[Federal Register Volume 91, Number 3 (Tuesday, January 6, 2026)]
[Notices]
[Pages 385-388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-24282]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
[Docket No. DOT-OST-2025-2514]
RIN 2105-ZA20
Notice Regarding Investigatory and Enforcement Policies and
Procedures of the Office of Aviation Consumer Protection
AGENCY: Office of the Secretary (OST), Department of Transportation
(Department or DOT).
ACTION: Notice of proposed guidance.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Transportation is proposing to revise
[[Page 386]]
and update the investigatory and enforcement policies and practices of
its Office of Aviation Consumer Protection (OACP), including the
sanctions brought by OACP for non-compliance with aviation consumer
protection requirements.
DATES: Comments should be filed by February 5, 2026. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: You may file comments identified by the docket number DOT-
OST-2025-2514 by any of the following methods:
Federal eRulemaking Portal: go to http://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001.
Hand Delivery or Courier: 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.
Commenters using this method of delivery should contact Docket Services
at 202-366-9826 or 202-366-9317 before delivery to ensure staff is
available to receive the delivery.
Instructions: You must include the agency name and docket number
DOT-OST-2025-2514 or the Regulatory Identification Number (RIN 2105-
ZA20) for the rulemaking at the beginning of your comment. All comments
received will be posted without change to http://www.regulations.gov,
including any personal information provided.
Privacy Act: Anyone can search the electronic form of all 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, please visit https://www.transportation.gov/privacy.
Docket: For access to the docket to read background documents and
comments received, go to http://www.regulations.gov or to the street
address listed above. Follow the online instructions for accessing the
docket.
FOR FURTHER INFORMATION CONTACT: Ryan Patanaphan or Blane A. Workie,
Office of Aviation Consumer Protection, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, 202-
366-9342, 202-366-7152 (fax), [email protected] or
[email protected] (email).
SUPPLEMENTARY INFORMATION: OACP, a unit within the Office of the
General Counsel, is responsible for enforcing aviation consumer
protection statutes and regulations. On January 3, 2023, OACP published
on its website guidance describing its investigatory and enforcement
practices, including an attachment listing the criteria the office uses
to determine an appropriate sanction for violations.\1\ In February
2025, President Trump issued Executive Order 14219, titled ``Ensuring
Lawful Governance and Implementing the President's Department of
Government Efficiency Deregulatory Initiative,'' which directs Federal
agencies to prioritize enforcement of regulations that are explicitly
authorized by the Constitution and Federal statutes.\2\ In March 2025,
the Department's Acting General Counsel issued a memorandum clarifying
the procedural requirements governing enforcement actions initiated by
the Department in order to ensure that DOT enforcement actions satisfy
principles of due process and remain lawful, reasonable, and consistent
with Administration policy.\3\ In May 2025, the Department issued a
notice of proposed rulemaking that proposes, among other things, to
codify the provisions of that memorandum.\4\ OACP is proposing to
revise its existing investigatory and enforcement policies and
procedures to be consistent with current Departmental and
Administration policy and to ensure that OACP is carrying out its
enforcement responsibilities in a fair and just manner. The substantive
text of the proposed updated notice, including its attachment, is
produced for public comment following this section.
---------------------------------------------------------------------------
\1\ https://www.transportation.gov/airconsumer/Notice_Investigatory_Enforcement_Policies_Procedures.
\2\ 90 FR 10583 (Feb. 25, 2025).
\3\ https://www.transportation.gov/administrations/office-general-counsel/general-counsel%E2%80%99s-enforcement-memorandum.
\4\ 90 FR 20956 (May 16, 2025).
Signed in Washington, DC, on December 31, 2025.
Blane A. Workie,
Assistant General Counsel, Office of Aviation Consumer Protection, U.S.
Department of Transportation.
Notice Regarding Investigatory and Enforcement Policies and Procedures
The U.S. Department of Transportation's Office of Aviation Consumer
Protection (OACP), a unit within the Office of the General Counsel, is
responsible for monitoring airline and ticket agent compliance with the
Department's aviation consumer protection, civil rights, and economic
licensing requirements. The office has broad authority to investigate
violations of these requirements and the discretion to determine
whether and how to conduct such investigations and initiate enforcement
actions. OACP also has authority, under 49 U.S.C. 46301, to assess
civil penalties. This notice is being issued to ensure alignment
between OACP's investigatory and enforcement policies and practices and
the Administration's directives and priorities.
Executive Order 14219, issued on February 25, 2025, directs Federal
agencies to de-prioritize actions to enforce regulations that are based
on anything other than the best reading of a statute or go beyond the
powers vested in the Federal Government by the Constitution. Consistent
with this Executive Order and the Department's enforcement objectives,
OACP intends to modify its enforcement program to ensure that all
enforcement actions taken against affected parties are founded on a
positive grant of statutory authority and that monetary penalties, if
sought, are based upon statutory text that clearly grants the
Department the authority to impose such penalties for the asserted
violations. In the proper exercise of enforcement discretion, OACP will
apply the best reading of the statutory text and not adopt or rely upon
overly broad interpretations of the governing statutes or regulations.
In addition, consistent with the Administration's enforcement
philosophy, OACP's enforcement focus will be on ensuring compliance
with civil rights and consumer protection regulations rather than
finding and penalizing entities for violations. Proactive measures to
promote compliance benefit the public by creating a culture of
compliance where regulated entities work to prevent violations from
happening in the first place. OACP intends to work with the regulated
entities to ensure that they understand and meet their obligations. If
OACP finds violations, it will attempt to address the problem by
issuing a warning letter to help the regulated entity achieve
compliance and resolve the issues before pursuing enforcement actions,
which may result in negotiated settlement orders assessing civil
penalties. When OACP has evidence of widespread, systemic, egregious,
or intentional violations, it may determine that enforcement action is
appropriate. In all enforcement actions, OACP will carry out its
responsibilities in a fair and just manner, which includes ensuring
that the affected parties are provided
[[Page 387]]
due process and ensuring actions are based on established law and
grounded in factual evidence.
Once OACP has determined that enforcement action is appropriate, it
will attempt to negotiate an order assessing a reasonable civil penalty
and requiring reasonable corrective actions such as ensuring consumers
are made whole. If the regulated entity and OACP are not able to reach
agreement on the terms of a consent order, OACP may seek resolution of
the matter by filing a formal complaint before the Department's Office
of Hearings for a decision by an Administrative Law Judge (ALJ). A
civil action in a district court of the United States may also be
initiated to enforce violations of aviation consumer protection and
civil rights statutes or regulations. OACP's approach of prioritizing
compliance efforts before resorting to enforcement action is a more
effective and efficient way to improve the air travel environment for
consumers.
How OACP Learns About Potential Problems
Most of OACP's investigations and enforcement actions are based on
consumer complaints. OACP receives complaints directly from consumers
about services they received or requested from an airline or ticket
agent that do not relate to airline safety or security. A team of
Transportation Industry Analysts reviews consumer complaints and tracks
trends to identify problematic practices. OACP also learns about
potential problems through its own investigation by monitoring
websites, advertisements, and other materials produced by airlines and
ticket agents. OACP may also learn about potential problems through
inspections of airline headquarters or airports, referrals from other
government agencies, required submissions from airlines, reports from
airline competitors, and media stories. OACP's Aviation Complaint,
Enforcement, and Reporting System (ACERS) manages consumer complaints
and reports submitted by regulated entities.
Investigation Process
Consistent with due process, once sufficient facts are established
for OACP to open an investigation, OACP generally sends an
investigation letter to the alleged violator. This letter advises the
regulated entity of the potential problematic conduct, requests
additional information, and allows the respondent to inform OACP of
defenses, mitigating circumstances, or additional facts while
encouraging voluntary cooperation. When an investigation letter is sent
to a regulated entity, OACP considers the entity to be on sufficient
notice of OACP's jurisdiction over the particular conduct and the legal
standards applicable to that conduct. OACP may also contact third
parties to conduct interviews or obtain documents for review. Once OACP
has received enough information to determine whether a violation
occurred and the extent of the violation(s), OACP evaluates and decides
how to resolve the matter.
Results of Investigations
OACP investigations can result in a finding of a violation, no
violation, or insufficient information if there is not adequate
evidence of whether a violation occurred. If a violation is found, OACP
will work with the airline or ticket agent to ensure that corrective
action is taken. OACP may also initiate enforcement action if
appropriate. If OACP finds that no violation occurred following an
investigation, OACP will close the investigation without prejudice to
further investigation and will inform the entity being investigated of
the decision (if the entity was previously made aware of the
investigation or other pre-enforcement activity). If there is
insufficient information to identify whether a violation occurred, OACP
may close the case or decide to monitor the practices of the entity
being investigated.
Types of Enforcement Action
Consent Orders: OACP generally takes enforcement action
when it sees a pattern or practice of violations. If enforcement action
is warranted, OACP primarily resolves these cases by negotiating with
the alleged violator and reaching a settlement agreement in the form of
a consent order. The consent order is an order directing the alleged
violator to cease and desist from the problematic practice. In many
cases, the consent order will assess an administrative civil penalty.
All settlements are made public through OACP's website and the
regulations.gov public docket.
Enforcement Proceeding in Front of the Office of Hearings:
If OACP and a regulated entity cannot reach a satisfactory resolution
of an enforcement matter using the negotiated consent order process,
then OACP may choose to pursue such violations through the initiation
of a formal enforcement proceeding before an ALJ as expressly
authorized by 49 U.S.C. 46301. In accordance with 49 U.S.C. 46301,
these enforcement actions likely would seek civil penalties, cease and
desist provisions, and other remedial relief deemed appropriate by
OACP. The formal complaint that OACP files with the ALJ becomes public
on OACP's website. Following the ALJ's decision, parties may file for
further review from the Department decisionmaker.
Civil Action in District Court: OACP is not limited to
initiating a proceeding before an ALJ and also has the option to bring
a civil action in a United States District Court as authorized by 49
U.S.C. 46106 and 46107.
Warning Letters: If OACP determines that enforcement
action through an order, an administrative proceeding before an ALJ, or
a civil action in district court is not warranted (for example, if the
violating entity took sufficient corrective action prior to OACP's
learning about the violation), OACP plans to exercise its discretion
and send a warning letter to the violating entity. The letter places
the violator on notice that OACP is aware of the violation and may
pursue enforcement action if similar violations occur in the future.
Voluntary Self-Disclosure
A regulated entity's voluntarily self-disclosing violations of the
Department's requirements in a timely manner will strongly weigh in
favor of no enforcement action or reduced penalties for that entity.
OACP will consider the entity's disclosure and corrective actions in
determining whether to take enforcement action and the remedies if
action is taken. Depending on the level of consumer harm, OACP may
determine enforcement action is not warranted if the entity has
corrected the issue and made whole any consumers negatively impacted by
the violations. In the alternative, OACP may take the self-disclosure
into account as a factor in determining the civil penalty assessed
against the entity. A self-disclosure is not considered voluntary if
the disclosure is required by law.
Case Closure
OACP may close a case if it determines that no violation occurred,
if there is insufficient information to decide, if OACP's resources are
better utilized elsewhere, or if the violation has been remedied and no
further action is required.
Sanctions
OACP's enforcement program focuses on ensuring compliance with
Departmental requirements rather than penalizing entities for
violations. The office's enforcement program seeks to encourage
voluntary compliance,
[[Page 388]]
including voluntary self-disclosure of violations, before pursuing
enforcement actions that could include assessment of civil penalties.
When warranted, civil penalties are meant to change the violator's
behavior and bring about compliance. Civil penalties should be
reasonable and proportional to the violation and its impacts, and the
bases for penalty assessments should be consistent and transparent to
the public. OACP continually reevaluates its penalty structure to
ensure that its administrative civil penalties are set fairly and
consistent with statutory authority.
Within the boundaries of statutory authority, multiple factors may
impact the level of a civil penalty assessment. These include the scope
and scale of the violation, the degree of harm caused, the violator's
history of non-compliance, the violator's ability to pay, the
Department's past actions for similar violations, the possibility of
incentivizing or deterring future actions, and the size of the business
in question. Penalties are assessed on a per-violation basis. If civil
penalties are insufficient due to the criminal nature of the violating
conduct, OACP may refer the case to the Department's Office of the
Inspector General for review, investigation, and potential prosecution.
OACP may also refer matters to the Department of Justice (DOJ) for
civil enforcement, where appropriate. For a full list of criteria used
by OACP in calculating a sanction, please see the Attachment ``Criteria
Considered in Setting Civil Penalties.''
This notice supersedes the previous notice dated January 3, 2023.
Attachment
U.S. Department of Transportation
Office of Aviation Consumer Protection
Criteria Considered in Setting Civil Penalties
The Office of Aviation Consumer Protection (OACP) considers the
factors listed below in determining the civil penalty it would seek
or settle for in an enforcement proceeding and considers other
relevant factors as appropriate. The civil penalty amounts
referenced in this document are annually adjusted based on inflation
pursuant to statute.\5\ OACP will update the penalty amounts in this
attachment when that occurs and include the date of this change.
---------------------------------------------------------------------------
\5\ The Department's civil penalties are adjusted annually
pursuant to the Federal Civil Penalties Inflation Adjustment Act of
1990 (FCPIAA), Public Law 101-410, as amended by the Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015 (2015
Act), Public Law 114-74, 129 Stat. 599, codified at 28 U.S.C. 2461
note. The FCPIAA and the 2015 Act require Federal agencies to adjust
minimum and maximum civil penalty amounts to preserve their
deterrent impact. The 2015 Act specifically required an initial
catch-up adjustment, followed by annual adjustments of civil penalty
amounts using a statutorily mandated formula.
For example, violations by entities not qualifying as a small
business concern occurring from May 3, 2021 to March 20, 2022 are
subject to a maximum civil penalty amount per violation up to
$35,188. Revisions to Civil Penalty Amounts, 86 FR 23241 (May 3,
2021) (codified at 14 CFR 383.2). For violations occurring from
March 21, 2022, to January 5, 2023, the applicable maximum civil
penalty amount per violation is up to $37,377. Revisions to Civil
Penalty Amounts, 87 FR 15839 (March 21, 2022). For violations
occurring from January 6, 2023, to December 27, 2023, the applicable
maximum civil penalty amount per violation is up to $40,272.
Revisions to Civil Penalty Amounts, 88 FR 1114 (January 6, 2023).
For violations occurring from December 28, 2023, to May 15, 2024,
the applicable maximum civil penalty amount per violation is up to
$41,477. Revisions to Civil Penalty Amounts, 88 FR 89551 (December
28, 2023). The FAA Reauthorization Act of 2024, Public Law 118-63,
increased the maximum civil penalty amount to $75,000 for each
violation occurring on or after May 16, 2024.
Furthermore, under 49 U.S.C. 46301(a)(7), a violation of section
41705 that involves damage to a passenger's wheelchair or other
mobility aid or injury to a passenger with a disability may be
increased above the otherwise applicable maximum amount to an amount
not to exceed 3 times the maximum penalty otherwise allowed.
---------------------------------------------------------------------------
(1) The maximum assessable amount of the civil penalty under 49
U.S.C. 46301 and 14 CFR part 383, as adjusted for inflation. As of
2025, the maximum civil penalty assessable per violation is as
follows:
The General Penalty Provision for violations of Title
49 and Department orders and regulations is $75,000 per violation
for all entities, other than small business or individuals, to which
a general penalty amount of $1,875 per violation applies. For OACP
purposes, the $1,875 per violation penalty is usually applicable
only in cases involving reporting violations by small carriers.
For small businesses, as defined in 13 CFR part 121, 15
U.S.C. 632, and individuals, three specialized penalty amounts apply
to specific kinds of violations:
$17,062 for violations of certain provisions of chapter
401 (see statute for specifics), including the anti-discrimination
provisions of section 40127 and those applying to passengers with
disabilities (49 U.S.C. 41705) and related rules and orders;
$8,531 for violations of 49 U.S.C. 41719 (related to
essential air service) and related rules and orders;
$4,267 for violations of 49 U.S.C. 41712 (unfair and
deceptive practices) and related rules and orders.
For continuing violations, each day a violation
continues is a separate violation for penalty purposes.
(2) The number of violations.
(3) How long the violations continued, especially after the
alleged violator's management became aware of them.
(4) The harm caused by the violations, as well as steps taken to
reimburse passengers or otherwise correct the harm.
(5) Whether the violations were inadvertent or deliberate.
(6) The alleged violator's enforcement history.
(7) The alleged violator's compliance disposition:
a. did the entity expend resources to prevent such violations?
b. did the entity have procedures in place to prevent such
violations?
c. did the entity provide training to employees in the area?
d. how quickly was the problem corrected after OACP
notification?
e. what resources did the entity expend to correct the situation
(e.g., for training, new equipment, new procedures, additional
personnel)?
(8) The alleged violator's ability to pay (e.g., carrier in
financial distress).
(9) The Department's history and past practices in assessing
penalties for similar violations, adjusting for statutory penalty
increases and inflation.
(10) The alleged violator's experience/sophistication level
(e.g., new airline or established carrier; foreign carrier with
limited service to U.S.).
(11) The need to eliminate/disgorge any profits attributable to
the violations.
(12) Any valid excuses for the violations (e.g., were they
beyond the alleged violator's control?).
(13) Whether the violations were voluntarily self-reported by
the alleged violator In addition, to encourage future compliance,
OACP may permit the inclusion of a suspended civil penalty amount,
as appropriate for each case. This amount becomes immediately due if
the regulated entity violates the cease-and-desist or payment
provisions of the order within a set period, usually one year from
the issuance date of the order. The office also may include
``offsets'' in settlements for expenditures the violator makes that
go above and beyond the Department's aviation consumer requirements,
e.g., providing compensation to consumers when not required under
the Department's regulations, or purchasing equipment or
implementing systems that will provide tangible consumer benefits in
the future beyond what is required to comply with the law.
Finally, it should be noted that virtually every settlement the
office enters into involves the issuance of a cease-and-desist order
with findings of violations. Consent orders become final orders of
the Department 10 days after issuance, unless a petition for review
is filed or the Department takes review on its own initiative.
Consent orders have become a valuable source of Department
enforcement case precedent, but they do not create new regulatory
obligations for entities that are not named in the order.
[FR Doc. 2025-24282 Filed 1-5-26; 8:45 am]
BILLING CODE 4910-9X-P