DOT关于消费者保护听证会的新规则将如何影响顾问和旅行者?
经过保罗·鲁登/
在2020年12月上旬,我报道了一项新的运输部规则,该规则在特朗普政府结束时完成了. The new rule, called the UDP Final Rule, defined the term “unfair and deceptive practices” in the Federal Aviation Act and adopted some procedural changes related to its enforcement practices. Those changes, you may recall, were condemned by some leading consumer organizations.
My view was that, despite strong efforts by the airlines to make enforcement more difficult, “the essence of the codified definitions of “unfair and deceptive practice” were as DOT claimed: merely restatements of existing practice. They neither raised nor lowered the enforcement bar for government or industry. I also noted that DOT was breaking new ground regarding one class of consumer protection rulemaking, the “discretionary” ones not required by a specific federal statute.
新规则允许一个“有兴趣的政党”,几乎肯定是航空公司,当“拟议的规则提出了一个或多个有争议的技术,科学,经济或其他复杂的事实问题。”建立了精致的决策结构。它授予了DOT总法律顾问和行政法法官或“其他中立听证官”,他们将根据《行政程序法》的正式程序或运输部长可能通过的其他规则管理听证会。
反对该规则的消费者团体认为,这将导致广泛的延误和不必要的复杂性,这将击败或减缓采用所需的消费者保护。我在DOT的经验表明,“如果采用正式听证会,将对新规则的支持者构成巨大挑战。”
In early January 2021, Iexplained some of the details that apply to findings by DOT of unfair and deceptive practices,专注于针对旅行顾问的执法行动。
DOT’s New Regulation
Spurred by the President’s Executive Order 14036, July 9, 2021, DOT has reviewed once again both the definition of “unfair and deceptive practice” (as to which an interpretive rule is promised “in the near future”) as well as the procedures for hearings in discretionary rulemakings. It has been concluded that “the overly particularized rigidity of the existing procedures in the UDP Final Rule may have the unintended consequence of causing unnecessary delay.”
DOT has therefore undertaken to “clarify” its previously announced procedures for deciding when a formal hearing is necessary and how such a hearing should be conducted to minimize procedural delays. It did this without a process for inputs because the rule was judged to be one of internal procedures not requiring such input under the Administrative Procedure Act.
For now, we know a couple of things to be true.
First, Consumer Reports, one of the organizations that had objected to the UDP Final Rule, has issueda strong endorsement of DOT’s latest action. Second, the elements of the new rule are inevitably going to be the subject of intense debate when they are applied in a case. Several factors make this inevitable.
DOT has “simplified the standard for holding a formal hearing to a “public interest” standard” that will itself “turn on a number of factors including but not limited to the novelty and complexity of the issues, the degree to which a public hearing would illuminate those issues beyond what could be accomplished in the notice-and-comment process, and the degree to which a public hearing would delay the underlying proceedings.” DOT explained that the “public interest standard” was intended to cover not only the elements from the UDP Final Rule but also “any other unique factors that may be relevant to the specific rulemaking at issue.”
例如,我至少要算出五个要素,例如,哪些航空公司可以提出争论,以支持公开听证会,该听证会需要流程和时间,很多时间来解决。但这不是全部。点说。
The Department has also amended the level of proof necessary for the grant of a public hearing from a “plausible” standard to a “credible and convincing” standard; the petitioner [asking for a formal public hearing] would be required to make a “credible and convincing prima facie showing that granting the petition is in the public interest.”
新规则还提供了更大的自由裁量权在the DOT General Counsel regarding when to hold hearings and how to justify doing so. And, surprisingly, it allows the use of persons outside the Department as neutral hearing examiners. The hearing officer will have more than usual discretion “to determine whether testimony, written submissions, and/or cross-examination are appropriate given the unique circumstances of each hearing,” an authority whose exercise will inevitably lead to conflict and still more process.
新规则对旅行顾问的影响
In the final analysis, we should give DOT credit for trying to facilitate processes that typically consume much time and money on the part of private parties in an area where the historical record shows that consumer protection rulemakings, even without formal hearings, have taken far too long to complete. For example, the增强航空公司乘客保护rulemaking, which admittedly covered a multitude of subjects, was initiated in November 2007 and was concluded with final rules becoming effective in August and October 2011. Changes to decisional criteria inevitably lead to disputes about what is required, what is permitted, and what has been done. I, therefore, fear that the initial optimism about these changes may be overstated. I hope not, and only time and experience will tell.
对旅行顾问的好消息是,这些新规则不会影响他们直接参与DOT执法目标的罕见执法案件。至于影响旅行顾问责任的规则制定,这确实是一个罕见的案件,这将证明记录正式听证会的费用是合理的,更不用说在新标准下是否有理由进行战斗。新规则仅适用于“酌处”规则制定的案例,其中规则并不明确规定规则。
An example might be a new rule addressing the obligation of airlines to make refunds of cash payment when, for example, they cancel flights booked and paid for by consumers. The new rule could be used to expedite a hearing if one were deemed necessary, but it’s hard to see why such a finding could be justified. In any case, the reality is that this rule is most likely the stuff of future fights between DOT staff and airlines who may, at least in some cases, want to delay any consumer protection initiatives as long as possible.