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

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The Secretary of Transportation sets and adjusts each eligible place's required level of basic essential air service, choosing and paying carriers to provide it. Communities get advance notice before losing this subsidized service, and can propose to restore it or challenge a carrier's performance.

(a) Decisions Made Before October 1, 1988 — For an eligible place whose essential air service level was already decided before October 1, 1988, under the old Federal Aviation Act, that level stays as the Secretary set it by no later than December 29, 1988. (b) Decisions Not Made Before October 1, 1988 — (1) For other eligible places, the Secretary must decide the level of basic essential air service within 6 months after learning that only one carrier will serve that place, after considering the views of the interested community and its state authority, and may set notice requirements to carry this out. (2) Until the Secretary makes that decision, if a proper representative of the place petitions, the Secretary must stop a carrier from ending, suspending, or reducing service in a way that appears to leave the place without basic essential air service. (c) Availability of Compensation — (1) If the Secretary decides a place needs a paid carrier to keep basic essential air service, the Secretary must give notice inviting carriers to apply, and must consider, among other factors: the applicant's track record for reliable scheduled service; its contractual, marketing, code-share, or interline arrangements with a larger carrier at the hub; the preferences of actual and potential users, including local elected officials; whether the applicant has a plan to market its service to the community; for Alaska, the applicant's experience with scheduled or significant nonscheduled Alaska air service; and the total compensation the carrier is asking for. (2) The Secretary pays compensation for this service, and for service under section 41734, using rate guidelines set under section 41737(a). (d) Compensation Payments — The Secretary pays this compensation on whatever schedule and in whatever way the Secretary decides is appropriate, and must stop paying it once the Secretary decides it is no longer needed to keep basic essential air service running. (e) Review — The Secretary must periodically review each eligible place's level of basic essential air service and, after the review and consultation with the community and its state authority, may adjust that level, but never to a level below the one originally set under subsection (a). (f) Notice to Communities Prior to Termination of Eligibility — (1) The Secretary must notify a community receiving compensated basic essential air service at least 45 days before issuing a final decision to end that compensation because the per-passenger subsidy exceeds the cap. (2) The Secretary must set up, by order, procedures letting the community work directly with a carrier to submit a new compensation proposal that would stay under the cap. (3) The Secretary must give the community information about those procedures and about the maximum compensation available under this subchapter. (g) Proposals of State and Local Governments to Restore Eligibility — (1) If the Secretary ends a place's compensation because its subsidy exceeded the cap, or because it is no longer an eligible place under section 41731(a)(1)(B), a state or local government, jointly with a carrier, may submit a proposal to restore that compensation. (2) The Secretary must issue an order restoring eligibility if the proposal's subsidy stays under the cap, is likely to result in enough enplanements to satisfy section 41731(a)(1)(B), and follows the essential air service program's legal and regulatory requirements. (h) Subsidy Cap Defined — "Subsidy cap" means the subsidy-per-passenger cap set under section 41731(a)(1)(C). (i) Community Petition for Review — (1) A proper representative of an eligible place may submit a petition expressing no confidence in its current carrier and asking the Secretary to review it, showing that the carrier is unwilling or unable to meet its service terms, has reliability problems that could hurt service, or can no longer provide service at the agreed compensation. (2) The Secretary must review the carrier's performance within 2 months after receiving the petition, and decide whether it is meeting its obligations. (3) If the Secretary finds noncompliance, the Secretary may end the carrier's order and invite new applications under subsection (c). (4) If the Secretary ends an order this way, the Secretary must make sure service to the affected place continues without a gap.

the actual law source: uscode.house.gov ↗public domain

(a)Decisions Made Before October 1, 1988.—

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.

(b)Decisions Not Made Before October 1, 1988.—

(1)

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.

(2)

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.

(c)Availability of Compensation.—

(1)

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—

(A)

the demonstrated reliability of the applicant in providing scheduled air service;

(B)

the contractual, marketing, code-share, or interline arrangements the applicant has made with a larger air carrier serving the hub airport;

(C)

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;

(D)

whether the air carrier has included a plan in its proposal to market its services to the community;

(E)

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

(F)

the total compensation proposed by the air carrier for providing scheduled air service under this section.

(2)

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.

(d)Compensation Payments.—

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.

(e)Review.—

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.

(f)Notice to Communities Prior to Termination of Eligibility.—

(1)In general.—

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.

(2)Procedures to avoid termination.—

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.

(3)Assistance provided.—

The Secretary shall provide, by order, information to each community notified under paragraph (1) regarding—

(A)

the procedures established pursuant to paragraph (2); and

(B)

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.

(g)Proposals of State and Local Governments to Restore Eligibility.—

(1)In general.—

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.

(2)Determination by secretary.—

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)

a State or local government submits to the Secretary a proposal under paragraph (1); and

(B)

the Secretary determines that—

(i)

the rate of subsidy per passenger under the proposal does not exceed the subsidy cap;

(ii)

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

(iii)

the proposal is consistent with the legal and regulatory requirements of the essential air service program.

(h)Subsidy Cap Defined.—

In this section, the term “subsidy cap” means the subsidy-per-passenger cap established under section 41731(a)(1)(C).

(i)Community Petition for Review.—

(1)Petition.—

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—

(A)

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;

(B)

is experiencing reliability challenges with the potential to adversely affect air service to such place; or

(C)

is no longer able to provide service to such place at the rate of compensation specified by the Secretary.

(2)Review.—

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.

(3)Termination.—

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—

(A)

terminate the order issued to the air carrier; and

(B)

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.

(4)Continuation of service.—

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.)

history & why it existsrecord from the source credit

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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