49 U.S.C. § 41108 — Applications for certificates

Page 1122 TITLE 49—TRANSPORTATION § 41107 § 41107. Transportation of mail When the United States Postal Service finds that the needs of the Postal Service require the transportation of mail by aircraft in foreign air transportation or between places in Alaska, in addition to the transportation of mail author- ized under certificates in effect, the Postal Serv- ice shall certify that finding to the Secretary of Transportation with a statement about the addi- tional transportation and facilities necessary to provide the additional transportation. A copy of each certification and statement shall be posted for at least 20 days in the office of the Sec- retary. After notice and an opportunity for a hearing, the Secretary shall issue a new certifi- cate under section 41102 of this title, or amend or modify an existing certificate under section 41110(a)(2)(A) of this title, to provide the addi- tional transportation and facilities if the Sec- retary finds the additional transportation is re- quired by the public convenience and necessity. (Pub. L. 103–272, §§ 1(e), 4(k)(1), July 5, 1994, 108 Stat. 1121, 1370; Pub. L. 106–31, title VI, § 6003, May 21, 1999, 113 Stat. 113.) HISTORICAL AND REVISION NOTES PUB. L. 103–272, § 1(e) Revised Section Source (U.S. Code) Source (Statutes at Large) 41107 .......... 49 App.:1371(m). Aug. 23, 1958, Pub. L. 85–726, § 401(m), 72 Stat. 757. 49 App.:1551(a)(4)(A) (related to 49 App.:1371(m)), (b)(1)(E). Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 1601(a)(4)(A) (related to § 401(m)), (b)(1)(E); added Oct. 4, 1984, Pub. L. 98–443, § 3(c), (e), 98 Stat. 1703, 1704. The words ‘‘from time to time’’ are omitted as sur- plus. The words ‘‘United States Postal Service’’ and ‘‘Postal Service’’ are substituted for ‘‘Postmaster Gen- eral’’ in section 401(m) of the Federal Aviation Act of 1958 (Public Law 85–726, 72 Stat. 757) because of sections 4(a) and 6(o) of the Postal Reorganization Act (Public Law 91–375, 84 Stat. 773, 783). The words ‘‘in foreign air transportation or between places in Alaska’’ are sub- stituted for ‘‘between any points within the United States or between the United States and foreign coun- tries’’ for consistency in the revised title and because 49 App.:1551(a)(4)(A) provides that 49 App.:1371(m) no longer applies to interstate or overseas air transpor- tation (except transportation of mail between 2 places in Alaska). In addition, Congress did not intend to maintain the regulation of domestic air transportation of mail. See section 40102(a) of the revised title defining ‘‘air transportation’’ to mean interstate or foreign air transportation or the transportation of mail by air- craft. The word ‘‘currently’’ is omitted as surplus. The words ‘‘opportunity for a’’ are added for consistency in the revised title and with other titles of the United States Code. The words ‘‘or certificates’’ are omitted as surplus because of 1:1. The word ‘‘modify’’ is added for consistency in the revised title. PUB. L. 103–272, § 4(k) Revised Section Source (U.S. Code) Source (Statutes at Large) 41107 .......... 49 App.:1551(a)(8). Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 1601(a)(8); added Oct. 4, 1984, Pub. L. 98–443, § 3(c), 98 Stat. 1704; Sept. 30, 1988, Pub. L. 100–457, § 346 (related to § 1601(a)(8) of Federal Aviation Act of 1958), 102 Stat. 2155. PUB. L. 103–272, § 4(k)—Continued Revised Section Source (U.S. Code) Source (Statutes at Large) 49 App.:1551(b)(3). Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 1601(b)(3); added Oct. 4, 1984, Pub. L. 98–443, § 3(f), 98 Stat. 1704; Sept. 30, 1988, Pub. L. 100–457, § 346 (related to § 1601(b)(3) of Federal Aviation Act of 1958), 102 Stat. 2155. Section 4(k) reflects amendments to the restatement required by section 1601(a)(8) of the Federal Aviation Act of 1958 (Public Law 85–726, 72 Stat. 731), as added by section 3(c) of the Civil Aeronautics Board Sunset Act of 1984 (Public Law 98–443, 98 Stat. 1704), and section 1601(b)(3) of the Federal Aviation Act of 1958 (Public Law 85–726, 72 Stat. 731), as added by section 3(f) of the Civil Aeronautics Board Sunset Act of 1984 (Public Law 98–443, 98 Stat. 1704). Section 1601(a)(8) provides that the authority under 49 App.:1371(l) and (m) and 1375(b)–(d) as those sections relate to transportation of mail by aircraft between places in Alaska (restated in sections 41107 and 41901–41903 of the revised title) ceases on Jan- uary 1, 1999. Section 1601(b)(3) transfers the authority for prescribing rates for transportation of mail between places in Alaska from the Secretary of Transportation to the Postal Service effective January 1, 1999. Editorial Notes AMENDMENTS 1999—Pub. L. 106–31 repealed Pub. L. 103–272, § 4(k). See 1994 Amendment note below. 1994—Pub. L. 103–272, § 4(k)(1), which directed the amendment of this section by substituting ‘‘foreign air transportation,’’ for ‘‘foreign air transportation or be- tween places in Alaska,’’, effective Jan. 1, 1999, was re- pealed by Pub. L. 106–31, § 6003, effective Dec. 31, 1998. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Pub. L. 106–31, title VI, § 6003, May 21, 1999, 113 Stat. 113, provided that the amendment made by section 6003 is effective Dec. 31, 1998. EFFECTIVE DATE OF 1994 AMENDMENT Pub. L. 103–272, § 4(k), July 5, 1994, 108 Stat. 1370, which provided that the amendments made by that sec- tion (amending this section and sections 41901, 41902, and 41903 of this title) were effective Jan. 1, 1999, was repealed by Pub. L. 106–31, title VI, § 6003, May 21, 1999, 113 Stat. 113, effective Dec. 31, 1998. § 41108. Applications for certificates (a) FORM, CONTENTS, AND PROOF OF SERVICE.— To be issued a certificate of public convenience and necessity under section 41102 of this title, a citizen of the United States must apply to the Secretary of Transportation. The application must— (1) be in the form and contain information required by regulations of the Secretary; and (2) be accompanied by proof of service on in- terested persons as required by regulations of the Secretary and on each community that may be affected by the issuance of the certifi- cate. (b) NOTICE, RESPONSE, AND ACTIONS ON APPLI- CATIONS.—(1) When an application is filed, the Secretary shall post a notice of the application in the office of the Secretary and give notice of the application to other persons as required by Page 1123 TITLE 49—TRANSPORTATION § 41108 regulations of the Secretary. An interested per- son may file a response with the Secretary op- posing or supporting the issuance of the certifi- cate. Not later than 90 days after the application is filed, the Secretary shall— (A) provide an opportunity for a public hear- ing on the application; (B) begin the procedure under section 41111 of this title; or (C) dismiss the application on its merits. (2) An order of dismissal issued by the Sec- retary under paragraph (1)(C) of this subsection is a final order and may be reviewed judicially under section 46110 of this title. (3) If the Secretary provides an opportunity for a hearing under paragraph (1)(A) of this sub- section, an initial or recommended decision shall be issued not later than 150 days after the date the Secretary provides the opportunity. The Secretary shall issue a final order on the application not later than 90 days after the deci- sion is issued. However, if the Secretary does not act within the 90-day period, the initial or recommended decision on an application to pro- vide— (A) interstate air transportation is a final order and may be reviewed judicially under section 46110 of this title; and (B) foreign air transportation shall be sub- mitted to the President under section 41307 of this title. (4) If the Secretary acts under paragraph (1)(B) of this subsection, the Secretary shall issue a final order on the application not later than 180 days after beginning the procedure on the appli- cation. (5) If a citizen applying for a certificate does not meet the procedural schedule adopted by the Secretary in a proceeding, the Secretary may extend the period for acting under paragraphs (3) and (4) of this subsection by a period equal to the period of delay caused by the citizen. In ad- dition to an extension under this paragraph, an initial or recommended decision under para- graph (3) of this subsection may be delayed for not more than 30 days in extraordinary cir- cumstances. (c) PROOF REQUIREMENTS.—(1) A citizen apply- ing for a certificate must prove that the citizen is fit, willing, and able to provide the transpor- tation referred to in section 41102 of this title and to comply with this part. (2) A person opposing a citizen applying for a certificate must prove that the transportation referred to in section 41102(b)(2) of this title is not consistent with the public convenience and necessity. The transportation is deemed to be consistent with the public convenience and ne- cessity unless the Secretary finds, by a prepon- derance of the evidence, that the transportation is not consistent with the public convenience and necessity. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1121.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 41108(a) ...... 49 App.:1371(b). Aug. 23, 1958, Pub. L. 85–726, § 401(b), 72 Stat. 754; Oct. 24, 1978, Pub. L. 95–504, § 6, 92 Stat. 1710. HISTORICAL AND REVISION NOTES—CONTINUED Revised Section Source (U.S. Code) Source (Statutes at Large) 49 App.:1551(b)(1)(E). Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 1601(b)(1)(E); added Oct. 4, 1984, Pub. L. 98–443, § 3(e), 98 Stat. 1704. 41108(b) ...... 49 App.:1371(c). Aug. 23, 1958, Pub. L. 85–726, 401(c), 72 Stat. 754; re- stated Oct. 24, 1978, Pub. L. 95–504, § 7(a), 92 Stat. 1711. 49 App.:1551(b)(1)(E). 41108(c) ...... 49 App.:1371(d)(9). Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 401(d)(9); added Oct. 24, 1978, Pub. L. 95–504, § 14, 92 Stat. 1719. 49 App.:1551(b)(1)(E). In subsection (a), the words ‘‘of public convenience and necessity under section 41102 of this title’’ are added for clarity. In subsection (b)(1), before clause (A), the words ‘‘give due notice thereof to the public by’’ are omitted as sur- plus. The word ‘‘response’’ is substituted for ‘‘protest or memorandum’’ to eliminate unnecessary words. The words ‘‘requested by such application’’ are omitted as surplus. Clause (A) is substituted for 49 App.:1371(c)(1)(A) for clarity and consistency. Clause (B) is substituted for 49 App.:1371(c)(1)(B) to eliminate unnecessary words. In subsection (b)(2), the words ‘‘An order of dismissal issued by the Secretary under paragraph (1)(C) of this subsection’’ are substituted for ‘‘Any order of dismissal of an application issued by the Board without setting such application for a hearing or beginning to make a determination with respect to such application under such simplified procedures’’ to eliminate unnecessary words. In subsection (b)(3), before clause (A), the words ‘‘If the Secretary provides an opportunity for a hearing under paragraph (1)(A) of this subsection’’ are sub- stituted for ‘‘If the Board determines that any applica- tion should be set for a public hearing under clause (A) of the second sentence of paragraph (1) of this sub- section’’ to eliminate unnecessary words. The words ‘‘provides the opportunity’’ are substituted for ‘‘of such determination’’ for clarity. The words ‘‘for a certifi- cate’’ are omitted as surplus. The words ‘‘to provide’’ are substituted for ‘‘to engage in’’ for consistency in the revised title. In subsection (b)(4), the words ‘‘If the Secretary acts under paragraph (1)(B) of this subsection’’ are added for clarity. The words ‘‘after beginning the procedure on the application’’ are substituted for ‘‘after the Board begins to make a determination with respect to an ap- plication under the simplified procedures established by the Board in regulations pursuant to subsection (p) of this section’’ to eliminate unnecessary words. In subsection (b)(5), the word ‘‘particular’’ is omitted as surplus. The words ‘‘by order’’ are omitted as surplus because of 5:ch. 5, subch. II. In subsection (c)(1), the words ‘‘In any determination as to whether or not’’ are omitted as surplus. The word ‘‘provide’’ is substituted for ‘‘perform’’ for consistency in the revised title. The word ‘‘properly’’ is omitted as surplus. The word ‘‘comply’’ is substituted for ‘‘con- form’’ for consistency in the revised title. In subsection (c)(2), the words ‘‘In any determination as to whether’’ are omitted as surplus. The reference is to section 41102(b)(2), rather than 41102(a), of the re- vised title to reflect the termination of authority under 49 App.:1551(a)(1)(A). Statutory Notes and Related Subsidiaries PART 135 AIR CARRIER CERTIFICATE BACKLOG Pub. L. 118–63, title VIII, § 818, May 16, 2024, 138 Stat. 1328, provided that: ‘‘(a) IN GENERAL.—The Administrator [of the Federal Aviation Administration] shall take such actions as may be necessary to achieve the goal of reducing the Page 1124 TITLE 49—TRANSPORTATION § 41109 backlog of air carrier certificate applications under part 135 of title 14, Code of Federal Regulations, to— ‘‘(1) not later than 1 year after the date of enact- ment of this Act [May 16, 2024], maintain an average application acceptance or rejection time of less than 60 days; and ‘‘(2) not later than 2 years after the date of enact- ment of this Act, maintain an average application ac- ceptance or rejection time of less than 30 days. ‘‘(b) MEASURES.—In meeting the goal under sub- section (a), the Administrator may— ‘‘(1) assign, as appropriate, additional personnel or support staff, including on a temporary basis, to re- view, adjudicate, and approve applications; ‘‘(2) improve and expand promotion of existing ap- plicant resources which could improve the quality of applications submitted to decrease the need for Ad- ministration applicant coordination and communica- tions; and ‘‘(3) take into consideration any third-party entity that assisted in the preparation of an application for an air carrier certificate under part 135 of title 14, Code of Federal Regulations. ‘‘(c) CONGRESSIONAL BRIEFING.—Beginning 6 months after the date of enactment of this Act, and not less than every 6 months thereafter until the Administrator complies with the requirements under subsection (a)(2), the Administrator shall provide a briefing to [the] ap- propriate committees of Congress [Committee on Com- merce, Science, and Transportation of the Senate and Committee on Transportation and Infrastructure of the House of Representatives] on the status of the backlog of air carrier certificate applications under part 135 of title 14, Code of Federal Regulations, [and] any meas- ures the Administrator has put in place under sub- section (b).’’ § 41109. Terms of certificates (a) GENERAL.—(1) Each certificate issued under section 41102 of this title shall specify the type of transportation to be provided. (2) The Secretary of Transportation— (A) may prescribe terms for providing air transportation under the certificate that the Secretary finds may be required in the public interest; but (B) may not prescribe a term preventing an air carrier from adding or changing schedules, equipment, accommodations, and facilities for providing the authorized transportation to satisfy business development and public de- mand. (3) A certificate issued under section 41102 of this title to provide foreign air transportation shall specify the places between which the air carrier is authorized to provide the transpor- tation only to the extent the Secretary con- siders practicable and otherwise only shall specify each general route to be followed. The Secretary shall authorize an air carrier holding a certificate to provide foreign air transpor- tation to handle and transport mail of countries other than the United States. (4) A certificate issued under section 41102 of this title to provide foreign charter air transpor- tation shall specify the places between which the air carrier is authorized to provide the transportation only to the extent the Secretary considers practicable and otherwise only shall specify each geographical area in which, or be- tween which, the transportation may be pro- vided. (5) As prescribed by regulation by the Sec- retary, an air carrier other than a charter air carrier may provide charter trips or other spe- cial services without regard to the places named or type of transportation specified in its certifi- cate. (b) MODIFYING TERMS.—(1) An air carrier may file with the Secretary an application to modify any term of its certificate issued under section 41102 of this title to provide interstate or foreign air transportation. Not later than 60 days after an application is filed, the Secretary shall— (A) provide the carrier an opportunity for an oral evidentiary hearing on the record; or (B) begin to consider the application under section 41111 of this title. (2) The Secretary shall modify each term the Secretary finds to be inconsistent with the cri- teria under section 40101(a) and (b) of this title. (3) An application under this subsection may not be dismissed under section 41108(b)(1)(C) of this title. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1123; Pub. L. 104–287, § 5(70), Oct. 11, 1996, 110 Stat. 3396.) HISTORICAL AND REVISION NOTES PUB. L. 103–272 Revised Section Source (U.S. Code) Source (Statutes at Large) 41109(a)(1) .. 49 App.:1371(e)(1) (words before semicolon). Aug. 23, 1958, Pub. L. 85–726, § 401(e)(1), 72 Stat. 755; re- stated July 10, 1962, Pub. L. 87–528, § 3, 76 Stat. 143. 49 App.:1551(a)(1)(C). Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 1601(a)(1)(C); added Oct. 24, 1978, Pub. L. 95–504, § 40(a), 92 Stat. 1744. 41109(a)(2) .. 49 App.:1371(e)(1) (words after semi- colon). 49 App.:1371(e)(4). Aug. 23, 1958, Pub. L. 85–726, § 401(e)(3), (4), 72 Stat. 755; restated July 10, 1962, Pub. L. 87–528, § 3, 76 Stat. 143; Oct. 24, 1978, Pub. L. 95–504, § 15(a), (b), 92 Stat. 1719. 49 App.:1551(b)(1)(E). Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 1601(b)(1)(E); added Oct. 4, 1984, Pub. L. 98–443, § 3(e), 98 Stat. 1704. 41109(a)(3) .. 49 App.:1371(e)(2). Aug. 23, 1958, Pub. L. 85–726, § 401(e)(2), 72 Stat. 755; re- stated July 10, 1962, Pub. L. 87–528, § 3, 76 Stat. 143; Feb. 15, 1980, Pub. L. 96–192, § 5, 94 Stat. 37. 49 App.:1551(b)(1)(E). 41109(a)(4) .. 49 App.:1371(e)(3). 49 App.:1551(b)(1)(E). 41109(b) ...... 49 App.:1371(e)(7)(B). Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 401(e)(7)(B); added Oct. 24, 1978, Pub. L. 95–504, § 16, 92 Stat. 1720. 49 App.:1551(b)(1)(E). In subsection (a)(1), the text of 49 App.:1371(e)(1) (words before semicolon related to terminal and inter- mediate points) is omitted as obsolete because of 49 App.:1551(a)(1)(C) and because interstate and overseas air transportation is no longer regulated. The words ‘‘type of’’ are added for clarity. The word ‘‘provided’’ is substituted for ‘‘rendered’’ for consistency in the re- vised title. In subsection (a)(2), the words before clause (A) are added for clarity. Clause (A) is substituted for 49 App.:1371(e)(1) (words after semicolon) for clarity and consistency and to eliminate unnecessary words. In clause (B), the words ‘‘may not prescribe a term pre- venting’’ are substituted for ‘‘No term, condition, or limitation of a certificate shall restrict the right’’ for clarity and consistency. The word ‘‘providing’’ is sub- stituted for ‘‘performing’’ for consistency in the revised title. In subsection (a)(3) and (4), the word ‘‘places’’ is sub- stituted for ‘‘points’’, and the word ‘‘provide’’ is sub-