Rule2023-12845
Clarification of Formal Enforcement Procedures for Unfair and Deceptive Practices
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 16, 2023
Effective
July 17, 2023
Issuing agencies
Transportation Department
Abstract
The U.S. Department of Transportation (Department or DOT) is amending its regulations regarding the formal enforcement procedures that are available if the DOT's Office of Aviation Consumer Protection (OACP) takes enforcement action against an airline or ticket agent, and efforts to settle the matter through a consent order are unsuccessful. Consistent with existing law, this final rule clarifies that DOT may bring a civil action in a United States District Court.
Full Text
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<title>Federal Register, Volume 88 Issue 116 (Friday, June 16, 2023)</title>
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[Federal Register Volume 88, Number 116 (Friday, June 16, 2023)]
[Rules and Regulations]
[Pages 39352-39353]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12845]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 399
[Docket No. DOT-OST-2021-0142]
RIN 2105-AF18
Clarification of Formal Enforcement Procedures for Unfair and
Deceptive Practices
AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: The U.S. Department of Transportation (Department or DOT) is
amending its regulations regarding the formal enforcement procedures
that are available if the DOT's Office of Aviation Consumer Protection
(OACP) takes enforcement action against an airline or ticket agent, and
efforts to settle the matter through a consent order are unsuccessful.
Consistent with existing law, this final rule clarifies that DOT may
bring a civil action in a United States District Court.
DATES: Effective July 17, 2023.
FOR FURTHER INFORMATION CONTACT: Robert Gorman, Kimberly Graber, or
Blane Workie, Office of Aviation Consumer Protection, U.S. Department
of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-
366-9342, 202-366-7152 (fax); <a href="/cdn-cgi/l/email-protection#295b464b4c5b5d074e465b444847694d465d074e465f"><span class="__cf_email__" data-cfemail="fa8895989f888ed49d9588979b94ba9e958ed49d958c">[email protected]</span></a>;
<a href="/cdn-cgi/l/email-protection#8be0e2e6e9eef9e7f2a5ecf9eae9eef9cbefe4ffa5ece4fd"><span class="__cf_email__" data-cfemail="472c2e2a2522352b3e692035262522350723283369202831">[email protected]</span></a>; <a href="/cdn-cgi/l/email-protection#8defe1ece3e8a3fae2ffe6e4e8cde9e2f9a3eae2fb"><span class="__cf_email__" data-cfemail="a1c3cdc0cfc48fd6ced3cac8c4e1c5ced58fc6ced7">[email protected]</span></a> (email).
SUPPLEMENTARY INFORMATION:
I. Background
A. The Unfair and Deceptive Practices Statute and the Department's
Related Rulemakings
The Department's authority to regulate unfair and deceptive
practices in air transportation or the sale of air transportation is
found at 49 U.S.C. 41712 (section 41712) in conjunction with its
rulemaking authority under 49 U.S.C. 40113, which states that the
Department may take action that it considers necessary to carry out
this part, including prescribing regulations. Section 41712 gives the
Department the authority to investigate and decide whether an air
carrier, foreign air carrier, or ticket agent is engaged in an unfair
or deceptive practice in air transportation or the sale of air
transportation. Under section 41712, after notice and an opportunity
for a hearing, the Department has the authority to issue orders to stop
an unfair or deceptive practice.
On December 20, 2020, the Department published in the Federal
Register a final rule titled ``Defining Unfair or Deceptive Practices''
(UDP Final Rule).\1\ The UDP Final Rule was intended to provide
regulated entities and other stakeholders with greater clarity about
the Department's enforcement and regulatory processes with respect to
aviation consumer protection actions under section 41712.\2\ It sets
forth procedures that the Department uses when conducting enforcement
actions and rulemakings under the authority of section 41712.\3\
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\1\ 85 FR 78707 (December 7, 2020); RIN 2105-AE72; Docket DOT-
OST-2019-0182.
\2\ 85 FR 78707.
\3\ 14 CFR 399.79.
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On February 2, 2022, the Department amended its regulations
regarding the hearing procedures that are available when DOT proposes a
discretionary aviation consumer protection rulemaking declaring a
practice to be unfair or deceptive.\4\ On August 29, 2022, the
Department issued an interpretive rulemaking (guidance) to inform the
public and regulated entities about DOT's interpretation of the terms
unfair, deceptive, and practices as it relates to its statutory
authority to prohibit unfair or deceptive practices.\5\
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\4\ 87 FR 5655 (February 2, 2022); RIN 2105-AF03; Docket DOT-
OST-2021-0142.
\5\ 87 FR 52677 (August 29, 2022); RIN 2105-ZA18; Docket DOT-
OST-2019-0182.
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II. Need for Clarification of Formal Enforcement Procedures
In the UDP Final Rule, the Department stated that when there are
reasonable grounds to believe that an airline or ticket agent has
violated Section 41712, and efforts to settle the matter have failed,
then OACP may issue a notice instituting an enforcement proceeding
before a DOT administrative law judge (ALJ).\6\ However, the ALJ
complaint process is not the only avenue available for taking formal
enforcement action. Pursuant to existing law, DOT also has the option
of filing a complaint in a United States District Court to enforce
Section 41712, or any regulation, requirement, or order issued under
the authority of Section 41712.\7\ In the UDP Final Rule codifying the
Department's formal enforcement procedures, the option to file a
complaint in United States District Court was not listed. This final
rule is intended to clarify and provide a more complete statement of
formal enforcement procedures available under existing DOT authority.
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\6\ 14 CFR 399.79(f).
\7\ 49 U.S.C. 46106; 49 U.S.C. 46107.
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III. Administrative Procedure Act
Section 553 of the Administrative Procedure Act (5 U.S.C. 553)
provides that when an agency, for good cause, finds that notice and
public comment are impractical, unnecessary, or contrary to the public
interest, the agency may issue a final rule without providing notice
and an opportunity for public comment (5 U.S.C. 553(b)(B)). The
Department has determined that there is good cause to issue this final
rule without notice and an opportunity for public comment because such
notice and comment would be unnecessary. Since this final rule only
restates and clarifies existing legal authorities without imposing any
new requirements, public comment is unnecessary.
Rulemaking Analyses and Notices
A. E.O. 12866 and DOT Regulatory Policies and Procedures
The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866 (``Regulatory Planning and Review''). Accordingly, OMB has
not reviewed it. The Department does not anticipate that this
rulemaking, which amends the Department's internal procedures, will
have an economic impact on regulated entities. E.O. 12866, as amended
by E.O. 14094 (``Modernizing Regulatory Review''), requires that
agencies ``should assess all costs and benefits of available regulatory
alternatives, including the alternative of not regulating.'' The
Department does not anticipate that this action will result in any
costs because it is simply a clarification of existing legal
authorities and, therefore, is not expected to change the behavior of
regulated parties or how they interact with the Department. The primary
benefit of this rulemaking is providing clarification regarding the
legal authorities applicable to the Department's enforcement practices.
B. Regulatory Flexibility Act
Since notice and comment rulemaking is not necessary for this rule,
the analytical provisions of the Regulatory Flexibility Act (Pub. L.
96-354, 5 U.S.C. 601-612) do not apply.
[[Page 39353]]
C. Executive Order 13132 (Federalism)
Executive Order 13132 requires agencies to ensure meaningful and
timely input by State and local officials in the development of
regulatory policies that may 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. This action has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132 (August 4, 1999), and DOT has determined that this action
will not have a substantial direct effect or federalism implications on
the States and would not preempt any State law or regulation or affect
the States' ability to discharge traditional State governmental
functions. Therefore, consultation with the States is not necessary.
D. Executive Order 13175 (Tribal Consultation)
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175, ``Consultation and
Coordination with Indian Tribal Governments.'' Because this rulemaking
does not 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
13175 do not apply.
E. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that DOT consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. The DOT has
determined there are no new information collection requirements
associated with this final rule.
F. National Environmental Policy Act
The agency has analyzed the environmental impacts of this action
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4321 et seq.) and has determined that it is categorically
excluded pursuant to DOT Order 5610.1C, ``Procedures for Considering
Environmental Impacts'' (44 FR 56420, October 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). Paragraph
4.c.6.i of DOT Order 5610.1C categorically excludes ``[a]ctions
relating to consumer protection, including regulations.'' This
rulemaking relates to the Department's authority to pursue a complaint
in United States District Court on consumer protection matters. The
agency does not anticipate any environmental impacts, and there are no
extraordinary circumstances present in connection with this rulemaking.
List of Subjects in 14 CFR Part 399
Consumer Protection, Policies, Rulemaking proceedings, Enforcement,
Unfair or deceptive practices.
For the reasons set forth in the preamble, the Department of
Transportation amends 14 CFR part 399 as follows:
PART 399--STATEMENTS OF GENERAL POLICY
0
1. The authority citation for part 399 is revised to read as follows:
Authority: 49 U.S.C. 40113(a), 41712, 46106, and 46107.
0
2. Amend Sec. 399.79 by revising the paragraph (f) heading and by
adding paragraph (g) to read as follows:
Sec. 399.79 Policies relating to unfair and deceptive practices.
* * * * *
(f) Formal enforcement proceedings before an administrative law
judge. * * *
(g) Formal enforcement proceedings in U.S. District Court.
Alternatively, when there are reasonable grounds to believe that an
airline or ticket agent has violated 49 U.S.C. 41712 and efforts to
settle the matter have failed, the Department of Transportation may
bring a civil action in a district court of the United States pursuant
to 49 U.S.C. 46106 or 46107.
Issued this 12th day of June, 2023, in Washington, DC, under
authority delegated in 49 CFR 1.27(n).
John E. Putnam,
General Counsel.
[FR Doc. 2023-12845 Filed 6-15-23; 8:45 am]
BILLING CODE 4910-9X-P
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