
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document affected by Public Law 106-181 Section 105(a),]
[Document affected by Public Law 106-181 Section 135(a),]
[Document affected by Public Law 106-181 Section 151,]
[Document affected by Public Law 106-181 Section 155(c)]
[Document affected by Public Law 106-181 Section 155(a)]
[CITE: 49USC40117]

 
                        TITLE 49--TRANSPORTATION
 
                     SUBTITLE VII--AVIATION PROGRAMS
 
                     PART A--AIR COMMERCE AND SAFETY
 
                           subpart i--general
 
                     CHAPTER 401--GENERAL PROVISIONS
 
Sec. 40117. Passenger facility fees

    (a) Definitions.--In this section--
        (1) ``airport'', ``commercial service airport'', and ``public 
    agency'' have the same meanings given those terms in section 47102 
    of this title.
        (2) ``eligible agency'' means a public agency that controls a 
    commercial service airport.
        (3) ``eligible airport-related project'' means a project--
            (A) for airport development or airport planning under 
        subchapter I of chapter 471 of this title;
            (B) for terminal development described in section 47110(d) 
        of this title;
            (C) for airport noise capability planning under section 
        47505 of this title;
            (D) to carry out noise compatibility measures eligible for 
        assistance under section 47504 of this title, whether or not a 
        program for those measures has been approved under section 
        47504; and
            (E) for constructing gates and related areas at which 
        passengers board or exit aircraft.

        (4) ``passenger facility fee'' means a fee imposed under this 
    section.
        (5) ``passenger facility revenue'' means revenue derived from a 
    passenger facility fee.

    (b) General Authority.--(1) The Secretary of Transportation may 
authorize under this section an eligible agency to impose a passenger 
facility fee of $1, $2, or $3 on each paying passenger of an air carrier 
or foreign air carrier boarding an aircraft at an airport the agency 
controls to finance an eligible airport-related project, including 
making payments for debt service on indebtedness incurred to carry out 
the project, to be carried out in connection with the airport or any 
other airport the agency controls.
    (2) A State, political subdivision of a State, or authority of a 
State or political subdivision that is not the eligible agency may not 
regulate or prohibit the imposition or collection of a passenger 
facility fee or the use of the passenger facility revenue.
    (3) A passenger facility fee may be imposed on a passenger of an air 
carrier or foreign air carrier originating or connecting at the 
commercial service airport that the agency controls.
    (c) Applications.--(1) An eligible agency must submit to the 
Secretary an application for authority to impose a passenger facility 
fee. The application shall contain information and be in the form that 
the Secretary may require by regulation.
    (2) Before submitting an application, the eligible agency must 
provide reasonable notice to, and an opportunity for consultation with, 
air carriers and foreign air carriers operating at the airport. The 
Secretary shall prescribe regulations that define reasonable notice and 
contain at least the following requirements:
        (A) The agency must provide written notice of individual 
    projects being considered for financing by a passenger facility fee 
    and the date and location of a meeting to present the projects to 
    air carriers and foreign air carriers operating at the airport.
        (B) Not later than 30 days after written notice is provided 
    under subparagraph (A) of this paragraph, each air carrier and 
    foreign air carrier operating at the airport must provide to the 
    agency written notice of receipt of the notice. Failure of a carrier 
    to provide the notice may be deemed certification of agreement with 
    the project by the carrier under subparagraph (D) of this paragraph.
        (C) Not later than 45 days after written notice is provided 
    under subparagraph (A) of this paragraph, the agency must conduct a 
    meeting to provide air carriers and foreign air carriers with 
    descriptions of projects and justifications and a detailed financial 
    plan for projects.
        (D) Not later than 30 days after the meeting, each air carrier 
    and foreign air carrier must provide to the agency certification of 
    agreement or disagreement with projects (or total plan for the 
    projects). Failure to provide the certification is deemed 
    certification of agreement with the project by the carrier. A 
    certification of disagreement is void if it does not contain the 
    reasons for the disagreement.

    (3) After receiving an application, the Secretary shall provide 
notice and an opportunity to air carriers, foreign air carriers, and 
other interested persons to comment on the application. The Secretary 
shall make a final decision on the application not later than 120 days 
after receiving it.
    (d) Limitations on Approving Applications.--The Secretary may 
approve an application that an eligible agency has submitted under 
subsection (c) of this section to finance a specific project only if the 
Secretary finds, based on the application, that--
        (1) the amount and duration of the proposed passenger facility 
    fee will result in revenue (including interest and other returns on 
    the revenue) that is not more than the amount necessary to finance 
    the specific project;
        (2) each project is an eligible airport-related project that 
    will--
            (A) preserve or enhance capacity, safety, or security of the 
        national air transportation system;
            (B) reduce noise resulting from an airport that is part of 
        the system; or
            (C) provide an opportunity for enhanced competition between 
        or among air carriers and foreign air carriers; and

        (3) the application includes adequate justification for each of 
    the specific projects.

    (e) Limitations on Imposing Fees.--(1) An eligible agency may impose 
a passenger facility fee only--
        (A) if the Secretary approves an application that the 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 fee may not be collected from a passenger--
        (A) for more than 2 boardings on a one-way trip or a trip in 
    each direction of a round trip;
        (B) for the boarding to an eligible place under subchapter II of 
    chapter 417 of this title for which essential air service 
    compensation is paid under subchapter II; and
        (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.

    (f) Limitations on Contracts, Leases, and Use Agreements.--(1) A 
contract between an air carrier or foreign air carrier and an eligible 
agency made at any time may not impair the authority of the agency to 
impose a passenger facility fee or to use the passenger facility revenue 
as provided in this section.
    (2) A project financed with a passenger facility fee may not be 
subject to an exclusive long-term lease or use agreement of an air 
carrier or foreign air carrier, as defined by regulations of the 
Secretary.
    (3) A lease or use agreement of an air carrier or foreign air 
carrier related to a project whose construction or expansion was 
financed with a passenger facility fee may not restrict the eligible 
agency from financing, developing, or assigning new capacity at the 
airport with passenger facility revenue.
    (g) Treatment of Revenue.--(1) Passenger facility revenue is not 
airport revenue for purposes of establishing a price under a contract 
between an eligible agency and an air carrier or foreign air carrier.
    (2) An eligible agency may not include in its price base the part of 
the capital costs of a project paid for by using passenger facility 
revenue to establish a price under a contract between the agency and an 
air carrier or foreign air carrier.
    (3) For a project for terminal development, gates and related areas, 
or a facility occupied or used by at least one air carrier or foreign 
air carrier on an exclusive or preferential basis, a price 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 fee 
constitute a trust fund that is held by the air carrier or agent for the 
beneficial interest of the eligible agency imposing the fee. Such 
carrier or agent holds neither legal nor equitable interest in the 
passenger facility revenues except for any handling fee or retention of 
interest collected on unremitted proceeds as may be allowed by the 
Secretary.
    (h) Compliance.--(1) As necessary to ensure compliance with this 
section, the Secretary shall prescribe regulations requiring 
recordkeeping and auditing of accounts maintained by an air carrier or 
foreign air carrier and its agent collecting a passenger facility fee 
and by the eligible agency imposing the fee.
    (2) The Secretary periodically shall audit and review the use by an 
eligible agency of passenger facility revenue. After review and a public 
hearing, the Secretary may end any part of the authority of the agency 
to impose a passenger facility fee to the 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 fee is excessive or that passenger facility 
revenue is not being used as provided in this section.
    (i) Regulations.--The Secretary shall prescribe regulations 
necessary to carry out this section. The regulations--
        (1) may prescribe the time and form by which a passenger 
    facility fee takes effect; and
        (2) shall--
            (A) require an air carrier or foreign air carrier and its 
        agent to collect a passenger facility fee that an eligible 
        agency imposes under this section;
            (B) establish procedures for handling and remitting money 
        collected;
            (C) ensure that the money, less a uniform amount the 
        Secretary determines reflects the average necessary and 
        reasonable expenses (net of interest accruing to the carrier and 
        agent after collection and before remittance) incurred in 
        collecting and handling the fee, is paid promptly to the 
        eligible agency for which they are collected; and
            (D) require that the amount collected for any air 
        transportation be noted on the ticket for that air 
        transportation.

(Pub. L. 103-272, Sec. 1(e), July 5, 1994, 108 Stat. 1113; Pub. L. 103-
305, title II, Secs. 203, 204(a)(1), (b), Aug. 23, 1994, 108 Stat. 1582, 
1583; Pub. L. 104-264, title I, Sec. 142(b)(2), title XII, Sec. 1202, 
Oct. 9, 1996, 110 Stat. 3221, 3280; Pub. L. 104-287, Sec. 5(67), Oct. 
11, 1996, 110 Stat. 3395.)

                                          Historical and Revision Notes
                                                 Pub. L. 103-272
-------------------------------------------------------------------------------
---------------------------------
           Revised  Section                    Source (U.S. Code)              
 Source (Statutes at Large)
-------------------------------------------------------------------------------
---------------------------------
40117(a)(1)...........................  49 App.:1513(e) (15)(A), (B),    Aug. 2
3, 1958, Pub. L. 85-726, 72 Stat.
                                         (D).                             731, 
Sec.  1113(e)(1)-(3), (5)-(15);
                                                                          added
 Nov. 5, 1990, Pub. L. 101-508,
                                                                          Sec. 
 9110(2), 104 Stat. 1388-357.
40117(a)(2)...........................  (no source).
40117(a)(3)...........................  49 App.:1513(e) (15)(C).
40117(a)(4), (5)......................  (no source).
40117(b)(1)...........................  49 App.:1513(e)(1).
40117(b)(2)...........................  49 App.:1513(e)(8) (1st
                                         sentence).
40117(b)(3)...........................  49 App.:1513(e)(6) (1st
                                         sentence).
40117(c)(1), (2)......................  49 App.:1513(e) (11)(A)-(C).
40117(c)(3)...........................  49 App.:1513(e) (11)(D), (E)
                                         (last sentence).
40117(d)..............................  49 App.:1513(e)(2), (5).
40117(e) (1)(A).......................  49 App.:1513(e) (11)(E) (1st
                                         sentence).
40117(e) (1)(B).......................  49 App.:1513(e)(13).
40117(e) (2)(A).......................  49 App.:1513(e)(6) (last
                                         sentence).
40117(e) (2)(B).......................  49 App.:1513(e)(3).
40117(e) (2)(C).......................  49 App.:1513(e)(4).              Aug. 2
3, 1958, Pub. L. 85-726, 72 Stat.
                                                                          731, 
Sec.  1113(e)(4); added Nov. 5,
                                                                          1990,
 Pub. L. 101-508, Sec.  9110(2),
                                                                          104 S
tat. 1388-357; Oct. 31, 1992,
                                                                          Pub. 
L. 102-581, Sec.  105, 106 Stat.
                                                                          4877.
40117(f)(1)...........................  49 App.:1513(e)(8) (last
                                         sentence).
40117(f)(2), (3)......................  49 App.:1513(e)(9).
40117(g)..............................  49 App.:1513(e)(7).
40117(h)..............................  49 App.:1513(e)(12).
40117(i)..............................  49 App.:1513(e)(10), (14).
-------------------------------------------------------------------------------
---------------------------------

    In subsection (a), before clause (1), the text of 49 
App.:1513(e)(15)(A) is omitted for clarity and because the terms ``air 
carrier'' and ``foreign air carrier'' are used the first time they 
appear in each subsection. The text of 49 App.:1513(e)(15)(D) is omitted 
because the complete name of the Secretary of Transportation is used the 
first time the term appears in this section. Clauses (2), (4), and (5) 
are added to avoid repeating the source provisions throughout this 
section. In clause (3)(D), the words ``without regard to'' are omitted 
as surplus.
    In subsection (b)(1), the words ``bonds and other'' are omitted as 
surplus.
    In subsection (b)(2), the word ``limit'' is omitted as being 
included in ``regulate''.
    In subsection (d), before clause (1), the text of 49 App.:1513(e)(5) 
is omitted as executed. The words ``approve an application that an 
eligible agency has submitted under subsection (c) of this section'' are 
substituted for ``grant a public agency which controls a commercial 
service airport authority to impose a fee under this subsection'' for 
clarity.
    In subsection (e)(1)(B), the words ``and conditions'' are omitted as 
being included in ``terms''.
    Subsection (e)(2)(A) is substituted for 49 App.:1513(e)(6) (last 
sentence) to eliminate unnecessary words.
    In subsection (e)(2)(B), the words ``a public agency which controls 
any other airport'', ``If a passenger of an air carrier is being 
provided air service'', and ``with respect to such air service'' are 
omitted as surplus.
    In subsection (f)(3), the words ``financed with'' are substituted 
for ``carried out through the use of'' for consistency in this section 
and to eliminate unnecessary words.
    In subsection (g), the word ``price'' is substituted for ``rate, 
fee, or charge'' and ``rates, fees, and charges'' to eliminate 
unnecessary words.
    In subsection (g)(2), the words ``Except as provided by subparagraph 
(C)'' and ``by means of depreciation, amortization, or any other 
method'' are omitted as surplus.
    In subsection (h)(1), the word ``agent'' is substituted for 
``agency'' to correct an error in the source provisions.
    In subsection (i), before clause (1), the words ``Not later than May 
4, 1991'' are omitted as obsolete.


                             Pub. L. 104-287

    This repeals 49:40117(e)(2)(C) to eliminate an executed provision 
and makes conforming amendments.


                               Amendments

    1996--Subsec. (a)(3)(D) to (F). Pub. L. 104-264, Sec. 142(b)(2), 
inserted ``and'' at end of subpar. (D), substituted a period for ``; 
and'' at end of subpar. (E), and struck out subpar. (F) which read as 
follows: ``in addition to projects eligible under subparagraph (A), the 
construction, reconstruction, repair, or improvement of areas of an 
airport used for the operation of aircraft or actions to mitigate the 
environmental effects of such construction, reconstruction, repair, or 
improvement when the construction, reconstruction, repair, improvement, 
or action is necessary for compliance with the responsibilities of the 
operator or owner of the airport under the Americans with Disabilities 
Act of 1990, the Clean Air Act, or the Federal Water Pollution Control 
Act with respect to the airport.''
    Subsec. (e)(2)(B) to (D). Pub. L. 104-287 inserted ``and'' at end of 
subpar. (B), redesignated subpar. (D) as (C), and struck out former 
subpar. (C) which read as follows: ``for a project the Secretary does 
not approve under this section before October 1, 1993, if, during the 
fiscal year ending September 30, 1993, the amount available for 
obligation under subchapter II of chapter 417 of this title is less than 
$38,600,000, except that this clause--
        ``(i) does not apply if the amount available for obligation 
    under subchapter II of chapter 417 of this title is less than 
    $38,600,000 because of sequestration or other general appropriations 
    reductions applied proportionately to appropriations accounts 
    throughout an appropriation law; and
        ``(ii) does not affect the authority of the Secretary to approve 
    the imposition of a fee or the use of revenues, derived from a fee 
    imposed under an approval made under this section, by a public 
    agency that has received an approval to impose a fee under this 
    section before September 30, 1993, regardless of whether the fee is 
    being imposed on September 30, 1993; and''.
    Subsec. (g)(4). Pub. L. 104-264, Sec. 1202, added par. (4).
    1994--Subsec. (a)(3)(F). Pub. L. 103-305, Sec. 203, added subpar. 
(F).
    Subsec. (d)(3). Pub. L. 103-305, Sec. 204(b), added par. (3).
    Subsec. (e)(2)(D). Pub. L. 103-305, Sec. 204(a)(1), added subpar. 
(D).


                    Effective Date of 1996 Amendment

    Except as otherwise specifically provided, amendment by Pub. L. 104-
264 applicable only to fiscal years beginning after Sept. 30, 1996, and 
not to be construed as affecting funds made available for a fiscal year 
ending before Oct. 1, 1996, see section 3 of Pub. L. 104-264, set out as 
a note under section 106 of this title.


      Limitation on Statutory Construction of Subsection (e)(2)(D)

    Section 204(a)(2) of Pub. L. 103-305 provided that: ``The amendment 
made by paragraph (1) [amending this section] shall not be construed as 
requiring any person to refund any fee paid before the date of the 
enactment of this Act [Aug. 23, 1994].''

                  Section Referred to in Other Sections

    This section is referred to in sections 40116, 46301, 46316, 47102, 
47111, 47114, 47134, 47524, 47526, 49108 of this title.
