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。新规则称为UDP最终规则,定义了《联邦航空法》中的“不公平和欺骗性实践”一词,并通过了与其执法实践有关的一些程序更改。您可能还记得,这些变化受到一些领先的消费者组织的谴责。
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.”
在2021年1月初,我explained some of the details that apply to findings by DOT of unfair and deceptive practices, focusing on enforcement actions against travel advisors.
DOT的新法规
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.”
因此,DOT已承诺“澄清”其先前宣布的程序,以决定何时需要正式听证会以及如何进行此类听证会以最大程度地减少程序延迟。它在没有输入过程的情况下这样做了,因为该规则被判定为不需要根据《行政程序法》进行此类投入的内部程序之一。
就目前而言,我们知道有几件事是真实的。
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。其次,新规则的要素不可避免地将成为激烈辩论的主题。有几个因素使这一不可避免。
点“简化持有的标准mal 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.”
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.
该部门还修改了从“合理”标准授予“可信和令人信服的”标准的公开听证会所必需的证明水平;请愿人[要求正式的公开听证会]必须做出“可信和说服的表面上的表面,表明授予请愿符合公共利益”。
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
最终分析,我们应该为DOT值得称赞,因为他们试图促进通常在历史记录表明,即使没有正式听证会的情况下,私人各方通常会消耗大量时间和金钱的流程。长时间完成。例如,Enhancing 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.
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.