Proposed Rule2025-19692
Procedures in Regulating and Enforcing Unfair or 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
October 30, 2025
Issuing agencies
Transportation DepartmentTransportation Department
Abstract
The Department proposes to reinstate the hearing procedures used when conducting a discretionary rulemaking action under its authority to regulate unfair or deceptive practices in air transportation or the sale of air transportation. This notice of proposed rulemaking (NPRM) also seeks comment on the rescission of a final rule published by the Department.
Full Text
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<title>Federal Register, Volume 90 Issue 208 (Thursday, October 30, 2025)</title>
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[Federal Register Volume 90, Number 208 (Thursday, October 30, 2025)]
[Proposed Rules]
[Pages 48849-48855]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-19692]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary of Transportation
14 CFR Part 399
[DOT-OST-2025-0633]
RIN 2105-AF38
Procedures in Regulating and Enforcing Unfair or Deceptive
Practices
AGENCY: Office of the Secretary of Transportation (OST), U.S.
Department of Transportation (DOT or Department).
[[Page 48850]]
ACTION: Notice of Proposed Rulemaking (NPRM).
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SUMMARY: The Department proposes to reinstate the hearing procedures
used when conducting a discretionary rulemaking action under its
authority to regulate unfair or deceptive practices in air
transportation or the sale of air transportation. This notice of
proposed rulemaking (NPRM) also seeks comment on the rescission of a
final rule published by the Department.
DATES: Comments must be received by December 1, 2025. To the extent
practicable, DOT will consider late-filed comments.
ADDRESSES: You may submit comments by any of the following methods
(please choose only one of the ways listed):
<bullet> Federal Rulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the online instructions for submitting comments.
<bullet> Mail: Docket Management System; U.S. Department of
Transportation, Docket Operations, M-30, Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590-0001. Mailed comments
must be received by the close of the comment period.
<bullet> Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue
SE, Washington, DC 20590-0001 between 9:00 a.m. and 5:00 p.m., Monday
through Friday, except Federal holidays.
Instructions: You must include the agency name and docket number
(DOT-OST-2025-0633) or the Regulation Identifier Number (RIN) for the
rulemaking at the beginning of your comment. All comments received will
be posted to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal
information provided.
Privacy Act: Anyone can search the comments received in any of our
dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). For information on DOT's compliance with
the Privacy Act, visit <a href="https://www.transportation.gov/privacy">https://www.transportation.gov/privacy</a>.
Docket: For access to the docket to read background documents and
comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> or to the street
address listed above. Follow the online instructions for accessing the
docket.
Do not include any personally identifiable information (such as
name, address, or other contact information) or confidential business
information that you do not want publicly disclosed. All comments are
public records; they are publicly displayed exactly as received, and
will not be deleted, modified, or redacted. Comments may be submitted
anonymously. Follow the search instructions on <a href="https://www.regulations.gov">https://www.regulations.gov</a> to view public comments.
FOR FURTHER INFORMATION CONTACT: Robert Gorman, Beth Brodsky, 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#d6a4b9b4b3a4a2f8b1b9a4bbb7b896b2b9a2f8b1b9a0"><span class="__cf_email__" data-cfemail="4d3f222f283f39632a223f202c230d292239632a223b">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#9af8ffeef2b4f8e8f5fee9f1e3dafef5eeb4fdf5ec"><span class="__cf_email__" data-cfemail="d2b0b7a6bafcb0a0bdb6a1b9ab92b6bda6fcb5bda4">[email protected]</span></a>,
or <a href="/cdn-cgi/l/email-protection#7f1d131e111a5108100d14161a3f1b100b51181009"><span class="__cf_email__" data-cfemail="50323c313e357e273f223b393510343f247e373f26">[email protected]</span></a> (email).
SUPPLEMENTARY INFORMATION:
I. Rulemaking Background
A. The Department's Unfair or Deceptive Practices Statute
The Department has authority under 49 U.S.C. 41712 (Section 41712)
to investigate and decide whether an air carrier, foreign air carrier,
or ticket agent has been or 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 authority to order the air carrier, foreign air carrier,
or ticket agent to stop the unfair or deceptive practice. On its face,
Section 41712 provides adjudicatory authority to the Department to
issue case-by-case orders to stop a particular practice.
The Department can issue regulations to declare a practice to be
unfair or deceptive under Section 41712 using rulemaking authority
found in 49 U.S.C. 40113 (Section 40113), which states that the
Department may take action, including prescribing regulations, it
considers necessary to carry out Part A of Subtitle VII of Title 49 of
the U.S. Code, which includes Section 41712. The Department's authority
to issue regulations under Section 41712 is limited to declaring a
practice to be unfair or deceptive after notice and an opportunity for
a hearing. The Department's rulemaking authority under Section 41712
does not extend beyond that application. Pursuant to another statute,
49 U.S.C. 46301, the Department has authority to issue civil penalties
for violations of Section 41712 or for any regulation or order issued
under the authority of Section 41712.
To avoid misapplication of legal authority under Section 41712, the
Department offers additional clarification. When Congress has provided
the Department with explicit rulemaking authority outside of Section
41712 or Section 40113, then the Department follows that direction.
However, when Congress has not provided the Department with explicit
rulemaking authority, and the Department seeks to declare a practice to
be unfair or deceptive, the following procedures must be followed:
1. Enforcement: The Department may investigate an air carrier,
foreign air carrier, or ticket agent to determine whether that
individual 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. The Department must use the definitions of unfair
or deceptive, and the procedures proposed in this rulemaking, to
declare the practice to be unfair or deceptive. If, after notice and an
opportunity for a hearing, the Department finds the practice to be
unfair or deceptive, the Department may order the air carrier, foreign
air carrier, or ticket agent to stop the practice. The Department may
issue civil penalties, as appropriate.
2. Rulemaking: Trivial or speculative harms are insufficient to
initiate a rulemaking. The Department may initiate a rulemaking only if
it has evidence to suggest that an unfair or deceptive practice may be
occurring. The Department investigates the practice, gathers data, and
formulates a body of evidence demonstrating that a problem exists in
the market. The Department issues a notice of proposed rulemaking using
the definitions and procedures proposed in this rulemaking, to declare
the practice to be unfair or deceptive. If, after notice and an
opportunity for a hearing, the Department finds that the practice is
unfair or deceptive, the Department may issue a final rule declaring
what the unfair or deceptive practice is. After the final rule is
effective, the Department may take enforcement action against an air
carrier, foreign air carrier, or ticket agent for violation of the
regulation following the enforcement procedures proposed in this
rulemaking.
The Department is analyzing its past use of Section 41712 under the
direction of Executive Order 14219, ``Ensuring Lawful Governance and
Implementing the President's `Department of Government Efficiency'
Deregulatory Initiative'' (February 19, 2025). This Executive Order
instructs the executive branch to direct its enforcement resources to
regulations squarely authorized by constitutional Federal statutes, and
it requires the Department to review its regulations to identify those
that are based on anything other than the best reading of its
underlying statutory authority. The Department finds that the best
reading of its
[[Page 48851]]
statutory authorities allows the Department first to investigate and
then to declare a practice to be unfair or deceptive following the
procedures that would be codified in the regulation proposed today. The
Department's rulemaking authority is therefore limited to a declaration
of what is unfair or deceptive when supported by evidence after notice
and an opportunity for a hearing.
This best reading of the statute is consistent with longstanding
principles found in Executive Order 12866, as well as DOT Order
2100.6B, which both contemplate that regulations be supported by
statutory authority, and direct the Department to consider whether a
specific problem exists that must be addressed through rulemaking.
Speculative harms do not support a need to regulate, nor do strained or
unduly broad readings of statutory authorities.
B. The Department's 2020 Hearing Provisions for Discretionary Aviation
Consumer Protection Rulemakings and Subsequent Revisions to the
Procedures in 2022
On December 20, 2020, the Department published in the Federal
Register a final rule titled: ``Defining Unfair or Deceptive
Practices'' (2020 UDP Rule).\1\ The 2020 UDP 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.
Among other things, it set forth procedures the Department would use
when conducting future discretionary rulemaking actions under the
authority of Section 41712. Those procedures were revised meaningfully
by a final rule the Department published on February 2, 2022 titled:
``Procedures in Regulating Unfair or Deceptive Practices'' (2022 UDP
Rule).\2\ This NPRM proposes to rescind the 2022 UDP Rule and to
reinstate the procedures for discretionary rulemaking hearings set
forth in the 2020 UDP Rule.
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\1\ See U.S. Department of Transportation, Final Rule,
``Defining Unfair or Deceptive Practices,'' 85 FR 78707 (RIN 2105-
AE72) (Docket DOT-OST-2019-0182) (Dec. 7, 2020).
\2\ See U.S. Department of Transportation, Final Rule,
``Procedures in Regulating Unfair or Deceptive Practices,'' 87 FR
5655 (RIN 2105-AF03) (Docket DOT-OST-2021-0142) (Feb. 2, 2022).
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In addition, the 2020 UDP Rule defined the terms ``unfair'' and
``deceptive'' for purposes of Section 41712. The definitions were
modeled after Federal Trade Commission (FTC) precedent; they also
reflect the Department's longstanding interpretation of those terms.
Those definitions remain unchanged since DOT published the 2020 UDP
Rule, and there are no modifications to them proposed in this NPRM.
However, without going through notice and comment, on August 29, 2022,
the Department expounded upon these definitions in an unnecessary and
potentially confusing interpretative rulemaking titled: ``Guidance
Regarding Interpretation of Unfair or Deceptive Practices''
(Guidance).\3\ The Department will rescind the Guidance at a later
date.
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\3\ See U.S. Department of Transportation, Guidance Document,
``Guidance Regarding Interpretation of Unfair or Deceptive
Practices,'' 87 FR 52677 (RIN 2105-ZA18) (Docket DOT-OST-2019-0182)
(Aug. 29, 2022).
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C. The 2023 Clarification of Formal Enforcement Procedures for Unfair
or Deceptive Practices
The Department issued another final rule on June 16, 2023, titled:
``Clarification of Formal Enforcement Procedures for Unfair or
Deceptive Practices'' (Clarification).\4\ This final rule was intended
to ``provide a more complete statement of formal enforcement procedures
available under existing DOT authority'' than was provided in the 2020
UDP Rule. At that time, the Department determined it was necessary to
clarify, when taking enforcement action, that DOT is not limited to
initiating a proceeding before an administrative law judge, but also
has the option to bring a civil action in a United States District
Court. The Department now proposes to rescind the regulations issued in
that rulemaking because it was done without notice and comment and
because it is unnecessary. The Department's authority to bring an
action in the United States District Court to enforce Section 41712 is
grounded in statute, settled, and does need to be clarified in
regulation.
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\4\ See U.S. Department of Transportation, Final Rule,
``Clarification of Formal Enforcement Procedures for Unfair or
Deceptive Practices,'' 88 FR 39352 (RIN 2105-AF18) (DOT-OST-2021-
0142) (June 16, 2023).
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On April 3, 2025, the Department issued a Request for Information
(RFI), titled: ``Ensuring Lawful Regulation; Reducing Regulation and
Controlling Regulatory Costs.'' \5\ The Department solicited
information to identify regulations, guidance documents, paperwork, and
other administrative burdens that can be modified or repealed,
consistent with the law. In response to the RFI, Airlines for America,
the International Air Transport Association, United Airlines, and the
Reason Foundation recommended that the Department take action to
reinstate the 2020 UDP hearing procedures, rescind the 2022 UDP Rule,
and rescind the 2023 Guidance.
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\5\ See U.S. Department of Transportation, Request for
Information, ``Ensuring Lawful Regulation; Reducing Regulation and
Controlling Regulatory Costs,'' 90 FR 14593 (Docket DOT-OST-2025-
0026) (April 3, 2025).
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II. Proposal To Reinstate the 2020 UDP Rule's Hearing Procedures
The 2022 UDP Rule made the following six revisions to the hearing
procedures used for the Department's discretionary aviation consumer
protection rulemakings: (1) changed the standard for when the General
Counsel should grant a hearing request to an amorphous ``public
interest'' standard; (2) changed the level of proof necessary for
granting a public hearing from ``plausible'' to ``credible and
convincing;'' (3) added a requirement for the Department to provide a
rationale for granting a petition rather than only for denying a
petition; (4) eliminated the requirement for a neutral hearing officer,
giving the General Counsel discretion to appoint an adjudicator (who
need not be neutral) from within or outside the Department, and granted
the adjudicator more discretion to decide when and how testimony would
be presented at a hearing; (5) eliminated the requirement that the
hearing officer issue proposed findings on disputed issues of fact; and
(6) changed the closing procedures to include an opportunity for all
interested parties to file statements or comments in the docket instead
of only the parties that participated in the hearing.
These revisions were promulgated in response to Executive Orders
that have since been rescinded and are inconsistent with current
Department and Administration policy. In revising the procedures in
2022, the Department found a need to ``streamline'' these regulations
to ensure that consumer protection rulemakings were not ``unduly
delayed,'' noting that ``it is important to balance the need for robust
public participation with the need for procedures that provide the
Department with enough flexibility to ensure important rulemakings are
not bogged down by overly prescriptive procedural constraints.'' The
Department has reconsidered these justifications for the 2022
rulemaking and supports the recodification of the 2020 procedures. The
Department finds that any delay associated with following the 2020
procedures for applicable discretionary rulemakings would not only be
minimal, based on past practice with these procedures, but also would
be outweighed by the Department's
[[Page 48852]]
development of higher-quality rulemakings and enforcement actions. The
Department produces its best work when it is informed by robust public
input, the best available data, and sound law and economics, and these
procedures increase opportunities to receive those essential building
blocks for good governance that would strengthen the overall quality
and fairness of the Department's administrative actions.
In addition, the 2022 revisions gave the Department too much
discretion and authority for granting and overseeing hearings, imposed
too onerous a standard on petitioners requesting a hearing, and did not
provide regulated entities and other stakeholders with sufficient
clarity, certainty, transparency, or due process in connection with the
Department's aviation consumer protection rulemaking actions. This
rulemaking, therefore, proposes to reinstate the hearing procedures
established by the 2020 UDP Rule and to require the Department to
follow those procedures when engaging in discretionary aviation
consumer protection rulemakings issued under Section 41712 that are not
defined as high-impact or economically significant within the meaning
of the Department's regulatory procedures. Any such high-impact or
economically significant rulemakings would be subject to special
procedures outlined in section 12 of DOT Order 2100.6B.\6\ These
procedures are proposed to be reinstated in a separate pending
rulemaking action.\7\ If adopted, these reinstated hearing procedures
would increase transparency, provide for more robust public
participation, and strengthen the overall quality and fairness of the
Department's administrative actions.
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\6\ See U.S. Department of Transportation, DOT Order 2100.6B,
``Policies and Procedures for Rulemakings,'' available at <a href="https://www.transportation.gov/regulations/dot-order-21006b-rulemaking-and-guidance-procedures">https://www.transportation.gov/regulations/dot-order-21006b-rulemaking-and-guidance-procedures</a> (Mar. 10, 2025).
\7\ See U.S. Department of Transportation, Notice of Proposed
Rulemaking (NPRM), ``Administrative Rulemaking, Guidance, and
Enforcement Procedures,'' 90 FR 20956, 20967 (RIN 2105-AF32) (Docket
DOT-OST-2025-0007) (May 16, 2025) (see proposed section 5.17(a)).
The comment period for this NPRM closed on June 16, 2025.
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1. Hearing Procedures
Under this proposal, the reinstated UDP hearing procedures would
permit any interested party to file a petition for an evidentiary
hearing when the Department proposes a new discretionary rule declaring
a practice by airlines or ticket agents to be unfair or deceptive. The
petition must be directed to the attention of the General Counsel and
must be filed before the close of the comment period on the proposed
rule.
To obtain a hearing, the requesting party must make a plausible
showing that: (1) 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) the ordinary public
comment process is unlikely to provide an adequate examination of the
issues to permit a fully informed judgment; and (3) the resolution of
the disputed factual issues would likely have a material effect on the
costs and benefits of the proposed rule. Even if the petitioner
establishes these elements, the General Counsel may still deny the
petition if the hearing would not advance consideration of the proposed
rule. If the General Counsel denies a petition, the denial must be
accompanied by a detailed statement of reasons.
The Department notes, in the 2020 UDP Rule, that a petition for a
hearing may be denied if the General Counsel determines that a
``hearing would unreasonably delay completion of the rulemaking.'' \8\
The provision was retained in the 2022 UDP Rule.\9\ However, the
Department now proposes to remove this factor because it is duplicative
of the preceding provision that allows the General Counsel to deny a
hearing if it would ``not advance the consideration of the proposed
rule,'' which could involve considerations of timing. Nevertheless, the
Department seeks comment on the removal of this factor and whether the
public finds any value in its retention.
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\8\ See 14 CFR 399.75(b)(3)(ii) as finalized in the 2020 UDP
Rule.
\9\ See 14 CFR 399.75(b)(2)(v) as finalized in the 2022 UDP
Rule.
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The proposed procedures also provide that the General Counsel must
appoint a neutral officer to preside over the hearing and must allow a
reasonable opportunity to question the presenters. After the hearing is
closed, the neutral officer would place minutes of the meeting in the
docket, along with proposed findings of fact on the disputed issues.
Interested parties who participated in the hearing would be given the
opportunity to file statements of agreement or objection to the
proposed findings. After the hearing, the General Counsel would
consider the record of the hearing, along with the neutral officer's
findings, and determine whether: (1) to terminate the proposed
rulemaking; (2) to modify the proposed rule by filing a new or
supplemental notice of proposed rulemaking; or (3) to finalize the rule
without material changes. Any of these choices must be accompanied by a
notice in the Federal Register explaining the basis for the decision.
The Department also proposes to modify the procedures further by
adding a provision granting an opportunity to appeal to the Secretary
for parties aggrieved by the General Counsel's denial of a petition.
2. Hearing Procedures Rationale
The Department believes these hearing procedures are consistent
with Section 41712, which requires the Department to provide notice and
an opportunity for a hearing before finding that a regulated entity is
engaged in an unfair or deceptive practice. The hearing procedures the
Department proposes to reinstate would be helpful in cases where the
Department's proposed rulemaking may be premised on complex or disputed
issues of fact. Importantly, the traditional notice-and-comment
procedures of the Administrative Procedure Act remain the default
process. Thus, a hearing may be granted only if an interested party
shows that the traditional notice-and-comment process is inadequate to
examine the issues to permit a fully informed judgment. While the
hearing procedures may add time to the overall rulemaking process in
certain circumstances, as written, they would promote fairness, due
process, and well-informed rulemaking, without unduly delaying the
proceeding itself.
III. Rescission of Other Rules
The Department also proposes the rescission of the 2023
Clarification. The Department promulgated the 2023 Clarification
without going through formal notice and comment, and the Clarification
is also unnecessary. The Department's authority to bring an action in
the United States District Court to enforce Section 41712 is grounded
in statute, settled, and does not need to be clarified.
Finally, the Department proposes to consolidate the provisions
currently found at 14 CFR 399.75(a) and (c). Section 399.75(a) requires
the Department to use the definitions of the terms ``unfair'' and
``deceptive'' found in section 399.79. Section 399.75(c) requires the
Department to articulate the basis for concluding that the practice is
unfair or deceptive to consumers using those definitions. For the sake
of regulatory efficiency, the Department proposes to consolidate these
two sections into one regulation at section
[[Page 48853]]
399.75(a), but the requirement is the same: First, the Department must
employ the definitions found in section 399.79 when declaring a
practice to be unfair or deceptive. Second, the Department also must
explain in the rulemaking document that declares a practice to be an
unfair or deceptive practice how that practice satisfies the
definitional prongs of unfairness and deception found in section
399.79. The Department seeks comment on whether the revised language
sufficiently communicates these two requirements.
V. Administrative Procedure
Under the Administrative Procedure Act, an agency may waive the
normal notice and comment procedures if the action is a rule of agency
organization, procedure, or practice. See 5 U.S.C. 553(b)(3)(A). The
Department did not request comment before publishing the 2022 UDP Rule,
stating that the rule ``revises only internal processes applicable to
the Department's administrative procedures . . . for which notice and
comment are not required.'' \10\ However, because this NPRM seeks to
reinstate procedures from the 2020 UDP Rule that confer express rights
on regulated parties and other stakeholders, the Department seeks
public comment on this proposal. The Department also seeks public
comment on rescinding the Clarification.
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\10\ See 2022 UDP Rule, 87 FR at 5657.
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Before these proposed policies and procedures are adopted as final
regulations, consideration will be given to comments that are submitted
timely to the Department as prescribed in the preamble under the
ADDRESSES section. The Department seeks comment on all aspects of this
proposal. Any comments submitted will be made available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or upon request.
VI. Regulatory Analyses and Notices
A. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review)
The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866. Accordingly, OMB has not reviewed it. This proposed rule
primarily involves agency procedure and interpretation. Adopting
enhanced procedures for future rulemaking activities would help to
ensure that the activities are rooted in fairness, due process, and an
adequate factual foundation.
Under this proposed rule, future discretionary rulemakings could be
subject to a hearing procedure. This proposed rule allows interested
parties to request a hearing when the Department proposes a rule to
classify a practice as unfair or deceptive; when the issuance of the
NPRM raises one or more disputed scientific, technical, economic, or
other complex factual issues; or when the NPRM may not satisfy the
requirements of the Information Quality Act. Allowing interested
parties an opportunity for a hearing ensures that they can test the
information upon which discretionary consumer protection regulations
rely. However, following this proposal's requirements to provide a
sufficient factual basis to support an ``unfair'' and ``deceptive''
finding should reduce the need for the Department to hold such
hearings.
Nevertheless, requests for hearings are expected to occur
occasionally. While the Department lacks data that would allow it to
distinguish the costs and time of conducting the hearings from the
costs of conducting its normal business operations, the Department
believes that any incremental costs and time would be small relative to
the baseline scenario in which the Department did not enact the rule.
Previous discretionary rulemakings involving unfair or deceptive
practices in aviation consumer protection have attracted substantial
interest from consumer advocates, airline industry advocates, and the
general public. The Department engaged with these interested parties
without the benefit of a formal process, and the engagements required
investments of time and resources by the Department and interested
parties. Because these engagements were informal and with uncertain
scopes, they were not as efficient as would be expected under a more
formal process for interested parties as would be the case under this
proposed rule. Without a formal process, parties tend to overinvest in
preparation, incurring unnecessary costs, or underinvest, leading to
additional engagements and administrative costs. For future
rulemakings, establishing formal hearing procedures may reduce costs
and time by increasing certainty about opportunities for engagement.
The Department has experience using hearing procedures to
supplement traditional notice-and-comment rulemaking.\11\ The hearing
procedures would provide consistency in the Department's exercise of
its UDP authority by mirroring the statute's hearing requirement to
ensure rulemakings enacted under the same authority ensure due process
and are grounded in fairness and supported by an adequate factual
foundation. The Department believes that its experience with hearings
would prevent it from leading to excessive delays in issuing aviation
consumer protection rules.
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\11\ See, e.g., Recording of the Public Meeting on the Airline
Ticket Refunds and Consumer Protections NPRM, available at <a href="https://www.transportation.gov/airconsumer/Airline_Refund_NPRM/March21_Public_Hearing_Recording">https://www.transportation.gov/airconsumer/Airline_Refund_NPRM/March21_Public_Hearing_Recording</a> (Mar. 21, 2023); Recording of the
Public Meeting on the Enhancing Transparency of Airline Ancillary
Service Fees NPRM, available at <a href="https://www.transportation.gov/airconsumer/AirlineAncillaryFeeNPRM/March30_Public_Hearing_Recording">https://www.transportation.gov/airconsumer/AirlineAncillaryFeeNPRM/March30_Public_Hearing_Recording</a>
(Mar. 30, 2023); and Accessible Lavatories on Single-Aisle Aircraft:
Part 1; Reopening of Comment Period and Public Meeting, available at
<a href="https://www.federalregister.gov/documents/2021/11/19/2021-25000/accessible-lavatories-on-single-aisle-aircraft-part-1-reopening-of-comment-period-and-public-meeting">https://www.federalregister.gov/documents/2021/11/19/2021-25000/accessible-lavatories-on-single-aisle-aircraft-part-1-reopening-of-comment-period-and-public-meeting</a> (Dec. 16, 2021).
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This proposed rule would not impose any more than de minimis
regulatory costs. The proposal would provide an additional mechanism
for industry to provide input to the Department on its discretionary
aviation consumer protection rulemakings. Private industry should not
experience more than minimal additional costs relative to the status
quo because it already engages in significant information exchange with
the Department. Industry has the option of continuing to use historical
mechanisms for providing input to discretionary aviation consumer
protection and is not required to make use of the alternatives set
forth in this rule. The Department should not experience significant
additional costs because it has considerable experience conducting
analysis in support of aviation consumer protection rules as well as
hearings analogous to those in this rule. Such efforts are consistent
with the Department's normal business operations, and any additional
resources needs could be accommodated through a simple and temporary
realignment of internal resources.
B. Executive Order 14192 (Unleashing Prosperity Through Deregulation)
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 14192
(``Unleashing Prosperity Through Deregulation''). This proposed rule is
not expected to be an Executive Order 14192 regulatory action because
this proposed rule is not significant under Executive Order 12866.
[[Page 48854]]
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities.
A direct air carrier or foreign air carrier is a small business if it
provides air transportation only with small aircraft (i.e., aircraft
with up to 60 seats/18,000-pound payload capacity). See 14 CFR 399.73.
The Department has determined that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
However, the Department invites comment on the potential impact of this
rulemaking on small entities.
D. Executive Order 13132 (Federalism)
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132
(``Federalism''). The proposed rule does not include any provision
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.
E. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This proposed 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 proposed rule 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.
F. 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 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 proposed rule.
G. Unfunded Mandates Reform Act
The Department has determined the requirements of Title II of the
Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.
H. National Environmental Policy Act
The Department has analyzed the environmental impacts of this
proposed rule pursuant to the National Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321 et seq.) and has determined it is categorically
excluded pursuant to DOT Order 5610.1D, ``Procedures for Considering
Environmental Impacts'' (July 1, 2025). Categorical exclusions (CEs)
are categories of actions that the agency has determined normally do
not significantly affect the quality of the human environment and
therefore do not require either an environmental assessment (EA) or
environmental impact statement (EIS). See DOT Order 5610.1D Sec. 9. 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. Sec. 9(b). The
Department's Operating Administrations (OAs) may apply CEs established
in another OA's procedures. Id. Sec. 9(f). To do so, the Operating
Administration ``must evaluate the action for extraordinary
circumstances identified in the OA procedures in which the CE is
established to determine if a normally excluded action may have a
significant impact and coordinate with the originating OA to ensure
that the CE is being applied correctly.'' Id. This rulemaking, which
sets procedures for departmental unfair or deceptive practices
rulemaking actions, is categorically excluded pursuant to 23 CFR
771.117(c)(20): ``Promulgation of rules, regulations, and directives.''
The Department does not anticipate any environmental impacts, and there
are no extraordinary circumstances present in connection with this
rulemaking.
I. Privacy Act
Anyone may search the electronic form of all comments received into
any of OST's dockets by the name of the individual submitting the
comment or signing the comment if submitted on behalf of an
association, business, labor union, or any other entity. You may review
DOT's complete Privacy Act Statement published in the Federal Register
on April 11, 2000 at 65 FR 19477-8.
J. Statutory/Legal Authority for This Rulemaking
This rulemaking is issued under the authority of 49 U.S.C.
40113(a), which grants the Secretary the authority to take action the
Secretary considers necessary to carry out 49 U.S.C. Subtitle VII
(Aviation Programs), including conducting investigations, prescribing
regulations, standards, and procedures, and issuing orders.
K. Regulation Identifier Number
A Regulation Identifier Number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
Spring and Fall of each year. The RIN set forth in the heading of this
document can be used to cross-reference this action with the Unified
Agenda.
List of Subjects in 14 CFR Part 399
Airfare advertising, Consumer protection, Rulemaking proceedings,
Unfair or deceptive practices.
For the reasons set forth in the preamble, the Department of
Transportation proposes to amend 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. 41712, 40113(a).
Subpart F--Policies Relating to Rulemaking Proceedings
0
2. Section 399.75 of Subpart F is amended to read as follows:
Sec. 399.75 Rulemakings relating to unfair or deceptive practices.
(a) General. Unless specifically required by statute, the
Department shall only issue a proposed or final regulation under the
authority of 49 U.S.C. 41712(a) if the Department articulates the basis
for declaring a practice in air transportation or the sale of air
transportation to be unfair or deceptive to consumers, employing the
definitions of ``unfair'' and ``deceptive'' set forth in Sec. 399.79.
(b) Procedural requirements. Except as provided in paragraph (d),
when issuing a proposed regulation to determine a practice in air
transportation or the sale of air transportation to be unfair or
deceptive to consumers under the authority of 49 U.S.C. 41712(a), the
Department shall
[[Page 48855]]
adhere to the following procedural requirements:
(1) Request for a hearing. Following publication of a proposed
regulation, and before the close of the comment period, any interested
party may file in the rulemaking docket a petition, directed to the
General Counsel, to hold a hearing on the proposed regulation. The
General Counsel shall determine whether to grant the petition in
accordance with the requirements of this section.
(2) Grant of petition for hearing. Except as provided in paragraph
(b)(3) of this section, the petition shall be granted if the petitioner
makes a plausible prima facie showing that:
(i) The proposed rule depends on conclusions concerning one or more
specific scientific, technical, economic, or other factual issue that
is genuinely in dispute or that may not satisfy the requirements of the
Information Quality Act;
(ii) The ordinary public comment process is unlikely to provide an
adequate examination of the issues to permit a fully informed judgment;
and
(iii) The resolution of the disputed factual issues would likely
have a material effect on the costs and benefits of the proposed rule.
(3) Denial of petition for hearing. A petition meeting the
requirements of paragraph (b)(2) of this section may be denied if the
General Counsel determines the requested hearing would not advance the
consideration of the proposed rule and the General Counsel's ability to
make the rulemaking determinations required by this section.
(4) Explanation and appeal of denial. If a petition is denied in
whole or in part, the General Counsel shall include a detailed
explanation of the factual basis for the denial, including findings on
each of the relevant factors identified in paragraph (b)(2) or (3) of
this section. The General Counsel's denial of a petition, in whole or
in part, may be appealed by the petitioner to the Secretary within 30
days of the date on which the General Counsel's explanation of the
factual basis for the denial is issued.
(5) Hearing notice. If the General Counsel grants the petition, or
if the denial of a petition is reversed on appeal to the Secretary, the
General Counsel shall publish notification of the hearing in the
Federal Register. The document shall specify the proposed rule at issue
and the specific factual issues to be considered at the hearing. The
scope of the hearing shall be limited to the factual issues specified
in the notice.
(6) Hearing process. (i) A hearing under this section shall be
conducted using procedures approved by the General Counsel, and
interested parties shall have a reasonable opportunity to participate
in the hearing through the presentation of testimony and written
submissions.
(ii) The General Counsel shall arrange for a neutral officer to
preside over the hearing and shall provide a reasonable opportunity to
question the presenters.
(iii) After the hearing and after the record of the hearing is
closed, the hearing officer shall place in the docket minutes of the
hearing with sufficient detail as to reflect fully the evidence and
arguments presented on the issues, along with proposed findings
addressing the disputed issues of fact identified in the hearing
notice.
(iv) Interested parties who participated in the hearing shall be
given an opportunity to file statements of agreement or objection in
response to the hearing officer's proposed findings. The complete
record of the hearing shall be made part of the rulemaking record.
(7) Actions following hearing. (i) Following the completion of the
hearing process, the General Counsel shall consider the record of the
hearing, including the hearing officer's proposed findings, and shall
make a reasoned determination whether to terminate the rulemaking, to
proceed with the rulemaking as proposed, or to modify the proposed
rule.
(ii) If the General Counsel decides to terminate the rulemaking,
the General Counsel shall publish a document in the Federal Register
announcing the decision and explaining the reasons for the decision.
(iii) If the General Counsel decides to finalize the proposed rule
without material modifications, the General Counsel shall explain the
reasons for the decision and provide responses to the hearing record in
the preamble to the final rule.
(iv) If the General Counsel decides to modify the proposed rule in
material respects, the General Counsel shall publish a new or
supplemental notice of proposed rulemaking in the Federal Register
explaining the General Counsel's responses to and analysis of the
hearing record, setting forth the modifications to the proposed rule,
and providing additional reasonable opportunity for public comment on
the proposed modified rule.
(8) Interagency review process. The hearing procedures under this
paragraph (b)(8) shall not impede or interfere with the interagency
review process of the Office of Information and Regulatory Affairs for
the proposed rulemaking.
(c) When issuing a proposed regulation under this section that is
defined as high impact or economically significant within the meaning
of DOT Order 2100.6B or 49 CFR part 5, the Department shall follow the
procedural requirements set forth therein.
* * * * *
Subpart G--Policies Relating to Enforcement
0
3. Section 399.79 is amended by revising the paragraph (f) heading and
deleting paragraph (g) to read as follows:
(f) Formal enforcement proceedings before an administrative law
judge.
* * * * *
Issued in Washington, DC, under authority delegated in 49 CFR
part 1.27(n):
Gregory Zerzan,
General Counsel.
[FR Doc. 2025-19692 Filed 10-29-25; 8:45 am]
BILLING CODE 4910-9X-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.