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Rule2021-19948

Update to Investigative and Enforcement Procedures

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Published

October 1, 2021

Effective

November 30, 2021

Issuing agencies

Transportation DepartmentFederal Aviation Administration

Abstract

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.

Full Text

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<title>Federal Register, Volume 86 Issue 188 (Friday, October 1, 2021)</title>
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[Federal Register Volume 86, Number 188 (Friday, October 1, 2021)]
[Rules and Regulations]
[Pages 54514-54548]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-19948]

[[Page 54513]]

Vol. 86

Friday,

No. 188

October 1, 2021

Part II

Department of Transportation

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Federal Aviation Administration

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14 CFR Part 13

Update to Investigative and Enforcement Procedure; Final Rule

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

[[Page 54514]]

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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.

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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 <a href="/cdn-cgi/l/email-protection#35765a59501b785c59595c544751755354541b525a43">[email&#160;protected]</a>, 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 <a href="/cdn-cgi/l/email-protection#d49eb1a7a7bdb7b5fa9fb5b6b5aef993bbb9b1ae94b2b5b5fab3bba2">[email&#160;protected]</a>. 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 <a href="/cdn-cgi/l/email-protection#3c76535452127d12785559484e555f547c5a5d5d125b534a">[email&#160;protected]</a>.

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 fact-finding 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 Sec. 13.1, applicable to the
whole of part 13; removal of current Sec. 13.5(e), which addresses
complaints filed against

[[Page 54515]]

members of the armed services, to align with the removal of current
Sec. 13.21; and the addition of a definition for the date of service
of a written answer to a formal complaint in Sec. 13.5(e) in this
final rule as no definition is provided in current Sec. 13.5(f), which
Sec. 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 Sec. 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 Sec. 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 Sec. 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.
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\1\ 49 U.S.C. 5101-5127.
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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 Sec. 13.67
provides an expedited review process for the subjects of emergency
orders to which Sec. 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 Sec. 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:
<bullet> Streamlining and updating statutory and regulatory
references, eliminating inconsistencies, clarifying existing
ambiguities, increasing efficiency, and improving readability;
<bullet> 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;
<bullet> Adding service and filing by fax and email in subpart D
and subpart G proceedings;
<bullet> Amending subparts D and G that recognize the role and
function of FAA's Office of Adjudication;

[[Page 54516]]

<bullet> Clarifying, updating, and aligning the provisions in
subparts D and G for requesting, quashing, modifying, and enforcing
subpoenas;
<bullet> 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);
<bullet> 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;
<bullet> 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
<bullet> 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:
<bullet> FAA's Authority;
<bullet> Service of Formal Complaints;
<bullet> Date of Service of a Formal Complaint;
<bullet> FAA Actions Resulting from Formal Complaints;
<bullet> Administrative Actions;
<bullet> Consent Orders;
<bullet> Deposition Authority;
<bullet> Witness Fees;
<bullet> Record on Appeal;
<bullet> Appeals and Judicial Review;
<bullet> Expedited Proceedings;
<bullet> Dispute Resolution;
<bullet> Federal Docket Management System and Use of Email for
Filing and Service;
<bullet> Time for Responding after Service by Mail;
<bullet> Valid Service of Documents;
<bullet> Disqualification/Recusal;
<bullet> Motion for a More Definite Statement; and
<bullet> Technological Advances in all Adjudications and
Proceedings.

III. Discussion of Public Comments and Final Rule

A. FAA's Authority

Current Sec. 13.3(a) notes the Administrator's statutory authority
to conduct investigations and perform related functions, including the
issuance of investigative subpoenas. Current Sec. 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 Sec. 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 Sec. 13.3(d) addresses complaints about
violations of certain airport-related laws.
In the NPRM, FAA proposed to revise Sec. 13.3 to update and
simplify the language by removing the statutory citations. FAA also
proposed reorganizing Sec. 13.3(b) and (c) so that Sec. 13.3(b) would
solely address the Administrator's delegation of investigative powers
for routine investigations, and Sec. 13.3(c) would pertain only to the
Administrator's delegation of powers for certain compulsory processes.
Further, FAA proposed revising Sec. 13.3(c) by listing the actions
authorized by the statutes cited in the second sentence of current
Sec. 13.3(b).
NBAA requested FAA combine proposed Sec. Sec. 13.3(a) and (c) into
a single paragraph. NBAA stated that proposed Sec. 13.3(a) and (c) are
duplicative and likely to cause misunderstandings about FAA's authority
under proposed Sec. 13.1. NBAA further asserted that confusion
stemming from current Sec. 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 Sec. Sec. 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\
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\2\ The Pilot's Bill of Rights, Public Law 112-153, 126 Stat.
1159 (2012) (codified at 49 U.S.C. 44703 note).
\3\ Compliance Philosophy was renamed Compliance Program in
October 2018. <a href="https://www.faa.gov/about/initiatives/cp/">https://www.faa.gov/about/initiatives/cp/</a> (last
visited November 1, 2019).
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FAA does not agree that Sec. 13.3(a) and (c) are duplicative, or
that they should be combined. Proposed Sec. 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 Sec. 13.3 mentions the
powers of the Administrator generally with regard to investigations.
Although proposed Sec. 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 Sec. 13.3(a). Proposed paragraph (c) captures the
delegation in the second sentence of current Sec. 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 Sec. 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.
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\4\ The 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.
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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 Sec. 13.3(c) (and proposed Sec. 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

[[Page 54517]]

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.
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\5\ U.S. v. Morton Salt Co., 338 U.S. 632, 642-43 (1950).
\6\ Id. at 652.
\7\ PBR, section 2(b)(2)(C) and (D).
\8\ FAA Order 2150.3C, Chapter 4, ] 2.b.
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Based on the foregoing discussion, FAA is not making any changes to
its proposal for Sec. 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 Sec. 13.3 to align with the
statutory language containing the delegated authority.

B. Service of Formal Complaints

The current Sec. 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 Sec. 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 Sec. 13.5(f) to Sec. 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 Sec. 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
Sec. Sec. 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\
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\9\ See 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).
\10\ See Skydive Myrtle Beach Inc. v. Horry Cty. Dept. of
Airports, 735 F. App'x 810, 814 (4th Cir. 2018) (stating that Sec.
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).
\11\ See 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).
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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.
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\13\ Public Law 112-153, 126 Stat. 1159, section 2(a) (2012)
(codified at 49 U.S.C. 44703 note).
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Finally, EAA's reliance on proposed Sec. 13.18(e) is misplaced.
The proposed language in Sec. 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 Sec.
13.5(e).

D. FAA Actions Resulting From Formal Complaints

Current Sec. 13.5(j) is restated in proposed Sec. 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 Sec. 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

[[Page 54518]]

concern that proposed Sec. 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 Sec.
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 Sec. 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.
---------------------------------------------------------------------------

\14\ FAA Order 8000.373 (June 26, 2015) (canceled by Order
8000.373A in 2018); see generally <a href="https://www.faa.gov/about/initiatives/cp/">https://www.faa.gov/about/initiatives/cp/</a> (last visited July 7, 2020).
---------------------------------------------------------------------------

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 Sec. 13.11 as proposed.

F. Consent Orders

Current Sec. 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 Sec.
13.13(b). In support of this request, NBAA expressed concern that the
proposed changes to Sec. 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 Sec. 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 Sec. 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 Sec. Sec. 13.37(e) and 13.205(a)(3), adding language
regarding discovery to Sec. 13.37(h), and adding language allowing a
hearing officer or ALJ to take any other authorized action as new
paragraph (m) in Sec. 13.37 and new paragraph (a)(11) in Sec. 13.205.
EAA requested that FAA preserve the language regarding depositions
in current Sec. Sec. 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 Sec. Sec. 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 Sec. 13.37 to
regulate discovery proceedings in subpart D hearings. Depositions are
included as a form of discovery in proposed Sec. 13.53(d). Parties may
apply for a subpoena to require attendance at a deposition under Sec.
13.57. In subpart G hearings, parties may serve notices of depositions,
as described in proposed Sec. 13.220(j)(3), and file motions to compel
discovery under Sec. 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 Sec. Sec. 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 Sec.
13.57(d) and incorporate it into Sec. 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 Sec. Sec. 13.57(d) and 13.229 as proposed.
---------------------------------------------------------------------------

\15\ Alyeska Pipeline Service Co. v. Wilderness Society, 421
U.S. 240 (1975).
\16\ 28 U.S.C. 2412.
---------------------------------------------------------------------------

I. Record on Appeal

Current Sec. 13.63 describes the contents of the record in a
subpart D hearing. The NPRM proposed redesignating the

[[Page 54519]]

existing provisions as Sec. 13.63(a) and adding new provisions at
Sec. 13.63(b) and (c).
EAA noted that the proposed amendment to Sec. 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 Sec. 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 Sec.
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 Sec. Sec. 13.225 and 13.230(a).

J. Appeals and Judicial Review

In the NPRM, FAA proposed adding a new Sec. 13.65 to consolidate
all provisions for appeals, motions for reconsideration, and petitions
for judicial review for subpart D hearings into one section. Proposed
Sec. 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 Sec. 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, Sec. 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 Sec. 13.65(e) as
proposed.

K. Expedited Proceedings

In the NPRM, FAA proposed adding a new Sec. 13.67 to provide an
expedited hearing and appeal process for emergency proceedings
requested in accordance with Sec. 13.20(d). New Sec. 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 Sec. 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 Sec. 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 Sec. 13.67(a)(2) provides that the Administrator files a
copy of the notice of proposed action as the complaint. Under proposed
Sec. Sec. 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 Sec. 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 Sec.
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.
---------------------------------------------------------------------------

\17\ 49 CFR 821.55(b).
---------------------------------------------------------------------------

L. Dispute Resolution

In the NPRM, FAA proposed adding new Sec. Sec. 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 Sec. Sec.
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 Sec. Sec. 13.69 and 13.236, it suggested that FAA consider ACUS
guidance materials

[[Page 54520]]

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 Sec. Sec. 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.
---------------------------------------------------------------------------

\18\ DOT Statement of Policy on Alternative Dispute Resolution
(67 FR 40367, June 12, 2002).
---------------------------------------------------------------------------

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 Sec. 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 Sec. 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 Sec. 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 Sec. 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.

[[Page 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 Sec. 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 Sec.
13.211(g) and adds it to subpart D in Sec. 13.45(b) to maintain
consistency between both subparts. The final rule also updates the
paragraph designation in Sec. 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 Sec. 13.211(h) provides what
constitutes a ``presumption of service.'' FAA proposed revising the
provision on valid service and moving it from Sec. 13.211(g) to Sec.
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 Sec. 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 Sec. 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 Sec. 13.205. As a result, FAA has amended this final
rule by adding language to Sec. 13.39 and proposed Sec. 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 Sec. Sec.
13.65 and 13.67(b). FAA has not amended the subpart G disqualification
provisions in proposed Sec. 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 Sec. 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 Sec.
13.218(f)(3).
AOPA and an individual commenter requested that FAA amend Sec.
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 Sec. 13.218(f)(3)(i) and proposed Sec. 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 Sec. 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 Sec. 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 Sec. 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:
<bullet> Changing the verb tense in Sec. 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.
<bullet> Reformatting Sec. 13.3(c) to enumerate the list of
delegated authority from the Administrator in separate paragraphs as
Sec. 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 Sec.
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 Sec. 13.3(b), which include the authority to petition a court
of the United States to enforce a subpoena or order.
<bullet> Inserting ``formal'' to modify ``investigations'' in Sec.
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 Sec. 13.3.

[[Page 54522]]

<bullet> Replacing the term ``subparagraph'' in Sec. 13.15(c)(3)
with ``paragraph'' for consistency with the organizational structure
used in the Code of Federal Regulations.\19\
---------------------------------------------------------------------------

\19\ See 1 CFR 21.11.
---------------------------------------------------------------------------

<bullet> Removing ``under 49 U.S.C. 46103'' from Sec. 13.16(g) as
the reference is unnecessary, and to make the service provisions in
Sec. 13.16(f) and (g) align.
<bullet> Changing Sec. 13.17(a) from passive voice to active voice
for readability.
<bullet> Adding the Chief Counsel to the delegation of authority in
Sec. 13.18(c) as provided in current Sec. 13.18(c), as the omission
was unintentional.
<bullet> Removing citation to 49 U.S.C. 46301(g) in Sec. 13.18(h),
as it does not apply to cases covered by Sec. 13.18 and is not cited
in current Sec. 13.18(h).
<bullet> Adding a ``will'' to Sec. 13.19(b)(1) to make clear that
the notice issuance is mandatory.
<bullet> Replacing ``determination of an emergency'' with
``determination that safety in air transportation or air commerce
requires the immediate effectiveness of an order'' in Sec. 13.19(d) to
conform to the language in the applicable statutory provisions.
<bullet> Adding headings to Sec. Sec. 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.
<bullet> Correcting the cross-reference to subpart D in Sec.
13.35(a).
<bullet> Replacing the reference to ``an order'' in Sec. 13.63(a)
with ``the hearing officer's decision'' and reformatting Sec. 13.63(a)
into Sec. 13.63(a)(1), (2), and (3).
<bullet> Removing the cross-reference to ``Sec. 13.25'' in Sec.
13.67(c) because 14 CFR 13.25 was removed.
<bullet> Removing the extraneous qualifier ``of this part'' from
cross-references in Sec. Sec. 13.101, 13.201, and 13.202.
<bullet> Removing the ``(a)'' paragraph level in Sec. 13.201, as
there is only one paragraph in that section.
<bullet> Streamlining the heading in Sec. 13.205(b) by changing it
from ``Limitations on the power of the administrative law judge'' to
``Limitations.''
<bullet> Removed ``on or after August 2, 1990, and'' from Sec.
13.208(d) as it is no longer necessary.
<bullet> Replacing ``Portable Document Format'' with ``PDF'' in
Sec. 13.210(h).
<bullet> Adding the implied ``Not later than'' to Sec.
13.228(a)(1) and (2), for grammatical completeness.
<bullet> Removing ``unless otherwise agreed by the parties'' in
Sec. 13.233(c) and (e), as duplicative of the exceptions stated in
Sec. 13.233(c)(1) and (2) and (e)(1) and (2). Removing the duplicative
``may'' from Sec. 13.233(j).
<bullet> Updating Sec. Sec. 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..................................... Sec. 13.1.
Sec. 13.1............................. Sec. 13.2.
Sec. 13.3............................. Sec. 13.3.
Sec. 13.5(a).......................... Sec. 13.5(a).
Sec. 13.5(b).......................... Sec. 13.5(b).
Sec. 13.5(c).......................... Sec. 13.5(c).
Sec. 13.5(d).......................... Sec. 13.5(d).
Sec. 13.5(e).......................... Removed.
Sec. 13.5(f).......................... Sec. 13.5(e).
Sec. 13.5(g).......................... Sec. 13.5(f).
Sec. 13.5(h).......................... Sec. 13.5(f)(1).
Sec. 13.5(i).......................... Sec. 13.5(f)(2).
Sec. 13.5(j).......................... Sec. 13.5(g).
Sec. 13.5(k).......................... Sec. 13.5(h).
Sec. 13.7............................. Sec. 13.7.
Subpart B:
Sec. 13.11............................ Sec. 13.11.
Subpart C:
Sec. 13.13(a)......................... Sec. 13.13(a).
Sec. 13.13(b)......................... Sec. 13.13(b).
Sec. 13.13(c)......................... Sec. 13.13(b)(5).
Sec. 13.14............................ Removed.
Sec. 13.15(a)......................... Sec. 13.15(a).
Sec. 13.15(b)......................... Sec. 13.15(b).
Sec. 13.15(c)(1)...................... Sec. 13.15(c)(1).
Sec. 13.15(c)(2)...................... Sec. 13.15(c)(2)(ii),
(c)(3), (c)(4).
Sec. 13.15(c)(3)...................... Sec. 13.15(c)(2)(i).
Sec. 13.15(c)(4)...................... Sec. 13.15(c)(2)(i).
Sec. 13.15(c)(5)...................... Sec. 13.15(c)(5).
Sec. 13.16(a)-(c)..................... Sec. 13.16(a)-(c).
Sec. 13.16(d)......................... Sec. 13.16(e).
Sec. 13.16(e)......................... Sec. 13.16(d).
Sec. 13.16(f)-(j)..................... Sec. 13.16(f)-(j).
Sec. 13.16(k)......................... Sec. 13.15(l).
Sec. 13.16(l)......................... Sec. 13.15(m).
Sec. 13.16(m)......................... Sec. 13.15(k).
Sec. 13.16(n)......................... Sec. 13.16(n).
Sec. 13.17............................ Sec. 13.17.
Sec. 13.18............................ Sec. 13.18.
Sec. 13.19(a)-(b)..................... Sec. 13.19(a).
Sec. 13.19(c)......................... Sec. 13.19(b).
Sec. 13.19(d)......................... Removed.
N/A..................................... Sec. 13.19(c).
N/A..................................... Sec. 13.19(d).
Sec. 13.20(a)......................... Sec. 13.20(a).
Sec. 13.20(b)......................... Sec. 13.20(b).
Sec. 13.20(c)......................... Sec. 13.20(c)(1).
Sec. 13.20(d)......................... Sec. 13.20(c)(2).
Sec. 13.20(e)......................... Sec. 13.20(c)(4).
Sec. 13.20(f)......................... Sec. Sec. 13.20(c)(3),
13.63(b).
Sec. 13.20(g)......................... Sec. 13.65(a).
Sec. 13.20(h)......................... Sec. 13.65(b).
Sec. 13.20(i)......................... Sec. 13.65(c).
Sec. 13.20(j)......................... Sec. 13.65(d).
Sec. 13.20(k)......................... Sec. 13.45(c).
Sec. 13.20(l)......................... Sec. 13.20(f).
Sec. 13.20(m)......................... Removed.
N/A..................................... Sec. 13.20(e).
Sec. 13.21............................ Removed.
Sec. 13.23............................ Removed.
Sec. 13.25............................ Removed.
Sec. 13.27............................ Removed.
Sec. 13.29............................ Removed.
Subpart D:
Sec. 13.31............................ Sec. 13.31.
Sec. 13.33............................ Sec. 13.33(b).
N/A..................................... Sec. 13.33(a), (c).
Sec. 13.35(a)......................... Sec. 13.35(a), Sec.
13.43(c).
Sec. 13.35(b)......................... Sec. 13.35(a).
Sec. 13.35(c)......................... Sec. 13.35(c).
Sec. 13.35(d)......................... Sec. 13.35(b).
Sec. 13.37(a)-(j)..................... Sec. 13.37(a)-(j).
N/A..................................... Sec. 13.37(k).
Sec. 13.37(k)......................... Sec. 13.37(l).
N/A..................................... Sec. 13.37(m).
Sec. 13.39............................ Sec. 13.39.
N/A..................................... Sec. 13.41.
Sec. 13.43(a)......................... Sec. 13.43(a).
N/A..................................... Sec. 13.43(b)-(d), (e).
Sec. 13.43(b)......................... Sec. 13.43(f).
Sec. 13.43(c)......................... Sec. 13.43(g).
Sec. 13.43(d)......................... Sec. 13.43(h).
Sec. 13.43(e)......................... Sec. 13.43(h).
Sec. 13.44............................ Sec. 13.45(a).
N/A..................................... Sec. 13.45(b).
Sec. 13.44(b)......................... Sec. 13.45(c), (d).
Sec. 13.45............................ Sec. 13.47(b).
Sec. 13.47............................ Sec. 13.47(a).
Sec. 13.49(a)......................... Sec. 13.49(a)(1).
N/A..................................... Sec. 13.49(b).
Sec. 13.49(c)......................... Sec. 13.49(a)(2).
Sec. 13.49(d)......................... Sec. 13.49(c).
Sec. 13.49(e)......................... Sec. 13.49(d).
Sec. 13.49(f)......................... Sec. 13.49(e).
Sec. 13.49(g)......................... Removed.
N/A..................................... Sec. 13.49(g).
Sec. 13.49(h)......................... Sec. 13.49(h).
Sec. 13.51............................ Sec. 13.51.
Sec. 13.53............................ Sec. 13.53(d).
N/A..................................... Sec. 13.53(a)-(c), (e).
Sec. 13.55............................ Sec. 13.55.
Sec. 13.57(a)......................... Sec. 13.57(a).
Sec. 13.57(b)......................... Sec. 13.57(b).
Sec. 13.57(c)......................... Sec. 13.57(c).
Sec. 13.57(d)......................... Removed.
N/A..................................... Sec. 13.57(d).
N/A..................................... Sec. 13.57(e).
N/A..................................... Sec. 13.57(f).
Sec. 13.59(a)......................... Sec. 13.59(a).
Sec. 13.59(b)......................... Sec. 13.59(b).
Sec. 13.59(c)......................... Sec. 13.49(f).
Sec. 13.61............................ Sec. 13.61.
Sec. 13.63............................ Sec. 13.63(a).
N/A..................................... Sec. 13.63(b)-(c).
N/A..................................... Sec. 13.65.
N/A..................................... Sec. 13.67.
N/A..................................... Sec. 13.69.
Subpart E:
Sec. 13.71............................ Sec. 13.71.
Sec. 13.73............................ Sec. 13.73.
Sec. 13.75............................ Sec. 13.75.
Sec. 13.77............................ Sec. 13.77.
Sec. 13.79............................ Sec. 13.63(b).
Sec. 13.81(a)......................... Sec. 13.81(a).
Sec. 13.81(b)......................... Removed.
Sec. 13.81(c)......................... Sec. 13.81(b).
Sec. 13.81(d)......................... Sec. 13.81(c).
Sec. 13.81(e)-(g)..................... Removed.
Sec. 13.83(a)......................... Sec. 13.65(a).
Sec. 13.83(b)......................... Removed.
Sec. 13.83(c)......................... Removed.
Sec. 13.83(d)......................... Sec. 13.65(b).
Sec. 13.83(e)......................... Sec. 13.65(c).
Sec. 13.83(f)......................... Removed.
Sec. 13.83(g)......................... Sec. 13.65(d).
Sec. 13.83(h)......................... Removed.
Sec. 13.85............................ Removed.
Sec. 13.87............................ Sec. 13.45(b)-(c).
Subpart F:
Sec. 13.101........................... Sec. 13.101.
Sec. 13.103........................... Sec. 13.103.
Sec. 13.105........................... Sec. 13.105.
Sec. 13.107........................... Sec. 13.107.
Sec. 13.109........................... Sec. 13.109.
Sec. 13.111........................... Sec. 13.111.

[[Page 54523]]

Sec. 13.113........................... Sec. 13.113.
Sec. 13.115........................... Sec. 13.115.
Sec. 13.117........................... Sec. 13.117.
Sec. 13.119........................... Sec. 13.119.
Sec. 13.121........................... Sec. 13.121.
Sec. 13.123........................... Sec. 13.123.
Sec. 13.125........................... Sec. 13.125.
Sec. 13.127........................... Sec. 13.127.
Sec. 13.129........................... Sec. 13.129.
Sec. 13.131........................... Sec. 13.131.
Subpart G:
Sec. 13.201........................... Sec. 13.201.
Sec. 13.202........................... Sec. 13.202.
Sec. 13.203........................... Sec. 13.203.
Sec. 13.204........................... Sec. 13.204.
Sec. 13.205(a)(1)-(9)................. Sec. 13.205(a)(1)-(9).
Sec. 13.205(b)........................ Sec. 13.205(a)(10), (b).
N/A..................................... Sec. 13.205(a)(11).
Sec. 13.205(c)........................ Sec. 13.205(c).
Sec. 13.206........................... Sec. 13.206.
Sec. 13.207........................... Sec. 13.207.
Sec. 13.208........................... Sec. 13.208.
Sec. 13.209(a)........................ Sec. 13.209(a).
Sec. 13.209(b)........................ Sec. 13.209(a)-(b), (d),
Sec. 13.210.
Sec. 13.209(c)........................ Sec. 13.209(c).
Sec. 13.209(d)........................ Sec. 13.209(d).
Sec. 13.209(e)........................ Sec. 13.209(e).
Sec. 13.209(f)........................ Sec. 13.209(f).
Sec. 13.210(a)........................ Sec. 13.210(a), (b), (c),
(g).
Sec. 13.210(b)........................ Sec. 13.210(d).
Sec. 13.210(c)........................ Sec. 13.210(e).
Sec. 13.210(d)........................ Sec. 13.210(f).
Sec. 13.210(e)........................ Removed.
N/A..................................... Sec. 13.210(h).
Sec. 13.211(a)........................ Sec. 13.211(a).
Sec. 13.211(b)........................ Sec. 13.211(c).
Sec. 13.211(c)........................ Sec. 13.211(d).
Sec. 13.211(d)........................ Sec. 13.211(e).
Sec. 13.211(e)........................ Sec. 13.211(g).
Sec. 13.211(f)........................ Sec. 13.211(b).
Sec. 13.211(g)........................ Sec. 13.211(f).
Sec. 13.211(h)........................ Sec. 13.211(h).
Sec. 13.212........................... Sec. 13.212.
Sec. 13.213........................... Sec. 13.213.
Sec. 13.214........................... Sec. 13.214.
Sec. 13.215........................... Sec. 13.215.
Sec. 13.216........................... Sec. 13.216.
Sec. 13.217........................... Sec. 13.217.
Sec. 13.218........................... Sec. 13.218.
N/A..................................... Sec. 13.218(f)(7).
Sec. 13.219........................... Sec. 13.219.
Sec. 13.220........................... Sec. 13.220.
Sec. 13.221........................... Sec. 13.221.
Sec. 13.222........................... Sec. 13.222.
Sec. 13.223........................... Sec. 13.223.
Sec. 13.224........................... Sec. 13.224.
Sec. 13.225........................... Sec. 13.225.
Sec. 13.226........................... Sec. 13.226.
Sec. 13.227........................... Sec. 13.227.
Sec. 13.228........................... Sec. 13.228.
Sec. 13.229........................... Sec. 13.229.
Sec. 13.230........................... Sec. 13.230.
Sec. 13.231........................... Sec. 13.231.
Sec. 13.232(a)........................ Sec. 13.232(a).
Sec. 13.232(b)........................ Sec. 13.232(b).
Sec. 13.232(c)........................ Sec. 13.232(c).
Sec. 13.232(d)........................ Sec. 13.232(e).
N/A..................................... Sec. 13.232(d).
Sec. 13.233........................... Sec. 13.233.
Sec. 13.234........................... Sec. 13.234.
Sec. 13.235........................... Sec. 13.235.
N/A..................................... Sec. 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 Sec.
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 Sec.
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,

[[Page 54524]]

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.
---------------------------------------------------------------------------

\20\ <a href="https://www.uscourts.gov/services-forms/fees/court-appeals-miscellaneous-fee-schedule">https://www.uscourts.gov/services-forms/fees/court-appeals-miscellaneous-fee-schedule</a>.
---------------------------------------------------------------------------

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 Sec. 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 Sec. 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, <a href="http://www.regulations.gov">www.regulations.gov</a>. 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.
---------------------------------------------------------------------------

\21\ Savings based on the portion of FAA's total annual billing
costs for dockets and FDMS services attributable to adjudication
materials.
---------------------------------------------------------------------------

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-for-profit 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

[[Page 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: Sec. 13.5. FAA did not receive any comments regarding its
proposed revision to the information collection in Sec. 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 Sec. 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 (<a href="http://www.regulations.gov">www.regulations.gov</a>);
2. Visit FAA's Regulations and Policies web page at <a href="http://www.faa.gov/regulations_policies/">www.faa.gov/regulations_policies/</a>; or
3. Access the Government Printing Office's web page at
<a href="http://www.GovInfo.gov">www.GovInfo.gov</a>.
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 <a href="http://www.regulations.gov">www.regulations.gov</a> 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

[[Page 54526]]

heading at the beginning of the preamble. To find out more about SBREFA
on the internet, visit <a href="http://www.faa.gov/regulations_policies/rulemaking/sbre_act/">www.faa.gov/regulations_policies/rulemaking/sbre_act/</a>.

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

0
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.

0
2. Revise subpart A to read as follows:

Subpart A--General Authority to Re-Delegate 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.

Sec. 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.

Sec. 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.

Sec. 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 Sec. 16.1 of this chapter must be filed in
accordance with the provisions of part 16 of this chapter.

Sec. 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 Sec. 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 Sec. 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.

Sec. 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

[[Page 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.

0
3. Revise subpart B to read as follows:

Subpart B--Administrative Actions

Sec. 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.

0
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]

Sec. 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.

Sec. 13.14 [Reserved]

Sec. 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
Sec. 13.16 or Sec. 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.

Sec. 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

[[Page 54528]]

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 Sec. 13.232(e).
(ii) A decision or order issued by the FAA decisionmaker as
described in Sec. 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 agreed-
upon 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
Sec. 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

[[Page 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.

Sec. 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.

Sec. 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 agreed-
upon 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

[[Page 54530]]

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.

Sec. 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. 742j-1(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

[[Page 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.

Sec. 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
non-immediately 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

[[Page 54532]]

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.

Sec. Sec. 13.21 through 13.29 [Reserved]

0
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.

Sec. 13.31 Applicability.

This subpart applies to proceedings in which a hearing has been
requested in accordance with Sec. 13.20 or Sec. 13.75. Hearings under
this subpart are considered informal and are provided through the
Office of Adjudication.

Sec. 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 Sec. 13.31.
(2) Respondent is the party filing a request for hearing.
(3) Intervenor is a person permitted to participate as a party
under Sec. 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.

Sec. 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 Sec. 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.

Sec. 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.

Sec. 13.39 Disqualification of hearing officer.

(a) Motion and supporting affidavit. Any party may file a motion
for disqualification under Sec. 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 Sec. 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.

Sec. 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

[[Page 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.

Sec. 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 Sec. 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.

Sec. 13.44 [Reserved]

Sec. 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.

Sec. 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.

Sec. 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

[[Page 54534]]

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 Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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
Sec. 13.53, and if necessary, a motion to compel under Sec. 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.

Sec. 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.

Sec. 13.61 Argument and submittals.

The hearing officer must give the parties adequate opportunity to
present arguments in support of motions,

[[Page 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.

Sec. 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 Sec.
13.20, the hearing officer may suspend or revoke the aircraft
registration certificate.

Sec. 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 Sec. 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.

Sec. 13.67 Procedures for expedited proceedings.

(a) When an expedited administrative hearing is requested in
accordance with Sec. 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.

[[Page 54536]]

(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.

Sec. 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.

0
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]

Sec. 13.71 Applicability.

(a) An order of compliance may be issued after notice and an
opportunity for a hearing in accordance with Sec. Sec. 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 Sec. 13.81.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 13.79 [Reserved]

Sec. 13.81 Emergency orders.

(a) Notwithstanding Sec. Sec. 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 Sec. 13.73.
(c) If at any time in the course of a proceeding commenced in
accordance with Sec. 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 Sec. 13.75 has not expired.

Sec. Sec. 13.83 through 13.87 [Reserved]

0
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.

[[Page 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.

Sec. 13.101 Applicability.

(a) This subpart applies to fact-finding investigations in which an
investigation has been ordered under Sec. 13.3(c) or Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 13.119 Immunity and orders requiring testimony or other
information.

(a) Whenever a person refuses, on the basis of a privilege against
self-incrimination, 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.

Sec. 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.

Sec. 13.123 Submission by party to the investigation.

(a) During an investigation conducted under this subpart, a party
may submit to the presiding officer--

[[Page 54538]]

(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.

Sec. 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.

Sec. 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.

Sec. 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.

Sec. 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.

0
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.

Sec. 13.201 Applicability.

This subpart applies to all civil penalty actions initiated under
Sec. 13.16 in which a hearing has been requested.

Sec. 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 Sec. 13.16(f)(3) or (g)(2)(ii).
Complainant means the FAA office that issued the notice of proposed
civil penalty under Sec. 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 hand-delivery or use of a contract or
express messenger service. ``Personal delivery''

[[Page 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.

Sec. 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.

Sec. 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 Sec.
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 Sec. 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.

Sec. 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 Sec. 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 Sec. 13.218.

Sec. 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.

Sec. 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 cau

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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.