49 U.S.C. § 41307 — Presidential review of actions about for-

Page 1132 TITLE 49—TRANSPORTATION § 41306 apply in writing to the Secretary of Transpor- tation to be issued a permit under section 41302 of this title. The Secretary shall prescribe regu- lations to require that the application be— (A) verified; (B) in a certain form and contain certain in- formation; (C) served on interested persons; and (D) accompanied by proof of service on those persons. (2) When an application is filed, the Secretary shall post a notice of the application in the of- fice of the Secretary and give notice of the ap- plication to other persons as required by regula- tions of the Secretary. An interested person may file a response with the Secretary opposing or supporting the issuance of the permit. The Sec- retary shall act on an application as expedi- tiously as possible. (b) TERMS.—The Secretary may impose terms for providing foreign air transportation under the permit that the Secretary finds may be re- quired in the public interest. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1127.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 41305(a)(1) .. 49 App.:1372(c). Aug. 23, 1958, Pub. L. 85–726, § 402(c), (e) (related to terms, conditions, or limi- tations of permits), 72 Stat. 758. 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. 41305(a)(2) .. 49 App.:1372(d). Aug. 23, 1958, Pub. L. 85–726, § 402(d), 72 Stat. 758; Feb. 15, 1980, Pub. L. 96–192, § 8, 94 Stat. 38. 49 App.:1551(b)(1)(E). 41305(b) ...... 49 App.:1372(e) (re- lated to terms, conditions, or limitations of per- mits). 49 App.:1551(b)(1)(E). In subsection (a)(1), before clause (A), the words ‘‘A person must apply . . . to the Secretary of Transpor- tation to be issued a permit under section 41302 of this title’’ are added for clarity. Clause (C) is added for clar- ity. In subsection (a)(2), the words ‘‘give due notice there- of to the public by’’ are omitted as surplus. The word ‘‘response’’ is substituted for ‘‘protest or memo- randum’’ to eliminate unnecessary words. The word ‘‘expeditiously’’ is substituted for ‘‘speedily’’ for con- sistency in this chapter. In subsection (b), the words ‘‘reasonable’’ and ‘‘condi- tions, or limitations’’ are omitted as surplus. The words ‘‘for providing foreign air transportation’’ are added for clarity. § 41306. Simplified procedure to apply for, amend, modify, and suspend permits (a) REGULATIONS.—The Secretary of Transpor- tation shall prescribe regulations that simplify the procedure for— (1) acting on an application for a permit to provide foreign air transportation under sec- tion 41302 of this title; and (2) amending, modifying, or suspending any part of that permit under section 41304(a) or (b) of this title. (b) NOTICE AND OPPORTUNITY TO RESPOND.— Regulations under this section shall provide for notice and an opportunity for each interested person to file appropriate written evidence and argument. An oral evidentiary hearing is not re- quired to be provided under this section. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1128.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 41306(a) ...... 49 App.:1372(h) (1st sentence). Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 402(h); added Oct. 24, 1978, Pub. L. 95–504, § 21(b)(1), 92 Stat. 1723. 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. 41306(b) ...... 49 App.:1372(h) (last sentence). In subsection (a)(1), the words ‘‘acting on’’ are sub- stituted for ‘‘disposition of’’ for consistency. The word ‘‘provide’’ is substituted for ‘‘engage in’’ for consist- ency in the revised title. In subsection (a)(2), the word ‘‘alteration’’ is omitted as surplus. The word ‘‘transfer’’ is omitted because 49 App.:1372(f) does not cover transfer of a permit. In subsection (b), the word ‘‘adequate’’ is omitted as surplus. § 41307. Presidential review of actions about for- eign air transportation The Secretary of Transportation shall submit to the President for review each decision of the Secretary to issue, deny, amend, modify, sus- pend, revoke, or transfer a certificate issued under section 41102 of this title authorizing an air carrier, or a permit issued under section 41302 of this title authorizing a foreign air car- rier, to provide foreign air transportation. The President may disapprove the decision of the Secretary only if the reason for disapproval is based on foreign relations or national defense considerations that are under the jurisdiction of the President. The President may not dis- approve a decision of the Secretary if the reason is economic or related to carrier selection. A de- cision of the Secretary— (1) is void if the President disapproves the decision and publishes the reasons (to the ex- tent allowed by national security) for dis- approval not later than 60 days after it is sub- mitted to the President; or (2)(A) takes effect as a decision of the Sec- retary if the President does not disapprove the decision not later than 60 days after the deci- sion is submitted to the President; and (B) when effective, may be reviewed judi- cially under section 46110 of this title. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1128.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 41307 .......... 49 App.:1461(a). Aug. 23, 1958, Pub. L. 85–726, § 801(a), 72 Stat. 782; Mar. 22, 1972, Pub. L. 92–259, § 2, 86 Stat. 96; restated Oct. 24, 1978, Pub. L. 95–504, § 34, 92 Stat. 1740. 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. Page 1133 TITLE 49—TRANSPORTATION § 41307 In this section, before clause (1), the word ‘‘cancella- tion’’ is omitted as surplus. The word ‘‘modify’’ is added for consistency. The words ‘‘and the terms, con- ditions, and limitations contained in’’ are omitted as surplus. The words ‘‘issued under section 41102 of this title’’ are added for clarity. The word ‘‘provide’’ is sub- stituted for ‘‘engage in’’ for consistency in the revised title. In clause (1), the words ‘‘null and’’ are omitted as surplus. The word ‘‘publishes’’ is substituted for ‘‘issued in a public document’’ to eliminate unneces- sary words. In clause (2)(A), the words ‘‘not the Presi- dent’’ are omitted as surplus. Executive Documents EXECUTIVE ORDER NO. 11920 Ex. Ord. No. 11920, June 10, 1976, 41 F.R. 23665, which provided for establishment of Executive branch proce- dures to facilitate review of submitted decisions, was revoked by Ex. Ord. No. 12547, Feb. 6, 1986, 51 F.R. 5029. EXECUTIVE ORDER NO. 12547 Ex. Ord. No. 12547, Feb. 6, 1986, 51 F.R. 5029, which pro- vided for establishment of procedures to facilitate Presidential review of international aviation decisions submitted by Department of Transportation, was re- voked by Ex. Ord. No. 12597, May 13, 1987, 52 F.R. 18335, set out below. EX. ORD. NO. 12597. ESTABLISHING PROCEDURES FOR FA- CILITATING PRESIDENTIAL REVIEW OF INTERNATIONAL AVIATION DECISIONS BY THE DEPARTMENT OF TRANS- PORTATION Ex. Ord. No. 12597, May 13, 1987, 52 F.R. 18335, pro- vided: By the authority vested in me as President by the Constitution and laws of the United States of America, including Section 801 of the Federal Aviation Act, as amended (49 U.S.C. app. § 1461) [see 49 U.S.C. 41307, 41509(f)], and in order to provide presidential guidance to department and agency heads and facilitate presi- dential review of decisions by the Department of Trans- portation pursuant to the Federal Aviation Act [see 49 U.S.C. 40101 et seq.], it is hereby ordered as follows: SECTION 1. Executive Order No. 12547 of February 6, 1986, is revoked. SEC. 2. The Secretary of Transportation is designated and empowered to receive on behalf of the President any decision of the Department of Transportation (hereinafter referred to as the ‘‘DOT’’) subject to Sec- tion 801 of the Federal Aviation Act, as amended. The Secretary of Transportation is further designated and empowered to exercise, without the approval, ratifica- tion, or other action of the President, the authority of the President under Section 801 of the Federal Aviation Act, as amended, to review and determine not to dis- approve any such decision that is not the subject of any written recommendation for disapproval or for a state- ment of reasons submitted to the Department of Trans- portation in accordance with section 5(b) of this Order. SEC. 3. (a) Except as otherwise provided in this sec- tion, decisions of the DOT subject to Section 801 of the Federal Aviation Act, as amended, may be made avail- able by the DOT for public inspection and copying fol- lowing transmission to Executive departments and agencies pursuant to section 3(c) of this Order. (b) In the interests of national security, and in order to allow for consideration of appropriate action under [former] Executive Order No. 12356, decisions of the DOT transmitted to Executive departments and agen- cies pursuant to section 3(c) of this Order shall be with- held from public disclosure for a period not to exceed 5 days after said transmission. (c) At the same time that decisions of the DOT are re- ceived by the Secretary of Transportation pursuant to section 2 of this Order, the DOT shall transmit copies thereof to the Secretary of State, the Secretary of De- fense, the Secretary of the Treasury, the Attorney Gen- eral, the Assistant to the President for National Secu- rity Affairs, the Director of the Office of Management and Budget, and any other Executive department or agency that the DOT deems appropriate. (d) The Secretary of State and the Secretary of De- fense, or their designees, shall review the decisions of the DOT transmitted pursuant to section 3(c) of this Order and shall promptly advise the Assistant to the President for National Security Affairs or his designee whether action pursuant to Executive Order No. 12356 is deemed appropriate. If, after considering these rec- ommendations, the Assistant to the President for Na- tional Security Affairs determines that classification under Executive Order No. 12356 is appropriate, he shall take such action and immediately so inform the DOT. Action pursuant to this subsection shall be completed by the persons designated herein within 5 days of the transmission of the decision. (e) On and after the 6th day following transmission of a DOT decision pursuant to section 3(c) of this Order, or upon earlier notification by the Assistant to the President for National Security Affairs or his designee, the DOT is authorized to disclose all unclassified por- tions of the text of such decision. Nothing in this sec- tion is intended to affect the ability to withhold mate- rial under any Executive order or statute other than Section 801. SEC. 4. (a) Departments and agencies outside of the Executive Office of the President shall raise only mat- ters of national defense or foreign relations in the course of the presidential review established by this Order. All other matters, including those related to regulatory policy, shall be presented to the DOT in ac- cordance with the procedures of the DOT. (b) Departments and agencies outside of the Execu- tive Office of the President that identify matters of na- tional defense or foreign relations while a decision is pending before the DOT shall, except as confidentiality is required for reasons of defense or foreign policy, make those matters known to the DOT in the course of its proceedings. SEC. 5. (a) The DOT shall receive the recommenda- tions, addressed to the President, of the departments and agencies referred to in section 3(c) of this Order. (b) Departments or agencies outside of the Executive Office of the President making recommendations on matters of national defense or foreign relations with respect to any decision received by the Secretary of Transportation under section 2 of this Order shall sub- mit their recommendations in writing to the DOT: (1) within 4 days of the DOT’s issuance of a decision sub- ject to a 10-day statutory review period under Section 801(b) [see 49 U.S.C. 41509(f)]; and (2) within 21 days of the DOT’s issuance of a decision subject to a 60-day statutory review period under Section 801(a) [see 49 U.S.C. 41307]; or (3) in exceptional cases, within the pe- riod specified by the DOT in its letter of transmittal. (c) The DOT shall, as soon as practical after the dead- lines specified in section 5(b) of this Order: (1) if no rec- ommendations for disapproval or for a statement of reasons are received from the departments and agen- cies specified in section 3(c) of this Order, issue its deci- sion to become effective according to its terms; or (2) if recommendations for disapproval or for a statement of reasons are received, transmit them to the Assistant to the President for National Security Affairs, who, upon review, shall transmit a memorandum to the President with a recommendation as to whether or not the President should disapprove the proposed decision. SEC. 6. (a) In advising the President with respect to his review of a decision pursuant to Section 801, depart- ments and agencies outside of the Executive Office of the President shall identify with particularity the de- fense or foreign policy implications of the DOT decision that are deemed appropriate for consideration. (b) If any department or agency that made rec- ommendations to the President pursuant to Section 801 believes that, if the President decides not to disapprove a decision, the letter so advising the DOT should in- clude a statement that the decision not to disapprove was based on national defense or foreign relations rea- sons, it should so indicate separately and explain why. Page 1134 TITLE 49—TRANSPORTATION § 41308 SEC. 7. Individuals within the Executive Office of the President shall follow a policy of: (a) refusing to dis- cuss matters relating to the disposition of a case sub- ject to the review of the President under Section 801 with any interested private party, or an attorney or agent for any such party, prior to the decision by the President or his designee; and (b) referring any written communication from an interested private party, or an attorney or agent for any such party, to the appro- priate department or agency outside of the Executive Office of the President. Exceptions to this policy may be made only when the head of an appropriate depart- ment or agency outside of the Executive Office of the President personally finds, on a nondelegable basis, that direct written or oral communication between a private party and a person within the Executive Office of the President is needed for reasons of defense or for- eign policy. SEC. 8. Departments and agencies outside of the Exec- utive Office of the President that regularly make rec- ommendations in connection with the presidential re- view pursuant to Section 801 shall, consistent with ap- plicable law, including the provisions of Chapter 5 of Title 5 of the United States Code: (a) establish public dockets for all written commu- nications (other than those requiring confidential treatment for defense or foreign policy reasons) be- tween their officers and employees and private parties in connection with the preparation of such rec- ommendations; and (b) prescribe such other procedures governing oral and written communications as they deem appropriate. SEC. 9. This Order is intended solely for the internal guidance of the departments and agencies in order to facilitate the presidential review process. This Order does not confer rights on any private parties. SEC. 10. None of the time deadlines specified in this Order shall be construed as a limitation on expedited presidential review of any decision under Section 801. SEC. 11. The provisions of this Order shall become ef- fective upon publication in the Federal Register and shall govern the review of any proposed decisions of the DOT that have not become final prior to that date under Executive Order No. 12547. SEC. 12. References in any Executive order to any pro- vision in Executive Order No. 12547 shall be deemed to refer to the corresponding provision in this Order. RONALD REAGAN. § 41308. Exemption from the antitrust laws (a) DEFINITION.—In this section, ‘‘antitrust laws’’ has the same meaning given that term in the first section of the Clayton Act (15 U.S.C. 12). (b) EXEMPTION AUTHORIZED.—When the Sec- retary of Transportation decides it is required by the public interest, the Secretary, as part of an order under section 41309 or 42111 of this title, may exempt a person affected by the order from the antitrust laws to the extent necessary to allow the person to proceed with the transaction specifically approved by the order and with any transaction necessarily contemplated by the order. (c) EXEMPTION REQUIRED.—In an order under section 41309 of this title approving an agree- ment, request, modification, or cancellation, the Secretary, on the basis of the findings required under section 41309(b)(1), shall exempt a person affected by the order from the antitrust laws to the extent necessary to allow the person to pro- ceed with the transaction specifically approved by the order and with any transaction nec- essarily contemplated by the order. (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1128.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 41308 .......... 49 App.:1384. Aug. 23, 1958, Pub. L. 85–726, § 414, 72 Stat. 770; restated Oct. 24, 1978, Pub. L. 95–504, § 30(a), 92 Stat. 1731; Feb. 15, 1980, Pub. L. 96–192, § 27, 94 Stat. 47. 49 App.:1551(a)(6) (related to 49 App.:1384). Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 1601(a)(6) (re- lated to § 414); added Oct. 4, 1984, Pub. L. 98–443, § 3(c), 98 Stat. 1704. 49 App.:1551(b)(1)(C) (related to 49 App.:1384). Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 731, § 1601(b)(1)(C) (related to § 414); added Oct. 24, 1978, Pub. L. 95–504, § 40(a), 92 Stat. 1745; Oct. 14, 1982, Pub. L. 97–309, § 4(b), 96 Stat. 1454; Oct. 4, 1984, Pub. L. 98–443, § 3(a), 98 Stat. 1703. Subsection (a) is substituted for ‘‘the ‘anti-trust laws’ set forth in subsection (a) of section 12 of title 15’’ for consistency in the revised title and with other titles of the United States Code. In subsection (b), reference to 49 App.:1378 and 1379 is omitted as obsolete. § 41309. Cooperative agreements and requests (a) FILING.—An air carrier or foreign air car- rier may file with the Secretary of Transpor- tation a true copy of or, if oral, a true and com- plete memorandum of, an agreement (except an agreement related to interstate air transpor- tation), or a request for authority to discuss co- operative arrangements (except arrangements related to interstate air transportation), and any modification or cancellation of an agree- ment, between the air carrier or foreign air car- rier and another air carrier, a foreign carrier, or another carrier. (b) APPROVAL.—The Secretary of Transpor- tation shall approve an agreement, request, modification, or cancellation referred to in sub- section (a) of this section when the Secretary finds it is not adverse to the public interest and is not in violation of this part. However, the Secretary shall disapprove— (1) or, after periodic review, end approval of, an agreement, request, modification, or can- cellation, that substantially reduces or elimi- nates competition unless the Secretary finds that— (A) the agreement, request, modification, or cancellation is necessary to meet a seri- ous transportation need or to achieve impor- tant public benefits (including international comity and foreign policy considerations); and (B) the transportation need cannot be met or those benefits cannot be achieved by rea- sonably available alternatives that are ma- terially less anticompetitive; or (2) an agreement that— (A) is between an air carrier not directly operating aircraft in foreign air transpor- tation and a carrier subject to subtitle IV of this title; and (B) governs the compensation the carrier may receive for the transportation. (c) NOTICE AND OPPORTUNITY TO RESPOND OR FOR HEARING.—(1) When an agreement, request, modification, or cancellation is filed, the Sec-