AIR FAIR Act of 2023

Bill: 118-s-2599
Sponsor: full_name: Sen. Whitehouse, Sheldon [D-RI]
Introduced: 2023-07-27
Policy area: Environmental Protection
Latest action: action_date: 2023-07-27
text: Read twice and referred to the Committee on Environment and Public Works.

Summaries:

tv_txt: II 118th CONGRESS 1st Session S. 2599 IN THE SENATE OF THE UNITED STATES July 27, 2023 Mr. Whitehouse (for himself, Mr. Markey , and Mr. Welch ) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To impose surcharges on private jet travel and certain first class and business tickets, and for other purposes.

1. Short title This Act may be cited as the Assessing International Requirements to Fuel Aviation's Impact Reduction Act of 2023 or the AIR FAIR Act of 2023 . 2. Findings Congress finds that— (1) aviation accounts for 3 percent of the total greenhouse gas emissions of the United States; (2) aviation is 1 of the fastest growing sources of anthropogenic greenhouse gas emissions; (3) greenhouse gas emissions resulting from aviation are projected to triple by 2050; (4) flying first class has been estimated to have up to 7 times the carbon footprint of flying in economy class; (5) flying first class on a single domestic round-trip flight can generate more greenhouse gas emissions than the average greenhouse gas emissions from a year of driving; (6) private jets are, on average— (A) 10 times more carbon intensive than commercial airliners; and (B) 50 times more carbon intensive than trains; (7) operators of private jets benefit from public airport infrastructure, but fail to pay their fair share for the maintenance, upkeep, and administration of that infrastructure; and (8) airports are a large source of air pollution and contribute to poor air quality in the neighborhoods surrounding the airports, leading to worse health outcomes for those who live in those neighborhoods. 3. Definitions (a) In general In this Act: (1) Administrator The term Administrator means the Administrator of the Environmental Protection Agency. (2) Calculated greenhouse gas emissions The term calculated greenhouse gas emissions , with respect to aviation fuel, means the aggregate net lifecycle greenhouse gas emissions of the fuel or mix of fuels consumed by a flight where all fuels, except the consumed fuels that are sustainable aviation fuels, are considered to have the net lifecycle greenhouse gas emissions of traditional jet fuel. (3) Estimated flight time (A) In general The term estimated flight time , with respect to a flight that has not yet terminated, means the period that the operator of the flight reasonably anticipates will be the real flight time. (B) Exclusion The term estimated flight time does not include any period during which the aircraft used for the flight is anticipated to spend taxiing to a gate, standing at a gate, or otherwise remaining grounded. (4) Greenhouse gas The term greenhouse gas has the meaning given the term in section 137(d) of the Clean Air Act ( 42 U.S.C. 7437(d) ). (5) Net lifecycle greenhouse gas emissions The term net lifecycle greenhouse gas emissions , with respect to aviation fuel, means the net quantity of greenhouse gas emissions related to the full fuel lifecycle, where the mass values for those greenhouse gas emissions are adjusted to account for the relative global warming potential of each greenhouse gas, as determined by the Administrator in accordance with the most recent Carbon Offsetting and Reduction Scheme for International Aviation that has been adopted by the International Civil Aviation Organization with the agreement of the United States. (6) Qualifying flight (A) In general The term qualifying flight means a flight that— (i) originates from, terminates in, or both originates from and terminates in the United States; (ii) is made using an aircraft— (I) equipped with 1 or more jet engines; and (II) with a maximum takeoff weight of not less than 12,500 pounds; and (iii) is not operated as a regularly scheduled flight by a passenger common carrier subject to part 121 of title 14, Code of Federal Regulations (or successor regulations). (B) Exclusions The term qualifying flight does not include a flight described in subparagraph (A)— (i) in which the aircraft carrying out the flight is— (I) a Federal, State, Tribal, or local government-owned aircraft conducting government business; or (II) a military aircraft; (ii) that is flown for medical reasons; or (iii) that is flown exclusively for the purpose of carrying cargo. (7) Qualifying ticket (A) In general The term qualifying ticket means a ticket for a first class or business class seat— (i) on a flight that— (I) originates from, terminates in, or both originates from and terminates in the United States; (II) is operated as a regularly scheduled flight by a passenger common carrier subject to part 121 of title 14, Code of Federal Regulations (or successor regulations); and (III) is not made using an aircraft that relies exclusively on a hydrogen fuel cell or batteries for the propulsion of the aircraft; and (ii) (I) with respect to a flight with 2 or 3 classes of service, in the highest class of service; and (II) with respect to a flight with 4 or more classes of service, in either of the 2 highest classes of service. (B) Inclusion The term qualifying ticket includes a ticket for a seat, regardless of class of service, capable of reclining at an angle of greater than 45 degrees, including a seat capable of lying fully flat. (C) Treatment of multiple flight segments If only 1 ticket is provided for travel the itinerary of which includes 2 or more flight segments, the ticket shall be treated as a separate qualifying ticket for each separate takeoff and landing for a flight described in subparagraph (A)(i) in a seat described in subparagraphs (A)(ii) and (B) (as applicable). (8) Real flight time (A) In general The term real flight time , with respect to a flight, means the period between the time of takeoff and the time of landing. (B) Exclusion The term real flight time does not include any period during which the aircraft used for the flight taxies to a gate, stands at a gate, or is otherwise grounded. (9) Sustainable aviation fuel (A) In general The term sustainable aviation fuel means any neat fuel that achieves a reduction in average net lifecycle greenhouse gas emissions, as compared to traditional jet fuel, of at least 50 percent. (B) Exclusion The term sustainable aviation fuel does not include any fuel that is made from feedstock that includes palm oil, palm fatty acid distillate, petroleum, or plastic. (b) Consumption of fuel (1) In general For purposes of this Act, fuel may be considered consumed if the fuel has been delivered directly to an aircraft or to a public use airport fueling system, including pipelines to a public use airport if there is no prospect of the fuel being diverted or removed from that airport fueling system before the point of use by an aircraft. (2) Assignment For purposes of assigning the consumption of fuels to flights for the assessment of a surcharge under this Act, an operator of a flight may enter into a binding, exclusive agreement to transfer the assignment of fuel that is consumed if the agreement meets such standards of transparency and environmental integrity as determined appropriate by the Administrator. 4. Surcharge on private jet travel (a) Reporting requirement (1) In general Beginning on January 1, 2024, the operator of each qualifying flight shall submit to the Administrator, with respect to the qualifying flight, information on— (A) the aircraft used; (B) the flight path, including real flight time and total distance traveled; (C) the total quantity of fuels consumed; and (D) the type or types of fuels consumed. (2) Requirement The information required under paragraph (1) shall be submitted to the Administrator not later than 24 hours after the time at which the qualifying flight lands. (3) Publication The Administrator shall make the information reported under paragraph (1) publicly available online not later than 90 days after receiving the information. (b) Surcharge (1) Domestic flights (A) In general Beginning on January 1, 2024, not later than 7 days after the termination of a qualifying flight that both originates from and terminates in the United States, the Administrator shall assess on the operator of the qualifying flight a surcharge with respect to that qualifying flight in an amount determined in accordance with subparagraph (B). (B) Amount of surcharge (i) In general The amount of a surcharge assessed under subparagraph (A) with respect to a qualifying flight that both originates from and terminates in the United States shall be the product obtained by multiplying— (I) the calculated greenhouse gas emissions of the fuel or mix of fuels consumed by the qualifying flight, as expressed in tons of carbon dioxide-equivalent emissions per unit volume of fuel and determined by the Administrator; (II) the total quantity of fuels consumed; and (III) subject to clause (ii), $190. (ii) Adjustment Beginning in calendar year 2025, the Administrator shall annually adjust the amount described in clause (i)(III) by the percentage that is equal to the sum obtained by adding— (I) the rate of inflation, as determined by the Administrator using the changes for the 12-month period ending the preceding November 30 in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor; and (II) 10 percentage points. (2) International flights (A) In general Beginning on January 1, 2024, not later than 7 days after the termination of a qualifying flight that either originates from or terminates in the United States, the Administrator shall assess on the operator of the qualifying flight a surcharge with respect to that qualifying flight in an amount determined in accordance with subparagraph (B). (B) Amount of surcharge (i) In general Subject to clause (ii), the amount of a surcharge assessed under subparagraph (A) shall be— (I) for a qualifying flight with a real flight time of not more than 2 hours, $1,500; (II) for a qualifying flight with a real flight time of more than 2 hours but not more than 6 hours, $4,500; (III) for a qualifying flight with a real flight time of more than 6 hours but not more than 10 hours, $7,500; and (IV) for a qualifying flight with a real flight time of more than 10 hours, $10,000. (ii) Adjustments (I) Inflation Beginning in calendar year 2025, the Administrator shall annually adjust the amounts described in clause (i) by the percentage that is equal to the sum obtained by adding— (aa) the rate of inflation, as determined by the Administrator using the changes for the 12-month period ending the preceding November 30 in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor; and (bb) 10 percentage points. (II) Additional adjustments After adjustments under subclause (I) the amount of the surcharge assessed under subparagraph (A) shall be additionally adjusted as follows: (aa) If the qualifying flight is made using an aircraft with a maximum takeoff weight of more than 40,000 pounds, the amount of the surcharge shall be doubled. (bb) If the qualifying flight consumes sustainable aviation fuel, the amount of the surcharge shall be reduced by a percentage equal to the percentage reduction in the calculated greenhouse gas emissions achieved by the fuel or mix of fuels consumed by the qualifying flight, as compared to traditional jet fuel. (3) Deadline A surcharge assessed under this subsection shall be due and payable to the Administrator not later than the date that is 30 days after the date on which the surcharge was assessed. (4) Penalty If an operator fails to pay a surcharge assessed under this subsection by the date described in paragraph (3)— (A) the Administrator shall inform the Administrator of the Federal Aviation Administration of the failure of the operator to pay the surcharge; and (B) the Administrator of the Federal Aviation Administration shall prohibit the operator from operating within navigable airspace (as defined in section 40102(a) of title 49, United States Code) until the Administrator informs the Administrator of the Federal Aviation Administration that all outstanding surcharges assessed under this section have been paid. 5. Surcharge on first and business class tickets (a) In general Beginning on January 1, 2024, the Administrator, in coordination with the Secretary of the Treasury, shall ensure that each operator selling a qualifying ticket assesses, at the time of purchase, a surcharge on each qualifying ticket in an amount determined under subsection (b), which amount shall be remitted to the Administrator. (b) Amount of surcharge (1) In general Subject to paragraph (2), the amount of a surcharge assessed under subsection (a) shall be— (A) with respect to a qualifying ticket on a flight with an estimated flight time of not more than 2 hours, $75; (B) with respect to a qualifying ticket on a flight with an estimated flight time of more than 2 hours but not more than 6 hours, $200; and (C) with respect to a qualifying ticket on a flight with an estimated flight time of more than 6 hours, $600. (2) Adjustments (A) Inflation Beginning in calendar year 2025, the Administrator shall annually adjust the amounts described in paragraph (1) by the percentage that is equal to the sum obtained by adding— (i) the rate of inflation, as determined by the Administrator using the changes for the 12-month period ending the preceding November 30 in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the Department of Labor; and (ii) 10 percentage points. (B) Additional adjustments After adjustments under subparagraph (A) the amount of a surcharge on a qualifying ticket assessed under subsection (a) shall be additionally adjusted as follows: (i) If the operator of the flight for which the qualifying ticket is being purchased reasonably anticipates that the flight will be made using an aircraft that is in the top 10 percent of aircraft in the United States (for narrow-body aircraft or wide-body aircraft, as applicable) for fuel efficiency, as measured using the certification procedures in Volume III of Annex 16 to the Convention on International Civil Aviation, the amount of the surcharge shall be reduced by 25 percent. (ii) If the operator of the flight for which the qualifying ticket is being purchased reasonably anticipates that the flight will consume sustainable aviation fuel, the amount of the surcharge shall be reduced by a percentage equal to the percentage reduction in the calculated greenhouse gas emissions achieved by the fuel or mix of fuels anticipated to be consumed, as compared to traditional jet fuel. (iii) If the operator of the flight for which the qualifying ticket is being purchased surrendered offset certificates to the Administrator pursuant to subsection (c) in the previous calendar year, the amount of the surcharge shall be reduced by the percentage determined under paragraphs (3) and (4) of that subsection. (c) Direct air capture (1) In general For purposes of determining the offset credit described in subsection (b)(2)(B)(iii), an operator of flights for which qualifying tickets are sold may surrender to the Administrator certificates for greenhouse gas emissions captured directly from the ambient air and disposed of in secure geological storage in exchange for an offset credit in accordance with this subsection. (2) Offset certificates The Administrator shall issue to an operator of a flight for which qualifying tickets are sold certificates for the total quantity of greenhouse gas emissions, expressed in tons of carbon dioxide-equivalent, that are captured directly from the ambient air and disposed of in secure geological storage (in compliance with the regulations required under section 45Q(f)(2) of the Internal Revenue Code of 1986) by facilities that— (A) are owned by the operator; or (B) have entered into a binding, exclusive agreement with the operator to capture and dispose of in secure geological storage a specified quantity of greenhouse gas emissions. (3) Amount of offset credit For purposes of subsection (b)(2)(B)(iii), the total amount of the offset credit for any year shall be equal to the percentage obtained by dividing— (A) the quantity of certificates described in paragraph (1) surrendered to the Administrator by the operator during the previous calendar year; by (B) the total net lifecycle greenhouse gas emissions for the fuel or mix of fuels consumed by all of the flights operated by the operator in the previous calendar year as regularly scheduled flights subject to part 121 of title 14, Code of Federal Regulations (or successor regulations). (4) Limitation (A) Calendar years 2025 through 2049 The quantity determined under paragraph (3) may not exceed— (i) for calendar year 2025, the percentage determined under paragraph (3) shall not exceed 50 percent; and (ii) for each of calendar years 2026 through 2049, the percentage determined under paragraph (3) shall not exceed a maximum percentage that is 2 percentage points lower than the maximum percentage for the previous calendar year. (B) Calendar year 2050 and thereafter Beginning in calendar year 2050, and in each calendar year thereafter, no certificates under this subsection may be surrendered to the Administrator for purposes of determining the amount of the adjustment under subsection (b)(2)(B)(iii). (5) Expiration of certificates A certificate issued by the Administrator under this subsection shall expire 1 year after the date of issuance. (6) Additionality By not later than January 1, 2024, the Administrator shall promulgate regulations to ensure that any certificates issued under this subsection are for greenhouse gas emissions that— (A) are captured directly from the ambient air and disposed of in secure geological storage; and (B) would not have otherwise been captured directly from the ambient air and disposed of in secure geological storage but for the offset credit described in subsection (b)(2)(B)(iii). (d) Reconciliation of payments due (1) Definition of actual surcharge amount In this subsection, the term actual surcharge amount , with respect to a flight for which a surcharge under subsection (a) was assessed for 1 or more qualifying tickets, means the product obtained by multiplying— (A) the actual quantity of qualifying tickets sold for the flight; and (B) the amount of the surcharge for a qualifying ticket for that flight, as determined in accordance with this section using— (i) the estimated flight time for the flight; (ii) the actual model of the aircraft used for the flight; and (iii) the calculated lifecycle greenhouse gas emissions of the fuel or mix of fuels consumed during the flight. (2) Determination After the termination of a flight for which a surcharge under subsection (a) was assessed on 1 or more qualifying tickets, the operator of the flight shall determine the actual surcharge amount for the flight. (3) Reporting and remittance If the actual surcharge amount for a flight differs from the total of the surcharges assessed for all qualifying tickets for that flight, the operator of the flight shall— (A) not later than 7 days after the termination of the flight, submit to the Administrator a report containing an itemized statement describing the discrepancy; and (B) if the actual surcharge amount for the flight is greater than the total of the surcharges assessed for all qualifying tickets for that flight, remit to the Administrator, not later than 30 days after the date on which the operator submits to the Administrator the report required under subparagraph (A), an amount equal to the difference between— (i) the actual surcharge amount for the flight; and (ii) the total of the surcharges assessed for all qualifying tickets for the flight. 6. Investing in decarbonization and infrastructure (a) Administration of surcharges For fiscal year 2026 and each fiscal year thereafter, there are appropriated, out of any funds in the Treasury not otherwise appropriated, to the Environmental Protection Agency an amount equal to 2 percent of the amounts collected pursuant to surcharges assessed under sections 4(b) and 5 during the previous calendar year to support the administration of the reporting program under section 4(a) and the assessment of surcharges under sections 4(b) and 5. (b) Clean airports program (1) Definitions In this subsection: (A) Air pollutant The term air pollutant means any air pollutant that is listed pursuant to section 108(a) of the Clean Air Act ( 42 U.S.C. 7408(a) ) and any precursor to such an air pollutant. (B) Zero-emission airport equipment or technology The term zero-emission airport equipment or technology means human-equipment or human-maintained technology at an airport that produces zero emissions of any air pollutant and any greenhouse gas. (2) Establishment For fiscal year 2026 and each fiscal year thereafter, there are appropriated, out of any funds in the Treasury not otherwise appropriated, to the Environmental Protection Agency an amount equal to 25 percent of the amounts collected pursuant to surcharges assessed under sections 4(b) and 5 during the previous calendar year to award rebates and grants to eligible recipients on a competitive basis— (A) to purchase or install zero-emission airport equipment or technology for use at 1 or more airports; (B) to finance airport infrastructure improvement projects that would reduce the emission of air pollutants and greenhouse gases related to the operations of the airport; and (C) to conduct any relevant planning or permitting in connection with the purchase or installation of zero-emission airport equipment or technology. (3) Eligible entities An entity eligible to receive an award under the program established under paragraph (2) is— (A) a State (including the District of Columbia and territories of the United States), regional, local, or Tribal agency that has jurisdiction over an airport; (B) an airport authority; and (C) a private entity that— (i) applies for an award under this subsection in partnership with an entity described in subparagraph (A) or (B); and (ii) owns, operates, or uses airport equipment or technology. (4) Selection (A) Application An eligible entity seeking an award under the program established under paragraph (2) shall submit to the Administrator an application at such time, in such manner, and containing such information as the Administrator may require. (B) Priority In selecting the recipients of awards under the program established under paragraph (2), the Administrator shall give priority to projects that would— (i) maximize the reduction of greenhouse gas emissions; (ii) maximize the public health benefits from the reduction of air pollutants; (iii) maximize public health and environmental benefits from every dollar spent under the program; and (iv) alleviate air pollution in poor air quality areas, including— (I) areas identified by the Administrator as in nonattainment or maintenance of national ambient air quality standards promulgated under section 109 of the Clean Air Act ( 42 U.S.C. 7409 ) for criteria air pollutants; and (II) other areas that receive a disproportionate quantity of air pollution, as determined by the Administrator. (c) Determining the effects of aviation on air quality and the environment (1) Establishment For fiscal year 2026 and each fiscal year thereafter, there are appropriated, out of any funds in the Treasury not otherwise appropriated, to the Environmental Protection Agency an amount equal to 3 percent of the amounts collected pursuant to surcharges assessed under sections 4(b) and 5 during the previous calendar year— (A) to conduct a study to determine strategies for reducing the impact of the aviation industry on air quality and the environment; and (B) to promulgate regulations to mitigate the impacts described in subparagraph (A). (2) Study (A) In general Not later than January 1, 2030, and not later than January 1 every 5 years thereafter, the Administrator shall carry out, and make a report publicly available describing the results of, a study to determine strategies for reducing the impact of the aviation industry on air quality and the environment. (B) Considerations The study required under subparagraph (A) shall include consideration of— (i) the technological requirements for achieving net zero greenhouse gas emissions across the aviation sector by 2050; (ii) the impacts of the production of biofuels on land use and on other sectors competing for the use of agricultural land; and (iii) the disproportionate impact of pollution from the aviation industry on the communities surrounding airports and along high-traffic air corridors. (3) Regulations Not later than 3 years after the date on which the Administrator completes a study under paragraph (2), the Administrator shall— (A) promulgate regulations to implement appropriate measures to mitigate, to the greatest extent achievable considering the results of the study carried out under paragraph (2)(A), any adverse impacts on air quality or the environment from the aviation industry; or (B) make a determination that no regulations described in subparagraph (A) are necessary. (d) Ensuring solvency of the Highway Trust Fund For fiscal year 2026 and each fiscal year thereafter, there are appropriated, out of any funds in the Treasury not otherwise appropriated, to the Highway Trust Fund an amount equal to 15 percent of the amounts collected pursuant to surcharges assessed under sections 4(b) and 5 during the previous calendar year. (e) Environmental and climate justice block grants For fiscal year 2026 and each fiscal year thereafter, there are appropriated, out of any funds in the Treasury not otherwise appropriated, to the Environmental Protection Agency an amount equal to 15 percent of the amounts collected pursuant to surcharges assessed under sections 4(b) and 5 during the previous calendar year to make environmental and climate justice block grants in accordance with section 138 of the Clean Air Act ( 42 U.S.C. 7438 ). (f) Expanding the Bioenergy Technologies Office For fiscal year 2026 and each fiscal year thereafter, there are appropriated, out of any funds in the Treasury not otherwise appropriated, to the Department of Energy an amount equal to 30 percent of the amounts collected pursuant to surcharges assessed under sections 4(b) and 5 during the previous calendar year to support the research, development, and demonstration of sustainable aviation fuel and underlying technologies at the Bioenergy Technologies Office. (g) Supporting FAA Airport Infrastructure Grants For fiscal year 2026 and each fiscal year thereafter, there are appropriated, out of any funds in the Treasury not otherwise appropriated, to the Federal Aviation Administration an amount equal to 5 percent of the amounts collected pursuant to surcharges assessed under sections 4(b) and 5 during the previous calendar year to carry out the program described under the heading Airport Infrastructure Grants under the heading Federal Aviation Administration in title VIII of division J of the Infrastructure Investment and Jobs Act ( Public Law 117–58 ; 135 Stat. 1416). (h) Supporting the FAA Ascent program For fiscal year 2026 and each fiscal year thereafter, there are appropriated, out of any funds in the Treasury not otherwise appropriated, to the Federal Aviation Administration an amount equal to 5 percent of the amounts collected pursuant to surcharges assessed under sections 4(b) and 5 during the previous calendar year to operate the Center of Excellence for Alternative Jet Fuels and Environment.