The U.S. Department of Transportation (DOT) has issued a Notice of Proposed Rulemaking (NPRM) that, if finalized, would represent a consequential shift in how DOT conducts enforcement actions and develops regulations and guidance for regulated parties.1 For the airline industry, which chafed under DOT’s highly regulatory approach to consumer protection during the Biden presidency, DOT’s proposals to expand due process protections and enhance transparency should be a welcome development.
Background
Shortly after taking office, President Trump issued a series of executive orders stating that his administration would “alleviate unnecessary regulatory burdens placed on the American people”2 and “focus the executive branch’s limited enforcement resources on regulations squarely authorized by constitutional Federal statutes.”3 In response, DOT has published the NPRM to reinstate and expand upon procedural protections that were in place during the first Trump administration but rescinded under the Biden administration.
Key Takeaways
The NPRM proposes procedural reforms in two key areas:
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DOT enforcement proceedings; and
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the issuance of DOT rulemakings and agency guidance.
Enforcement: Strengthened Due Process & Procedural Protections for Regulated Entities
Investigative Due Process Protections
The NPRM, to ensure a “fair and impartial process at each stage of enforcement actions[,]”4 proposes the following:
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DOT’s investigative process would be required to align with “due process, basic fairness, and respect for individual liberty and private property.”5
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Investigative personnel would be prohibited from conducting “fishing expeditions” and treating enforcement as a “gotcha” exercise, but rather would be required to possess “sufficient evidence” supporting an alleged violation and to “promptly disclose to the affected parties the reasons for the investigative review and any compliance issues identified or findings made.”6
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DOT enforcement actions would be required to be grounded in clear statutory authority, and the authority to impose monetary civil penalties, if sought, “must be clear in the text of the statute.”7
Required Disclosures to Regulated Entities
DOT would be required to provide fair notice to entities facing enforcement actions,8 including notice regarding:
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the relevant legal authorities allegedly violated;
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the basic issues and key facts alleged;
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the agency’s rationale; and
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procedural rights, including options for administrative and judicial review.9
The NPRM also adopts the Brady rule,10 and would require DOT personnel “to disclose materially exculpatory evidence in the agency’s possession” without the need for a specific request.11 This includes evidence “favorable to the regulated entity…including evidence that tends to negate or diminish the party’s responsibility for a violation or that could be relied upon to reduce the potential fine or other penalties.”12
Civil Penalty Actions
Under the NPRM, DOT may only seek civil penalties when “supported by clear statutory authority and sufficient findings of fact.”13 Where DOT has discretion regarding the penalty amount or type, the NPRM directs DOT to consider “fairness, the scale of the violation, the violator’s knowledge and intent, and any mitigating factors.”14
The NPRM further requires DOT to voluntarily share materials, such as “penalty calculation worksheets, manuals, [or] charts…that shed light on the way penalties are calculated,” and it prohibits DOT from relying on guidance documents to create binding requirements that do not already exist by statute or regulation.15
Due Process When Confronted with an Alleged DOT Procedural Violation
Under the NPRM, entities subject to DOT enforcement may petition the DOT General Counsel (with potential appeal to the DOT Secretary) for a determination on whether DOT investigatory and/or enforcement personnel adhered to proper procedures.16 The DOT General Counsel would be empowered to remedy a procedural violation committed by DOT personnel. Such remedies may include:
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removal of the enforcement team from the particular matter;
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elimination of certain issues or exclusion of certain evidence;
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restarting or resuming the enforcement process from an earlier point; and
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administrative discipline for DOT personnel found to have violated DOT’s procedural rules.17
Reinstated and Enhanced Rulemaking and Guidance Procedures
The NPRM reaffirms the Trump administration’s regulatory philosophy: that regulations should be narrowly tailored to address “identified market failures or specific statutory mandates,”18 and outlines procedures for every phase of rulemaking, including:
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initiating new rules;
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developing economic analyses;
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drafting rulemaking documents;
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reviewing and clearing proposals; and
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ensuring meaningful public participation.
The NPRM also proposes to apply increased scrutiny to economically significant and high-impact rulemakings,19 and calls for reestablishing DOT’s Regulatory Reform Task Force to oversee DOT’s regulatory portfolio.20
Additionally, under the NPRM, all guidance documents would be subject to legal review, drafted in plain language, and include disclaimers confirming their non-binding status. For significant guidance documents, the NPRM would require publication of a draft in the Federal Register with a minimum 30-day public comment period.21
Implications and Opportunities for Stakeholders
Although largely procedural, these proposed reforms, if implemented, may significantly affect how regulated entities interact with DOT. Regulated parties should consider submitting written comments by DOT’s June 16, 2025, deadline to ensure that DOT takes account of their perspectives when drafting a final rule.
[1]Administrative Rulemaking, Guidance, and Enforcement Procedures, 90 Fed. Reg. 20956 (May 16, 2025).
[2] 90 Fed. Reg. 9065 (Feb. 6, 2025).
[3] 90 Fed. Reg. 10583 (Feb. 25, 2025).
[4] 90 Fed. Reg. at 20971.
[10] See Brady v. Maryland, 373 U.S. 83 (1963).
[11] 90 Fed. Reg. at 20974.
[16] 90 Fed. Reg. at 20975.
[17] See id. at 20975-20976.
[19] See id. at 20967. The NPRM defines an economically significant rule as one that would be “likely to impose a total annual cost on the U.S. economy…of $100 million or more, or…a total net loss of least 75,000 full-time jobs in the U.S. over the five years following the effective date” and a high-impact rule as one that would be “likely to impose a total annual cost on the U.S. economy…of $500 million or more, or…a total net loss of at least 250,000 full-time jobs in the U.S. over the five years following the effective date of the rule.” Id.