Procedures in Regulating Unfair or Deceptive Practices, 5655-5659 [2022-01589]

Download as PDF 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: jspears on DSK121TN23PROD with RULES1 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. VerDate Sep<11>2014 16:37 Feb 01, 2022 Jkt 256001 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. PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 ‘‘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/. E:\FR\FM\02FER1.SGM 02FER1 5656 Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations jspears on DSK121TN23PROD with RULES1 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). VerDate Sep<11>2014 16:37 Feb 01, 2022 Jkt 256001 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. PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 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. E:\FR\FM\02FER1.SGM 02FER1 jspears on DSK121TN23PROD with RULES1 Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 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 VerDate Sep<11>2014 16:37 Feb 01, 2022 Jkt 256001 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 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 5657 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 E:\FR\FM\02FER1.SGM CFR 399.75(b)(6)(iii). 02FER1 5658 Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 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. jspears on DSK121TN23PROD with RULES1 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 VerDate Sep<11>2014 16:37 Feb 01, 2022 Jkt 256001 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, PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 (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 E:\FR\FM\02FER1.SGM 02FER1 Federal Register / Vol. 87, No. 22 / Wednesday, February 2, 2022 / Rules and Regulations 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 DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 381 [Docket No. RM22–4–000] Annual Update of Filing Fees Federal Energy Regulatory Commission. ACTION: Final rule; annual update of Commission filing fees. AGENCY: In accordance with the Commission’s regulations, the Commission issues this update of its filing fees. This document provides the yearly update using data in the Commission’s Financial System to calculate the new fees. The purpose of 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 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\02FER1.SGM 02FER1 28,970 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]



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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.

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[[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

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