The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1246; Project Identifier MCAI-2022-00675-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Hassan Ibrahim, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206 231 3653; email hassan.m.ibrahim@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The ANAC, which is the aviation authority for Brazil, has issued ANAC AD 2022-05-04, effective May 25, 2022 (ANAC AD 2022-05-04) (also referred to as the MCAI), to correct an unsafe condition for certain Model ERJ 190-100 STD, -100 LR, -100 ECJ, -100 IGW, -100 SR, -200 STD, -200 LR, -200 IGW, airplanes. Model ERJ 190-100 SR airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this proposed AD therefore does not include those airplanes in the applicability.

This proposed AD was prompted by a report of uncommanded setting of the barometric reference in both PFDs due to the architecture of data communication of the Control I/O modules, which interconnect the display controllers to the air data system. The possibility of erroneous indications for both pilots, combined with possible adverse meteorological conditions could result in an increase of flightcrew workload. The FAA is proposing this AD to address this condition, which could interfere with the decisions taken by the flightcrew during critical phases of flight, and possibly result in reduced controllability of the airplane. See the MCAI for additional background information.

This NPRM would not supersede AD 2020-05-21, Amendment 39-19871 (85 FR 15940, March 20, 2020) (AD 2020-05-21). ANAC AD 2022-05-04 specifies that accomplishment of that AD “covers the accomplishment of [terminates] ANAC AD 2019-10-01” (which corresponds to FAA AD 2020-05-21). Accomplishment of the proposed actions of this AD on an airplane would then terminate all of the requirements of AD 2020-05-21 for that airplane only. The FAA concurs with ANAC with issuing a stand-alone AD to address the changes in the MCAI.

ANAC AD 2022-05-04 specifies procedures for installing updated Primus EPIC software. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in ANAC AD 2022-05-04 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate ANAC AD 2022-05-04 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with ANAC AD 2022-05-04 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Service information required by ANAC AD 2022-05-04 for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2022-1246 after the FAA final rule is published.

The FAA estimates that this proposed AD would affect 121 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1238; Project Identifier MCAI-2022-00741-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Tom Rodriguez, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3226; email Tom.Rodriguez@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, issued EASA Emergency AD 2022-0068-E, dated April 14, 2022 (EASA Emergency AD 2022-0068-E) (also referred to as the MCAI), to correct an unsafe condition for all Dassault Aviation Model FALCON 2000 and FALCON 2000EX airplanes. The FAA issued corresponding AD 2022-09-15, Amendment 39-22035 (87 FR 29217, May 13, 2022) (AD 2022-09-15), for all Dassault Aviation Model FALCON 2000 and FALCON 2000EX airplanes. AD 2022-09-15 requires relocating affected servo-valves and revising the existing AFM to provide temporary information necessary to operate airplanes fitted with at least one affected brake servo-valve. The FAA issued AD 2022-09-15 to prevent temporary failure of the brake servo-valves, which could lead to reduced braking performance during landing including degraded or dissymmetric braking, possibly resulting in reduced control of the airplane, lateral excursion of the runway, and consequent damage to the airplane.

EASA Emergency AD 2022-0068-E requires the replacement of all affected brake servo-valves within 12 months. The preamble to FAA AD 2022-09-15 explained that the planned compliance time for that replacement would have allowed enough time to provide notice and opportunity for prior public comment on the merits of the action. Therefore, AD 2022-09-15 did not require the replacement, and was considered to be interim action pending the FAA's consideration of further rulemaking to mandate the replacement of all affected brake servo-valves.

This proposed AD was prompted by a determination that replacing certain brake servo-valves is necessary and reports of brake system failures during landing. Subsequent investigation determined the root cause to be a brake servo-valve failure. A batch of brake servo-valves has been identified during airplane production and maintenance with an internal oil type that does not meet the manufacturer's cold temperature specifications, which can lead to their failure. The FAA is proposing this AD to prevent temporary failure of the brake servo-valves, which could lead to reduced braking performance during landing including degraded or dissymmetric braking, possibly resulting in reduced control of the airplane, lateral excursion of the runway, and consequent damage to the airplane. See the MCAI for additional background information.

Although this proposed AD does not explicitly restate the requirements of AD 2022-09-15, this proposed AD would retain all of the requirements of AD 2022-09-15. Those requirements are referenced in EASA Emergency AD 2022-0068-E, which, in turn, is referenced in paragraph (g) of this proposed AD.

This proposed AD would require EASA Emergency AD 2022-0068-E, which was approved for incorporation by reference as of May 31, 2022 (87 FR 29217, May 13, 2022). This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

This proposed AD would retain all of the requirements of AD 2022-09-15. This proposed AD would also require replacing affected brake servo-valves.

EASA Emergency AD 2022-0068-E requires operators to “inform all flight crews” of revisions to the AFM, and thereafter to “operate the aeroplane accordingly.” However, this proposed AD would not specifically require those actions as those actions are already required by FAA regulations. FAA regulations require operators furnish to pilots any changes to the AFM (for example, 14 CFR 121.137), and to ensure the pilots are familiar with the AFM (for example, 14 CFR 91.505). As with any other flightcrew training requirement, training on the updated AFM content is tracked by the operators and recorded in each pilot's training record, which is available for the FAA to review. FAA regulations also require pilots to follow the procedures in the existing AFM including all updates. 14 CFR 91.9 requires that any person operating a civil aircraft must comply with the operating limitations specified in the AFM. Therefore, including a requirement in this proposed AD to operate the airplane according to the revised AFM would be redundant and unnecessary.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to retain the incorporation by reference of EASA Emergency AD 2022-0068-E by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA Emergency AD 2022-0068-E in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA Emergency AD 2022-0068-E does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA Emergency AD 2022-0068-E. Service information required by EASA Emergency AD 2022-0068-E for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2022-1238 after the FAA final rule is published.

The FAA estimates that this proposed AD affects 441 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all known costs in the cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1248; Project Identifier MCAI-2022-00609-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dan Rodina, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3225; email dan.rodina@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0080, dated May 9, 2022 (EASA AD 2022-0080) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus SAS Model A350-941 and -1041 airplanes.

This proposed AD was prompted a report that during flight and fatigue testing it was detected that some fasteners installed in the CWB rotated inside their fastener holes. Investigation revealed there was insufficient friction for the application. The FAA is proposing this AD to address fasteners installed in the CWB rotating inside their fastener holes, which if not corrected, could lead to loss of a fastener clamping and cracking of the nut sealant cover, possibly resulting, in case of lightning strike, in a fuel tank explosion and consequent loss of the airplane. See the MCAI for additional background information.

EASA AD 2022-0080 specifies procedures for replacing affected fasteners installed on the left-hand and right-hand CWB at the front and rear spar areas and for adding head nut cap protection at the front and rear spars in the CWB. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in EASA AD 2022-0080 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2022-0080 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0080 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0080 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0080. Service information required by EASA AD 2022-0080 for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2022-1248 after the FAA final rule is published.

The FAA estimates that this proposed AD would affect 30 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1296; Project Identifier MCAI-2022-00628-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dan Rodina, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3225; email dan.rodina@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2020-20-05, Amendment 39-21261 (85 FR 65197, October 15, 2020) (AD 2020-20-05), and AD 2022-09-16, Amendment 39-22036 (87 FR 31943, May 26, 2022) (AD 2022-09-16), which apply to all Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, and -153N airplanes; Model A320-211, -212, -214, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -251NX, -252N, -252NX, -253N, -253NX, -271N, -271NX, -272N, and -272NX airplanes. AD 2020-20-05 and AD 2022-09-16 require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations. The FAA issued AD 2020-20-05 and AD 2022-09-16 to address fatigue cracking, accidental damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane.

Since the FAA issued AD 2020-20-05 and AD 2022-09-16, the FAA has determined that new or more restrictive airworthiness limitations are necessary.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0085, dated May 12, 2022 (EASA AD 2022-0085) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A318-111, A318-112, A318-121, A318-122, A319-111, A319-112, A319-113, A319-114, A319-115, A319-131, A319-132, A319-133, A319-151N, A319-153N, A319-171N, A320-211, A320-212, A320-214, A320-215, A320-216, A320-231, A320-232, A320-233, A320-251N, A320-252N, A320-253N, A320-271N, A320-272N, A320-273N, A321-111, A321-112, A321-131, A321-211, A321-212, A321-213, A321-231, A321-232, A321-251N, A321-251NX, A321-252N, A321-252NX, A321-253N, A321-253NX, A321-271N, A321-271NX, A321-272N, and A321-272NX airplanes. EASA AD 2022-0085 superseded EASA AD 2020-0036R1, dated June 24, 2020 (EASA AD 2021-0140) (which corresponds to FAA AD 2020-20-05) and EASA AD 2021-0140, dated June 14, 2021 (which corresponds to FAA AD 2022-09-16). Model A320-215 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

Airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after February 2, 2022, must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

This proposed AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is proposing this AD to address fatigue cracking, accidental damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane. See the MCAI for additional background information.

EASA AD 2022-0085 specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This proposed AD would also require EASA AD 2021-0140, which the Director of the Federal Register approved for incorporation by reference as of June 30, 2022 (87 FR 31943, May 26, 2022).

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI described above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

This proposed AD would retain the requirements of AD 2022-09-16. This proposed AD would also expand the applicability and require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, which are specified in EASA AD 2022-0085 described previously, as proposed for incorporation by reference. Any differences with EASA AD 2022-0085 are identified as exceptions in the regulatory text of this AD.

This proposed AD would require revisions to certain operator maintenance documents to include new actions ( e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (m)(1) of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to retain the IBR of EASA AD 2021-0140 and incorporate EASA AD 2022-0085 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0140 and EASA AD 2022-0085 in their entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0140 or EASA AD 2022-0085 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0140 or EASA AD 2022-0085. Service information required by EASA AD 2021-0140 and EASA AD 2022-0085 for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2022-1296 after the FAA final rule is published.

The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.

For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).

The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions ( e.g., inspections) or intervals may be used unless the actions and intervals are approved as an AMOC in accordance with the procedures specified in the AMOCs paragraph under “Additional FAA Provisions.” This new format includes a “New Provisions for Alternative Actions and Intervals” paragraph that does not specifically refer to AMOCs, but operators may still request an AMOC to use an alternative action or interval.

The FAA estimates that this proposed AD affects 1,864 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the total cost per operator for the retained actions from AD 2022-09-16 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.

The FAA estimates the total cost per operator for the new proposed actions to be $7,650 (90 work-hours × $85 per work-hour).

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1295; Project Identifier MCAI-2021-01181-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Manuel Hernandez, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 562-627-5256; email Manuel.F.Hernandez@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0236, dated October 29, 2021 (EASA AD 2021-0236) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A318 series airplanes, Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-211, -212, -214, -215, -216, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. Model A320-215 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this proposed AD therefore does not include those airplanes in the applicability.

The MCAI states that NLG sliding tube rupture, leading to NLG collapse during taxiing, occurred on a Model A320 airplane. Investigations identified overheat damage on that NLG, caused by incorrect accomplishment of a repair on the chromium-plated diameter of the sliding tube during the last NLG overhaul. Further investigations identified a batch of NLG and MLG sliding tubes that are possibly affected by a similar condition, which, if not detected and corrected, could lead to NLG or MLG structural failure and subsequent collapse of the gears, possibly resulting in damage to the airplane and injury to occupants. The MCAI requires inspections of affected parts, applicable corrective actions, and eventual replacement of all affected parts.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1295.

EASA AD 2021-0236 specifies procedures for a detailed inspection of the visible chrome surface of affected NLG and MLG sliding tubes for any discrepancies (cracks), a magnetic particle inspection (MPI) and Barkhausen noise inspection (BNI) of affected parts for any discrepancies (cracks), an MPI, eventual replacement of affected parts, and corrective actions. Corrective actions include immediate replacement of the NLG or MLG sliding tube or shock absorber. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI described above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in EASA AD 2021-0236 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD This proposed AD would also prohibit the installation of affected parts under certain conditions.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2021-0236 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0236 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0236 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0236. Service information required by EASA AD 2021-0236 for compliance will be available at regulations.gov under Docket No. FAA-2022-1295 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 1,825 airplanes of U.S. registry. Currently, there are no affected U.S.-registered airplanes that would need the required actions because the affected part is not installed on any U.S.-registered airplanes. U.S.-registered airplanes therefore would need to comply with only the parts prohibition specified in this proposed AD.

If an affected airplane is imported and placed on the U.S. Register in the future, the FAA provides the following cost estimates to comply with the required actions in this proposed AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

In 2014, the Department issued a notice of proposed rulemaking (NPRM) titled “Transparency of Airline Ancillary Service Fees and Other Consumer Protection Issues.” 79 FR 29970 (May 23, 2014). In the 2014 NPRM, the Department proposed to enhance consumer protections through various means, including the disclosure of certain airline ancillary service fees. In 2017, noting the significant comments received regarding the proposal on ancillary service fees in the 2014 NPRM, the Department issued a supplemental notice of proposed rulemaking (SNPRM) titled “Transparency of Airline Ancillary Service Fees.” 82 FR 7536 (Jan. 19, 2017).

In the 2017 SNPRM, the Department proposed to require fees for a first and second checked bag and a carry-on bag be disclosed at all points of sale wherever fare and schedule information is provided to consumers. The Department further proposed that carriers  1 distribute useable, current, and accurate fee information to ticket agents that receive and distribute the carrier's fare and schedule information, including Global Distribution Systems (GDS). The Department also proposed that the information provided by carriers be detailed enough to allow ticket agents to disclose fees as itinerary-specific or customer-specific ( i.e., fees that are differentiated based on factors specific to the passenger or proposed itinerary) charges. However, the SNPRM did not propose to require that consumers be able to purchase these ancillary services through ticket agents ( i.e., did not propose transactability).

The Department withdrew the SNPRM on December 14, 2017. In the notice of withdrawal of proposed rulemaking, 82 FR 58778 (Dec. 14, 2017), the Department stated that its existing requirements provide consumers information regarding fees for ancillary services and noted that the withdrawal was consistent with Executive Order (E.O.) 13771, “Reducing Regulation and Controlling Regulatory Costs,” which has since been revoked. 2

On July 9, 2021, the President issued E.O. 14036, “Promoting Competition in the American Economy,” which launched a whole-of-government approach to strengthen competition. E.O. 14036 includes 72 initiatives by more than a dozen Federal agencies to promptly tackle some of the most pressing competition problems across our economy. It directed the Department to take various actions to foster competition and promote the interests of American workers, businesses, and consumers. Specifically, section 5, paragraph(m)(i)(F) of E.O. 14036 states that “[t]he Secretary of Transportation shall: . . . not later than 90 days after the date of this order, consider initiating a rulemaking to ensure that consumers have ancillary fee information, including “baggage fees,” “change fees,” and “cancellation fees,” at the time of ticket purchase.” This rulemaking implements section 5, paragraph(m)(i)(F) of E.O. 14036. 3

The Department regularly receives input from stakeholder groups, including airlines and consumer advocacy groups, regarding air transportation-related concerns. Consumer advocates have consistently stated to the Department that there is a market failure in air transportation pricing because consumers are unable to determine the true cost of air travel prior to ticket purchase. They have also raised concerns about the lack of competition in the industry. The Department's full fare rule in 14 CFR 399.84 is designed to ensure the price stated is the entire price required to be paid by the consumer for air transportation. In the context of the full fare rule, air transportation is the transport of the passenger on an aircraft from one location to another location and includes all charges the passenger must pay for this service. The existing regulation does not require that the full fare quoted include the many kinds of ancillary fees consumers may pay for optional services. Consumer advocates have asserted that a lack of passenger specific information regarding fees for ancillary services at the time of ticket purchase is causing a market failure by limiting the ability of consumers to understand the true cost of the travel that they are looking to purchase and to compare pricing between carriers and travel options. Many services or products traditionally included in the price of an airline ticket such as checked baggage and meals are now sold separately. Ancillary service means any optional service related to air travel provided by a carrier, for a fee, beyond passenger air transportation. Such service includes, but is not limited to, checked or carry-on baggage, ticket change and cancellation, advance seat selection, access to in-flight entertainment program, and in-flight beverages, snacks, or meals.

Certain members of Congress and State governments representing constituents have expressed support for full, more specific, disclosure of ancillary service fees. Certain members of Congress have also sponsored legislation on this topic. 4 Further, the Joint Explanatory Statement of the 2018 Consolidated Appropriations Act requested that the Department work in collaboration with industry, consumers and other stakeholders to establish guidelines on transparency of airline ancillary fees. 5 Subsequently, the Department tasked the Aviation Consumer Protection Advisory Committee (ACPAC) with examining this issue. 6 The ACPAC heard from several consumer advocacy groups, including Travelers United, the National Consumers League, and the Global Business Travel Association regarding this issue. Consumer organizations that presented to the ACPAC stressed the importance of ensuring consumers can accurately and easily compare travel costs, inclusive of ancillary fees, and they recommended that ancillary fee information should be clearly displayed early in consumer purchase decisions. 7 The 2020 ACPAC recommended that the Department should remain vigilant to ensure compliance with the transparency requirements that currently exist. 8 Prior DOT advisory committees have also addressed the issue of ancillary service fee transparency. In 2010, the Future of Aviation Advisory Committee advised generally that DOT “should ensure transparency in air carrier pricing, including ancillary fees.”  9 In 2012, the Advisory Committee on Aviation Consumer Protection adopted this recommendation and added that all participants in the airfare and fee distribution system should be guided by principles of transparency, providing choices and offers that meet consumer needs, and knowing the full price before purchase. 10 Then in 2015, the Advisory Committee on Aviation Consumer Protection recommended that DOT require change/cancellation fees be clear and displayed before ticket purchase. 11 Consumer advocates had asserted that such fees had become significant and difficult to ascertain. 12

Most recently, in June 2022, the ACPAC again addressed the issue of transparency of airline ancillary service fees. 13 During the meeting, DOT solicited comment on the key topics of this NPRM (namely, which ancillary service fees are critical for consumers, airlines sharing data regarding critical ancillary service fees with ticket agents, and how to best display this information to consumers). DOT also solicited comment on whether fees for certain ancillary services should be disclosed at the first point in a search process where a fare is listed.

Consumer advocates expressed the view that because most passengers travel once per year or less, they may not be aware of certain ancillary service fees, such as those related to seat selection. 14 Advocates also argued that the practice of “drip pricing,” in which sellers advertise a portion of the full price and then reveal additional charges over time tends to lock consumers into engaging with a given seller, and reduces competition, because the customer has invested time and energy into the purchasing process and thus is less likely to abandon the purchase entirely and re-institute a fuller search for options. 15

This NPRM builds on the Department's final rule in 2011 regarding the disclosure of ancillary service fees by carriers and ticket agents. 76 FR 23110 (April 25, 2011). The 2011 final rule requires carriers to list on their website all ancillary service fees on a page that is directly linked from their main websites. The Department allows carriers to display the fees for ancillary services in a range, except for baggage information. For baggage, the Department requires that carriers provide specific baggage fee information to enable the consumer to determine the cost of the baggage. In addition, carriers and ticket agents are required to disclose, upon displaying the result of an itinerary search, that baggage fees may apply and refer the consumer to the location on the airlines' or ticket agents' website where the consumer can review baggage fee information to determine the fees that would apply to him or her. While the Department considers the disclosure requirements in its 2011 final rule to be a step in the right direction, based on feedback from consumer advocacy groups and others since publication of the 2011 final rule, DOT has determined that these requirements were insufficient and did not fully provide transparency of ancillary services and products.

Since the issuance of the 2011 final rule, consumer advocacy organizations have regularly reported to the Department that consumers often find the process of determining the baggage fees that apply to them to be a complicated and time-consuming process. In 2019, during a meeting of the Aviation Consumer Protection Advisory Committee, two consumer organizations underscored the difficulties faced by consumers in determining the total cost of air travel. 16 Consumer advocates maintain that consumers are confused by the complex charts that carriers and ticket agents provide to consumers to determine their baggage fees. In September 2017, the Government Accountability Office (GAO) noted that consumer group representatives stated that it has become “increasingly difficult for consumers to compare airfare ticket prices, fees, and associated rules, and understand what is included in their purchases.”  17 In December 2017, after the Department withdrew its January 2017 SNPRM on transparency of airline ancillary fees, a coalition of 16 States' attorney generals urged the Department to reverse its decision, stating that they “regularly hear reports from consumers in [their] states who are confused and frustrated by these fees, which significantly alter the total cost of travel.”  18 The Department also receives consumer complaints that reflect the confusion consumers experience regarding fees for baggage. Further, consumer advocates contend that the ancillary services and fees that airlines post on their websites are not useful to consumers to determine the cost of travel because airlines generally provide a range of fees for ancillary services aside from baggage. Airlines acknowledge that the fees for ancillary services often vary based on various factors such as the type of aircraft used, the flight on which a passenger is booked, or the time at which a passenger pays for the service or product. The requirements to provide specific baggage fee information and a range of fees for other ancillary services have not been as helpful to consumers in determining the true cost of travel as the Department had anticipated when issuing its final rule in 2011.

The Department receives hundreds of consumer complaints each year regarding change fees, cancellation fees, 19 and seating fees. 20 The complaints regarding seating fees have included complaints from consumers who state that they were not provided seats next to their young child on a flight. Congress instructed the Department to review airline seating policies and consider establishing a policy directing airlines to have policies to enable children who are 13 years of age or younger to sit with a family member over the age of 13 at no additional cost. 21 In July 2022, the Department issued a “Notice Encouraging U.S. Airlines to Have Policies That Enable Children to Be Seated Adjacent to an Accompanying Adult to the Maximum Extent Practicable and at No Additional Cost.”  22 In the notice, the Department provides that airlines should do everything that they can to ensure the ability of parents to sit next to their young children, including allowing every young child to sit next to a parent without charging fees for adjacent seating. It is also worth noting that consumer comments in the 2014 NPRM strongly supported Department action on disclosure of ancillary service fees. 23

Based on a review of consumer complaints, comments received in the 2014 NPRM, feedback received from consumer advocacy organizations, and the work of various advisory committees, the Department believes that many consumers continue to be unsatisfied with the level of disclosures they receive regarding ancillary service fees. The Department believes, based on a review of consumer complaints and discussions at past advisory committee meetings, that the current disclosure requirements are not sufficient. It is difficult for consumers to determine the best and most cost-effective flights when fee information for essential services such as ticket changes or cancellations, family seating, or baggage is not readily available. There is a need for a rulemaking on transparency of airline ancillary fees to address difficulties that consumers have in finding ancillary service fee information, which limits consumers' ability to determine the true cost of travel and to adequately compare airline pricing. In issuing this rulemaking, the Department intends to protect consumers from hidden and deceptive fees and enable them to determine the true cost of travel in an effective and efficient manner when they price shop for air transportation.

The Department is issuing this rulemaking pursuant to its statutory authority in 49 U.S.C. 41712 to prohibit unfair and deceptive practices in air transportation and the sale of air transportation. A practice is “unfair” to consumers if it causes or is likely to cause substantial injury, which is not reasonably avoidable, and the harm is not outweighed by benefits to consumers or competition. 24 A practice is “deceptive” to consumers if it is likely to mislead a consumer, acting reasonably under the circumstances, with respect to a material matter. A matter is material if it is likely to have affected the consumer's conduct or decision with respect to a product or service. 25 Proof of intent is not necessary to establish unfairness or deception. 26 The elements of unfair and deceptive is further elaborated by the Department is its guidance document. 27

Pursuant to its authority under section 41712, the Department proposes to require that airlines and ticket agents disclose bag fees for a first and second checked bag and a carry-on bag, family seating fees for a young child traveling with an adult, as well as change and cancellation fees and policies whenever fare and schedule information is provided to a consumer in response to a passenger-specific or anonymous itinerary search on a website marketed to U.S. consumers where air transportation is advertised or sold. This includes, but is not limited to, the first place a fare is stated in search results. The Department's tentative basis for concluding that the practices this NPRM would prohibit are unfair and deceptive is articulated in the paragraphs that follow.

The Department tentatively considers not displaying bag fees, which have historically been included in the airfare ( i.e., fee for first and second checked bag and carry-on bag) but are now often broken out from the airfare, in a passenger-specific manner whenever fare and schedule information is provided to be an unfair practice because it causes or is likely to cause substantial injury, which is not reasonably avoidable, and the harm is not outweighed by benefits to consumers or competition.

The substantial injury this practice is likely to cause is the additional time spent searching to find the total cost of travel and any additional funds spent on air transportation that might have been avoided if the consumer had been able to determine the true cost of travel up front and readily select the best price. This harm is not reasonably avoidable even with the disclosures mandated in the 2011 final rule that improved consumer access to first and second checked bag and carry-on bag fee information by requiring those fees to be displayed on airlines' and ticket agents' websites. Airlines and ticket agents continue to disclose bag fees in a static format in complex charts that are confusing to consumers and that are not readily available at the moment consumers need the information to comparison shop. Further, in connection with complex itineraries, interline tickets, and even some code-share flights, consumers are still reporting confusion regarding the total cost of baggage fees. The harm that consumers experience is not outweighed by benefits to consumers or competition because consumer confusion about applicable bag fees harms, rather than benefits, competition. The Department believes that the disclosure of passenger-specific fees whenever fare and schedule information is provided would promote informed buyers, enhance competition, and lower prices.

The practice of not displaying passenger-specific fees for first and second checked bags and carry-on bags when fare and schedule information is provided is also deceptive in that it misleads consumers into believing the total purchase price from one carrier or ticket agent is cheaper than that of another when that may not be the case. This belief is reasonable as carriers and agents often display only the air fare and not these bag fees during an itinerary search. As carriers have different policies regarding the fees and limitations imposed to transport baggage, and because variation within each carrier depends on the fare category purchased or the status of the passenger, the current requirement that carriers and ticket agents provide a generic notice that “fees for baggage may apply” during the booking process is not providing consumers sufficient notice of the total cost of the air transportation. In addition, although carriers and ticket agents are required to inform consumers during the booking process about where consumers can see baggage fees, consumers are often diverted to complex charts that are confusing, prolong the consumer's process of evaluating itineraries and fares for purchase, and may ultimately not be instructive for many consumers in determining the bag fee that would apply to them. The cost of the first and second checked bag and carry-on bag is often material to consumers, as knowing such costs in conjunction with the ticket price is likely to affect the consumer's purchase decisions. According to the GAO, since airlines first imposed checked baggage fees, the number of checked bags per passenger has declined. GAO also explains that checked baggage fees have led to greater amounts of carry-on baggage. 28

The Department tentatively considers the practice of not clearly disclosing passenger-specific change and cancellation fees and policies during the ticket purchase process to be an unfair practice because it causes or is likely to cause substantial injury, which is not reasonably avoidable, and the harm is not outweighed by benefits to consumers or competition.

The Department currently requires the disclosure of these fees on or with the ticket. 29 However, this requirement means that consumers often receive information about these fees after the purchase of the ticket is already made ( i.e., upon receipt of the ticket confirmation), which is not sufficient disclosure. The practice of not disclosing these fees early in the process and prior to ticket purchases causes substantial injury to consumers in that passengers may purchase tickets without adequate notice that they could incur significant fees to change or cancel their tickets, that they are not entitled to a refund in the original form of payment if they do cancel, or that there are other restrictions on their ability to change or cancel their tickets. These harms are not reasonably avoidable if the carrier or ticket agent does not provide disclosures on their cancellation or change policies during booking. Carriers may have separate web pages that contain such policy and fee information, but this information may be in a range, so consumers may not know the specific change or cancellation fee that would apply to them. Moreover, even if not in a range, change and cancellation policies and fees may not be simple to understand, as fare categories, passenger status, ticket type ( e.g., award ticket purchases), and other factors may impact the applicable change and cancellation fees and policies. Further, because the cancellation and change fee information is not provided during the booking process, consumers would need to interrupt their booking process to search for the information and extend the time needed to complete a booking. The harm that consumers experience is not outweighed by benefits to consumers or competition because, like baggage fees, consumer surprise or confusion about applicable change and cancellation fees after airfare purchase harms, rather than benefits, competition. The Department believes that the disclosure of passenger-specific or non-passenger-specific change and cancellation fees whenever fare and schedule information is provided would promote informed buyers, enhance competition, and lower prices.

The Department also tentatively considers the practice of not displaying change and cancellation fees when fare and schedule information is provided to be deceptive. Without proper notice, consumers acting reasonably would be misled with respect to the change and cancellation policies that apply to their ticket and may believe that change or cancellations are possible at no fee or at a reduced fee. The Department has received complaints from consumers expressing surprise at the high level of the fees that have been imposed, in some cases, cancellation or change fees are higher than the fare paid by the consumer. Comments in a prior DOT rulemaking on ancillary fees also support the importance of disclosure of change and cancellation fees to consumers. 30 The change and cancellation fees are therefore material because they could affect the consumer's decision on whether to purchase an airline ticket and if so, which airline to select. As such, the Department is of the tentative view that not displaying change and cancellation fees when fare and schedule information is provided is deceptive.

For similar reasons, the Department tentatively considers the lack of fee disclosure for adjacent seating when fare and schedule information is provided and restrictions on purchasing those seats at all point of sale to be an unfair practice for those traveling with a young child. This lack of disclosure and transactability of family seating information causes or is likely to cause substantial injury, which is not reasonably avoidable, and the harm is not outweighed by benefits to consumers or competition.

The practice causes substantial harm to consumers in that passengers may face situations in which they are unexpectedly separated from their children on flights or must pay unexpected fees to remain with their children. Also, despite information about carrier family seating policies being available on airlines' websites, the harm is not reasonably avoidable because a reasonable consumer would not believe that it is necessary to pay fees to be seated next to his or her young child and would not know to search for this information on an airline's website before purchasing the ticket. Even if the family seating fee is disclosed when fare and schedule information is provided that alone would not be sufficient. Transactability is necessary because consumers are not able to save the seat or lock in the price for adjacent seating at the time of ticket purchase.

The number of family seating complaints that the Department receives against airlines is low  31 but these consumers note being confused about the seating policies and fees that apply to them and the harm that they face is significant. A substantial harm may be demonstrated by a large amount of harm to a small number of people. 32 The likelihood of consumers being unexpectedly separated from their children on flight may increase when consumers purchase their tickets from a ticket agent without realizing that the fare category ( e.g., basic economy) or the method of booking ( e.g., the ticket agent arranged for separate bookings for each family member) selected did not adequately enable them to ensure adjacent seats. The need to consult a separate web page during the booking process also presents the potential for increased confusion and a prolonging of the ticket purchase process. The Department looks at this element from the perspective of an ordinary consumer acting reasonably under the totality of the circumstances. Further, DOT concludes that the harm is not outweighed by benefits to consumers or competition. The Department believes that the disclosure of the family seating fees when fare and schedule information is provided and the ability to purchase those seats at all points of sale would promote informed buyers, enhance competition, and lower prices.

The Department also tentatively considers failing to disclose potential family seating fees when fare and schedule information is provided to be a deceptive practice. 33 The lack of such fee information is likely to mislead consumers into believing that families will be able to be seated next to their children free of charge. It would also be a deceptive practice to disclose the family seating fees but then not allow consumers to purchase those adjacent seats at all points of sale. The inability to purchase those seats immediately could mislead consumers as prices for seats are often dynamic and change based on availability and time of purchase. As evidenced by the consumer complaints the Department has received on this issue, the Department concludes that consumers have a reasonable belief that young children will be allocated a seat near a parent or guardian traveling with the child, and that the cost of ensuring adjacent seats with a child is material to consumers.

In carrying out aviation economic programs, including issuing this rulemaking under 49 U.S.C. 41712, the Department considers the factors identified in 49 U.S.C. 40101 as being in the public interest and consistent with public convenience and necessity. Under 49 U.S.C. 40101(a)(4), the Department is required to consider the availability of a variety of adequate, economic, efficient, and low-priced services without unreasonable discrimination or unfair or deceptive practices as being in the public interest. The Department is also required by section 40101(a)(12) to consider as being in the public interest encouraging, developing, and maintaining an air transportation system relying on actual and potential competition to provide efficiency, innovation, and low prices. This rulemaking proposes to improve the transparency of airline pricing through the increased disclosure of bag fees, change and cancellation fees, and family seating policies during the ticket purchase process. As carriers vary on their policies for such fees and such information is often not provided during the purchase process, consumers of air transportation may have difficulty comparing the actual and potential costs of accessing the air transportation between different carriers. By improving this transparency, this rulemaking would allow for better comparisons of airline ticket pricing, of which these fees are often a critical component, thereby encouraging price competition.

For the reasons discussed in the Statutory Authority section, the Department has tentatively concluded that the practice of not displaying applicable fees for first and second checked bags and carry-on bags during the ticket purchase process is both unfair and deceptive. For the reasons discussed in the Statutory Authority section, the Department has also tentatively concluded that the lack of disclosure regarding ticket change and cancellation fees and policies and family seating information during the ticket purchase process presents an unfair and deceptive practice.

Pursuant to the Department's regulation at 14 CFR 399.75(b)(1), any interested party may file a petition to hold a hearing on the proposed rule prior to the close of the comment period. As stated in the DATES section, petitions must therefore be received by December 19, 2022.

The Department's regulations 14 CFR 399.75(b)(2) provide that the Department will grant a petition if the petitioner makes a clear and convincing showing that granting the petition is in the public interest. Factors considered in determining whether a petition is in the public interest include: (1) Whether the proposed rule depends on conclusions concerning one or more specific scientific, technical, economic, or other factual issues that are genuinely in dispute or that may not satisfy the requirements of the Information Quality Act; (2) whether the ordinary public comment process is unlikely to provide an adequate examination of the issues to permit a fully informed judgment; (3) whether the resolution of the disputed factual issues would likely have a material effect on the costs and benefits of the proposed rule; (4) whether the requested hearing would advance the consideration of the proposed rule and the General Counsel's ability to make the rulemaking determinations required by § 399.75; and (5) whether the hearing would unreasonably delay completion of the rulemaking. DOT must also provide an explanation of the basis for the decision on a petition. (14 CFR 399.75(b)(3))

The Department is proposing to increase the protections provided to consumers as provided in the summary table below.

In this NPRM, the Department proposes to require entities that advertise or sell air transportation to consumers in the United States to disclose, prior to ticket purchase, the fees for ancillary services that are critical to a consumer's purchasing decision. This means that the proposed requirement would apply to U.S. air carriers; foreign air carriers; ticket agents that sell airline tickets, whether traditional brick-and-mortar travel agencies, corporate travel agents, or online travel agencies (OTA); and metasearch sites that display airline flight search options directly to consumers. However, Global Distribution Systems (GDSs) would not be covered by this proposal as GDSs arrange for air transportation but do not sell or display a carrier's fare to consumers. The Department solicits comment on whether the covered entities should be broader or more limited in scope. For example, regarding ticket agents who sell air transportation, should the proposed requirement to display information about certain critical ancillary services exclude corporate travel agents because the display content is typically negotiated by the business involved?

The airlines and ticket agents that are covered by this rulemaking do not need to be physically present in the United States. Given the expansion of e-commerce, in many cases, airlines and ticket agents can advertise and sell airline tickets to U.S. consumers without being physically located in the U.S. This NPRM would apply not only to airlines or ticket agents that are physically located in the U.S., but also to those that have a website marketed to consumers in the United States and display schedule, fare, and availability information for flights within, to, or from the United States. To determine whether a website is marketed to U.S. consumers, a variety of factors would be considered—for example, whether the website is in English, whether the seller of air transportation displays prices in U.S. dollars or has an option on its website that differentiates sites or pages designed for the United States. The Department requests comment on other factors that may be indicative of the airline or ticket agent doing business in the United States.

Because ticket agents cannot provide ancillary service fee information to consumers unless the information is first provided by carriers to ticket agents, the NPRM proposes to require air carriers and foreign air carriers to provide the fee information for critical ancillary services to all ticket agents that sell or display the carrier's fare and schedule information. While fare, schedule, and availability information are currently provided by the airlines to the GDSs, and by GDSs to the agents that display and sell to consumers, information about the cost of ancillary services is not typically shared. This NPRM would not require airlines to use GDSs to provide ancillary fee information to ticket agents that display or sell airline tickets to consumers although they would be free to do so if they wish. The Department's focus is on ensuring that information about critical airline ancillary services reach consumers using the travel agent channel, regardless of process used, because a significant portion of airline tickets are purchased indirectly through ticket agents. The Department seeks comment on whether the Department should require that carriers provide fee information about critical ancillary services to GDSs. Why or why not?

This rulemaking is intended to ensure that fee information about ancillary services that are critical to a consumer's decision making is disclosed at all points of sale prior to ticket purchase. The Department considers the cost of certain ancillary services to be important to consumers when they choose among air transportation options. Ancillary service means any service related to air travel provided by a carrier, for a fee, beyond passenger air transportation ( i.e., the transport of the passenger on an aircraft from one location to another excluding optional services such as baggage, internet, and advance seat assignment). Ancillary service fees can include charges for things that have traditionally been included in the price of a ticket such as first and second checked bags or meals. It can also include services that airlines have typically charged separate from the airline ticket for many years, such as changing or canceling a reservation.

The ancillary services that the Department has identified as being critical to consumers when they choose among air transportation options are as follows: first and second checked bag, one carry-on item, changing or canceling a reservation, and adjacent seating when traveling with a young child. The fees that consumer commenters to the Department's 2014 NPRM most commonly identified as being of critical importance were baggage, seat assignments and change or cancellation fees. These are also the top three most common ancillary service complaints received by the Department. With regard to seat assignments, although there are fewer complaints about seat assignments for passengers traveling with small children, the complaints illustrate the critical importance parents and guardians place on ensuring that their children are seated next to them. We request comment on whether the Department's list of critical ancillary services should be expanded or reduced. Are there particular ancillary service fees (or set of fees) that have a material impact on the total price paid by the consumer or are of particular importance to consumers? What are the benefits and potential challenges to expanding or reducing the Department's list of critical ancillary services? Comments that are most useful provide information regarding the reasons why additional disclosures should or should not be required. The Department also seeks comment on how to address future adoption by airlines of additional ancillary service fees and how to ensure their disclosure to the extent that they are of critical importance to consumers.

The Department is proposing to require that carriers and ticket agents disclose fees for a first and second checked bag and a carry-on bag on the first page displayed when a consumer conducts a search for air transportation. This would replace the existing requirement to provide a generic notice during the booking process about baggage fees and a link to where the baggage fees can be found on the carrier's website. The fees would need to be adjusted to accurately reflect the itinerary of the passenger, the fare category selected, and the fees applicable to the passenger if the consumer has conducted a passenger-specific itinerary search. In instances where the carrier or ticket agent website displays multiple fare categories ( e.g., basic economy, restricted economy, flexible economy, and business class) for the same itinerary, the NPRM would require the carrier and ticket agent to also display the bag fees applicable to each fare category. Display of the baggage fee by links or rollovers is not permitted but we request comment on whether it should be permitted. The proposed rule would also clarify that airlines and ticket agents may choose to offer ancillary service packages or bundles that include bag fees, alongside the standalone bag fees that would be required to be displayed under this rulemaking. 34

The proposal to disclose baggage fees does not apply to air-tour packages advertised or sold online by ticket agents if the air transportation component is not finalized and the carrier providing air transportation is not known at the time of booking. However, ticket agents in such situations would need to disclose that additional airline fees for baggage may apply and that those fees may be reduced or waived based on the passenger's frequent flyer status, method of payment or other consumer characteristic. When the identity of the carrier providing the air transportation becomes known, the ticket agent would need to provide the specific baggage fee information for the carrier to not only prospective customers, but also those who purchased the air-tour package before the identity of the carrier became known. We request comment on whether this exception for certain air-tour packages adequately addresses concerns of air-tour package sellers. We also request comment on whether such an exception adequately protects consumers.

This rulemaking proposes making change and cancellation fees and policies more apparent to consumers when they book tickets. Under the proposal, carriers and ticket agents would have to display the fee to change a reservation and the fee to cancel a reservation on the first page that appears when a consumer conducts a search for air transportation and a fare is quoted. The fee information would need to be specific to each fare category displayed and adjusted based on passenger-specific information provided by the consumer. For example, if the fare category displayed requires a $50 fee to change the ticket, then the website should display the change fee for the itinerary and fare category as “$50.” If the consumer's status entitles the consumer to no change fees, then the website should display “$0” as the applicable change fee for the itinerary, provided that the consumer has entered passenger-specific information that meets the criteria for no change fees. Display of the cancellation and change fee by links or rollovers is not permitted but we request comment on whether it should be permitted.

In addition to the change and cancellation fees, the Department is proposing to require that carriers and ticket agents provide information about certain aspects of their change and cancellation policies to consumers on the first page that appears when a consumer conducts a search. This information, which may be provided using links or pop-ups adjacent to the pertinent fee, would consist of: (1) a brief summary of the cancellation policy applicable to the consumer's chosen itinerary and fare category, taking into account the consumer's passenger-specific information provided, and (2) a brief summary of the ticket change policies applicable to the consumer's chosen itinerary and fare category, adjusted for the passenger-specific information provided. These brief summaries should provide consumers clear, adequate notice of the rules attached to the chosen itinerary and fare category, including whether ticket changes or cancellations are allowed (as well as when and in what circumstances they are allowed), the form that refunds or airline credits may be provided ( e.g., travel voucher or a credit to the original form of payment), any prohibitions or conditions that may limit the ability to change or cancel a ticket, and other information. The Department seeks comment on this proposal. Should the Department require change fees be disclosed as proposed? If so, how should the Department address the potential need for a consumer to also pay a fare difference between the old and new tickets brought about by dynamic pricing models  35 many carriers employ? Does the material change in fare that occurs with many ticket changes being a potentially larger component of the overall price relative to the change fee itself represent a more confusing situation for consumers? Should the Department only require change fees be disclosed, or should it also require cancellation fees to be disclosed as proposed? Should the Department allow the proposed disclosures to be provided later in the ticket purchase process than proposed in this NPRM? Are there preferred methods for presenting the change and cancellation policy information?

This rulemaking also proposes to require that carriers and ticket agents with websites marketed to U.S. consumers where they sell air transportation display on the last page of the booking process (before the consumer clicks a button that executes the purchase or reservation) a brief statement on whether the carrier or ticket agent permits the consumer's booking to be cancelled without penalty within 24 hours, or whether the carrier or ticket agent permits the consumer to hold the reservation without payment for 24 hours. Under 14 CFR 259.5(b)(4), carriers must currently either permit consumers to cancel their tickets within 24 hours of purchase without penalty, or, alternatively, allow consumers to hold their reservations at the quoted fare for 24 hours without payment, provided that the purchase or reservation is made at least one week before the flight's departure. The policy that the carrier chooses must be disclosed in its customer service plan pursuant to 14 CFR 259.5. The Department is now proposing that the carrier's chosen policy also be disclosed on the last page of the booking process. Although ticket agents are not required to develop customer service plans under 14 CFR 259.5, this rulemaking would also require ticket agents to disclose the ticket agent's policy for allowing consumers to cancel their reservations without penalty soon after purchase or for allowing consumers to hold their reservation without purchase for a specified period. If carriers or ticket agents offer both alternatives, which they are not required to do so, then this information should be disclosed to consumers. The Department seeks comment on this additional disclosure.

The Department is of the tentative view that disclosure of an advance seat assignment fee at the beginning of a booking process is generally not needed because airlines are required to provide a seat with the cost of the air transportation. However, advance seat assignments are of critical importance to families traveling with young children. While these families may not need a guarantee of a particular seat in advance, they are looking for a guarantee that at least one accompanying adult would be seated next to a young child.

Section 2309 of the FAA Extension, Safety, and Security Act of 2016 required the Department to review U.S. airline family seating policies and, if appropriate, establish a policy directing all air carriers providing scheduled passenger interstate or intrastate air transportation to establish policies that enable a child, who is age 13 or under on the date an applicable flight is scheduled to occur, to be seated in a seat adjacent to the seat of an accompanying family member over the age of 13, to the maximum extent practicable and at no additional cost.” Section 2309 provides for an exception when assignment to an adjacent seat would require an upgrade to another cabin class or a seat with extra legroom or seat pitch for which additional payment is normally required. In response to section 2309, the Department's Office of Aviation Consumer Protection issued a notice urging airlines to do everything that they can to ensure the ability of a parent to sit next to his or her young child, including allowing every young child to sit next to a parent, without charging fees for adjacent seating. 36

To the extent airlines do charge fees for a young child to sit next to a parent, the Department is proposing to require carriers and ticket agents to disclose these fees to consumers alongside the quoted fare for each itinerary. More specifically, the NPRM proposes that carriers and ticket agents disclose alongside the fare the seat fee, if any, that could be imposed for aa child age 13 or under to be seated adjacent ( i.e., directly next to, and uninhibited by an aisle or other obstruction) to an accompanying adult in the same class of service, so that consumers are informed on the potential ticket costs. If the carrier does not impose a fee for children 13 or under to be seated next to an accompanying adult, no seat fee disclosure would be required for the carrier's flights. If the carrier does impose fees for children to be assigned seats next to an accompanying adult, then the carrier or ticket agent's website should disclose the fee to select a seat that is part of a pair of available adjacent seats. Display of the fee by links or rollovers is not permitted but we request comment on whether it should be permitted.

The proposal to disclose the fee for adjacent seating for those traveling with a young child whenever fare and schedule information is provided is intended to be performance-based. The Department is not prescribing a particular way for the regulated entities to comply but notes that there are several acceptable means of compliance. For example, to ensure that a consumer receives family seating information as part of the itinerary search results and accompanying fare quotations, a carrier or ticket agent could decide to enable consumers to disclose that a passenger 13 or under will be traveling prior to initiating an itinerary search. A carrier or ticket agent could alternatively decide to display family seating fees for all itinerary searches, regardless of whether a consumer disclosed that a passenger was 13 or under. As another alternative, carriers that do not impose a fee for children 13 or under to be seated next to an accompanying adult would not be obligated to provide any family seating disclosures during the itinerary search and selection process.

As the Department is aware that seat fees can fluctuate frequently, the Department is proposing that family seating fees that are quoted during the itinerary selection process be transactable at the point of ticket purchase, including on ticket agent websites. (See section on “Sharing of Airline Ancillary Service Fee Information with Ticket Agents”, below.)

The Department seeks comment on its proposed disclosures to assist families traveling with young children. Should the Department permit these disclosures to be provided later during the booking process, such as after the stage when a consumer inputs passenger name and age information? Should the Department be more prescriptive about family seat fee disclosure requirements ( e.g., requiring that websites be modified to enable consumers to indicate whether a passenger will be 13 or under prior to initiating the search)? Are there technical or other practical considerations for requiring that family seating fees be disclosed and transactable? Should disclosure be limited to fees or would additional information regarding airline family seating policies be useful to consumers during the ticket purchase process? What disclosure should be required, if any, when no adjacent seats are available at the time of the consumer's ticket purchase? The Department welcomes responses to these questions.

During the 2022 ACPAC meeting, DOT solicited information on the appropriate timing of disclosure for ancillary service fees ( e.g., at the time of an initial display of schedule information, or at other times during the booking process, or at the end of the process before a final purchase). The ACPAC member representing consumers observed that in order to minimize problems with drip pricing, consumers should have information on critical ancillary service fees early in the process; however, he also noted that providing early information on all ancillary fees could lead to consumers being overwhelmed. 37 Specifically, he opined that baggage fees, change/cancellation fees, and seat reservation fees were the biggest “pain points” for consumers that should be disclosed early. Similarly, a consumer advocacy organization suggested that fees for carry-on and checked bags, as well as change/cancellation fees and on-time/cancellation statistics, should be displayed on the first page where a price is quoted. 38

This rulemaking proposes that if a U.S. or foreign air carrier or ticket agent has a website marketed to U.S. consumers where it advertises or sells air transportation, the carrier and ticket agent would disclose the first and second checked bag fee, the carry-on bag fee, the change and cancellation fee, and the seat fee for a child 13 or under to be seated next to an accompanying adult, at the first point in a search process where a fare is listed in connection with a specific flight itinerary. It is important that a consumer be provided fee information for critical ancillary services at the same time as the fare information is being provided to enable the consumer to make an informed purchasing decision. We believe that requiring disclosure during the search process benefits consumers because information disclosed at the last minute may result in some consumers deciding to revisit all the travel arrangements already made and possibly begin the reservation process again to look for flights again.

Regarding disclosure of the fee for a child 13 or under to be seated adjacent to an accompanying adult, the Department is proposing to require carriers and ticket agents enable consumers to purchase the seat fee that is disclosed during the itinerary search at the same time as the ticket purchase. Prices for advance seat assignments are often dynamic and change based on availability and time of purchase. While carriers are prohibited from increasing the change and cancellation fee, the first and second checked bag fee, and the carry-on bag fee after the ticket has been purchased, 39 this is not the case for a seat assignment fee. Carriers are allowed to increase the price of an advance seat assignment until the seat assignment itself is purchased. The Department seeks comment on the timing of the proposed online fee disclosures in this rulemaking.

The Department is proposing that the fee information disclosed to a consumer for critical ancillary services be expressed as passenger-specific charges if the consumer elects to provide passenger-specific information to the carrier or ticket agent, such as frequent flyer type, payment method, or military status. For example, a passenger who is active in the military may be entitled to an additional piece of checked luggage free of charge, or a passenger who has qualified at the highest tier of a carrier's frequent flyer program may be entitled to a maximum checked luggage weight limit of 70 pounds per piece. The carrier or ticket agent would know that a consumer is conducting a passenger-specific itinerary search if the consumer has entered this passenger-specific information either prior to initiating the itinerary search, or if the consumer has logged into his or her account on the carrier or ticket agent's website, provided that the consumer's user profile contains the passenger-specific information.

If the consumer conducting a search elects not to provide passenger-specific information to the carrier or ticket agent ( i.e., the consumer conducts an “anonymous itinerary search”), then the Department is proposing to require carriers and ticket agents to disclose the fees for these ancillary services as itinerary-specific charges. Itinerary-specific refers to variations in fees that depend on, for example, geography, travel dates, cabin ( e.g., first class, economy), and ticketed fare class ( e.g., full fare ticket—Y class). It is essentially an anonymous search. The Department seeks comment on the benefits, risks, and practicability of the proposed distinction between anonymous itinerary searches and passenger-specific searches, as described above.

This NPRM does not propose to permit airlines and ticket agents to enable consumers to opt out of receiving fee information for critical ancillary services during the search process. The Department seeks comment on whether it should allow carriers and ticket agents to provide consumers an opt-out option from receiving ancillary service fee information that would otherwise be required. Opt-out options could potentially include the choice to opt out of seeing all baggage fee information that would otherwise be required to be displayed (first and second checked bag and carry-on bag), to opt out of seeing fee information related to changing or canceling a reservation, to opt out of seeing seat fee information for a child traveling with an adult, or to opt out of seeing some of those fees. We anticipate that fee information for critical ancillary services will improve the decisions made by consumers but seek comment on whether the volume of information proposed to be displayed would assist or overwhelm consumers and whether or not an opt-out provision would be beneficial to consumers. Is an opt-out provision needed to ensure that consumers can avoid receiving ancillary service fee information that is of no interest to them? We are also interested in learning what impact, if any, lack of an opt-out provision has on the speed of search results or particular display options an airline or ticket agent may provide. For commenters advocating an opt-out option, we also request information about how to define requirements for opt-out options that would adequately protect consumers and ensure any opt-out option is not confusing or abused, for example, preventing opt-outs accomplished through a “click wrap” or “browser wrap” tactic that does not represent a meaningful, intentional choice. The Department may consider adopting an opt-out provision in the final rule upon review of comments received and on further consideration by the Department.

The Department is proposing to require that the fees for ancillary services that are critical to a consumer's purchasing decision be disclosed to consumers using airlines' or ticket agent's websites and mobile websites. Consumers in increasing numbers are using mobile devices to book travel. The Department believes that it is important that the same disclosures that would be provided on airlines' and ticket agents' desktop websites be provided on mobile websites. The Department seeks comment on whether it should also consider specific fee disclosure requirements for airlines' or ticket agents' mobile applications (apps). The Department seeks comment on whether the proposed disclosure requirements should also extend to airline and ticket agent mobile apps, and whether there are any practical distinctions between information accessed on mobile websites and mobile apps. It would be helpful to the Department for commenters to provide data on the percentage of tickets booked on mobile applications, mobile websites, and desktop websites, or other usage statistics that are relevant.

The Department is proposing to allow carriers and ticket agents limited flexibility in how information on ancillary services is displayed on desktop and mobile websites. Although this proposal would require carriers and ticket agents to display information for certain baggage fees, change fees, cancellation fees, and family seating fees at the first point in a search process where a fare is listed in connection with a specific flight itinerary, it permits the use of links or rollovers for other pieces of information. The Department seeks comment on whether links and rollovers would provide the necessary flexibility to allow for design displays that would enhance the user experience and encourage innovation as technology changes. Are additional flexibilities needed to ensure the display of ancillary service fee information does not result in screen clutter? Do rollovers work on mobile devices that have no cursor to hover over a link? Considering the screen size of mobile devices, would the proposed display requirement work on mobile platforms? Will there be a danger of too much unnecessary information creating confusion if fees that are not under consideration are displayed and are there ways the “too much information” can be mitigated? The Department also requests that commenters provide information as to whether hyperlink or other disclosures not adjacent to the fare on mobile sites would or would not be effective. Should the disclosure requirements be limited to websites accessed through desktop applications and not apply to those accessed through mobile applications?

In addition to the online disclosures proposed by this rulemaking, the Department is proposing similar disclosures for tickets purchased using offline means ( i.e., tickets purchased by telephone or at the ticket counter). Under the proposal, ticket agents and carriers would have to disclose to consumers purchasing tickets in-person or on the phone the specific baggage fees, change fees, cancellation fees, and family seating fees that apply to an itinerary for which a fare is quoted to the consumer, adjusted based on the passenger's frequent flyer status, method of payment, or other consumer characteristic. During a given encounter (phone call, visit), the Department is proposing that a ticket agent or carrier not wait until after the consumer has decided to make the reservation or purchase the ticket to disclose the baggage fees, change fees, cancellation fees or family seating fees that may apply. Instead, the disclosure would be required to be made at the time that the schedule information is being provided to the consumer during the “information” and “decision-making” portion of the conversation. In essence, a carrier or ticket agent would not be in compliance if it were to provide a quote for a ticket price over the phone or in-person without also providing the baggage, change, cancellation, and family seating fees that apply.

The Department seeks comment on its proposals that carriers and ticket agents inform consumers of the bag fees, change and cancellation fees, and family seating fees that apply when consumers attempt to purchase airline tickets offline, in person, or on the phone. The Department is also interested in obtaining input on alternative options for providing such fee information on the phone or in person ( e.g., explaining that fees may apply and referring the consumer to the carrier or ticket agent's website, provided that the website is accessible to consumers with disabilities).

Under this proposal, airlines would be required to distribute fee information for critical ancillary services to ticket agents that sell or display the airlines' fare and schedule information. Carriers would not be required to distribute ancillary service fee information to any ticket agent to whom the carrier does not choose to distribute its fare, schedule, and availability information. In other words, if a carrier does not share fare information with a ticket agent, then this proposal would not require that carrier to share ancillary service fee information with that ticket agent.

Also, under this proposal, the method and channels that carriers use to distribute fee information to ticket agents would be left to the discretion of the carrier. 40 The Department is not proposing to require carriers to distribute ancillary service fee information to GDSs because GDSs arrange for air transportation and do not sell or display a carrier's tickets directly to consumers. By not requiring that ancillary service fee information be provided to GDSs, the Department is attempting to minimize government interference with business relationships. However, carriers are free to distribute this information to GDSs if they choose to do so. GDSs may provide the lowest cost and most efficient way of distributing this information to ticket agents that sell or display the carrier's ancillary services. Most ticket agents currently receive airline fare information through GDSs and rely on GDSs as an efficient source of data. Using GDSs may facilitate display of critical airline ancillary services. Airlines and ticket agents would have to work in good faith to come to agreement on the method used to transmit the ancillary service fee information.

The Department solicits comment on its preliminary decision not to require airlines to share ancillary service fee data with GDSs. Should the Department require carriers to distribute the ancillary service fee information to all ticket agents, including GDSs, to which the carrier provides fare, schedule, and availability information? How would OTAs and metasearch sites receive ancillary service fee information from multiple airlines and disclose that information to consumers if airlines do not provide that information to GDSs? The Department is striving to find the most beneficial disclosure rule for consumers while avoiding any adverse impact on innovations in the air transportation marketplace, contract negotiations between carriers and their distribution partners, and a carrier's ability to set its own fees and fares in response to its own commercial strategy and market forces.

The Department is proposing that U.S. and foreign air carriers provide ticket agents ancillary service fee information that is usable, accurate, and accessible in real-time. It would not be sufficient for carriers to provide static pricing to ticket agents. Under this NPRM, carriers would be expected to facilitate the ability of ticket agents to access certain baggage fee, change fee, and cancellation fee information in a non-static, dynamic fashion. The Department does not prescribe the method that carriers would use to distribute the information as it wants to minimize government interference and encourage innovation. A carrier may choose to distribute ancillary fee information through GDSs if it provides the lowest and most efficient way to comply, given that many airlines and ticket agents use GDSs today. In the United States, three GDSs (Sabre, Travelport and Amadeus) distribute the airline product for the ticket agent channel, and most airlines use the GDSs to distribute their products to ticket agents, including corporate travel agents that sell the higher revenue tickets. In the alternative, airlines may choose to distribute the ancillary fee information through direct connections between airline reservations systems and ticket agent systems. Another option may be to distribute ancillary fee information using the International Air Transport Association's (IATA) New Distribution Capability (NDC), which is essentially an XML-based technical standard for use in airline distribution. The Department would expect airlines to work in good faith with ticket agents to come to agreement on the method used to transmit the ancillary service fee information.

Under this proposal, carriers would not be required to provide information to ticket agents about individual customers but rather the itinerary-specific and passenger-specific information that would impact the fee for a critical ancillary service. The Department expects that carriers and ticket agents would modify how searches for flights are done to allow consumers to identify any passenger-specific factors that may impact the fees that consumers might pay for critical ancillary services. This would enable consumers to better understand the total cost of the air transportation to them.

Under this proposal, the practice of collecting a fee from consumers for critical ancillary services without disclosure of this fee during the search process would be deemed an unfair and deceptive practice in violation of 49 U.S.C. 41712. Any fee that has been unlawfully imposed and collected would need to be refunded to consumers by the seller of the air transportation.

The 2017 SNPRM did not propose that ancillary service fees be transactable. At the 2022 ACPAC meeting, representatives of the travel technology industry recommended that the Department require ancillary fee information to be provided to ticket agents in a transactable format so that consumers would not have to engage in a separate transaction to complete the full purchase of air travel. 41 Airlines stressed that they value transparency of fare and ancillary fee information across all channels, and argued that fee information is often made available to GDSs and third-party sellers, but that information may not be adequately transmitted to consumers. 42

The Department is not proposing to require that certain ancillary services ( i.e., first and second checked bag, one carry-on item, and changing or canceling a reservation) be transactable at all points of sale. Requiring transactability at all points of sale would mean requiring airlines to permit online travel agencies to sell these ancillary services. The Department is of the tentative view that this is unnecessary, given the regulatory limitations placed on increasing these fees following a ticket purchase, as discussed above.

The Department has not identified evidence of consumer harm resulting from a lack of transactability of baggage, change, or cancellation fees. A consumer would pay a change or cancellation fee only if the consumer makes a change or cancels a reservation. There is nothing to transact at the time of ticket purchase. Also, the change and cancellation fee that a consumer would pay cannot increase after ticket purchase. As for baggage, a consumer is not harmed from not being able to pay a fee to transport a first checked bag, a second checked bag or a carry-on item at the time of ticket purchase because sellers of air transportation cannot increase the fees for these items beyond what existed at the time that the consumer purchased the airline ticket. The Department's existing rule regarding baggage fee price increases and related enforcement policy ensures that the price to transport a first checked bag, a second checked bag, or a carry-on item does not increase following the ticket purchase and before the consumer has the opportunity to purchase baggage transportation services.

Regarding seat assignment fees for a child 13 or under to be seated next to an accompanying adult, the Department is proposing a requirement that ticket agents disclose fees for specific seat assignments. Such a proposal, without transactability, would cause consumers to be presented with seat assignment options that they cannot purchase immediately during the booking process, but which could change by the time a consumer attempts to purchase the seat. There is a risk that consumers would be confused by being presented a seat assignment that they cannot obtain at the advertised price. As such, the Department is proposing to require that carriers and ticket agents make seat fees for a child 13 or under to be seated next to an accompanying adult to be transactable at the time the ticket purchase is made. DOT has encouraged airlines not to impose such a charge, but to the extent they do impose such charges, the proposed rule would require disclosure and transactability. This rulemaking may further incentivize airlines not to charge fees for a young child to sit next to an accompanying adult. The Department welcomes comment on whether airlines' response to this rulemaking would include reducing or eliminating such charges. Also, the Department solicits comment on requiring airlines to disclose that they charge fees for adjacent seating without disclosing the amount and requiring that it be transactable as proposed.

This proposed rule, if adopted, would require carriers and ticket agents to provide passenger-specific baggage fee information (if passenger-specific information is provided by the consumer) for one carry-on item and a first and second checked bag at the first point in a search process where a fare is listed in connection with a specific flight itinerary. The regulation in 14 CFR 399.85(b) requires carriers and ticket agents to state that baggage fees may apply on the first screen where a fare quotation is available and refer consumers to a page on their websites where this information may be obtained. We are tentatively of the view that there would no longer be a need for such a requirement except for certain ticket agent displays related to air tour packages that are unable to provide customer-specific baggage fee information.

In addition to amending 14 CFR 399.85(b), we are considering eliminating the requirement in 14 CFR 399.85(c) regarding disclosure of bag fee information on e-ticket confirmations as it may be of limited use. Current requirements in 14 CFR 399.85(c) provide that carriers and ticket agents must include specific fee information for first and second checked bags and a carry-on item on all e-ticket confirmations for air transportation, and the fee information must take into account factors such as frequent flyer status that affect those charges. Under the proposed rule, consumers would have already received this information during the search process. We request comment on whether there is any benefit in retaining the requirements in 14 CFR 399.85(c) if the proposed requirement to display passenger-specific baggage fee information is adopted.

Also, under the existing regulation in 14 CFR 399.85(a), carriers must promptly and prominently disclose any increase in bag fees and changes in bag allowances on the homepages of their websites for at least three months after the change becomes effective. This NPRM does not propose substantive changes to this requirement and proposes only language changes to clarify the scope of websites the regulation is intended to impact. These proposed changes to 14 CFR 399.85(a) are intended to make the regulation more consistent with other regulations related to carrier and ticket agent websites. We request comment on whether the notice provision in 14 CFR 399.85(a) of the existing regulation would still be useful to consumers if this NPRM is adopted as final.

The Department is also proposing to amend 14 CFR 399.88, which states that any seller of scheduled air transportation within, to, or from the United States is prohibited from increasing the price after the air transportation has been purchased by the consumer, except in the case of an increase in a government-imposed tax or fee if the potential for an increase was disclosed as required prior to purchase. Under 14 CFR 399.88, the prohibition on increasing the price includes increases in fees for ancillary services such as those for checked baggage, carry-on baggage, advance or upgraded seating assignments, pillows and blankets, and meals, regardless of whether these items are purchased along with the air transportation. However, in December 2011, the Department announced that with respect to fees for ancillary services that were not purchased with the air transportation, it would only enforce the prohibition on post-purchase price increases for carry-on bags and first and second checked bags. 43 The application of the prohibition of the post-purchase price increase was also at issue in a lawsuit filed by two airlines against the Department. The court considered the rule as applied under the December 28, 2011, guidance and upheld the Department's rule prohibiting post-purchase price increases as it is currently being applied. 44

The Department is proposing to amend § 399.88 to be consistent with how it is currently being applied. This rulemaking does not propose changes to the existing prohibition in § 399.88 against increasing the price of air transportation after its purchase, nor does it propose additional ancillary services beyond baggage that has traditionally been included in the price of a ticket to be frozen at the time of ticket purchase. In other words, the proposed amendment to § 399.88 would continue to require sellers of scheduled air transportation to apply the bag fee policies and fees that existed at the time the ticket is purchased for the first and second checked bag and carry-on item. For example, if the standard first checked bag fee at the time of ticket purchase is $30 when purchased in advance, $50 when purchased at the airport, and free for an elite frequent flyer, then the passenger would not pay a bag fee if he or she maintains the elite frequent flyer status on the date of travel. However, if the passenger does not maintain the same status and pays for the bag at the airport, the passenger would pay $50 for the first checked bag. The Department seeks comment on its amendment of § 399.88. Should the Department require that the price for ancillary services not purchased with the ticket be frozen beyond first and second checked bag and a carry-on item? For example, should it extend to fees for all baggage (including fees for oversized or overweight bags) or all ancillary services that have been identified as being critical to a consumer's purchasing decision?

Further, the Department is proposing non-substantive changes to the current requirement in 14 CFR 399.84(a) that when a carrier or ticket agent quotes a price in advertising or a solicitation, the price should be the total fare, inclusive of taxes and fees. The proposed changes consist of minor changes to § 399.84(a) to promote readability, as well as additional language to accommodate the ancillary fee disclosures proposed in this NPRM. More specifically, we are proposing that if a consumer wishes to view ancillary service fees such as bag fees incorporated into the total quoted price during an itinerary search, carriers and ticket agents would be permitted to display the total price of the transportation, inclusive of mandatory taxes and fees and the consumer's selected ancillary service fees, more prominently than a price that includes only all mandatory charges. The Department is seeking comment on this clarification to 14 CFR 399.84(a). Again, these language adjustments are not intended to make substantive changes to the full fare rule.

As stated in 14 CFR 399.84(a), carriers and ticket agents may state separately charges included within the single total price on their websites, but such charges may not be false or misleading, may not be displayed more prominently than the total price, may not be presented in the same or larger size as the total price, and must provide cost information on a per passenger basis that accurately reflects the cost of the item covered by the charge. Consistent with this requirement, advertisements that state discounts in the form of percentage-off sales must refer to a discount off the total price to be paid by the consumer for the ticket, unless the airline or ticket agent explicitly states that the discount is based on only a portion of the fare. For example, an advertisement that indicates air transportation is on sale for a percentage off but does not apply the discount to the total price would be misleading if it did not specify that it is a percentage off only the “base” fare or other fare component. When the terms “flight,” “ticket,” or “fare” are used in an advertisement stating a percentage off, a reasonable consumer would understand that the percentage off applies to the total price of the transportation. The Department is of the view that it would be an unfair and deceptive practice for an airline or ticket agent to advertise discounts off a “flight,” “ticket,” or “fare,” without disclosing in the first instance that the discount is only applied to a component of the total price ( e.g., the “base” fare). The practice is unfair in that consumers are likely to encounter higher charges than expected, which can multiply if a consumer relies on the promotional discount for multiple passengers on an itinerary. The harm is not easily avoided due to a lack of clarity in the advertising language that carriers use. The Department has also not identified any benefits to consumers or to competition from this practice. The practice is also deceptive in that the carriers' advertising is likely to mislead consumers into believing that the discount will be applied to the entire ticket price ( i.e., the full fare), rather than only a portion of the price to be paid. The belief that a discount applies to the total price when the advertisement provides a discount off of the “flight,” “ticket,” “fare,” or other terms of this nature, is reasonable. The total required charge that a consumer will be made to pay for air transportation is also material. The Department is also concerned that there is lack of clarity about the meaning of the term “base” fare. In some cases, even offering a discount off the “base fare” may be misleading if, without more clarity, the discount only applies to a portion of the carrier-imposed charges, and not the total amount of carrier-imposed charges ( i.e., the fare for the transportation plus carrier-imposed charges such as fuel surcharges and other mandatory carrier fees). The Department solicits comment on defining base fare to mean all of the carrier-imposed charges included within the total price. The Department is soliciting comment on whether the full fare regulation should be amended to provide greater clarity on this type of advertising.

The Department is tentatively of the view that a six-month implementation period from the issuance date of a final rule would be appropriate for carriers and ticket agents to display a first and second checked bag fee, a carry-on bag fee, change and cancellation fee, and family seating fees to consumers whenever fare and schedule information is provided online. It also provides sufficient time to train agents to provide fee information for critical ancillary services to consumers when providing fare and schedule information in person or over the phone. It also takes into account the time needed for carriers to share ancillary service fee information with ticket agents.

In proposing this implementation period, the Department also considered the time that would be needed for airlines and ticket agents to organize ancillary fee data and reprogram and test their websites. Separately, the Department considers the time needed to determine how ancillary service fee information will be distributed from carriers to ticket agents. At the June 2022 ACPAC meeting, one airline representative indicated that broadly speaking, sharing ancillary fee data with ticket agents is not technologically difficult and could be accomplished within a short time frame. 45 If this proposal were to become a final rule, we would anticipate carriers will work in good faith with ticket agents to ensure that the distribution method and details are worked out well in advance of the display deadline. We request comment on whether the Department should impose a date certain by which carriers must share ancillary service fee information with ticket agents.

We also seek comment on whether proposed implementation periods are too lengthy or too short. If the proposed implementation periods are either too lengthy or too short, how long of an implementation period would be appropriate and why?

The Office of Management and Budget has determined that this proposed rule is a significant regulatory action under Executive Order 12866 and requires an assessment of potential benefits and costs. Accordingly, the Department has prepared a regulatory impact analysis for the proposed rule, summarized in this section and available in the docket.

The proposed rule changes how U.S. air carriers, foreign air carriers, and ticket agents disclose information about certain ancillary fees for flights and changes how certain customers can purchase assigned seats. Ancillary fees are fees for optional services provided by a carrier beyond passenger air transportation. The proposed rule would require carriers and ticket agents to show baggage fees, ticket change fees, and ticket cancellation fees when they first show fares and schedules to consumers searching for flights. The proposed rule would also require the seating fees for children 13 or under to be shown by airlines and ticket agents that display or sell tickets whenever fare and schedule information is provided. In addition, the Department is proposing that consumers be able to transact ( i.e., purchase) these fees from airlines and ticket agents that sell tickets. Finally, the proposed rule would require carriers and ticket agents to provide the same ancillary fee information to consumers buying tickets in person or on the phone.

The regulatory impact analysis uses a basic economic model of asymmetric information as a framework for evaluating the proposed rule. Due to a lack of data and other significant uncertainties, it is not possible to evaluate the effects of the proposed rule quantitatively.

The rulemaking would yield societal benefits if it leads to reduced deadweight loss from inaccurate price calculations or reduced search costs. Inaccurate price calculations lead to overconsumption and can distort consumer perceptions in ways that confer a competitive advantage to producers who produce a lower-quality product. While we lack information to estimate benefits, we calculated a hypothetical example range using methods from earlier rulemakings. At the same time, the rulemaking could conceivably lead to crowding out of relevant information for some consumers. The potential effect represents an offset to benefits, and it is possible that it equals or outweighs the benefits. Thus, it is not possible to quantify at this time whether the proposed rule yields benefits that exceed costs.

The primary costs of the proposed rule are the costs that carriers and ticket agents would incur to share ancillary fee data, modify websites, and allow transactability for assigned seats for children 13 or under. These costs include startup implementation costs as well as ongoing costs. Third parties involved in data exchange, such as global distribution systems (GDSs)) and direct-channel companies, would incur costs as well despite not being directly regulated by the rule. Because these entities are already starting to upgrade systems for market reasons, the cost properly associated with the proposed rule is the cost of requiring them to upgrade earlier than they would without the rule.

Table 1 summarizes the results of the analysis and the potential economic effects of the proposed rule.

Table 2 summarizes the key uncertainties for quantifying or monetizing the economic effects of the proposed rule. The same uncertainties that prevent the estimation of primary impacts preclude the assessment of potential secondary effects, including effects on airfares, ancillary fees, ancillary services, or GDS contracts with carriers and ticket agents. The Department seeks comment on these issues, as well as on potential implementation costs of the proposed rule and the potential changes on consumer search costs and decision-making.

This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This NPRM does not propose any requirement that (1) has substantial direct effects on the States, the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government, (2) imposes substantial direct compliance costs on State and local governments, or (3) preempts State law. States are already preempted from regulating in this area by the Airline Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because none of the options on which we are seeking comment would significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.

When a Federal agency is required to publish a notice of proposed rulemaking (5 U.S.C. 553), the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires the agency to conduct an initial regulatory flexibility analysis (IRFA). An IRFA describes the impact of the rule on small entities (5 U.S.C. 603). An IRFA is not required if the agency head certifies that a rule will not have a significant economic impact on a substantial number of small entities (5 U.S.C. 605).

The Department has prepared an IRFA for this proposed rule, summarized in this section and available at regulations.gov under Docket No. DOT-OST-2022-0109.

The proposed rule would have some impact on U.S. air carriers, foreign air carriers and ticket agents that qualify as small entities. It would also have some impact on Global Distribution Systems (GDSs), but none of the three major GDS companies in the market (Amadeus, Sabre, and Travelport) qualify as small businesses.

A carrier is a small entity if it provides air transportation exclusively with small aircraft, defined as any aircraft originally designed to have a maximum passenger capacity of 60 seats or less or a maximum payload capacity of 18,000 pounds or less, as described in 14 CFR 399.73. In 2020, 28 carriers meeting these criteria reported passenger traffic data to the Bureau of Transportation Statistics. 46

A ticket agent is a small entity if it has total annual revenues below $22 million. 47 This amount excludes funds received in trust for an unaffiliated third party, such as bookings or sales subject to commissions, but includes commissions received. In 2017, the latest year with available data, 7,827 travel agency establishments had annual revenues of less than $25 million. 48 This number overestimates the number of small entities because some establishments may have annual revenues greater than $22 million.

The proposed rule could have impacts on small entities because carriers and ticket agents would incur costs to modify websites and upgrade systems to exchange ancillary fee data. Because the Department could not estimate these costs reliably, it could not determine whether the proposed rule would impose a significant impact on a substantial number of small entities. The Department seeks comment on the potential implementation costs of the proposed rule for small entities.

Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) (PRA), no person is required to respond to a collection of information unless it displays a valid Office of Management and Budget (OMB) control number. The Department invites interested parties to comment on the information collection requirements contained in this document. As prescribed by the PRA, the requirement will not go into effect until OMB has approved the requirement.

This NPRM proposes three new information collections: (1) U.S. air carriers, foreign air carriers, and ticket agents must disclose, during the booking process, applicable fee information for the first and second checked baggage and for carry-on baggage, applicable fee and policy information for changing and cancelling reservations, and, for bookings that involve a passenger 13 or under, the seat fee, if any, for the child passenger to be seated next to an accompanying adult; (2) air carriers, foreign air carriers, and ticket agents must disclose their policy on 24-hour ticket hold or cancellation; and (3) air carriers and foreign air carriers must ensure that partner carriers and ticket agents receive information regarding certain baggage fees, change and cancellation fees and policies, and family seating fee so that the partner carriers and ticket agents can accurately provide such information to consumers and so that the family seating fee can be transactable at the point of ticket purchase.

For each of the information collections, the title, a description of the respondents, and an estimate of the burdens are set forth below:

1. Requirement that U.S. air carriers, foreign air carriers, and ticket agents disclose, during the booking process, the applicable fee information for the first and second checked baggage, one carry-on bag, the applicable fee and policy information for changing and canceling reservation, and the seat fee, if any, for a passenger 13 or under to be seated next to an accompanying adult.

Title: Disclosure of Ancillary Fees and Policies During the Air Transportation Booking Process:

Respondents: U.S. carriers, foreign air carriers, and ticket agents that sell or display carrier fare and schedule information to consumers in the United States.

Number of Respondents: We estimate that as many as 206 U.S. air carriers and foreign air carriers and as many as 600 ticket agents may be impacted by this requirement. Our estimate is based on the following information and assumptions: Ticket agents includes online travel agencies (OTAs), brick-and-mortar travel agencies, corporate travel agencies, and tour operators that market airline tickets. There may be approximately 9,500 travel agencies and over 2,500 tour operators in the United States, although not all of those entities market air transportation online to consumers in the United States. In addition, most ticket agents rely on global distribution systems (GDSs) to create online fare and schedule displays. GDSs and entities that create or develop and maintain their own online fare and schedule displays, such as many of the impacted carriers and the largest travel agents, will incur some planning, development, and programming costs to reprogram their systems to provide online displays of fare and schedule information that includes baggage fee information on their websites. For these reasons, we assume that about five percent of United States ticket agents, including GDSs and large travel agencies, or as many as 600 ticket agents, would be impacted by this requirement. Many smaller carriers also rely on GDSs to create online fare and schedule displays so our estimate of 206 impacted carriers may be overstated.

Estimated Annual Burden on Respondents: Approximately 80 hours per respondent. Our estimate is based on the following information and assumptions: the primary costs to respondents for the disclosure requirement would arise from programming, data management, website modification, and other related costs to carriers and ticket agents to display the required ancillary fee information. Revising website displays in this manner would likely be similar to the revisions that carriers and ticket agents needed to make to their websites to comply with the requirement to include all taxes and fees in fare displays (“full fare rule”), as prescribed by the Enhanced Airline Passenger Protections II rulemaking. 49 In that rulemaking, the Department estimated that compliance with the full fare rule would require approximately 80 hours per respondent. 50

The burdens in this rulemaking are expected to be incurred one time by regulated entities. Once the modifications required by this information collection have been incorporated into the websites of regulated entities, we do not expect that this information collection will impose additional ongoing costs, such as website maintenance, for regulated entities who have been operating websites prior to the promulgation of this rulemaking. As currently proposed, this rulemaking would not require the creation of new websites by regulated entities that did not already maintain websites for the purpose of selling air transportation. For those entities selling air transportation through other means, such as by phone, the rule would require that such entities inform consumers about certain ancillary service fees at the time a fare is quoted. Due to the relatively marginal increase in time needed to orally convey the information required by this information collection, the burden of this information collection with respect to offline purchases of air transportation is expected to be minimal.

Estimated Total Annual Burden: Approximately 64,480 hours for all respondents (based on an assumption of 16,480 hours for carriers and 48,000 hours for ticket agents). Based on an estimated mean hourly wage of $45.90 for web and digital interface designers, 51 this results in a total annual cost of $2,959,632 ($756,432 for carriers and $2,203,200 for ticket agents).

Frequency: Once information is incorporated into website displays, this rulemaking would not require further modifications to websites. Ongoing website costs (such as for maintenance) are expected to be unchanged by this rulemaking.

2. Requirement that U.S. air carriers, foreign air carriers, and ticket agents disclose on their websites 24-hour hold or cancellation policies.

Title: Disclosure of 24-hour hold or cancellation policy on carrier and ticket agent websites during the booking process.

Respondents: U.S. carriers, foreign air carriers, and ticket agents that sell or display carrier fare and schedule information to consumers in the United States.

Number of Respondents: We estimate that the same regulated entities impacted by Information Collection 1 would be impacted by this requirement. Our estimates include 206 U.S. air carriers and foreign air carriers and as many as 600 ticket agents.

Estimated Annual Burden on Respondents: Approximately 80 hours per respondent. The primary costs to respondents would arise from the design, programming, and modification of websites to display 24-hour hold and cancellation policy information, which is primarily static, prior to the ticket purchase. This rulemaking would not require the creation of new websites by regulated entities that did not already maintain websites for the purpose of selling air transportation.

Estimated Total Annual Burden: This information collection would result in an estimated annual burden of 48,360 hours (based on an assumption of 12,360 hours for carriers and 36,000 hours for ticket agents).

3. Requirement that U.S. air carriers and foreign air carriers ensure that partner carriers and ticket agents receive information regarding certain baggage fees, change and cancellation fees and policies, and family seating fee so the partner carriers and ticket agents can accurately provide such information to consumers.

Title: Disclosure of baggage and other fee information to partner carriers and ticket agents.

Respondents: U.S. air carriers and foreign air carriers that provide fare, schedule, and availability information to ticket agents to sell or display flights within, to, or from the United States.

Number of Respondents: We estimate that approximately 206 carriers will be impacted by this requirement. This includes foreign carriers that may not serve the United States on their own equipment but may sell connecting itineraries between the United States and a foreign point, when at least one of the foreign-to-foreign segments is operated by the foreign carrier.

Estimated Annual Burden on Respondents: Approximately 16 hours per respondent. The proposed information collection would require carriers to either distribute baggage fee and family seating information or make the specific policies, including the calculation of baggage and seat fees applicable for passenger-specific itineraries, available to third parties. Carriers selling tickets in the United States already display baggage and ancillary fee information on their websites, as required by existing regulation (14 CFR 399.85(d)). This information includes the use of baggage fee calculators and other tables accessible to consumers. The rulemaking would require that this information be made available in such a way that partner carriers and ticket agents have access to this information in a non-static, dynamic format such that the partner carriers and ticket agents can disclose baggage fee and family seating information to consumers during each itinerary search and to allow for the purchase of a seat fee for a child passenger at the same time as the ticket purchase. Because partner carriers already have mechanisms to share this information with third parties, the additional modifications that would be required by this information collection are not expected to be significant. Moreover, carriers already share this information with each other ( i.e., partner carriers) to facilitate codeshare and interline ticketing. This potential burden of sixteen hours per respondent, as referenced here, may overestimate the actual burden for most carriers.

Estimated Total Annual Burden: This information collection would result in an estimated annual burden of 3,296 hours. Based on an estimated mean hourly wage of $46.46 for computer programmers, 52 this results in a total cost of approximately $153,132.

The Department invites interested persons to submit comments on any aspect of each of these information collections, including the following: (1) The necessity and utility of the information collection, (2) the accuracy of the estimate of the burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) ways to minimize the burden of collection without reducing the quality of the collected information. Comments submitted in response to this NPRM will be summarized or included, or both, in the request for OMB approval of these information collections.

The Unfunded Mandates Reform Act of 1995 (UMRA) requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. As described elsewhere in the preamble, this proposed rule would have no such effect on State, local, and tribal governments or on the private sector. Therefore, the Department has determined that no assessment is required pursuant to UMRA.

The Department has analyzed the environmental impacts of this proposed action pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) (NEPA) and has determined that it is categorically excluded pursuant to DOT Order 5610.1C, Procedures for Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical exclusions are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). See 40 CFR 1508.4. In analyzing the applicability of a categorical exclusion, the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. Id. Paragraph 4(c)(6)(i) of DOT Order 5610.1C provides that “actions relating to consumer protection, including regulations” are categorically excluded. The purpose of this rulemaking is to enhance protections for air travelers and to improve the air travel experience. The Department does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking.

For the reasons stated in the preamble, DOT proposes to amend 14 CFR chapter II, subchapter F, as follows:

On August 22, 2022 (87 FR 51273), the Commission published in the Federal Register an advance notice of proposed rulemaking concerning Trade Regulation Rule on Commercial Surveillance and Data Security (“ANPR”), with an October 21, 2022 deadline for filing comments. The Commission published the ANPR to seek public comments on the prevalence of commercial surveillance and data security practices that are unfair or deceptive acts or practices under the Federal Trade Commission Act and whether the Commission should prescribe new trade regulation rules or other regulatory alternatives to address them. Interested parties have subsequently requested an extension of the public comment period to give them additional time to respond to the ANPR's requests for comment. 1

The Commission agrees that allowing additional time for filing comments in response to the ANPR would help facilitate the creation of a more complete record. The Commission has therefore decided to extend the comment period for 31 days, to November 21, 2022. A 31-day extension will provide commenters adequate time to address the issues raised in the ANPR.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before November 21, 2022. Write “Commercial Surveillance ANPR, R111004” on the comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the https://www.regulations.gov website. The Commission strongly encourages you to submit your comment online through the https://www.regulations.gov website. To ensure the Commission considers your online comment, please follow the instructions on the web-based form.

If you file your comment on paper, write “Commercial Surveillance ANPR, R111004” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex B), Washington, DC 20580.

Because your comment will be placed on the public record, you are solely responsible for making sure that your comment does not include any sensitive or confidential information. In particular, your comment should not contain sensitive personal information, such as your or anyone else's Social Security number; date of birth; driver's license number or other state identification number or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential”—as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)—including in particular competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c). Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted publicly at https://www.regulations.gov —as legally required by FTC Rule 4.9(b)—we cannot redact or remove your comment, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request.

Visit the FTC website to read this document and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments it receives on or before November 21, 2022. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/siteinformation/privacy-policy.

When applying for a U.S. passport on behalf of a minor under the age of 16, the minor's parents or legal guardians must both execute the passport application, unless the applying parent can demonstrate sole authority to obtain the passport. Currently, if one of the parents or legal guardians does not execute the passport application, the non-applying parent must submit a notarized statement/affidavit consenting to the issuance of a passport for the minor, along with a copy of the parent's identification. Feedback from parents and legal guardians indicates that the notarization of the document can be a difficult requirement to meet and adds more time and expense to the application process. Additionally, when the non-applying parent appears at a passport agency/center counter to complete the statement of consent, they must be turned away and sent to a notary public.

The Department proposes to amend 22 CFR 51.28(a)(3)(i) and (a)(4)(i) and (ii) to allow the non-applying parent or legal guardian to sign a statement of consent before a passport specialist at one of the public passport agency/center counters located within the United States as an alternative to signing it before a notary public when an application is pending at a passport agency/center or overseas post. This counter service will be offered free of charge. This proposal further amends § 51.28(a)(4)(ii) to clarify that where one parent authorizes a person to apply in loco parentis on behalf of a minor, they must demonstrate that they have sole legal authority to execute the passport application on behalf of that minor or that exigent or special family circumstances exist.

This proposal also amends 22 CFR 51.28(a)(3)(ii) by removing from the list of acceptable documentary evidence of sole authority/custody a Consular Report of Birth Abroad (CRBA) listing only the applying parent, because a CRBA is a citizenship document and not by itself evidence of sole authority/custody.

The Department of State is publishing this rulemaking as a proposed rule and is providing 60 days for public comment.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities. This gives greater flexibility to the parents and legal guardians of minor children applying for U.S. passports. Only individuals, and no small entities, apply for passports.

This rulemaking will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This proposed rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. The Department does not anticipate that demand for passport services will change as a result of this rule change. The service described in this rulemaking will be offered free of charge.

The Department has reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive order. The Department finds that the cost of this rulemaking to the public is expected to be minimal, and in fact provides a potential benefit to non-applying parents who may now sign a consent statement before a passport specialist free of charge (while retaining the option of signing before a notary).

The Department of State has considered this proposed rule in light of Executive Order 13563, dated January 18, 2011, and affirms that this regulation is consistent with the guidance therein.

This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this proposed rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of E.O. 13175 do not apply to this proposed rule.

The information collection contained in this proposed rule is pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35, and relates to Office of Management and Budget (OMB) Control Number 1405-0129. As part of this rulemaking, the Department is seeking comment on the administrative burden associated with this collection of information. This proposed rule will result in a change in the design of the DS-3053, the form associated with this collection of information.

Department of State Form DS-3053, which is used to obtain the written consent from the parent or legal guardian of a minor passport applicant when they cannot be present at the time the application is executed, is being revised to be consistent with this rulemaking, to allow the non-applying parent or legal guardian to sign a statement of consent before a notary public or a passport specialist at one of the public passport agency/center counters located within the United States as an alternative to requiring a notarized statement when an application is pending at a passport agency/center.

OMB Control No. 1405-0129, Statement of Consent: Issuance of a U.S. Passport to a Minor Under the Age 16 was last revised on December 15, 2020. The estimated burden is 20 minutes. The Department does not anticipate an increase in burden; however, in addition to comments on the proposed rule itself, the public is invited to comment on the estimated burden.

(1) Type of Information Collection: Revision of a Currently Approved Collection.

(2) Title of the Form/Collection: Non-Applying Parents of Minor Passport Applicants Execution of Form DS-3053 Statement of Consent.

(3) Agency form numbers: DS-3053 Statement of Consent.

(4) Affected public: This information collection will be used by non-applying parents of minor passport applicants.

(5) An estimate of the total number of respondents: The Department estimates that the yearly total of respondents age 17 and under is 416,478.

(6) An estimate of the total annual public burden (in hours) associated with the collection: The average burden associated with the DS-3053 Statement of Consent information collection is estimated to be 20 minutes per respondent. The Department estimates the total annual burden for this information collection to be 138,826 hours.

(7) Submit comments to the Department of State by the following methods:

Department of State:

• Web: Persons with access to the internet may view this document and provide comments by going to the regulations.gov website at: https://www.regulations.gov/index.cfm. Search for Docket No. DOS-2021-0001 or for RIN 1400-AF10.

• Email: PassportOfficeofAdjudicationGeneral@state.gov: You must include the DS form number, information collection title, and the OMB control number in any correspondence.

(8) We are soliciting public comments to permit the Department to:

• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.

• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.

• Enhance the quality, utility, and clarity of the information to be collected.

• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.

Please note that comments submitted in response to this proposed rule are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.

Abstract of proposed collection: This information collection will enable non-applying parents to provide consent to passport issuance to minor applicants before a notary public (current rule) or before either a notary public or a counter passport specialist (proposed rule).

Methodology:

The form introduced by this information collection will be made available online on the Department's website and upon request at participating passport agencies and must be submitted to the Department as noted in this rulemaking.

Accordingly, for the reasons set forth in the preamble, 22 CFR part 51 is proposed to be amended as follows:

The revisions read as follows:

Proposed prices are available under Docket No. R2023-1 on the Postal Regulatory Commission's website at www.prc.gov.

The Postal Service's proposed rule includes changes to prices, mail classification updates, product simplification efforts, and minor revisions to the DMM.

Currently, the Postal Service offers discounts for Carrier Route, High Density, High Density Plus, and Saturation Flats on 5-Digit or 5-Digit Scheme (direct) containers. Similar discounts would now be offered to flat-shaped Marketing Mail pieces on SCF Pallets. This proposed discount will be applicable to Automation and Nonautomation (3-Digit and 5-Digit Presort) Flats, Carrier Route Flats, High Density Flats, High Density Plus Flats and Saturation Flats on SCF Pallets regardless of the entry (None, DNDC, and DSCF). This preparation assures that no bundle sorting is required prior to the final processing plant.

Currently, the Postal Service offers mailing list services for manual correction of name and address on occupant lists and manual sorting of mailing lists on cards by 5-digit ZIP Code.

The Postal Service is proposing to discontinue these two services due to low volume usage and the availability of other Address Management products that allows more efficient access to the same information in an electronic format.

In an attempt to reduce duplicate labels, the Postal Service is eliminating the following legacy labels: PS 153 Signature Confirmation, PS 3800 Certified Mail, PS 3813 Insured Mail $500 and under, and PS 3813-P Insured Mail over $500. These labels will be replaced with IMpb compliant versions. Mailers that continue to use the eliminated labels will be subject to the IMpb Noncompliance Fee.

The Postal Service has been incenting mailers to integrate mobile technology and use innovative print techniques in commercial mail since 2012. These promotions have become an integral way for industry to try new things and innovate their mail campaigns. A 2023 Promotions Calendar is planned with opportunities for mailers to receive a postage discount by applying treatments or integrating technology in their mail campaigns.

These proposed revisions will provide consistency within postal products and add value for customers.

Although exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comments on the following proposed revisions to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.

Accordingly, 39 CFR part 111 is proposed to be amended as follows:

The EPA is proposing to approve a revision to the New Jersey State Implementation Plan (SIP), submitted by New Jersey on July 20, 2009, pertaining to New Jersey's motor vehicle inspection and maintenance (I/M) program. This July 20, 2009 SIP revision submittal consisted of rules and rule amendments to the New Jersey Department of Environmental Protection's rules at N.J.A.C. Title 7, Chapter 27, Subchapter 14, titled “Control and Prohibition of Air Pollution from Diesel-Powered Motor Vehicles (Diesel-Powered Motor Vehicle Inspection and Maintenance Program),” at sections 14.2, 14.4 and 14.6, and related amendments to the “Sampling and Analytical Procedures” at N.J.A.C. Title 7, Chapter 27B, Subchapter 4, titled “Air Test Method 4: Testing Procedures for Diesel-Powered Motor Vehicles,” at section 4.5. Section 7:27B-4.5, which provided for an alternative smoke opacity test standard for model year 1973 and older diesel-powered motor vehicles, has since been rescinded. New Jersey adopted these amendments to encourage increased diesel engine maintenance and repairs, thereby reducing the amount of particulate matter (PM) and other pollutants emitted from diesel engines. Rules approved into the SIP must be enforceable ( see CAA section 110(a)(2)), must not interfere with applicable CAA requirements including attainment of the national ambient air quality standards (NAAQS) or reasonable further progress toward attaining the NAAQS ( see CAA section 110( l )), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions ( see CAA section 193). When submitted in 2009, EPA deferred acting on this SIP revision. However, since the 2009 SIP submittal, New Jersey has made several amendments to its I/M program to improve program performance, and a subsequent SIP revision for the diesel opacity program was approved by EPA and supersedes the July 20, 2009, SIP revision submittal. See 83 FR 21174 (May 9, 2018).

Consistent with EPA's 2018 approval of the State's current opacity cutpoint regulations, the rules in the 2009 SIP submission meet CAA requirements and are consistent with relevant guidance regarding SIP revisions and the enforceability of state rules. The standards set forth in the rules listed above are more stringent than the opacity standards set forth in the EPA's guidance to states. 1 Further, while EPA's 1999 guidance establishes recommendations for states to uniformly establish opacity standards, states have authority under CAA section 209(d) to establish their own in-use standards for motor vehicles.

Emissions of PM, including PM equal to or less than 2.5 microns in diameter (PM 2.5 ) and PM equal to or less than 10 microns in diameter (PM 10 ), contribute to harmful impacts to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires states to submit regulations for controlling PM emissions. On July 20, 2009, New Jersey submitted to EPA a revision to its SIP pertaining to revisions to the New Jersey I/M program. The 2009 submittal consisted of rules and rule amendments to the New Jersey Department of Environmental Protection's rules regarding diesel opacity cutpoints, visible smoke standard for diesel-powered trucks and buses, and exemptions for emergency vehicles. A subsequently approved SIP revision, submitted to the EPA on September 16, 2016, implemented changes to New Jersey's I/M program that include procedures for diesel exhaust after-treatment checks, repealed the rolling acceleration smoke opacity test and the power brake smoke opacity test, and retained only the snap acceleration smoke opacity test.

In addition to the rule changes, NJDEP identified emission reduction credits associated with the program in the July 20, 2009, SIP revision. The EPA is not proposing to approve any emission reduction SIP credit under this rule, for this purpose, at this time, but the State may resubmit a SIP revision to recognize the SIP credit if and when fully developed, available, complete, and quantifiable. There are research efforts supporting the development of emissions quantification methods for heavy-duty inspection and maintenance programs.

The EPA's review of the materials submitted indicates that New Jersey has revised its I/M program in accordance with the requirements of the CAA and 40 CFR part 51. The EPA is proposing to approve the rules and rule amendments to the New Jersey Department of Environmental Protection's rules proposed in the July 20, 2009, SIP revision for N.J.A.C. 7:27-14 and 7:27B-4, with the acknowledgement that this program is superseded by the current New Jersey diesel program that was approved by the EPA on May 9, 2018 (83 FR 21174). The CAA gives states the discretion in program planning to implement programs of the state's choosing as long as necessary emission reductions are met.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule, addressing New Jersey opacity standards for diesel-powered motor vehicles is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Throughout this document, the terms “we,” “us,” and “our” refer to EPA.

The EPA is proposing action on a SIP submittal from Nevada that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the primary and secondary 2012 PM 2.5 NAAQS. The requirement for states to submit a SIP revision of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submittals “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submittals are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submittals, and the requirement to make the submittals is not conditioned upon the EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submittal must address.

The EPA has historically referred to these SIP submittals made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submittals. Although the term “infrastructure SIP” does not appear in the CAA, the EPA uses the term to distinguish this particular type of SIP submittal from submittals that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment SIP” submittals to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submittals required to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NSR) permit program submittals to address the permit requirements of CAA, title I, part D.

Historically, the EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in other cases conveying interpretations that have already been developed and applied to individual SIP submittals for particular elements. 1 The EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (“2013 Infrastructure SIP Guidance”). 2 The EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, the EPA describes the duty of states to make infrastructure SIP submittals to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. The EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submittals. 3 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, the EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submittals need to address certain issues and need not address others. Accordingly, the EPA reviews each infrastructure SIP submittal for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submittals. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, the EPA reviews infrastructure SIP submittals to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Infrastructure SIP Guidance explains the EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program ( e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in the EPA's evaluation of infrastructure SIP submittals because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, the EPA's review of infrastructure SIP submittals with respect to the prevention of significant deterioration (PSD) program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C, title I of the Act and the EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and regulated NSR pollutants, including greenhouse gases. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 Code of Federal Regulations (CFR) 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM 2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions the EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, the EPA's review of a state's infrastructure SIP submittal focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, the EPA evaluates whether the state has a SIP-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submittal, however, the EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program ( i.e., already in the existing SIP) for compliance with the requirements of the CAA and the EPA's regulations that pertain to such programs.

With respect to certain other issues, the EPA does not believe that an action on a state's infrastructure SIP submittal is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by the EPA and existing provisions for PSD programs that may be inconsistent with current requirements of the EPA's “Final NSR Improvement Rule.”  4 Thus, the EPA believes it may approve an infrastructure SIP submittal without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submittal even if it is aware of such existing provisions. 5 It is important to note that the EPA's approval of a state's infrastructure SIP submittal should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

The EPA's approach to the review of infrastructure SIP submittals is to identify the CAA requirements that are logically applicable to that submittal. The EPA believes that this approach to the review of a particular infrastructure SIP submittal is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and the EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when the EPA evaluates adequacy of the infrastructure SIP submittal. The EPA believes that a better approach is for states and the EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, the EPA's 2013 Infrastructure SIP Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submittal for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, the EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes the EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA. 6 Section 110(k)(6) authorizes the EPA to correct errors in past actions, such as past approvals of SIP submittals. 7 Significantly, the EPA's determination that an action on a state's infrastructure SIP submittal is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude the EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submittal, the EPA believes that section 110(a)(2)(A) may be among the statutory bases that the EPA relies upon in the course of addressing such deficiency in a subsequent action. 8

Throughout this document “we,” “us,” or “our” refer to the EPA.

Under section 109 of the CAA, the EPA has established NAAQS for certain pervasive air pollutants (referred to as “criteria pollutants”) and conducts periodic reviews of the NAAQS to determine whether they should be revised or whether new NAAQS should be established. The EPA sets the NAAQS for criteria pollutants at levels required to protect public health and welfare after considering substantial evidence from numerous health studies demonstrating that serious adverse health effects are associated with exposures to these criteria pollutants. 1

Particulate matter includes particles with diameters that are generally 2.5 microns or smaller (PM 2.5 ) and particles with diameters that are generally 10 microns or smaller (PM 10 ). PM 2.5 can be emitted directly into the atmosphere as a solid or liquid particle (“primary PM 2.5 ” or “direct PM 2.5 ”) or can be formed in the atmosphere (“secondary PM 2.5 ”) as a result of various chemical reactions among precursor pollutants such as nitrogen oxides (NO X ), sulfur dioxide (SO 2 ), volatile organic compounds (VOC), and ammonia (NH 3 ). 2

Epidemiological studies have shown statistically significant correlations between elevated PM 2.5 levels and detrimental effects to human health and the environment. The health effects associated with PM 2.5 exposure include changes in lung function resulting in the development of respiratory symptoms, aggravation of existing respiratory conditions, cardiovascular disease (as indicated by increased hospital admissions, emergency room visits, absences from school or work, and restricted activity days), and premature mortality. Individuals particularly sensitive to PM 2.5 exposure include older adults, people with heart and lung disease, and children. 3 Elevated PM 2.5 levels also has adverse secondary effects such as visibility impairment and damage to vegetation and ecosystems.

The EPA first established annual and 24-hour NAAQS for PM 2.5 on July 18, 1997. 4 The annual primary and secondary standards were set to 15.0 micrograms per cubic meter (μg/m 3 ) based on a 3-year average of annual mean PM 2.5 concentrations. Then, on January 15, 2013, in order to provide increased protection of public health, the EPA promulgated a more stringent annual PM 2.5 NAAQS, revising the primary standard to 12.0 μg/m 3 based on a 3-year average of annual mean PM 2.5 concentrations, while retaining the secondary standard at 15.0 μg/m 3 . 5

The CAA requires states to develop a SIP that provides generally for the attainment, maintenance, and enforcement of the NAAQS. In addition, the CAA requires states to make a specific type of SIP submittal, a nonattainment plan submittal, that imposes additional controls for purposes of attaining the PM 2.5 NAAQS, to achieve reductions of PM 2.5 and PM 2.5 precursor emissions.

The general CAA part D nonattainment area planning requirements are found in subpart 1 and the nonattainment area planning requirements specific to particulate matter are found in subpart 4. The subpart 1 statutory requirements for attainment plans include the following: the section 172(c)(1) requirements for reasonably available control measures (RACM)/reasonably available control technology (RACT) and attainment demonstrations; the section 172(c)(2) requirement to demonstrate reasonable further progress (RFP); the section 172(c)(3) requirement for emissions inventories; the section 172(c)(5) requirements for a nonattainment new source review (NNSR) permitting program; and the section 172(c)(9) requirement for contingency measures.

The more specific subpart 4 statutory requirements for Moderate PM 2.5 nonattainment areas include the following: the section 189(a)(1)(A) NNSR permit program requirements; the section 189(a)(1)(B) requirements for attainment demonstrations; the section 189(a)(1)(C) requirements for RACM; the section 189(c) requirements for RFP and quantitative milestones; and the section 189(e) requirement for controls on sources of PM 10 precursors.

Under subpart 4, states with Moderate PM 2.5 nonattainment areas must provide for attainment in the area as expeditiously as practicable but no later than the end of the sixth calendar year after designation. For the 2012 PM 2.5 annual NAAQS, this date is December 31, 2021. In addition, under subpart 4, direct PM 2.5 and all precursors to the formation of PM 2.5 are subject to control unless the EPA approves a demonstration from the state establishing that a given precursor does not contribute significantly to PM 2.5 levels that exceed the PM 2.5 NAAQS in the area. 6

To implement the PM 2.5 NAAQS, the EPA has also promulgated the “Fine Particle Matter National Ambient Air Quality Standard: State Implementation Plan Requirements; Final Rule” (“PM 2.5 Implementation Rule”). 7 The PM 2.5 Implementation Rule provides additional regulatory requirements and guidance applicable to attainment plan submittals for the PM 2.5 NAAQS, including the 2012 annual PM 2.5 NAAQS at issue in this action.

Following promulgation of a new or revised NAAQS, the EPA is required by CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. 8 Those regions found not to be attaining the NAAQS are also given a classification that describes the degree of nonattainment. Under subpart 4 of part D of title I of the CAA, the EPA designates areas found to be violating the PM 2.5 NAAQS, and areas that contribute to such violations, as nonattainment and classifies them initially as Moderate nonattainment areas.

On January 15, 2015, the EPA published initial air quality designations for the 2012 annual PM 2.5 NAAQS for most areas in the United States, effective April 15, 2015. The EPA designated a portion of Imperial County as a nonattainment area for the 2012 annual PM 2.5 standard and classified it as a “Moderate” area, based on ambient monitoring data that showed the area was above 12.0 μg/m 3 for the 2011-2013 monitoring period. 9

As a consequence of the Moderate nonattainment designation and classification, CAA sections 172(c) and 189(a), (c) and (e) required the state of California to submit an attainment plan for the Imperial PM 2.5 nonattainment area within 18 months of the effective date of designation (that is, by October 15, 2016), demonstrating attainment of the NAAQS as expeditiously as practical but no later than the end of the sixth calendar year following the designation, or December 31, 2021, which is the latest permissible attainment date under CAA section 188(c)(2).

Under state law, the local air district with primary responsibility for developing a plan to attain the 2012 annual PM 2.5 NAAQS in this area is the ICAPCD. Also under state law, authority for regulating sources under state jurisdiction in the Imperial PM 2.5 nonattainment area is split between the District, which has responsibility for regulating stationary and most area sources, and CARB, which has responsibility for regulating most mobile sources.

Effective May 7, 2018, the EPA issued a finding that California had failed to submit a timely revision to its SIP as required to satisfy certain requirements under the CAA for implementation for the 2012 annual PM 2.5 NAAQS for the Imperial PM 2.5 nonattainment area. 10 For mandatory SIP requirements under part D, title I of the CAA, such as those for PM 2.5 nonattainment areas, the EPA's finding that a state has failed to make the required complete SIP submission establishes specific consequences. These consequences include the imposition of mandatory sanctions for the affected area if the state has not submitted a complete SIP within 18 months of the finding of failure to submit, in this case by October 6, 2019. 11 Additionally, such a finding triggers an obligation under CAA section 110(c) for the EPA to promulgate a federal implementation plan (FIP) for the area no later than two years from the effective date of the finding if the state has not submitted and the EPA has not approved the required SIP submittal.

The District worked cooperatively with CARB in preparing the “Imperial County 2018 Annual Particulate Matter Less than 2.5 Microns in Diameter State Implementation Plan.” (Imperial PM 2.5 Plan, or “Plan”), which was adopted by the District on April 24, 2018. CARB submitted the Imperial PM 2.5 Plan as a revision to the California SIP on July 18, 2018. On October 29, 2018, CARB submitted Imperial County rules related to the contingency measure element of the attainment plan. 12 On March 19, 2019, we determined that together these submittals addressed our finding of failure to submit and corrected the deficiency that formed the basis for that finding. 13 As a result, the offset and highway sanctions clocks triggered by the finding of failure to submit were permanently stopped, but the EPA's obligation to issue a FIP remained in place.

Section 179(c) of the CAA requires that within six months following the applicable attainment date, the EPA shall determine whether a nonattainment area attained the standard based on the area's design value  14 as of that date, i.e., as of December 31, 2021. 15 In this instance, this determination, also referred to as a determination of attainment by the attainment date or a DAAD, is based on certified data for the period of 2019—2021. Section 179(c)(2) of the CAA requires the EPA to publish the determination in the Federal Register no later than 6 months after the attainment date, that is, in the case of the Imperial PM 2.5 nonattainment area, by June 30, 2022. If the EPA determines that a Moderate area failed to attain, CAA section 188(b)(2) requires the area to be reclassified by operation of law as a Serious nonattainment area.

While the EPA may determine that an area's air quality data indicate that an area met the PM 2.5 NAAQS as of the attainment date, this does not eliminate the state's responsibility under the Act to adopt and implement an approvable attainment plan unless the area also has been granted a CDD. 16 Under the EPA's longstanding Clean Data Policy, which was reaffirmed in the PM 2.5 Implementation Rule at 40 CFR 51.1015, when an area has attained the relevant PM 2.5 standard(s), the EPA may issue a CDD (also sometimes referred to as a determination of attainment for the purposes of the Clean Data Policy or regulations) after notice and comment rulemaking determining that a specific area is attaining the relevant standard(s). A CDD is not linked to any particular attainment deadline and is not necessarily equivalent to a determination that an area has attained the standard by its applicable attainment deadline.

The effect of a CDD is to suspend the requirement for the area to submit an attainment demonstration, RACM, an RFP plan, contingency measures, and any other planning requirements related to attainment for as long as the area continues to attain the standard. 17 With respect to the attainment demonstration requirements of section 172(c) and section 189(a)(1)(B) of the CAA, the EPA finds that if an area already has air quality monitoring data demonstrating attainment of the standard, there is no need for an area to make a further submittal containing additional measures to achieve attainment, nor is there a need for the area to perform future modeling to show how the area will achieve attainment. Similarly, both CAA sections 172(c)(1) and 189(a)1)(C) require provisions to assure that RACM that are necessary to help an area achieve attainment are implemented. Thus, where an area is already attaining the standard, no additional RACM are required. Additionally, the EPA interprets the CAA as not requiring the submittal of RFP and associated quantitative milestones for areas that are already attaining the NAAQS. For areas that are attaining the NAAQS, showing that the state will make RFP towards attainment has no meaning. Similar reasoning applies to other SIP submittal requirements that are linked with attainment demonstration and RFP requirements. The EPA interprets the obligation to submit contingency measures as suspended when the area has attained the standard because those contingency measures are directed at ensuring RFP and attainment by the applicable date. A CDD does not suspend the requirements for an emissions inventory or for new source review. 18

Sections 179(c)(1) and 188(b)(2) of the CAA require the EPA to determine whether a PM 2.5 nonattainment area attained by the applicable attainment date, based on the area's air quality “as of the attainment date.” Generally, this determination of whether an area's air quality meets the PM 2.5 standards is based upon the most recent three years of complete, certified data gathered at eligible monitoring sites in accordance with 40 CFR part 58. 19 The requirements of 40 CFR part 58 include quality assurance procedures for monitor operation and data handling, siting parameters for instruments or instrument probes, and minimum ambient air quality monitoring network requirements. State, local, or tribal agencies that operate air monitoring sites in accordance with 40 CFR part 58 must enter the ambient air quality data and associated quality assurance data from these sites into the EPA's Air Quality System (AQS) database. 20 These monitoring agencies certify annually that these data are accurate to the best of their knowledge, taking into consideration the quality assurance findings. 21 Accordingly, the EPA relies primarily on AQS data when determining the attainment status of an area.

The 2012 primary annual PM 2.5 standard is met when the three year average of the annual arithmetic mean concentration, as determined in accordance with 40 CFR part 50 appendix N, is less than or equal to 12.0 μg/m 3 at each eligible monitoring site (based on the rounding convention in 40 CFR part 50, Appendix N). 22 For the annual PM 2.5 standard, eligible monitoring sites are those monitoring stations that meet the criteria specified in 40 CFR 58.11 and 58.30, and thus are approved for comparison to the annual PM 2.5 NAAQS. 23 Three years of valid annual means are required to produce a valid annual PM 2.5 NAAQS design value. 24 Data completeness requirements for a given year are met when at least 75 percent of the scheduled sampling days for each quarter have valid data. 25 We note that monitors with incomplete data in one or more quarters may still produce valid design values if the conditions for applying the EPA's data substitution test are met. 26 In determining whether data are suitable for regulatory determinations, the EPA uses a “weight of evidence” approach, considering the requirements of 40 CFR part 58, Appendix A “in combination with other data quality information, reports, and similar documentation that demonstrate overall compliance with Part 58.”  27

The State and the District are the governmental agencies with the authority and responsibility under state law for collecting ambient air quality data within the Imperial PM 2.5 nonattainment area. During the 2019-2021 period, CARB and the ICAPCD operated three PM 2.5 state and local air monitoring stations (SLAMS) within the Imperial PM 2.5 nonattainment area; all three sites are located in the southern portion of Imperial County. The Calexico-Ethel monitoring site (AQS ID: 06-025-0005) is operated by CARB and is located approximately 0.7 miles north of the United States-Mexico border. The Calexico-Ethel monitoring site measured the highest 2021 design value  28 within the Imperial PM 2.5 nonattainment area; it is therefore considered the “design value site” for the area. The ICAPCD operates two additional SLAMS: the Brawley monitoring site (AQS ID: 06-025-0007), located in the City of Brawley, 9 miles north of the border, and the El Centro monitoring site (AQS ID: 06-025-1003), located in the City of El Centro, 22 miles north of the border. CARB, as the primary quality assurance organization for the Imperial PM 2.5 nonattainment area, submits annual monitoring network plans to the EPA documenting the status of CARB's air monitoring network, as required under 40 CFR 58.10. 29 The EPA reviews these annual network plans for compliance with specific requirements in 40 CFR 58. With respect to PM 2.5 , we have found that the annual network plans submitted by CARB meet these requirements under 40 CFR part 58, including minimum monitoring requirements. 30

In accordance with 40 CFR 58.15, CARB certifies annually that the previous year's ambient concentration and quality assurance data are completely submitted to AQS and that the ambient concentration data are accurate, taking into consideration the quality assurance findings. 31 Along with the certification letters, CARB submits a summary of the precision and accuracy data for all ambient air quality data. 32

The design value report also includes a validity indicator (“Valid Ind.”) that reflects whether the design value is valid ( i.e., calculated using data that meet the applicable completeness criteria). For the purposes of this proposal, we reviewed the data for the 2019—2021 period for completeness and determined that the PM 2.5 data collected by CARB and the ICAPCD met the 75 percent completeness criterion for all 12 quarters at the Imperial County monitoring sites except for the PM 2.5 data collected at the Brawley monitoring site. 33 The Brawley monitor recorded less than 75 percent data capture during the 2nd quarter of 2021 (37 percent) due to monitor replacement. Because the data substitution test under 40 CFR part 50, Appendix N, section 4.1(c)(ii) requires each quarter to have data completeness of at least 50 percent, the Brawley 2021 data do not qualify for the data substitution test. The Brawley site has not historically been the 2012 annual PM 2.5 design value site for the area. We assessed the long-term trends at the Brawley monitoring site and determined that the site has historically had design values below the annual PM 2.5 NAAQS. During the 2012 to 2021 period, the Brawley monitoring site consistently had lower design values for the 2012 annual PM 2.5 NAAQS than the Calexico-Ethel monitoring site in Imperial County. 34 Furthermore, the District exceeds the PM 2.5 minimum monitoring requirements in the El Centro Metropolitan Statistical Area (MSA). Thus, based on the historical design value concentrations at the Brawley monitoring site relative to the 2012 annual PM 2.5 NAAQS, we find that the incomplete data at the Brawley monitoring site should not preclude the EPA from determining the Imperial PM 2.5 nonattainment area has attained the 2012 annual PM 2.5 NAAQS.

Finally, the EPA conducts regular technical systems audits (TSAs) where we review and inspect state and local ambient air monitoring programs to assess compliance with applicable regulations concerning the collection, analysis, validation, and reporting of ambient air quality data. For the purposes of this proposal, we reviewed the findings from the EPA's most recent TSA of CARB's ambient air monitoring program. 35 The results of the TSA do not preclude the EPA from determining that the Imperial PM 2.5 nonattainment area has attained the 2012 annual PM 2.5 NAAQS.

In summary, based on the relevant monitoring network plans, certifications, quality assurance data, and 2018 TSA, we propose to find that the PM 2.5 data collected at the Imperial County monitoring sites are suitable for determining whether the Imperial PM 2.5 nonattainment area attained the 2012 annual PM 2.5 NAAQS by the applicable attainment date.

Table 1 provides the PM 2.5 design values at each of the three monitoring sites with the Imperial PM 2.5 nonattainment area, expressed as a single design value representing the average of the annual mean values from the 2019-2021 period; the annual mean for each individual year is also listed. 36 The PM 2.5 data show that the design values at the Imperial County monitoring sites were below the 2012 annual PM 2.5 NAAQS of 12.0 µg/m 3 . The Brawley monitoring site recorded less than 75 percent data capture during the 2nd quarter of 2021 (37 percent) due to monitor replacement. As discussed in Section II.B above, based on the historical design value concentrations at the Brawley monitoring site relative to the 2012 annual PM 2.5 NAAQS, we find that the incomplete data at the Brawley monitoring site should not preclude the EPA from determining the Imperial PM 2.5 nonattainment area has attained the 2012 annual PM 2.5 NAAQS. Consequently, the EPA proposes to determine based upon three years of complete, quality-assured, and certified data from 2019 through 2021 that the Imperial PM 2.5 nonattainment area has attained the 2012 annual PM 2.5 NAAQS by its December 31, 2021 attainment date.

As described in section I.C. of this document, when an area has attained the relevant PM 2.5 standard(s), the EPA may issue a CDD after notice and comment rulemaking determining that a specific area is attaining the relevant standard. 37 Based on complete, quality-assured, and certified data for 2019-2021, the Imperial PM 2.5 nonattainment area meets the 2012 annual PM 2.5 standard.

Preliminary data available in AQS for 2022 (January through June) indicate that the area continues to show concentrations consistent with attainment of the 2012 annual PM 2.5 standard. 38 Consequently, the EPA is proposing to issue a CDD.

If we finalize this proposed CDD, the requirements for the State to submit an attainment demonstration, provisions demonstrating RACM (including RACT for stationary sources), an RFP plan, quantitative milestones and quantitative milestone reports, and contingency measures for the area will be suspended until such time as: (1) the area is redesignated to attainment, after which such requirements are permanently discharged; or, (2) the EPA determines that the area has re-violated the PM 2.5 NAAQS, at which time the state shall submit such attainment plan elements for the moderate nonattainment area by a future date to be determined by the EPA and announced through publication in the Federal Register at the time the EPA determines the area is violating the PM 2.5 NAAQS.

A CDD does not suspend the requirements for an emissions inventory or for new source review. This action includes our proposed approval of the 2012 base year emissions inventory included in the attainment plan for the Imperial PM 2.5 nonattainment area, submitted on July 18, 2018. 39 The EPA fully approved the District's new source review program as meeting CAA requirements on August 26, 2019. 40

This rulemaking also addresses the 2012 base year emissions inventory included in the Imperial PM 2.5 Plan, adopted by the District on April 24, 2018, and submitted to the EPA as a SIP revision on July 18, 2018. 41

Imperial County encompasses over 4,000 square miles in southeastern California. Its population is estimated to be approximately 180,000 people, and its principal industries are farming and retail trade. It is bordered by Riverside County to the north, Arizona to the east, Mexico to the south, and San Diego County to the west. The Imperial Valley runs north-south through the central part of the County. Most of the County's population and industries exist within this relatively narrow land area, which extends about one-fourth the width of the County. The rest of Imperial County is primarily desert, with little or no human population. The Imperial PM 2.5 nonattainment area, which encompasses 982.1 square miles, is located within this central portion of the County. It is bordered to the north by the southern end of the Salton Sea and extends south to the Mexico border. The nonattainment area encompasses the three most populous cities in the County (Brawley, El Centro, and Calexico), and includes most of Imperial County's residents. For a precise description of the geographic boundaries of the Imperial PM 2.5 nonattainment area, see 40 CFR 81.305.

CAA sections 110(a)(1) and (2) and 110(l) require each state to provide reasonable public notice and opportunity for public hearing prior to the adoption and submittal of a SIP or SIP revision to the EPA. To meet this requirement, every SIP submittal should include evidence that adequate public notice was given and an opportunity for a public hearing was provided consistent with the EPA's implementing regulations in 40 CFR 51.102.

Both the District and the State satisfied applicable statutory and regulatory requirements for reasonable public notice and hearing prior to adoption and submittal of the Imperial PM 2.5 Plan. The District provided a public comment period and held a public hearing prior to the adoption of the SIP submittal on April 24, 2018. CARB provided the required public notice and opportunity for public comment prior to its May 25, 2018 public hearing and adoption of the SIP submittal. 42 The submittal includes proof of publication of notices for the respective public hearings. We find, therefore, that the Imperial PM 2.5 Plan meets the procedural requirements for public notice and hearing in CAA sections 110(a) and 110(l).

CAA section 110(k)(1)(B) requires the EPA to determine whether a SIP submittal is complete within 60 days of receipt. This section of the CAA also provides that any plan that the EPA has not affirmatively determined to be complete or incomplete will become complete by operation of law six months after the date of submittal. The EPA's SIP completeness criteria are found in 40 CFR part 51, Appendix V. On March 19, 2019, the EPA affirmatively found that the July 18, 2018 and October 29, 2019 submittals fulfill our completeness criteria. 43

CAA section 172(c)(3) requires that each nonattainment plan SIP submittal include a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in the nonattainment area. This base year emissions inventory should provide a state's best estimate of actual emissions from all sources of the relevant pollutants in the area, i.e., all emissions that contribute to the formation of a particular NAAQS pollutant. For the PM 2.5 NAAQS, the base year inventory must include direct PM 2.5 emissions, separately reported filterable and condensable PM 2.5 emissions, and emissions of all chemical precursors to the formation of secondary PM 2.5 , i.e., NO X , SO 2 , VOC, and ammonia. 44

A state's nonattainment plan SIP submittal must include documentation explaining how it calculated the emissions data. In estimating mobile source emissions, a state should use the latest emissions models and planning assumptions available at the time the SIP is developed. At the time the Imperial PM 2.5 Plan was developed, the latest EPA-approved version of California's mobile source emission factor model for estimating tailpipe, brake and tire wear emissions from on-road mobile sources was EMFAC2014. 45 A state is also required to use the EPA's “Compilation of Air Pollutant Emission Factors” (AP-42) road dust method for calculating re-entrained road dust emissions from paved roads. 46 47

Summaries of the planning emissions inventories for direct PM 2.5 and all PM 2.5 precursors (NO X , SO X , 48 VOC, 49 and ammonia) and the documentation for the inventories for the Imperial PM 2.5 nonattainment area are located in Chapter 3 of the Plan. More detailed emissions inventories for the Imperial PM 2.5 nonattainment area are found in Appendix B of the Plan. A more in-depth discussion of the methodology used by CARB and the District to develop projected inventories for modeling is included in Appendix G to Appendix A of the Imperial PM 2.5 Plan.

CARB and District staff worked together to develop the emissions inventories for the Imperial PM 2.5 nonattainment area. The District worked with operators of larger stationary facilities in the nonattainment area to develop the stationary source emissions estimates. CARB staff developed the emissions inventories for both on-road and off-road mobile sources. 50 The responsibility for developing estimates for the areawide sources such as agricultural burning and paved road dust was shared by the District and CARB.

The Imperial PM 2.5 Plan includes annual average emissions inventories for the 2012 base year. The inventory includes emissions from stationary, areawide, and mobile sources. 51 The District developed base year inventories for larger stationary sources using actual emissions reports prepared by facility operators. CARB and the District estimated emissions for smaller stationary sources by using various methodologies reported as an aggregated total. CARB developed the base year emissions inventory for areawide sources using the most recent models and methodologies. 52 For the mobile source inventory, CARB used EMFAC2014 to estimate on-road motor vehicle emissions. 53 CARB calculated re-entrained paved road dust emissions using a CARB methodology consistent with the EPA's AP-42 road dust methodology, and taking into account reductions from District Rules 803, “Carry Out and Track Out” and 805, “Paved and Unpaved Roads.”  54

Table 1 provides a summary of the annual average inventories in tons per day (tpd) of direct PM 2.5 and PM 2.5 precursors for the base year of 2012. For a detailed breakdown of the inventories, see Chapter 3 and Appendix B in the Imperial PM 2.5 Plan.

The inventories in the Imperial PM 2.5 Plan are based on the most current and accurate information available to the State and District at the time the Plan and its inventories were being developed, including the latest version of California's mobile source emissions model at that time, EMFAC2014. The inventories comprehensively address all source categories in the Imperial PM 2.5 nonattainment area and were developed consistent with the EPA's inventory guidance. For these reasons, we are proposing to approve the 2012 base year emissions inventory in the Imperial PM 2.5 Plan as meeting the requirements of CAA section 172(c)(3).

Executive Order 12898 (59 FR 7629, February 16, 1994) requires that federal agencies, to the greatest extent practicable and permitted by law, identify and address disproportionately high and adverse human health or environmental effects of their actions on minority and low-income populations. Additionally, Executive Order 13985 (86 FR 7009, January 25, 2021) directs federal government agencies to assess whether, and to what extent, their programs and policies perpetuate systemic barriers to opportunities and benefits for people of color and other underserved groups, and Executive Order 14008 (86 FR 7619, February 1, 2021) directs federal agencies to develop programs, policies, and activities to address the disproportionate health, environmental, economic, and climate impacts on disadvantaged communities.

To identify environmental burdens and susceptible populations in underserved communities in the Imperial PM 2.5 nonattainment area and to better understand the context of the DAAD, the CDD, and our proposed approval of the emissions inventory on these communities, we conducted a screening-level analysis using the EPA's environmental justice (EJ) screening and mapping tool (“EJSCREEN”). 55 Our screening-level analysis indicates that communities affected by this action score above the national average for the EJSCREEN “Demographic Index,” which is the average of an area's percent minority and percent low income populations, i.e., the two demographic indicators explicitly named in Executive Order 12898. 56 These communities also score above the national average for the “linguistically isolated population,” and “population with less than high school education” indicators. Although the area is attaining the PM 2.5 NAAQS, because almost all areas across the U.S. are also attaining the NAAQS (many by a wider margin), communities within the Imperial PM 2.5 nonattainment area score above the national average for the PM 2.5 EJ index. These communities also score above the national average for other EJ Index indicators, including the respiratory hazard EJ Index.

As discussed in the EPA's EJ technical guidance, people of color and low-income populations, such as those in Imperial County, often experience greater exposure and disease burdens than the general population, which can increase their susceptibility to adverse health effects from environmental stressors. 57 Underserved communities may have a compromised ability to cope with or recover from such exposures due to a range of physical, chemical, biological, social, and cultural factors. 58

Notwithstanding the EJ concerns highlighted by the results of the EJSCREEN analysis, because monitoring data indicate the area has attained the annual PM 2.5 NAAQS, we do not believe this proposed action will have disproportionately high and adverse human health or environmental effects on minority populations and low-income populations. This DAAD, when finalized, will fulfill the EPA's statutory obligation under CAA section 179(c)(1) to determine whether the Imperial PM 2.5 nonattainment area attained the NAAQS by the attainment date. Our final action on the base year emissions inventory will fulfill our statutory obligation to act on SIP submittals under section 110(k)(3).

If we finalize our proposed CDD, requirements related to achieving attainment of the 2012 annual PM 2.5 NAAQS will be suspended, as set forth in 40 CFR 51.1015. Because the area has attained the standard, such requirements are not necessary for timely attainment of the NAAQS. However, if prior to a potential future redesignation to attainment, we determine the Imperial PM 2.5 nonattainment area subsequently violates the NAAQS, we will rescind the CDD and require the area to submit a SIP that addresses the pertinent requirements. 59

Notwithstanding the suspension of certain attainment-related requirements, all requirements adopted into the SIP prior to attainment will remain in place. 60 For example, the PM 2.5 emissions inventory in Imperial County is dominated by dust. Together, unpaved road dust, fugitive windblown dust, and dust from farming operations account for about 76 percent of the 2012 emissions inventory. Dust from mineral processes contributes about 3 percent, construction and demolition activities contribute another 1.44 percent, and dust from paved roads another 1 percent. 61 These sources are controlled by Imperial County's Regulation VIII, which the EPA previously approved as meeting best available control technology measure (BACM) levels of control for PM 10 . 62 Regulation VIII will remain in place and will continue to control emissions that contribute to ambient PM 2.5 .

The EPA notes that there are other efforts underway to reduce environmental burdens in Imperial County. The Imperial PM 2.5 nonattainment area borders Mexico, and the United States and Mexico have long recognized the environmental challenges near the border and share the goal of protecting the environment and public health throughout the U.S.-Mexico border region. The two nations have been working together outside the framework of the SIP process to make progress towards those goals.

The U.S.-Mexico Environmental Program (“Border 2025”) is a five-year (2021-2025) binational effort designed “to protect the environment and public health in the U.S.-Mexico border region, consistent with the principles of sustainable development.”  63 Border 2025 is the latest of a series of cooperative efforts implemented under the 1983 La Paz Agreement. It builds on previous binational efforts ( i.e., the Border 2012 and Border 2020 Environmental Programs), emphasizing regional, bottom-up approaches for decision making, priority setting, and project implementation to address the environmental and public health problems in the border region. As in the previous two border programs, Border 2025 encourages meaningful participation from communities and local stakeholders and establishes guiding principles that will support the mission statement, ensure consistency among all aspects of the Border 2025 Program, and continue successful elements of previous binational environmental programs.

Border 2025 sets out four strategic goals, including the reduction of air pollution and the improvement of water quality, to address environmental and public health challenges in the border region. Within the goals are specific objectives that identify actions that will be taken in support of the program's mission. The goals and objectives were determined binationally between the EPA and the Ministry of Environment and Natural Resources of Mexico (SEMARNAT) to address ongoing environmental challenges and considered input from state and tribal partners. The “California‐Baja California 2021-2023 Border 2025 Action Plan” lists and describes the projects that are being undertaken to achieve the goals and objectives of Border 2025, along with the target outputs, expected results, and status of each action. 64

In addition to the ongoing efforts under the Border 2025 agreement, in 2020, the EPA awarded the ICAPCD $3,350,371 to pave 3.5 miles of residential alleyways in the downtown core of the City of Calexico to reduce PM 2.5 and PM 10 . 65 The EPA subsequently awarded the ICAPCD an additional $3,485,940 to pave 2.5 miles of residential alleyways in the City of El Centro. The resulting reductions of particulate emissions will relieve some of the cumulative burden on disadvantaged communities in the Imperial PM 2.5 nonattainment area.

For the reasons discussed in this document, the EPA is proposing to determine that the Imperial PM 2.5 nonattainment area attained the 2012 annual PM 2.5 NAAQS by its December 31, 2021 attainment date. This action, when finalized, will fulfill the EPA's statutory obligation to determine whether the Imperial PM 2.5 nonattainment area attained the NAAQS by the attainment date.

As provided in 40 CFR 51.1015, we are also proposing a CDD. If the EPA finalizes this proposal, the requirements for this area to submit an attainment demonstration, associated RACM, RFP plan, contingency measures, and any other SIP revisions related to the attainment of the 2012 annual PM 2.5 NAAQS, will be suspended so long as this area continues to meet the standard. This CDD does not constitute a redesignation to attainment. The Imperial PM 2.5 nonattainment area will remain designated nonattainment for the 2012 annual PM 2.5 NAAQS until such time as the EPA determines, pursuant to sections 107 and 175A of the CAA, that the Imperial PM 2.5 nonattainment area meets the CAA requirements for redesignation to attainment, including an approved maintenance plan showing that the area will continue to meet the standard for 10 years.

We are also proposing to approve the Imperial PM 2.5 Plan's 2012 base year emissions inventory as meeting the requirements of CAA section 172(c)(3). As authorized in section 110(k)(3) of the Act, the EPA is proposing to approve the submitted base year emissions inventory because we believe it fulfills all relevant requirements.

As described in Section I.B of this document, the EPA's finding of failure to submit triggered an obligation for the EPA to issue a FIP. The District and CARB ultimately fulfilled their obligation to submit a plan, but because the EPA has not issued a final approval of the Imperial PM 2.5 Plan and because the nonattainment plan requirements continue to apply, our obligation to promulgate a FIP remains in place. If the EPA finalizes this proposed CDD, the District's and State's nonattainment planning obligations, except the requirement for a base year emissions inventory and new source review, will be suspended. 66 If, in addition to making a CDD, we finalize our proposed approval of the base year emissions inventory, the EPA's FIP obligation will be suspended until such time as the CDD is rescinded. 67

The EPA is soliciting public comments on the issues discussed in this document. We will accept comments from the public on this proposal until November 21, 2022 and will consider comments before taking final action.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This rule does not impose any new information collection burden under the PRA not already approved by the Office of Management and Budget. This action proposes to find that the Imperial PM 2.5 nonattainment area attained the 2012 PM 2.5 NAAQS by the applicable attainment date, proposes to determine the area has clean data, and proposes to approve the base year emissions inventory. Thus, the proposed action does not establish any new information collection burden that has not already been identified and approved in the EPA's information collection request.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The proposed approval of the emissions inventory, the DAAD, and the CDD for the 2012 PM 2.5 NAAQS does not in and of itself create any new requirements beyond what is mandated by the CAA. Instead, this rulemaking only makes factual determinations, and does not directly regulate any entities.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states and tribes, or on the distribution of power and responsibilities among the various levels of government. The division of responsibility between the Federal Government and the states for the purposes of implementing the NAAQS is established under the CAA.

This action does not have tribal implications. It will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. There are no tribes affected by this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA's evaluation of this issue is contained in the section of the preamble titled “Environmental Justice Considerations.”