
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[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. 2
3, 1958, Pub. L. 85-726, Secs.
                                                                          101(3
) (proviso), 307(e), 416(b)(2),
                                                                          72 St
at. 737, 750, 771.
                                        49 App.:1386(b)(3).              Aug. 2
3, 1958, Pub. L. 85-726, 72 Stat.
                                                                          731, 
Sec.  416(b)(3)-(6); added Oct.
                                                                          24, 1
978, Pub. L. 95-504, Secs.
                                                                          31(b)
, 32, 92 Stat. 1732.
                                        49 App.:1551(b)(1)(E).           Aug. 2
3, 1958, Pub. L. 85-726, 72 Stat.
                                                                          731, 
Sec.  1601(b)(1)(E); added Oct.
                                                                          4, 19
84, Pub. L. 98-443, Sec.  3(e),
                                                                          98 St
at. 1704.
40109(b)..............................  49 App.:1348(e).
                                        49 App.:1551(b)(1)(E).
                                        49 App.:1655(c)(1).              Oct. 1
5, 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. 2
3, 1958, Pub. L. 85-726, Sec.
                                                                          416(b
)(1), 72 Stat. 771; restated Oct.
                                                                          24, 1
978, Pub. L. 95-504, Sec.  31(a),
                                                                          92 St
at. 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. 2
3, 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.
