Procedures in Regulating Unfair or Deceptive Practices, 5655-5659 [2022-01589]
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5655
Rules and Regulations
Federal Register
Vol. 87, No. 22
Wednesday, February 2, 2022
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 399
[Docket No. DOT–OST–2021–0142]
RIN 2105–AF03
Procedures in Regulating Unfair or
Deceptive Practices
Office of the Secretary (OST),
U.S. Department of Transportation
(DOT).
ACTION: Final rule.
AGENCY:
The U.S. Department of
Transportation (Department or DOT) is
amending its regulations regarding the
hearing procedures that are available
when the Department proposes a
discretionary aviation consumer
protection rulemaking declaring a
practice to be unfair or deceptive. This
final rule simplifies the hearing
procedures and allows the Department
greater flexibility to conduct a hearing
in a manner that would not unduly
delay the aviation consumer protection
rulemaking.
DATES: Effective March 4, 2022.
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);
robert.gorman@dot.gov;
kimberly.graber@dot.gov; blane.workie@
dot.gov (email).
SUPPLEMENTARY INFORMATION:
SUMMARY:
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I. Background
A. The Unfair and Deceptive Practices
Statute and the Department’s Recent
Rulemaking
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.
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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. A different
statute, 49 U.S.C. 46301, gives the
Department the authority to issue civil
penalties for violations of section 41712
or for any regulation issued under the
authority of section 41712.
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 would use when
conducting future enforcement actions
under the authority of section 41712.3
The UDP Final Rule also sets forth
procedures, including evidentiary
hearing procedures, that the Department
would use when conducting future
discretionary rulemaking actions under
the authority of section 41712.4 Those
procedures for evidentiary hearings are
being amended through this rulemaking.
In addition, the UDP Final Rule
defined the terms ‘‘unfair’’ and
‘‘deceptive’’ for purposes of section
41712. The definitions were modeled
after Federal Trade Commission (FTC)
precedent; they also reflect the
Department’s longstanding
interpretation of those terms.5 However,
the UDP Final Rule did not fully resolve
the meaning of unfair or deceptive.
Executive Order (E.O.) 14036,
1 85 FR 78707 (December 7, 2020); RIN 2105–
AE72; Docket DOT–OST–2019–0182.
2 85 FR 78707.
3 14 CFR 399.79.
4 14 CFR 399.75.
5 14 CFR 399.79(b); 85 FR 78708.
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‘‘Promoting Competition in the
American Economy,’’ issued by
President Biden on July 9, 2021, directs
the Department to ‘‘start development of
proposed amendments’’ to its
definitions of the terms ‘unfair’ and
‘deceptive’ in 49 U.S.C. 41712.6 In
keeping with this Executive Order, the
Department intends to issue in the near
future an interpretive rule that would
more clearly apprise the public of the
Department’s interpretation of the
definitions of ‘‘unfair’’ and ‘‘deceptive’’
found in section 41712, and as defined
by the Department at 14 CFR 399.79.
B. Amendments to Evidentiary Hearing
Provisions for Discretionary Aviation
Consumer Protection Rulemakings
The UDP Final Rule established the
Department’s procedures for hearings
for discretionary aviation consumer
protection rulemaking actions
promulgated under the authority of
section 41712. The Department is
revising those procedures after a careful
review of recent changes in the
Department’s and FTC’s internal
policies and procedures relating to the
issuance of rulemaking documents and
concern that the existing hearing
procedures for discretionary aviation
consumer protections actions do not
provide the Department with enough
flexibility to adapt internal procedures
to facilitate efficient rulemaking. The
Department is concerned that the overly
particularized rigidity of the existing
procedures in the UDP Final Rule may
have the unintended consequence of
causing unnecessary delay. The
Department has determined that
although it remains useful to have
specific procedures for evidentiary
hearings, the procedures should be
streamlined to provide greater flexibility
and ensure that important consumer
protection rulemakings are not unduly
delayed.
1. Evidentiary Hearing Provisions as
Established in the UDP Final Rule
Under the hearing provisions of the
UDP Final Rule, if the Department
proposes a new discretionary
rulemaking declaring a practice to be
unfair or deceptive, then any interested
party may file a petition for an
6 https://www.whitehouse.gov/briefing-room/
presidential-actions/2021/07/09/executive-orderon-promoting-competition-in-the-americaneconomy/.
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evidentiary hearing.7 The petition must
be directed to the attention of the
General Counsel, and must be filed
before the close of the comment period
on the proposed rule.8 To obtain an
evidentiary hearing, the party must
demonstrate that: (1) The proposed rule
depends on conclusions concerning one
or more specific scientific, technical,
economic, or other factual issues that
are genuinely in dispute or that may not
satisfy the requirements of the
Information Quality Act; (2) the
ordinary public comment process is
unlikely to provide an adequate
examination of the issues to permit a
fully informed judgment; and (3) the
resolution of the disputed factual issues
would likely have a material effect on
the costs and benefits of the proposed
rule.9 Even if the petitioner establishes
these elements, the General Counsel
may still deny the petition if: (1) The
hearing would not advance the
consideration of the proposed rule; or
(2) the hearing would unreasonably
delay completion of the rulemaking.10
The existing procedures provide that
if the General Counsel grants the
petition, then a notice of the hearing
must be placed in the Federal Register,
identifying the specific issues that will
be considered.11 The General Counsel
must develop procedures for conducting
evidentiary hearings.12 Interested
parties must have a reasonable
opportunity to participate in the hearing
through the presentation of testimony
and written submissions.13 The General
Counsel must appoint a ‘‘neutral
officer’’ to preside over the hearing, and
must allow ‘‘a reasonable opportunity to
question the presenters.’’ 14 After the
hearing is closed, the neutral officer
must place minutes of the meeting on
the docket, along with proposed
findings of fact on the disputed issues.15
Interested parties who participated in
the hearing must be given the
opportunity to file ‘‘statements of
agreement or objection’’ to the proposed
findings.16
After the hearing, the General Counsel
must consider the record of the hearing,
along with the neutral officer’s findings,
and determine whether to: (1) Terminate
the proposed rulemaking; (2) modify it
by filing a new or supplemental notice
7 A discretionary rulemaking is one that is not
mandated by statute. See 14 CFR 399.75(c).
8 85 FR 78716–78717; 14 CFR 399.75(b)(1).
9 Id. at 78716–78717; 14 CFR 399.75(b)(2).
10 Id. at 78717; 14 CFR 399.75(b)(3).
11 14 CFR 399.75(b)(5).
12 14 CFR 399.75(b)(6)(i).
13 Id.
14 14 CFR 399.75(b)(6)(ii).
15 14 CFR 399.75(b)(6)(iii).
16 14 CFR 399.75(b)(6)(iv).
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of proposed rulemaking; or (3) finalize
the rule without material changes.17
Any of these choices must be
accompanied by a notice in the Federal
Register explaining the basis for the
decision.18
2. Evidentiary Hearing Provisions—
Rationale
The Department indicated in the UDP
Final Rule that these evidentiary
hearing procedures were consistent with
section 41712, which requires the
Department to provide notice and an
opportunity for a hearing before finding
that a regulated entity is engaged in an
unfair or deceptive practice.19 The
Department noted that hearing
procedures would be helpful in cases
where the Department’s proposed
rulemaking may be premised on
complex or disputed issues of fact.20
The Department also noted that the
traditional notice-and-comment
procedures of the Administrative
Procedure Act ‘‘remain the default
process,’’ and that a hearing may be
granted only if an interested party
shows that traditional notice-andcomment is inadequate.21 The
Department further noted that the
General Counsel may deny a hearing
upon a finding that the hearing would
unreasonably delay the rulemaking.22
The Department also explained that the
Department had held evidentiary
hearings on proposed aviation consumer
protection rulemakings in the past, but
had not codified nor fully publicized
those procedures.23 In summary, the
Department recognized that hearing
procedures may add time to the overall
rulemaking process, but concluded that
the hearing procedures, as written,
would ‘‘promote fairness, due process,
and well-informed rulemaking, without
unduly delaying the proceeding
itself.’’ 24
C. Subsequent Developments on
Evidentiary Hearing Procedures
Recently, both the Department and
the FTC have reexamined or revised
their evidentiary hearing procedures for
rulemakings. On April 2, 2021, the
Department repealed most of 49 CFR
part 5, which included hearing
procedures for high-impact and
economically significant rules issued by
17 14
CFR 399.75(b)(7).
18 Id.
19 85
20 Id.
FR 78711.
at 78712.
21 Id.
22 Id.
23 Id.
24 Id.
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the Department.25 The Department
further indicated that it would review
the substance of the Department’s
rulemaking procedures in light of
Executive Order 13992 (January 25,
2021). This Executive Order not only
repealed a number of executive orders
relating to the rulemaking process, but
also directed agencies to ‘‘promptly take
steps to rescind any orders, rules,
regulations, guidelines, or policies, or
portions thereof, implementing or
enforcing’’ those repealed executive
orders.
Meanwhile, on July 22, 2021, the FTC
announced that it streamlined its rules
of practice regarding evidentiary
hearings for rulemakings that would
declare a specific act or practice to be
unfair or deceptive.26 For example, the
FTC eliminated the requirement that the
evidentiary hearing be conducted by an
Administrative Law Judge (ALJ);
instead, hearings may be conducted by
a neutral presiding officer appointed by
the FTC Chair.27 The FTC also
eliminated other rules, including: (1) A
requirement that the hearings include
‘‘direct examination’’ of individuals
who present their views at such hearing;
(2) rules relating to compelling
documents and testimony; and (3) a
requirement that Commission staff
produce a report analyzing the
rulemaking record, along with an
additional period for interested parties
to comment on the report.28 The FTC
reasoned that its amendments would
allow for transparent public
participation in the rulemaking process
while avoiding unnecessary procedural
delays to effective rulemaking.29
25 DOT Final Rule, ‘‘Administrative Rulemaking,
Guidance, and Enforcement Procedures,’’ 86 FR
17292 (April 2, 2021) (effective May 3, 2021),
repealing most of 49 CFR part 5, which had been
found at 84 FR 71714 (December 27, 2019, effective
January 27, 2020). Despite this repeal, the hearing
procedures for aviation consumer protection
rulemakings found in 14 CFR 399.75 remained
intact.
26 ‘‘Revisions to Rules of Practice,’’ 86 FR 38542
(July 22, 2021). Pursuant to the FTC Act, the FTC
is required to ‘‘provide an opportunity for an
informal hearing’’ before issuing a rule declaring a
specific act or practice to be unfair or deceptive. 15
U.S.C. 57a(b)(1)(C); Magnuson-Moss Warranty—
Federal Trade Commission Improvement Act of
1975, Public Law 93–637. The FTC Act also sets
forth the basic requirements for such a hearing. 5
U.S.C. 57a(c). The FTC’s rules of practice
implementing the FTC Act originally contained
provisions that went beyond what the FTC Act
itself called for.
27 Id. at 38546, 38551. Under the FTC’s new rules,
the Chief Presiding Officer appoints the presiding
officer for the hearing. Id. at 38549; 16 CFR 1.13(a).
The FTC Chair is the Chief Presiding Officer, unless
the Chair appoints another Commissioner or an
individual ‘‘who is not responsible to any other
official or employee of the Commission.’’ 16 CFR
0.8.
28 Id.
29 Id. at 38552.
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II. Discussion of Revisions To Rule on
Evidentiary Hearings
The Department maintains the view
that it remains useful to have specified
procedures for evidentiary hearings
because it may be beneficial to hold
evidentiary hearings before completing
certain discretionary aviation consumer
protection rulemakings. When
structured properly and used
judiciously, evidentiary hearings should
help to ensure that the Department’s
assumptions relating to economic,
technical, and other matters are based
on a solid foundation. The Department
also sees value in publicizing and
standardizing the procedures for
evidentiary hearings, given that the
Department’s use of such hearings is not
new. With publicly available standards,
evidentiary hearings should serve to
promote robust public participation in
the rulemaking process by all
stakeholders. At the same time, the
Department finds that it is important to
balance the need for robust public
participation with the need for
procedures that provide the Department
with enough flexibility to ensure
important rulemakings are not bogged
down by overly prescriptive procedural
constraints. Accordingly, the
Department has modified its evidentiary
hearing procedures to promote
flexibility and efficiency.
First, the Department has simplified
the standard for granting a hearing to a
‘‘public interest’’ standard. The question
of whether a hearing is in the public
interest will 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 noticeand-comment process, and the degree to
which a public hearing would delay the
underlying proceedings. The public
interest standard is designed to
encourage the General Counsel to
consider not only the elements outlined
in the UDP Final Rule, but also any
other unique factors that may be
relevant to the specific rulemaking at
issue.
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 would be
required to make a ‘‘credible and
convincing prima facie showing that
granting the petition is in the public
interest.’’ The Department is of the view
that the ‘‘credible and convincing
evidence’’ standard best serves to ensure
that the usual notice-and-comment
procedure of the APA remains the
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default procedure. The new standard
also ensures that the petitioner presents
a strong basis from which the General
Counsel may conclude that expending
the resources required for a public
hearing is justified.
The Department has also modified its
procedures for granting or denying an
evidentiary hearing. Under the UDP
Final Rule, the General Counsel was
required to issue a detailed statement of
reasons for denying a petition, but there
was no similar requirement if the
General Counsel granted the petition.
The Department is of the view that the
General Counsel should issue an
explanatory statement of the basis for
the decision in either granting or
denying the petition. However, the
statement need not be overly detailed; it
should set forth with sufficient clarity
the basis for the decision that it is or is
not in the public interest to hold an
evidentiary hearing. Such a requirement
will promote fairness and transparency
in the Department’s rulemaking
processes.
The Department has also afforded the
General Counsel greater discretion to
appoint an appropriate hearing officer
for the evidentiary hearing. The UDP
Rule currently requires the General
Counsel to appoint a ‘‘neutral officer’’ to
preside over the hearing, implying that
Department staff working on the
rulemaking may not preside over the
hearing. Under this new rule, the
General Counsel has broader discretion
to appoint an appropriate hearing officer
from within or outside the Department
to conduct the hearing.
Next, the Department now allows the
hearing officer greater flexibility with
respect to when and how testimony is
presented at the hearing. The UDP Final
Rule required ‘‘a reasonable opportunity
to participate in the hearing through the
presentation of testimony and written
submissions’’ and ‘‘a reasonable
opportunity to question the presenters.’’
The new rule eliminates these
requirements and allows the hearing
officer greater discretion to determine
whether testimony, written
submissions, and/or cross-examination
are appropriate given the unique
circumstances of each hearing.
The Department has simplified the
requirements for the hearing officer’s
report after the hearing is closed. The
UDP Final Rule provided that, after the
record of the hearing is closed, ‘‘the
hearing officer shall place on the docket
minutes of the hearing with sufficient
detail as to fully reflect the evidence
and arguments presented on the issues,
along with proposed findings
addressing the disputed issues of fact
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identified in the hearing notice.’’ 30 In
this new rule, the hearing officer is
simply required to place on the record
the minutes with sufficient detail as to
fully reflect the evidence and arguments
presented on the issues and not the
proposed findings addressing the
disputed issues of fact identified in the
hearing. The findings would be
provided by the Department in
subsequent documents that modify,
terminate, or maintain the proposed
rule.
Finally, the Department has amended
the procedures that take place after the
hearing is closed. The new rule clarifies
that in keeping with current practice, all
interested parties (not just those who
participated in the hearing) may file
statements or comments in the docket
after the hearing is closed.
III. Administrative Procedure Act
Under the Administrative Procedure
Act, the normal notice and comment
procedures do not apply to an action
that is a rule of agency organization,
procedure, or practice. See 5 U.S.C.
553(b)(A). Since this final rule revises
only internal processes applicable to the
Department’s administrative
procedures, this is a rule of agency
procedure for which notice and
comment are not required.
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.
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.
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.
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
30 14
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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.
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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.’’
Since this rulemaking relates to the
definition of unfair and deceptive
practices under section 41712, the
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Department’s central consumer
protection statute, this is a consumer
protection rulemaking. 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
1. The authority citation for part 399
continues to read as follows:
■
Authority: 49 U.S.C. 41712, 40113(a).
2. Section 399.75 is amended by
revising paragraphs (b)(2) through (7)
and removing paragraph (b)(8).
The revisions read as follows:
■
§ 399.75 Rulemakings related to unfair and
deceptive practices.
*
*
*
*
*
(b) * * *
(2) Decision on petition for hearing.
The petition shall be granted if the
petitioner makes a clear and convincing
showing that granting the petition is in
the public interest. Factors in
determining whether a petition is in the
public interest include, but are not
limited to:
(i) Whether the proposed rule
depends on conclusions concerning one
or more specific scientific, technical,
economic, or other factual issues that
are genuinely in dispute or that may not
satisfy the requirements of the
Information Quality Act;
(ii) Whether the ordinary public
comment process is unlikely to provide
an adequate examination of the issues to
permit a fully informed judgment;
(iii) Whether the resolution of the
disputed factual issues would likely
have a material effect on the costs and
benefits of the proposed rule;
(iv) Whether the requested hearing
would advance the consideration of the
proposed rule and the General Counsel’s
ability to make the rulemaking
determinations required by this section;
and
(v) Whether the hearing would
unreasonably delay completion of the
rulemaking.
(3) Explanation of decision. If a
petition is granted or denied in whole
or in part, the General Counsel shall
provide an explanation of the basis for
the decision,
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(4) Hearing notice. If the General
Counsel grants the petition, the General
Counsel shall publish notification of the
hearing in the Federal Register. The
document shall specify the proposed
rule at issue and the specific factual
issues to be considered at the hearing.
The scope of the hearing shall be
limited to the factual issues specified in
the notice.
(5) Hearing process. (i) A hearing
under this section shall be conducted
using procedures approved by the
General Counsel, and interested parties
shall have a reasonable opportunity to
participate in the hearing.
(ii) The General Counsel shall arrange
for a hearing officer to preside over the
hearing.
(iii) After the hearing and after the
record of the hearing is closed, the
hearing officer shall place on the docket
minutes of the hearing with sufficient
detail as to fully reflect the evidence
and arguments presented on the issues.
The complete record of the hearing shall
be made part of the rulemaking record.
(iv) Interested parties shall be given
an opportunity to file statements or
comments after the hearing.
(6) Actions following hearing. (i)
Following the completion of the hearing
process, the General Counsel shall
consider the record of the hearing, and
shall make a reasoned determination
whether to terminate the rulemaking; to
proceed with the rulemaking as
proposed; or to modify the proposed
rule.
(ii) If the General Counsel decides to
terminate the rulemaking, the General
Counsel shall publish a document in the
Federal Register announcing the
decision and explaining the reasons for
the decision.
(iii) If the General Counsel decides to
finalize the proposed rule without
material modifications, the General
Counsel shall explain the reasons for the
decision and its responses to the hearing
record in the preamble to the final rule.
(iv) If the General Counsel decides to
modify the proposed rule in material
respects, the General Counsel shall
publish a new or supplemental notice of
proposed rulemaking in the Federal
Register explaining the General
Counsel’s responses to and analysis of
the hearing record, setting forth the
modifications to the proposed rule, and
providing additional reasonable
opportunity for public comment on the
proposed modified rule.
(7) Interagency review process. The
hearing procedures under this
paragraph (b) shall not impede or
interfere with the interagency review
process of the Office of Information and
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Regulatory Affairs for the proposed
rulemaking.
*
*
*
*
*
Issued this 21st day of January, 2022, in
Washington, DC, under authority delegated
in 49 CFR 1.27(n).
John E. Putnam,
Deputy General Counsel.
[FR Doc. 2022–01589 Filed 2–1–22; 8:45 am]
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18 CFR Part 381
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Federal Energy Regulatory
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ACTION: Final rule; annual update of
Commission filing fees.
AGENCY:
In accordance with the
Commission’s regulations, the
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updating is to adjust the fees on the
SUMMARY:
basis of the Commission’s costs for
Fiscal Year 2021.
DATES: Effective March 4, 2022.
FOR FURTHER INFORMATION CONTACT:
Maryam Khan, Office of the Executive
Director, Federal Energy Regulatory
Commission, 999 North Capitol St. NE,
Room 22–02, Washington, DC 20426,
202–502–6683.
SUPPLEMENTARY INFORMATION:
Document Availability: In addition to
publishing the full text of this document
in the Federal Register, the Commission
provides all interested persons an
opportunity to view and/or print the
contents of this document via the
internet through FERC’s Home Page
(https://www.ferc.gov). At this time, the
Commission has suspended access to
the Commission’s Public Reference
Room, due to the proclamation
declaring a National Emergency
concerning the Novel Coronavirus
Disease (COVID–19), issued by the
President on March 13, 2020.
From FERC’s website on the internet,
this information is available in the
eLibrary. The full text of this document
is available on eLibrary in PDF and
Microsoft Word format for viewing,
printing, and/or downloading. To access
this document in eLibrary, type the
docket number excluding the last three
digits of this document in the docket
number field and follow other
directions on the search page.
5659
User assistance is available for
eLibrary and other aspects of FERC’s
website during normal business hours.
For assistance, contact FERC Online
Support at FERCOnlineSupport@
ferc.gov or toll free at (866) 208–3676, or
for TTY, contact (202) 502–8659.
Annual Update of Filing Fees
(January 24, 2022)
The Federal Energy Regulatory
Commission (Commission) is issuing
this document to update filing fees that
the Commission assesses for specific
services and benefits provided to
identifiable beneficiaries. Pursuant to 18
CFR 381.104, the Commission is
establishing updated fees on the basis of
the Commission’s Fiscal Year 2021
costs. The adjusted fees announced in
this document are effective March 4,
2022. The Commission has determined,
with the concurrence of the
Administrator of the Office of
Information and Regulatory Affairs of
the Office of Management and Budget,
that this final rule is not a major rule
within the meaning of section 251 of
Subtitle E of Small Business Regulatory
Enforcement Fairness Act, 5 U.S.C.
804(2). The Commission is submitting
this final rule to both houses of the
United States Congress and to the
Comptroller General of the United
States.
The new fee schedule is as follows:
Fees Applicable to the Natural Gas Policy Act
1. Petitions for rate approval pursuant to 18 CFR 284.123(b)(2). (18 CFR 381.403) ........................................................................
$16,770
Fees Applicable to General Activities
1. Petition for issuance of a declaratory order (except under Part I of the Federal Power Act). (18 CFR 381.302(a)) ....................
2. Review of a Department of Energy remedial order:
Amount in controversy
$0–9,999. (18 CFR 381.303(b)) ............................................................................................................................................
$10,000–29,999. (18 CFR 381.303(b)) .................................................................................................................................
$ 30,000 or more. (18 CFR 381.303(a)) ...............................................................................................................................
3. Review of a Department of Energy denial of adjustment:
Amount in controversy
$0–9,999. (18 CFR 381.304(b)) ............................................................................................................................................
$10,000–29,999. (18 CFR 381.304(b)) .................................................................................................................................
$30,000 or more. (18 CFR 381.304(a)) ................................................................................................................................
4. Written legal interpretations by the Office of General Counsel. (18 CFR 381.305(a)) ..................................................................
33,690
100
600
49,170
100
600
25,780
9,660
Fees Applicable to Natural Gas Pipelines
1. Pipeline certificate applications pursuant to 18 CFR 284.224. (18 CFR 381.207(b)) ....................................................................
* 1,000
Fees Applicable to Cogenerators and Small Power Producers
jspears on DSK121TN23PROD with RULES1
1. Certification of qualifying status as a small power production facility. (18 CFR 381.505(a)) .........................................................
2. Certification of qualifying status as a cogeneration facility. (18 CFR 381.505(a)) .........................................................................
* This fee has not been changed.
VerDate Sep<11>2014
16:37 Feb 01, 2022
Jkt 256001
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Frm 00005
Fmt 4700
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32,790
Agencies
[Federal Register Volume 87, Number 22 (Wednesday, February 2, 2022)]
[Rules and Regulations]
[Pages 5655-5659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01589]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 /
Rules and Regulations
[[Page 5655]]
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Part 399
[Docket No. DOT-OST-2021-0142]
RIN 2105-AF03
Procedures in Regulating Unfair or Deceptive Practices
AGENCY: Office of the Secretary (OST), U.S. Department of
Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Transportation (Department or DOT) is
amending its regulations regarding the hearing procedures that are
available when the Department proposes a discretionary aviation
consumer protection rulemaking declaring a practice to be unfair or
deceptive. This final rule simplifies the hearing procedures and allows
the Department greater flexibility to conduct a hearing in a manner
that would not unduly delay the aviation consumer protection
rulemaking.
DATES: Effective March 4, 2022.
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
Recent Rulemaking
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. A different statute, 49 U.S.C. 46301,
gives the Department the authority to issue civil penalties for
violations of section 41712 or for any regulation issued under the
authority of section 41712.
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 would use when conducting future
enforcement actions under the authority of section 41712.\3\ The UDP
Final Rule also sets forth procedures, including evidentiary hearing
procedures, that the Department would use when conducting future
discretionary rulemaking actions under the authority of section
41712.\4\ Those procedures for evidentiary hearings are being amended
through this rulemaking.
---------------------------------------------------------------------------
\1\ 85 FR 78707 (December 7, 2020); RIN 2105-AE72; Docket DOT-
OST-2019-0182.
\2\ 85 FR 78707.
\3\ 14 CFR 399.79.
\4\ 14 CFR 399.75.
---------------------------------------------------------------------------
In addition, the UDP Final Rule defined the terms ``unfair'' and
``deceptive'' for purposes of section 41712. The definitions were
modeled after Federal Trade Commission (FTC) precedent; they also
reflect the Department's longstanding interpretation of those terms.\5\
However, the UDP Final Rule did not fully resolve the meaning of unfair
or deceptive. Executive Order (E.O.) 14036, ``Promoting Competition in
the American Economy,'' issued by President Biden on July 9, 2021,
directs the Department to ``start development of proposed amendments''
to its definitions of the terms `unfair' and `deceptive' in 49 U.S.C.
41712.\6\ In keeping with this Executive Order, the Department intends
to issue in the near future an interpretive rule that would more
clearly apprise the public of the Department's interpretation of the
definitions of ``unfair'' and ``deceptive'' found in section 41712, and
as defined by the Department at 14 CFR 399.79.
---------------------------------------------------------------------------
\5\ 14 CFR 399.79(b); 85 FR 78708.
\6\ https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/.
---------------------------------------------------------------------------
B. Amendments to Evidentiary Hearing Provisions for Discretionary
Aviation Consumer Protection Rulemakings
The UDP Final Rule established the Department's procedures for
hearings for discretionary aviation consumer protection rulemaking
actions promulgated under the authority of section 41712. The
Department is revising those procedures after a careful review of
recent changes in the Department's and FTC's internal policies and
procedures relating to the issuance of rulemaking documents and concern
that the existing hearing procedures for discretionary aviation
consumer protections actions do not provide the Department with enough
flexibility to adapt internal procedures to facilitate efficient
rulemaking. The Department is concerned that the overly particularized
rigidity of the existing procedures in the UDP Final Rule may have the
unintended consequence of causing unnecessary delay. The Department has
determined that although it remains useful to have specific procedures
for evidentiary hearings, the procedures should be streamlined to
provide greater flexibility and ensure that important consumer
protection rulemakings are not unduly delayed.
1. Evidentiary Hearing Provisions as Established in the UDP Final Rule
Under the hearing provisions of the UDP Final Rule, if the
Department proposes a new discretionary rulemaking declaring a practice
to be unfair or deceptive, then any interested party may file a
petition for an
[[Page 5656]]
evidentiary hearing.\7\ The petition must be directed to the attention
of the General Counsel, and must be filed before the close of the
comment period on the proposed rule.\8\ To obtain an evidentiary
hearing, the party must demonstrate that: (1) The proposed rule depends
on conclusions concerning one or more specific scientific, technical,
economic, or other factual issues that are genuinely in dispute or that
may not satisfy the requirements of the Information Quality Act; (2)
the ordinary public comment process is unlikely to provide an adequate
examination of the issues to permit a fully informed judgment; and (3)
the resolution of the disputed factual issues would likely have a
material effect on the costs and benefits of the proposed rule.\9\ Even
if the petitioner establishes these elements, the General Counsel may
still deny the petition if: (1) The hearing would not advance the
consideration of the proposed rule; or (2) the hearing would
unreasonably delay completion of the rulemaking.\10\
---------------------------------------------------------------------------
\7\ A discretionary rulemaking is one that is not mandated by
statute. See 14 CFR 399.75(c).
\8\ 85 FR 78716-78717; 14 CFR 399.75(b)(1).
\9\ Id. at 78716-78717; 14 CFR 399.75(b)(2).
\10\ Id. at 78717; 14 CFR 399.75(b)(3).
---------------------------------------------------------------------------
The existing procedures provide that if the General Counsel grants
the petition, then a notice of the hearing must be placed in the
Federal Register, identifying the specific issues that will be
considered.\11\ The General Counsel must develop procedures for
conducting evidentiary hearings.\12\ Interested parties must have a
reasonable opportunity to participate in the hearing through the
presentation of testimony and written submissions.\13\ The General
Counsel must appoint a ``neutral officer'' to preside over the hearing,
and must allow ``a reasonable opportunity to question the presenters.''
\14\ After the hearing is closed, the neutral officer must place
minutes of the meeting on the docket, along with proposed findings of
fact on the disputed issues.\15\ Interested parties who participated in
the hearing must be given the opportunity to file ``statements of
agreement or objection'' to the proposed findings.\16\
---------------------------------------------------------------------------
\11\ 14 CFR 399.75(b)(5).
\12\ 14 CFR 399.75(b)(6)(i).
\13\ Id.
\14\ 14 CFR 399.75(b)(6)(ii).
\15\ 14 CFR 399.75(b)(6)(iii).
\16\ 14 CFR 399.75(b)(6)(iv).
---------------------------------------------------------------------------
After the hearing, the General Counsel must consider the record of
the hearing, along with the neutral officer's findings, and determine
whether to: (1) Terminate the proposed rulemaking; (2) modify it by
filing a new or supplemental notice of proposed rulemaking; or (3)
finalize the rule without material changes.\17\ Any of these choices
must be accompanied by a notice in the Federal Register explaining the
basis for the decision.\18\
---------------------------------------------------------------------------
\17\ 14 CFR 399.75(b)(7).
\18\ Id.
---------------------------------------------------------------------------
2. Evidentiary Hearing Provisions--Rationale
The Department indicated in the UDP Final Rule that these
evidentiary hearing procedures were consistent with section 41712,
which requires the Department to provide notice and an opportunity for
a hearing before finding that a regulated entity is engaged in an
unfair or deceptive practice.\19\ The Department noted that hearing
procedures would be helpful in cases where the Department's proposed
rulemaking may be premised on complex or disputed issues of fact.\20\
The Department also noted that the traditional notice-and-comment
procedures of the Administrative Procedure Act ``remain the default
process,'' and that a hearing may be granted only if an interested
party shows that traditional notice-and-comment is inadequate.\21\ The
Department further noted that the General Counsel may deny a hearing
upon a finding that the hearing would unreasonably delay the
rulemaking.\22\ The Department also explained that the Department had
held evidentiary hearings on proposed aviation consumer protection
rulemakings in the past, but had not codified nor fully publicized
those procedures.\23\ In summary, the Department recognized that
hearing procedures may add time to the overall rulemaking process, but
concluded that the hearing procedures, as written, would ``promote
fairness, due process, and well-informed rulemaking, without unduly
delaying the proceeding itself.'' \24\
---------------------------------------------------------------------------
\19\ 85 FR 78711.
\20\ Id. at 78712.
\21\ Id.
\22\ Id.
\23\ Id.
\24\ Id.
---------------------------------------------------------------------------
C. Subsequent Developments on Evidentiary Hearing Procedures
Recently, both the Department and the FTC have reexamined or
revised their evidentiary hearing procedures for rulemakings. On April
2, 2021, the Department repealed most of 49 CFR part 5, which included
hearing procedures for high-impact and economically significant rules
issued by the Department.\25\ The Department further indicated that it
would review the substance of the Department's rulemaking procedures in
light of Executive Order 13992 (January 25, 2021). This Executive Order
not only repealed a number of executive orders relating to the
rulemaking process, but also directed agencies to ``promptly take steps
to rescind any orders, rules, regulations, guidelines, or policies, or
portions thereof, implementing or enforcing'' those repealed executive
orders.
---------------------------------------------------------------------------
\25\ DOT Final Rule, ``Administrative Rulemaking, Guidance, and
Enforcement Procedures,'' 86 FR 17292 (April 2, 2021) (effective May
3, 2021), repealing most of 49 CFR part 5, which had been found at
84 FR 71714 (December 27, 2019, effective January 27, 2020). Despite
this repeal, the hearing procedures for aviation consumer protection
rulemakings found in 14 CFR 399.75 remained intact.
---------------------------------------------------------------------------
Meanwhile, on July 22, 2021, the FTC announced that it streamlined
its rules of practice regarding evidentiary hearings for rulemakings
that would declare a specific act or practice to be unfair or
deceptive.\26\ For example, the FTC eliminated the requirement that the
evidentiary hearing be conducted by an Administrative Law Judge (ALJ);
instead, hearings may be conducted by a neutral presiding officer
appointed by the FTC Chair.\27\ The FTC also eliminated other rules,
including: (1) A requirement that the hearings include ``direct
examination'' of individuals who present their views at such hearing;
(2) rules relating to compelling documents and testimony; and (3) a
requirement that Commission staff produce a report analyzing the
rulemaking record, along with an additional period for interested
parties to comment on the report.\28\ The FTC reasoned that its
amendments would allow for transparent public participation in the
rulemaking process while avoiding unnecessary procedural delays to
effective rulemaking.\29\
---------------------------------------------------------------------------
\26\ ``Revisions to Rules of Practice,'' 86 FR 38542 (July 22,
2021). Pursuant to the FTC Act, the FTC is required to ``provide an
opportunity for an informal hearing'' before issuing a rule
declaring a specific act or practice to be unfair or deceptive. 15
U.S.C. 57a(b)(1)(C); Magnuson-Moss Warranty--Federal Trade
Commission Improvement Act of 1975, Public Law 93-637. The FTC Act
also sets forth the basic requirements for such a hearing. 5 U.S.C.
57a(c). The FTC's rules of practice implementing the FTC Act
originally contained provisions that went beyond what the FTC Act
itself called for.
\27\ Id. at 38546, 38551. Under the FTC's new rules, the Chief
Presiding Officer appoints the presiding officer for the hearing.
Id. at 38549; 16 CFR 1.13(a). The FTC Chair is the Chief Presiding
Officer, unless the Chair appoints another Commissioner or an
individual ``who is not responsible to any other official or
employee of the Commission.'' 16 CFR 0.8.
\28\ Id.
\29\ Id. at 38552.
---------------------------------------------------------------------------
[[Page 5657]]
II. Discussion of Revisions To Rule on Evidentiary Hearings
The Department maintains the view that it remains useful to have
specified procedures for evidentiary hearings because it may be
beneficial to hold evidentiary hearings before completing certain
discretionary aviation consumer protection rulemakings. When structured
properly and used judiciously, evidentiary hearings should help to
ensure that the Department's assumptions relating to economic,
technical, and other matters are based on a solid foundation. The
Department also sees value in publicizing and standardizing the
procedures for evidentiary hearings, given that the Department's use of
such hearings is not new. With publicly available standards,
evidentiary hearings should serve to promote robust public
participation in the rulemaking process by all stakeholders. At the
same time, the Department finds that it is important to balance the
need for robust public participation with the need for procedures that
provide the Department with enough flexibility to ensure important
rulemakings are not bogged down by overly prescriptive procedural
constraints. Accordingly, the Department has modified its evidentiary
hearing procedures to promote flexibility and efficiency.
First, the Department has simplified the standard for granting a
hearing to a ``public interest'' standard. The question of whether a
hearing is in the public interest will 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. The public interest standard is designed to encourage the
General Counsel to consider not only the elements outlined in the UDP
Final Rule, but also any other unique factors that may be relevant to
the specific rulemaking at issue.
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 would be required
to make a ``credible and convincing prima facie showing that granting
the petition is in the public interest.'' The Department is of the view
that the ``credible and convincing evidence'' standard best serves to
ensure that the usual notice-and-comment procedure of the APA remains
the default procedure. The new standard also ensures that the
petitioner presents a strong basis from which the General Counsel may
conclude that expending the resources required for a public hearing is
justified.
The Department has also modified its procedures for granting or
denying an evidentiary hearing. Under the UDP Final Rule, the General
Counsel was required to issue a detailed statement of reasons for
denying a petition, but there was no similar requirement if the General
Counsel granted the petition. The Department is of the view that the
General Counsel should issue an explanatory statement of the basis for
the decision in either granting or denying the petition. However, the
statement need not be overly detailed; it should set forth with
sufficient clarity the basis for the decision that it is or is not in
the public interest to hold an evidentiary hearing. Such a requirement
will promote fairness and transparency in the Department's rulemaking
processes.
The Department has also afforded the General Counsel greater
discretion to appoint an appropriate hearing officer for the
evidentiary hearing. The UDP Rule currently requires the General
Counsel to appoint a ``neutral officer'' to preside over the hearing,
implying that Department staff working on the rulemaking may not
preside over the hearing. Under this new rule, the General Counsel has
broader discretion to appoint an appropriate hearing officer from
within or outside the Department to conduct the hearing.
Next, the Department now allows the hearing officer greater
flexibility with respect to when and how testimony is presented at the
hearing. The UDP Final Rule required ``a reasonable opportunity to
participate in the hearing through the presentation of testimony and
written submissions'' and ``a reasonable opportunity to question the
presenters.'' The new rule eliminates these requirements and allows the
hearing officer greater discretion to determine whether testimony,
written submissions, and/or cross-examination are appropriate given the
unique circumstances of each hearing.
The Department has simplified the requirements for the hearing
officer's report after the hearing is closed. The UDP Final Rule
provided that, after the record of the hearing is closed, ``the hearing
officer shall place on the docket minutes of the hearing with
sufficient detail as to fully reflect the evidence and arguments
presented on the issues, along with proposed findings addressing the
disputed issues of fact identified in the hearing notice.'' \30\ In
this new rule, the hearing officer is simply required to place on the
record the minutes with sufficient detail as to fully reflect the
evidence and arguments presented on the issues and not the proposed
findings addressing the disputed issues of fact identified in the
hearing. The findings would be provided by the Department in subsequent
documents that modify, terminate, or maintain the proposed rule.
---------------------------------------------------------------------------
\30\ 14 CFR 399.75(b)(6)(iii).
---------------------------------------------------------------------------
Finally, the Department has amended the procedures that take place
after the hearing is closed. The new rule clarifies that in keeping
with current practice, all interested parties (not just those who
participated in the hearing) may file statements or comments in the
docket after the hearing is closed.
III. Administrative Procedure Act
Under the Administrative Procedure Act, the normal notice and
comment procedures do not apply to an action that is a rule of agency
organization, procedure, or practice. See 5 U.S.C. 553(b)(A). Since
this final rule revises only internal processes applicable to the
Department's administrative procedures, this is a rule of agency
procedure for which notice and comment are not required.
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. 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.
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.
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
[[Page 5658]]
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.'' Since this
rulemaking relates to the definition of unfair and deceptive practices
under section 41712, the Department's central consumer protection
statute, this is a consumer protection rulemaking. 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 continues to read as follows:
Authority: 49 U.S.C. 41712, 40113(a).
0
2. Section 399.75 is amended by revising paragraphs (b)(2) through (7)
and removing paragraph (b)(8).
The revisions read as follows:
Sec. 399.75 Rulemakings related to unfair and deceptive practices.
* * * * *
(b) * * *
(2) Decision on petition for hearing. The petition shall be granted
if the petitioner makes a clear and convincing showing that granting
the petition is in the public interest. Factors in determining whether
a petition is in the public interest include, but are not limited to:
(i) Whether the proposed rule depends on conclusions concerning one
or more specific scientific, technical, economic, or other factual
issues that are genuinely in dispute or that may not satisfy the
requirements of the Information Quality Act;
(ii) Whether the ordinary public comment process is unlikely to
provide an adequate examination of the issues to permit a fully
informed judgment;
(iii) Whether the resolution of the disputed factual issues would
likely have a material effect on the costs and benefits of the proposed
rule;
(iv) Whether the requested hearing would advance the consideration
of the proposed rule and the General Counsel's ability to make the
rulemaking determinations required by this section; and
(v) Whether the hearing would unreasonably delay completion of the
rulemaking.
(3) Explanation of decision. If a petition is granted or denied in
whole or in part, the General Counsel shall provide an explanation of
the basis for the decision,
(4) Hearing notice. If the General Counsel grants the petition, the
General Counsel shall publish notification of the hearing in the
Federal Register. The document shall specify the proposed rule at issue
and the specific factual issues to be considered at the hearing. The
scope of the hearing shall be limited to the factual issues specified
in the notice.
(5) Hearing process. (i) A hearing under this section shall be
conducted using procedures approved by the General Counsel, and
interested parties shall have a reasonable opportunity to participate
in the hearing.
(ii) The General Counsel shall arrange for a hearing officer to
preside over the hearing.
(iii) After the hearing and after the record of the hearing is
closed, the hearing officer shall place on the docket minutes of the
hearing with sufficient detail as to fully reflect the evidence and
arguments presented on the issues. The complete record of the hearing
shall be made part of the rulemaking record.
(iv) Interested parties shall be given an opportunity to file
statements or comments after the hearing.
(6) Actions following hearing. (i) Following the completion of the
hearing process, the General Counsel shall consider the record of the
hearing, and shall make a reasoned determination whether to terminate
the rulemaking; to proceed with the rulemaking as proposed; or to
modify the proposed rule.
(ii) If the General Counsel decides to terminate the rulemaking,
the General Counsel shall publish a document in the Federal Register
announcing the decision and explaining the reasons for the decision.
(iii) If the General Counsel decides to finalize the proposed rule
without material modifications, the General Counsel shall explain the
reasons for the decision and its responses to the hearing record in the
preamble to the final rule.
(iv) If the General Counsel decides to modify the proposed rule in
material respects, the General Counsel shall publish a new or
supplemental notice of proposed rulemaking in the Federal Register
explaining the General Counsel's responses to and analysis of the
hearing record, setting forth the modifications to the proposed rule,
and providing additional reasonable opportunity for public comment on
the proposed modified rule.
(7) Interagency review process. The hearing procedures under this
paragraph (b) shall not impede or interfere with the interagency review
process of the Office of Information and
[[Page 5659]]
Regulatory Affairs for the proposed rulemaking.
* * * * *
Issued this 21st day of January, 2022, in Washington, DC, under
authority delegated in 49 CFR 1.27(n).
John E. Putnam,
Deputy General Counsel.
[FR Doc. 2022-01589 Filed 2-1-22; 8:45 am]
BILLING CODE 4910-9X-P