55398 Federal Register / Vol. 71, No. 184 / Friday, September 22, 2006 / Proposed Rules 

PART 50—DOMESTIC LICENSING OF 

PRODUCTION AND UTILIZATION 

FACILITIES 

9. The authority citation for part 50 

continues to read as follows: 

Authority: Secs. 102, 103, 104, 161, 182, 

183, 186, 189, 68 Stat. 936, 937, 938, 948, 

953, 954, 955, 956, as amended, sec. 234, 83 

Stat. 444, as amended (42 U.S.C. 2132, 2133, 

2134, 2135, 2201, 2232, 2233, 2236, 2239, 

2282); secs. 201, as amended, 202, 206, 88 

Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 

5841, 5842, 5846); sec. 1704, 112 Stat. 2750 

(44 U.S.C. 3504 note). 

Section 50.7 also issued under Pub. L. 95–

601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5841). 

Section 50.10 also issued under secs. 101, 

185, 68 Stat. 955, as amended (42 U.S.C. 

2131, 2235); sec. 102, Pub. L. 91–190, 83 Stat. 

853 (42 U.S.C. 4332). Sections 50.13, 

50.54(dd), and 50.103 also issued under sec. 

108, 68 Stat. 939, as amended (42 U.S.C. 

2138). Sections 50.23, 50.35, 50.55, and 50.56 

also issued under sec. 185, 68 Stat. 955 (42 

U.S.C. 2235). Sections 50.33a, 50.55a and 

Appendix Q also issued under sec. 102, Pub. 

L. 91–190, 83 Stat. 853 (42 U.S.C. 4332). 

Sections 50.34 and 50.54 also issued under 

sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). 

Sections 50.58, 50.91, and 50.92 also issued 

under Pub. L. 97–415, 96 Stat. 2073 (42 

U.S.C. 2239). Section 50.78 also issued under 

sec. 122, 68 Stat. 939 (42 U.S.C. 2152). 

Sections 50.80–50.81 also issued under sec. 

184, 68 Stat. 954, as amended (42 U.S.C. 

2234). Appendix F also issued under sec. 

187, 68 Stat. 955 (42 U.S.C. 2237). 

10. In § 50.2, the definition of Total 

Effective Dose Equivalent is revised to 

read as follows: 

§ 50.2 Definitions. 

* * * * * 

Total Effective Dose Equivalent 

(TEDE) means the sum of the effective 

dose equivalent (for external exposures) 

and the committed effective dose 

equivalent (for internal exposures). 

* * * * * 

Dated at Rockville, Maryland, this 13th day 

of September, 2006. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary for the Commission. 

[FR Doc. E6–15502 Filed 9–21–06; 8:45 am] 

BILLING CODE 7590–01–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

14 CFR Part 399 

[Docket No. OST–2005–23194] 

RIN 2105–AD56 

Price Advertising 

AGENCY: Office of the Secretary (OST), 

U.S. Department of Transportation 

(DOT). 

ACTION: Withdrawal of Notice of 

Proposed Rulemaking. 

SUMMARY: This document withdraws the 

Notice of Proposed Rulemaking (NPRM) 

that sought comments on whether and, 

if so, how the Department should 

amend 14 CFR 399.84, its airtransportation price-advertising rule. As 

a matter of enforcement policy, the 

Department has long allowed limited 

exceptions to the strict terms of the rule. 

The NPRM called for comments on 

several options: Maintain the current 

practice with or without codifying all of 

its elements in the rule, enforce the rule 

as written, revise the rule to eliminate 

most or all requirements for airfare 

advertisements but to specify that 

consumers must be told the total price 

before any purchase is made, or 

eliminate the rule altogether. The 

Department has decided based on the 

comments that the public interest will 

best be served by maintaining the status 

quo. 

ADDRESSES: You can get a copy of this 

document from the DOT public docket 

through the Internet at http:// 

dms.dot.gov, docket number OST–

20005–23194 (click ‘‘search,’’ type just 

the last five digits, and click ‘‘search’’

again). If you do not have access to the 

Internet, you can get a copy of this 

document by United States mail from 

the Docket Management System, U.S. 

Department of Transportation, Room 

PL–401, 400 Seventh Street, SW., 

Washington, DC 20590. Specify Docket 

OST–2005–23194 and request a copy of 

the ‘‘Withdrawal of Proposed 

Rulemaking.’’ You can review the 

public docket in person in the Docket 

office between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. The Docket office is on the 

plaza level of the Department of 

Transportation. Finally, you can also get 

a copy of this document from the 

Federal Register Web site at http:// 

www.gpo.gov. 

FOR FURTHER INFORMATION CONTACT: 

Betsy L. Wolf, Senior Trial Attorney, 

Office of the Assistant General Counsel 

for Aviation Enforcement and 

Proceedings (C–70), U.S. Department of 

Transportation, 400 Seventh St. SW., 

Room 4116, Washington, DC 20590, tel: 

(202) 366–9342, fax: (202) 366–7152, email: Betsy.Wolf@DOT.GOV. 

SUPPLEMENTARY INFORMATION: 

Background 

The Current Rule and Enforcement 

Policy 

The Department’s price-advertising 

rule for air transportation, 14 CFR 

399.84 (adopted December 20, 1984), 

states that any advertisement of 

passenger air transportation which 

states a price that is not the entire price 

the consumer must pay is an unfair and 

deceptive practice in violation of 49 

U.S.C. 41712. Section 41712 empowers 

the Department to ban unfair and 

deceptive practices and unfair methods 

of competition in air transportation and 

its sale. Congress modeled section 

41712 on section 5 of the Federal Trade 

Commission (‘‘FTC’’) Act, 15 U.S.C. 45. 

The FTC Act, however, by its own 

terms, cannot be enforced against air 

carriers. Moreover, as the States are 

preempted from regulating price 

advertising by air carriers, 49 U.S.C. 

41713, see Morales v. Trans World 

Airline, 504 U.S. 374, 112 S.Ct. 2031, 

119 L.Ed.2d 157 (1992), only this 

Department can adopt consumerprotection regulations in this area. 

As a matter of enforcement discretion, 

the Office of Aviation Enforcement and 

Proceedings (‘‘Enforcement Office’’), has 

long allowed the following exceptions 

to the requirement that any advertised 

fare represent the consumer’s total cost: 

• Government-imposed taxes and fees 

that the carrier collects on a perpassenger basis may be excluded from 

the advertised fare, provided that they 

are not ad valorem, and provided that 

the advertisement shows the existence 

and amount of these charges clearly so 

that consumers can easily determine the 

total fare. 

• If multiple destinations are 

advertised and not all entail the same 

government-imposed charges, the 

advertisement may state a maximum 

fee, a fee for each destination, or a range 

of fees. The word ‘‘approximately’’ or a 

range of amounts may be used to 

account for minor fluctuations in 

currency exchange. 

• Advertising ‘‘two-for-one’’ fares 

where the fare that must be bought is 

higher than the carrier’s other fares in 

the same market is deceptive unless this 

fact is prominently and clearly 

disclosed. 

• Advertisements of each-way fares 

that are available only when bought for 

round-trip travel must disclose the 


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round-trip purchase requirement clearly 

and conspicuously. 

• In Internet fare advertisements 

(including banner, pop-up, and e-mail 

advertisements in addition to Web 

sites), the per-person government 

charges that may be listed separately 

may be disclosed by a prominent 

hyperlink, proximate to the listed fare, 

that takes the viewer to a display 

showing the nature and amount of these 

charges. 

• In advertisements of ‘‘free’’ air 

transportation in conjunction with the 

purchase of one or more other tickets, 

the restrictions, fees, and other 

conditions that apply to the ‘‘free’’

transportation must be disclosed 

prominently and close to the offer, at a 

minimum through an asterisk or other 

symbol directing the reader’s attention 

to the information elsewhere in the 

advertisement. This requirement applies 

to advertisements in all media: The 

internet, billboards, print media, 

television, and radio. The information 

must appear in easily-readable print 

(except, of course, in the case of radio 

announcements). 

• Advertisements of fares that are 

higher if purchased by telephone or in 

person than over the Internet must 

prominently disclose that these fares are 

only available over the Internet. The 

advertisements must also disclose that 

tickets cost more than the advertised 

price if purchased by telephone or in 

person, and they may disclose the price 

increment. If the advertisements state a 

price differential, they may not 

characterize this amount as a ‘‘service 

fee.’’

• In any billboard advertisement that 

breaks out taxes and fees, a sum of these 

must be legible to drivers passing the 

billboard at the posted speed limit. 

• In television advertisements, the 

sum of any taxes and fees that are 

broken out must be disclosed, either on 

screen or audially. 

• Radio advertisements must include 

the sum of any taxes and fees that are 

broken out. 

The Enforcement Office has 

consistently declined to broaden these 

exceptions to allow carriers to break out 

any of their own cost elements, such as 

fuel surcharges, insurance surcharges, or 

service fees, from the fare. 

The Notice of Proposed Rulemaking 

On December 14, 2005, following an 

informal request by the Air Transport 

Association that separate listing of fuel 

surcharges be permitted because of its 

air-carrier members’ unprecedentedly 

high fuel costs, the Department issued a 

Notice of Proposed Rulemaking for the 

purpose of reexamining its longtime 

policy on price advertising (No. OST–

2005–23194, RIN 2105–AD56, Price 

Advertising, 70 FR 73960 (December 14, 

2005) (‘‘NPRM’’)). 

The NPRM called for comments on 

four options: 

Option I A: Amend § 399.84 to codify 

the Enforcement Office’s long-standing 

policy. 

Option I B: Leave § 399.84 as written 

but continue the enforcement policy. 

Option II: Change the long-standing 

enforcement policy to discontinue 

exceptions to the strict terms of 

§ 399.84. 

Option III A: Amend § 399.84 to 

require simply that the total price of air 

transportation be disclosed before the 

consumer makes the purchase; pursue 

enforcement action under section 41712 

when separate listing of cost elements is 

unfair or deceptive. 

Option III B: Amend § 399.84 to 

require both that the total price of air 

transportation be disclosed before the 

consumer makes the purchase and that 

price advertisements set forth all 

elements of the fare so that consumers 

can add them together to determine the 

total price; pursue enforcement action 

under section 41712 when separate 

listing of cost elements is unfair or 

deceptive. 

Option IV: Rescind § 399.84; pursue 

enforcement action under section 41712 

when separate listing of cost elements is 

unfair or deceptive. 

Comments 

Tally of Comments by Group of 

Commenters 

The Department received well over 

700 responsive comments on the NPRM, 

nearly all from individuals who are not 

travel professionals. The exceptions 

include 22 air carriers and tour 

operators, three travel agent 

associations, the National Association of 

Attorneys General, an individual who is 

a travel professional, and the Council of 

Better Business Bureaus. 

Of the approximately 700 individuals 

who commented on the NPRM, nearly 

500 favor Option II. Over 120 favor 

Option I, with only three specifying a 

preference for Option I A, and nearly 

100 others deem either Option I or 

Option II to be acceptable, although 

most prefer the latter. Options III A and 

III B drew support from two and three 

individuals, respectively. No individual 

supports Option IV. 

Of the 22 air carriers and tour 

operators that filed comments, 11 

support Option I, with four (Air Pacific, 

Ltd., Apple Vacations, USA 3000, and 

Qantas Airways Ltd.) favoring Option I 

A, five (Alaska Airlines, Inc., Southwest 

Airlines Co., Singapore Airlines Ltd., 

Air New Zealand Ltd., and Midwest 

Airlines, Inc.) favoring Option I B, and 

two (Jet Blue Airways Corporation and 

Olympic Airways S.A.) expressing no 

preference. None of these commenters 

supports Option II. Option III drew 

support from four, split evenly between 

Option III A (Northwest Airlines, Inc., 

and Continental Airlines, Inc.) and 

Option III B (Cathay Pacific Airways 

Ltd. and Air Tahiti Nui). Option IV, too, 

drew support from four (Delta Air Lines, 

Inc., American Airlines, Inc., United Air 

Lines, Inc., and Deutsche Lufthansa 

AG). The other three (British Airways 

PLC, Aer Lingus Limited, and US 

Airways Group, Inc., which represents 

US Airways, Inc., America West 

Airlines, Inc., PSA Airlines, Inc., and 

Piedmont Airlines, Inc.) suggest hybrid 

approaches. 

As for the remaining commenters, two 

(the American Society of Travel Agents, 

Inc., and the Interactive Travel Services 

Association, which represents several 

major Internet travel agencies) support 

Option I A, one (the Council of Better 

Business Bureaus) supports Option I B, 

and three (the United States Travel 

Agent Registry, Edward Hasbrouck, and 

the National Association of Attorneys 

General) support Option II. 

Summary of Comments by Group of 

Commenters 

The individuals who favor Option I 

make the following arguments: There is 

value in knowing how much of what 

one pays for air transportation is going 

to the carrier and how much to 

government entities; airfares are 

confusing enough as is, and weakening 

or removing the rule might well harm 

consumers by permitting the 

advertisement of fares that are divorced 

from reality; carriers should not have to 

include government-imposed fees in 

their advertised fares since they have no 

control over them; conversely, because 

cost elements such as fuel surcharges 

are susceptible to the carriers’ control, 

when these amounts must be included 

in advertised airfares, the carriers have 

a greater incentive to negotiate for lower 

costs in order to stay competitive; if 

consumers do not learn the full price of 

a ticket until the end of the purchase 

process, they will be unwilling or even 

unable to spend the time required to 

compare fares and will thus end up 

paying too much for air travel. 

The individuals who favor Option II 

make the following arguments: Under 

the current regime, fare advertisements 

are confusing and deceptive to the point 

of amounting to ‘‘bait and switch’’

tactics; enforcing the rule as written 

would maximize the transparency of 


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prices, the ease of comparing fares, and 

the efficiency of the market; weakening 

or removing the rule could encourage 

carriers to pad fares with additional 

surcharges and fees, thereby increasing 

confusion and deception and frustrating 

competition; consumers expect cost 

elements such as fuel to be included in 

the price of a ticket; the Department 

could not protect consumers’ interests 

via case-by-case enforcement under 

section 41712 (i.e., without § 399.84) 

absent, in the words of one commenter, 

‘‘an exponential increase in funds, and 

in staff hiring authority, for the 

Enforcement Office.’’

Of the five individuals who favor 

Option III, the two who favor Option III 

A did not say why. One of the three who 

favor Option III B reasons that this 

approach strikes the best balance 

between the need for regulations to 

protect consumers (who can and should 

be expected to read advertisements 

carefully) and the need to avoid 

infringing on sellers’ right to use 

marketing innovations. 

The air carriers and tour operators 

that favor Option I make the following 

arguments: Requiring advertised fares to 

include all costs over which carriers 

have control but allowing governmentimposed charges to be listed separately 

promotes direct competition on fares; 

this approach is consistent with the 

laws of other countries, which makes 

compliance easier for carriers; this 

approach has worked well for both 

consumers and sellers; Option II would 

create marketing difficulties; Option III 

B would frustrate true fare competition 

and make it harder for consumers to 

calculate the total fare, as would 

Options III A and IV to an even greater 

extent; this problem is exacerbated by 

the inability of the States or the FTC to 

regulate advertising by air carriers and 

the Department’s lack of resources to 

monitor carriers’ advertisements closely 

and mount individual challenges 

whenever carrier-imposed surcharges 

might appear to run afoul of section 

41712. Some of these commenters seek 

permission to lump governmentimposed charges together as one sum. 

Those that support Option I A argue that 

having a rule that is not enforced as 

written is not consistent with principles 

of good government. Those that support 

Option I B argue that the policy is 

already well known to industry 

practitioners, that keeping it uncodified 

will allow the Department to address 

evolving practices as quickly as 

possible, and that codifying it could 

retard legitimate marketing 

developments that exploit evolving 

technologies. 

The carriers that favor Option III A 

make the following arguments: Once the 

consumer knows the total price of an 

itinerary, he or she has all the 

information necessary for deciding 

whether to buy or not and for comparing 

that price with others, and beyond this 

sellers should be free to configure their 

advertisements as they see fit; the 

prospect of enforcement action under 

section 41712 will deter bait-and-switch 

tactics; § 399.84 burdens sellers of air 

transportation unduly, as sellers in 

other industries with high taxes and 

government-imposed fees (e.g., hotels 

and rental-car agencies) are not required 

to disclose these amounts to the 

consumer before the sale is made. 

The carriers that favor Option III B 

argue that it strikes the appropriate 

balance between carriers’ wanting 

maximum flexibility to respond to 

market forces and consumers’ wanting 

to obtain adequate fare information 

efficiently. 

The carriers that favor Option IV 

make the following arguments: As a 

matter of principle, a price-advertising 

regulation is inappropriate for a 

deregulated air-transportation industry; 

§ 399.84 and the enforcement policy bar 

some types of price advertising that are 

not deceptive and should thus be 

permitted; the status quo bars carriers 

from innovation in their fare offerings; 

the regulation as enforced imposes costs 

and practical difficulties that outweigh 

any benefits that detailed tax disclosure 

might provide; ‘‘bait and switch’’ and 

other modes of deceptive advertising are 

not likely to follow a removal of the rule 

because such tactics are contrary to the 

carriers’ best interests, and in any event 

the Department can contain abusive 

practices through enforcement action; 

enforcement action will not become 

more cumbersome, as the Department 

must already prove violations on a caseby-case basis; Options III A and IV are 

functionally identical, as it would be 

illegal to consummate a sale without 

first disclosing the full price; the 

Department essentially rejected Option 

II over 20 years ago, and nothing in the 

NPRM suggests that its rationale for 

doing so has become any less valid; 

consumers know that advertised prices 

do not include taxes. 

Of the carriers that suggest hybrid 

approaches, British Airways supports a 

hybrid of Options I and III, arguing as 

follows in support of its position: The 

rise of the Internet has increased 

consumer sophistication to the point of 

rendering § 399.84 and the enforcement 

policy obsolete; some regulation 

nevertheless remains appropriate due to 

consumers’ long-time expectations, 

since the existence of a rule curbs even 

marginal abuses and since uniform 

standards are superior to the 

multiplicity of rules that state and local 

intervention might foster; the 

Department should therefore require 

that consumers be informed of all 

elements of the total price early in the 

booking process but not specifically on 

the first screen that states a fare 

component, and it should drop both the 

requirements for hyperlinks in banner 

and popup advertisements and the 

detailed requirements for television and 

radio advertisements, as these are not 

effective. 

Aer Lingus argues for an end to 

treating fare displays on carriers’ Web 

sites as fare advertising, leaving only 

paid fare advertising in conventional 

advertising media subject to the rule as 

currently enforced. At most, it contends, 

carriers’ Web sites should be subject to 

the equivalent of Option III A. 

US Airways Group favors what it calls 

a modified version of Option III B but 

is actually closer to Option I A: 

Continuing the ban on separate listing of 

carrier-imposed surcharges, permitting 

carriers to advertise all governmentimposed taxes, fees, and surcharges as a 

single amount or a single range of 

amounts, and ending the requirement of 

detailed disclosures in media that by 

nature are fleeting (such as radio, 

billboards, jumbo-trons, and movie 

screens), as in practice these disclosures 

are unintelligible. 

The remaining commenters include 

three travel agent associations, one 

travel professional, the National 

Association of Attorneys General, and 

the Council of Better Business Bureaus. 

The two travel agent associations that 

support Option I A make the following 

arguments: The status quo works; 

developments in electronic 

communication have not eliminated the 

dangers of misleading and deceptive 

advertisements; weakening or 

eliminating the rule would invite abuse 

and chaos or, at the other extreme, 

inconsistent regulation by the FTC and 

one or more States; codifying the 

enforcement policy will ensure that 

sellers and consumers alike know what 

to expect; future changes to the policy 

should be made via notice-andcomment rulemaking procedures, and 

enforcement action should only be 

taken based on changes adopted in this 

manner; Option II would impose 

substantial burdens on sellers; Options 

III A and IV would invite deceptive 

advertisements, and even Option III B 

would make it harder for consumers to 

compare fares. 

The third travel agent association, the 

travel professional, and the National 

Association of Attorneys General make 


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the following arguments in support of 

Option II: Under the status quo, 

consumers are all too frequently misled 

as to the total cost of air transportation; 

most Internet sites do not disclose the 

total price until the end of the process, 

making fare comparison difficult for 

both consumers and travel agents; travel 

agents bear the costly burden of 

explaining to frustrated consumers why 

the actual fare is higher than the fare 

advertised, which would not be the case 

if § 399.84 were enforced as written; 

Options III and IV would exacerbate this 

burden; even sophisticated travelers 

complain that fare advertisements 

mislead them; the harm to consumers 

from the Department’s enforcement 

policy is increasing as governmentimposed charges increase; in principle, 

the availability of information on the 

Internet should not lessen the level of 

protection that consumers receive; 

Option II would not harm competition 

among air carriers, as the same 

government-imposed charges apply to 

all of them; consumers do not benefit 

from the omission of governmentimposed charges from advertised fares, 

and in any event, sellers would be free 

under Option II to disclose them in 

addition to the total price; Options III 

and IV should not be adopted because 

consumers expect advertised fares to 

include all of the carrier’s cost elements; 

case-by-case enforcement under section 

41712 alone would be significantly 

more costly and time-consuming than 

enforcement action for violation of 

§ 399.84. Additionally, the National 

Association of Attorneys General says 

that were its members not preempted 

from enforcing their States’ consumerprotection laws against air carriers, they 

would be enforcing a standard 

equivalent to Option II, as they have 

done in other industries. 

The Council of Better Business 

Bureaus is the umbrella organization for 

130 local Better Business Bureaus in 

North America and also numbers some 

250 U.S.-based corporations among its 

members. The Council states that its 

members attempt to ‘‘foster an ethical 

marketplace that is fair to both 

consumers and businesses.’’ It favors 

Option I B and makes the following 

arguments in support of its position: 

The enforcement policy has worked 

well for 20 years, protecting consumers 

from deceptive advertising and 

promoting price competition; Options 

III A and IV, which, since the full price 

must always be disclosed before a 

purchase is transacted, are functionally 

equivalent, would invite ‘‘come-on’’ ads 

that grossly understate fares and deceive 

consumers and garner the advertisers an 

unfair advantage over their competitors; 

the Federal Trade Commission 

considers a representation, omission, or 

practice concerning a price claim to be 

deceptive if it is misleading to 

reasonable consumers under the 

circumstances, but the Commission is 

barred from regulating advertising by air 

carriers, as are the States; the 

competitive marketplace determines 

fares, not how they are advertised, and 

competition requires the free flow of 

information honestly disclosed by 

competitors; allowing carriers to 

advertise fares that exclude some of 

their own costs would make it harder 

for carriers with lower costs to compete 

and for reasonable consumers to 

compare fare offerings; nothing has 

changed since the adoption of § 399.84 

to make omission of airline-imposed 

charges and concealment of 

government-imposed charges less 

deceptive; Option III B would allow the 

advertisement of unrealistically low 

fares that deceive consumers; as a 

practical matter, weakening or 

eliminating § 399.84 would leave 

consumers worse off than if the rule had 

never been adopted, because the change 

would be seen as an invitation to do 

what has long been barred; in the case 

of Internet advertising, since the 

consumer must frequently go through 

multiple pages or screens and 

sometimes even provide personal 

information before getting to the page 

where the purchase is made, a consumer 

checking prices for purposes of 

comparison might well stop short of 

finding the final price; maintaining the 

status quo would best serve the interests 

of consumers without unduly burdening 

advertisers or hampering the 

Department’s enforcement efforts; 

codifying the exceptions to § 399.84 

could significantly hamper enforcement 

by limiting what might be considered 

deceptive or unfair; Option II would 

burden advertisers and could increase 

both the complexity of advertisements 

and consumer confusion. 

Withdrawal 

Having duly considered all 

comments, we have concluded that the 

public interest will best be served by 

our maintaining the status quo—i.e., 

keeping § 399.84 as it is and allowing 

the Enforcement Office to exercise its 

prosecutorial discretion to permit 

exceptions to the rule as circumstances 

may warrant (Option I B). We are 

therefore withdrawing the Notice of 

Proposed Rulemaking. 

We find the reasons for maintaining 

the status quo to be most compelling. As 

enforced, § 399.84 protects consumers, 

facilitates price comparison, fosters fare 

competition, and affords sellers an 

appropriate degree of freedom to 

innovate. We have reviewed the Federal 

Trade Commission’s written policies on 

pricing activities, including its 

guidelines for activities on the Internet, 

and have concluded that our 

enforcement policy produces 

approximately the same balance 

between consumers’ and sellers’ needs 

as that which would result if air carriers 

were subject to the Commission’s 

jurisdiction. It would therefore be poor 

public policy to weaken or abolish our 

rule only to have to work our way back 

to the present equilibrium, case by slow 

and costly case, via enforcement under 

section 41712. Moreover, given the 

Enforcement Office’s limited resources, 

to rely solely on section 41712 for 

effective fare-advertising enforcement 

would be unrealistic. 

The supporters of Options III A and 

IV (which, we agree, are functionally 

equivalent) have not shown compelling 

reasons for eliminating a rule that has 

worked well for over 20 years. The 

argument that sellers in other industries 

with high taxes and governmentimposed fees, such as hotels and rentalcar agencies, are not required by Federal 

regulation to disclose these amounts to 

the consumer before a sale is made 

ignores the fact that both the Federal 

Trade Commission and the States may 

regulate advertising in these other 

industries. In fact, as the Council of 

Better Business Bureaus points out, the 

Commission has set standards for price 

advertising similar in kind to our rule 

and enforcement policy but by means 

other than adopting regulations. The 

Commission’s Web site offers extensive 

advertising guidance to businesses; see 

http://www.ftc.gov/bcp/guides/ 

guides.htm. The Council also points out 

that advertisers in industries other than 

air transportation face a host of state 

statutes and regulations. It reports that 

in 1989, the National Association of 

Attorneys General adopted enforcement 

guidelines regarding the application of 

these laws to car-rental companies, 

including the following: 

Any surcharge or fee that consumers must 

generally pay at any location in order to 

obtain or operate a rental vehicle must be 

included in the total advertised price of the 

rental. 

The Council suggests that this 

guideline may account for the trend we 

have observed among rental-car Web 

sites, noted in the NPRM, ‘‘to give total 

prices for rental cars when giving 

quotes,’’ 70 FR at 73964. 

Those carriers that assert that under 

the status quo they are barred from 

innovating in their fare offerings and 


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advertising neglected to provide any 

example of putative innovations. The 

argument that the regulation as enforced 

imposes costs and practical difficulties 

that outweigh the benefits of detailed 

tax disclosure ignores the fact that the 

policy does not require that 

government-imposed fees be listed 

separately from the fare but merely 

permits this. The argument that 

enforcement action under section 41712 

alone would not be any more 

cumbersome than it is now, since the 

Department must already prove 

violations on a case-by-case basis, 

ignores the considerable difference 

between having to prove only that 

conduct is prohibited by § 399.84, as 

interpreted, and having to prove that 

conduct has violated section 41712, 

which requires a showing of actual or 

likely consumer harm. With § 399.84 in 

place, any act that it prohibits is a per 

se violation of section 41712. The 

argument that consumers know that 

advertised prices do not include taxes 

ignores the vast difference between the 

sales tax applicable to most goods and 

services and the much higher taxes and 

fees—both absolutely and as a 

percentage of the base price—applicable 

to airfares. Aer Lingus does not explain 

why it believes that listings on carriers’

Web sites should not be considered 

advertisements, nor does it specify how 

it believes Internet travel agencies’ fare 

displays should be treated. 

The supporters of Option III B have 

also not persuaded us to dilute § 399.84. 

We agree with the Council of Better 

Business Bureaus that sellers could 

advertise deceptively under this option, 

for example, by falsely implying that a 

carrier’s own surcharges were 

government-imposed or by failing to 

meet the Federal Trade Commission’s 

standards for prominence, readability, 

and clarity. As in the case of Options III 

A and IV, moreover, enforcement would 

be far more burdensome than under the 

status quo. 

Similarly, the overwhelming support 

among individuals for enforcing 

§ 399.84 as written notwithstanding, the 

comments fail to establish a rationale for 

undoing over 20 years of permitting 

exceptions to the rule’s strict terms as a 

matter of enforcement policy. Strict 

enforcement of § 399.84 would still 

create marketing difficulties for sellers 

without necessarily making prices more 

transparent to consumers. Option II’s 

strong support from consumers does, 

however, serve to fortify the case against 

eliminating or diluting the rule and 

enforcement policy. 

We are maintaining the status quo and 

withdrawing the NPRM rather than 

codifying the current exceptions to 

§ 399.84 allowed by the Enforcement 

Office. We do not think that codification 

is necessary to make the enforcement 

policy transparent and available. As we 

observed in the NPRM, sellers and 

lawyers practicing in this industry are 

already familiar with the policy and 

both consumers and newcomers to the 

industry can find the details of the 

policy on the Department’s Web site at 

http://airconsumer.ost.dot.gov/rules/ 

guidance.htm. 70 FR at 73963. As we 

also observed in the NPRM, given that 

enforcement is by nature discretionary, 

by not codifying the exceptions to 

§ 399.84, we are retaining the flexibility 

within the Enforcement Office to 

continue refining its enforcement policy 

without the delays and costs that 

rulemaking would entail, id. 

Two clarifications are in order. First, 

several commenters argue for leeway to 

lump all of the government fees and 

charges that may be broken out from the 

fare together as one sum rather than 

being required to list them individually. 

In practice, except for ad valorem taxes 

and the September 11th Security Fee, 

which under the Department of 

Homeland Security’s regulations must 

be disclosed separately, the 

Enforcement Office already allows this. 

Second, several commenters argue that 

the requirements for disclosure of 

government-imposed charges in 

billboard, television, and radio 

advertisements should be dropped 

because as a practical matter these 

disclosures are invariably unintelligible. 

The fact remains, however, that failure 

to disclose these charges effectively 

renders an advertisement deceptive. 

Sellers always have the option of 

including these charges in the fares 

advertised (using a range of prices or 

using the word ‘‘from’’ with the 

minimum price if need be). 

Accordingly, for the reasons set forth 

above, we are withdrawing the NPRM. 

Issued this day of September 18, 2006, at 

Washington, DC, under authority delegated 

by 49 CFR 1.56a. 

Michael W. Reynolds, 

Acting Assistant Secretary for Aviation and 

International Affairs. 

[FR Doc. 06–8041 Filed 9–21–06; 8:45 am] 

BILLING CODE 4910–9X–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2006–0210; FRL–8220–6] 

Approval and Promulgation of State 

Implementation Plans; Utah; Revised 

Definitions of Volatile Organic 

Compounds and Clearing Index; 

Proposed Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

State Implementation Plan (SIP) 

revisions submitted by the State of Utah 

on November 11 and November 23, 

2005. The revisions are to the Utah 

Administrative Code (UAC) rule R307–

101–2 and (1) incorporate by reference 

the Federal definition of ‘‘Volatile 

Organic Compounds’’ (VOC), and (2) 

update the definition of ‘‘Clearing 

Index’’. The intended effect of this 

action is to make federally enforceable 

those provisions that EPA is approving. 

This action is being taken under section 

110 of the Clean Air Act. 

In the ‘‘Rules and Regulations’’

section of this Federal Register, EPA is 

approving the State’s SIP revisions as a 

direct final rule without prior proposal 

because the Agency views this as 

noncontroversial SIP revisions and 

anticipates no adverse comments. A 

detailed rationale for the approval is set 

forth in the preamble to the direct final 

rule. If EPA receives no adverse 

comments, EPA will not take further 

action on this proposed rule. If EPA 

receives adverse comments, EPA will 

withdraw the direct final rule and it will 

not take effect. EPA will address all 

public comments in a subsequent final 

rule based on this proposed rule. EPA 

will not institute a second comment 

period on this action. Any parties 

interested in commenting must do so at 

this time. Please note that if EPA 

receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

DATES: Written comments must be 

received on or before October 23, 2006. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08–

OAR–2006–0210, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 


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