54514 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 13 

[Docket No.: FAA–2018–1051; Amdt. No.: 

13–40] 

RIN 2120–AL00 

Update to Investigative and 

Enforcement Procedures 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

procedural rules governing FAA 

investigations and enforcement actions. 

The revisions include updates to 

statutory and regulatory references, 

updates to agency organizational 

structure, elimination of 

inconsistencies, clarification of 

ambiguity, increases in efficiency, and 

improved readability. 

DATES: Effective November 30, 2021. 

ADDRESSES: For information on where to 

obtain copies of rulemaking documents 

and other information related to this 

final rule, see ‘‘How To Obtain 

Additional Information’’ in the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: For 

technical questions concerning this 

action regarding 14 CFR part 13, 

subparts A through C, E, and F, contact 

Cole R. Milliard, Office of the Chief 

Counsel, AGC–300, Federal Aviation 

Administration, 800 Independence 

Avenue SW, Washington, DC 20591; 

telephone (202) 267–3452; email 

Cole.Milliard@faa.gov, or Jessica E. 

Kabaz-Gomez, Office of the Chief 

Counsel, AGC–300, Federal Aviation 

Administration, 800 Independence 

Avenue SW, Washington, DC 20591; 

telephone (202) 267–7395; email 

Jessica.Kabaz-Gomez@faa.gov. For 

questions concerning this action 

regarding 14 CFR part 13, subparts D 

and G, contact John A. Dietrich, Office 

of the Chief Counsel, FAA Office of 

Adjudication, AGC–70, Federal 

Aviation Administration, 800 

Independence Avenue SW, Washington, 

DC 20591; telephone (202) 267–3433; 

email John.A.Dietrich@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

Authority for This Rulemaking 

I. Overview of Final Rule 

II. Background 

A. Statement of the Problem 

B. Summary of the NPRM 

C. General Overview of Comments 

III. Discussion of Public Comments and Final 

Rule 

A. FAA’s Authority 

B. Service of Formal Complaints 

C. Date of Service of a Formal Complaint 

D. FAA Actions Resulting From Formal 

Complaints 

E. Administrative Actions 

F. Consent Orders 

G. Deposition Authority 

H. Witness Fees 

I. Record on Appeal 

J. Appeals and Judicial Review 

K. Expedited Proceedings 

L. Dispute Resolution 

M. Federal Docket Management System 

and Use of Email for Filing and Service 

N. Timing for Responding to Service by 

Mail 

O. Valid Service of Documents 

P. Disqualification/Recusal 

Q. Motion for a More Definite Statement 

R. Technological Advances in All 

Adjudications and Proceedings 

S. Other Differences Between the NPRM 

and the Final Rule 

T. Redesignation Table 

IV. Regulatory Notices and Analyses 

A. Regulatory Evaluation 

B. Regulatory Flexibility Determination 

C. International Trade Impact Assessment 

D. Unfunded Mandates Assessment 

E. Paperwork Reduction Act 

F. International Compatibility and 

Cooperation 

G. Environmental Analysis 

V. Executive Order Determinations 

A. Executive Order 13132, Federalism 

B. Executive Order 13211, Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use 

C. Executive Order 13609, Promoting 

International Regulatory Cooperation 

D. Executive Order 13771, Reducing 

Regulation and Controlling Regulatory 

Costs 

E. Executive Order 13892, Promoting the 

Rule of Law Through Transparency and 

Fairness 

VI. How To Obtain Additional Information 

A. Rulemaking Documents 

B. Comments Submitted to the Docket 

C. Small Business Regulatory Enforcement 

Fairness Act 

Authority for This Rulemaking 

FAA’s authority to issue rules on 

aviation safety is in title 49 of the 

United States Code. Subtitle I, section 

106 describes the authority of the 

Administrator. Subtitle VII, Aviation 

Programs, describes in more detail the 

scope of the agency’s authority. The 

Administrator has authority to issue 

regulations and procedures necessary 

for safety in air commerce and national 

security under 49 U.S.C. 44701(a)(5). 

The Administrator also has authority to 

prescribe regulations he considers 

necessary to carry out Subtitle VII, Part 

A of title 49 under 49 U.S.C. 40113(a). 

This rulemaking is promulgated 

under the authority of numerous 

additional statutes relevant to 

procedures and other rules covering a 

wide variety of enforcement actions. 

Generally, this rulemaking relies on the 

duties and powers delegated to the 

Administrator of FAA under 49 CFR 

1.83. It also relies on the power of the 

Administrator to conduct investigations; 

prescribe regulations, standards, and 

procedures; and issue orders per 49 

U.S.C. 40113–40114. Sections 46101– 

46110 of title 49 U.S.C. contain 

procedures and other requirements 

governing investigations, enforcement, 

complaints of violations, service, 

evidence, regulations and orders, and 

judicial review. Section 6002 of title 18 

U.S.C. is the authority for witness 

immunity in FAA formal investigations 

(see 14 CFR 13.119). 

The Administrator’s duties and 

powers related to aviation safety in 49 

U.S.C. 44701, and the authority of the 

Administrator to issue, amend, modify, 

suspend, and revoke certificates per 49 

U.S.C. 44702–44703, 44709–44710, 

44724, 44726, and 46111 also provide 

authority for this rulemaking. The 

rulemaking further relies on the 

Administrator’s power to impose and 

collect civil penalties under 49 U.S.C. 

46301. The Administrator’s powers with 

respect to aircraft maintenance (49 

U.S.C. 44713, 44725), aircraft 

registration (49 U.S.C. 44103–44106), 

aircraft noise levels (49 U.S.C. 47531– 

47532), airports (49 U.S.C. 47106, 

47107, 47111, 47122, and 47306), and 

hazardous materials (49 U.S.C. 5121– 

5124) are also part of the authority for 

this rulemaking. These various 

authorities prescribe the standards 

enforced via the procedures provided in 

part 13. 

I. Overview of Final Rule 

This rulemaking revises subparts A 

through G of part 13, which provide 

procedural rules governing 

investigations and enforcement actions 

taken by FAA. It updates statutory and 

regulatory references, eliminates 

inconsistencies, clarifies ambiguity, 

increases efficiency, and improves 

readability. There are no substantive 

amendments to subpart B, which 

addresses administrative actions, or to 

subpart F, which governs formal factfinding investigations under orders of 

investigation. This final rule does, 

however, include substantive 

amendments to subparts A, C, D, E, and 

G. 

Subpart A addresses FAA’s 

investigative procedures. Amendments 

include a new re-delegation provision in 

§ 13.1, applicable to the whole of part 

13; removal of current § 13.5(e), which 

addresses complaints filed against 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54515 

1 49 U.S.C. 5101–5127. 

members of the armed services, to align 

with the removal of current § 13.21; and 

the addition of a definition for the date 

of service of a written answer to a 

formal complaint in § 13.5(e) in this 

final rule as no definition is provided in 

current § 13.5(f), which § 13.5(e) 

replaces. 

Subpart C addresses legal 

enforcement actions. This final rule 

provides a new emergency procedure 

allowing for an expedited 

administrative appeal process when 

issuing a notice under 14 CFR 13.20(d) 

simultaneously with a temporary 

emergency order under 49 U.S.C. 40113 

and 46105(c). FAA is amending § 13.13 

to update the list of required elements 

for a proposed consent order to include 

a withdrawal of all requests for hearing 

or appeals in any forum as well as an 

express waiver of attorney’s fees and 

costs. This final rule also amends 

§ 13.17(a) to replace the term ‘‘operator’’ 

with ‘‘the individual commanding the 

aircraft’’ to align with the underlying 

statute. Finally, this final rule removes 

§ 13.29 pertaining to FAA enforcement 

procedures against individuals who 

present dangerous or deadly weapons 

for screening at airports or in checked 

baggage, as these proceedings are now 

under the Transportation Security 

Administration’s authority. 

Current subpart D provides the rules 

of practice applicable to FAA hearings 

involving legal enforcement actions 

pertaining to certain FAA-issued 

certificates, hazardous materials 

violations by any person, and other 

types of enforcement actions. This final 

rule amends the applicability section of 

subpart D to no longer apply to hearings 

for emergency orders of compliance 

issued under the Hazardous Materials 

Transportation Act,1 because 49 CFR 

part 109, DOT Hazardous Material 

Procedural Regulations, now provides 

the procedures for this process. 

Additional amendments to subpart D 

recognize the role and function of FAA’s 

Office of Adjudication and provide for 

the use of alternative dispute resolution 

(ADR) procedures. This final rule 

consolidates sections relating to filing 

and service; updates addresses; allows 

for filing and service by fax and email; 

clarifies the discovery process, 

including a modification to the 

subpoena rule; and consolidates and 

incorporates the appeal procedures 

stated in other subparts of part 13 into 

subpart D. Finally, a new provision in 

subpart D at § 13.67 provides an 

expedited review process for the 

subjects of emergency orders to which 

§ 13.20 applies. 

Subpart E provides for orders of 

compliance under the Hazardous 

Materials Transportation Act. This final 

rule harmonizes procedures associated 

with notices of proposed orders of 

compliance and consent orders issued 

under subpart E with procedures for 

non-hazardous material notices and 

orders in subpart C. This final rule also 

moves subpart D-related provisions 

regarding rules of practice in hearings 

from subpart E to subpart D, and 

updates procedures that have been 

superseded by subsequent amendments 

to the hazardous material (hazmat) 

statutes. Finally, this final rule adds a 

new cross-reference to the procedures in 

49 CFR part 109, subpart C, applicable 

to hazmat emergency orders issued by 

all DOT modes. 

Subpart G provides the rules of 

practice in FAA civil penalty actions. 

Just as with subpart D, this final rule 

amends subpart G to include 

recognition of FAA’s Office of 

Adjudication, the use of mediation as an 

ADR procedure, and the addition of fax 

and email as options for filing and 

service. This final rule also codifies the 

current practice of treating timely 

petitions for reconsideration of 

administrative law judge (ALJ) initial 

decisions as appeals to the FAA 

decisionmaker. Additionally, this final 

rule requires a party applying for a 

subpoena to make a showing of the 

general relevance and reasonable scope 

of the evidence sought by the subpoena. 

Other changes codify existing practices 

and create consistency within subpart 

G. 

II. Background 

A. Statement of the Problem 

The majority of the rules in part 13 

were last amended a decade or more 

ago. Since then, there have been 

statutory, organizational, and 

technological changes that necessitate 

updates. This rulemaking updates 

outdated statutory references and 

reflects the organizational changes made 

in FAA’s Office of the Chief Counsel 

prior to the publication of the notice of 

proposed rulemaking (NPRM) (84 FR 

3614, February 12, 2019), including the 

revised position titles and new offices 

within the Office of the Chief Counsel 

described in the NPRM. 

Additionally, this final rule updates 

many antiquated provisions in the 

current part 13. Adoption of fax and 

email as additional options in the filing 

and service provisions make these 

administrative proceedings more 

efficient, expeditious, and cost-effective. 

The final rule also provides for use of 

ADR in subpart D and subpart G 

proceedings. ADR is now commonplace 

in Federal courts and other agencies, but 

has not been an option in the current 

part 13 provisions. 

In some instances, the current rules 

do not reflect procedures and practices 

in part 13 that have evolved or been 

refined since the last amendment of 

these rules. This final rule captures 

these procedures and practices. For 

example, it incorporates the informal 

practice of serving the ALJ in subpart G 

civil penalty provisions in addition to 

the filing of documents with FAA’s 

Hearing Docket. The final rule also 

codifies the current practice of treating 

certain motions and orders as notices of 

appeal to the FAA decisionmaker. 

This final rule adds a new 

administrative appeal process for 

emergency orders to which § 13.20 

applies. In the current regulation, the 

only recourse for litigating such an 

order is a direct appeal under 49 U.S.C. 

46110 to a U.S. court of appeals, 

without an opportunity to develop a 

record through the administrative 

process before appellate review. The 

new process balances the 

Administrator’s interest in responding 

to conditions posing an immediate 

threat to public safety with the interest 

of providing subjects of these emergency 

orders a meaningful post-deprivation 

administrative process. 

Finally, many of the changes in this 

final rule address discrepancies between 

similar provisions across part 13 and 

harmonize the rules of practice in 

agency enforcement proceedings. Other 

amendments reword and reorganize 

provisions for clarity and ease of use. 

B. Summary of the NPRM 

The NPRM was published in the 

Federal Register on February 12, 2019 

(84 FR 3614). The comment period for 

the NPRM closed on May 13, 2019. The 

NPRM proposed substantive 

amendments to subparts A, C, D, E, and 

G. Proposed amendments in the NPRM 

include: 

• Streamlining and updating statutory 

and regulatory references, eliminating 

inconsistencies, clarifying existing 

ambiguities, increasing efficiency, and 

improving readability; 

• Amending the required elements of 

proposed consent orders to include a 

withdrawal of any pending request for 

hearing or appeal and an express waiver 

of attorney’s fees and costs; 

• Adding service and filing by fax 

and email in subpart D and subpart G 

proceedings; 

• Amending subparts D and G that 

recognize the role and function of FAA’s 

Office of Adjudication; 

54516 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

2The Pilot’s Bill of Rights, Public Law 112–153, 

126 Stat. 1159 (2012) (codified at 49 U.S.C. 44703 

note). 

3Compliance Philosophy was renamed 

Compliance Program in October 2018. https://

www.faa.gov/about/initiatives/cp/ (last visited 

November 1, 2019). 

4The sections of the Federal Aviation Act and 

Hazardous Materials Transportation Act cited there 

are now codified at 49 U.S.C. 40108, 40113, 40114, 

45302, 46104 and 47122. 

• Clarifying, updating, and aligning 

the provisions in subparts D and G for 

requesting, quashing, modifying, and 

enforcing subpoenas; 

• Adding ADR as an option for 

parties who have requested a subpart D 

or subpart G hearing (which may help 

lower the number of subpart D and 

subpart G hearings); 

• Adding a request for an informal 

conference as an option for replying to 

a hazardous materials notice of 

proposed order of compliance issued 

under subpart E to reflect current 

practice and harmonize the options for 

responding to a notice throughout part 

13; 

• Adding an expedited administrative 

appeal process for emergency orders 

issued under 14 CFR 13.20, including 

orders of compliance and cease and 

desist orders, but not including 

hazardous materials orders that are 

separately addressed in subpart E; and 

• Removing the ‘‘mailing rule,’’ in 

subpart G, that automatically extends 

parties’ deadlines by five days when 

served by mail. Instead, a party 

requiring additional time would need to 

seek an extension of time. 

C. General Overview of Comments 

FAA received comments from nine 

commenters. Commenters included the 

Administrative Conference of the 

United States (ACUS), the Air Line 

Pilots Association (ALPA), the Aircraft 

Owners and Pilots Association (AOPA), 

the Experimental Aircraft Association 

(EAA), and the National Business 

Aviation Association (NBAA). These 

commenters generally supported the 

proposed changes. Some of these 

commenters, however, suggested 

changes, which FAA discusses in more 

detail later in this preamble. 

Additionally, four individuals 

commented. Some of the individuals’ 

comments fell outside the scope of this 

rulemaking, and others are discussed in 

more detail later in this preamble. 

FAA received comments on the 

following general areas of the proposal: 

• FAA’s Authority; 

• Service of Formal Complaints; 

• Date of Service of a Formal 

Complaint; 

• FAA Actions Resulting from Formal 

Complaints; 

• Administrative Actions; 

• Consent Orders; 

• Deposition Authority; 

• Witness Fees; 

• Record on Appeal; 

• Appeals and Judicial Review; 

• Expedited Proceedings; 

• Dispute Resolution; 

• Federal Docket Management System 

and Use of Email for Filing and Service; 

• Time for Responding after Service 

by Mail; 

• Valid Service of Documents; 

• Disqualification/Recusal; 

• Motion for a More Definite 

Statement; and 

• Technological Advances in all 

Adjudications and Proceedings. 

III. Discussion of Public Comments and 

Final Rule 

A. FAA’s Authority 

Current § 13.3(a) notes the 

Administrator’s statutory authority to 

conduct investigations and perform 

related functions, including the 

issuance of investigative subpoenas. 

Current § 13.3(b) contains the delegation 

of the Administrator’s investigative 

powers for routine investigations to 

FAA’s various services and offices for 

matters within their respective areas of 

oversight responsibility. It also delegates 

the Administrator’s powers for 

compulsory processes to certain officials 

in the Office of the Chief Counsel. 

Current § 13.3(c) provides that those 

delegated officials in the Office of the 

Chief Counsel may issue orders of 

investigation per the formal 

investigation process in subpart F. 

Current § 13.3(d) addresses complaints 

about violations of certain airportrelated laws. 

In the NPRM, FAA proposed to revise 

§ 13.3 to update and simplify the 

language by removing the statutory 

citations. FAA also proposed 

reorganizing § 13.3(b) and (c) so that 

§ 13.3(b) would solely address the 

Administrator’s delegation of 

investigative powers for routine 

investigations, and § 13.3(c) would 

pertain only to the Administrator’s 

delegation of powers for certain 

compulsory processes. Further, FAA 

proposed revising § 13.3(c) by listing 

the actions authorized by the statutes 

cited in the second sentence of current 

§ 13.3(b). 

NBAA requested FAA combine 

proposed §§ 13.3(a) and (c) into a single 

paragraph. NBAA stated that proposed 

§ 13.3(a) and (c) are duplicative and 

likely to cause misunderstandings about 

FAA’s authority under proposed § 13.1. 

NBAA further asserted that confusion 

stemming from current § 13.3 has led to 

FAA issuing subpoenas that are not 

appropriately limited. It therefore 

requested that the rule be revised to 

limit the Administrator’s authority to 

issue subpoenas to that provided in 

proposed §§ 13.57, 13.111, and 13.228. 

In support, NBAA stated that full 

procedural protections for challenging 

subpoenas are available in subparts D, 

F, and G. NBAA urged that if FAA 

needs to issue subpoenas, FAA should 

issue an Order of Investigation under 

subpart F. According to NBAA, FAA has 

‘‘unlimited discretion as to the scope of 

inquiry and limits due process while 

obtaining the very evidence FAA will 

then use against the company or 

individual to prosecute the FAA’s case.’’ 

Lastly, NBAA stated its concerns that 

subpoenas issued to individuals are 

contrary to the Pilot’s Bill of Rights 

(PBR),2 while subpoenas issued to 

businesses coerce production of 

evidence contrary to the Compliance 

Philosophy.3

FAA does not agree that § 13.3(a) and 

(c) are duplicative, or that they should 

be combined. Proposed § 13.1 applies to 

all of part 13 and provides broadly that 

the Chief Counsel, each Deputy Chief 

Counsel, and the Assistant Chief 

Counsel for Enforcement may redelegate 

any authority they have under part 13. 

Proposed § 13.3 mentions the powers of 

the Administrator generally with regard 

to investigations. Although proposed 

§ 13.3(a) and (c) both include powers of 

the Administrator, these paragraphs are 

not duplicative. Proposed paragraph (a) 

contains the same list of the 

Administrator’s statutory powers as in 

current § 13.3(a). Proposed paragraph (c) 

captures the delegation in the second 

sentence of current § 13.3(b), pertaining 

to the Administrator’s statutory 

authority with regard to ‘‘compulsory 

processes,’’ to certain officials in the 

Office of the Chief Counsel.4 Rather 

than use the vague description 

‘‘compulsory processes,’’ proposed 

§ 13.3(c) identifies what those processes 

are. Thus, some of the Administrator’s 

powers mentioned in proposed 

paragraph (a) are delegated to certain 

officials in the Office of the Chief 

Counsel by proposed paragraph (c). 

These paragraphs also perform different 

functions; one describes, the other 

delegates. 

Next, FAA does not agree that the 

subpoena authority provided by this 

rule should be limited in the manner 

requested by NBAA. Subpoenas issued 

under proposed § 13.3(c) (and proposed 

§ 13.111 in the context of a formal 

investigation) are an exercise of the 

power of an administrative agency to 

investigate possible violations of and 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54517 

5U.S. v. Morton Salt Co., 338 U.S. 632, 642–43 

(1950). 

6 Id. at 652. 

7PBR, section 2(b)(2)(C) and (D). 

8FAA Order 2150.3C, Chapter 4, ¶ 2.b. 

9See NLRB v. Local 264, Laborers’ Int’l Union of 

N. Am., 529 F.2d 778, 784 (8th Cir. 1976) (noting, 

in finding that NLRB had power to create rule 

establishing date of mailing as date of service, that 

this kind of rule was ‘‘not novel or unique’’ and that 

‘‘it had been explicitly sanctioned’’ in Fed. R. Civ. 

P. 5(b) and several administrative agencies’ 

procedures). 

10See Skydive Myrtle Beach Inc. v. Horry Cty. 

Dept. of Airports, 735 F. App’x 810, 814 (4th Cir. 

2018) (stating that § 46103(b) articulates the proper 

methods of service for proceedings resulting from 

the enforcement of Part A of Subtitle VII of Title 

49); cf. Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 

520 (D.C. Cir. 2011) (holding that informal orders 

of an advisory nature are not subject to the 

procedural requirements in section 46103); Adm’r 

v. Dangberg, NTSB Order No. EA–5694, 2013 WL 

7206204, at *3 (Dec. 18, 2013) (stating that in 

proceedings before National Transportation Safety 

Board, section 46103(b)(2), not Fed. R. Civ. P. 4, 

governs date of service for FAA orders served on 

certificate holders). 

11See Jones v. Flowers, 547 U.S. 220, 226 (2006) 

(in which the Supreme Court stated that certified 

mail service is constitutionally sufficient where it 

is ‘‘reasonably calculated to reach the intended 

recipient when sent’’). 

12 49 CFR 821.7(a)(4) and 821.8(e). 

13Public Law 112–153, 126 Stat. 1159, section 

2(a) (2012) (codified at 49 U.S.C. 44703 note). 

confirm compliance with law.5 When 

FAA seeks to enforce one of these 

investigative subpoenas, it must show 

that ‘‘the inquiry is within the authority 

of the agency, the demand is not too 

indefinite, and the information sought is 

reasonably relevant.’’ 6 So, contrary to 

NBAA’s concerns, FAA’s investigative 

subpoena power is not unlimited, and 

the subject of an investigative subpoena 

has a means to contest it. Finally, 

neither the PBR nor FAA’s Compliance 

Program address investigative 

subpoenas. The PBR provisions NBAA 

refers to in its comment only concern 

Letters of Investigation.7 FAA issues 

investigative subpoenas to obtain 

evidence during an investigation, while 

the decision to take compliance action 

occurs after conducting a thorough 

investigation.8 FAA made no changes as 

a result of this comment. 

Based on the foregoing discussion, 

FAA is not making any changes to its 

proposal for § 13.3 based on NBAA’s 

comments. However, as explained in 

more detail in section III.S. of this 

preamble, the final rule amends 

proposed paragraph (c) of § 13.3 to align 

with the statutory language containing 

the delegated authority. 

B. Service of Formal Complaints 

The current § 13.5 provides that FAA 

will mail a copy of the formal complaint 

to ‘‘each person named in the 

complaint.’’ In the NPRM, FAA 

proposed to change this language so that 

FAA would mail a copy to ‘‘the 

subject(s) of the complaint.’’ 

EAA requested that FAA withdraw 

the proposed change in the language 

describing who would receive copies of 

a formal complaint. EAA stated the 

proposed change would mean that 

witnesses and ‘‘interested parties’’ 

mentioned in a complaint would not be 

entitled to receive a copy. In support of 

its comment, EAA cited the public 

nature of the concerns often raised by 

complaints. 

FAA has consistently mailed copies of 

formal complaints only to those persons 

accused of a violation (‘‘subjects’’). The 

proposed language therefore matches 

FAA’s longstanding practice. FAA finds 

it would be inappropriate to serve 

copies of a formal complaint on anyone 

other than those accused in the 

complaint. FAA uses the formal 

complaint, and answer if filed, to 

determine if there are reasonable 

grounds for an investigation. Even if 

there are reasonable grounds, the 

investigation may not substantiate a 

violation. Serving a copy of a complaint 

on persons whose names appear in the 

complaint, but who are not the 

individual alleged to have committed a 

violation (e.g., a witness), is 

unnecessary, particularly when FAA 

has not yet determined if an 

investigation into the complaint is even 

appropriate. FAA can contact witnesses 

and other relevant parties as part of any 

investigation justified by the complaint. 

Further, release of the formal complaint 

to persons other than the alleged 

violator(s) could violate the Privacy Act, 

as a formal complaint may contain 

personally identifiable information (PII). 

Therefore, FAA has adopted this rule as 

proposed in the NPRM. 

C. Date of Service of a Formal 

Complaint 

Current § 13.5(f) requires that an 

answer to a complaint be filed within 20 

days after service. In the NPRM, FAA 

proposed moving the provisions of 

current § 13.5(f) to § 13.5(e) and adding 

language to clarify that the date of 

service of the complaint is the date of 

mailing. 

EAA requested that FAA not 

implement these proposed changes. 

EAA stated that using the date of 

mailing is contrary to ‘‘due process 

notions of service and notice’’ and fails 

to take into account lost mailings. 

According to EAA, this would conflict 

with the proposed language in 

§ 13.18(e), which uses the date of 

receipt, as well as the PBR and Rule 4 

of the Federal Rules of Civil Procedure. 

Lastly, EAA stated that the proposed 

change would create a presumption of 

service even when there is no 

constructive or actual service. 

Using the date of mailing as the date 

of service is a common provision in 

both an FAA statute and in other 

procedural regulations.9 Under 49 

U.S.C. 46103(b)(1)(C) and (b)(2), the 

Administrator may generally serve a 

person by certified or registered mail, 

with the date of mailing deemed the 

date of service.10 This is consistent with 

due process requirements.11 Current 

and proposed §§ 13.43 and 13.211 

provide that the date of mailing is the 

date of service on a party when a 

document is mailed in subpart D 

hearings. The NTSB’s Rules of Practice 

in Air Safety Proceedings also designate 

the date of mailing to be the date of 

service.12

Concerns regarding PBR are 

misplaced, as the PBR does not apply to 

formal complaints. Section 2, paragraph 

(a) of the PBR states that a ‘‘proceeding 

conducted under subpart C, D, or F of 

part 821 of title 49, Code of Federal 

Regulations, relating to denial, 

amendment, modification, suspension, 

or revocation of an airman certificate, 

shall be conducted, to the extent 

practicable, in accordance with the 

Federal Rules of Civil Procedure and the 

Federal Rules of Evidence.’’ 13 Formal 

complaints are not conducted under 49 

CFR part 821, subpart C, D, or F. No 

other part of the PBR applies to formal 

complaints. FAA is therefore adopting 

the proposed rule without change. 

Finally, EAA’s reliance on proposed 

§ 13.18(e) is misplaced. The proposed 

language in § 13.18(e) permits the 

Administrator to issue an order of 

assessment if an individual does not 

respond to a notice of proposed 

assessment within 15 days of receipt. 

Thus, it neither defines the date of 

service nor conflicts with proposed 

§ 13.5(e). 

D. FAA Actions Resulting From Formal 

Complaints 

Current § 13.5(j) is restated in 

proposed § 13.5(g). In general, it 

provides that if an investigation 

resulting from a formal complaint 

substantiates any allegation of 

wrongdoing, FAA may take enforcement 

action. 

EAA requested FAA revise proposed 

§ 13.5(g) to allow the Administrator to 

issue administrative or compliance 

action when an investigation 

substantiates the allegations in a 

complaint, in accordance with FAA’s 

compliance and enforcement order, 

FAA Order 2150.3C. EAA expressed 

54518 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

14FAA Order 8000.373 (June 26, 2015) (canceled 

by Order 8000.373A in 2018); see generally https:// 

www.faa.gov/about/initiatives/cp/ (last visited July 

7, 2020). 

15Alyeska Pipeline Service Co. v. Wilderness 

Society, 421 U.S. 240 (1975). 

16 28 U.S.C. 2412. 

concern that proposed § 13.5(g), because 

it solely references the issuance of a 

notice of proposed order or other 

enforcement action, could be construed 

to prohibit FAA from taking 

administrative action or compliance 

action. 

FAA did not intend to limit its ability 

to choose an appropriate response to a 

violation of law, including taking 

administrative or compliance action. 

Therefore, in this final rule FAA has 

amended § 13.5(g) to make clear that the 

Administrator may take action in 

accordance with applicable law and 

FAA policy if an investigation 

substantiates allegations set forth in a 

complaint. 

E. Administrative Actions 

Section 13.11 currently states that 

FAA may take administrative action 

rather than legal enforcement action for 

a violation or apparent violation and 

defines such administrative action. In 

the NPRM, FAA proposed updating the 

statutory references and simplifying the 

language for readability, without 

changing the requirements of this 

section. 

EAA and NBAA requested that FAA 

further amend § 13.11 to include 

compliance actions, consistent with 

FAA Order 8000.373A, ‘‘Federal 

Aviation Administrative Compliance 

Program’’ (which created compliance 

actions), as an option for addressing a 

violation. 

The requested changes are 

unnecessary. FAA established the 

Compliance Program, including 

compliance actions, in 2015.14 It is an 

agency policy relying in part on the 

agency’s prosecutorial discretion. 

Accordingly, FAA did not need to 

codify it in its regulations. Instead, FAA 

implemented the policy in FAA Order 

8000.373A and further addressed it in 

FAA Order 2150.3C, ‘‘FAA Compliance 

and Enforcement Program,’’ and FAA 

Order 8900.1, ‘‘Flight Standards 

Information Management System.’’ The 

absence of an express reference to 

compliance actions in part 13 does not 

prevent FAA from taking compliance 

actions where appropriate. 

In addition, despite retaining the 

reference to administrative action, this 

rulemaking, and part 13 generally, 

focuses primarily on two areas: (1) How 

the Office of the Chief Counsel conducts 

legal enforcement actions; and (2) due 

process for those subject to legal 

enforcement action. Compliance actions 

are not legal enforcement actions, and 

the Office of the Chief Counsel does not 

administer compliance actions. 

Therefore, FAA did not change the final 

rule in response to these comments and 

adopts § 13.11 as proposed. 

F. Consent Orders 

Current § 13.13 addresses disposition 

of a legal enforcement action through a 

consent order. Paragraph (b) specifies 

the required contents for a consent 

order. In the NPRM, FAA proposed 

retaining most of the existing 

requirements and adding requirements 

for an express waiver of attorney’s fees 

and costs, and a withdrawal of the 

request for hearing or notice of appeal. 

NBAA requested that FAA amend the 

rule to allow for consent orders that do 

not include all the required terms listed 

in proposed § 13.13(b). In support of 

this request, NBAA expressed concern 

that the proposed changes to § 13.13(b) 

would take away the ability of the 

parties to negotiate consent order terms 

such as fees and costs, or waive these 

requirements in certain circumstances. 

As a matter of practice, FAA’s 

experience is that certain terms of a 

consent agreement are non-negotiable. 

This rule codifies FAA’s expectations, 

for transparency. If the subject of an 

enforcement action wants the benefits of 

a consent order, it must be willing to 

include the terms in § 13.13(b). FAA did 

not change the final rule in response to 

this comment, and adopts this section as 

proposed. 

G. Deposition Authority 

Section 13.37 currently sets forth the 

powers of a hearing officer in subpart D 

hearings, while § 13.205 sets forth the 

powers of an ALJ in subpart G hearings. 

In the NPRM, FAA proposed clarifying 

revisions to these sections, including 

removing language regarding 

depositions from §§ 13.37(e) and 

13.205(a)(3), adding language regarding 

discovery to § 13.37(h), and adding 

language allowing a hearing officer or 

ALJ to take any other authorized action 

as new paragraph (m) in § 13.37 and 

new paragraph (a)(11) in § 13.205. 

EAA requested that FAA preserve the 

language regarding depositions in 

current §§ 13.37(e) and 13.205(a)(3). 

Specifically, EAA stated that despite the 

additional language proposed by FAA, 

these sections would no longer 

expressly empower hearing officers and 

ALJs to take or require depositions. 

FAA does not agree to preserve this 

language. The proposed amendments to 

§§ 13.37(e) and 13.205(a)(3) do not 

eliminate the ability for hearing officers 

or ALJs to require the taking of 

depositions. Hearing officers retain the 

authority under § 13.37 to regulate 

discovery proceedings in subpart D 

hearings. Depositions are included as a 

form of discovery in proposed 

§ 13.53(d). Parties may apply for a 

subpoena to require attendance at a 

deposition under § 13.57. In subpart G 

hearings, parties may serve notices of 

depositions, as described in proposed 

§ 13.220(j)(3), and file motions to 

compel discovery under § 13.220(m). 

Inasmuch as both subparts D and G 

provide for depositions and motions to 

compel, FAA’s proposed changes 

maintain the authority of hearing 

officers and ALJs with regard to 

depositions. Additionally, as EAA 

recognized, the proposed rule includes 

a catch-all power for hearing officers 

and ALJs to regulate depositions. FAA 

did not change the final rule in response 

to this comment and adopts the 

deposition authority as proposed. 

H. Witness Fees 

Current §§ 13.57 and 13.229 address 

witness fees in subpart D and subpart G 

hearings, respectively. Section 13.57(d) 

allows a hearing officer to shift the 

burden of paying a witness from the 

party requesting the witness’s 

appearance to FAA under certain 

conditions. Section 13.229(a) requires 

the party requesting the witness’s 

appearance to pay witness fees unless 

otherwise authorized by the ALJ. In the 

NPRM, FAA proposed, among other 

changes, removing these fee-shifting 

provisions. 

EAA requested that FAA retain the 

fee-shifting authority in § 13.57(d) and 

incorporate it into § 13.229. In support 

of this request, EAA stated that FAA 

enjoys a financial advantage over 

respondents. 

As explained in the NPRM, the 

current fee-shifting authority has not 

been used, is not supported by any 

identified statutory authority, and runs 

contrary to the American Rule 15 that 

parties pay their own costs. Parties 

seeking to recover fees and expenses in 

subpart G hearings may still pursue an 

award under the Equal Access to Justice 

Act of 1980 (‘‘EAJA’’) 16 and FAA’s 

Rules Implementing the EAJA (14 CFR 

part 14). FAA did not change the final 

rule in response to this comment, and 

adopts §§ 13.57(d) and 13.229 as 

proposed. 

I. Record on Appeal 

Current § 13.63 describes the contents 

of the record in a subpart D hearing. The 

NPRM proposed redesignating the 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54519 

17 49 CFR 821.55(b). 

existing provisions as § 13.63(a) and 

adding new provisions at § 13.63(b) and 

(c). 

EAA noted that the proposed 

amendment to § 13.63(a) may 

unintentionally exclude from the appeal 

record exhibits that are offered at the 

subpart D hearing but not admitted into 

evidence. The commenter added that 

the proposed language was inconsistent 

with proposed § 13.225 in subpart G. 

FAA agrees that evidence offered as 

exhibits at a hearing but not admitted 

into evidence should still be a part of 

the record on appeal, as provided in the 

proposed subpart G provisions. FAA has 

amended § 13.63(a) in this final rule to 

clarify that the record on appeal will 

include evidence proffered but not 

admitted at the hearing, consistent with 

proposed §§ 13.225 and 13.230(a). 

J. Appeals and Judicial Review 

In the NPRM, FAA proposed adding 

a new § 13.65 to consolidate all 

provisions for appeals, motions for 

reconsideration, and petitions for 

judicial review for subpart D hearings 

into one section. Proposed § 13.65(e) 

delineates the authority of the Director 

of the Office of Adjudication as advisor 

to the Administrator for appeals. 

EAA requested that FAA add a 

provision requiring notice and an 

opportunity for review. In support, EAA 

expressed concern that the proposed 

§ 13.65(e) substantively expands the 

power of the Office of Adjudication. 

The proposed revisions do not expand 

the power of the Office of Adjudication. 

Rather, § 13.65(e) merely codifies 

powers previously delegated to the 

Director of the Office of Adjudication by 

the FAA Administrator. Additional 

information on this delegation is 

contained in the Notice of Delegation of 

Authority published in the Federal 

Register on April 26, 2016 (81 FR 

24686). FAA did not change the final 

rule in response to this comment, and 

adopts § 13.65(e) as proposed. 

K. Expedited Proceedings 

In the NPRM, FAA proposed adding 

a new § 13.67 to provide an expedited 

hearing and appeal process for 

emergency proceedings requested in 

accordance with § 13.20(d). New 

§ 13.67(a) gives accelerated deadlines 

for developing the record, commencing 

the hearing, and issuing the hearing 

officer’s decision. 

EAA requested that FAA change the 

time for respondents to file an answer 

from 3 days to 10 days. In support of 

this request, EAA noted that three days 

is not enough time for a party to 

evaluate the complaint, secure counsel, 

and file an answer. EAA further 

distinguished the 3 days in the 

proposed rule from the 10 days allowed 

in proceedings before the National 

Transportation Safety Board (NTSB) 

under 49 CFR 821.53. 

FAA finds that three days to provide 

an answer is reasonable considering an 

expedited hearing must commence 

within 40 days under proposed 

§ 13.67(a)(6). The 40-day deadline is 

driven by the 80-day period during 

which FAA’s time-limited (or 

temporary) emergency order is effective. 

The process in § 13.67 allows a 

respondent to have both a hearing and 

an appeal to the Administrator 

completed prior to the expiration of the 

80-day time-limited immediately 

effective order. The subject of the action 

will already be familiar with the 

complaint, as proposed § 13.67(a)(2) 

provides that the Administrator files a 

copy of the notice of proposed action as 

the complaint. Under proposed 

§§ 13.20(d)(3) and 13.67(a)(2) and (3), 

the subject has 10 days from service of 

the notice of proposed action to appeal 

from the notice by requesting a hearing, 

FAA has 3 days after the receipt of the 

request for a hearing to file the notice as 

its complaint, and the subject has 3 days 

after receipt of the complaint to file an 

answer to the complaint. Therefore, a 

subject may have as many as 16 days (or 

more, considering holidays or weekend 

days that may extend deadlines per 

proposed § 13.45(a)) from first seeing 

the allegations in which to decide 

whether to secure counsel and to file an 

answer. FAA finds this provides 

adequate notice and time for subjects to 

secure counsel. 

Additionally, the commenter’s 

comparison to the NTSB’s 10-day period 

for filing an answer is not germane, as 

that longer filing period only applies to 

answers filed in non-emergency NTSB 

appeals. For emergency appeals, the 

NTSB provides five days to answer, 

which is comparable to the period in 

subpart D.17 The proposed § 13.67(a)(3) 

deadline is necessarily shorter than for 

actions that are not immediately 

effective, as the expedited process is 

designed to finish within 80 days. 

Additionally, the commenter’s 

comparison to 49 CFR 821.53 is not 

germane as that provision does not 

address the time for filing an answer, 

but rather the time for an appeal of 

FAA’s emergency order to the NTSB. 

FAA did not change the final rule in 

response to this comment, and adopts 

the provisions on expedited proceedings 

as proposed. 

L. Dispute Resolution 

In the NPRM, FAA proposed adding 

new §§ 13.69 and 13.236 to provide 

parties pursuing an appeal under 

subpart D or G, respectively, an 

opportunity to resolve the matter 

through mediation. Both sections 

proposed that any mediator used be 

mutually acceptable to the parties and 

be prohibited from participating in a 

subsequent adjudication of the same 

matter. 

Comment on Separation of Functions 

NBAA requested that FAA revise the 

proposed rules to clarify that the Office 

of Adjudication will not be involved in 

mediation for any matter for which that 

Office could serve as an advisor to the 

Administrator. In support of this 

request, NBAA expressed concern about 

insufficient separation of functions if 

mediators in the Office of Adjudication 

provide ADR and then subsequently 

serve as an advisor to the Administrator 

in the same matter. NBAA further noted 

that since the Chief Counsel’s office 

reorganized, field attorneys who handle 

civil penalty cases now report directly 

to the Assistant Chief Counsel for 

Enforcement, who is co-located in 

Washington, DC with the Director of the 

Office of Adjudication. FAA infers from 

this comment that NBAA is concerned 

that their proximity will erode the 

functional, organizational, and ethical 

boundaries between litigants, 

adjudicators, and mediators. NBAA 

requested that FAA make a similar 

clarification to the commercial space 

transportation regulations in 14 CFR 

part 406. 

FAA declines to make the requested 

clarifications. Both §§ 13.69 and 13.236 

already prohibit a mediator from 

participating in the adjudication of the 

same case. In addition, these rules do 

not prevent the parties from using a 

mediator from a source outside the 

Office of Adjudication. Regarding 

NBAA’s request to amend the 

commercial space regulations in 14 CFR 

parts 400 through 460, this request is 

outside the scope of this rulemaking, 

which is limited to 14 CFR part 13. FAA 

did not make any changes to the final 

rule in response to this comment. 

ACUS Guidance Comment 

ACUS noted that the proposed rules 

provide for the use of mediation and 

make settlement procedures more 

flexible for both FAA and opposing 

parties. While ACUS did not request a 

specific change to the language in 

§§ 13.69 and 13.236, it suggested that 

FAA consider ACUS guidance materials 

54520 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

18 DOT Statement of Policy on Alternative 

Dispute Resolution (67 FR 40367, June 12, 2002). 

and model rules on ADR and settlement 

procedures. 

FAA reviewed ACUS’s comment and 

finds that the proposed ADR provisions 

are consistent with the Administrative 

Dispute Resolution Act of 1996 and the 

guidance materials and model rules 

cited by ACUS. FAA did not change the 

final rule in response to this comment. 

Comment on Superfluity and Choice of 

Mediator 

An individual commenter stated that 

the dispute resolution provisions in 

proposed §§ 13.69 and 13.236 are 

superfluous because DOT already 

encourages parties to use mediation.18

The commenter requested that FAA’s 

rule require only neutral, third-party 

mediators instead of in-house 

mediators, asserting that in-house 

mediators may be unfairly biased in 

favor of the DOT and FAA. 

Regarding the individual commenter’s 

statement that the new ADR provisions 

are superfluous given DOT’s ADR policy 

statement, FAA explained in the NPRM 

that the proposed ADR provisions 

complement the DOT policy statement 

by codifying the use of voluntary 

mediation in FAA’s regulations. FAA 

believes that this will ensure that parties 

are aware of their option to use 

mediation as they consider the 

overarching enforcement process 

described in subpart D. Contrary to the 

commenter’s interpretation, these rules, 

which are adopted as proposed, do not 

require the use of FAA, DOT, or other 

government-employee mediators. 

Rather, the rules provide that the parties 

may engage the services of any mutually 

acceptable mediator. 

M. Federal Docket Management System 

and Use of Email for Filing and Service 

Current § 13.210 describes where and 

how to file documents for subpart G 

matters, as well as how to access 

documents filed with the Hearing 

Docket via the internet. It also defines 

the date of filing. In the NPRM, FAA 

proposed changes to § 13.210 to update 

addresses, provide for fax and email 

filing, and describe the date of filing for 

each method of filing. FAA also 

proposed to remove the provision in 

current paragraph (e) allowing 

accessibility to all documents in the 

Hearing Docket through the Federal 

Docket Management System (FDMS). In 

the preamble of the NPRM, FAA 

explained its intention to continue to 

provide the Administrator’s final 

decisions on appeal, with an index, on 

its website. 

EAA, NBAA, and an individual 

commenter requested that FAA 

continue using either FDMS or another 

electronic system for posting decisions 

and other filings. EAA and the 

individual commenter stated that the 

public should have access to all the 

materials currently available on FDMS, 

and its access should not be limited to 

final decisions available through FAA’s 

website as proposed in the NPRM. The 

individual commenter also stated, that 

under the proposed rule, the public 

would have to subscribe to paid online 

reporting services for the materials 

currently available on FDMS, and 

suggested that this raises due process 

concerns. 

NBAA noted the only reason given for 

the proposed change is administrative 

efficiency. NBAA stated the public 

would be better served by having the 

final decisions available in the same 

location as all U.S. Government 

documents instead of on FAA’s website. 

Both NBAA and EAA stated that FAA’s 

reason for the proposed change— 

administrative efficiency—does not 

outweigh the inefficiency and loss of 

benefit to the public that will result 

from the proposed change. Lastly, ACUS 

requested that FAA consider its 

guidance materials on electronic case 

management and providing access to 

adjudicative documents. 

FAA’s decision to discontinue use of 

FDMS balances costs and benefits to 

both FAA and the public associated 

with the change. Contrary to NBAA’s 

assertion, FDMS is not where all U.S. 

Government documents are currently 

stored. Rather, FDMS is a centralized 

tool created and used mainly for 

rulemaking and public comments on 

rulemaking rather than for judicial 

dockets. 

Further, while FDMS is suitable for 

receiving comments on rulemaking 

documents, it is different from systems 

like the Federal judiciary’s Public 

Access to Court Electronic Records 

(PACER) and Case Management/ 

Electronic Case Filing System (CM/ 

ECF), or the Government Accountability 

Office’s Electronic Protest Docketing 

System (EPDS). Systems such as CM/ 

ECF and EPDS require parties to ensure 

private information is not included in 

documents filed into the case docket. 

Current § 13.210 requires parties to file 

documents by sending them to the 

Hearing Docket Clerk. The Hearing 

Docket clerk, in turn, must upload the 

documents to FDMS so that they are 

publicly accessible pursuant to current 

§ 13.210(e). This places the 

responsibility on FAA to ensure that it 

does not release private, proprietary, or 

otherwise sensitive information in 

documents made publicly available. As 

a result, the FAA Hearing Docket clerk 

must review each filed paper document 

for sensitive information, create a 

version of each document that is 

publicly releasable, and submit the 

releasable version to FDMS staff for 

uploading into the system. Thus, using 

FDMS does not expedite filing; rather, it 

adds delay due to the time required for 

processing and creates an administrative 

burden on FAA. 

Moreover, as ACUS recognizes, FAA 

may not post documents that are 

prohibited from public release under the 

Privacy Act, or exempted from release 

under the Freedom of Information Act 

(FOIA), meaning that what FAA posts 

on FDMS is only an incomplete 

representation of the official, paper 

docket. FAA can thoroughly review a 

document for Privacy Act and FOIA 

issues before releasing it in paper to 

each specific requester, whereas FDMS 

makes filings available to anyone who 

can access the internet. 

As explained in the NPRM, the 

agency is mindful of the public’s 

interest in cost-effective electronic filing 

and access to materials. Electronic 

docket systems such as PACER, CM/ 

ECF, and EPDS impose user fees for 

electronic filing and access to 

documents. While FAA proposed to 

eliminate public internet access to the 

entire docket, the proposed changes do 

allow for electronic filing through email 

and fax without charging fees. 

Additionally, the Office of Adjudication 

will continue to publish and index 

Decisions and Orders of the FAA 

Administrator on its website, also 

without requiring a fee. Thus, FAA 

determined that the benefits provided to 

parties and to FAA outweigh any 

inefficiencies created by the proposed 

rule. FAA did not change the final rule 

in response to this comment. 

Comment Urging Mandatory Email 

Filing 

An individual commenter urged FAA 

to require email filing and email service 

for all documents in subpart G cases, 

rather than permitting the parties to 

choose their method of filing and 

service with the option of using email. 

FAA declines to impose this 

requirement. By giving parties the 

choice to file and serve documents by 

email, rather than requiring it, FAA is 

permitting more efficient, expeditious, 

and cost-effective filing and service, 

without creating an undue hardship on 

parties lacking access to the internet. 

FAA did not change the final rule in 

response to this comment. 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54521 

N. Time for Responding After Service by 

Mail 

Section 13.211(e) currently allows 

parties in civil penalty proceedings to 

add five additional days to the 

prescribed period they have to respond 

to documents that are served by mail. In 

the NPRM, FAA proposed eliminating 

these five additional days to respond 

after service by mail. 

AOPA, EAA, and an individual 

commenter requested FAA retain the 

‘‘five-day mailing rule’’ by preserving 

the additional time provided in current 

§ 13.211(e) to respond to documents 

served by mail. AOPA stated the five 

additional days adequately compensates 

for possible delays involved with 

service by mail. AOPA suggested that 

requiring a party to seek an extension of 

time if needed, as FAA explained in the 

NPRM, is less efficient and creates 

additional workload. 

FAA agrees with the comments on the 

five-day mailing rule. This final rule 

restores the additional time provision to 

subpart G in § 13.211(g) and adds it to 

subpart D in § 13.45(b) to maintain 

consistency between both subparts. The 

final rule also updates the paragraph 

designation in § 13.45 to reflect the 

addition of the five-day mailing rule. 

O. Valid Service of Documents 

Section 13.211(g) currently defines 

‘‘valid service’’ of documents in civil 

penalty proceedings. Current § 13.211(h) 

provides what constitutes a 

‘‘presumption of service.’’ FAA 

proposed revising the provision on valid 

service and moving it from § 13.211(g) 

to § 13.211(f), as well as removing the 

presumption of service provisions in 

paragraph (h) as duplicative of the 

instructions for valid service. 

EAA requested that FAA retain the 

presumption of service provision in 

current § 13.211(h). EAA asserted that 

the language deeming service valid in 

proposed paragraph (f) is significantly 

different from the current presumption 

of service language, which requires an 

acknowledgement of receipt. In 

addition, EAA asserted that FAA’s 

proposed changes conflict with notions 

of due process and fairness, the PBR, 

and the intent of Fed. R. Civ. P. 4. 

FAA agrees with the comments that 

the language deeming service valid in 

proposed paragraph (f) is significantly 

different from the current presumption 

of service language, which requires an 

acknowledgement of receipt. This final 

rule restores the provision defining 

‘‘presumption of service’’ to § 13.211(h). 

P. Disqualification/Recusal 

Sections 13.39, 13.205(c), and 

13.218(f)(6) address the disqualification 

and recusal of administrative 

adjudicators under their respective 

subparts. In the NPRM, FAA did not 

propose any changes to these 

regulations. 

ACUS requested that FAA consider 

ACUS’s guidance and its model rule on 

ALJ/hearing officer recusal. In support, 

ACUS stated that recusal is important 

for maintaining the integrity of an 

adjudication, protects the parties, and 

promotes public confidence in agency 

adjudication. 

In light of the recommendations on 

Recusal Rules for Administrative 

Adjudicators (84 FR 2139, Feb. 6, 2019) 

cited in ACUS’s comment, the agency 

notes that subpart D does not have 

procedural recusal provisions akin to 

those in § 13.205. As a result, FAA has 

amended this final rule by adding 

language to § 13.39 and proposed 

§ 13.218(f)(6) to address motions for 

disqualification consistent with ACUS’s 

guidance and model rule. This 

amendment, however, does not include 

a provision for interlocutory appeal of a 

disqualification decision, because 

subpart D (unlike subpart G) does not 

currently provide for interlocutory 

appeals. Rather, a party may appeal a 

disqualification decision under the 

general appeal provisions in proposed 

§§ 13.65 and 13.67(b). FAA has not 

amended the subpart G disqualification 

provisions in proposed § 13.205(c), as 

the proposed language provides more 

detail than the guidance and model rule 

cited by the commenter. 

Q. Motion for a More Definite Statement 

Current § 13.218(f)(3) describes how 

to file a motion for a more definite 

statement, whether by the complainant 

or respondent. In the NPRM, FAA 

proposed only grammatical and stylistic 

changes to § 13.218(f)(3). 

AOPA and an individual commenter 

requested that FAA amend 

§ 13.218(f)(3)(i) and (ii) to make them 

consistent with regard to the 

consequences of a party’s failure to 

supply a more definite statement. Both 

AOPA and the individual commenter 

noted a discrepancy between proposed 

§ 13.218(f)(3)(i) and proposed 

§ 13.218(f)(3)(ii) in how an ALJ would 

handle a motion for a more definite 

statement depending on whether it is 

made by the complainant (FAA) or 

respondent. Proposed rule 

§ 13.218(f)(3)(i) provides that if the 

complainant fails to provide a more 

definite statement, the ALJ ‘‘may’’ strike 

the offending statement. Proposed 

§ 13.218(f)(3)(ii), however, states that if 

the respondent fails to provide a more 

definite statement, the ALJ ‘‘must’’ 

strike the offending statement. AOPA 

noted that the current regulations 

provide that the ALJ ‘‘shall’’ strike the 

offending statement regardless of which 

party failed to comply. AOPA requested 

that both provisions provide that the 

ALJ ‘‘may’’ strike the offending 

statement. 

FAA has changed the final rule in 

response to this comment. FAA 

intended for both provisions to be 

changed from ‘‘shall’’ to ‘‘may’’ and has 

revised § 13.218(f)(3)(ii) to correct the 

typographical error in the NPRM. 

R. Technological Advances in All 

Adjudications and Proceedings 

ACUS requested that FAA consider 

ACUS’s guidance and model rules for 

incorporating technology advances into 

discovery, case management, and 

hearings. 

FAA has considered ACUS’s guidance 

and model rules. However, the 

requested changes, including 

recommendations to add video hearings 

and use complex case management 

systems, go beyond the scope of this 

rulemaking. The rules do not prevent 

the use of advanced technology in 

managing a case. Video systems for 

hearings, for example, might be 

appropriate on a case-by-case basis or 

for a class of cases. If necessary, these 

matters can be addressed by standing 

orders issued under subpart D or 

specific orders of an ALJ or hearing 

officer. FAA did not change the final 

rule in response to this comment. 

S. Other Differences Between the NPRM 

and the Final Rule 

The final rule contains the following 

additional changes to correct style, 

format, inconsistencies, and 

typographical errors, including: 

• Changing the verb tense in § 13.3(b) 

to provide that the Administrator ‘‘has 

delegated’’ certain authority, rather than 

‘‘may delegate’’ authority, to more 

closely reflect the verb tense in the 

current rule. 

• Reformatting § 13.3(c) to enumerate 

the list of delegated authority from the 

Administrator in separate paragraphs as 

§ 13.3(c)(1) through (4), and adding a 

delegation for petitioning a court of the 

United States to enforce a subpoena or 

order as § 13.3(c)(5). FAA intended the 

proposed list of delegated authority in 

the NPRM to mirror the authority 

provided by the statutes cited in current 

§ 13.3(b), which include the authority to 

petition a court of the United States to 

enforce a subpoena or order. 

• Inserting ‘‘formal’’ to modify 

‘‘investigations’’ in § 13.3(c)(2) as the 

Agency did not intend for this final rule 

to change the nature or scope of the 

existing delegations in § 13.3. 

54522 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

19See 1 CFR 21.11. 

• Replacing the term ‘‘subparagraph’’ 

in § 13.15(c)(3) with ‘‘paragraph’’ for 

consistency with the organizational 

structure used in the Code of Federal 

Regulations.19

• Removing ‘‘under 49 U.S.C. 46103’’ 

from § 13.16(g) as the reference is 

unnecessary, and to make the service 

provisions in § 13.16(f) and (g) align. 

• Changing § 13.17(a) from passive 

voice to active voice for readability. 

• Adding the Chief Counsel to the 

delegation of authority in § 13.18(c) as 

provided in current § 13.18(c), as the 

omission was unintentional. 

• Removing citation to 49 U.S.C. 

46301(g) in § 13.18(h), as it does not 

apply to cases covered by § 13.18 and is 

not cited in current § 13.18(h). 

• Adding a ‘‘will’’ to § 13.19(b)(1) to 

make clear that the notice issuance is 

mandatory. 

• Replacing ‘‘determination of an 

emergency’’ with ‘‘determination that 

safety in air transportation or air 

commerce requires the immediate 

effectiveness of an order’’ in § 13.19(d) 

to conform to the language in the 

applicable statutory provisions. 

• Adding headings to §§ 13.16(a) and 

(b), 13.20(a) and (b), 13.43(c)(3), 

13.53(a), and 13.57(a) through (c) per 

Federal Register styling requirements. 

• Correcting the cross-reference to 

subpart D in § 13.35(a). 

• Replacing the reference to ‘‘an 

order’’ in § 13.63(a) with ‘‘the hearing 

officer’s decision’’ and reformatting 

§ 13.63(a) into § 13.63(a)(1), (2), and (3). 

• Removing the cross-reference to 

‘‘§ 13.25’’ in § 13.67(c) because 14 CFR 

13.25 was removed. 

• Removing the extraneous qualifier 

‘‘of this part’’ from cross-references in 

§§ 13.101, 13.201, and 13.202. 

• Removing the ‘‘(a)’’ paragraph level 

in § 13.201, as there is only one 

paragraph in that section. 

• Streamlining the heading in 

§ 13.205(b) by changing it from 

‘‘Limitations on the power of the 

administrative law judge’’ to 

‘‘Limitations.’’ 

• Removed ‘‘on or after August 2, 

1990, and’’ from § 13.208(d) as it is no 

longer necessary. 

• Replacing ‘‘Portable Document 

Format’’ with ‘‘PDF’’ in § 13.210(h). 

• Adding the implied ‘‘Not later 

than’’ to § 13.228(a)(1) and (2), for 

grammatical completeness. 

• Removing ‘‘unless otherwise agreed 

by the parties’’ in § 13.233(c) and (e), as 

duplicative of the exceptions stated in 

§ 13.233(c)(1) and (2) and (e)(1) and (2). 

Removing the duplicative ‘‘may’’ from 

§ 13.233(j). 

• Updating §§ 13.16(g)(2), 13.17(e)(2), 

13.18(a)(2), 13.19(b) introductory text 

and (b)(1), 13.45(a), 13.47, 13.49(a)(1) 

and (e), 13.57(b), 13.61, 13.65(d)(1) and 

(e)(1)(vii), 13.69(a), 13.75(b), 13.101(b), 

13.123(b), 13.127, 13.207, 13.208(d)(3), 

13.213(a), 13.217(f)(1), 13.218(f), 

13.219(d), 13.220(i)(2), (k), (l)(1), and 

(n), 13.221, 13.222(a) and (b), 13.223, 

13.232(a), 13.233(d)(1), (h), (j) 

introductory text, and (j)(1), 13.234(a), 

13.235(d), and 13.236 to correct 

typographical errors, improve 

readability, and for stylistic consistency. 

T. Redesignation Table 

Current section New section 

Subpart A: 

N/A ....................... § 13.1. 

§ 13.1 .................... § 13.2. 

§ 13.3 .................... § 13.3. 

§ 13.5(a) ............... § 13.5(a). 

§ 13.5(b) ............... § 13.5(b). 

§ 13.5(c) ................ § 13.5(c). 

§ 13.5(d) ............... § 13.5(d). 

§ 13.5(e) ............... Removed. 

§ 13.5(f) ................ § 13.5(e). 

§ 13.5(g) ............... § 13.5(f). 

§ 13.5(h) ............... § 13.5(f)(1). 

§ 13.5(i) ................. § 13.5(f)(2). 

§ 13.5(j) ................. § 13.5(g). 

§ 13.5(k) ................ § 13.5(h). 

§ 13.7 .................... § 13.7. 

Subpart B: 

§ 13.11 .................. § 13.11. 

Subpart C: 

§ 13.13(a) ............. § 13.13(a). 

§ 13.13(b) ............. § 13.13(b). 

§ 13.13(c) .............. § 13.13(b)(5). 

§ 13.14 .................. Removed. 

§ 13.15(a) ............. § 13.15(a). 

§ 13.15(b) ............. § 13.15(b). 

§ 13.15(c)(1) ......... § 13.15(c)(1). 

§ 13.15(c)(2) ......... § 13.15(c)(2)(ii), (c)(3), (c)(4). 

§ 13.15(c)(3) ......... § 13.15(c)(2)(i). 

§ 13.15(c)(4) ......... § 13.15(c)(2)(i). 

§ 13.15(c)(5) ......... § 13.15(c)(5). 

§ 13.16(a)–(c) ....... § 13.16(a)–(c). 

§ 13.16(d) ............. § 13.16(e). 

§ 13.16(e) ............. § 13.16(d). 

§ 13.16(f)–(j) ......... § 13.16(f)–(j). 

§ 13.16(k) .............. § 13.15(l). 

§ 13.16(l) ............... § 13.15(m). 

§ 13.16(m) ............ § 13.15(k). 

§ 13.16(n) ............. § 13.16(n). 

§ 13.17 .................. § 13.17. 

§ 13.18 .................. § 13.18. 

§ 13.19(a)–(b) ....... § 13.19(a). 

§ 13.19(c) .............. § 13.19(b). 

§ 13.19(d) ............. Removed. 

N/A ....................... § 13.19(c). 

N/A ....................... § 13.19(d). 

§ 13.20(a) ............. § 13.20(a). 

§ 13.20(b) ............. § 13.20(b). 

§ 13.20(c) .............. § 13.20(c)(1). 

§ 13.20(d) ............. § 13.20(c)(2). 

§ 13.20(e) ............. § 13.20(c)(4). 

§ 13.20(f) .............. §§ 13.20(c)(3), 13.63(b). 

§ 13.20(g) ............. § 13.65(a). 

§ 13.20(h) ............. § 13.65(b). 

§ 13.20(i) ............... § 13.65(c). 

§ 13.20(j) ............... § 13.65(d). 

§ 13.20(k) .............. § 13.45(c). 

§ 13.20(l) ............... § 13.20(f). 

§ 13.20(m) ............ Removed. 

N/A ....................... § 13.20(e). 

§ 13.21 .................. Removed. 

§ 13.23 .................. Removed. 

§ 13.25 .................. Removed. 

§ 13.27 .................. Removed. 

Current section New section 

§ 13.29 .................. Removed. 

Subpart D: 

§ 13.31 .................. § 13.31. 

§ 13.33 .................. § 13.33(b). 

N/A ....................... § 13.33(a), (c). 

§ 13.35(a) ............. § 13.35(a), § 13.43(c). 

§ 13.35(b) ............. § 13.35(a). 

§ 13.35(c) .............. § 13.35(c). 

§ 13.35(d) ............. § 13.35(b). 

§ 13.37(a)–(j) ........ § 13.37(a)–(j). 

N/A ....................... § 13.37(k). 

§ 13.37(k) .............. § 13.37(l). 

N/A ....................... § 13.37(m). 

§ 13.39 .................. § 13.39. 

N/A ....................... § 13.41. 

§ 13.43(a) ............. § 13.43(a). 

N/A ....................... § 13.43(b)–(d), (e). 

§ 13.43(b) ............. § 13.43(f). 

§ 13.43(c) .............. § 13.43(g). 

§ 13.43(d) ............. § 13.43(h). 

§ 13.43(e) ............. § 13.43(h). 

§ 13.44 .................. § 13.45(a). 

N/A ....................... § 13.45(b). 

§ 13.44(b) ............. § 13.45(c), (d). 

§ 13.45 .................. § 13.47(b). 

§ 13.47 .................. § 13.47(a). 

§ 13.49(a) ............. § 13.49(a)(1). 

N/A ....................... § 13.49(b). 

§ 13.49(c) .............. § 13.49(a)(2). 

§ 13.49(d) ............. § 13.49(c). 

§ 13.49(e) ............. § 13.49(d). 

§ 13.49(f) .............. § 13.49(e). 

§ 13.49(g) ............. Removed. 

N/A ....................... § 13.49(g). 

§ 13.49(h) ............. § 13.49(h). 

§ 13.51 .................. § 13.51. 

§ 13.53 .................. § 13.53(d). 

N/A ....................... § 13.53(a)–(c), (e). 

§ 13.55 .................. § 13.55. 

§ 13.57(a) ............. § 13.57(a). 

§ 13.57(b) ............. § 13.57(b). 

§ 13.57(c) .............. § 13.57(c). 

§ 13.57(d) ............. Removed. 

N/A ....................... § 13.57(d). 

N/A ....................... § 13.57(e). 

N/A ....................... § 13.57(f). 

§ 13.59(a) ............. § 13.59(a). 

§ 13.59(b) ............. § 13.59(b). 

§ 13.59(c) .............. § 13.49(f). 

§ 13.61 .................. § 13.61. 

§ 13.63 .................. § 13.63(a). 

N/A ....................... § 13.63(b)–(c). 

N/A ....................... § 13.65. 

N/A ....................... § 13.67. 

N/A ....................... § 13.69. 

Subpart E: 

§ 13.71 .................. § 13.71. 

§ 13.73 .................. § 13.73. 

§ 13.75 .................. § 13.75. 

§ 13.77 .................. § 13.77. 

§ 13.79 .................. § 13.63(b). 

§ 13.81(a) ............. § 13.81(a). 

§ 13.81(b) ............. Removed. 

§ 13.81(c) .............. § 13.81(b). 

§ 13.81(d) ............. § 13.81(c). 

§ 13.81(e)–(g) ....... Removed. 

§ 13.83(a) ............. § 13.65(a). 

§ 13.83(b) ............. Removed. 

§ 13.83(c) .............. Removed. 

§ 13.83(d) ............. § 13.65(b). 

§ 13.83(e) ............. § 13.65(c). 

§ 13.83(f) .............. Removed. 

§ 13.83(g) ............. § 13.65(d). 

§ 13.83(h) ............. Removed. 

§ 13.85 .................. Removed. 

§ 13.87 .................. § 13.45(b)–(c). 

Subpart F: 

§ 13.101 ................ § 13.101. 

§ 13.103 ................ § 13.103. 

§ 13.105 ................ § 13.105. 

§ 13.107 ................ § 13.107. 

§ 13.109 ................ § 13.109. 

§ 13.111 ................ § 13.111. 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54523 

20https://www.uscourts.gov/services-forms/fees/ 

court-appeals-miscellaneous-fee-schedule. 

Current section New section 

§ 13.113 ................ § 13.113. 

§ 13.115 ................ § 13.115. 

§ 13.117 ................ § 13.117. 

§ 13.119 ................ § 13.119. 

§ 13.121 ................ § 13.121. 

§ 13.123 ................ § 13.123. 

§ 13.125 ................ § 13.125. 

§ 13.127 ................ § 13.127. 

§ 13.129 ................ § 13.129. 

§ 13.131 ................ § 13.131. 

Subpart G: 

§ 13.201 ................ § 13.201. 

§ 13.202 ................ § 13.202. 

§ 13.203 ................ § 13.203. 

§ 13.204 ................ § 13.204. 

§ 13.205(a)(1)–(9) § 13.205(a)(1)–(9). 

§ 13.205(b) ........... § 13.205(a)(10), (b). 

N/A ....................... § 13.205(a)(11). 

§ 13.205(c) ............ § 13.205(c). 

§ 13.206 ................ § 13.206. 

§ 13.207 ................ § 13.207. 

§ 13.208 ................ § 13.208. 

§ 13.209(a) ........... § 13.209(a). 

§ 13.209(b) ........... § 13.209(a)–(b), (d), 

§ 13.210. 

§ 13.209(c) ............ § 13.209(c). 

§ 13.209(d) ........... § 13.209(d). 

§ 13.209(e) ........... § 13.209(e). 

§ 13.209(f) ............ § 13.209(f). 

§ 13.210(a) ........... § 13.210(a), (b), (c), (g). 

§ 13.210(b) ........... § 13.210(d). 

§ 13.210(c) ............ § 13.210(e). 

§ 13.210(d) ........... § 13.210(f). 

§ 13.210(e) ........... Removed. 

N/A ....................... § 13.210(h). 

§ 13.211(a) ........... § 13.211(a). 

§ 13.211(b) ........... § 13.211(c). 

§ 13.211(c) ............ § 13.211(d). 

§ 13.211(d) ........... § 13.211(e). 

§ 13.211(e) ........... § 13.211(g). 

§ 13.211(f) ............ § 13.211(b). 

§ 13.211(g) ........... § 13.211(f). 

§ 13.211(h) ........... § 13.211(h). 

§ 13.212 ................ § 13.212. 

§ 13.213 ................ § 13.213. 

§ 13.214 ................ § 13.214. 

§ 13.215 ................ § 13.215. 

§ 13.216 ................ § 13.216. 

§ 13.217 ................ § 13.217. 

§ 13.218 ................ § 13.218. 

N/A ....................... § 13.218(f)(7). 

§ 13.219 ................ § 13.219. 

§ 13.220 ................ § 13.220. 

§ 13.221 ................ § 13.221. 

§ 13.222 ................ § 13.222. 

§ 13.223 ................ § 13.223. 

§ 13.224 ................ § 13.224. 

§ 13.225 ................ § 13.225. 

§ 13.226 ................ § 13.226. 

§ 13.227 ................ § 13.227. 

§ 13.228 ................ § 13.228. 

§ 13.229 ................ § 13.229. 

§ 13.230 ................ § 13.230. 

§ 13.231 ................ § 13.231. 

§ 13.232(a) ........... § 13.232(a). 

§ 13.232(b) ........... § 13.232(b). 

§ 13.232(c) ............ § 13.232(c). 

§ 13.232(d) ........... § 13.232(e). 

N/A ....................... § 13.232(d). 

§ 13.233 ................ § 13.233. 

§ 13.234 ................ § 13.234. 

§ 13.235 ................ § 13.235. 

N/A ....................... § 13.236. 

IV. Regulatory Notices and Analyses 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866 and 

Executive Order 13563 direct that each 

Federal agency shall propose or adopt a 

regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 (Pub. L. 96–354) requires 

agencies to analyze the economic 

impact of regulatory changes on small 

entities. Third, the Trade Agreements 

Act (Pub. L. 96–39) prohibits agencies 

from setting standards that create 

unnecessary obstacles to the foreign 

commerce of the United States. In 

developing U.S. standards, the Trade 

Act requires agencies to consider 

international standards and, where 

appropriate, that they be the basis of 

U.S. standards. Fourth, the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4) requires agencies to prepare a 

written assessment of the costs, benefits, 

and other effects of proposed or final 

rules that include a Federal mandate 

likely to result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more annually (adjusted 

for inflation with base year of 1995). 

FAA has determined that this final 

rule is not a ‘‘significant regulatory 

action’’ as defined in section 3(f) of 

Executive Order 12866, and is not 

‘‘significant’’ as defined in DOT’s 

Regulatory Policies and Procedures. 

This final rule will not result in an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

government or communities. It will not 

cause a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency, as this 

project only concerns FAA. It would not 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof, as it does not 

impact on any of these things. It would 

not raise novel legal issues, as the 

amendments it makes are based on 

established law and precedent. Finally, 

this final rule complies with DOT’s 

Regulatory Policies and Procedures. 

A. Regulatory Evaluation 

This portion of the preamble 

summarizes the FAA’s analysis of the 

economic impacts of this rule. This rule 

amends FAA’s investigative and 

enforcement procedures to update 

position title references and reflect 

organizational changes in the Office of 

the Chief Counsel, updates outdated 

statutory and regulatory references, 

updates outdated addresses, and 

provides uniformity across part 13. The 

rule also reorganizes and rewords 

existing provisions to eliminate 

inconsistencies, clarify ambiguity, 

increase efficiency, and improve 

readability. These changes will ensure 

that the public has current information 

and rule language that is easier to 

understand. The cost of these changes is 

minimal. 

This final rule also provides the 

option for an expedited administrative 

process to subjects of emergency orders 

to which § 13.20 applies. Currently, part 

13 does not provide for an expedited 

administrative process for the subjects 

of such orders. The only recourse for 

litigating such an order is a direct 

appeal under 49 U.S.C. 46110 to a U.S. 

court of appeals, which can be costly 

and slow. This final rule adds the 

option of an expedited administrative 

hearing before a hearing officer followed 

by an expedited administrative appeal 

to the Administrator. The expedited 

process is consistent with existing 

processes for issuing other types of 

emergency orders and notices of 

proposed actions. Also, expedited 

subpart D proceedings are not new, as 

current subpart E uses subpart D 

procedures for appeals of hazardous 

materials emergency orders of 

compliance issued under current 

§ 13.81(a). Because the new expedited 

procedures process is similar to existing 

processes, the costs stemming from the 

new process will be minimal. Finally, 

parties could appeal an order issued 

after exhaustion of the expedited 

administrative process to a U.S. court of 

appeals under 49 U.S.C. 46110. 

The expedited administrative process 

may also lead to an efficient resolution 

of the matter without an appeal to a U.S. 

court of appeals. This could result in 

avoided initial filing fees. An appeal to 

a U.S. court of appeals requires an 

initial $500 filing fee 20 versus no initial 

filing fee in the expedited 

administrative process. Expedited 

administrative proceedings could 

reduce time and costs for affected 

parties compared to an appeal to a U.S. 

court of appeals. Potential cost savings 

might result because of net savings in 

attorneys’ fees, i.e., the difference in cost 

of hiring an attorney for a potentially 

lengthy U.S. court of appeals case 

versus the expedited administrative 

process. In addition, the expedited 

administrative process could resolve the 

matter in a far shorter time than a U.S. 

court of appeals, as the Administrator 

must issue the final order in the 

expedited administrative process within 

80 days. U.S. court of appeals cases, on 

the other hand, could result in 

protracted litigation costs. Additionally, 

54524 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

21Savings based on the portion of FAA’s total 

annual billing costs for dockets and FDMS services 

attributable to adjudication materials. 

a direct appeal to a U.S. court of appeals 

could require a remand to the agency for 

it to consider matters that otherwise 

could have been resolved under the 

expedited administrative process. After 

exhaustion of the expedited 

administrative process, a respondent 

could still appeal to a U.S. court of 

appeals. Even if a respondent resorts to 

judicial review first, the court of appeals 

has discretion to require further 

administrative proceedings, if, for 

example, the court believes doing so 

would help develop the record in the 

case. Therefore, even if the case is not 

resolved by the expedited 

administrative process, the U.S. court of 

appeals could use records developed 

during that process, reducing the 

potential costs of a judicial appeal. 

As FAA does not know how many 

persons subject to emergency orders 

would opt for expedited hearings, and 

of these how many would end up before 

a U.S. court of appeals, FAA cannot 

conclude how many persons would 

potentially receive cost savings. 

However, FAA expects small cost 

savings because emergency orders 

issued under § 13.20 are infrequent. 

The rule also provides the additional 

option of using mediation as an ADR 

procedure in actions under subparts D 

and G to reduce the potential burden 

associated with litigating these matters. 

Litigation could be avoided if mediation 

results in a mutually agreeable outcome. 

If mediation is successful and parties 

can avoid litigation, there is the 

potential for cost savings as the cost of 

mediation is likely to be less than that 

of litigation. 

As with the option for an expedited 

hearing, mediation may not fully resolve 

a matter and the respondent may still 

choose to litigate. However, mediation 

may reduce the cost of litigation because 

it can narrow issues and provide for 

greater cooperation during discovery. 

FAA does not know how many parties 

would participate in a mediation 

process. The annual average number of 

subpart D and G cases received by the 

FAA Hearing Docket from 2015 through 

2019 was 41. FAA estimates that the 

average annual number of parties opting 

for mediation would likely not exceed 

this number. As FAA expects the cost 

savings of opting for mediation will be 

minimal, FAA concludes that the total 

cost savings of providing this option 

will be minimal. 

This final rule also adds the less 

burdensome options of serving and 

filing a single copy of a document in 

subpart D and G proceedings by email 

or fax. This has the potential of minimal 

cost savings. Currently, the parties must 

file by mail or personally deliver an 

original and a copy of each document, 

and serve a copy on each party. Service 

by these methods imposes costs not 

applicable to emailing or faxing, like 

postage, copying, and delivery fees. 

This final rule also removes the FAA 

Hearing Docket Clerk’s authority in civil 

penalty cases under subpart G to issue 

blank subpoenas upon request by a 

party, and instead requires a party 

applying for a subpoena to show the 

general relevance and reasonable scope 

of the evidence sought by the subpoena. 

Under this final rule, only the ALJ will 

have the authority to issue a subpoena 

upon a showing of the general relevance 

and reasonable scope of the evidence 

sought by the subpoena. The burden is 

on the party requesting the subpoena to 

prove it is appropriate. Because this 

change could avoid subpoenas that 

impose irrelevant and burdensome 

requests for testimony, documents, and 

tangible things, it is potentially cost 

saving. 

Finally, current § 13.210(e)(1) 

explains that materials filed in FAA’s 

Hearing Docket in civil penalty 

adjudications are made publicly 

available on the FDMS website, 

www.regulations.gov. FAA is 

discontinuing use of the FDMS website 

for such materials, but will continue to 

make Administrator final decisions 

available on FAA’s website. Based on 

current billing, this rule will save FAA 

approximately $50,000 per year from 

discontinuing the use of the FDMS 

website for part 13 adjudication docket 

materials.21 Over a 10-year period of 

analysis this cost savings would total 

about $500,000 or about $351,179 

present value at a 7% discount rate. 

FAA concludes that this rule will 

result in small cost savings as explained 

herein. 

B. Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

(Pub. L. 96–354) (RFA) establishes ‘‘as a 

principle of regulatory issuance that 

agencies shall endeavor, consistent with 

the objectives of the rule and of 

applicable statutes, to fit regulatory and 

informational requirements to the scale 

of the businesses, organizations, and 

governmental jurisdictions subject to 

regulation.’’ To achieve this principle, 

agencies are required to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions to assure that such proposals are 

given serious consideration. The RFA 

covers a wide-range of small entities, 

including small businesses, not-forprofit organizations, and small 

governmental jurisdictions. 

Agencies must perform a review to 

determine whether a rule will have a 

significant economic impact on a 

substantial number of small entities. If 

the agency determines that it will, the 

agency must prepare a regulatory 

flexibility analysis as described in the 

RFA. 

However, if an agency determines that 

a rule is not expected to have a 

significant economic impact on a 

substantial number of small entities, 

section 605(b) of the RFA provides that 

the head of the agency may so certify 

and a regulatory flexibility analysis is 

not required. The certification must 

include a statement providing the 

factual basis for this determination, and 

the reasoning should be clear. 

This final rule is likely to affect a 

substantial number of small entities, but 

as it will provide small cost savings it 

is not expected to have a significant 

economic impact on a substantial 

number of small entities. 

This final rule codifies current 

practice, and rewrites and reorganizes a 

part of the CFR to make it more 

understandable. It updates outdated 

references and addresses. It adds less 

burdensome and faster-moving 

administrative appeal options. It also 

adds less burdensome options for 

serving and filing papers. It may 

eliminate some requests for subpoenas 

that otherwise would cost parties or 

subpoenaed persons time and money to 

defend against. FAA has determined 

this final rule will result in small cost 

savings. 

If an agency determines that a 

rulemaking will not result in a 

significant economic impact on a 

substantial number of small entities, the 

head of the agency may so certify under 

section 605(b) of the RFA. Therefore, as 

provided in section 605(b) and based on 

the foregoing, the head of FAA certifies 

that this final rule does not result in a 

significant economic impact on a 

substantial number of small entities. 

C. International Trade Impact 

Assessment 

The Trade Agreements Act of 1979 

(Pub. L. 96–39), as amended by the 

Uruguay Round Agreements Act (Pub. 

L. 103–465), prohibits Federal agencies 

from establishing standards or engaging 

in related activities that create 

unnecessary obstacles to the foreign 

commerce of the United States. 

Pursuant to these Acts, the 

establishment of standards is not 

considered an unnecessary obstacle to 

the foreign commerce of the United 

States, so long as the standard has a 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54525 

legitimate domestic objective, such as 

the protection of safety, and does not 

operate in a manner that excludes 

imports that meet this objective. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards. 

FAA has assessed the potential effect 

of this final rule and determined that it 

would impose the same small cost 

savings on domestic and international 

entities and thus has a neutral trade 

impact. 

D. Unfunded Mandates Assessment 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

requires each Federal agency to prepare 

a written statement assessing the effects 

of any Federal mandate in a proposed or 

final agency rule that may result in an 

expenditure of $100 million or more (in 

1995 dollars) in any one year by State, 

local, and tribal governments, in the 

aggregate, or by the private sector; such 

a mandate is deemed to be a ‘‘significant 

regulatory action.’’ FAA currently uses 

an inflation-adjusted value of $155 

million in lieu of $100 million. This 

final rule does not contain such a 

mandate; therefore, the requirements of 

Title II of the Act do not apply. 

E. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3507(d)) requires that FAA 

consider the impact of paperwork and 

other information collection burdens 

imposed on the public. According to the 

1995 amendments to the Paperwork 

Reduction Act (5 CFR 1320.8(b)(3)(vi)), 

an agency may not collect or sponsor 

the collection of information, nor may it 

impose an information collection 

requirement unless it displays a 

currently valid Office of Management 

and Budget (OMB) control number. 

In the proposed rule, FAA identified 

one provision with Paperwork 

Reduction Act (PRA) implications that 

will require a new OMB control 

number: § 13.5. FAA did not receive any 

comments regarding its proposed 

revision to the information collection in 

§ 13.5. However, as FAA was 

developing this final rule, it realized 

that it had not provided the notice 

required by 5 CFR part 1320. 

Accordingly, on August 4, 2020, the 

FAA published its 60-day PRA notice, 

85 FR 47288. FAA received no 

comments in response to the notice. The 

FAA received OMB Control No. 2120– 

0795 for the information collection in 

§ 13.5. The FAA will be publishing the 

final 30-day PRA notice requesting 

public comment. FAA notes that the 

provision of this final rule that requires 

information collection request approval 

will be effective upon OMB approval. 

F. International Compatibility and 

Cooperation 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is FAA policy to 

conform to International Civil Aviation 

Organization (ICAO) Standards and 

Recommended Practices to the 

maximum extent practicable. FAA has 

determined that there are no ICAO 

Standards and Recommended Practices 

that correspond to these proposed 

regulations. 

G. Environmental Analysis 

FAA Order 1050.1F identifies FAA 

actions that are categorically excluded 

from preparation of an environmental 

assessment or environmental impact 

statement under the National 

Environmental Policy Act in the 

absence of extraordinary circumstances. 

FAA has determined this rulemaking 

action qualifies for the categorical 

exclusion identified in paragraph 5–6.6 

and involves no extraordinary 

circumstances. 

V. Executive Order Determinations 

A. Executive Order 13132, Federalism 

FAA has analyzed this final rule 

under the principles and criteria of 

Executive Order 13132, Federalism. The 

agency determined that this action will 

not have a substantial direct effect on 

the States, or the relationship between 

the Federal Government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government, and, therefore, 

does not have federalism implications. 

B. Executive Order 13211, Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use 

FAA analyzed this final rule under 

Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). The 

agency has determined that it is not a 

‘‘significant energy action’’ under the 

executive order and it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

C. Executive Order 13609, Promoting 

International Regulatory Cooperation 

Executive Order 13609, Promoting 

International Regulatory Cooperation, 

promotes international regulatory 

cooperation to meet shared challenges 

involving health, safety, labor, security, 

environmental, and other issues and to 

reduce, eliminate, or prevent 

unnecessary differences in regulatory 

requirements. FAA has analyzed this 

action under the policies and agency 

responsibilities of Executive Order 

13609, and has determined that this 

action will have no effect on 

international regulatory cooperation. 

D. Executive Order 13892, Promoting 

the Rule of Law Through Transparency 

and Fairness 

Executive Order 13892, Promoting the 

Rule of Law Through Transparency and 

Fairness in Civil Administrative 

Enforcement and Adjudication, 

promotes transparency to the regulated 

community when agencies conduct 

enforcement actions and adjudications. 

FAA has analyzed this action and 

determined it incorporates the policy 

and principles articulated in the 

Executive order. 

VI. How To Obtain Additional 

Information 

A. Rulemaking Documents 

An electronic copy of a rulemaking 

document may be obtained by using the 

internet— 

1. Search the Federal eRulemaking 

Portal (www.regulations.gov); 

2. Visit FAA’s Regulations and 

Policies web page at www.faa.gov/ 

regulations_policies/; or 

3. Access the Government Printing 

Office’s web page at www.GovInfo.gov. 

Copies may also be obtained by 

sending a request (identified by notice, 

amendment, or docket number of this 

rulemaking) to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM–1, 800 Independence Avenue SW, 

Washington, DC 20591, or by calling 

(202) 267–9677. 

B. Comments Submitted to the Docket 

Comments received may be viewed by 

going to www.regulations.gov and 

following the online instructions to 

search the docket number for this 

action. Anyone is able to search the 

electronic form of all comments 

received into any of FAA’s dockets by 

the name of the individual submitting 

the comment (or signing the comment, 

if submitted on behalf of an association, 

business, labor union, etc.). 

C. Small Business Regulatory 

Enforcement Fairness Act 

The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 requires FAA to comply with 

small entity requests for information or 

advice about compliance with statutes 

and regulations within its jurisdiction. 

A small entity with questions regarding 

this document, may contact its local 

FAA official, or the person listed under 

the FOR FURTHER INFORMATION CONTACT

54526 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

heading at the beginning of the 

preamble. To find out more about 

SBREFA on the internet, visit 

www.faa.gov/regulations_policies/ 

rulemaking/sbre_act/. 

List of Subjects in 14 CFR Part 13 

Administrative practice and 

procedure, Air transportation, Aviation 

safety, Hazardous materials 

transportation, Investigations, Law 

enforcement, Penalties. 

The Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends chapter I of title 14, Code of 

Federal Regulations as follows: 

PART 13—INVESTIGATIVE AND 

ENFORCEMENT PROCEDURES 

■ 1. The authority citation for part 13 is 

revised to read as follows: 

Authority: 18 U.S.C. 6002; 28 U.S.C. 2461 

(note); 49 U.S.C. 106(g), 5121–5124, 5127, 

40113–40114, 44103–44106, 44701–44703, 

44709–44710, 44713, 46101–46111, 46301, 

46302 (for a violation of 49 U.S.C. 46504), 

46304–46316, 46318, 46501–46502, 46504– 

46507, 47106, 47107, 47111, 47122, 47306, 

47531–47532; 49 CFR 1.83. 

■ 2. Revise subpart A to read as follows: 

Subpart A—General Authority to ReDelegate and Investigative Procedures 

Sec. 

13.1 Re-delegation. 

13.2 Reports of violations. 

13.3 Investigations (general). 

13.5 Formal complaints. 

13.7 Records, documents, and reports. 

§ 13.1 Re-delegation. 

Unless otherwise specified, the Chief 

Counsel, each Deputy Chief Counsel, 

and the Assistant Chief Counsel for 

Enforcement may re-delegate the 

authority delegated to them under this 

part. 

§ 13.2 Reports of violations. 

(a) Any person who knows of any 

violation of 49 U.S.C. subtitle VII, 49 

U.S.C. chapter 51, or any rule, 

regulation, or order issued under those 

statutes, should report the violation to 

FAA personnel. 

(b) FAA personnel will review each 

report made under this section to 

determine whether any additional 

investigation or action is warranted. 

§ 13.3 Investigations (general). 

(a) The Administrator may conduct 

investigations; hold hearings; issue 

subpoenas; require the production of 

relevant documents, records, and 

property; and take evidence and 

depositions. 

(b) The Administrator has delegated 

the authority to conduct investigations 

to the various services and offices for 

matters within their respective areas. 

(c) The Administrator delegates to the 

Chief Counsel, each Deputy Chief 

Counsel, and the Assistant Chief 

Counsel for Enforcement the authority 

to: 

(1) Issue orders; 

(2) Conduct formal investigations; 

(3) Subpoena witnesses and records in 

conducting a hearing or investigation; 

(4) Order depositions and production 

of records in a proceeding or 

investigation; and 

(5) Petition a court of the United 

States to enforce a subpoena or order 

described in paragraphs (c)(3) and (4) of 

this section. 

(d) A complaint against the sponsor, 

proprietor, or operator of a federally 

assisted airport involving violations of 

the legal authorities listed in § 16.1 of 

this chapter must be filed in accordance 

with the provisions of part 16 of this 

chapter. 

§ 13.5 Formal complaints. 

(a) Any person may file a complaint 

with the Administrator with respect to 

a violation by a person of any 

requirement under 49 U.S.C. subtitle 

VII, 49 U.S.C. chapter 51, or any rule, 

regulation, or order issued under those 

statutes, as to matters within the 

jurisdiction of the Administrator. This 

section does not apply to complaints 

against the Administrator or employees 

of the FAA acting within the scope of 

their employment. 

(b) Complaints filed under this 

section must— 

(1) Be submitted in writing and 

identified as a complaint seeking an 

appropriate order or other enforcement 

action; 

(2) Be submitted to the Federal 

Aviation Administration, Office of the 

Chief Counsel, Attention: Formal 

Complaint Clerk (AGC–300), 800 

Independence Avenue SW, Washington, 

DC 20591; 

(3) Set forth the name and address, if 

known, of each person who is the 

subject of the complaint and, with 

respect to each person, the specific 

provisions of the statute, rule, 

regulation, or order that the 

complainant believes were violated; 

(4) Contain a concise but complete 

statement of the facts relied upon to 

substantiate each allegation; 

(5) State the name, address, telephone 

number, and email of the person filing 

the complaint; and 

(6) Be signed by the person filing the 

complaint or an authorized 

representative. 

(c) A complaint that does not meet the 

requirements of paragraph (b) of this 

section will be considered a report 

under § 13.2. 

(d) The FAA will send a copy of a 

complaint that meets the requirements 

of paragraph (b) of this section to the 

subject(s) of the complaint by certified 

mail. 

(e) A subject of the complaint may 

serve a written answer to the complaint 

to the Formal Complaint Clerk at the 

address specified in paragraph (b)(2) of 

this section no later than 20 days after 

service of a copy of the complaint. For 

purposes of this paragraph (e), the date 

of service is the date on which the FAA 

mailed a copy of the complaint to the 

subject of the complaint. 

(f) After the subject(s) of the 

complaint have served a written answer 

or after the allotted time to serve an 

answer has expired, the Administrator 

will determine if there are reasonable 

grounds for investigating the complaint, 

and— 

(1) If the Administrator determines 

that a complaint does not state facts that 

warrant an investigation or action, the 

complaint may be dismissed without a 

hearing and the reason for the dismissal 

will be given, in writing, to the person 

who filed the complaint and the 

subject(s) of the complaint; or 

(2) If the Administrator determines 

that reasonable grounds exist, an 

informal investigation may be initiated 

or an order of investigation may be 

issued in accordance with subpart F of 

this part, or both. The subject(s) of a 

complaint will be advised which official 

has been delegated the responsibility 

under § 13.3(b) or (c), as applicable, for 

conducting the investigation. 

(g) If the investigation substantiates 

the allegations set forth in the 

complaint, the Administrator may take 

action in accordance with applicable 

law and FAA policy. 

(h) The complaint and other records 

relating to the disposition of the 

complaint are maintained in the Formal 

Complaint Docket (AGC–300), Office of 

the Chief Counsel, Federal Aviation 

Administration, 800 Independence 

Avenue SW, Washington, DC 20591. 

Any interested person may examine any 

docketed material at that office at any 

time after the docket is established, 

except material that is required to be 

withheld from the public under 

applicable law, and may obtain a copy 

upon paying the cost of the copy. 

§ 13.7 Records, documents, and reports. 

Each record, document, and report 

that FAA regulations require to be 

maintained, exhibited, or submitted to 

the Administrator may be used in any 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54527 

investigation conducted by the 

Administrator; and, except to the extent 

the use may be specifically limited or 

prohibited by the section which 

imposes the requirement, the records, 

documents, and reports may be used in 

any civil penalty action, certificate 

action, or other legal proceeding. 

■ 3. Revise subpart B to read as follows: 

Subpart B—Administrative Actions 

§ 13.11 Administrative disposition of 

certain violations. 

(a) If, after an investigation, FAA 

personnel determine that an apparent 

violation of 49 U.S.C. subtitle VII, 49 

U.S.C. chapter 51, or any rule, 

regulation, or order issued under those 

statutes, does not require legal 

enforcement action, an appropriate FAA 

official may take administrative action 

to address the apparent violation. 

(b) An administrative action under 

this section does not constitute a formal 

adjudication of the matter, and may take 

the form of— 

(1) A Warning Notice that recites 

available facts and information about 

the incident or condition and indicates 

that it may have been a violation; or 

(2) A Letter of Correction that states 

the corrective action the apparent 

violator has taken or agrees to take. If 

the apparent violator does not complete 

the agreed corrective action, the FAA 

may take legal enforcement action. 

■ 4. Revise subpart C to read as follows: 

Subpart C—Legal Enforcement 

Actions 

Sec. 

13.13 Consent orders. 

13.14 [Reserved] 

13.15 Civil penalties: Other than by 

administrative assessment. 

13.16 Civil penalties: Administrative 

assessment against a person other than 

an individual acting as a pilot, flight 

engineer, mechanic, or repairman; 

administrative assessment against all 

persons for hazardous materials 

violations. 

13.17 Seizure of aircraft. 

13.18 Civil penalties: Administrative 

assessment against an individual acting 

as a pilot, flight engineer, mechanic, or 

repairman. 

13.19 Certificate actions appealable to the 

National Transportation Safety Board. 

13.20 Orders of compliance, cease and 

desist orders, orders of denial, and other 

orders. 

13.21 through 13.29 [Reserved] 

§ 13.13 Consent orders. 

(a) The Chief Counsel, each Deputy 

Chief Counsel, and the Assistant Chief 

Counsel for Enforcement may issue a 

consent order to resolve any matter with 

a person that may be subject to legal 

enforcement action. 

(b) A person that may be subject to 

legal enforcement action may propose a 

consent order. The proposed consent 

order must include— 

(1) An admission of all jurisdictional 

facts; 

(2) An express waiver of the right to 

further procedural steps and of all rights 

to legal review in any forum; 

(3) An express waiver of attorney’s 

fees and costs; 

(4) If a notice or order has been issued 

prior to the proposed consent order, an 

incorporation by reference of the notice 

or order and an acknowledgment that 

the notice or order may be used to 

construe the terms of the consent order; 

and 

(5) If a request for hearing or appeal 

is pending in any forum, a provision 

that the person will withdraw the 

request for hearing or notice of appeal. 

§ 13.14 [Reserved] 

§ 13.15 Civil penalties: Other than by 

administrative assessment. 

(a) The FAA uses the procedures in 

this section when it seeks a civil penalty 

other than by the administrative 

assessment procedures in § 13.16 or 

§ 13.18. 

(b) The authority of the Administrator 

to seek a civil penalty, and the ability 

to refer cases to the United States 

Attorney General, or the delegate of the 

Attorney General, for prosecution of 

civil penalty actions sought by the 

Administrator is delegated to the Chief 

Counsel, each Deputy Chief Counsel, 

and the Assistant Chief Counsel for 

Enforcement. This delegation applies to 

cases involving one or more of the 

following: 

(1) An amount in controversy in 

excess of: 

(i) $400,000, if the violation was 

committed by a person other than an 

individual or small business concern; or 

(ii) $50,000, if the violation was 

committed by an individual or small 

business concern. 

(2) An in rem action, seizure of 

aircraft subject to lien, suit for 

injunctive relief, or for collection of an 

assessed civil penalty. 

(c) The Administrator may 

compromise any civil penalty proposed 

under this section, before referral to the 

United States Attorney General, or the 

delegate of the Attorney General, for 

prosecution. 

(1) The Administrator, through the 

Chief Counsel, a Deputy Chief Counsel, 

or the Assistant Chief Counsel for 

Enforcement sends a civil penalty letter 

to the person charged with a violation. 

The civil penalty letter contains a 

statement of the charges; the applicable 

law, rule, regulation, or order; and the 

amount of civil penalty that the 

Administrator will accept in full 

settlement of the action or an offer to 

compromise the civil penalty. 

(2) Not later than 30 days after receipt 

of the civil penalty letter, the person 

cited with an alleged violation may 

respond to the civil penalty letter by— 

(i) Submitting electronic payment, a 

certified check, or money order in the 

amount offered by the Administrator in 

the civil penalty letter. The agency 

attorney will send a letter to the person 

charged with the violation stating that 

payment is accepted in full settlement 

of the civil penalty action; or 

(ii) Submitting one of the following to 

the agency attorney: 

(A) Written material or information 

that may explain, mitigate, or deny the 

violation or that may show extenuating 

circumstances; or 

(B) A written request for an informal 

conference to discuss the matter with 

the agency attorney and to submit any 

relevant information or documents that 

may explain, mitigate, or deny the 

violation; or that may show extenuating 

circumstances. 

(3) The documents, material, or 

information submitted under paragraph 

(c)(2)(ii) of this section may include 

support for any claim of inability to pay 

the civil penalty in whole or in part, or 

for any claim of small business status as 

defined in 49 U.S.C. 46301(i). 

(4) The Administrator will consider 

any material or information submitted 

under paragraph (c)(2)(ii) of this section 

to determine whether the person is 

subject to a civil penalty or to determine 

the amount for which the Administrator 

will compromise the action. 

(5) If the parties cannot agree to 

compromise the civil penalty, the 

Administrator may refer the civil 

penalty action to the United States 

Attorney General, or the delegate of the 

Attorney General, to begin proceedings 

in a U.S. district court to prosecute and 

collect a civil penalty. 

§ 13.16 Civil penalties: Administrative 

assessment against a person other than an 

individual acting as a pilot, flight engineer, 

mechanic, or repairman; administrative 

assessment against all persons for 

hazardous materials violations. 

(a) General. The FAA uses the 

procedures in this section when it 

assesses a civil penalty against a person 

other than an individual acting as a 

pilot, flight engineer, mechanic, or 

repairman for a violation cited in the 

first sentence of 49 U.S.C. 46301(d)(2), 

or in 49 U.S.C. 47531, or any 

54528 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

implementing rule, regulation, or order, 

except when the U.S. district courts 

have exclusive jurisdiction. 

(b) District court jurisdiction. The U.S. 

district courts have exclusive 

jurisdiction of any civil penalty action 

initiated by the FAA for violations 

described in paragraph (a) of this 

section if— 

(1) The amount in controversy is more 

than $400,000 for a violation committed 

by a person other than an individual or 

small business concern; 

(2) The amount in controversy is more 

than $50,000 for a violation committed 

by an individual or a small business 

concern; 

(3) The action is in rem or another 

action in rem based on the same 

violation has been brought; 

(4) The action involves an aircraft 

subject to a lien that has been seized by 

the Government; or 

(5) Another action has been brought 

for an injunction based on the same 

violation. 

(c) Hazardous materials violations. 

An order assessing a civil penalty for a 

violation under 49 U.S.C. chapter 51, or 

a rule, regulation, or order issued under 

49 U.S.C. chapter 51, is issued only after 

the following factors have been 

considered: 

(1) The nature, circumstances, extent, 

and gravity of the violation; 

(2) With respect to the violator, the 

degree of culpability, any history of 

prior violations, the ability to pay, and 

any effect on the ability to continue to 

do business; and 

(3) Other matters that justice requires. 

(d) Delegation of authority. The 

authority of the Administrator is 

delegated to each Deputy Chief Counsel 

and the Assistant Chief Counsel for 

Enforcement, as follows: 

(1) Under 49 U.S.C. 46301(d), 47531, 

and 5123, and 49 CFR 1.83, to initiate 

and assess civil penalties for a violation 

of those statutes or a rule, regulation, or 

order issued under those provisions; 

(2) Under 49 U.S.C. 5123, 49 CFR 

1.83, 49 U.S.C. 46301(d), and 49 U.S.C. 

46305, to refer cases to the Attorney 

General of the United States or a 

delegate of the Attorney General for 

collection of civil penalties; 

(3) Under 49 U.S.C. 46301(f), to 

compromise the amount of a civil 

penalty imposed; and 

(4) Under 49 U.S.C. 5123(e) and (f) 

and 49 CFR 1.83, to compromise the 

amount of a civil penalty imposed. 

(e) Order assessing civil penalty. (1) 

An order assessing civil penalty may be 

issued for a violation described in 

paragraph (a) or (c) of this section, or as 

otherwise provided by statute, after 

notice and opportunity for a hearing, 

when: 

(i) A person charged with a violation 

agrees to pay a civil penalty for a 

violation; or 

(ii) A person charged with a violation 

does not request a hearing under 

paragraph (g)(2)(ii) of this section within 

15 days after receipt of a final notice of 

proposed civil penalty. 

(2) The following also serve as an 

order assessing civil penalty: 

(i) An initial decision or order issued 

by an administrative law judge as 

described in § 13.232(e). 

(ii) A decision or order issued by the 

FAA decisionmaker as described in 

§ 13.233(j). 

(f) Notice of proposed civil penalty. A 

civil penalty action is initiated by 

sending a notice of proposed civil 

penalty to the person charged with a 

violation, the designated agent for the 

person, or if there is no such designated 

agent, the president of the company 

charged with a violation. In response to 

a notice of proposed civil penalty, a 

company may designate in writing 

another person to receive documents in 

that civil penalty action. The notice of 

proposed civil penalty contains a 

statement of the charges and the amount 

of the proposed civil penalty. Not later 

than 30 days after receipt of the notice 

of proposed civil penalty, the person 

charged with a violation may— 

(1) Submit the amount of the 

proposed civil penalty or an agreedupon amount, in which case either an 

order assessing civil penalty or 

compromise order under paragraph (n) 

of this section may be issued in that 

amount; 

(2) Submit to the agency attorney one 

of the following: 

(i) Written information, including 

documents and witness statements, 

demonstrating that a violation of the 

regulations did not occur or that a 

penalty or the amount of the penalty is 

not warranted by the circumstances. 

(ii) A written request to reduce the 

proposed civil penalty, stating the 

amount of reduction and the reasons 

and providing any documents 

supporting a reduction of the proposed 

civil penalty, including records 

indicating a financial inability to pay or 

records showing that payment of the 

proposed civil penalty would prevent 

the person from continuing in business. 

(iii) A written request for an informal 

conference to discuss the matter with 

the agency attorney and to submit 

relevant information or documents; or 

(3) Request a hearing conducted in 

accordance with subpart G of this part. 

(g) Final notice of proposed civil 

penalty. A final notice of proposed civil 

penalty will be sent to the person 

charged with a violation, the designated 

agent for the person, the designated 

agent named in accordance with 

paragraph (f) of this section, or the 

president of the company charged with 

a violation. The final notice of proposed 

civil penalty contains a statement of the 

charges and the amount of the proposed 

civil penalty and, as a result of 

information submitted to the agency 

attorney during informal procedures, 

may modify an allegation or a proposed 

civil penalty contained in a notice of 

proposed civil penalty. 

(1) A final notice of proposed civil 

penalty may be issued— 

(i) If the person charged with a 

violation fails to respond to the notice 

of proposed civil penalty within 30 days 

after receipt of that notice; or 

(ii) If the parties participated in any 

procedures under paragraph (f)(2) of this 

section and the parties have not agreed 

to compromise the action or the agency 

attorney has not agreed to withdraw the 

notice of proposed civil penalty. 

(2) Not later than 15 days after receipt 

of the final notice of proposed civil 

penalty, the person charged with a 

violation may do one of the following: 

(i) Submit the amount of the proposed 

civil penalty or an agreed-upon amount, 

in which case either an order assessing 

civil penalty or a compromise order 

under paragraph (n) of this section may 

be issued in that amount; or 

(ii) Request a hearing conducted in 

accordance with subpart G of this part. 

(h) Request for a hearing. Any person 

requesting a hearing, under paragraph 

(f)(3) or (g)(2)(ii) of this section must file 

the request with the FAA Hearing 

Docket Clerk and serve the request on 

the agency attorney in accordance with 

the requirements in subpart G of this 

part. 

(i) Hearing. The procedural rules in 

subpart G of this part apply to the 

hearing. 

(j) Appeal. Either party may appeal 

the administrative law judge’s initial 

decision to the FAA decisionmaker 

under the procedures in subpart G of 

this part. The procedural rules in 

subpart G of this part apply to the 

appeal. 

(k) Judicial review. A person may seek 

judicial review only of a final decision 

and order of the FAA decisionmaker in 

accordance with § 13.235. 

(l) Payment. (1) A person must pay a 

civil penalty by: 

(i) Sending a certified check or money 

order, payable to the Federal Aviation 

Administration, to the FAA office 

identified in the notice of proposed civil 

penalty, the final notice of proposed 

civil penalty, or the order assessing civil 

penalty; or 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54529 

(ii) Making an electronic payment 

according to the directions specified in 

the notice of proposed civil penalty, the 

final notice of proposed civil penalty, or 

the order assessing civil penalty. 

(2) The civil penalty must be paid 

within 30 days after service of the order 

assessing civil penalty, unless otherwise 

agreed to by the parties. In cases where 

a hearing is requested, an appeal to the 

FAA decisionmaker is filed, or a 

petition for review of the FAA 

decisionmaker’s decision is filed in a 

U.S. court of appeals, the civil penalty 

must be paid within 30 days after all 

litigation in the matter is completed and 

the civil penalty is affirmed in whole or 

in part. 

(m) Collection of civil penalties. If an 

individual does not pay a civil penalty 

imposed by an order assessing civil 

penalty or other final order, the 

Administrator may take action to collect 

the penalty. 

(n) Compromise. The FAA may 

compromise the amount of any civil 

penalty imposed under this section 

under 49 U.S.C. 5123(e), 46301(f), or 

46318 at any time before referring the 

action to the United States Attorney 

General, or the delegate of the Attorney 

General, for collection. 

(1) When a civil penalty is 

compromised with a finding of 

violation, an agency attorney issues an 

order assessing civil penalty. 

(2) When a civil penalty is 

compromised without a finding of 

violation, the agency attorney issues a 

compromise order that states the 

following: 

(i) The person has paid a civil penalty 

or has signed a promissory note 

providing for installment payments. 

(ii) The FAA makes no finding of a 

violation. 

(iii) The compromise order will not be 

used as evidence of a prior violation in 

any subsequent civil penalty proceeding 

or certificate action proceeding. 

§ 13.17 Seizure of aircraft. 

(a) The Chief Counsel, or a Regional 

Administrator for an aircraft within the 

region, may issue an order authorizing 

a State or Federal law enforcement 

officer or a Federal Aviation 

Administration safety inspector to seize 

an aircraft that is involved in a violation 

for which a civil penalty may be 

imposed on its owner or the individual 

commanding the aircraft. 

(b) Each person seizing an aircraft 

under this section places it in the 

nearest available and adequate public 

storage facility in the judicial district in 

which it was seized. 

(c) The Regional Administrator or 

Chief Counsel, without delay, sends a 

written notice and a copy of this section 

to the registered owner of the seized 

aircraft and to each other person shown 

by FAA records to have an interest in 

it, stating the— 

(1) Time, date, and place of seizure; 

(2) Name and address of the custodian 

of the aircraft; 

(3) Reasons for the seizure, including 

the violations alleged or proven to have 

been committed; and 

(4) Amount that may be tendered as— 

(i) A compromise of a civil penalty for 

the alleged violation; or 

(ii) Payment for a civil penalty 

imposed for a proven violation. 

(d) The Chief Counsel or Assistant 

Chief Counsel for Enforcement 

immediately sends a report to the 

United States Attorney for the judicial 

district in which it was seized, 

requesting the United States Attorney to 

institute proceedings to enforce a lien 

against the aircraft. 

(e) The Regional Administrator or 

Chief Counsel directs the release of a 

seized aircraft when— 

(1) The alleged violator pays a civil 

penalty or an amount agreed upon in 

compromise, and the costs of seizing, 

storing, and maintaining the aircraft; 

(2) The aircraft is seized under an 

order of a court of the United States in 

proceedings in rem initiated under 49 

U.S.C. 46305 to enforce a lien against 

the aircraft; 

(3) The United States Attorney 

General, or the delegate of the Attorney 

General, notifies the FAA that the 

United States Attorney General, or the 

delegate of the Attorney General, refuses 

to institute proceedings in rem under 49 

U.S.C. 46305 to enforce a lien against 

the aircraft; or 

(4) A bond in the amount and with 

the sureties prescribed by the Chief 

Counsel or the Assistant Chief Counsel 

for Enforcement is deposited, 

conditioned on payment of the penalty 

or the compromise amount, and the 

costs of seizing, storing, and 

maintaining the aircraft. 

§ 13.18 Civil penalties: Administrative 

assessment against an individual acting as 

a pilot, flight engineer, mechanic, or 

repairman. 

(a) General. (1) This section applies to 

each action in which the FAA seeks to 

assess a civil penalty by administrative 

procedures against an individual acting 

as a pilot, flight engineer, mechanic, or 

repairman under 49 U.S.C. 46301(d)(5) 

for a violation listed in 49 U.S.C. 

46301(d)(2). This section does not apply 

to a civil penalty assessed for a violation 

of 49 U.S.C. chapter 51, or a rule, 

regulation, or order issued thereunder. 

(2) Notwithstanding the provisions of 

paragraph (a)(1) of this section, the U.S. 

district courts have exclusive 

jurisdiction of any civil penalty action 

involving an individual acting as a pilot, 

flight engineer, mechanic, or repairman 

for violations described in paragraph 

(a)(1), or under 49 U.S.C. 46301(d)(4), if: 

(i) The amount in controversy is more 

than $50,000; 

(ii) The action involves an aircraft 

subject to a lien that has been seized by 

the government; or 

(iii) Another action has been brought 

for an injunction based on the same 

violation. 

(b) Definitions. As used in this part, 

the following definitions apply: 

(1) Flight engineer means an 

individual who holds a flight engineer 

certificate issued under part 63 of this 

chapter. 

(2) Individual acting as a pilot, flight 

engineer, mechanic, or repairman 

means an individual acting in such 

capacity, whether or not that individual 

holds the respective airman certificate 

issued by the FAA. 

(3) Mechanic means an individual 

who holds a mechanic certificate issued 

under part 65 of this chapter. 

(4) Pilot means an individual who 

holds a pilot certificate issued under 

part 61 of this chapter. 

(5) Repairman means an individual 

who holds a repairman certificate issued 

under part 65 of this chapter. 

(c) Delegation of authority. The 

authority of the Administrator is 

delegated to the Chief Counsel and each 

Deputy Chief Counsel, and the Assistant 

Chief Counsel for Enforcement, as 

follows: 

(1) To initiate and assess civil 

penalties under 49 U.S.C. 46301(d)(5); 

(2) To refer cases to the Attorney 

General of the United States, or the 

delegate of the Attorney General, for 

collection of civil penalties; and 

(3) To compromise the amount of a 

civil penalty under 49 U.S.C. 46301(f). 

(d) Notice of proposed assessment. A 

civil penalty action is initiated by 

sending a notice of proposed assessment 

to the individual charged with a 

violation specified in paragraph (a) of 

this section. The notice of proposed 

assessment contains a statement of the 

charges and the amount of the proposed 

civil penalty. The individual charged 

with a violation may do the following: 

(1) Submit the amount of the 

proposed civil penalty or an agreedupon amount, in which case either an 

order of assessment or a compromise 

order will be issued in that amount. 

(2) Answer the charges in writing by 

submitting information, including 

documents and witness statements, 

demonstrating that a violation of the 

regulations did not occur or that a 

54530 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

penalty, or the amount of the penalty, is 

not warranted by the circumstances. 

(3) Submit a written request to reduce 

the proposed civil penalty, stating the 

amount of reduction and the reasons, 

and providing any documents 

supporting a reduction of the proposed 

civil penalty, including records 

indicating a financial inability to pay. 

(4) Submit a written request for an 

informal conference to discuss the 

matter with an agency attorney and 

submit relevant information or 

documents. 

(5) Request that an order of 

assessment be issued so that the 

individual charged may appeal to the 

National Transportation Safety Board. 

(e) Failure to respond to notice of 

proposed assessment. An order of 

assessment may be issued if the 

individual charged with a violation fails 

to respond to the notice of proposed 

assessment within 15 days after receipt 

of that notice. 

(f) Order of assessment. An order of 

assessment, which imposes a civil 

penalty, may be issued for a violation 

described in paragraph (a) of this 

section after notice and an opportunity 

to answer any charges and be heard as 

to why such order should not be issued. 

(g) Appeal. Any individual who 

receives an order of assessment issued 

under this section may appeal the order 

to the National Transportation Safety 

Board. The appeal stays the 

effectiveness of the Administrator’s 

order. 

(h) Judicial review. A party may seek 

judicial review only of a final decision 

and order of the National Transportation 

Safety Board under 49 U.S.C. 

46301(d)(6) and 46110. Neither an 

initial decision, nor an order issued by 

an administrative law judge that has not 

been appealed to the National 

Transportation Safety Board, nor an 

order compromising a civil penalty 

action, may be appealed under any of 

those sections. 

(i) Compromise. The FAA may 

compromise any civil penalty imposed 

under this section at any time before 

referring the action to the United States 

Attorney General, or the delegate of the 

Attorney General, for collection. 

(1) When a civil penalty is 

compromised with a finding of 

violation, an agency attorney issues an 

order of assessment. 

(2) When a civil penalty is 

compromised without a finding of 

violation, the agency attorney issues a 

compromise order of assessment that 

states the following: 

(i) The individual has paid a civil 

penalty or has signed a promissory note 

providing for installment payments; 

(ii) The FAA makes no finding of 

violation; and 

(iii) The compromise order will not be 

used as evidence of a prior violation in 

any subsequent civil penalty proceeding 

or certificate action proceeding. 

(j) Payment. (1) An individual must 

pay a civil penalty by: 

(i) Sending a certified check or money 

order, payable to the Federal Aviation 

Administration, to the FAA office 

identified in the order of assessment; or 

(ii) Making an electronic payment 

according to the directions specified in 

the order of assessment. 

(2) The civil penalty must be paid 

within 30 days after service of the order 

of assessment, unless an appeal is filed 

with the National Transportation Safety 

Board. In cases where an appeal is filed 

with the National Transportation Safety 

Board, or a petition for review is filed 

with a U.S. court of appeals, the civil 

penalty must be paid within 30 days 

after all litigation in the matter is 

completed and the civil penalty is 

affirmed in whole or in part. 

(k) Collection of civil penalties. If an 

individual does not pay a civil penalty 

imposed by an order of assessment or 

other final order, the Administrator may 

take action provided under the law to 

collect the penalty. 

§ 13.19 Certificate actions appealable to 

the National Transportation Safety Board. 

(a) The Administrator may issue an 

order amending, modifying, suspending, 

or revoking all or part of any type 

certificate, production certificate, 

airworthiness certificate, airman 

certificate, air carrier operating 

certificate, air navigation facility 

certificate, or air agency certificate if as 

a result of a reinspection, 

reexamination, or other investigation, 

the Administrator determines that the 

public interest and safety in air 

commerce requires it, if a certificate 

holder has violated an aircraft noise or 

sonic boom standard or regulation 

prescribed under 49 U.S.C. 44715(a), or 

if the holder of the certificate is 

convicted of violating 16 U.S.C. 742j1(a). 

(b) The agency attorney will issue a 

notice before issuing a non-immediately 

effective order to amend, modify, 

suspend, or revoke a type certificate, 

production certificate, airworthiness 

certificate, airman certificate, air carrier 

operating certificate, air navigation 

facility certificate, air agency certificate, 

or to revoke an aircraft certificate of 

registration because the aircraft was 

used to carry out or facilitate an activity 

punishable under a law of the United 

States or a State related to a controlled 

substance (except a law related to 

simple possession of a controlled 

substance), by death or imprisonment 

for more than one year, and the owner 

of the aircraft permitted the use of the 

aircraft knowing that the aircraft was to 

be used for the activity. 

(1) A notice of proposed certificate 

action will advise the certificate holder 

or aircraft owner of the charges or other 

reasons upon which the Administrator 

bases the proposed action, and allows 

the holder to answer any charges and to 

be heard as to why the certificate should 

not be amended, suspended, modified, 

or revoked. 

(2) In response to a notice of proposed 

certificate action described in paragraph 

(b)(1) of this section, the certificate 

holder or aircraft owner, within 15 days 

of the date of receipt of the notice, 

may— 

(i) Surrender the certificate and waive 

any right to contest or appeal the 

charged violations and sanction, in 

which case the Administrator will issue 

an order; 

(ii) Answer the charges in writing by 

submitting information, including 

documents and witness statements, 

demonstrating that a violation of the 

regulations did not occur or that the 

proposed sanction is not warranted by 

the circumstances; 

(iii) Submit a written request for an 

informal conference to discuss the 

matter with an agency attorney and 

submit relevant information or 

documents; or 

(iv) Request that an order be issued in 

accordance with the notice of proposed 

certificate action so that the certificate 

holder or aircraft owner may appeal to 

the National Transportation Safety 

Board. 

(c) In the case of an emergency order 

amending, modifying, suspending, or 

revoking a type certificate, production 

certificate, airworthiness certificate, 

airman certificate, air carrier operating 

certificate, air navigation facility 

certificate, or air agency certificate, a 

person affected by the immediate 

effectiveness of the Administrator’s 

order may petition the National 

Transportation Safety Board for a review 

of the Administrator’s determination 

that an emergency exists. 

(d) A person may not petition the 

National Transportation Safety Board 

for a review of the Administrator’s 

determination that safety in air 

transportation or air commerce requires 

the immediate effectiveness of an order 

where the action is based on the 

circumstances described in paragraph 

(d)(1), (2), or (3) of this section. 

(1) The revocation of an individual’s 

airman certificates for the reasons stated 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54531 

in paragraph (d)(1)(i) or (ii) of this 

section: 

(i) A conviction under a law of the 

United States or a State related to a 

controlled substance (except a law 

related to simple possession of a 

controlled substance), of an offense 

punishable by death or imprisonment 

for more than one year if the 

Administrator finds that— 

(A) An aircraft was used to commit, 

or facilitate the commission of the 

offense; and 

(B) The individual served as an 

airman, or was on the aircraft, in 

connection with committing, or 

facilitating the commission of, the 

offense. 

(ii) Knowingly carrying out an activity 

punishable, under a law of the United 

States or a State related to a controlled 

substance (except a law related to 

simple possession of a controlled 

substance), by death or imprisonment 

for more than one year; and— 

(A) An aircraft was used to carry out 

or facilitate the activity; and 

(B) The individual served as an 

airman, or was on the aircraft, in 

connection with carrying out, or 

facilitating the carrying out of, the 

activity. 

(2) The revocation of a certificate of 

registration for an aircraft, and any other 

aircraft the owner of that aircraft holds, 

if the Administrator finds that— 

(i) The aircraft was used to carry out 

or facilitate an activity punishable, 

under a law of the United States or a 

State related to a controlled substance 

(except a law related to simple 

possession of a controlled substance), by 

death or imprisonment for more than 

one year; and 

(ii) The owner of the aircraft 

permitted the use of the aircraft 

knowing that the aircraft was to be used 

for the activity described in paragraph 

(d)(2)(i) of this section. 

(3) The revocation of an airman 

certificate, design organization 

certificate, type certificate, production 

certificate, airworthiness certificate, air 

carrier operating certificate, airport 

operating certificate, air agency 

certificate, or air navigation facility 

certificate if the Administrator finds that 

the holder of the certificate or an 

individual who has a controlling or 

ownership interest in the holder— 

(i) Was convicted in a court of law of 

a violation of a law of the United States 

relating to the installation, production, 

repair, or sale of a counterfeit or 

fraudulently-represented aviation part 

or material; or 

(ii) Knowingly, and with the intent to 

defraud, carried out or facilitated an 

activity described in paragraph (d)(3)(i) 

of this section. 

§ 13.20 Orders of compliance, cease and 

desist orders, orders of denial, and other 

orders. 

(a) General. This section applies to all 

of the following: 

(1) Orders of compliance; 

(2) Cease and desist orders; 

(3) Orders of denial; 

(4) Orders suspending or revoking a 

certificate of registration (but not 

revocation of a certificate of registration 

because the aircraft was used to carry 

out or facilitate an activity punishable, 

under a law of the United States or a 

State related to a controlled substance 

(except a law related to simple 

possession of a controlled substance), by 

death or imprisonment for more than 

one year and the owner of the aircraft 

permitted the use of the aircraft 

knowing that the aircraft was to be used 

for the activity); and 

(5) Other orders issued by the 

Administrator to carry out the 

provisions of the Federal aviation 

statute codified at 49 U.S.C. subtitle VII 

that apply this section by statute, rule, 

regulation, or order, or for which there 

is no specific administrative process 

provided by statute, rule, regulation, or 

order. 

(b) Applicability of procedures. (1) 

Prior to the issuance of a nonimmediately effective order covered by 

this section, the Administrator will 

provide the person who would be 

subject to the order with notice, 

advising the person of the charges or 

other reasons upon which the proposed 

action is based, and the provisions in 

paragraph (c) of this section apply. 

(2) If the Administrator is of the 

opinion that an emergency exists related 

to safety in air commerce and requires 

immediate action and issues an order 

covered by this section that is 

immediately effective, the provisions of 

paragraph (d) of this section apply. 

(c) Non-emergency procedures. (1) 

Within 30 days after service of the 

notice, the person subject to the notice 

may: 

(i) Submit a written reply; 

(ii) Agree to the issuance of the order 

as proposed in the notice of proposed 

action, waiving any right to contest or 

appeal the agreed-upon order issued 

under this option in any administrative 

or judicial forum; 

(iii) Submit a written request for an 

informal conference to discuss the 

matter with an agency attorney; or 

(iv) Request a hearing in accordance 

with the non-emergency procedures of 

subpart D of this part. 

(2) After an informal conference is 

held or a reply is filed, if the agency 

attorney notifies the person that some or 

all of the proposed agency action will 

not be withdrawn, the person may, 

within 10 days after receiving the 

agency attorney’s notification, request a 

hearing on the parts of the proposed 

agency action not withdrawn, in 

accordance with the non-emergency 

procedures of subpart D of this part. 

(3) If a hearing is requested in 

accordance with paragraph (c)(1)(iv) or 

(c)(2) of this section, the non-emergency 

procedures of subpart D of this part 

apply. 

(4) Failure to request a hearing within 

the periods provided in paragraph 

(c)(1)(iv) or (c)(2) of this section: 

(i) Constitutes a waiver of the right to 

a hearing and appeal; and 

(ii) Authorizes the agency to make 

appropriate findings of fact and to issue 

an appropriate order without further 

notice or proceedings. 

(d) Emergency procedures. (1) If the 

Administrator is of the opinion that an 

emergency exists related to safety in air 

commerce and requires immediate 

action, the Administrator issues 

simultaneously: 

(i) An immediately effective order that 

expires 80 days after the date of 

issuance and sets forth the charges or 

other reasons upon which the order is 

based; and 

(ii) A notice of proposed action that: 

(A) Sets forth the charges or other 

reasons upon which the notice of 

proposed action is based; and 

(B) Advises that within 10 days after 

service of the notice, the person may 

appeal the notice by requesting an 

expedited hearing in accordance with 

the emergency procedures of subpart D 

of this part. 

(2) The Administrator will serve the 

immediately effective order and the 

notice of proposed action together by 

personal or overnight delivery and by 

certified or registered mail to the person 

subject to the order and notice of 

proposed action. 

(3) Failure to request a hearing 

challenging the notice of proposed 

action under the expedited procedures 

in subpart D of this part within 10 days 

after service of the notice: 

(i) Constitutes a waiver of the right to 

a hearing and appeal under subpart D of 

this part; and 

(ii) Authorizes the Administrator, 

without further notice or proceedings, to 

make appropriate findings of fact, issue 

an immediately effective order without 

expiration, and withdraw the 80-day 

immediately effective order. 

(4) The filing of a request for hearing 

under subpart D of this part does not 

stay the effectiveness of the 80-day 

54532 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

immediately effective order issued 

under this section. 

(e) Delegation of authority. The 

authority of the Administrator under 

this section is delegated to the Chief 

Counsel, each Deputy Chief Counsel, 

and the Assistant Chief Counsel for 

Enforcement. 

§§ 13.21 through 13.29 [Reserved] 

■ 5. Revise subpart D to read as follows: 

Subpart D—Rules of Practice for FAA 

Hearings 

Sec. 

13.31 Applicability. 

13.33 Parties, representatives, and notice of 

appearance. 

13.35 Request for hearing, complaint, and 

answer. 

13.37 Hearing officer: Assignment and 

powers. 

13.39 Disqualification of hearing officer. 

13.41 Separation of functions and 

prohibition on ex parte communications. 

13.43 Service and filing of pleadings, 

motions, and documents. 

13.44 [Reserved] 

13.45 Computation of time and extension of 

time. 

13.47 Withdrawal or amendment of the 

complaint, answer, or other filings. 

13.49 Motions. 

13.51 Intervention. 

13.53 Discovery. 

13.55 Notice of hearing. 

13.57 Subpoenas and witness fees. 

13.59 Evidence. 

13.61 Argument and submittals. 

13.63 Record, decision, and aircraft 

registration proceedings. 

13.65 Appeal to the Administrator, 

reconsideration, and judicial review. 

13.67 Procedures for expedited 

proceedings. 

13.69 Other matters: Alternative dispute 

resolution, standing orders, and forms. 

§ 13.31 Applicability. 

This subpart applies to proceedings in 

which a hearing has been requested in 

accordance with § 13.20 or § 13.75. 

Hearings under this subpart are 

considered informal and are provided 

through the Office of Adjudication. 

§ 13.33 Parties, representatives, and 

notice of appearance. 

(a) Parties. Parties to proceedings 

under this subpart include the 

following: Complainant, respondent, 

and where applicable, intervenor. 

(1) Complainant is the FAA Office 

that issued the notice of proposed action 

under the authorities listed in § 13.31. 

(2) Respondent is the party filing a 

request for hearing. 

(3) Intervenor is a person permitted to 

participate as a party under § 13.51. 

(b) Representatives. Any party to a 

proceeding under this subpart may 

appear and be heard in person or by a 

representative. A representative is an 

attorney, or another representative 

designated by the party. 

(c) Notice of appearance—(1) Content. 

The representative of a party must file 

a notice of appearance that includes the 

representative’s name, address, 

telephone number, and, if available, fax 

number, and email address. 

(2) Filing. A notice of appearance may 

be incorporated into an initial filing in 

a proceeding. A notice of appearance by 

additional representatives or substitutes 

after an initial filing in a proceeding 

must be filed independently. 

§ 13.35 Request for hearing, complaint, 

and answer. 

(a) Initial filing and service. A request 

for hearing must be filed with the FAA 

Hearing Docket, and a copy must be 

served on the official who issued the 

notice of proposed action, in accordance 

with the requirements in § 13.43 for 

filing and service of documents. The 

request for hearing must be in writing 

and describe the action proposed by the 

FAA, and must contain a statement that 

a hearing is requested under this 

subpart. 

(b) Complaint. Within 20 days after 

service of the copy of the request for 

hearing, the official who issued the 

notice of proposed action must forward 

a copy of that notice, which serves as 

the complaint, to the FAA Hearing 

Docket. 

(c) Answer. Within 30 days after 

service of the copy of the complaint, the 

Respondent must file an answer to the 

complaint. All allegations in the 

complaint not specifically denied in the 

answer are deemed admitted. 

§ 13.37 Hearing officer: Assignment and 

powers. 

As soon as practicable after the filing 

of the complaint, the Director of the 

Office of Adjudication will assign a 

hearing officer to preside over the 

matter. The hearing officer may— 

(a) Give notice concerning, and hold, 

prehearing conferences and hearings; 

(b) Administer oaths and affirmations; 

(c) Examine witnesses; 

(d) Adopt procedures for the 

submission of evidence in written form; 

(e) Issue subpoenas; 

(f) Rule on offers of proof; 

(g) Receive evidence; 

(h) Regulate the course of 

proceedings, including but not limited 

to discovery, motions practice, 

imposition of sanctions, and the 

hearing; 

(i) Hold conferences, before and 

during the hearing, to settle and 

simplify issues by consent of the parties; 

(j) Dispose of procedural requests and 

similar matters; 

(k) Issue protective orders governing 

the exchange and safekeeping of 

information otherwise protected by law, 

except that national security 

information may not be disclosed under 

such an order; 

(l) Issue orders and decisions, and 

make findings of fact, as appropriate; 

and 

(m) Take any other action authorized 

by this subpart. 

§ 13.39 Disqualification of hearing officer. 

(a) Motion and supporting affidavit. 

Any party may file a motion for 

disqualification under § 13.49(g). A 

party must state the grounds for 

disqualification, including, but not 

limited to, a financial or other personal 

interest that would be affected by the 

outcome of the enforcement action, 

personal animus against a party to the 

action or against a group to which a 

party belongs, prejudgment of the 

adjudicative facts at issue in the 

proceeding, or any other prohibited 

conflict of interest. A party must submit 

an affidavit with the motion for 

disqualification that sets forth, in detail, 

the matters alleged to constitute grounds 

for disqualification. 

(b) Timing. A motion for 

disqualification must be filed prior to 

the issuance of the hearing officer’s 

decision under § 13.63(b). Any party 

may file a response to a motion for 

disqualification, but must do so no later 

than 5 days after service of the motion 

for disqualification. 

(c) Decision on motion for 

disqualification. The hearing officer 

must render a decision on the motion 

for disqualification no later than 15 days 

after the motion has been filed. If the 

hearing officer finds that the motion for 

disqualification and supporting affidavit 

show a basis for disqualification, the 

hearing officer must withdraw from the 

proceedings immediately. If the hearing 

officer finds that disqualification is not 

warranted, the hearing officer must 

deny the motion and state the grounds 

for the denial on the record. If the 

hearing officer fails to rule on a party’s 

motion for disqualification within 15 

days after the motion has been filed, the 

motion is deemed granted. 

(d) Self-disqualification. A hearing 

officer may disqualify himself or herself 

at any time. 

§ 13.41 Separation of functions and 

prohibition on ex parte communications. 

(a) Separation of powers. The hearing 

officer independently exercises the 

powers under this subpart in a manner 

conducive to justice and the proper 

dispatch of business. The hearing officer 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54533 

must not participate in any appeal to the 

Administrator. 

(b) Ex parte communications. (1) No 

substantive ex parte communications 

between the hearing officer and any 

party are permitted. 

(2) A hearing, conference, or other 

event scheduled with prior notice will 

not constitute ex parte communication 

prohibited by this section. A hearing, 

conference, or other event scheduled 

with prior notice, may proceed in the 

hearing officer’s sole discretion if a 

party fails to appear, respond, or 

otherwise participate, and will not 

constitute an ex parte communication 

prohibited by this section. 

(3) For an appeal to the Administrator 

under this subpart, FAA attorneys 

representing the complainant must not 

advise the Administrator or engage in 

any ex parte communications with the 

Administrator or his advisors. 

§ 13.43 Service and filing of pleadings, 

motions, and documents. 

(a) General rule. A party must file all 

requests for hearing, pleadings, motions, 

and documents with the FAA Hearing 

Docket, and must serve a copy upon all 

parties to the proceedings. 

(b) Methods of filing. Filing must be 

by email, personal delivery, expedited 

or overnight courier express service, 

mail, or fax. 

(c) Address for filing. A person filing 

a document with the FAA Hearing 

Docket must use the address identified 

for the method of filing as follows: 

(1) If delivery is in person, or by 

expedited or overnight express courier 

service. Federal Aviation 

Administration, 600 Independence 

Avenue SW, Wilbur Wright Building— 

Suite 2W100, Washington, DC 20597; 

Attention: FAA Hearing Docket, AGC– 

70. 

(2) If delivery is via U.S. mail, or U.S. 

certified or registered mail. Federal 

Aviation Administration, 800 

Independence Avenue SW, Washington, 

DC 20591; Attention: FAA Hearing 

Docket, AGC–70, Wilbur Wright 

Building—Suite 2W100. 

(3) Contact information. The FAA 

Office of Adjudication will make 

available on its website an email 

address and fax number for the FAA 

Hearing Docket, as well as other contact 

information. 

(d) Requirement to file an original 

document and number of copies. A 

party must file an original document 

and one copy when filing by personal 

delivery or by mail. Only one copy must 

be filed if filing is accomplished by 

email or fax. 

(e) Filing by email. A document that 

is filed by email must be attached as a 

Portable Document Format (PDF) file to 

an email. The document must be signed 

in accordance with § 13.207. The email 

message does not constitute a 

submission, but serves only to deliver 

the attached PDF file to the FAA 

Hearing Docket. 

(f) Methods of service—(1) General. A 

person may serve any document by 

email, personal delivery, expedited or 

overnight courier express service, mail, 

or fax. 

(2) Service by email. Service of 

documents by email is voluntary and 

requires the prior consent of the person 

to be served by email. A person may 

retract consent to be served by email by 

filing and serving a written retraction. A 

document that is served by email must 

be attached as a PDF file to an email 

message. 

(g) Certificate of service. A certificate 

of service must accompany all 

documents filed with the FAA Hearing 

Docket. The certificate of service must 

be signed, describe the method of 

service, and state the date of service. 

(h) Date of filing and service. If a 

document is sent by fax or email, the 

date of filing and service is the date the 

email or fax is sent. If a document is 

sent by personal delivery or by 

expedited or overnight express courier 

service, the date of filing and service is 

the date that delivery is accomplished. 

If a document is mailed, the date of 

filing and service is the date shown on 

the certificate of service, the date shown 

on the postmark if there is no certificate 

of service, or the mailing date shown by 

other evidence if there is no certificate 

of service or postmark. 

§ 13.44 [Reserved] 

§ 13.45 Computation of time and extension 

of time. 

(a) In computing any period of time 

prescribed or allowed by this subpart, 

the date of the act, event, default, notice, 

or order is not to be included in the 

computation. The last day of the period 

so computed is to be included unless it 

is a Saturday, Sunday, or Federal 

holiday, in which event the period runs 

until the end of the next day that is not 

a Saturday, Sunday, or a Federal 

holiday. 

(b) Whenever a party must respond 

within a prescribed period after service 

by mail, 5 days are added to the 

prescribed period. 

(c) The parties may agree to extend 

the time for filing any document 

required by this subpart with the 

consent of— 

(1) The Director of the Office of 

Adjudication prior to the designation of 

a hearing officer; 

(2) The hearing officer prior to the 

filing of a notice of appeal; or 

(3) The Director of the Office of 

Adjudication after the filing of a notice 

of appeal. 

(d) If the parties do not agree, a party 

may make a written request to extend 

the time for filing to the appropriate 

official identified in paragraph (c) of 

this section. The appropriate official 

may grant the request for good cause 

shown. 

§ 13.47 Withdrawal or amendment of the 

complaint, answer, or other filings. 

(a) Withdrawal. At any time before the 

hearing, the complainant may withdraw 

the complaint, and the respondent may 

withdraw the request for hearing. 

(b) Amendments. At any time more 

than 10 days before the date of hearing, 

any party may amend its complaint, 

answer, or other pleading, by filing the 

amendment with the FAA Hearing 

Docket and serving a copy of it on every 

other party. After that time, amendment 

requires approval of the hearing officer. 

If an initial pleading is amended, the 

hearing officer must allow the other 

parties a reasonable opportunity to 

respond. 

§ 13.49 Motions. 

(a) Motions in lieu of an answer. A 

respondent may file a motion to dismiss 

or a motion for a more definite 

statement in place of an answer. If the 

hearing officer denies the motion, the 

respondent must file an answer within 

10 days. 

(1) Motion to dismiss. The respondent 

may file a motion asserting that the 

allegations in the complaint fail to state 

a violation of Federal aviation statutes, 

a violation of regulations in this chapter, 

lack of qualification of the respondent, 

or other appropriate grounds. 

(2) Motion for more definite 

statement. The respondent may file a 

motion that the allegations in the notice 

be made more definite and certain. 

(b) Motion to dismiss request for 

hearing. The FAA may file a motion to 

dismiss a request for hearing based on 

jurisdiction, timeliness, or other 

appropriate grounds. 

(c) Motion for decision on the 

pleadings or for summary decision. 

After the complaint and answer are 

filed, either party may move for a 

decision on the pleadings or for a 

summary decision, in the manner 

provided by Rules 12 and 56, 

respectively, of the Federal Rules of 

Civil Procedure. 

(d) Motion to strike. Upon motion of 

either party, the hearing officer may 

order stricken, from any pleadings, any 

insufficient allegation or defense, or any 

54534 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

redundant, immaterial, impertinent, or 

scandalous matter. 

(e) Motion to compel. Any party may 

file a motion asking the hearing officer 

to order any other party to produce 

discovery requested in accordance with 

§ 13.53 if— 

(1) The other party has failed to 

timely produce the requested discovery; 

and 

(2) The moving party certifies it has 

in good faith conferred with the other 

party in an attempt to obtain the 

requested discovery prior to filing the 

motion to compel. 

(f) Motion for protective order. The 

hearing officer may order information 

contained in anything filed, or in any 

testimony given pursuant to this subpart 

withheld from public disclosure when, 

in the judgment of the hearing officer, 

disclosure would be detrimental to 

aviation safety; disclosure would not be 

in the public interest; or the information 

is not otherwise required to be made 

available to the public. Any person may 

make written objection to the public 

disclosure of any information, stating 

the ground for such objection. 

(g) Other motions. Any application for 

an order or ruling not otherwise 

provided for in this subpart must be 

made by motion. 

(h) Responses to motions. Any party 

may file a response to any motion under 

this subpart within 10 days after service 

of the motion. 

§ 13.51 Intervention. 

Any person may move for leave to 

intervene in a proceeding and may 

become a party thereto, if the hearing 

officer, after the case is sent to the 

hearing officer for hearing, finds that the 

person may be bound by the order to be 

issued in the proceedings or has a 

property or financial interest that may 

not be adequately represented by 

existing parties, and that the 

intervention will not unduly broaden 

the issues or delay the proceedings. 

Except for good cause shown, a motion 

for leave to intervene may not be 

considered if it is filed less than 10 days 

before the hearing. 

§ 13.53 Discovery. 

(a) Filing. Discovery requests and 

responses are not filed with the FAA 

Hearing Docket unless in support of a 

motion, offered for impeachment, or 

other permissible circumstances as 

approved by the hearing officer. 

(b) Scope of discovery. Any party may 

discover any matter that is not 

privileged and is relevant to any party’s 

claim or defense. 

(c) Time for response to written 

discovery requests. (1) Written discovery 

includes interrogatories, requests for 

admission or stipulations, and requests 

for production of documents. 

(2) Unless otherwise directed by the 

hearing officer, a party must serve its 

response to a discovery request no later 

than 30 days after service of the 

discovery request. 

(d) Depositions. After the respondent 

has filed a request for hearing and an 

answer, either party may take testimony 

by deposition. 

(e) Limits on discovery. The hearing 

officer may limit the frequency and 

extent of discovery upon a showing by 

a party that— 

(1) The discovery requested is 

cumulative or repetitious; 

(2) The discovery requested can be 

obtained from another less burdensome 

and more convenient source; 

(3) The party requesting the 

information has had ample opportunity 

to obtain the information through other 

discovery methods permitted under this 

section; or 

(4) The method or scope of discovery 

requested by the party is unduly 

burdensome or expensive. 

§ 13.55 Notice of hearing. 

The hearing officer must set a 

reasonable date, time, and location for 

the hearing, and must give the parties 

adequate notice thereof, and of the 

nature of the hearing. Due regard must 

be given to the convenience of the 

parties with respect to the location of 

the hearing. 

§ 13.57 Subpoenas and witness fees. 

(a) Application. The hearing officer, 

upon application by any party to the 

proceeding, may issue subpoenas 

requiring the attendance of witnesses or 

the production of documents or tangible 

things at a hearing or for the purpose of 

taking depositions, as permitted by law. 

The application for producing evidence 

must show its general relevance and 

reasonable scope. Absent good cause 

shown, a party must file a request for a 

subpoena at least: 

(1) 15 days before a scheduled 

deposition under the subpoena; or 

(2) 30 days before a scheduled hearing 

where attendance at the hearing is 

sought. 

(b) Procedure. A party seeking the 

production of a document in the 

custody of an FAA employee must use 

the discovery procedure found in 

§ 13.53, and if necessary, a motion to 

compel under § 13.49. A party that 

applies for the attendance of an FAA 

employee at a hearing must send the 

application, in writing, to the hearing 

officer. The application must set forth 

the need for that employee’s attendance. 

(c) Fees. Except for an employee of the 

agency who appears at the direction of 

the agency, a witness who appears at a 

deposition or hearing is entitled to the 

same fees and allowances as provided 

for under 28 U.S.C. 1821. The party who 

applies for a subpoena to compel the 

attendance of a witness at a deposition 

or hearing, or the party at whose request 

a witness appears at a deposition or 

hearing, must pay the witness fees and 

allowances described in this section. 

(d) Service of subpoenas. Any person 

who is at least 18 years old and not a 

party may serve a subpoena. Serving a 

subpoena requires delivering a copy to 

the named person. Except for the 

complainant, the party that requested 

the subpoena must tender at the time of 

service the fees for 1 day’s attendance 

and the allowances allowed by law if 

the subpoena requires that person’s 

attendance. Proving service, if 

necessary, requires the filing with the 

FAA Hearing Docket of a statement 

showing the date and manner of service 

and the names of the persons served. 

The server must certify the statement. 

(e) Motion to quash or modify the 

subpoena. A party, or any person served 

with a subpoena, may file a motion to 

quash or modify the subpoena with the 

hearing officer at or before the time 

specified in the subpoena for 

compliance. The movant must describe, 

in detail, the basis for the application to 

quash or modify the subpoena 

including, but not limited to, a 

statement that the testimony, document, 

or tangible thing is not relevant to the 

proceeding, that the subpoena is not 

reasonably tailored to the scope of the 

proceeding, or that the subpoena is 

unreasonable and oppressive. A motion 

to quash or modify the subpoena will 

stay the effect of the subpoena pending 

a decision by the hearing officer on the 

motion. 

(f) Enforcement of subpoena. If a 

person disobeys a subpoena, a party 

may apply to a U.S. district court to seek 

judicial enforcement of the subpoena. 

§ 13.59 Evidence. 

(a) Each party to a hearing may 

present the party’s case or defense by 

oral or documentary evidence, submit 

evidence in rebuttal, and conduct such 

cross-examination as may be needed for 

a full disclosure of the facts. 

(b) Except with respect to affirmative 

defenses and notices of proposed denial, 

the burden of proof is upon the 

complainant. 

§ 13.61 Argument and submittals. 

The hearing officer must give the 

parties adequate opportunity to present 

arguments in support of motions, 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54535 

objections, and the final order. The 

hearing officer may determine whether 

arguments are to be oral or written. At 

the end of the hearing, the hearing 

officer may allow each party to submit 

written proposed findings and 

conclusions and supporting reasons for 

them. 

§ 13.63 Record, decision, and aircraft 

registration proceedings. 

(a) The record. (1) The testimony and 

exhibits admitted at a hearing, together 

with all papers, requests, and rulings 

filed in the proceedings, are the 

exclusive basis for the issuance of the 

hearing officer’s decision. 

(2) On appeal to the Administrator, 

the record shall include all of the 

information identified in paragraph 

(a)(1) of this section and evidence 

proffered but not admitted at the 

hearing. 

(3) Any party may obtain a transcript 

of the hearing from the official reporter 

upon payment of the required fees. 

(b) Hearing officer’s decision. The 

decision by the hearing officer must 

include findings of fact based on the 

record, conclusions of law, and an 

appropriate order. 

(c) Certain aircraft registration 

proceedings. If the hearing officer 

determines that an aircraft is ineligible 

for a certificate of aircraft registration in 

proceedings relating to aircraft 

registration orders suspending or 

revoking a certificate of registration 

under § 13.20, the hearing officer may 

suspend or revoke the aircraft 

registration certificate. 

§ 13.65 Appeal to the Administrator, 

reconsideration, and judicial review. 

(a) Any party to a hearing may appeal 

from the order of the hearing officer by 

filing with the FAA Hearing Docket a 

notice of appeal to the Administrator 

within 20 days after the date of issuance 

of the order. Filing and service of the 

notice of appeal, and any other papers, 

are accomplished according to the 

procedures in § 13.43. 

(b) If a notice of appeal is not filed 

from the order issued by a hearing 

officer, such order is final with respect 

to the parties. Such order is not binding 

precedent and is not subject to judicial 

review. 

(c) Any person filing an appeal 

authorized by paragraph (a) of this 

section must file an appeal brief with 

the Administrator within 40 days after 

the date of issuance of the order, and 

serve a copy on the other party. A reply 

brief must be filed within 40 days after 

service of the appeal brief and a copy 

served on the appellant. 

(d) On appeal, the Administrator 

reviews the record of the proceeding 

and issues an order dismissing, 

reversing, modifying or affirming the 

order. The Administrator’s order 

includes the reasons for the 

Administrator’s action. The 

Administrator considers only whether: 

(1) Each finding of fact is supported 

by a preponderance of the reliable, 

probative, and substantial evidence; 

(2) Each conclusion is made in 

accordance with law, precedent, and 

policy; and 

(3) The hearing officer committed any 

prejudicial error. 

(e) The Director and legal personnel of 

the Office of Adjudication serve as the 

advisors to the Administrator for 

appeals under this section. 

(1) The Director has the authority to: 

(i) Manage all or portions of 

individual appeals; and to prepare 

written decisions and proposed final 

orders in such appeals; 

(ii) Issue procedural and other 

interlocutory orders aimed at proper 

and efficient appeal management, 

including, without limitation, 

scheduling and sanctions orders; 

(iii) Grant or deny motions to dismiss 

appeals; 

(iv) Dismiss appeals upon request of 

the appellant or by agreement of the 

parties; 

(v) Stay decisions and orders of the 

Administrator, pending judicial review 

or reconsideration by the Administrator; 

(vi) Summarily dismiss repetitious or 

frivolous petitions to reconsider or 

modify orders; 

(vii) Correct typographical, 

grammatical, and similar errors in the 

Administrator’s decisions and orders, 

and to make non-substantive editorial 

changes; and 

(viii) Take all other reasonable steps 

deemed necessary and proper for the 

management of the appeals process, in 

accordance with this part and 

applicable law. 

(2) The Director’s authority in 

paragraph (e)(1) of this section may be 

re-delegated, as necessary, except to 

hearing officers and others materially 

involved in the hearing that is the 

subject of the appeal. 

(f) Motions to reconsider the final 

order of the Administrator must be filed 

with the FAA Hearing Docket within 

thirty days of service of the 

Administrator’s order. 

(g) Judicial review of the 

Administrator’s final order under this 

section is provided in accordance with 

49 U.S.C. 5127 or 46110, as applicable. 

§ 13.67 Procedures for expedited 

proceedings. 

(a) When an expedited administrative 

hearing is requested in accordance with 

§ 13.20(d), the procedures in this 

subpart will apply except as provided in 

paragraphs (a)(1) through (7) of this 

section. 

(1) Service and filing of pleadings, 

motions, and documents must be by 

overnight delivery, and fax or email. 

Responses to motions must be filed 

within 7 days after service of the 

motion. 

(2) Within 3 days after receipt of the 

request for hearing, the agency must file 

a copy of the notice of proposed action, 

which serves as the complaint, to the 

FAA Hearing Docket. 

(3) Within 3 days after receipt of the 

complaint, the person that requested the 

hearing must file an answer to the 

complaint. All allegations in the 

complaint not specifically denied in the 

answer are deemed admitted. Failure to 

file a timely answer, absent a showing 

of good cause, constitutes withdrawal of 

the request for hearing. 

(4) Within 3 days of the filing of the 

complaint, the Director of the Office of 

Adjudication will assign a hearing 

officer to preside over the matter. 

(5) The parties must serve discovery 

as soon as possible and set time limits 

for compliance with discovery requests 

that accommodate the accelerated 

adjudication schedule set forth in this 

subpart. The hearing officer will resolve 

any failure of the parties to agree to a 

discovery schedule. 

(6) The expedited hearing must 

commence within 40 days after the 

notice of proposed action was issued. 

(7) The hearing officer must issue an 

oral decision and order dismissing, 

reversing, modifying, or affirming the 

notice of proposed action at the close of 

the hearing. If a notice of appeal is not 

filed, such order is final with respect to 

the parties and is not subject to judicial 

review. 

(b) Any party to the expedited hearing 

may appeal from the initial decision of 

the hearing officer to the Administrator 

by filing a notice of appeal within 3 

days after the date on which the 

decision was issued. The time 

limitations for the filing of documents 

for appeals under this section will not 

be extended by reason of the 

unavailability of the hearing transcript. 

(1) Any appeal to the Administrator 

under this section must be perfected 

within 7 days after the date the notice 

of appeal was filed by filing a brief in 

support of the appeal. Any reply to the 

appeal brief must be filed within 7 days 

after the date the appeal brief was 

served on that party. The Administrator 

must issue an order deciding the appeal 

no later than 80 days after the date the 

notice of proposed action was issued. 

54536 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

(2) The Administrator’s order is 

immediately effective and constitutes 

the final agency decision. The 

Administrator’s order may be appealed 

pursuant to 49 U.S.C. 46110. The filing 

of an appeal under 49 U.S.C. 46110 does 

not stay the effectiveness of the 

Administrator’s order. 

(c) At any time after an immediately 

effective order is issued, the FAA may 

request the United States Attorney 

General, or the delegate of the Attorney 

General, to bring an action for 

appropriate relief. 

§ 13.69 Other matters: Alternative dispute 

resolution, standing orders, and forms. 

(a) Parties may use mediation to 

achieve resolution of issues in 

controversy addressed by this subpart. 

Parties seeking alternative dispute 

resolution services may engage the 

services of a mutually acceptable 

mediator. The mediator must not 

participate in the adjudication under 

this subpart of any matter in which the 

mediator has provided mediation 

services. Mediation discussions and 

submissions will remain confidential 

consistent with the provisions of the 

Administrative Dispute Resolution Act, 

the principles of Federal Rule of 

Evidence 408, and other applicable 

Federal laws. 

(b) The Director of the Office of 

Adjudication may issue standing orders 

and forms needed for the proper 

dispatch of business under this subpart. 

■ 6. Revise subpart E to read as follows: 

Subpart E—Orders of Compliance 

Under the Hazardous Materials 

Transportation Act 

Sec. 

13.71 Applicability. 

13.73 Notice of proposed order of 

compliance. 

13.75 Reply or request for hearing. 

13.77 Consent order of compliance. 

13.79 [Reserved] 

13.81 Emergency orders. 

13.83 through 13.87 [Reserved] 

§ 13.71 Applicability. 

(a) An order of compliance may be 

issued after notice and an opportunity 

for a hearing in accordance with 

§§ 13.73 through 13.77 whenever the 

Chief Counsel, a Deputy Chief Counsel, 

or the Assistant Chief Counsel for 

Enforcement has reason to believe that 

a person is engaging in the 

transportation or shipment by air of 

hazardous materials in violation of the 

Hazardous Materials Transportation 

Act, as amended and codified at 49 

U.S.C. chapter 51, or any rule, 

regulation, or order issued under 49 

U.S.C. chapter 51, for which the FAA 

exercises enforcement responsibility, 

and the circumstances do not require 

the issuance of an emergency order 

under 49 U.S.C. 5121(d). 

(b) If circumstances require the 

issuance of an emergency order under 

49 U.S.C. 5121(d), the Chief Counsel, a 

Deputy Chief Counsel, or the Assistant 

Chief Counsel for Enforcement will 

issue an emergency order of compliance 

as described in § 13.81. 

§ 13.73 Notice of proposed order of 

compliance. 

The Chief Counsel, a Deputy Chief 

Counsel, or the Assistant Chief Counsel 

for Enforcement may issue to an alleged 

violator a notice of proposed order of 

compliance advising the alleged violator 

of the charges and setting forth the 

remedial action sought in the form of a 

proposed order of compliance. 

§ 13.75 Reply or request for hearing. 

(a) Within 30 days after service upon 

the alleged violator of a notice of 

proposed order of compliance, the 

alleged violator may— 

(1) Submit a written reply; 

(2) Submit a written request for an 

informal conference to discuss the 

matter with an agency attorney; or 

(3) Request a hearing in accordance 

with subpart D of this part. 

(b) If, after an informal conference is 

held or a reply is filed, the agency 

attorney notifies the person named in 

the notice that some or all of the 

proposed agency action will not be 

withdrawn or will not be subject to a 

consent order of compliance, the alleged 

violator may, within 10 days after 

receiving the agency attorney’s 

notification, request a hearing in 

accordance with subpart D of this part. 

(c) Failure of the alleged violator to 

file a reply or request a hearing within 

the period provided in paragraph (a) or 

(b) of this section, as applicable— 

(1) Constitutes a waiver of the right to 

a hearing under subpart D of this part 

and the right to petition for judicial 

review; and 

(2) Authorizes the Administrator to 

make any appropriate findings of fact 

and to issue an appropriate order of 

compliance, without further notice or 

proceedings. 

§ 13.77 Consent order of compliance. 

(a) At any time before the issuance of 

an order of compliance, an agency 

attorney and the alleged violator may 

agree to dispose of the case by the 

issuance of a consent order of 

compliance. 

(b) The alleged violator may submit a 

proposed consent order to an agency 

attorney. The proposed consent order 

must include— 

(1) An admission of all jurisdictional 

facts; 

(2) An express waiver of the right to 

further procedural steps and of all rights 

to legal review in any forum; 

(3) An express waiver of attorney’s 

fees and costs; 

(4) If a notice has been issued prior to 

the proposed consent order of 

compliance, an incorporation by 

reference of the notice and an 

acknowledgement that the notice may 

be used to construe the terms of the 

consent order of compliance; and 

(5) If a request for hearing is pending 

in any forum, a provision that the 

alleged violator will withdraw the 

request for a hearing and request that 

the case be dismissed. 

§ 13.79 [Reserved] 

§ 13.81 Emergency orders. 

(a) Notwithstanding §§ 13.73 through 

13.77, the Chief Counsel, each Deputy 

Chief Counsel, or the Assistant Chief 

Counsel for Enforcement may issue an 

emergency order of compliance, which 

is effective upon issuance, in 

accordance with the procedures in 

subpart C of 49 CFR part 109, if the 

person who issues the order finds that 

there is an ‘‘imminent hazard’’ as 

defined in 49 CFR 109.1. 

(b) The FAA official who issued the 

emergency order of compliance may 

rescind or suspend the order if the 

criteria set forth in paragraph (a) of this 

section are no longer satisfied, and, 

when appropriate, may issue a notice of 

proposed order of compliance under 

§ 13.73. 

(c) If at any time in the course of a 

proceeding commenced in accordance 

with § 13.73 the criteria set forth in 

paragraph (a) of this section are 

satisfied, the official who issued the 

notice may issue an emergency order of 

compliance, even if the period for filing 

a reply or requesting a hearing specified 

in § 13.75 has not expired. 

§§ 13.83 through 13.87 [Reserved] 

■ 7. Revise subpart F to read as follows: 

Subpart F—Formal Fact-Finding 

Investigation Under an Order of 

Investigation 

Sec. 

13.101 Applicability. 

13.103 Order of investigation. 

13.105 Notification. 

13.107 Designation of additional parties. 

13.109 Convening the investigation. 

13.111 Subpoenas. 

13.113 Noncompliance with the 

investigative process. 

13.115 Public proceedings. 

13.117 Conduct of investigative proceeding 

or deposition. 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54537 

13.119 Immunity and orders requiring 

testimony or other information. 

13.121 Witness fees. 

13.123 Submission by party to the 

investigation. 

13.125 Depositions. 

13.127 Reports, decisions, and orders. 

13.129 Post-investigation action. 

13.131 Other procedures. 

§ 13.101 Applicability. 

(a) This subpart applies to fact-finding 

investigations in which an investigation 

has been ordered under § 13.3(c) or 

§ 13.5(f)(2). 

(b) This subpart does not limit the 

authority of any person to issue 

subpoenas, administer oaths, examine 

witnesses, and receive evidence in any 

informal investigation as otherwise 

provided by law. 

§ 13.103 Order of investigation. 

The order of investigation— 

(a) Defines the scope of the 

investigation by describing the 

information sought in terms of its 

subject matter or its relevancy to 

specified FAA functions; 

(b) Sets forth the form of the 

investigation which may be either by 

individual deposition or investigative 

proceeding or both; and 

(c) Names the official who is 

authorized to conduct the investigation 

and serve as the presiding officer. 

§ 13.105 Notification. 

Any person under investigation and 

any person required to testify and 

produce documentary or physical 

evidence during the investigation will 

be advised of the purpose of the 

investigation, and of the place where the 

investigative proceeding or deposition 

will be convened. This may be 

accomplished by a notice of 

investigation or by a subpoena. A copy 

of the order of investigation may be sent 

to such persons when appropriate. 

§ 13.107 Designation of additional parties. 

(a) The presiding officer may 

designate additional persons as parties 

to the investigation, if in the discretion 

of the presiding officer, it will aid in the 

conduct of the investigation. 

(b) The presiding officer may 

designate any person as a party to the 

investigation if— 

(1) The person petitions the presiding 

officer to participate as a party; 

(2) The disposition of the 

investigation may as a practical matter 

impair the ability to protect the person’s 

interest unless allowed to participate as 

a party; and 

(3) The person’s interest is not 

adequately represented by existing 

parties. 

§ 13.109 Convening the investigation. 

The presiding officer will conduct the 

investigation at a location convenient to 

the parties involved and as expeditious 

and efficient as handling of the 

investigation permits. 

§ 13.111 Subpoenas. 

(a) At the discretion of the presiding 

officer, or at the request of a party to the 

investigation, the presiding officer may 

issue a subpoena directing any person to 

appear at a designated time and place to 

testify or to produce documentary or 

physical evidence relating to any matter 

under investigation. 

(b) Subpoenas must be served by 

personal service on the person or an 

agent designated in writing for the 

purpose, or by registered or certified 

mail addressed to the person or agent. 

Whenever service is made by registered 

or certified mail, the date of mailing will 

be considered the time when service is 

made. 

(c) Subpoenas extend in jurisdiction 

throughout the United States and any 

territory or possession thereof. 

§ 13.113 Noncompliance with the 

investigative process. 

(a) If a person disobeys a subpoena, 

the Administrator or a party to the 

investigation may petition a court of the 

United States to enforce the subpoena in 

accordance with applicable statutes. 

(b) If a party to the investigation fails 

to comply with the provisions of this 

subpart or an order issued by the 

presiding officer, the Administrator may 

bring a civil action to enforce the 

requirements of this subpart or any 

order issued under this subpart in a 

court of the United States in accordance 

with applicable statutes. 

§ 13.115 Public proceedings. 

(a) All investigative proceedings and 

depositions must be public unless the 

presiding officer determines that the 

public interest requires otherwise. 

(b) The presiding officer may order 

information contained in any report or 

document filed or in any testimony 

given pursuant to this subpart withheld 

from public disclosure when, in the 

judgment of the presiding officer, 

disclosure would adversely affect the 

interests of any person and is not 

required in the public interest or is not 

otherwise required by statute to be made 

available to the public. Any person may 

make written objection to the public 

disclosure of information, stating the 

grounds for such objection. 

§ 13.117 Conduct of investigative 

proceeding or deposition. 

(a) The presiding officer may question 

witnesses. 

(b) Any witness may be accompanied 

by counsel. 

(c) Any party may be accompanied by 

counsel and either the party or counsel 

may— 

(1) Question witnesses, provided the 

questions are relevant and material to 

the matters under investigation and 

would not unduly impede the progress 

of the investigation; and 

(2) Make objections on the record and 

argue the basis for such objections. 

(d) Copies of all notices or written 

communications sent to a party or 

witness must, upon request, be sent to 

that person’s attorney of record. 

§ 13.119 Immunity and orders requiring 

testimony or other information. 

(a) Whenever a person refuses, on the 

basis of a privilege against selfincrimination, to testify or provide other 

information during the course of any 

investigation conducted under this 

subpart, the presiding officer may, with 

the approval of the United States 

Attorney General, or the delegate of the 

Attorney General, issue an order 

requiring the person to give testimony 

or provide other information. However, 

no testimony or other information so 

compelled (or any information directly 

or indirectly derived from such 

testimony or other information) may be 

used against the person in any criminal 

case, except in a prosecution for perjury, 

giving a false statement, or otherwise 

failing to comply with the order. 

(b) The presiding officer may issue an 

order under this section if— 

(1) The testimony or other 

information from the witness may be 

necessary to the public interest; and 

(2) The witness has refused or is 

likely to refuse to testify or provide 

other information on the basis of a 

privilege against self-incrimination. 

(c) Immunity provided by this section 

will not become effective until the 

person has refused to testify or provide 

other information on the basis of a 

privilege against self-incrimination, and 

an order under this section has been 

issued. An order, however, may be 

issued prospectively to become effective 

in the event of a claim of the privilege. 

§ 13.121 Witness fees. 

All witnesses appearing, other than 

employees of the Federal Aviation 

Administration, are entitled to the same 

fees and allowances as provided for 

under 28 U.S.C. 1821. 

§ 13.123 Submission by party to the 

investigation. 

(a) During an investigation conducted 

under this subpart, a party may submit 

to the presiding officer— 

54538 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

(1) A list of witnesses to be called, 

specifying the subject matter of the 

expected testimony of each witness; and 

(2) A list of exhibits to be considered 

for inclusion in the record. 

(b) If the presiding officer determines 

that the testimony of a witness or the 

receipt of an exhibit in accordance with 

paragraph (a) of this section will be 

relevant, competent, and material to the 

investigation, the presiding officer may 

subpoena the witness or use the exhibit 

during the investigation. 

§ 13.125 Depositions. 

Depositions for investigative purposes 

may be taken at the discretion of the 

presiding officer with reasonable notice 

to the party under investigation. 

Depositions must be taken before the 

presiding officer or other person 

authorized to administer oaths and 

designated by the presiding officer. The 

testimony must be reduced to writing by 

the person taking the deposition, or 

under the direction of that person, and 

where possible must then be subscribed 

by the deponent. Any person may be 

compelled to appear and testify and to 

produce physical and documentary 

evidence. 

§ 13.127 Reports, decisions, and orders. 

The presiding officer must issue a 

written report based on the record 

developed during the formal 

investigation, including a summary of 

principal conclusions. A summary of 

principal conclusions must be prepared 

by the official who issued the order of 

investigation in every case that results 

in no action, or no action as to a 

particular party to the investigation. All 

such reports must be furnished to the 

parties to the investigation and made 

available to the public on request. 

§ 13.129 Post-investigation action. 

A decision on whether to initiate 

subsequent action must be made on the 

basis of the record developed during the 

formal investigation and any other 

information in the possession of the 

Administrator. 

§ 13.131 Other procedures. 

Any question concerning the scope or 

conduct of a formal investigation not 

covered in this subpart may be ruled on 

by the presiding officer on his or her 

own initiative, or on the motion of a 

party or a person testifying or producing 

evidence. 

■ 8. Revise subpart G to read as follows: 

Subpart G—Rules of Practice In FAA 

Civil Penalty Actions 

Sec. 

13.201 Applicability. 

13.202 Definitions. 

13.203 Separation of functions. 

13.204 Appearances and rights of parties. 

13.205 Administrative law judges. 

13.206 Intervention. 

13.207 Certification of documents. 

13.208 Complaint. 

13.209 Answer. 

13.210 Filing of documents. 

13.211 Service of documents. 

13.212 Computation of time. 

13.213 Extension of time. 

13.214 Amendment of pleadings. 

13.215 Withdrawal of complaint or request 

for hearing. 

13.216 Waivers. 

13.217 Joint procedural or discovery 

schedule. 

13.218 Motions. 

13.219 Interlocutory appeals. 

13.220 Discovery. 

13.221 Notice of hearing. 

13.222 Evidence. 

13.223 Standard of proof. 

13.224 Burden of proof. 

13.225 Offer of proof. 

13.226 Public disclosure of information. 

13.227 Expert or opinion witnesses. 

13.228 Subpoenas. 

13.229 Witness fees. 

13.230 Record. 

13.231 Argument before the administrative 

law judge. 

13.232 Initial decision. 

13.233 Appeal from initial decision. 

13.234 Petition to reconsider or modify a 

final decision and order of the FAA 

decisionmaker on appeal. 

13.235 Judicial review of a final decision 

and order. 

13.236 Alternative dispute resolution. 

§ 13.201 Applicability. 

This subpart applies to all civil 

penalty actions initiated under § 13.16 

in which a hearing has been requested. 

§ 13.202 Definitions. 

For this subpart only, the following 

definitions apply: 

Administrative law judge means an 

administrative law judge appointed 

pursuant to the provisions of 5 U.S.C. 

3105. 

Agency attorney means the Deputy 

Chief Counsel or the Assistant Chief 

Counsel responsible for the prosecution 

of enforcement-related matters under 

this subpart, or attorneys who are 

supervised by those officials or are 

assigned to prosecute a particular 

enforcement-related matter under this 

subpart. Agency attorney does not 

include the Chief Counsel or anyone 

from the Office of Adjudication. 

Complaint means a document issued 

by an agency attorney alleging a 

violation of a provision of the Federal 

aviation statute listed in the first 

sentence of 49 U.S.C. 46301(d)(2) or in 

49 U.S.C. 47531, or of the Federal 

hazardous materials transportation 

statute, 49 U.S.C. 5121–5128, or a rule, 

regulation, or order issued under those 

statutes, that has been filed with the 

FAA Hearing Docket after a hearing has 

been requested under § 13.16(f)(3) or 

(g)(2)(ii). 

Complainant means the FAA office 

that issued the notice of proposed civil 

penalty under § 13.16. 

FAA decisionmaker means the 

Administrator of the Federal Aviation 

Administration, acting in the capacity of 

the decisionmaker on appeal, or any 

person to whom the Administrator has 

delegated the Administrator’s 

decisionmaking authority in a civil 

penalty action. As used in this subpart, 

the FAA decisionmaker is the official 

authorized to issue a final decision and 

order of the Administrator in a civil 

penalty action. 

Mail includes U.S. mail, U.S. certified 

mail, U.S. registered mail, or use of an 

expedited or overnight express courier 

service, but does not include email. 

Office of Adjudication means the 

Federal Aviation Administration Office 

of Adjudication, including the FAA 

Hearing Docket, the Director of the 

Office of Adjudication and legal 

personnel, or any subsequently 

designated office (including its head 

and any legal personnel) that advises 

the FAA decisionmaker regarding 

appeals of initial decisions and orders to 

the FAA decisionmaker. 

Order assessing civil penalty means a 

document that contains a finding of a 

violation of a provision of the Federal 

aviation statute listed in the first 

sentence of 49 U.S.C. 46301(d)(2) or in 

49 U.S.C. 47531, or of the Federal 

hazardous materials transportation 

statute, 49 U.S.C. 5121–5128, or a rule, 

regulation, or order issued under those 

statutes, and may direct payment of a 

civil penalty. Unless an appeal is filed 

with the FAA decisionmaker in a timely 

manner, an initial decision or order of 

an administrative law judge is 

considered an order assessing civil 

penalty if an administrative law judge 

finds that an alleged violation occurred 

and determines that a civil penalty, in 

an amount found appropriate by the 

administrative law judge, is warranted. 

Unless a petition for review is filed with 

a U.S. Court of Appeals in a timely 

manner, a final decision and order of 

the Administrator is considered an 

order assessing civil penalty if the FAA 

decisionmaker finds that an alleged 

violation occurred and a civil penalty is 

warranted. 

Party means the Respondent, the 

complainant and any intervenor. 

Personal delivery includes handdelivery or use of a contract or express 

messenger service. ‘‘Personal delivery’’ 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54539 

does not include the use of Federal 

Government interoffice mail service. 

Pleading means a complaint, an 

answer, and any amendment of these 

documents permitted under this 

subpart. 

Properly addressed means a 

document that shows an address 

contained in agency records; a 

residential, business, or other address 

submitted by a person on any document 

provided under this subpart; or any 

other address shown by other 

reasonable and available means. 

Respondent means a person named in 

a complaint. 

Writing or written includes paper or 

electronic documents that are filed or 

served by email, mail, personal delivery, 

or fax. 

§ 13.203 Separation of functions. 

(a) Civil penalty proceedings, 

including hearings, are prosecuted by an 

agency attorney. 

(b) An agency employee who has 

engaged in the performance of 

investigative or prosecutorial functions 

in a civil penalty action must not 

participate in deciding or advising the 

administrative law judge or the FAA 

decisionmaker in that case, or a 

factually-related case, but may 

participate as counsel for the 

complainant or as a witness in the 

public proceedings. 

(c) The Chief Counsel and the Director 

and legal personnel of the Office of 

Adjudication will advise the FAA 

decisionmaker regarding any appeal of 

an initial decision or order in a civil 

penalty action to the FAA 

decisionmaker. 

§ 13.204 Appearances and rights of 

parties. 

(a) Any party may appear and be 

heard in person. 

(b) Any party may be accompanied, 

represented, or advised by an attorney 

or representative designated by the 

party, and may be examined by that 

attorney or representative in any 

proceeding governed by this subpart. An 

attorney or representative who 

represents a party must file a notice of 

appearance in the action, in the manner 

provided in § 13.210, and must serve a 

copy of the notice of appearance on 

each party, and on the administrative 

law judge, if assigned, in the manner 

provided in § 13.211, before 

participating in any proceeding 

governed by this subpart. The attorney 

or representative must include the 

name, address, and telephone number, 

and, if available, fax number and email 

address, of the attorney or 

representative in the notice of 

appearance. 

(c) Any person may request a copy of 

a document in the record upon payment 

of reasonable costs. A person may keep 

an original document, data, or evidence, 

with the consent of the administrative 

law judge, by substituting a legible copy 

of the document for the record. 

§ 13.205 Administrative law judges. 

(a) Powers of an administrative law 

judge. In accordance with the rules of 

this subpart, an administrative law 

judge may: 

(1) Give notice of, and hold, 

prehearing conferences and hearings; 

(2) Administer oaths and affirmations; 

(3) Issue subpoenas as authorized by 

law; 

(4) Rule on offers of proof; 

(5) Receive relevant and material 

evidence; 

(6) Regulate the course of the hearing 

in accordance with the rules of this 

subpart; 

(7) Hold conferences to settle or to 

simplify the issues by consent of the 

parties; 

(8) Dispose of procedural motions and 

requests; 

(9) Make findings of fact and 

conclusions of law, and issue an initial 

decision; 

(10) Bar a person from a specific 

proceeding based on a finding of 

obstreperous or disruptive behavior in 

that specific proceeding; and 

(11) Take any other action authorized 

by this subpart. 

(b) Limitations. The administrative 

law judge must not issue an order of 

contempt, award costs to any party, or 

impose any sanction not specified in 

this subpart. If the administrative law 

judge imposes any sanction not 

specified in this subpart, a party may 

file an interlocutory appeal of right 

under § 13.219(c). 

(c) Disqualification. The 

administrative law judge may disqualify 

himself or herself at any time. A party 

may file a motion for disqualification 

under § 13.218. 

§ 13.206 Intervention. 

(a) A person may submit a motion for 

leave to intervene as a party in a civil 

penalty action. Except for good cause 

shown, a motion for leave to intervene 

must be submitted not later than 10 

days before the hearing. 

(b) The administrative law judge may 

grant a motion for leave to intervene if 

the administrative law judge finds that 

intervention will not unduly broaden 

the issues or delay the proceedings 

and— 

(1) The person seeking to intervene 

will be bound by any order or decision 

entered in the action; or 

(2) The person seeking to intervene 

has a property, financial, or other 

legitimate interest that may not be 

addressed adequately by the parties. 

(c) The administrative law judge may 

determine the extent to which an 

intervenor may participate in the 

proceedings. 

§ 13.207 Certification of documents. 

(a) Signature required. The attorney of 

record, the party, or the party’s 

representative must sign, by hand, 

electronically, or by other method 

acceptable to the administrative law 

judge, or, if the matter is on appeal, to 

the FAA decisionmaker, each document 

tendered for filing with the FAA 

Hearing Docket or served on the 

administrative law judge and on each 

other party. 

(b) Effect of signing a document. By 

signing a document, the attorney of 

record, the party, or the party’s 

representative certifies that the attorney, 

the party, or the party’s representative 

has read the document and, based on 

reasonable inquiry and to the best of 

that person’s knowledge, information, 

and belief, the document is— 

(1) Consistent with the rules in this 

subpart; 

(2) Warranted by existing law or a 

good faith argument for extension, 

modification, or reversal of existing law; 

and 

(3) Not unreasonable or unduly 

burdensome or expensive, not made to 

harass any person, not made to cause 

unnecessary delay, and not made to 

cause needless increase in the cost of 

the proceedings or for any other 

improper purpose. 

(c) Sanctions. If the attorney of record, 

the party, or the party’s representative 

signs a document in violation of this 

section, the administrative law judge or 

the FAA decisionmaker must: 

(1) Strike the pleading signed in 

violation of this section; 

(2) Strike the request for discovery or 

the discovery response signed in 

violation of this section and preclude 

further discovery by the party; 

(3) Deny the motion or request signed 

in violation of this section; 

(4) Exclude the document signed in 

violation of this section from the record; 

(5) Dismiss the interlocutory appeal 

and preclude further appeal on that 

issue by the party who filed the appeal 

until an initial decision has been 

entered on the record; or 

(6) Dismiss the appeal of the 

administrative law judge’s initial 

decision to the FAA decisionmaker. 

§ 13.208 Complaint. 

(a) Filing. The agency attorney must 

file the complaint with the FAA Hearing 

54540 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

Docket, or may file a written motion to 

dismiss a request for hearing under 

§ 13.218 instead of filing a complaint, 

not later than 20 days after receipt by 

the agency attorney of a request for 

hearing. When filing the complaint, the 

agency attorney must follow the filing 

instructions in § 13.210. The agency 

attorney may suggest a location for the 

hearing when filing the complaint. 

(b) Service. An agency attorney must 

serve a copy of the complaint on the 

respondent, the president of the 

corporation or company named as a 

respondent, or a person designated by 

the respondent to accept service of 

documents in the civil penalty action. 

When serving the complaint, the agency 

attorney must follow the service 

instructions in § 13.211. 

(c) Contents. A complaint must set 

forth the facts alleged, any regulation 

allegedly violated by the respondent, 

and the proposed civil penalty in 

sufficient detail to provide notice of any 

factual or legal allegation and proposed 

civil penalty. 

(d) Motion to dismiss stale allegations 

or complaint. Instead of filing an answer 

to the complaint, a respondent may 

move to dismiss the complaint, or that 

part of the complaint, alleging a 

violation that occurred more than 2 

years before an agency attorney issued 

a notice of proposed civil penalty to the 

respondent. 

(1) An administrative law judge may 

not grant the motion and dismiss the 

complaint or part of the complaint if the 

administrative law judge finds that the 

agency has shown good cause for any 

delay in issuing the notice of proposed 

civil penalty. 

(2) If the agency fails to show good 

cause for any delay, an administrative 

law judge may dismiss the complaint, or 

that part of the complaint, alleging a 

violation that occurred more than 2 

years before an agency attorney issued 

the notice of proposed civil penalty to 

the respondent. 

(3) A party may appeal the 

administrative law judge’s ruling on the 

motion to dismiss the complaint or any 

part of the complaint in accordance 

with § 13.219(b). 

§ 13.209 Answer. 

(a) Writing required. A respondent 

must file in the FAA Hearing Docket a 

written answer to the complaint, or may 

file a written motion pursuant to 

§ 13.208 or § 13.218 instead of filing an 

answer, not later than 30 days after 

service of the complaint. The answer 

must be dated and signed by the person 

responding to the complaint. An answer 

must be typewritten or legibly 

handwritten. 

(b) Filing. A person filing an answer 

or motion under paragraph (a) of this 

section must follow the filing 

instructions in § 13.210. 

(c) Service. A person filing an answer 

or a motion under paragraph (a) of this 

section must serve a copy of the answer 

or motion in accordance with the 

service instructions in § 13.211. 

(d) Contents. An answer must 

specifically state any affirmative defense 

that the respondent intends to assert at 

the hearing. A person filing an answer 

may include a brief statement of any 

relief requested in the answer. The 

person filing an answer may 

recommend a location for the hearing 

when filing the answer. 

(e) Specific denial of allegations 

required. A person filing an answer 

must admit, deny, or state that the 

person is without sufficient knowledge 

or information to admit or deny, each 

allegation in the complaint. All 

allegations in the complaint not 

specifically denied in the answer are 

deemed admitted. A general denial of 

the complaint is deemed a failure to file 

an answer. 

(f) Failure to file answer. A person’s 

failure to file an answer without good 

cause will be deemed an admission of 

the truth of each allegation contained in 

the complaint. 

§ 13.210 Filing of documents. 

(a) General rule. Unless provided 

otherwise in this subpart, all documents 

in proceedings under this subpart must 

be tendered for filing with the FAA 

Hearing Docket. 

(b) Methods of filing. Filing must be 

by email, personal delivery, mail, or fax. 

(c) Address for filing. A person filing 

a document with the FAA Hearing 

Docket must use the address identified 

for the method of filing as follows: 

(1) If delivery is in person, or by 

expedited or overnight express courier 

service. Federal Aviation 

Administration, 600 Independence 

Avenue SW, Wilbur Wright Building— 

Suite 2W100, Washington, DC 20597; 

Attention: FAA Hearing Docket, AGC– 

70. 

(2) If delivery is via U.S. mail, or U.S. 

certified or registered mail. Federal 

Aviation Administration, 800 

Independence Avenue SW, Washington, 

DC 20591; Attention: FAA Hearing 

Docket, AGC–70, Wilbur Wright 

Building—Suite 2W100. 

(3) If delivery is via email or fax. The 

email address and fax number for the 

FAA Hearing Docket, made available on 

the FAA Office of Adjudication website. 

(d) Date of filing. If a document is 

filed by fax or email, the date of filing 

is the date the email or fax is sent. If a 

document is filed by personal delivery, 

the date of filing is the date that 

personal delivery is accomplished. If a 

document is filed by mail, the date of 

filing is the date shown on the 

certificate of service, the date shown on 

the postmark if there is no certificate of 

service, or the mailing date shown by 

other evidence if there is no certificate 

of service or postmark. 

(e) Form. Each document must be 

typewritten or legibly handwritten. 

(f) Contents. Unless otherwise 

specified in this subpart, each document 

must contain a short, plain statement of 

the facts on which the person’s case 

rests and a brief statement of the action 

requested. 

(g) Requirement to file an original 

document and number of copies. A 

party must file an original document 

and one copy when filing by personal 

delivery or by mail. Only one copy must 

be filed if filing is accomplished by 

email or fax. 

(h) Filing by email. A document that 

is filed by email must be attached as a 

PDF file to an email. The document 

must be signed in accordance with 

§ 13.207. The email message does not 

constitute a submission, but serves only 

to deliver the attached PDF file to the 

FAA Hearing Docket. 

§ 13.211 Service of documents. 

(a) General. A person must serve a 

copy of all documents on each party and 

the administrative law judge, if 

assigned, at the time of filing with the 

FAA Hearing Docket except as provided 

otherwise in this subpart. 

(b) Service by the FAA Hearing 

Docket, the administrative law judge, 

and the FAA decisionmaker. The FAA 

Hearing Docket, the administrative law 

judge, and the FAA decisionmaker must 

send documents to a party by personal 

delivery, mail, fax, or email as provided 

in this section. 

(c) Methods of service—(1) General. A 

person may serve any document by 

email, personal delivery, mail, or fax. 

(2) Service by email. Service of 

documents by email is voluntary and 

requires the prior consent of the person 

to be served by email. A person may 

retract consent to be served by email by 

filing a written retraction with the FAA 

Hearing Docket and serving it on the 

other party and the administrative law 

judge. A document that is served by 

email must be attached as a PDF file to 

an email message. 

(d) Certificate of service. A certificate 

of service must accompany all 

documents filed with the FAA Hearing 

Docket. The certificate of service must 

be signed, describe the method of 

service, and state the date of service. 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54541 

(e) Date of service. If a document is 

served by fax or served by email, the 

date of service is the date the email or 

fax is sent. If a document is served by 

personal delivery, the date of service is 

the date that personal delivery is 

accomplished. If a document is mailed, 

the date of service is the date shown on 

the certificate of service, the date shown 

on the postmark if there is no certificate 

of service, or the mailing date shown by 

other evidence if there is no certificate 

of service or postmark. 

(f) Valid service. A document served 

by mail or personal delivery that was 

properly addressed, was sent in 

accordance with this subpart, and that 

was returned as unclaimed, or that was 

refused or not accepted, is deemed to 

have been served in accordance with 

this subpart. 

(g) Additional time after service by 

mail. Whenever a party must respond 

within a prescribed period after service 

by mail, 5 days are added to the 

prescribed period. 

(h) Presumption of service. There is a 

presumption of service where a party or 

a person, who customarily receives 

mail, or receives it in the ordinary 

course of business, at either the person’s 

residence or the person’s principal place 

of business, acknowledges receipt of the 

document. 

§ 13.212 Computation of time. 

(a) This section applies to any period 

of time prescribed or allowed by this 

subpart, by notice or order of the 

administrative law judge, or by any 

applicable statute. 

(b) The date of an act, event, or 

default is not included in a computation 

of time under this subpart. 

(c) The last day of a time period is 

included unless it is a Saturday, 

Sunday, or a Federal holiday. If the last 

day is a Saturday, Sunday, or Federal 

holiday, the time period runs until the 

end of the next day that is not a 

Saturday, Sunday, or Federal holiday. 

§ 13.213 Extension of time. 

(a) The parties may agree to extend for 

a reasonable period the time for filing a 

document under this subpart. The party 

seeking the extension of time must 

submit a draft order to the 

administrative law judge to be signed by 

the administrative law judge and filed 

with the FAA Hearing Docket. The 

administrative law judge must sign and 

issue the order if the extension agreed 

to by the parties is reasonable. 

(b) A party may file a written motion 

for an extension of time. A written 

motion for an extension of time must be 

filed with the FAA Hearing Docket in 

accordance with § 13.210. The motion 

must be filed no later than seven days 

before the document is due unless good 

cause for the late filing is shown. The 

party filing the motion must serve a 

copy of the motion in accordance with 

§ 13.211. The administrative law judge 

may grant the extension of time if good 

cause for the extension is shown. 

(c) If the administrative law judge 

fails to rule on a motion for an extension 

of time by the date the document was 

due, the motion for an extension of time 

is deemed granted for no more than 20 

days after the original date the 

document was to be filed. 

§ 13.214 Amendment of pleadings. 

(a) Filing and service. A party must 

file the amendment with the FAA 

Hearing Docket and must serve a copy 

of the amendment on the administrative 

law judge, if assigned, and on all parties 

to the proceeding. 

(b) Time. (1) Not later than 15 days 

before the scheduled date of a hearing, 

a party may amend a complaint or an 

answer without the consent of the 

administrative law judge. 

(2) Less than 15 days before the 

scheduled date of a hearing, the 

administrative law judge may allow 

amendment of a complaint or an answer 

only for good cause shown in a motion 

to amend. 

(c) Responses. The administrative law 

judge must allow a reasonable time, but 

not more than 20 days from the date of 

filing, for other parties to respond if an 

amendment to a complaint, answer, or 

other pleading has been filed with the 

FAA Hearing Docket and served on the 

administrative law judge and other 

parties. 

§ 13.215 Withdrawal of complaint or 

request for hearing. 

At any time before or during a 

hearing, an agency attorney may 

withdraw a complaint or a party may 

withdraw a request for a hearing 

without the consent of the 

administrative law judge. If an agency 

attorney withdraws the complaint or a 

party withdraws the request for a 

hearing and the answer, the 

administrative law judge must dismiss 

the proceedings under this subpart with 

prejudice. 

§ 13.216 Waivers. 

Waivers of any rights provided by 

statute or regulation must be in writing 

or by stipulation made at a hearing and 

entered into the record. The parties 

must set forth the precise terms of the 

waiver and any conditions. 

§ 13.217 Joint procedural or discovery 

schedule. 

(a) General. The parties may agree to 

submit a schedule for filing all 

prehearing motions, conducting 

discovery in the proceedings, or both. 

(b) Form and content of schedule. If 

the parties agree to a joint procedural or 

discovery schedule, one of the parties 

must file the joint schedule setting forth 

the dates to which the parties have 

agreed, in accordance with § 13.210, and 

must also serve a copy of the joint 

schedule in accordance with § 13.211. 

The filing of the joint schedule must 

include a draft order establishing a joint 

schedule to be signed by the 

administrative law judge. 

(1) The joint schedule may include, 

but need not be limited to, requests for 

discovery, objections to discovery 

requests, responses to discovery 

requests to which there are no 

objections, submission of prehearing 

motions, responses to prehearing 

motions, exchange of exhibits to be 

introduced at the hearing, and a list of 

witnesses that may be called at the 

hearing. 

(2) Each party must sign the joint 

schedule. 

(c) Time. The parties may agree to 

submit all prehearing motions and 

responses and may agree to close 

discovery in the proceedings under the 

joint schedule within a reasonable time 

before the date of the hearing, but not 

later than 15 days before the hearing. 

(d) Joint scheduling order. The joint 

schedule filed by the parties is a 

proposed schedule that requires 

approval of the administrative law judge 

to become the joint scheduling order. 

(e) Disputes. The administrative law 

judge must resolve disputes regarding 

discovery or disputes regarding 

compliance with the joint scheduling 

order as soon as possible so that the 

parties may continue to comply with the 

joint scheduling order. 

(f) Sanctions for failure to comply 

with joint schedule. If a party fails to 

comply with a joint scheduling order, 

the administrative law judge may 

impose any of the following sanctions, 

proportional to the party’s failure to 

comply with the order: 

(1) Strike the relevant portion of a 

party’s pleadings; 

(2) Preclude prehearing or discovery 

motions by that party; 

(3) Preclude admission of the relevant 

portion of a party’s evidence at the 

hearing; or 

(4) Preclude the relevant portion of 

the testimony of that party’s witnesses 

at the hearing. 

54542 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

§ 13.218 Motions. 

(a) General. A party applying for an 

order or ruling not specifically provided 

in this subpart must do so by filing a 

motion in accordance with § 13.210. A 

party must serve a copy of each motion 

in accordance with § 13.211. 

(b) Form and contents. A party must 

state the relief sought by the motion and 

the particular grounds supporting that 

relief. If a party has evidence in support 

of a motion, the party must attach any 

supporting evidence, including 

affidavits, to the motion. 

(c) Filing of motions. A motion made 

prior to the hearing must be in writing. 

Unless otherwise agreed by the parties 

or for good cause shown, a party must 

file any prehearing motion not later than 

30 days before the hearing in the FAA 

Hearing Docket in accordance with 

§ 13.210, and must serve a copy on the 

administrative law judge, if assigned, 

and on each party in accordance with 

§ 13.211. Motions introduced during a 

hearing may be made orally on the 

record unless the administrative law 

judge directs otherwise. 

(d) Responses to motions. Any party 

may file a response, with affidavits or 

other evidence in support of the 

response, not later than 10 days after 

service of a written motion on that 

party. When a motion is made during a 

hearing, the response may be made at 

the hearing on the record, orally or in 

writing, within a reasonable time 

determined by the administrative law 

judge. 

(e) Rulings on motions. The 

administrative law judge must rule on 

all motions as follows: 

(1) Discovery motions. The 

administrative law judge must resolve 

all pending discovery motions not later 

than 10 days before the hearing. 

(2) Prehearing motions. The 

administrative law judge must resolve 

all pending prehearing motions not later 

than 7 days before the hearing. If the 

administrative law judge issues a ruling 

or order orally, the administrative law 

judge must serve a written copy of the 

ruling or order, within 3 days, on each 

party. In all other cases, the 

administrative law judge must issue 

rulings and orders in writing and must 

serve a copy of the ruling or order on 

each party. 

(3) Motions made during the hearing. 

The administrative law judge must issue 

rulings and orders on oral motions. Oral 

rulings or orders on motions must be 

made on the record. 

(f) Specific motions. The motions that 

a party may file include but are not 

limited to the following: 

(1) Motion to dismiss for insufficiency. 

A respondent may file a motion to 

dismiss the complaint for insufficiency 

instead of filing an answer. If the 

administrative law judge denies the 

motion to dismiss the complaint for 

insufficiency, the respondent must file 

an answer not later than 10 days after 

service of the administrative law judge’s 

denial of the motion. A motion to 

dismiss the complaint for insufficiency 

must show that the complaint fails to 

state a violation of a provision of the 

Federal aviation statute listed in the first 

sentence in 49 U.S.C. 46301(d)(2) or in 

49 U.S.C. 47531, or any implementing 

rule, regulation, or order, or a violation 

of the Federal hazardous materials 

transportation statute, 49 U.S.C. 5121– 

5128, or any implementing rule, 

regulation, or order. 

(2) Motion to dismiss. A party may file 

a motion to dismiss, specifying the 

grounds for dismissal. If an 

administrative law judge grants a 

motion to dismiss in part, a party may 

appeal the administrative law judge’s 

ruling on the motion to dismiss under 

§ 13.219(b). 

(i) Motion to dismiss a request for a 

hearing. An agency attorney may file a 

motion to dismiss a request for a hearing 

instead of filing a complaint. If the 

motion to dismiss is not granted, the 

agency attorney must file the complaint 

in the FAA Hearing Docket and must 

serve a copy of the complaint on the 

administrative law judge and on each 

party not later than 10 days after service 

of the administrative law judge’s ruling 

or order on the motion to dismiss. If the 

motion to dismiss is granted and the 

proceedings are terminated without a 

hearing, the respondent may appeal to 

the FAA decisionmaker under § 13.233. 

If required by the decision on appeal, 

the agency attorney must file a 

complaint in the FAA Hearing Docket 

and must serve a copy of the complaint 

on the administrative law judge and 

each party not later than 10 days after 

service of the FAA decisionmaker’s 

decision on appeal. 

(ii) Motion to dismiss a complaint. A 

respondent may file a motion to dismiss 

a complaint instead of filing an answer, 

including a motion to dismiss a stale 

complaint or allegations as provided in 

§ 13.208. If the motion to dismiss is not 

granted, the respondent must file an 

answer in the FAA Hearing Docket and 

must serve a copy of the answer on the 

administrative law judge and on each 

party not later than 10 days after service 

of the administrative law judge’s ruling 

or order on the motion to dismiss. If the 

motion to dismiss is granted and the 

proceedings are terminated without a 

hearing, the agency attorney may file an 

appeal in the FAA Hearing Docket 

under § 13.233 and must serve each 

other party. If required by the FAA 

decisionmaker’s decision on appeal, the 

respondent must file an answer in the 

FAA Hearing Docket, and must serve a 

copy of the answer on the 

administrative law judge and on each 

party not later than 10 days after service 

of the decision on appeal. 

(3) Motion for a more definite 

statement. A party may file a motion for 

a more definite statement of any 

pleading which requires a response 

under this subpart. A party must set 

forth, in detail, the indefinite or 

uncertain allegations contained in a 

complaint or response to any pleading 

and must submit the details that the 

party believes would make the 

allegation or response definite and 

certain. 

(i) Complaint. A respondent may file 

a motion requesting a more definite 

statement of the allegations contained in 

the complaint instead of filing an 

answer. If the administrative law judge 

grants the motion, the agency attorney 

must supply a more definite statement 

not later than 15 days after service of the 

ruling granting the motion. If the agency 

attorney fails to supply a more definite 

statement, the administrative law judge 

may strike the allegations in the 

complaint to which the motion is 

directed. If the administrative law judge 

denies the motion, the respondent must 

file an answer in the FAA Hearing 

Docket and must serve a copy of the 

answer on the administrative law judge 

and on each party not later than 10 days 

after service of the order of denial. 

(ii) Answer. An agency attorney may 

file a motion requesting a more definite 

statement if an answer fails to respond 

clearly to the allegations in the 

complaint. If the administrative law 

judge grants the motion, the respondent 

must supply a more definite statement 

not later than 15 days after service of the 

ruling on the motion. If the respondent 

fails to supply a more definite 

statement, the administrative law judge 

may strike those statements in the 

answer to which the motion is directed. 

The respondent’s failure to supply a 

more definite statement may be deemed 

an admission of unanswered allegations 

in the complaint. 

(4) Motion to strike. Any party may 

make a motion to strike any insufficient 

allegation or defense, or any redundant, 

immaterial, impertinent, or scandalous 

matter in a pleading. A party must file 

a motion to strike before a response is 

required under this subpart or, if a 

response is not required, not later than 

10 days after service of the pleading. A 

motion to strike must be filed in the 

FAA Hearing Docket and served on the 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54543 

administrative law judge, if assigned, 

and on each other party. 

(5) Motion for decision. A party may 

make a motion for decision, regarding 

all or any part of the proceedings, at any 

time before the administrative law judge 

has issued an initial decision in the 

proceedings. The administrative law 

judge must grant a party’s motion for 

decision if the pleadings, depositions, 

answers to interrogatories, admissions, 

matters that the administrative law 

judge has officially noticed, or evidence 

introduced during the hearing shows 

that there is no genuine issue of material 

fact and that the party making the 

motion is entitled to a decision as a 

matter of law. The party making the 

motion for decision has the burden of 

showing that there is no genuine issue 

of material fact disputed by the parties. 

(6) Motion for disqualification. A 

party may file a motion for 

disqualification in the FAA Hearing 

Docket and must serve a copy on the 

administrative law judge and on each 

party. A party may file the motion at 

any time after the administrative law 

judge has been assigned to the 

proceedings but must make the motion 

before the administrative law judge files 

an initial decision in the proceedings. 

(i) Motion and supporting affidavit. A 

party must state the grounds for 

disqualification in a motion for 

disqualification, including, but not 

limited to, a financial or other personal 

interest that would be affected by the 

outcome of the enforcement action, 

personal animus against a party to the 

action or against a group to which a 

party belongs, prejudgment of the 

adjudicative facts at issue in the 

proceeding, or any other prohibited 

conflict of interest. A party must submit 

an affidavit with the motion for 

disqualification that sets forth, in detail, 

the matters alleged to constitute grounds 

for disqualification. 

(ii) Response. A party must respond to 

the motion for disqualification not later 

than 5 days after service of the motion 

for disqualification. 

(iii) Decision on motion for 

disqualification. The administrative law 

judge must render a decision on the 

motion for disqualification not later 

than 15 days after the motion has been 

filed. If the administrative law judge 

finds that the motion for 

disqualification and supporting affidavit 

show a basis for disqualification, the 

administrative law judge must withdraw 

from the proceedings immediately. If 

the administrative law judge finds that 

disqualification is not warranted, the 

administrative law judge must deny the 

motion and state the grounds for the 

denial on the record. If the 

administrative law judge fails to rule on 

a party’s motion for disqualification 

within 15 days after the motion has 

been filed, the motion is deemed 

granted. 

(iv) Appeal. A party may appeal the 

administrative law judge’s denial of the 

motion for disqualification in 

accordance with § 13.219(b). 

(7) Motions for reconsideration of an 

initial decision, order dismissing a 

complaint, order dismissing a request 

for hearing or order dismissing a request 

for hearing and answer. The FAA 

decisionmaker may treat motions for 

reconsideration of an initial decision, 

order dismissing a complaint, order 

dismissing a request for hearing, or 

order dismissing a request for hearing 

and answer as a notice of appeal under 

§ 13.233, and if the motion was filed 

within the time allowed for the filing of 

a notice of appeal, the FAA 

decisionmaker will issue a briefing 

schedule. 

§ 13.219 Interlocutory appeals. 

(a) General. Unless otherwise 

provided in this subpart, a party may 

not appeal a ruling or decision of the 

administrative law judge to the FAA 

decisionmaker until the initial decision 

has been entered on the record. A 

decision or order of the FAA 

decisionmaker on the interlocutory 

appeal does not constitute a final order 

of the Administrator for the purposes of 

judicial appellate review as provided in 

§ 13.235. 

(b) Interlocutory appeal for cause. If a 

party orally requests or files a written 

request for an interlocutory appeal for 

cause, the proceedings are stayed until 

the administrative law judge issues a 

decision on the request. Any written 

request for interlocutory appeal for 

cause must be filed in the FAA Hearing 

Docket and served on each party and on 

the administrative law judge. If the 

administrative law judge grants the 

request, the proceedings are stayed until 

the FAA decisionmaker issues a 

decision on the interlocutory appeal. 

The administrative law judge must grant 

the request if a party shows that delay 

of the appeal would be detrimental to 

the public interest or would result in 

undue prejudice to any party. 

(c) Interlocutory appeals of right. If a 

party notifies the administrative law 

judge of an interlocutory appeal of right, 

the proceedings are stayed until the 

FAA decisionmaker issues a decision on 

the interlocutory appeal. A party may 

file an interlocutory appeal of right, 

without the consent of the 

administrative law judge, before an 

initial decision has been entered in the 

case of: 

(1) A ruling or order by the 

administrative law judge barring a 

person from the proceedings; 

(2) Failure of the administrative law 

judge to dismiss the proceedings in 

accordance with § 13.215; or 

(3) A ruling or order by the 

administrative law judge in violation of 

§ 13.205(b). 

(d) Procedure. A party must file a 

notice of interlocutory appeal, with 

supporting documents, with the FAA 

Hearing Docket, and must serve a copy 

of the notice and supporting documents 

on each party and the administrative 

law judge not later than 10 days after 

the administrative law judge’s decision 

forming the basis of an interlocutory 

appeal of right, or not later than 10 days 

after the administrative law judge’s 

decision granting an interlocutory 

appeal for cause, as appropriate. A party 

must file a reply, if any, with the FAA 

Hearing Docket, and serve a copy on 

each party and the administrative law 

judge not later than 10 days after service 

of the appeal. The FAA decisionmaker 

must render a decision on the 

interlocutory appeal on the record and 

as a part of the decision in the 

proceedings, within a reasonable time 

after receipt of the interlocutory appeal. 

(e) Summary rejection. The FAA 

decisionmaker may reject frivolous, 

repetitive, or dilatory appeals, and may 

issue an order precluding one or more 

parties from making further 

interlocutory appeals in a proceeding in 

which there have been frivolous, 

repetitive, or dilatory interlocutory 

appeals. 

§ 13.220 Discovery. 

(a) Initiation of discovery. Any party 

may initiate discovery described in this 

section without the consent or approval 

of the administrative law judge at any 

time after a complaint has been filed in 

the proceedings. 

(b) Methods of discovery. The 

following methods of discovery are 

permitted under this section: 

Depositions on oral examination or 

written questions of any person; written 

interrogatories directed to a party; 

requests for production of documents or 

tangible items to any person; and 

requests for admission by a party. A 

party must not file written 

interrogatories and responses, requests 

for production of documents or tangible 

items and responses, and requests for 

admission and response with the FAA 

Hearing Docket or serve them on the 

administrative law judge. In the event of 

a discovery dispute, a party must attach 

a copy of the relevant documents in 

support of a motion made under this 

section. 

54544 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

(c) Service on the agency. A party 

must serve each discovery request 

directed to the agency or any agency 

employee on the agency attorney of 

record. 

(d) Time for response to discovery 

requests. Unless otherwise directed by 

this subpart or agreed by the parties, a 

party must respond to a request for 

discovery, including filing objections to 

a request for discovery, not later than 30 

days after service of the request. 

(e) Scope of discovery. Subject to the 

limits on discovery set forth in 

paragraph (f) of this section, a party may 

discover any matter that is not 

privileged and that is relevant to any 

party’s claim or defense, including the 

existence, description, nature, custody, 

condition, and location of any 

document or other tangible item and the 

identity and location of any person 

having knowledge of discoverable 

matter. A party may discover facts 

known, or opinions held, by an expert 

who any other party expects to call to 

testify at the hearing. A party has no 

ground to object to a discovery request 

on the basis that the information sought 

would not be admissible at the hearing. 

(f) Limiting discovery. The 

administrative law judge must limit the 

frequency and extent of discovery 

permitted by this section if a party 

shows that— 

(1) The information requested is 

cumulative or repetitious; 

(2) The information requested can be 

obtained from another less burdensome 

and more convenient source; 

(3) The party requesting the 

information has had ample opportunity 

to obtain the information through other 

discovery methods permitted under this 

section; or 

(4) The method or scope of discovery 

requested by the party is unduly 

burdensome or expensive. 

(g) Confidential orders. A party or 

person who has received a discovery 

request for information that is related to 

a trade secret, confidential or sensitive 

material, competitive or commercial 

information, proprietary data, or 

information on research and 

development, may file a motion for a 

confidential order in the FAA Hearing 

Docket in accordance with § 13.210, and 

must serve a copy of the motion for a 

confidential order on each party and on 

the administrative law judge in 

accordance with § 13.211. 

(1) The party or person making the 

motion must show that the confidential 

order is necessary to protect the 

information from disclosure to the 

public. 

(2) If the administrative law judge 

determines that the requested material 

is not necessary to decide the case, the 

administrative law judge must preclude 

any inquiry into the matter by any party. 

(3) If the administrative law judge 

determines that the requested material 

may be disclosed during discovery, the 

administrative law judge may order that 

the material may be discovered and 

disclosed under limited conditions or 

may be used only under certain terms 

and conditions. 

(4) If the administrative law judge 

determines that the requested material 

is necessary to decide the case and that 

a confidential order is warranted, the 

administrative law judge must provide: 

(i) An opportunity for review of the 

document by the parties off the record; 

(ii) Procedures for excluding the 

information from the record; and 

(iii) Order that the parties must not 

disclose the information in any manner 

and the parties must not use the 

information in any other proceeding. 

(h) Protective orders. A party or a 

person who has received a request for 

discovery may file a motion for 

protective order in the FAA Hearing 

Docket and must serve a copy of the 

motion for protective order on the 

administrative law judge and each other 

party. The party or person making the 

motion must show that the protective 

order is necessary to protect the party or 

the person from annoyance, 

embarrassment, oppression, or undue 

burden or expense. As part of the 

protective order, the administrative law 

judge may: 

(1) Deny the discovery request; 

(2) Order that discovery be conducted 

only on specified terms and conditions, 

including a designation of the time or 

place for discovery or a determination of 

the method of discovery; or 

(3) Limit the scope of discovery or 

preclude any inquiry into certain 

matters during discovery. 

(i) Duty to supplement or amend 

responses. A party who has responded 

to a discovery request has a duty to 

supplement or amend the response, as 

soon as the information is known, as 

follows: 

(1) A party must supplement or 

amend any response to a question 

requesting the identity and location of 

any person having knowledge of 

discoverable matters. 

(2) A party must supplement or 

amend any response to a question 

requesting the identity of each person 

who will be called to testify at the 

hearing as an expert witness and the 

subject matter and substance of that 

witness’s testimony. 

(3) A party must supplement or 

amend any response that was incorrect 

when made or any response that was 

correct when made but is no longer 

correct, accurate, or complete. 

(j) Depositions—(1) Form. A 

deposition must be taken on the record 

and reduced to writing. The person 

being deposed must sign the deposition 

unless the parties agree to waive the 

requirement of a signature. 

(2) Administration of oaths. Within 

the United States, or a territory or 

possession subject to the jurisdiction of 

the United States, a party must take a 

deposition before a person authorized to 

administer oaths by the laws of the 

United States or authorized by the law 

of the place where the examination is 

held. In foreign countries, a party must 

take a deposition in any manner 

allowed by the Federal Rules of Civil 

Procedure. 

(3) Notice of deposition. A party must 

serve a notice of deposition, stating the 

time and place of the deposition and the 

name and address of each person to be 

examined, on the person to be deposed, 

the administrative law judge, and each 

party not later than 7 days before the 

deposition. The notice must be filed in 

the FAA Hearing Docket 

simultaneously. A party may serve a 

notice of deposition less than 7 days 

before the deposition only with consent 

of the administrative law judge. The 

party noticing a deposition must attach 

a copy of any subpoena duces tecum 

requesting that materials be produced at 

the deposition to the notice of 

deposition. 

(4) Use of depositions. A party may 

use any part or all of a deposition at a 

hearing authorized under this subpart 

only upon a showing of good cause. The 

deposition may be used against any 

party who was present or represented at 

the deposition or who had reasonable 

notice of the deposition. 

(k) Interrogatories. A party, the party’s 

attorney, or the party’s representative 

may sign the party’s responses to 

interrogatories. A party must answer 

each interrogatory separately and 

completely in writing. If a party objects 

to an interrogatory, the party must state 

the objection and the reasons for the 

objection. An opposing party may use 

any part or all of a party’s responses to 

interrogatories at a hearing authorized 

under this subpart to the extent that the 

response is relevant, material, and not 

repetitious. 

(1) A party must not serve more than 

30 interrogatories to each other party. 

Each subpart of an interrogatory must be 

counted as a separate interrogatory. 

(2) A party must file a motion for 

leave to serve additional interrogatories 

on a party with the administrative law 

judge before serving additional 

interrogatories on a party. The 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54545 

administrative law judge may grant the 

motion only if the party shows good 

cause. 

(l) Requests for admission. A party 

may serve a written request for 

admission of the truth of any matter 

within the scope of discovery under this 

section or the authenticity of any 

document described in the request. A 

party must set forth each request for 

admission separately. A party must 

serve copies of documents referenced in 

the request for admission unless the 

documents have been provided or are 

reasonably available for inspection and 

copying. 

(1) Time. A party’s failure to respond 

to a request for admission, in writing 

and signed by the attorney or the party, 

not later than 30 days after service of the 

request, is deemed an admission of the 

truth of the statement or statements 

contained in the request for admission. 

The administrative law judge may 

determine that a failure to respond to a 

request for admission is not deemed an 

admission of the truth if a party shows 

that the failure was due to 

circumstances beyond the control of the 

party or the party’s attorney. 

(2) Response. A party may object to a 

request for admission and must state the 

reasons for objection. A party may 

specifically deny the truth of the matter 

or describe the reasons why the party is 

unable to truthfully deny or admit the 

matter. If a party is unable to deny or 

admit the truth of the matter, the party 

must show that the party has made 

reasonable inquiry into the matter or 

that the information known to, or 

readily obtainable by, the party is 

insufficient to enable the party to admit 

or deny the matter. A party may admit 

or deny any part of the request for 

admission. If the administrative law 

judge determines that a response does 

not comply with the requirements of 

this paragraph (l)(2) or that the response 

is insufficient, the matter is deemed 

admitted. 

(3) Effect of admission. Any matter 

admitted or deemed admitted under this 

section is conclusively established for 

the purpose of the hearing and appeal. 

(m) Motion to compel discovery. A 

party may make a motion to compel 

discovery if a person refuses to answer 

a question during a deposition, a party 

fails or refuses to answer an 

interrogatory, if a person gives an 

evasive or incomplete answer during a 

deposition or when responding to an 

interrogatory, or a party fails or refuses 

to produce documents or tangible items. 

During a deposition, the proponent of a 

question may complete the deposition 

or may adjourn the examination before 

making a motion to compel if a person 

refuses to answer. Any motion to 

compel must be filed with the FAA 

Hearing Docket and served on the 

administrative law judge and other 

parties in accordance with §§ 13.210 

and 13.211, respectively. 

(n) Failure to comply with a discovery 

order. If a party fails to comply with a 

discovery order, the administrative law 

judge may impose any of the following 

sanctions proportional to the party’s 

failure to comply with the order: 

(1) Strike the relevant portion of a 

party’s pleadings; 

(2) Preclude prehearing or discovery 

motions by that party; 

(3) Preclude admission of the relevant 

portion of a party’s evidence at the 

hearing; or 

(4) Preclude the relevant portion of 

the testimony of that party’s witnesses 

at the hearing. 

§ 13.221 Notice of hearing. 

(a) Notice. The administrative law 

judge must provide each party with 

notice of the date, time, and location of 

the hearing at least 60 days before the 

hearing date. 

(b) Date, time, and location of the 

hearing. The administrative law judge to 

whom the proceedings have been 

assigned must set a reasonable date, 

time, and location for the hearing. The 

administrative law judge must consider 

the need for discovery and any joint 

procedural or discovery schedule 

submitted by the parties when 

determining the hearing date. The 

administrative law judge must give due 

regard to the convenience of the parties, 

the location where the majority of the 

witnesses reside or work, and whether 

the location is served by a scheduled air 

carrier. 

(c) Earlier hearing. With the consent 

of the administrative law judge, the 

parties may agree to hold the hearing on 

an earlier date than the date specified in 

the notice of hearing. 

§ 13.222 Evidence. 

(a) General. A party is entitled to 

present the party’s case or defense by 

oral, documentary, or demonstrative 

evidence, to submit rebuttal evidence, 

and to conduct any cross-examination 

that may be required for a full and true 

disclosure of the facts. 

(b) Admissibility. A party may 

introduce any oral, documentary, or 

demonstrative evidence in support of 

the party’s case or defense. The 

administrative law judge must admit 

any relevant oral, documentary, or 

demonstrative evidence introduced by a 

party, but must exclude irrelevant, 

immaterial, or unduly repetitious 

evidence. 

(c) Hearsay evidence. Hearsay 

evidence is admissible in proceedings 

governed by this subpart. The fact that 

evidence submitted by a party is hearsay 

goes only to the weight of the evidence 

and does not affect its admissibility. 

§ 13.223 Standard of proof. 

The administrative law judge must 

issue an initial decision or must rule in 

a party’s favor only if the decision or 

ruling is supported by, and in 

accordance with, the reliable, probative, 

and substantial evidence contained in 

the record. In order to prevail, the party 

with the burden of proof must prove the 

party’s case or defense by a 

preponderance of reliable, probative, 

and substantial evidence. 

§ 13.224 Burden of proof. 

(a) Except in the case of an affirmative 

defense, the burden of proof is on the 

agency. 

(b) Except as otherwise provided by 

statute or rule, the proponent of a 

motion, request, or order has the burden 

of proof. 

(c) A party who has asserted an 

affirmative defense has the burden of 

proving the affirmative defense. 

§ 13.225 Offer of proof. 

A party whose evidence has been 

excluded by a ruling of the 

administrative law judge may offer the 

evidence for the record on appeal. 

§ 13.226 Public disclosure of information. 

(a) The administrative law judge may 

order that any information contained in 

the record be withheld from public 

disclosure. Any party or interested 

person may object to disclosure of 

information in the record by filing and 

serving a written motion to withhold 

specific information in accordance with 

§§ 13.210 and 13.211 respectively. A 

party may file a motion seeking to 

protect from public disclosure 

information contained in a document 

that the party is filing at the same time 

it files the document. The person or 

party must state the specific grounds for 

nondisclosure in the motion. 

(b) The administrative law judge must 

grant the motion to withhold if, based 

on the motion and any response to the 

motion, the administrative law judge 

determines that: Disclosure would be 

detrimental to aviation safety; 

disclosure would not be in the public 

interest; or the information is not 

otherwise required to be made available 

to the public. 

§ 13.227 Expert or opinion witnesses. 

An employee of the agency may not 

be called as an expert or opinion 

witness for any party other than the 

54546 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

FAA in any proceeding governed by this 

subpart. An employee of a respondent 

may not be called by an agency attorney 

as an expert or opinion witness for the 

FAA in any proceeding governed by this 

subpart to which the respondent is a 

party. 

§ 13.228 Subpoenas. 

(a) Request for subpoena. The 

administrative law judge, upon 

application by any party to the 

proceeding, may issue subpoenas 

requiring the attendance of witnesses or 

the production of documents or tangible 

things at a hearing or for the purpose of 

taking depositions, as permitted by law. 

A request for a subpoena must show its 

general relevance and reasonable scope. 

The party must serve the subpoena on 

the witness or the holder of the 

documents or tangible items as 

permitted by applicable statute. A 

request for a subpoena must be filed and 

served in accordance with §§ 13.210 and 

13.211, respectively. Absent good cause 

shown, the filing and service must be 

completed as follows: 

(1) Not later than 15 days before a 

scheduled deposition under the 

subpoena; or 

(2) Not later than 30 days before a 

scheduled hearing where attendance at 

the hearing is sought. 

(b) Motion to quash or modify the 

subpoena. A party, or any person upon 

whom a subpoena has been served, may 

file in the FAA Hearing Docket a motion 

to quash or modify the subpoena and 

must serve a copy on the administrative 

law judge and each party at or before the 

time specified in the subpoena for 

compliance. The movant must describe, 

in detail, the basis for the motion to 

quash or modify the subpoena 

including, but not limited to, a 

statement that the testimony, document, 

or tangible evidence is not relevant to 

the proceeding, that the subpoena is not 

reasonably tailored to the scope of the 

proceeding, or that the subpoena is 

unreasonable and oppressive. A motion 

to quash or modify the subpoena will 

stay the effect of the subpoena pending 

a decision by the administrative law 

judge on the motion. 

(c) Enforcement of subpoena. Upon a 

showing that a person has failed or 

refused to comply with a subpoena, a 

party may apply to the appropriate U.S. 

district court to seek judicial 

enforcement of the subpoena. 

§ 13.229 Witness fees. 

(a) General. The party who applies for 

a subpoena to compel the attendance of 

a witness at a deposition or hearing, or 

the party at whose request a witness 

appears at a deposition or hearing, must 

pay the witness fees described in this 

section. 

(b) Amount. Except for an employee 

of the agency who appears at the 

direction of the agency, a witness who 

appears at a deposition or hearing is 

entitled to the same fees and allowances 

provided for under 28 U.S.C. 1821. 

§ 13.230 Record. 

(a) Exclusive record. The pleadings, 

transcripts of the hearing and 

prehearing conferences, exhibits 

admitted into evidence, rulings, 

motions, applications, requests, briefs, 

and responses thereto, constitute the 

exclusive record for decision of the 

proceedings and the basis for the 

issuance of any orders in the 

proceeding. Any proceedings regarding 

the disqualification of an administrative 

law judge must be included in the 

record. Though only exhibits admitted 

into evidence are part of the record 

before an administrative law judge, 

evidence proffered but not admitted is 

also part of the record on appeal, as 

provided by § 13.225. 

(b) Examination and copying of 

record. The parties may examine the 

record at the FAA Hearing Docket and 

may obtain copies of the record upon 

payment of applicable fees. Any other 

person may obtain copies of the 

releasable portions of the record in 

accordance with applicable law. 

§ 13.231 Argument before the 

administrative law judge. 

(a) Arguments during the hearing. 

During the hearing, the administrative 

law judge must give the parties a 

reasonable opportunity to present 

arguments on the record supporting or 

opposing motions, objections, and 

rulings if the parties request an 

opportunity for argument. The 

administrative law judge may request 

written arguments during the hearing if 

the administrative law judge finds that 

submission of written arguments would 

be reasonable. 

(b) Final oral argument. At the 

conclusion of the hearing and before the 

administrative law judge issues an 

initial decision in the proceedings, the 

administrative law judge must allow the 

parties to submit oral proposed findings 

of fact and conclusions of law, 

exceptions to rulings of the 

administrative law judge, and 

supporting arguments for the findings, 

conclusions, or exceptions. At the 

conclusion of the hearing, a party may 

waive final oral argument. 

(c) Post-hearing briefs. The 

administrative law judge may request 

written post-hearing briefs before the 

administrative law judge issues an 

initial decision in the proceedings if the 

administrative law judge finds that 

submission of written arguments would 

be reasonable. If a party files a written 

post-hearing brief, the party must 

include proposed findings of fact and 

conclusions of law, exceptions to 

rulings of the administrative law judge, 

and supporting arguments for the 

findings, conclusions, or exceptions. 

The administrative law judge must give 

the parties a reasonable opportunity, but 

not more than 30 days after receipt of 

the transcript, to prepare and submit the 

briefs. A party must file and serve any 

post-hearing brief in in accordance with 

§§ 13.210 and 13.211, respectively. 

§ 13.232 Initial decision. 

(a) Contents. The administrative law 

judge must issue an initial decision at 

the conclusion of the hearing. In each 

oral or written decision, the 

administrative law judge must include 

findings of fact and conclusions of law, 

as well as the grounds supporting those 

findings and conclusions, for all 

material issues of fact, the credibility of 

witnesses, the applicable law, any 

exercise of the administrative law 

judge’s discretion, and the amount of 

any civil penalty found appropriate by 

the administrative law judge. The 

administrative law judge must also 

include a discussion of the basis for any 

order issued in the proceedings. The 

administrative law judge is not required 

to provide a written explanation for 

rulings on objections, procedural 

motions, and other matters not directly 

relevant to the substance of the initial 

decision. If the administrative law judge 

refers to any previous unreported or 

unpublished initial decision, the 

administrative law judge must make 

copies of that initial decision available 

to all parties and the FAA 

decisionmaker. 

(b) Oral decision. Except as provided 

in paragraph (c) of this section, at the 

conclusion of the hearing, the 

administrative law judge’s oral initial 

decision and order must be on the 

record. 

(c) Written decision. The 

administrative law judge may issue a 

written initial decision not later than 30 

days after the conclusion of the hearing 

or submission of the last post-hearing 

brief if the administrative law judge 

finds that issuing a written initial 

decision is reasonable. The 

administrative law judge must serve a 

copy of any written initial decision on 

each party. 

(d) Reconsideration of an initial 

decision. The FAA decisionmaker may 

treat a motion for reconsideration of an 

initial decision as a notice of appeal 

Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 54547 

under § 13.233, and if the motion was 

filed within the time allowed for the 

filing of a notice of appeal, the FAA 

decisionmaker will issue a briefing 

schedule, as provided in § 13.218. 

(e) Order assessing civil penalty. 

Unless appealed pursuant to § 13.233, 

the initial decision issued by the 

administrative law judge is considered 

an order assessing civil penalty if the 

administrative law judge finds that an 

alleged violation occurred and 

determines that a civil penalty, in an 

amount found appropriate by the 

administrative law judge, is warranted. 

The administrative law judge may not 

assess a civil penalty exceeding the 

amount sought in the complaint. 

§ 13.233 Appeal from initial decision. 

(a) Notice of appeal. A party may 

appeal the administrative law judge’s 

initial decision, and any decision not 

previously appealed to the FAA 

decisionmaker on interlocutory appeal 

pursuant to § 13.219, by filing a notice 

of appeal in accordance with § 13.210 

no later than 10 days after entry of the 

oral initial decision on the record or 

service of the written initial decision on 

the parties. The party must serve a copy 

of the notice of appeal on each party in 

accordance with § 13.211. A party is not 

required to serve any documents under 

§ 13.233 on the administrative law 

judge. 

(b) Issues on appeal. In any appeal 

from a decision of an administrative law 

judge, the FAA decisionmaker considers 

only the following issues: 

(1) Whether each finding of fact is 

supported by a preponderance of 

reliable, probative, and substantial 

evidence; 

(2) Whether each conclusion of law is 

made in accordance with applicable 

law, precedent, and public policy; and 

(3) Whether the administrative law 

judge committed any prejudicial errors. 

(c) Perfecting an appeal. Except as 

follows in paragraphs (c)(1) and (2) of 

this section, a party must perfect an 

appeal to the FAA decisionmaker no 

later than 50 days after entry of the oral 

initial decision on the record or service 

of the written initial decision on the 

parties by filing an appeal brief in 

accordance with § 13.210 and serving a 

copy on every other party in accordance 

with § 13.211. 

(1) Extension of time by agreement of 

the parties. The parties may agree to 

extend the time for perfecting the appeal 

with the consent of the FAA 

decisionmaker. If the FAA 

decisionmaker grants an extension of 

time to perfect the appeal, the FAA 

decisionmaker must serve a letter 

confirming the extension of time on 

each party. 

(2) Written motion for extension. If the 

parties do not agree to an extension of 

time for perfecting an appeal, a party 

desiring an extension of time may file a 

written motion for an extension in 

accordance with § 13.210 and must 

serve a copy of the motion on each party 

under § 13.211. Any party may file a 

written response to the motion for 

extension no later than 10 days after 

service of the motion. The FAA 

decisionmaker may grant an extension if 

good cause for the extension is shown 

in the motion. 

(d) Appeal briefs. A party must file 

the appeal brief in accordance with 

§ 13.210 and must serve a copy of the 

appeal brief on each party in accordance 

with § 13.211. 

(1) A party must set forth, in detail, 

the party’s specific objections to the 

initial decision or rulings in the appeal 

brief. A party also must set forth, in 

detail, the basis for the appeal, the 

reasons supporting the appeal, and the 

relief requested in the appeal. If the 

party relies on evidence contained in 

the record for the appeal, the party must 

specifically refer to the pertinent 

evidence contained in the transcript in 

the appeal brief. 

(2) The FAA decisionmaker may 

dismiss an appeal, on the FAA 

decisionmaker’s own initiative or upon 

motion of any other party, where a party 

has filed a notice of appeal but fails to 

perfect the appeal by timely filing an 

appeal brief with the FAA 

decisionmaker. 

(e) Reply brief. Except as follows in 

paragraphs (e)(1) and (2) of this section, 

any party may file a reply brief in 

accordance with § 13.210 not later than 

35 days after the appeal brief has been 

served on that party. The party filing the 

reply brief must serve a copy of the 

reply brief on each party in accordance 

with § 13.211. If the party relies on 

evidence contained in the record for the 

reply, the party must specifically refer 

to the pertinent evidence contained in 

the transcript in the reply brief. 

(1) Extension of time by agreement of 

the parties. The parties may agree to 

extend the time for filing a reply brief 

with the consent of the FAA 

decisionmaker. If the FAA 

decisionmaker grants an extension of 

time to file the reply brief, the FAA 

decisionmaker must serve a letter 

confirming the extension of time on 

each party. 

(2) Written motion for extension. If the 

parties do not agree to an extension of 

time for filing a reply brief, a party 

desiring an extension of time may file a 

written motion for an extension in 

accordance with § 13.210 and must 

serve a copy of the motion on each party 

in accordance with § 13.211. Any party 

choosing to respond to the motion must 

file and serve a written response to the 

motion no later than 10 days after 

service of the motion The FAA 

decisionmaker may grant an extension if 

good cause for the extension is shown 

in the motion. 

(f) Other briefs. The FAA 

decisionmaker may allow any person to 

submit an amicus curiae brief in an 

appeal of an initial decision. A party 

may not file more than one brief unless 

permitted by the FAA decisionmaker. A 

party may petition the FAA 

decisionmaker, in writing, for leave to 

file an additional brief and must serve 

a copy of the petition on each party. The 

party may not file the additional brief 

with the petition. The FAA 

decisionmaker may grant leave to file an 

additional brief if the party 

demonstrates good cause for allowing 

additional argument on the appeal. The 

FAA decisionmaker will allow a 

reasonable time for the party to file the 

additional brief. 

(g) Number of copies. A party must 

file the original plus one copy of the 

appeal brief or reply brief, but only one 

copy if filing by email or fax, as 

provided in § 13.210. 

(h) Oral argument. The FAA 

decisionmaker may permit oral 

argument on the appeal. On the FAA 

decisionmaker’s own initiative, or upon 

written motion by any party, the FAA 

decisionmaker may find that oral 

argument will contribute substantially 

to the development of the issues on 

appeal and may grant the parties an 

opportunity for oral argument. 

(i) Waiver of objections on appeal. If 

a party fails to object to any alleged 

error regarding the proceedings in an 

appeal or a reply brief, the party waives 

any objection to the alleged error. The 

FAA decisionmaker is not required to 

consider any objection in an appeal 

brief, or any argument in the reply brief, 

if a party’s objection or argument is 

based on evidence contained on the 

record and the party does not 

specifically refer to the pertinent 

evidence from the record in the brief. 

(j) FAA decisionmaker’s decision on 

appeal. The FAA decisionmaker will 

review the record, the briefs on appeal, 

and the oral argument, if any, when 

considering the issues on appeal. The 

FAA decisionmaker may affirm, modify, 

or reverse the initial decision, make any 

necessary findings, or remand the case 

for any proceedings that the FAA 

decisionmaker determines may be 

necessary. The FAA decisionmaker may 

assess a civil penalty but must not 

54548 Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations 

assess a civil penalty in an amount 

greater than that sought in the 

complaint. 

(1) The FAA decisionmaker may raise 

any issue, on the FAA decisionmaker’s 

own initiative, that is required for 

proper disposition of the proceedings. 

The FAA decisionmaker will give the 

parties a reasonable opportunity to 

submit arguments on the new issues 

before making a decision on appeal. If 

an issue raised by the FAA 

decisionmaker requires the 

consideration of additional testimony or 

evidence, the FAA decisionmaker will 

remand the case to the administrative 

law judge for further proceedings and an 

initial decision related to that issue. If 

an issue raised by the FAA 

decisionmaker is solely an issue of law, 

or the issue was addressed at the 

hearing but was not raised by a party in 

the briefs on appeal, a remand of the 

case to the administrative law judge for 

further proceedings is not required but 

may be provided in the discretion of the 

FAA decisionmaker. 

(2) The FAA decisionmaker will issue 

the final decision and order of the 

Administrator on appeal in writing and 

will serve a copy of the decision and 

order on each party. Unless a petition 

for review is filed pursuant to § 13.235, 

a final decision and order of the 

Administrator will be considered an 

order assessing civil penalty if the FAA 

decisionmaker finds that an alleged 

violation occurred and a civil penalty is 

warranted. 

(3) A final decision and order of the 

Administrator after appeal is precedent 

in any other civil penalty action. Any 

issue, finding or conclusion, order, 

ruling, or initial decision of an 

administrative law judge that has not 

been appealed to the FAA 

decisionmaker is not precedent in any 

other civil penalty action. 

§ 13.234 Petition to reconsider or modify a 

final decision and order of the FAA 

decisionmaker on appeal. 

(a) General. Any party may petition 

the FAA decisionmaker to reconsider or 

modify a final decision and order issued 

by the FAA decisionmaker on appeal 

from an initial decision. A party must 

file a petition to reconsider or modify in 

accordance with § 13.210 not later than 

30 days after service of the FAA 

decisionmaker’s final decision and 

order on appeal and must serve a copy 

of the petition on each party in 

accordance with § 13.211. A party is not 

required to serve any documents under 

this section on the administrative law 

judge. The FAA decisionmaker will not 

reconsider or modify an initial decision 

and order issued by an administrative 

law judge that has not been appealed by 

any party to the FAA decisionmaker. 

(b) Number of copies. The parties 

must file the original plus one copy of 

the petition or the reply to the petition, 

but only one copy if filing by email or 

fax, as provided in § 13.210. 

(c) Contents. A party must state 

briefly and specifically the alleged 

errors in the final decision and order on 

appeal, the relief sought by the party, 

and the grounds that support the 

petition to reconsider or modify. 

(1) If the petition is based, in whole 

or in part, on allegations regarding the 

consequences of the FAA 

decisionmaker’s decision, the party 

must describe these allegations and 

must describe, and support, the basis for 

the allegations. 

(2) If the petition is based, in whole 

or in part, on new material not 

previously raised in the proceedings, 

the party must set forth the new 

material and include affidavits of 

prospective witnesses and authenticated 

documents that would be introduced in 

support of the new material. The party 

must explain, in detail, why the new 

material was not discovered through 

due diligence prior to the hearing. 

(d) Repetitious and frivolous petitions. 

The FAA decisionmaker will not 

consider repetitious or frivolous 

petitions. The FAA decisionmaker may 

summarily dismiss repetitious or 

frivolous petitions to reconsider or 

modify. 

(e) Reply petitions. Any party replying 

to a petition to reconsider or modify 

must file the reply in accordance with 

§ 13.210 no later than 10 days after 

service of the petition on that party, and 

must also serve a copy of the reply on 

each party in accordance with § 13.211. 

(f) Effect of filing petition. The filing 

of a timely petition under this section 

will stay the effective date of the FAA 

decisionmaker’s decision and order on 

appeal until final disposition of the 

petition by the FAA decisionmaker. 

(g) FAA decisionmaker’s decision on 

petition. The FAA decisionmaker has 

discretion to grant or deny a petition to 

reconsider. The FAA decisionmaker 

will grant or deny a petition to 

reconsider within a reasonable time 

after receipt of the petition or receipt of 

the reply petition, if any. The FAA 

decisionmaker may affirm, modify, or 

reverse the final decision and order on 

appeal, or may remand the case for any 

proceedings that the FAA 

decisionmaker determines may be 

necessary. 

§ 13.235 Judicial review of a final decision 

and order. 

(a) In cases under the Federal aviation 

statute, a party may seek judicial review 

of a final decision and order of the 

Administrator, as provided in 49 U.S.C. 

46110(a), and, as applicable, in 49 

U.S.C. 46301(d)(7)(D)(iii), 46301(g), or 

47532. 

(b) In cases under the Federal 

hazardous materials transportation 

statute, a party may seek judicial review 

of a final decision and order of the 

Administrator, as provided in 49 U.S.C. 

5127. 

(c) A party seeking judicial review of 

a final order issued by the 

Administrator may file a petition for 

review in the United States Court of 

Appeals for the District of Columbia 

Circuit or in the United States Court of 

Appeals for the circuit in which the 

party resides or has its principal place 

of business. 

(d) The party must file the petition for 

review no later than 60 days after 

service of the Administrator’s final 

decision and order. 

§ 13.236 Alternative dispute resolution. 

Parties may use mediation to achieve 

resolution of issues in controversy 

addressed by this subpart. Parties 

seeking alternative dispute resolution 

services may engage the services of a 

mutually acceptable mediator. The 

mediator must not participate in the 

adjudication under this subpart of any 

matter in which the mediator has 

provided mediation services. Mediation 

discussions and submissions will 

remain confidential consistent with the 

provisions of the Administrative 

Dispute Resolution Act and other 

applicable Federal laws. 

Issued under authority provided by 49 

U.S.C. 106(f) and 44701(a) in Washington, 

DC, on or about August 17, 2021. 

Steve Dickson, 

Administrator. 

[FR Doc. 2021–19948 Filed 9–30–21; 8:45 am] 

BILLING CODE 4910–13–P