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34 Air & Space Law. 1 (2021-2022)

handle is hein.journals/airspaclaw34 and id is 1 raw text is: THE AIR L A AMERICAN BAR ASSOCIATION & SPACE w E R VOLUME 34, NUMBER 1, 2021 Why the Biden DOT Should Adhere to New Best Practices in Aviation Consumer Regulation By Eric A. Felland and Andrew P. Orr In this article, we discuss two of the last and much-needed changes to consumer protection regulations of the U.S. Depart- ment of Transportation's (DOT or Department) Office of Avia- tion Consumer Protection (OACP) under the Trump Administra- tion. We consider two recent final rules: Defining Unfair or Deceptive Practices (UDP Rule),1 which came into effect on January 6, 2021, and promises to discipline future discretionary rule- making and enforcement; and Traveling by Air with Service Animals,2 the successful culmination of an effort to rationalize certain nondiscrimination regu- lations, which came into effect on January 11, 2021. Both rules demonstrate a laudable commitment to best practices in rulemaking and enforcement. As the Biden Administration gets underway, its DOT will confront important questions about the uses and limits of its consumer protection authority while seeking to regulate an aviation industry pro- foundly reshaped by the COVID-19 pandemic. The new president has already signaled a strong commit- ment to rethinking the deregulatory approach of his predecessor.3 However, many of the regulatory good governance practices instituted before January 20 con- tinue to make sense and should be retained. The Defining Unfair or Deceptive Practices Rule: A New Beginning? The UDP Rule commits DOT to providing thorough cost-benefit justifications for new aviation consumer protection rulemaking and for investigations. This is a welcome departure from rules based on mere suspi- cions of consumer harm, or from cost-benefit analyses that leaned too heavily on unquantifiable benefits. The rule also formalizes certain due process protections- such as affirming a respondent's opportunity to be heard during the informal investigation stage-though the rule falls short of its potential to clearly explain what factors DOT relies on in exercising prosecutorial discretion or mitigation of proposed penalties. Never- theless, the rule's procedural reforms are a welcome development for regulated entities that often strug- gle to understand the priorities and reasoning of the Department when it seeks to assert its authority to restrain unfair or deceptive practices. Though these reforms were finalized under the Trump Administration, they are not partisan or anticon- sumer. Rather, they strike a fair balance between the Department's need for flexibility in addressing novel problems and regulated entities' need for advance notice and clarity about the law, and the new Adminis- tration would be wise to retain them. The necessity for such reforms was recently suggested in a report by the Government Accountability Office (GAO), further high- lighting the nonpartisan nature of the issue. The Biden DOT would also be wise to bring the same willingness to carefully study and revise existing regulations to its work as was brought by the previ- ous Administration. An excellent example of revising rules in light of experience, and thoughtful balanc- ing of stakeholder interests, is the recent final revision to DOT's service animal regulations. These rules fixed continued on page 14 Published in The Air & Space Lawver, Volume 34, Number 1, 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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