How Will DOT’s New Rule on Consumer Protection Hearings Affect Advisors & Travelers?
byPaul Ruden/
In early December 2020, I reported ona new Department of Transportation rule that was finalized in the closing days of the Trump administration。新规则,叫做UDP国际泳联l 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.
我的观点是,尽管航空公司努力使执法更加困难,但“不公平和欺骗性实践”的编纂定义的本质如DOT所说:仅仅重述了现有实践。他们既没有为政府或工业而提出,也没有降低执法栏。我还指出,DOT正在为一类消费者保护规则制定,即特定联邦法规所要求的“酌处”规则制定阶层。
The new rule allowed an “interested party,” which would almost certainly be an airline, to request a formal hearing when “the proposed rule raised one or more disputed technical, scientific, economic, or other complex factual issues.” An elaborate decisional structure was established. It conferred much discretion on the DOT General Counsel and an Administrative Law Judge or “other neutral hearing officer” who would manage the hearing under the formal procedures of the Administrative Procedure Act or other rules that might be adopted by the Secretary of Transportation.
The consumer groups opposing the rule believed it would lead to extensive delays and unnecessary complexity that would defeat or slow the adoption of needed consumer protections. My experience at DOT suggested that “formal hearings, if adopted, will pose huge challenges to proponents of new rules.”
In early January 2021, I解释了一些适用于不公平和欺骗性实践的发现的细节, focusing on enforcement actions against travel advisors.
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 issued强烈认可DOT的最新动作。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“简化了对“公共利益”标准进行正式听证的标准,该标准本身将“打开许多因素,包括但不限于问题的新颖性和复杂性,公开听证会的程度阐明了这些问题,超出了通知过程中可以完成的问题,以及公开听证会延迟基础诉讼的程度。”DOT解释说,“公共利益标准”旨在不仅涵盖UDP最终规则中的要素,而且还涵盖“可能与所讨论的特定规则制定有关的任何其他独特因素”。
I count at least five elements about which airlines, for example, could make arguments in favor of a public hearing that would require process – and time, much time – to resolve. But that’s not all. DOT said.
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.”
The new rule also provides greater discretion in 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.
Impact of New Rule on Travel Advisors
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, theEnhancing Airline Passenger Protections规则制定涵盖了众多主题,于2007年11月启动,并在2011年8月和10月得出结论。决策标准的变化不可避免地导致有关所需的内容,允许的内容,以及已经发生的一切的争议完毕。因此,我担心对这些变化的最初乐观情绪可能会被夸大。我希望不要,只有时间和经验才能说明。
The good news for travel advisors is that these new rules will not affect the rare enforcement cases in which they are directly involved as targets of DOT enforcement. As for rulemakings affecting travel advisor responsibilities, it would be a rare case indeed that would justify the costs of a formal hearing on the record, not to mention the battle over whether it was justified under the new criteria. The new rule applies only to the case of “discretionary” rulemaking, in which the rule is not expressly required by a statute.
一个例子可能是一项新规则,以解决航空公司退款现金付款的义务,例如,他们取消了消费者预订和支付的航班。如果认为有必要,新规则可以用来加快听证会加快听证会,但是很难理解为什么这样的发现是合理的。无论如何,现实是,该规则很可能是DOT员工和航空公司之间未来战斗的事情,至少在某些情况下可能会尽可能长时间地推迟任何消费者保护计划。