713, and 41714), chapter 419, subchapter II of
chapter 421, and sections 44909 and 46301(b) of this title, or a
regulation or term prescribed under any of those provisions, when the
Secretary decides that the exemption is consistent with the public
interest.
(d) Labor Requirements.--The Secretary may not exempt an air carrier
from section 42112 of this title. However, the Secretary may exempt from
section 42112(b)(1) and (2) an air carrier not 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 to ensure that
the unusual circumstances that established the need for the
exemption still exist.
(3) The Secretary may renew an exemption (including renewals) under
this subsection for not more than 30 days. An exemption may continue for
not more than 5 days after the unusual circumstances that established
the need for the exemption cease.
(h) Notice and Opportunity for Hearing.--The Secretary may act under
subsections (d) and (f)(3)(B) of this section only after giving the air
carrier notice and an opportunity for a hearing.
(Pub. L. 103-272, Sec. 1(e), July 5, 1994, 108 Stat. 1104; Pub. L. 104-
287, Sec. 5(65), Oct. 11, 1996, 110 Stat. 3395.)
Historical and Revision Notes
Pub. L. 103-272
----------------------------------------------------------------------------------------------------------------
Revised Section Source (U.S. Code) Source (Statutes at Large)
----------------------------------------------------------------------------------------------------------------
40109(a).............................. 49 App.:1301(3) (proviso). Aug. 23, 1958, Pub. L. 85-726, Secs.
101(3) (proviso), 307(e), 416(b)(2),
72 Stat. 737, 750, 771.
49 App.:1386(b)(3). Aug. 23, 1958, Pub. L. 85-726, 72 Stat.
731, Sec. 416(b)(3)-(6); added Oct.
24, 1978, Pub. L. 95-504, Secs.
31(b), 32, 92 Stat. 1732.
49 App.:1551(b)(1)(E). Aug. 23, 1958, Pub. L. 85-726, 72 Stat.
731, Sec. 1601(b)(1)(E); added Oct.
4, 1984, Pub. L. 98-443, Sec. 3(e),
98 Stat. 1704.
40109(b).............................. 49 App.:1348(e).
49 App.:1551(b)(1)(E).
49 App.:1655(c)(1). Oct. 15, 1966, Pub. L. 89-670, Sec.
6(c)(1), 80 Stat. 938; Jan. 12, 1983,
Pub. L. 97-449, Sec. 7(b), 96 Stat.
2444.
40109(c).............................. 49 App.:1386(b)(1). Aug. 23, 1958, Pub. L. 85-726, Sec.
416(b)(1), 72 Stat. 771; restated Oct.
24, 1978, Pub. L. 95-504, Sec. 31(a),
92 Stat. 1731.
49 App.:1551(b)(1)(E).
40109(d).............................. 49 App.:1386(b)(2) (less words
between 6th and 7th commas,
proviso).
49 App.:1551(b)(1)(E).
40109(e).............................. 49 App.:1386(b)(2) (proviso).
49 App.:1551(b)(1)(E).
40109(f).............................. 49 App.:1386(b)(4), (5), (6)
(less words between 5th and
6th commas).
49 App.:1551(b)(1)(E).
40109(g).............................. 49 App.:1386(b)(7). Aug. 23, 1958, Pub. L. 85-726, 72 Stat.
731, Sec. 416(b)(7); added Feb. 15,
1980, Pub. L. 96-192, Sec. 13, 94
Stat. 39.
49 App.:1551(b)(1)(E).
40109(h).............................. 49 App.:1386(b)(2) (words
between 6th and 7th commas),
(6) (words between 5th and 6th
commas).
49 App.:1551(b)(1)(E).
----------------------------------------------------------------------------------------------------------------
In this section, the words ``requirements of'', ``term'', and ``or
limitation'' are omitted as surplus. The word ``rule'' is omitted as
being synonymous with ``regulation''. The word ``unreasonable'' is
substituted for ``undue'' for consistency in the revised title and with
other titles of the United States Code.
In subsection (a)(1), before clause (A), the words ``by order'' are
omitted as unnecessary because of 5:ch. 5, subch. II. The word
``exempt'' is substituted for ``relieve'' for consistency in this
section.
In subsection (a)(2), the words ``that the Secretary decides'' are
added for clarity.
In subsections (b), (c), and (f)(1)(B), the words ``from time to
time'' are omitted as unnecessary.
In subsection (b), the word ``Administrator'' in section 307(e) of
the Federal Aviation Act of 1958 (Public Law 85-726, 72 Stat. 750) is
retained on authority of 49:106(g).
In subsection (d), before clause (1), the words ``to the extent''
are omitted as surplus.
In subsection (f)(1), before clause (A), the words ``Subject to
paragraph (5) of this subsection'' and ``in air transportation'' are
omitted as surplus. The words ``the Secretary may exempt'' are
substituted for ``as may be prescribed in regulations promulgated by the
Board'' for clarity and to eliminate unnecessary words. In clause
(A)(ii), the word ``capacity'' is omitted as surplus. In clause (B), the
word ``reasonable'' is omitted as surplus. The word ``prescribes'' is
substituted for ``adopt'' for consistency in the revised title and with
other titles of the Code. The words ``in the public interest'' are
omitted as surplus.
In subsection (f)(2), the words ``by regulation'' are omitted as
surplus. The word ``payload'' is substituted for ``property'' for
consistency in this subsection. The words ``specified in this
paragraph'' are omitted as surplus.
In subsection (f)(3), the words ``the State of'' are omitted as
surplus.
In subsection (f)(3)(A), the words ``under this subsection'' are
substituted for ``from section 1371 of this title or any other
requirement of this chapter'', the words ``2 places'' are substituted
for ``points both of which are'', and the word ``between'' is
substituted for ``one of which is in . . . and the other in'', to
eliminate unnecessary words.
In subsection (f)(3)(B), the word ``only'' is added for clarity. The
words ``promulgated by the Board'', ``by such air carrier to points
within such State'', and ``but not limited to'' are omitted as surplus.
The word ``Alaska'' is substituted for ``such State'' for clarity. The
cross-reference is to section 41732(b)(1)(B) to correct an error in the
source provisions. The cross-reference in 49 App.:1386(b)(6) to 49
App.:1389(c)(2) should have been to 49 App.:1389(f)(2). This error was
not corrected when 49 App.:1389 was restated by section 202(b) of the
Airport and Airway Safety and Capacity Expansion Act of 1987 (Public Law
100-223, 101 Stat. 1508). The comparable provision is 49
App.:1389(k)(1)(A)(ii), restated as section 41732(b)(1)(B).
In subsection (g), the word ``exemption'' is substituted for
``authorization'' and ``authority'' for clarity and consistency.
In subsection (g)(1), before clause (A), the words ``required'', ``a
period'', and ``to the extent necessary'' are omitted as surplus. The
word ``mail'' is omitted as being included in ``cargo''. In clause (B),
before subclause (i), the words ``for example'' are omitted as surplus.
In subsection (g)(3), the words ``a period'' are omitted as surplus.
In subsection (h), the words ``The Secretary may act under
subsections (d) and (f)(3)(B) of this section'' are added because of the
restatement. The word ``notice'' does not appear in 49 App.:1386(b)(6)
(words between 5th and 6th commas) but is made applicable to both of the
restated source provisions for consistency with subchapter II of chapter
5 of title 5, United States Code. The words ``opportunity for a'' are
added for consistency in the revised title.
Pub. L. 104-287
This amends 49:40109(c) to correct an error in the codification
enacted by section 1 of the Act of July 5, 1994 (Public Law 103-272, 108
Stat. 1105), to include in the cross-reference sections enacted after
the cutoff date for the codification of title 49 as enacted by section 1
of the Act (Public Law 103-272, 108 Stat. 745), and to make it easier to
include future sections in the cross-reference by restating it in terms
of chapters.
Amendments
1996--Subsec. (c). Pub. L. 104-287, Sec. 5(65)(B), substituted
``sections 44909 and 46301(b)'' for ``section 46301(b)''.
Pub. L. 104-287, Sec. 5(65)(A), substituted ``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),'' for ``sections 41301-41306, 41308-41310(a),
41501, 41503, 41504, 41506, 41510, 41511, 41701, 41702, 41705-41709,
41711, 41712, and 41731-41742,''.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104-287 effective July 5, 1994, see section
8(1) of Pub. L. 104-287, set out as a note under section 5303 of this
title.
Authority To Grant Exemptions to Government Aircraft
Pub. L. 103-411, Sec. 3(b), Oct. 25, 1994, 108 Stat. 4237, provided
that:
``(1) In general.--The Administrator of the Federal Aviation
Administration may grant an exemption to any unit of Federal, State, or
local government from any requirement of part A of subtitle VII of title
49, United States Code, that would otherwise be applicable to current or
future aircraft of such unit of government as a result of the amendment
made by subsection (a) of this section [amending section 40102 of this
title].
``(2) Requirements.--The Administrator may grant an exemption under
paragraph (1) only if--
``(A) the Administrator finds that granting the exemption is
necessary to prevent an undue economic burden on the unit of
government; and
``(B) the Administrator certifies that the aviation safety
program of the unit of government is effective and appropriate to
ensure safe operations of the type of aircraft operated by the unit
of government.''
Section Referred to in Other Sections
This section is referred to in sections 106, 41505, 41703, 41710,
41733, 41738 of this title; title 39 section 5402.