Overview
On October 30, 2025, the Department of Transportation (the "Department") published a Notice of Proposed Rulemaking proposing to revise certain procedures related to its authority to prohibit unfair and deceptive practices in air transportation. The proposals are consistent with the current Administration’s deregulatory stance. Comments on the proposal are due by December 1, 2025.
Hearing Procedures Applicable to Issuing, Changing, or Eliminating Rules:
The Department proposed revisions to its procedures applicable to the hearings that interested parties may request when the Department publishes proposed rules on unfair or deceptive practices in air transportation. In 2022, the Department revised its procedures to streamline the hearing procedures. The current proposal will essentially revert to the procedures in place in December 2020.
Notable proposed procedural changes include:
- Standard for granting a hearing request eased.
- The appointed hearing officer must be neutral.
- The hearing officer must issue findings of facts.
- The ability to file statements on the hearing record is limited to hearing participants.
- The Department is no longer required to provide a rationale for granting a petition for hearing (but still must provide a rationale if it denies a petition for hearing).
Enforcement Procedures:
In connection with the Department's enforcement actions, the proposal also would eliminate rule text stating that the Department has the option to bring an action in the US District Court when pursuing enforcement. However, this is not a substantive change as the notice states that the clarification in rule text is unnecessary because the "Department’s authority to bring actions in US District Court is grounded in statute, settled, and does not need to be clarified."
Impact on Deregulatory Agenda:
In addition to the specific changes proposed in the rule, the Department is analyzing its past use of Section 41712 pursuant to the current Administration’s deregulatory agenda. The notice states that the Department should follow the hearing procedures in the proposed rule and that its rulemaking authority is limited to declaring practices "unfair or deceptive when supported by evidence after notice and opportunity for hearing" and the Department rules should only address specific problems. The notice goes on to state that "speculative harms do not support a need to regulate, nor do strained or unduly broad readings of statutory authorities." These statements indicate that, once the new procedures are finalized, when pursuing deregulation, the Department will consider whether existing rules address a specific problem or are based on speculative harms.
Rescission of Guidance on Unfair or Deceptive Practices:
The notice also described its August 2022 "Guidance Regarding Interpretation of Unfair or Deceptive Practices" (the "Guidance") as "unnecessary and potentially confusing." The notice states that the Department will rescind the Guidance at a later date. Since it did not simply rescind the Guidance in this notice, it is possible the Department will issue a new guidance regarding its interpretation of unfair or deceptive practices.
We will continue to monitor department publications for additional information and regulatory activity.
