49 U.S.C. § 41733 — Level of basic essential air service
submitted 32 years ago by Pub. L. 103-272 to r/title-49-TRANSPORTATION · 1,409 words · no verdicts yet
This section sets the basic service level for eligible places, provides for compensated service and periodic review, and creates notice, restoration, and community-review procedures.
(a) For an eligible place whose essential-service level was set before October 1, 1988 under the 1958 Federal Aviation Act, the basic level is the level the Secretary set by December 29, 1988. (b)(1) For an eligible place without such an earlier decision, when the Secretary learns that only one carrier will serve it, the Secretary must set the basic level within six months. The Secretary may set notice rules and must consider the community’s and appropriate State authority’s views. (2) Until then, on an appropriate representative’s petition, the Secretary must stop a carrier from ending, suspending, or reducing service that appears to deprive the place of basic service. (c)(1) If the Secretary decides service requires compensation, the Secretary must invite applications. Selection must consider the applicant’s demonstrated reliability; its contracts, marketing, code-share, or interline arrangements with a larger hub carrier; actual and potential users’ preferences, including elected officials’ views; its community-marketing plan; for Alaska, its Alaska scheduled-service or qualifying nonscheduled-service experience; and proposed total compensation. (2) The Secretary must set compensation under section 41737(a). (d) The Secretary decides when and how to pay. The Secretary must stop compensation when it is no longer needed. (e) The Secretary must periodically review each eligible place’s basic level. After consulting the community and State authority, the Secretary may adjust it, but not below the level established under (a) for the serving airport. (f)(1) At least 45 days before a final decision ending compensation because subsidy per passenger exceeds the subsidy cap, the Secretary must notify each affected community. (2) The Secretary must establish procedures for the community to work directly with a carrier so it can propose service within the cap. (3) The Secretary must give the community those procedures and the maximum compliant compensation. (g)(1) If, after enactment, compensation ends because the cap is exceeded or the place no longer qualifies under section 41731(a)(1)(B), a State or local government may jointly propose with a carrier to restore it. (2) The Secretary must restore eligibility if the proposal is submitted and the Secretary finds that the subsidy does not exceed the cap, projected average daily enplanements* meet section 41731(a)(1)(B), and the proposal meets program law and regulations. (h) “Subsidy cap” means the subsidy-per-passenger cap in section 41731(a)(1)(C). (i)(1) An appropriate representative may petition, expressing no confidence and showing that the carrier is unwilling or unable to meet the Secretary’s operational specifications, has reliability problems that may harm service, or cannot provide service at the specified compensation. (2) Within two months, the Secretary must review performance and decide whether the carrier fully complies with the service order. (3) For noncompliance, the Secretary may end the order and invite and select another carrier under (c). (4) The Secretary must ensure continuous service if the order is ended.
For each eligible place for which a decision was made before October 1, 1988, under section 419 of the Federal Aviation Act of 1958, establishing the level of essential air transportation, the level of basic essential air service for that place shall be the level established by the Secretary of Transportation for that place by not later than December 29, 1988.
The Secretary shall decide on the level of basic essential air service for each eligible place for which a decision was not made before October 1, 1988, establishing the level of essential air transportation, when the Secretary receives notice that service to that place will be provided by only one air carrier. The Secretary shall make the decision by the last day of the 6-month period beginning on the date the Secretary receives the notice. The Secretary may impose notice requirements necessary to carry out this subsection. Before making a decision, the Secretary shall consider the views of any interested community and the appropriate State authority of the State in which the community is located.
Until the Secretary has made a decision on a level of basic essential air service for an eligible place under this subsection, the Secretary, on petition by an appropriate representative of the place, as defined by the Secretary, shall prohibit an air carrier from ending, suspending, or reducing air transportation to that place that appears to deprive the place of basic essential air service.
If the Secretary decides that basic essential air service will not be provided to an eligible place without compensation, the Secretary shall provide notice that an air carrier may apply to provide basic essential air service to the place for compensation under this section. In selecting an applicant, the Secretary shall consider, among other factors—
the demonstrated reliability of the applicant in providing scheduled air service;
the contractual, marketing, code-share, or interline arrangements the applicant has made with a larger air carrier serving the hub airport;
the preferences of the actual and potential users of air transportation at the eligible place, including the views of the elected officials representing the users;
whether the air carrier has included a plan in its proposal to market its services to the community;
for an eligible place in Alaska, the experience of the applicant in providing, in Alaska, scheduled air service, or significant patterns of non-scheduled air service under an exemption granted under section 40109(a) and (c)–(h) of this title; and
the total compensation proposed by the air carrier for providing scheduled air service under this section.
Under guidelines prescribed under section 41737(a) of this title, the Secretary shall pay the rate of compensation for providing basic essential air service under this section and section 41734 of this title.
The Secretary shall pay compensation under this section at times and in the way the Secretary decides is appropriate. The Secretary shall end payment of compensation to an air carrier for providing basic essential air service to an eligible place when the Secretary decides the compensation is no longer necessary to maintain basic essential air service to the place.
The Secretary shall review periodically the level of basic essential air service for each eligible place. Based on the review and consultations with an interested community and the appropriate State authority of the State in which the community is located, the Secretary may make appropriate adjustments in the level of service, to the extent such adjustments are to a level not less than the basic essential air service level established under subsection (a) for the airport that serves the community.
The Secretary shall notify each community receiving basic essential air service for which compensation is being paid under this subchapter on or before the 45th day before issuing any final decision to end the payment of such compensation due to a determination by the Secretary that providing such service requires a rate of subsidy per passenger in excess of the subsidy cap.
The Secretary shall establish, by order, procedures by which each community notified of an impending loss of subsidy under paragraph (1) may work directly with an air carrier to ensure that the air carrier is able to submit a proposal to the Secretary to provide essential air service to such community for an amount of compensation that would not exceed the subsidy cap.
The Secretary shall provide, by order, information to each community notified under paragraph (1) regarding—
the procedures established pursuant to paragraph (2); and
the maximum amount of compensation that could be provided under this subchapter to an air carrier serving such community that would comply with basic essential air service and the subsidy cap.
If the Secretary, after the date of enactment of this subsection, ends payment of compensation to an air carrier for providing basic essential air service to an eligible place because the Secretary has determined that providing such service requires a rate of subsidy per passenger in excess of the subsidy cap or that the place is no longer an eligible place pursuant to section 41731(a)(1)(B), a State or local government may submit to the Secretary a proposal for restoring compensation for such service. Such proposal shall be a joint proposal of the State or local government and an air carrier.
The Secretary shall issue an order restoring the eligibility of the otherwise eligible place to receive basic essential air service by an air carrier for compensation under subsection (c) if—
a State or local government submits to the Secretary a proposal under paragraph (1); and
the Secretary determines that—
the rate of subsidy per passenger under the proposal does not exceed the subsidy cap;
the proposal is likely to result in an average number of enplanements* per day that will satisfy the requirement in section 41731(a)(1)(B); and
the proposal is consistent with the legal and regulatory requirements of the essential air service program.
In this section, the term “subsidy cap” means the subsidy-per-passenger cap established under section 41731(a)(1)(C).
An appropriate representative of an eligible place, as defined by the Secretary, may submit to the Secretary a petition expressing no confidence in the air carrier providing basic essential air service under this section and requesting a review by the Secretary. A petition submitted under this subsection shall demonstrate that the air carrier—
is unwilling or unable to meet the operational specifications outlined in the order issued by the Secretary specifying the terms of basic essential air service to such place;
is experiencing reliability challenges with the potential to adversely affect air service to such place; or
is no longer able to provide service to such place at the rate of compensation specified by the Secretary.
Not later than 2 months after the date on which the Secretary receives a petition under paragraph (1), the Secretary shall review the operational performance of the air carrier providing basic essential air service to such place that submitted such petition and determine whether such air carrier is fully complying with the obligations specified in the order issued by the Secretary specifying the terms of basic essential air service to such place.
If based on a review under paragraph (2), the Secretary determines noncompliance by an air carrier with an order specifying the terms for basic essential air service to the community, the Secretary may—
terminate the order issued to the air carrier; and
issue a notice pursuant to subsection (c) that an air carrier may apply to provide basic essential air service to such place for compensation under this section and select an applicant pursuant to such subsection.
If the Secretary makes a determination under paragraph (3) to terminate an order issued to an air carrier under this section, the Secretary shall ensure continuity in air service to the affected place.
Source credit: (Pub. L. 103–272, § 1(e), July 5, 1994, 108 Stat. 1145; Pub. L. 106–181, title II, § 209(b), Apr. 5, 2000, 114 Stat. 95; Pub. L. 112–95, title IV, §§ 423–425, Feb. 14, 2012, 126 Stat. 97, 98; Pub. L. 118–63, title V, §§ 561(d), 565(a), May 16, 2024, 138 Stat. 1215, 1218.)
- 1994Enacted · Pub. L. 103-272 · 108 Stat. 1145
- 2000Amended · Pub. L. 106-181 · 114 Stat. 95
- 2012Amended · Pub. L. 112-95 · 126 Stat. 97, 98
- 2024Amended · Pub. L. 118-63 · 138 Stat. 1215, 1218
A history note hasn’t been published yet. The record shows enactment by Pub. L. 103-272 on 1994-07-05.
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