[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 [www.gpo.gov]
[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); [email protected]; 
[email protected]; [email protected] (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]
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