49 U.S.C. § 41509 — Authority of the Secretary of Transportation to suspend, cancel, and reject tariffs for foreign air transportation

(a) Canceling and rejecting tariffs. (1) On the Secretary's own initiative or a complaint, the Secretary may hold a hearing on whether a price, or a related classification, rule, or practice, in an existing or new tariff is lawful. The hearing may start right away, without a formal answer from the carrier, but only after reasonable notice. If the hearing shows the price, classification, rule, or practice is or will be unreasonable or unreasonably discriminatory, the Secretary may cancel or reject the tariff and stop its use. (2) With or without a hearing, the Secretary may cancel or reject a foreign air carrier's tariff, and stop its use, when the Secretary decides that serves the public interest. (3) In deciding whether to cancel or reject a tariff, the Secretary must weigh: (A) the price's effect on traffic; (B) the public's need for adequate, efficient air transportation at the lowest cost consistent with providing it; (C) legal standards for the character and quality of the transportation; (D) aircraft transportation's inherent advantages; (E) whether the carrier needs enough revenue, run honestly and efficiently, to provide adequate service; (F) whether the price would be predatory or tend to create a monopoly; (G) reasonably foreseeable future costs and revenue during the time the price would apply; and (H) other factors. (b) Suspending tariffs. (1) (A) While deciding a case under subsection (a)(1), the Secretary may suspend a tariff and the price, classification, rule, or practice it contains. (B) The Secretary may suspend a foreign carrier's tariff, price, classification, rule, or practice when suspension serves the public interest. (2) A suspension takes effect once the Secretary files a written statement of reasons with the tariff and delivers it to the affected carrier, after giving reasonable notice. (3) A new tariff may be suspended for periods totaling up to 365 days past when it would otherwise take effect; an existing tariff, for up to 365 days from when the suspension began. The Secretary may lift a new tariff's suspension at any time and let it take effect. (c) What stays in effect during suspension, cancellation, or rejection. (1) If a tariff is suspended during a subsection (a) proceeding and the Secretary has not finished that proceeding by the end of the suspension, the tariff takes effect, subject to cancellation once the proceeding ends. (2) (A) While a new tariff is suspended, or after it is canceled or rejected (even if it briefly took effect), the carrier must keep using either (i) the matching seasonal prices, classifications, rules, or practices it used just before filing the new tariff, or (ii) another price allowed under an applicable government agreement. (B) If the suspended, canceled, or rejected tariff was the carrier's first for that route, the carrier may instead file another tariff matching a price, classification, rule, or practice already in effect (and not under a suspension order) for another carrier flying the same route. (3) If an existing tariff is suspended or canceled, the carrier may similarly file another tariff matching another effective, unsuspended carrier's terms for the same route. (d) When a foreign country blocks a U.S. carrier's price. If the Secretary finds a foreign government or aviation authority has refused to let a U.S. carrier charge a price it filed for transportation to that country, (1) without a hearing, the Secretary (A) may suspend any existing tariff of that country's carriers for up to 365 days, and (B) may order those carriers to charge, during the suspension, the same prices as a designated U.S. carrier's tariff to that country; and (2) a foreign carrier from that country may keep flying to the U.S. only if its government lets a U.S. carrier fly there at the Secretary's designated prices. (e) Standard foreign fare level. (1) (A) This term means (i) for a class of fares that existed on October 1, 1979, the fare (as adjusted) that the Civil Aeronautics Board had approved to take effect between September 30, 1979, and August 13, 1980 (with seasonal fares adjusted for 1978's seasonal differences), or a fare set under a specific 1979 statute; or (ii) for a class of fares created after October 1, 1979, the fare in effect when that class was created. (B) At least every 60 days for fuel costs, and every 180 days for other costs, the Secretary must adjust the standard foreign fare level up or down by the percentage change in actual operating cost per available seat-mile since the last adjustment. The Secretary cannot adjust for costs not actually incurred, and may use any relevant, reasonably available information to set or adjust the level. (2) The Secretary cannot call a proposed fare unreasonable for being too high or too low if it is no more than 5% above, or no more than 50% below, the standard foreign fare level for a similar class of transportation. The Secretary may raise that 50% figure by regulation. (3) Paragraph (2)'s protection does not apply to a proposed fare that is (A) up to 5% above the standard level, if the Secretary finds it may be unreasonably discriminatory or that suspending it serves the public interest because of unreasonable foreign government regulation tied to a carrier's fare proposal; or (B) up to 50% below the standard level, if the Secretary finds it may be predatory or discriminatory, or that suspension is needed for the same kind of unreasonable foreign regulatory reason. (f) Telling the President. Before publishing an order under this section that suspends, cancels, or rejects a foreign air transportation price — or an order that undoes such an order — the Secretary must submit it to the President. Within 10 days, the President may disapprove it if needed for U.S. foreign policy or national defense. (g) A condition of doing business. This section, and compliance with the Secretary's orders under it, are conditions of any certificate or permit an air carrier or foreign air carrier holds. A carrier may provide foreign air transportation only as long as its prices comply with this section and the Secretary's orders under it.