49 U.S.C. § 40107 — Presidential transfers

Page 1065 TITLE 49—TRANSPORTATION § 40107 (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 sub- section without notice or a hearing. The suspen- sion remains in effect for as long as the Presi- dent decides is necessary to ensure the security of aircraft against unlawful seizure. Notwith- standing section 40105(b) of this title, the au- thority of the President to suspend rights under this subsection is a condition to a certificate of public convenience and necessity, air carrier op- erating certificate, foreign air carrier or foreign aircraft permit, or foreign air carrier operating specification issued by the Secretary of Trans- portation under this part. (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 au- thority under this subsection. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1103.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 40106(a) ...... 49 App.:1348(f). Aug. 23, 1958, Pub. L. 85–726, § 307(f), 72 Stat. 750. 49 App.:1655(c)(1). Oct. 15, 1966, Pub. L. 89–670, § 6(c)(1), 80 Stat. 938; Jan. 12, 1983, Pub. L. 97–449, § 7(b), 96 Stat. 2444. 40106(b) ...... 49 App.:1514. Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 1114; added Aug. 5, 1974, Pub. L. 93–366, § 106, 88 Stat. 413. 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. 49 App.:1655(c)(1). In subsection (a), before clause (1), the words ‘‘armed forces’’ are substituted for ‘‘national defense forces’’ because of 10:101. The words ‘‘section 40103(b)(1) and (2) of this title’’ are substituted for ‘‘this subchapter’’ as being more precise. In clauses (1) and (2), the word ‘‘Ad- ministrator’’ in section 307(f) of the Federal Aviation Act of 1958 (Public Law 85–726, 72 Stat. 750) is retained on authority of 49:106(g). In clause (2), the words ‘‘fully’’ and ‘‘required’’ are omitted as surplus. In subsection (b)(1), the words ‘‘government of a for- eign country’’ are substituted for ‘‘foreign nation’’ for consistency in the revised title and with other titles of the Code. Before clause (A), the words ‘‘in a manner’’ and ‘‘in any way’’ are omitted as surplus. The word ‘‘authority’’ is substituted for ‘‘right’’ as being more precise and for consistency in the revised title. In subsection (b)(2), the words ‘‘deemed to be’’ are omitted because a legal conclusion is being stated. In subsection (b)(3), the words ‘‘by the President’’ are omitted as surplus. Statutory Notes and Related Subsidiaries AIRCRAFT PIRACY The United States is a party to the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague, Dec. 16, 1970, entered into force as to the United States, Oct. 14, 1971, 22 UST 1641. § 40107. Presidential transfers (a) GENERAL AUTHORITY.—The President may transfer to the Administrator of the Federal Aviation Administration a duty, power, activ- ity, or facility of a department, agency, or in- strumentality 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 se- lecting, developing, testing, evaluating, estab- lishing, operating, or maintaining a system, pro- cedure, 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 Sec- retary of Defense a duty, power, activity, or fa- cility of the Administrator. In making the transfer, the President may transfer records, property, officers, and employees of the Admin- istration to the Department of Defense. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1104.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 40107(a) ...... 49 App.:1345. Aug. 23, 1958, Pub. L. 85–726, §§ 302(e), 304, 72 Stat. 746, 749. 49 App.:1655(c)(1). Oct. 15, 1966, Pub. L. 89–670, § 6(c)(1), 80 Stat. 938; Jan. 12, 1983, Pub. L. 97–449, § 7(b), 96 Stat. 2444. 40107(b) ...... 49 App.:1343(c). 49 App.:1655(c)(1). In this section, the words ‘‘functions (including . . . parts of functions)’’ are omitted as included in ‘‘duty, power, activity, or facility’’. In subsection (a), the words ‘‘of a department, agen- cy, or instrumentality of the executive branch of the United States Government’’ are substituted for ‘‘the executive departments or agencies of the Government’’ for consistency in the revised title and with other titles of the United States Code. The word ‘‘unit’’ is sub- stituted for ‘‘organizational entity’’ for clarity. The words ‘‘appropriate’’ and ‘‘civilian and military’’ are omitted as surplus. The words ‘‘officers and employees’’ are substituted for ‘‘personnel’’ for consistency in the revised title and with other titles of the Code. The words ‘‘to the Administrator’’ are added for clarity. In subsection (b), the text of 49 App.:1343(c) (words be- fore proviso) is omitted as obsolete. The words ‘‘Sec- retary of Defense’’ are substituted for ‘‘Department of Defense’’ because of 10:133(a). The words ‘‘prior to en- actment of such proposed legislation’’ are omitted as obsolete because the legislation was not enacted. The word ‘‘appropriate’’ is omitted as surplus. The words ‘‘of the Administration to the Department of Defense’’ are added for clarity. Executive Documents EX. ORD. NO. 10786. TRANSFER OF FUNCTIONS OF THE AIRWAYS MODERNIZATION BOARD TO THE ADMINISTRATOR Ex. Ord. No. 10786, Nov. 1, 1958, 23 F.R. 8573, provided: SECTION 1. All functions (including powers, duties, ac- tivities, and parts of functions) of the Airways Mod- ernization Board, including those of the Chairman thereof, are hereby transferred to the Administrator of the Federal Aviation Agency; and all records, property, facilities, employees, and unexpended balances of ap- propriations, allocations, and other funds of the Air- ways Modernization Board, are hereby transferred to the Federal Aviation Agency [now Federal Aviation Administration]. SEC. 2. Such further measures and dispositions, if any, as the Director of the Bureau of the Budget [now Page 1066 TITLE 49—TRANSPORTATION § 40107 the Office of Management and Budget] shall determine to be necessary in connection with the transfers pro- vided for hereinabove in respect of records, property, facilities, employees, and balances shall be carried out in such manner as he shall direct and by such agencies as he shall designate. SEC. 3. The provisions of this order shall become ef- fective concurrently with the entering upon office as Administrator of the Federal Aviation Agency [now Federal Aviation Administration] of the first person appointed as Administrator. The functions transferred by section 1 hereof may be performed by the Adminis- trator until the effective date of the repeal [Aug. 23, 1958] of the Airways Modernization Act of 1957 [former 49 U.S.C. 1211 et seq.] effected by section 1401(d) of the Federal Aviation Act of 1958 [Pub. L. 85–726]. DWIGHT D. EISENHOWER. EX. ORD. NO. 10797. DELEGATION OF AUTHORITY TO THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET Ex. Ord. No. 10797, Dec. 24, 1958, 23 F.R. 10391, pro- vided: SECTION 1. There is hereby delegated to the Director of the Bureau of the Budget [now the Office of Manage- ment and Budget] all authority vested in the President by the last sentence of section 304 [see 49 U.S.C. 40107(a)], and by sections 1502(a) and 1502(b), of the Fed- eral Aviation Act of 1958 (72 Stat. 749, 810) [Pub. L. 85–726, former 49 U.S.C. 1341 note], relating, respec- tively, (1) to providing in connection with transfers of functions made under other provisions of section 304, (i) for appropriate transfers of records and property, and (ii) for necessary civilian and military personnel to be made available from any office, department, or other agency from which transfers of functions are so made; (2) to determining the employees and property (includ- ing office equipment and official equipment and official records) employed by the Civil Aeronautics Board in the exercise and performance of those powers and du- ties which are vested in and imposed upon it by the Civil Aeronautics Act of 1938, as amended [former 49 U.S.C. 401 et seq.], and which are vested by the Federal Aviation Act of 1958 [see 49 U.S.C. 40101 et seq.] in the Federal Aviation Agency, and to specifying the date or dates upon which the transfers of officers, employees, and property (including office equipment and official records) under section 1502(a) shall occur; and (3) speci- fying the date or dates upon which transfers of unex- pended balances of appropriations under section 1502(b) shall occur. Such further measures and dispositions as the Director of the Bureau of the Budget [now the Of- fice of Management and Budget] shall determine to be necessary in connection with the exercise of the au- thority delegated to him by this section shall be car- ried out in such manner as he shall direct and by such agencies as he shall designate. SEC. 2. Executive Order No. 10731 of October 10, 1957, delegating to the Director of the Bureau of the Budget [now the Office of Management and Budget] the author- ity vested in the President by a certain provision of the Airways Modernization Act of 1957 [former 49 U.S.C. 1211 et seq.], is hereby revoked, such revocation to be- come effective on the date the repeal of that act takes effect under sections 1401(d) [repealing former 49 U.S.C. 1211–1215] and 1505(2) [former 49 U.S.C. 1301 note] of the Federal Aviation Act of 1958 (72 Stat. 806, 811). SEC. 3. Except as otherwise provided in section 2 here- of, the provisions of this order shall become effective immediately. DWIGHT D. EISENHOWER. EX. ORD. NO. 11047. DELEGATION OF AUTHORITY TO SECRETARY OF DEFENSE AND ADMINISTRATOR Ex. Ord. No. 11047, Aug. 28, 1962, 27 F.R. 8665, as amended by Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617, provided: By the virtue of the authority vested in me by sec- tion 301 of title 3 of the United States Code, and as President of the United States, it is ordered as follows: SECTION 1. The Secretary of Defense and the Adminis- trator of the Federal Aviation Administration are here- by designated and empowered to exercise jointly, with- out the approval, ratification, or other action of the President, the authority vested in the President by the first sentence of section 304 of the Federal Aviation Act of 1958 (72 Stat. 749; 49 U.S.C. 1345 (first sentence)) [see 49 U.S.C. 40107(a)] to transfer functions (including, as used in this order, powers, duties, activities, facilities, and parts of functions) as described in that sentence to the extent that the said authority is in respect of transfers from the Department of Defense or any officer or organizational entity thereof to the Administrator of the Federal Aviation Administration of functions re- lating to flight inspection of air navigation facilities. SEC. 2. The Administrator and the Secretary shall ex- ercise the authority hereinabove delegated to them only as they shall deem such exercise to be necessary or desirable in the interest of promoting, in respect of either civil or military aviation or both, safe and effi- cient air navigation and air traffic control. SEC. 3. (a) To the extent necessitated by transfers of functions effected under the provisions of Section 1 of this order: (1) Transfers of balances of appropriations available and necessary to finance and discharge the transferred functions shall be made under the authority of Section 202(b) of the Budget and Accounting Procedures Act of 1950 (31 U.S.C. 581c(b) [see 31 U.S.C. 1531]) as affected by the provisions of section 1(k) of Executive Order No. 10530 of May 10, 1954 [set out as a note under section 301 of Title 3, The President]. (2) Provisions for appropriate transfers of records and property shall be made under the authority of the last sentence of Section 304 of the Federal Aviation Act of 1958 [see 49 U.S.C. 40107(a)] as affected by the provisions of Section 1 of Executive Order No. 10797 of December 24, 1958 [set out above]. (b) Neither this order nor the said Executive Order No. 10797 shall be deemed to require or authorize the transfer of any civilian or military personnel from the Department of Defense to the Federal Aviation Admin- istration, under authority of the said Section 304 [see 49 U.S.C. 40107(a)], in connection with transfers of func- tions effected under the provisions of Section 1 of this order. SEC. 4. (a) In order to facilitate the orderly and time- ly accomplishment of the transfers and other arrange- ments mentioned in Section 3(a) of this order, the Sec- retary of Defense and the Administrator of the Federal Aviation Administration shall transmit to the Director of the Office of Management and Budget, not less than 30 days prior to the execution by them of any order or other transfer instrument in pursuance of the provi- sions of Section 1 of this order, all appropriate informa- tion in respect to any transfers or other arrangements proposed to be made in connection therewith under the provisions of Section 3 hereof, together with copy of the order or other transfer instrument proposed to be executed by them. (b) In connection with any particular action or ac- tions under Section 1 of this order, the Director of the Office of Management and Budget may either waive the requirements of Section 4(a), above, or reduce the 30 day period there prescribed. EX. ORD. NO. 11161. TRANSFER OF FEDERAL AVIATION AGENCY TO DEFENSE DEPARTMENT IN EVENT OF WAR Ex. Ord. No. 11161, eff. July 7, 1964, 29 F.R. 9317, as amended by Ex. Ord. No. 11382, eff. Nov. 28, 1967, 32 F.R. 16247, provided: WHEREAS Section 302(e) of the Federal Aviation Act of 1958 [see 49 U.S.C. 40107(b)] provides, in part, that in the event of war the President by Executive order may transfer to the Department of Defense any functions (including powers, duties, activities, facilities, and parts of functions) of the Federal Aviation Administra- tion; and WHEREAS it appears that the defense of the United States would require the transfer of the Federal Avia- Page 1067 TITLE 49—TRANSPORTATION § 40109 tion Administration to the Department of Defense in the event of war; and WHEREAS if any such transfer were to be made it would be essential to the defense of the United States that the transition be accomplished promptly and with maximum ease and effectiveness; and WHEREAS these objectives require that the relation- ships that would obtain in the event of such a transfer as between the Federal Aviation Administration and the Department of Defense be understood in advance by the two agencies concerned and be developed in nec- essary detail by them in advance of transfer: NOW, THEREFORE, by virtue of the authority vested in me by Section 302(e) (72 Stat. 746; 49 U.S.C. 1343(c)) [see 49 U.S.C. 40107(b)], and as President of the United States and Commander in Chief of the Armed Forces of the United States, it is hereby ordered as follows: SECTION 1. The Secretary of Defense and the Sec- retary of Transportation are hereby directed to prepare and develop plans, procedures, policies, programs, and courses of action in anticipation of the probable trans- fer of the Federal Aviation Administration to the De- partment of Defense in the event of war. Those plans, policies, procedures, programs, and courses of action shall be prepared and developed in conformity with the following-described standards and conditions— (A) The Federal Aviation Administration will func- tion as an adjunct of the Department of Defense with the Federal Aviation Administrator being responsible directly to the Secretary of Defense and subject to his authority, direction, and control to the extent deemed by the Secretary to be necessary for the discharge of his responsibilities as Secretary of Defense. (B) To the extent deemed by the Secretary of Defense to be necessary for the accomplishment of the military mission, he will be empowered to direct the Adminis- trator to place operational elements of the Federal Aviation Administration under the direct operational control of appropriate military commanders. (C) While functioning as an adjunct of the Depart- ment of Defense, the Federal Aviation Administration will remain organizationally intact and the Adminis- trator thereof will retain responsibility for administra- tion of his statutory functions, subject to the author- ity, direction, and control of the Secretary of Defense to the extent deemed by the Secretary to be necessary for the discharge of his responsibilities as Secretary of Defense. SEC. 2. In furtherance of the objectives of the fore- going provisions of this order, the Secretary of Defense and the Secretary of Transportation shall, to the ex- tent permitted by law, make such arrangements and take such actions as they deem necessary to assure— (A) That the functions of the Federal Aviation Ad- ministration are performed during any period of na- tional emergency short of war in a manner that will as- sure that essential national defense requirements will be satisfied during any such period of national emer- gency. (B) Consistent with the provisions of paragraphs (A), (B), and (C) of Section 1 of this order, that any transfer of the Federal Aviation Administration to the Depart- ment of Defense, in the event of war, will be accom- plished smoothly and rapidly and effective operation of the agencies and functions affected by the transfer will be achieved after the transfer. LYNDON B. JOHNSON. § 40108. Training schools (a) AUTHORITY TO OPERATE.—The Adminis- trator of the Federal Aviation Administration may operate schools to train officers and em- ployees of the Administration to carry out du- ties, powers, and activities of the Adminis- trator. (b) ATTENDANCE.—The Administrator may au- thorize officers and employees of other depart- ments, agencies, or instrumentalities of the United States Government, officers and employ- ees of governments of foreign countries, and in- dividuals from the aeronautics industry to at- tend those schools. However, if the attendance of any of those officers, employees, or individ- uals 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 ap- propriation current when the amount is re- ceived, or both. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1104.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 40108(a) ...... 49 App.:1354(d) (1st sentence). Aug. 23, 1958, Pub. L. 85–726, § 313(d), 72 Stat. 753. 49 App.:1655(c)(1). Oct. 15, 1966, Pub. L. 89–670, § 6(c)(1), 80 Stat. 938; Jan. 12, 1983, Pub. L. 97–449, § 7(b), 96 Stat. 2444. 40108(b) ...... 49 App.:1354(d) (2d–last sen- tences). 49 App.:1655(c)(1). In this section, the word ‘‘Administrator’’ in section 313(d) of the Federal Aviation Act of 1958 (Public Law 85–726, 72 Stat. 753) is retained on authority of 49:106(g). The words ‘‘school or’’ are omitted because of 1:1. In subsection (a), the words ‘‘officers and’’ are added for clarity and consistency in the revised title and with other titles of the United States Code. The words ‘‘to carry out duties, powers, and activities of the Adminis- trator’’ are substituted for ‘‘in those subjects necessary for the proper performance of all authorized functions of the Administration’’ for clarity and consistency in the revised title. In subsection (b), the words ‘‘officers and employees’’ are substituted for ‘‘personnel’’, the words ‘‘depart- ments, agencies, or instrumentalities of the United States Government’’ are substituted for ‘‘govern- mental’’, and the words ‘‘governments of foreign coun- tries’’ are substituted for ‘‘foreign governments’’, for consistency in the revised title and with other titles of the Code. The words ‘‘courses given in’’, ‘‘sufficient’’, and ‘‘appropriate’’ are omitted as surplus. The text of 49 App.:1354(d) (3d sentence) is omitted as unnecessary because chapter 41 of title 5, United States Code, ap- plies to all training of employees. The words ‘‘or both’’ are substituted for ‘‘(3) in part as provided under clause (1) and in part as provided under clause (2)’’ to elimi- nate unnecessary words. § 40109. Authority to exempt (a) AIR CARRIERS AND FOREIGN AIR CARRIERS NOT ENGAGED DIRECTLY IN OPERATING AIR- CRAFT.—(1) The Secretary of Transportation may exempt from subpart II of this part— (A) an air carrier not engaged directly in op- erating aircraft in air transportation; or (B) a foreign air carrier not engaged directly in operating aircraft in foreign air transpor- tation. (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 paragraphs (1) and (2) of section 40103(b) when the Administrator decides the ex- emption is in the public interest.