Update to Investigative and Enforcement Procedures
| Published date | 12 February 2019 |
| Record Number | 2019-00771 |
| Section | Proposed rules |
| Court | Federal Aviation Administration |
Federal Register, Volume 84 Issue 29 (Tuesday, February 12, 2019)
[Federal Register Volume 84, Number 29 (Tuesday, February 12, 2019)]
[Proposed Rules]
[Pages 3614-3661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00771]
[[Page 3613]]
Vol. 84
Tuesday,
No. 29
February 12, 2019
Part IIIDepartment of Transportation-----------------------------------------------------------------------Federal Aviation Administration-----------------------------------------------------------------------14 CFR Part 13Update to Investigative and Enforcement Procedures; Proposed Rule
Federal Register / Vol. 84 , No. 29 / Tuesday, February 12, 2019 /
Proposed Rules
[[Page 3614]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 13
[Docket No.: FAA-2017-1051; Notice No. 18-06]
RIN 2120-AL00
Update to Investigative and Enforcement Procedures
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FAA proposes to revise the procedural rules governing
Federal Aviation Administration investigations and enforcement actions.
The proposed 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: Send comments on or before May 13, 2019.
ADDRESSES: Send comments identified by docket number FAA-2018-1051
using any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations at 202-493-2251.
Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments
from the public to better inform its rulemaking process. DOT posts
these comments, without edit, including any personal information the
commenter provides, to http://www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
http://www.dot.gov/privacy.
Docket: Background documents or comments received may be read at
http://www.regulations.gov at any time. Follow the online instructions
for accessing the docket or go to the Docket Operations in Room W12-140
of the West Building Ground Floor at 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: For questions concerning this action
regarding 14 CFR part 13, subparts A through C, E, and F, contact
Jessica E. Kabaz-Gomez, Office of the Chief Counsel, AGC-300, Federal
Aviation Administration, 800 Independence Avenue SW, Washington, DC
20591; telephone (202) 267-7395; email Jessica.Kabaz-Gomez@faa.gov, or
Cole R. Milliard, Office of the Chief Counsel, AGC-300, Federal
Aviation Administration, 800 Independence Avenue SW, Washington, DC
20591; telephone (202) 267-3452; email Cole.Milliard@faa.gov. For
questions concerning this action regarding 14 CFR part 13, subpart D,
contact John A. Dietrich, Office of the Chief Counsel, FAA Office of
Adjudication, AGC-70, Federal Aviation Administration, 800 Independence
Avenue SW, Washington, DC 20591; telephone (202) 267-3433; email
John.A.Dietrich@faa.gov. For questions concerning this action regarding
14 CFR part 13, subpart G, contact Vicki S. Leemon, Office of the Chief
Counsel, Office of Adjudication, AGC-70, 800 Independence Avenue SW,
Washington, DC 20591; telephone (202) 267-0415; email:
vicki.leemon@faa.gov.
SUPPLEMENTARY INFORMATION:
Contents
Authority for This Rulemaking
I. Overview of the Proposed Rule
II. Background
A. Statement of the Problem
B. History
III. Discussion of the Proposal
A. Subpart A--General Authority To Re-Delegate and Investigative
Procedures
B. Subpart B--Administrative Actions
C. Subpart C--Legal Enforcement Actions
D. Subpart D--Rules of Practice for FAA Hearings
E. Subpart E--Orders of Compliance Under the Hazardous Materials
Transportation Act
F. Subpart F--Formal Fact-Finding Investigation Under an Order
of Investigation
G. Subpart G--Rules of Practice in FAA Civil Penalty Actions
H. 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
VI. Additional Information
A. Comments Invited
B. Availability of Rulemaking Documents
Authority for This Rulemaking
The FAA's authority to issue rules on aviation safety is found 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 procedure
necessary for safety in air commerce and national security under 49
U.S.C. 44701(a)(5). The Administrator also has authority to issue
regulations he considers necessary to carry out Subtitle VII, Part A of
title 49 under 49 U.S.C. 40113(a).
This proposed rulemaking also relies on the authority of numerous
other statutes because it prescribes procedures and other rules
covering a wide variety of enforcement actions. Generally, it relies on
the duties and powers delegated to the Administrator of the FAA under
49 CFR 1.83, including those described in 49 U.S.C. 40101 related to
aviation. 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. Procedures and other
requirements governing investigations, enforcement, complaints of
violations, service, evidence, regulations and orders, and judicial
review are found in 49 U.S.C. 46101-46110. Section 6002 of title 18
U.S.C. deals with immunity for witnesses in FAA formal investigations
(see current and proposed 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, 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
[[Page 3615]]
hazardous materials (49 U.S.C. 5121-5124) are also part of the
authority for this rulemaking. There is authority regarding the special
aircraft jurisdiction of the United States, which includes certain
aircraft in, of, and connected to the United States. This jurisdiction
includes provisions forbidding aircraft piracy, interference with
flight crew, and carrying weapons or explosives on aircraft (49 U.S.C.
46501-46502 and 46504-46507). These authorities prescribe the standards
that are enforced via the procedures provided in part 13.
I. Overview of the Proposed Rule
This rulemaking would revise subparts A through G of part 13, which
provide the procedural rules governing investigations and enforcement
actions taken by the FAA. It would update statutory and regulatory
references, eliminate inconsistencies, clarify ambiguity, increase
efficiency, and improve readability. The agency is not proposing
substantive amendments to subpart B, which addresses administrative
actions or to subpart F, which governs formal fact-finding
investigations under orders of investigation. The proposal does,
however, include substantive amendments to subparts A, C, D, E, and G.
Subpart A addresses the FAA's investigative procedures. A proposed
amendment to Sec. 13.1 would add a re-delegation provision applicable
to the whole of part 13. The FAA would remove current Sec. 13.5(e),
which addresses complaints filed against members of the armed services,
to align with the proposed removal of current Sec. 13.21.
Additionally, Sec. 13.5(e) would include a proposed definition for the
date of service of a written answer to a complaint.
Subpart C addresses legal enforcement actions. Proposed amendments
would provide a new emergency procedure allowing for an expedited
administrative appeal process for when a notice is issued under 14 CFR
13.20(d) simultaneously with the Administrator's issuance of a
temporary emergency order under 49 U.S.C. 40113 and 46105(c). The
required elements of consent orders provided in Sec. 13.13 would be
amended 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.
The rule would also amend Sec. 13.17(a) to replace the term
``operator'' with ``the individual commanding the aircraft'' to align
with the underlying statute. Finally, the rule would remove 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 (TSA) 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 proposal would amend the
applicability section of subpart D such that it would no longer apply
to hearings for emergency orders of compliance issued under the
Hazardous Materials Transportation Act (HMTA), because the procedures
for this process are now provided by 49 CFR part 109, Department of
Transportation, Hazardous Materials Procedural Regulations.
Additional amendments to subpart D would recognize the role and
function of the FAA's Office of Adjudication, and provide for the use
of alternative dispute resolution (ADR) procedures. The proposed rule
would consolidate sections relating to filing and service; update
addresses; allow for filing and service by fax and email; clarify the
discovery process including a modification to the subpoena rule; and
consolidate and incorporate the appeal procedures stated in other
subparts of part 13 into subpart D. Finally, a new provision would be
added to subpart D at Sec. 13.67 to provide 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. Proposed amendments would harmonize
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. The rule would also move
subpart D-related provisions regarding rules of practice in hearings
into subpart D, and would update procedures that have been superseded
by subsequent amendments to the hazardous material (hazmat) statutes.
Finally, a new cross-reference to the procedures in 49 CFR part 109,
subpart C applicable to hazmat emergency orders issued by all DOT modes
would be added.
Subpart G provides the rules of practice in FAA civil penalty
actions. Just as with subpart D, proposed amendments to subpart G would
include recognition of the FAA's Office of Adjudication, the use of
mediation as an ADR procedure, and the addition of fax and email for
filing and service. The rule would eliminate the current provision that
provides five additional days in which to act or respond after service
by mail. The FAA also proposes codifying the current practice of
treating timely petitions for reconsideration of administrative law
judge (ALJ) initial decisions as appeals to the FAA decisionmaker.
Additionally, this proposal would require 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 proposed changes
would codify existing practices and create consistency within subpart
G.
The FAA concludes that this proposed rule is a minimal cost rule
based on the potential for minimal costs and minimal cost savings.
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 a number of statutory,
organizational, and technological changes such that part 13 requires
updating. The last rulemaking affecting part 13 was published in 2014
and added informal conference procedures to Sec. 13.20. Orders of
Compliance, Cease and Desist Orders, Orders of Denial, and Other
Orders, 79 FR 46964, August 12, 2014. Over the last two decades there
have been a number of changes and updates to the statutes cited in part
13, but the majority of these statutory references have not been
updated. This rulemaking would update these statutory references to
ensure that regulated parties have current and accurate information
regarding the FAA's statutory authority.
The last rulemaking that amended part 13 for organizational updates
was published in 2005. Rules of Practice in FAA Civil Penalty Actions,
70 FR 8236, February 18, 2005. Since then the FAA's Office of the Chief
Counsel has undergone various organizational changes that are not
reflected in part 13. Updates are necessary to reflect revised position
titles and the creation of new offices within the Office of the Chief
Counsel. For example, the FAA's Litigation Division was recently
reorganized and the advisory function in civil penalty matters was
transferred from the Assistant Chief Counsel for Litigation to the
Director of the newly created Office of Adjudication. The Office of the
Chief Counsel also has new deputy chief counsel positions: Principal
Deputy Chief Counsel, Deputy Chief Counsel for Business Operations,
[[Page 3616]]
and Deputy Chief Counsel for Employment Law, Litigation, and
Administration. Additionally, the following position titles referenced
throughout part 13 no longer exist: The Deputy Chief Counsel for
Operations, the Deputy Chief Counsel for Policy and Adjudication, and
the Deputy Chief Counsel for Europe, Africa and the Middle East Area
Office. Proposed amendments would reflect these organizational changes
to ensure that regulatory references to separation of functions,
delegations of authority, and service and filing address information
reflect the current structure of the Office of the Chief Counsel.
Additionally, many provisions in part 13 are antiquated. For
example, fax and electronic filing, which have been adopted by most
courts and by many administrative bodies, are not provided for in FAA
administrative proceedings under part 13. Adoption of fax and email
filing and service provisions in this rulemaking would make these
administrative proceedings more efficient, expeditious, and cost-
effective.
Similarly, there is wide-spread growth in federal courts and
agencies' use of ADR as a cost-effective and time-efficient option for
resolving matters or narrowing issues. However, ADR is not currently
mentioned as an option for resolving enforcement matters under part 13.
Under this proposal, regulated persons would have the opportunity to
resolve matters or narrow issues in subparts D and G proceedings in an
informal and cost-effective manner through ADR.
In some instances, the rules do not adequately capture procedures
and practices in part 13 that have evolved or been refined since the
rules were last amended. For example, in civil penalty proceedings the
practice of filing documents with the FAA Hearing Docket and also
serving the ALJ is generally required by ALJ prehearing orders. Serving
the ALJ with documents, however, is not currently reflected in the part
13 rules. Additionally, in civil penalty proceedings, the FAA
decisionmaker has treated motions for reconsideration of an ALJ's
initial decision, order dismissing a complaint, order dismissing a
request for hearing, or order dismissing a request for hearing and
answer as notices of appeal to the FAA decisionmaker. This practice is
not currently addressed in the part 13 rules. Codification and
clarification of these current practices would help ensure the public
is on notice of such developments.
The FAA proposes adding a new administrative appeal process for
emergency orders to which Sec. 13.20 applies. Through this process,
the Administrator's interest in responding to a condition that poses an
immediate threat to public safety would be balanced with the interest
of subjects of these emergency orders in a meaningful post-deprivation
administrative process. Currently, 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 means that the subject of such an order is not
afforded an opportunity to develop a record through the administrative
process before court of appeals review. This could have negative
consequences such as a remand of the matter to the agency to develop
the record, resulting in further delay, or a court of appeals decision
on an inadequately developed record.
The FAA proposes amending part 13, subparts C and D, to provide an
opportunity for an expedited administrative hearing before a Hearing
Officer followed by an expedited appeal to the FAA decisionmaker
through the issuance of a notice of proposed action that would allow
for such process simultaneously with a time-limited emergency order for
the matter. This process would be consistent with the Administrator's
existing authority to issue indefinite emergency orders of suspension
as well as the Administrator's existing authority to issue notices of
proposed action.
Finally, the piecemeal and siloed development of the part 13
enforcement procedures and rules of practice in agency enforcement
proceedings since 1979 has resulted in a lack of uniformity across the
various rules and subparts in part 13. Many of the proposed amendments
are intended to harmonize the rules of practice in agency enforcement
proceedings. Other amendments would update, reword, and reorganize
provisions. These changes are intended to eliminate the potential for
confusion, for practitioners' ease of use, and to improve the rules'
readability for regulated persons.
B. History
The FAA's investigative and enforcement procedures in part 13 were
codified on November 5, 1979. The procedures developed unsystematically
throughout the 1980s and 1990s, with piecemeal revisions to the various
subparts in part 13. Major amendments in 1988 included the broadening
of the investigative and enforcement procedures to airport-related
actions and the development of detailed procedures for statutorily
required on-the-record hearings in civil penalty actions. In the early
1990s the civil penalty provisions were revised to incorporate
procedural changes made by the aviation community and the Committee on
Adjudication of the Administrative Conference of the United States,
update the designation of advisors to the FAA decisionmaker, and test a
program recommended by the Vice President's National Performance Review
designed to streamline the procedures used to process certain civil
penalty enforcement actions. In the latter half of the 1990s, part 13
was amended to update statutory references and delegations of authority
in the rules, and to reflect organizational changes that occurred in
the agency.
Most of the part 13 revisions made over the last two decades have
continued to focus on the civil penalty assessment procedures and rules
of practice in FAA civil penalty actions contained in subparts C and G
of part 13. In 2004, part 13 was amended to reflect the National
Transportation Safety Board's (NTSB) new jurisdiction to review the
FAA's administrative civil penalty actions against individuals acting
as pilots, flight engineers, mechanics, or repairmen. In 2006, part 13
was amended again to update the procedural regulations governing the
agency's administrative assessment of civil penalties for violations of
certain provisions of the Federal aviation and hazardous materials
statutes to reflect statutory updates.
The latest amendments to part 13, not including statutorily
mandated civil penalty inflation adjustments, were codified in 2014.
The revisions added fairness and additional process in subpart C by
providing recipients of notices of proposed orders of compliance, cease
and desist orders, orders of denial, and other orders issued under
Sec. 13.20 with the opportunity to partake in an informal conference
with an FAA attorney prior to the issuance of such orders.
III. Discussion of the Proposal
The FAA proposes to revise subparts A through G of part 13. These
provisions set forth procedural rules governing investigations and
enforcement actions taken by the FAA.
The FAA proposes substantive amendments to subparts C, D, E, and G.
In addition, the FAA proposes certain miscellaneous non-substantive
changes throughout part 13. For example, the FAA proposes updating
position title references throughout to reflect organizational changes
in the Office of the Chief Counsel as well as updating office addresses
and outdated statutory and regulatory references. Other proposed non-
substantive amendments
[[Page 3617]]
include changes to improve readability and clarity such as grammatical
corrections, sentence restructuring, section reorganization, topical
consolidation of like requirements, and removal of redundant
requirements.
A. Subpart A--General Authority To Re-Delegate and Investigative
Procedures
Subpart A (current Sec. 13.1 through 13.7) contains the
regulations covering reports of violations made to the FAA, FAA powers
and delegations in conducting investigations, formal complaints to the
FAA regarding violations of FAA statutes or regulations, and the use of
records required to be kept by FAA regulations in investigations. There
are no substantive changes to current Sec. Sec. 13.1 and 13.7.
Re-Delegation (Sec. 13.1)
Current Sec. 13.1 on reports of violations would be renumbered as
Sec. 13.2. The FAA would replace the requirements in current Sec.
13.1 with a re-delegation provision applicable to the whole of part 13.
Currently, delegation provisions are located throughout part 13 but do
not mention existing re-delegation authority. The Administrator and the
Chief Counsel may each re-delegate the authority they receive as well
as authorize successive re-delegations of that authority.\1\ The
proposed amendment would explicitly state that this power to re-
delegate exists.
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\1\ 49 CFR 1.81a (Administrator); FAA Order 1150.154A, ] 7.b
(Chief Counsel).
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Reports on Violations (Sec. 13.2)
Proposed Sec. 13.2 would contain the same requirements as current
Sec. 13.1. The FAA proposes revising this section by updating the
statutory references and simplifying the language for readability.
Investigations (General) (Sec. 13.3)
Section 13.3 addresses the Administrator's powers related to
investigations. Current Sec. 13.3(b) sets forth the delegation of the
Administrator's investigatory authority. This language is unnecessarily
complex. The FAA proposes new delegation language for Sec. 13.3(b)
that is easier to understand.
Proposed Sec. 13.3(c) consolidates authority delegated to several
counsel positions in current Sec. 13.3(b) and (c) and changes the
delegates to the Chief Counsel, each Deputy Chief Counsel, and the
Assistant Chief Counsel for Enforcement. This is consistent with
changes in organization and responsibilities within the FAA since part
13 was last amended. Proposed Sec. 13.3(c) also describes the
authority granted by the statutes cited in current Sec. 13.3(b) rather
than citing the statute.
Formal Complaints (Sec. 13.5)
Under Sec. 13.5, any person may submit a formal complaint to the
FAA alleging that a person has violated an FAA-related statute, rule,
regulation, or order.
Proposed revisions to Sec. 13.5(b)(2) and (i) would update the
mailing address and docket location to reflect the division within the
Office of the Chief Counsel currently responsible for handling formal
complaints.
Proposed Sec. 13.5(d) would clarify the method of forwarding
complaints by requiring the copies of complaints sent by the FAA to the
subjects of complaints to be sent by certified mail.
The FAA proposes removing current Sec. 13.5(e), which addresses
complaints filed against members of the armed services as set forth in
current Sec. 13.21. This section is no longer necessary, as the FAA
proposes to remove Sec. 13.21. Proposed Sec. 13.5(f) would clarify
that it is optional for the subject of a formal complaint to submit an
answer and clarify that the date of service of the complaint on a
subject is the date of mailing. The current regulation could be read as
mandating the filing of an answer. While an answer can be beneficial to
both the subject of a complaint and the FAA as it considers a formal
complaint, it is not the FAA's intent to require a subject to file an
answer. Also, the current regulation does not define date of service.
To prevent confusion, the FAA is proposing to define it as the date of
mailing.
B. Subpart B--Administrative Actions
Subpart B (current Sec. 13.11) allows the Administrator to take
administrative action rather than legal enforcement action if an
investigation uncovers a violation or apparent violation. It also
describes what constitutes an administrative action. The FAA proposes
updating the statutory references and simplifying the language for
readability, without changing the requirements of this section.
C. Subpart C--Legal Enforcement Actions
Subpart C (current Sec. 13.13 through 13.29) describes the
Administrator's authority to take different kinds of legal enforcement
actions, including certificate actions, civil penalty actions, orders
of compliance, cease and desist orders, aircraft seizures, and
injunctions. It also explains how the different types of legal
enforcement actions are initiated as well as how persons subject to
those actions can respond to them.
The FAA proposes several substantive changes to this subpart.
Primarily, unnecessary restatements of the Administrator's statutory
authority to take legal enforcement action would be removed and new
procedures would be added in Sec. 13.20 to allow for an administrative
appeal of emergency orders covered by that section.
Consent Orders (Sec. 13.13)
Section 13.13 allows for the resolution of any legal enforcement
action mentioned in subpart C through a consent order.
In Sec. 13.13(a), the FAA proposes updating the text to identify
who specifically may issue a consent order, consistent with the
reorganization of the Office of the Chief Counsel. Current Sec.
13.13(a) states that a consent order may be issued ``at any time before
the issuance of an order under this subpart.'' Proposed Sec. 13.13(a)
would remove this text to make clear that consent orders may be issued
at any time, not just before an order is issued. This change would
allow for greater flexibility for both the FAA and opposing parties
when settling cases through consent orders.
A person who may be subject to legal enforcement action can propose
a consent order, but it must contain the items listed in Sec.
13.13(b). The existing introductory text is passive as to who can
propose a consent order and would be rewritten to clarify that it is
the person subject to the notice. As part of this clarification,
existing Sec. 13.13(b)(1) would be removed as it is duplicative of
what is in the introductory text and current Sec. 13.13(b)(2) would be
redesignated as Sec. 13.13(b)(1). The proposed rule would add an
express waiver of attorney's fees and costs as an item that must be
included with a proposed consent order. The proposed rule would also
expand current Sec. 13.13(c) (integrated in Sec. 13.13(b)(5) as part
of the proposal) to require withdrawal of any request for hearing or
appeal in any forum; the current rule only mentions hearings under
subpart D of part 13. This expansion is consistent with long-standing
FAA practice that when settling a case (such as through a consent
order) all requests for hearing or appeals in that case must be
withdrawn, regardless of the forum.
Section 13.13(b)(2) (redesignated as Sec. 13.13(b)(2)) would be
amended to clarify that the waiver of review that must be in a proposed
consent order covers any form of legal review including administrative
processes as well as judicial review in Federal court.
[[Page 3618]]
Finally, Sec. 13.13(b)(4) would be amended to reflect that a
consent order may be issued after an order by stating that a notice or
order may be incorporated by reference into the consent order and used
to construe the consent order if it was issued prior to the consent
order.
Civil Penalties: General (Sec. 13.14)
Section 13.14 lays out the authorities under which a person may be
subject to a civil penalty. These authorities include not only the
statutes themselves, but also any rule, regulation, or order
promulgated under those statutes. Finally, it points to the minimum and
maximum civil penalty amounts in subpart H of part 13 and mentions that
they are periodically adjusted for inflation. The FAA proposes to
delete this section because it is an unnecessary restatement of
statutory authority. Also, current paragraph (c) is unnecessary and
would be removed because subpart H of part 13 addresses the maximum and
minimum civil penalties and inflation adjustments in detail.
Civil Penalties: Other Than by Administrative Assessment (Sec. 13.15)
When the FAA seeks to assess a civil penalty but the amount in
controversy exceeds the statutory limits of its authority to
administratively assess a penalty, Sec. 13.15 applies. Under this
section, the FAA sends a civil penalty letter to the person charged
with a violation. The letter describes the charges, applicable law, and
an amount the FAA would accept in compromise of the action.
The proposal includes amendments to Sec. 13.15(b) and (c)(1) to
reflect the current organizational structure of the Office of the Chief
Counsel. Additionally, the proposal would eliminate references in Sec.
13.15(b) to December 12, 2003 as obsolete because the statute of
limitations for imposing a civil penalty for a violation before
December 12, 2003 has run.\2\
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\2\ 28 U.S.C. 2462.
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The proposal would combine paragraphs (c)(2), (3), and (4) into new
paragraph (c)(2), which would identify the options for responding to a
civil penalty letter and adding the option to request an informal
conference to discuss the case. Proposed Sec. 13.15(c)(2)(i) would
also allow a person to submit an electronic payment in the amount
offered by the Administrator in the civil penalty letter, to reflect
the FAA's current practice. The option in current Sec. 13.15(c)(3) and
(4) to submit a certified check or money order in an amount other than
that proposed in the civil penalty letter as a compromise offer would
be removed, as this option is not required by statute, was rarely used,
and was an inefficient means of settling cases.
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 (Sec. 13.16)
Currently, section 13.16 addresses administrative assessments of
civil penalties against persons who are not acting as a pilot, flight
engineer, mechanic, or repairman for violations cited in the first
sentence of 49 U.S.C. 46301(d)(2), or in 49 U.S.C. 47531, or any
implementing rule or order. It also covers civil penalties against all
persons who violate hazmat laws, i.e., 49 U.S.C. chapter 51 or a rule
or order issued under that chapter.
The FAA proposes the following updates to Sec. 13.16:
Update all regulatory and statutory cross references.
Remove obsolete references to December 12, 2003 from
Sec. 13.16(b) for the same reasons as the removal of this date from
Sec. 13.15.
Move the delegation of authority, currently in Sec.
13.16(e), to Sec. 13.16(d) and update the delegation to reflect
reorganization of the Office of the Chief Counsel. Consistent with
the existing delegation of authority in Sec. 13.16, the Chief
Counsel would not be included because the Chief Counsel advises the
Administrator when the Administrator acts as the FAA decisionmaker
reviewing civil penalty actions under this section and Sec. 13.18
on appeal.
Redesignate Sec. 13.16(d), describing when an order
assessing a civil penalty may be issued and what counts as an order
assessing a civil penalty, as Sec. 13.16(e) without substantive
change.
Amend Sec. 13.16(g) to eliminate the requirement for a
company or corporation to designate in writing an agent to receive a
final notice of proposed civil penalty because this option is
provided for in proposed (and current) Sec. 13.16(f) for notices of
proposed civil penalty. A notice of proposed civil penalty would
always be issued before a final notice of proposed civil penalty, so
including it in both Sec. 13.16(f) and (g) is unnecessary
duplication.
Remove the last sentence of current Sec. 13.16(i), as
well as most of current Sec. 13.16(j), as the issues discussed
there would be addressed in proposed subpart G.
Redesignate current Sec. 13.16(k) as Sec. 13.16(l)
with revisions to clarify how a person could pay a civil penalty as
well as the due date for the payment, along with adding an option
for electronic payment.
Redesignate current Sec. 13.16(l) and (m) as Sec.
13.16(m) and (k), respectively.
Delete the reference to 49 U.S.C. 46303(b) from Sec.
13.16(n) as that paragraph falls under the authority of the
Secretary of Homeland Security.
Seizure of Aircraft (Sec. 13.17)
Currently, Sec. 13.17 describes how the Administrator exercises
his authority to seize aircraft under 49 U.S.C. 46304. The FAA proposes
two amendments to this section. In Sec. 13.17(a), ``operator'' would
be changed to ``the individual commanding the aircraft'' because the
latter phrase is found in the statute which provides the authority for
Sec. 13.17 and the term ``operator'' appears to expand the agency's
authority in this area beyond that intended by the statute.
``Operate'' is defined in 14 CFR 1.1 as to ``use, cause to use, or
authorize to use aircraft, for the purpose . . . of air navigation
including the piloting of aircraft.'' Thus an ``operator'' under this
definition includes persons other than individuals, e.g., an air
carrier. In practice, the FAA applies Sec. 13.17 consistent with the
more narrowly construed statutory authority for aircraft seizure,
limiting the scope of the provision to individuals. Accordingly, this
amendment would harmonize the regulatory language with both the statute
and FAA practice.
Section 13.17(c)(4)(ii) would be amended to make clear that an
aircraft may be seized for administratively assessed civil penalties,
not only those imposed by a Federal court.
Civil Penalties: Administrative Assessment Against an Individual Acting
as a Pilot, Flight Engineer, Mechanic, or Repairman (Sec. 13.18)
Section 13.18 governs civil penalties administratively assessed
against individuals acting as a pilot, flight engineer, mechanic, or
repairman. The agency proposes the following amendments:
The delegation of authority in Sec. 13.18(c) would be amended to
reflect the current organizational structure of the Office of the Chief
Counsel. Additionally, Sec. 13.18(d) would be amended to include more
detail regarding the options for responding to a notice, consistent
with proposed Sec. 13.16(f). Section 13.18(h) would also be amended to
specify what constitutes a final decision or order so as to correspond
with the analogous judicial review provision in Sec. 13.16(k). In the
same way, Sec. 13.18(i) would be amended to specify when and how a
compromise may proceed and thus match the analogous compromise
provision in proposed Sec. 13.16(n).
[[Page 3619]]
Certificate Actions Appealable to the National Transportation Safety
Board (Sec. 13.19)
Section Sec. 13.19 describes the authority under which the
Administrator may take certificate action. It also describes when and
how the Administrator must provide notice before issuing an order under
this authority. The proposed rule would remove unnecessary references
to the FAA's statutory authority to act while clarifying how persons
can respond to a notice or appeal an order. Statutory citations need
not be listed in the regulatory text for the agency to exercise its
authority under such statutes. However, Sec. 13.19 would retain
descriptions of the FAA's authority to issue immediately effective
(i.e., emergency) orders.
Proposed Sec. 13.19(a) contains a general description of the
Administrator's authority to take certificate action, which provides
the basis for the regulations pertaining to the issuance of notices and
orders that make up the rest of this section.
The content of a notice of certificate action and the ways a person
may respond to a notice for non-emergency actions are contained in
proposed Sec. 13.19(b). It retains the substance of current Sec.
13.19(c) and the floating paragraph that follows as to these areas, but
has been restructured and reworded for consistency with similar
provisions, e.g., current (and proposed) Sec. Sec. 13.18(d) and
13.16(f). This restructuring would also make new Sec. 13.19(b) easier
to understand than current Sec. 13.19(c) and the floating paragraph
that follows, which are both difficult to parse and difficult to relate
to the rest of current Sec. 13.19(c).
Proposed Sec. 13.19(b) also resolves a conflict between current
Sec. 13.19(d) and 49 U.S.C. 44106. Current Sec. 13.19(d) appears to
exclude all orders affecting a certificate of registration, including
orders issued under 44106, from being appealed to the NTSB. However, 49
U.S.C. 44106 explicitly provides for appeals on the merits of 44106
actions to the NTSB. Therefore, proposed Sec. 13.19(b)(2)(iv) would
clarify that orders issued under 44106 are appealable to the NTSB.
The FAA proposes removing current Sec. 13.19(d) because it
unnecessarily repeats statutory authority on appealing applicable
orders on the merits as well as when their effectiveness is stayed on
appeal (49 U.S.C. 44709 and 44106).
Proposed Sec. 13.19(c) states that a person affected by the
immediate effectiveness of an emergency order issued under 49 U.S.C.
44709 may petition the NTSB for review of the underlying emergency
determination. The appeal of an emergency determination is mentioned in
the NTSB's rules of practice, but is not currently mentioned in part
13. It is being added so that persons affected by emergency orders
under 44709 are aware they may seek review of the emergency
determination separately from the merits of the order.
Proposed Sec. 13.19(d) states the three bases for an emergency
order where the determination that an emergency exists cannot be
appealed to the NTSB, even though the merits of the emergency order can
be appealed to the NTSB. These three bases correspond to actions taken
under 49 U.S.C. 44710, 44106, and 44726, respectively. In these cases,
a separate appeal of the emergency determination must be made to a U.S.
court of appeals.
Orders of Compliance, Cease and Desist Orders, Orders Of Denial, and
Other Orders (Sec. 13.20)
Orders of compliance, cease and desist orders, orders of denial,
and certain other orders have a different notice and appeal process
than what is outlined in Sec. 13.19; those orders are addressed in
Sec. 13.20.
Proposed Sec. 13.20(a) would reorganize current Sec. 13.20(a),
update the statutory references to cite title 49, and make clear to
which orders Sec. 13.20 does and does not apply for purposes of
providing FAA administrative hearings under subpart D. For example,
Sec. 13.20(a)(4) would make clear that orders issued under 49 U.S.C.
44105 fall under Sec. 13.20 process. Proposed Sec. 13.20(a)(5) would
serve as a catch-all for any other orders where administrative process
can be but is not otherwise explicitly provided.
Proposed Sec. 13.20(b) would incorporate the requirement in
current Sec. 13.20(b) to provide notice in non-emergency cases (i.e.,
cases where the order is not immediately effective) as well as
specifically identify which procedures govern non-emergency versus
emergency cases.
Proposed Sec. 13.20(c) would integrate current Sec. 13.20(c),
(d), and (e) regarding notice of an action, deadline and options for
responding to a notice (including requesting a hearing), and the
consequences of failing to timely request a hearing.
The FAA also proposes adding an additional response option in Sec.
13.20(c)(ii) allowing a recipient of a notice to agree to the issuance
of an order as proposed in the notice of proposed action, with the
understanding that the person choosing this option waives any right to
contest or appeal the agreed-upon order issued under this option in any
administrative or judicial forum. This parallels similar provisions in
Sec. Sec. 13.16(f)(1), 13.16(g)(2)(ii), 13.18(d)(1), and
13.19(b)(2)(i) describing what happens if a recipient accepts the civil
penalty or other sanction proposed in a notice. It also makes clear
that by agreeing to the order, the recipient is waiving his right to
appeal it.
The FAA additionally proposes adding an expedited administrative
process for the subjects of orders to which Sec. 13.20 applies in
proposed Sec. Sec. 13.20(d) and 13.67. Currently, part 13 does not
provide for an expedited administrative process for orders referenced
in Sec. 13.20 where the Administrator finds that an emergency exists
and makes an order immediately effective.
The Administrator is authorized to issue orders to carry out the
FAA's safety mandate under 49 U.S.C. 40113(a), and to order the
immediately effectiveness of such orders under 49 U.S.C. 46105(c) when
an emergency exists. Under 49 U.S.C. 46110, U.S. courts of appeals have
exclusive jurisdiction over appeals of orders issued by the
Administrator unless there is an administrative process that by statute
requires exhaustion, as in 49 U.S.C. 44703, 44709, 44710, 44726, and
46111. Accordingly, subjects of some final orders do not have an
opportunity to have the matter administratively adjudicated before
court review.
The Administrator's use of emergency authority is critical when
conditions require the cessation of conduct that poses an immediate
threat to public safety. Due to the absence of administrative
adjudication provisions for emergency orders to which Sec. 13.20
applies, the subjects of such orders do not currently have the
opportunity to develop a record through the administrative process,
including the opportunity to conduct discovery, offer evidence, present
testimony, and cross-examine witnesses. The record for court review
would generally consist of materials compiled by the FAA as the basis
for the FAA's emergency action. Courts of appeals have no predictable
mechanism for a petitioner to submit evidence or testimony to add to
the record. While a court of appeals could remand a case to the FAA for
proceedings to further develop the record in a case, part 13 does not
currently define what those administrative proceedings would entail.
Filing a petition for review only to have it remanded to the agency is
an inefficient use of both the petitioner's
[[Page 3620]]
and the agency's time and money. Further, a court's review of an
underdeveloped record necessitating a remand is an unnecessary
expenditure of resources that can be avoided if the agency provides an
opportunity for the parties to develop the record during less costly
and more efficient informal administrative proceedings. In fact, the
proposed procedures could provide an expeditious resolution of a matter
that may obviate court review.
The proposed emergency procedure in Sec. 13.20(d), and
corresponding process for expedited hearings in Sec. 13.67, balance
the Administrator's interest in responding to a condition that poses an
immediate threat to public safety through the agency's emergency
authority and the interest of a subject of an emergency order to which
Sec. 13.20 applies in a meaningful post-deprivation administrative
process. Section 13.20(d) would provide for the issuance of a time-
limited (or temporary) emergency order simultaneously with a notice of
proposed action. Both the temporary emergency order and notice of
proposed action would set forth the same charges forming the basis for
the action. The order would expire 80 days after the date of its
issuance, but the notice would not be time-limited.
The subject of the temporary emergency order could seek court
review of the order under 49 U.S.C. 46110. As a practical matter, the
temporary emergency order is akin to an immediately effective
injunction ceasing conduct that poses an immediate safety threat, and
an appeal from the order would likely consist of a petition to stay the
effectiveness of the order given its short duration. Meanwhile, the
subject of the action could request expedited administrative review of
the notice, which would include a hearing before a Hearing Officer and
an appeal of the Hearing Officer's decision to the Administrator
governed by procedures in proposed Sec. 13.67, which sets forth time
limits allowing for the completion of the administrative process before
the expiration of the temporary emergency order.
The process proposed in Sec. Sec. 13.20(d) and 13.67 is consistent
with the Administrator's existing authority and practice. The
Administrator issues emergency orders under 49 U.S.C. 46105(c),
including indefinite emergency orders to address a person's failure to
comply with a statutory or regulatory requirement or cooperate with the
FAA. The Administrator also has authority to seek mandatory or
prohibitive injunctive relief in accordance with the procedures at 14
CFR 13.25. Further, the Administrator issues notices of proposed action
and provides administrative processes related to such notices. While
proposed Sec. 13.20(d) and Sec. 13.67 provide a new expedited
administrative review for matters to which Sec. 13.20 applies,
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 existing Sec. 13.81(a).\3\
Accordingly, these new provisions create no novel issues. Rather, these
new provisions use existing processes--albeit modified--to achieve the
mutually beneficial results previously discussed.
---------------------------------------------------------------------------
\3\ This rulemaking proposes removing the current regulations
regarding appeals of hazmat emergency orders of compliance in
subpart E because 49 CFR part 109 now governs them. See discussion
of proposed Sec. 13.81(a).
---------------------------------------------------------------------------
Finally, proposed Sec. 13.20(e) updates the delegation of the
authority of the Administrator to reflect the current organizational
structure of the Office of the Chief Counsel.
Current Sec. 13.20 (f) through (m) would be removed, as their
subject matter would be moved to proposed subpart D, which would govern
hearings requested under Sec. 13.20.
Military Personnel (Sec. 13.21)
Section 13.21 addresses violations by members of the Armed Forces
or civilian employees of the Department of Defense. This provision was
intended to reflect the self-implementing language in 49 U.S.C.
46101(b). Section 46101(b) requires the Secretary of Transportation or
the Administrator to refer a complaint against a member of the armed
forces to the Department of Defense. It further requires the Department
of Defense to provide information to the Secretary of Transportation or
the Administrator regarding the action taken on the complaint no later
than 90 days after receiving the complaint.
Currently, Sec. 13.21 is an incomplete representation of section
46101(b) because the language in this section is not consistent with
the statute and it does not include the requirement for the Department
of Defense to provide information on the referred complaint. However,
given that this provision is not necessary to implement the statutory
requirements in section 46101(b) and does not include any requirements
on regulated persons, the agency proposes to remove this section,
thereby eliminating the inconsistency between the regulation and the
statute. Removing this section from the FAA's regulations does not
affect the substance of section 46101(b), which remains in effect.
Criminal Penalties (Sec. 13.23)
Section 13.23 identifies criminal penalties for statutory
violations and the method by which FAA employees report criminal
violations. The FAA proposes to remove this section because it does not
impose any requirements on regulated persons. The method by which FAA
employees report criminal violations is appropriately addressed through
internal agency procedures.
Injunctions (Sec. 13.25)
Injunctions are addressed in Sec. 13.25. The FAA proposes to
remove this section as unnecessary. The authority to seek an injunction
is already provided by statute. The FAA's process for seeking an
injunction is a matter best addressed through internal agency
procedures.
Final Order of Hearing Officer in Certificate of Aircraft Registration
Proceedings (Sec. 13.27)
As final orders of Hearing Officers regarding aircraft registration
proceedings would be addressed in proposed subpart D, Sec. 13.27 would
be removed and reserved.
Civil Penalties: Streamlined Enforcement Procedures for Certain
Security Violations (Sec. 13.29)
The FAA proposes to remove and reserve Sec. 13.29 because
proceedings for security violations currently fall under the TSA's
authority.
D. Subpart D--Rules of Practice for FAA Hearings
Subpart D (current Sec. Sec. 13.31 through 13.63) currently
provides the rules of practice applicable to FAA hearings requested in
accordance with Sec. Sec. [thinsp]13.19(c)(5), 13.20(c)(3), 13.20(d),
13.75(a)(2), 13.75(b), or 13.81(e). This rulemaking proposes to
consolidate, reorganize, and update the rules of practice applicable to
subpart D hearings.
Applicability (Sec. 13.31)
Section 13.31 currently uses cross references within part 13 to
explain when subpart D hearings may be requested. The FAA proposes
removing the cross-reference to 13.81(e) to reflect that subpart D
hearings are no longer an option in appeals of hazmat emergency orders
issued under current Sec. 13.81. The formal hearing requirements in 49
CFR part 109, published in 2011, superseded the option for subpart D
hearings in
[[Page 3621]]
such matters.\4\ Additionally, the amendment would remove the cross-
reference to Sec. 13.19(c)(5), as the contents of this provision would
be moved to proposed Sec. 13.20. The current cross-references to Sec.
13.20(c) and (d) would be streamlined to cite Sec. 13.20, as would the
current cross-references to Sec. 13.75(a)(2) and (b), to cite Sec.
13.75. Subpart D hearings, therefore, would be limited to review of
orders as described in proposed Sec. 13.20, and non-emergency hazmat
orders of compliance described in proposed Sec. 13.73.
---------------------------------------------------------------------------
\4\ See 49 U.S.C. 5121(d)(3) (requiring formal review procedures
under 5 U.S.C. 554) and the final rule implementing the
requirements, Hazardous Materials: Enhanced Enforcement Authority
Procedures, 76 FR 11570, March 2, 2011.
---------------------------------------------------------------------------
Further, to clarify the current applicability of the subpart and to
reflect organizational changes, as set forth in FAA Order GC 1100.170,
effective January 3, 2017 (available at http://www.faa.gov/regulations_policies/orders_notices/), the FAA proposes to state
expressly that hearings under subpart D would be considered informal
adjudications, and that the FAA's Office of Adjudication would provide
subpart D proceedings.
Parties, Representatives, and Notice of Appearance (Sec. 13.33)
Current Sec. 13.33 provides that any party may appear and be heard
in person or by an attorney. The provision does not define any relevant
terms pertaining to appearances or representation in subpart D
hearings, and it does not provide the process by which a representative
of a party enters an appearance.
The FAA proposes amending Sec. 13.33 to identify and define the
parties to a proceeding in order to ensure clarity in subsequent
sections. The FAA also proposes to provide a process for designating
representatives, explaining that a party must file a notice of
appearance that includes the representative's name and contact
information, and that the notice may be incorporated into an initial
filing, but subsequent notices by additional representatives or
substitutes must be filed independently. Changes to representation do
not require filing an amended pleading. Instead, a party may file a
notice of appearance with the FAA Hearing Docket and serve it on the
other parties.
Request for Hearing, Complaint, and Answer (Sec. 13.35)
Section 13.35 presently provides the process for filing an initial
request for hearing and pleading documents with the FAA Hearing Docket,
including that a party must file an answer with the request for
hearing, prior to the filing of the complaint. The order of these
initial filing requirements distinguishes current subpart D procedures
from those of other administrative bodies that the FAA practices
before, including the NTSB (49 CFR part 821), as well as initial
pleading procedures before Federal courts. In those forums, the filing
of an answer occurs after the filing of a complaint.
The FAA proposes to align the subpart D initial pleading processes
with more traditional initial pleading processes that are also employed
by the NTSB by removing the requirement in Sec. 13.35(b) and (c) that
an answer must be filed concurrently with the request for hearing.
Instead, proposed Sec. 13.35(b) would require the FAA to file a
complaint within 20 days after an affected party serves the FAA with a
copy of a request for hearing. Proposed Sec. 13.35(c) would require
the party who requested the hearing to file an answer to the complaint
within 30 days after service of the complaint. The proposed amendment,
consistent with Rule 8 of the Federal Rules of Civil Procedure and
Sec. 13.209(e) in subpart G, would specify that all allegations in the
complaint not specifically denied in the answer are deemed admitted.
The proposal would also reorganize subpart D procedures by moving
the filing and service information currently found in Sec. 13.35 to
Sec. 13.43, which provides general filing and service instructions for
all documents. The FAA also proposes consolidating the instructions for
filing a request for hearing from two paragraphs ((a) and (b)), to one
paragraph (a), without substantive change.
Hearing Officer: Assignment and Powers (Sec. 13.37)
Section 13.37 currently provides a list of the Hearing Officer's
powers without providing how or when a Hearing Officer is assigned. The
proposed amendments to this section would provide how and when Hearing
Officers are assigned, specifying that the Director of the Office of
Adjudication would assign a Hearing Officer to preside over the matter
as soon as practicable after the filing of a complaint. The proposed
amendment would also clarify Sec. 13.37(h) by explaining that in
addition to regulating the course of a hearing, a Hearing Officer may
generally regulate the course of proceedings, including but not limited
to discovery, motions practice, imposition of sanctions, and the
hearing, which is consistent with current practice. The proposed
amendment to Sec. 13.37(k) would specify that a Hearing Officer may
issue protective orders governing the exchange and safekeeping of
information otherwise protected by law, except that national security
information \5\ may not be disclosed under such an order. Proposed
Sec. 13.37(l) would address the remaining Hearing Officer's powers
currently provided in Sec. 13.37(k). Finally, the amendment would add
Sec. 13.37(m) explaining that a Hearing Officer may take any other
action authorized in subpart D.
---------------------------------------------------------------------------
\5\ The term ``national security information'' in amended Sec.
13.37(k) is interpreted consistently with existing executive orders
governing this information. For example Executive Order 13526, 75 FR
707, 728-29, January 5, 2010, defines ``national security'' and
``information'' as any knowledge that can be communicated or
documentary material, regardless of its physical form or
characteristics, that is owned by, is produced by or for, or is
under the control of the United States Government pertaining to the
national defense or foreign relations of the United States.
---------------------------------------------------------------------------
Separation of Functions and Prohibition on Ex Parte Communications
(Sec. 13.41)
The FAA proposes to add a new Sec. 13.41, pertaining to separation
of functions and ex parte communications. Proposed Sec. 13.41 would
ensure separation between the hearing and appellate functions in the
Office of Adjudication by prohibiting a Hearing Officer from
participating in any appeal to the Administrator, so as to instill
public confidence in the process.
Proposed Sec. 13.41 also establishes procedural safeguards against
ex parte communications to ensure that decisions by the Hearing Officer
and the Administrator are based on the agency record. However, an event
scheduled with prior notice would not be considered a prohibited ex
parte communication even if a party failed to appear, respond or
participate, and would be permitted to proceed in the Hearing Officer's
sole discretion. Further, proposed Sec. 13.41(c) would provide that
under subpart D appeals to the Administrator from a Hearing Officer's
order, FAA attorneys representing the complainant are not permitted to
advise the Administrator or engage in substantive ex parte
communications with the Administrator or with the Administrator's
advisors.
Service and Filing of Pleadings, Motions, and Documents (Sec. 13.43)
Currently, Sec. 13.43 provides the service and filing rules for
pleadings, motions, and other documents filed under subpart D. It does
not, however, address service of requests for hearings nor does it
provide the filing address for the FAA Hearing Docket. Additionally,
Sec. 13.43
[[Page 3622]]
only provides for service by personal delivery or mail.
Proposed Sec. 13.43(b) would add the options of filing with the
FAA Hearing Docket by fax or email. Filing in person, by expedited
courier service, or by U.S. mail would continue as currently provided.
Proposed Sec. 13.43(c) would contain the physical addresses for filing
documents. It would also state that the email and fax number for the
FAA Hearing Docket would be on the Office of Adjudication website.\6\
Proposed Sec. 13.43(d) would provide the number of originals or copies
that must be filed depending on the method of service. Instructions for
filing by email would be given in proposed Sec. 13.43(e).
---------------------------------------------------------------------------
\6\ See Office of Adjudication website (http://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/adjudication/).
---------------------------------------------------------------------------
Proposed Sec. 13.43(f) would reflect the permissible methods of
service on parties. Service by personal delivery or mail would continue
as currently provided. The amendment would permit service by email or
fax, though email service would require the prior consent of the person
to be served and allow consent to be withdrawn in writing.
Additionally, proposed Sec. 13.43(g) would provide the certificate
of service requirements currently in 13.43(c), as amended to address
service by fax or email and the requirement that the certificate must
be signed, describe the method of service, and state the date of
service.
Finally, the proposed reorganization would move the ``date of
filing'' and ``date of service'' definitions from paragraphs (d) and
(e) to proposed paragraph (h). The proposal would further provide that
the date of filing/service is determined depending on the method of
filing/service used, which is consistent with common practice. If a
document is filed/served by fax or email, the date of filing/service
would be the date the email or fax is sent. If a document is filed/
served by personal delivery or by expedited courier service, the date
of filing/service would be the date that delivery is accomplished. If a
document is mailed, the date of filing/service would be 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.
Computation of Time and Extension of Time (Sec. 13.44)
The FAA proposes moving the provisions currently in 13.44,
describing how to compute time periods proscribed under subpart D and
procedures for requesting extensions of time, to section 13.45. Section
13.44 would be removed and reserved for future use in order to follow
the general numbering scheme proposed for subpart D.
Computation of Time and Extension of Time (Sec. 13.45)
In place of current Sec. 13.45, the FAA proposes adding the
general computation of time provision and extension of time provision
currently in Sec. 13.44.
Proposed Sec. 13.45(a) would contain the provision for computing
time that is currently in Sec. 13.44(a), removing extraneous language
that is confusing, without any substantive change. The reference in
current Sec. 13.44(a) to ``legal holiday for the FAA'' would be
updated in proposed Sec. 13.45(a) to ``Federal holiday'' which has the
same meaning, but is more easily understood by the general public.
Proposed Sec. 13.45(b) and (c) would contain the requirements for
requesting extensions of time previously provided in Sec. 13.44(b).
The FAA proposes to amend these requirements to distinguish between
extension requests that the parties agree on, and those they do not
agree on, which are not distinguished in current Sec. 13.44(b). This
proposed distinction would decrease the burden on parties making joint
requests for extensions or unopposed requests for extensions, by not
requiring parties making those requests to show good cause for the
extension to be granted. Proposed Sec. 13.45(b) would provide that
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. Proposed Sec. 13.45(c) would provide that if the parties do
not agree, a party may make a written request to extend the time for
filing to the appropriate official listed in Sec. 13.45(b), who could
grant the request for good cause shown.
Withdrawal or Amendment of the Complaint, Answer or Other Filings
(Sec. 13.47)
Section 13.47 provides for withdrawal of the notice or a request
for hearing. The proposed amendment to Sec. 13.47 would retain the
existing withdrawal provision and substitute ``complainant'' and
``respondent'' as defined in amended Sec. 13.33 where appropriate, as
well as substitute ``complaint'' for ``notice of proposed action'' to
align with initial pleading changes in proposed Sec. 13.35. The FAA
proposes adding Sec. 13.47(b), containing the provisions for amending
the notice and answer from current Sec. 13.45. It proposes amending
the provision to replace unnecessary references to ``his or her'' with
``its'' and modifying the requirement for parties to file amended
pleadings with the Hearing Officer so that all amendments are filed
with the FAA Hearing Docket instead. This would align with the amended
filing requirements proposed in Sec. 13.43(b). The proposed amendment
would also replace the reference to a notice of proposed action with a
reference to a complaint, to align with initial pleading changes in
proposed Sec. 13.35.
Motions (Sec. 13.49)
Section 13.49 currently provides a list of motions that parties may
file. The FAA proposes to revise Sec. 13.49 to consolidate certain
categories of motions to reduce redundancy, specifically address
certain common motions that were previously not listed, provide
additional information or clarity about motions currently listed, and
to align motions practice with common practices permitted under the
Federal Rules of Civil Procedure.
Sections 13.49(a) and (c) would be consolidated into proposed Sec.
13.49(a)(1) and (2), allowing parties to file a motion to dismiss or a
motion for a more definite statement in place of an answer, as is
currently provided, with the addition that a respondent's motion to
dismiss may be based on other appropriate grounds not specifically
listed.
In Sec. 13.49(b), the FAA proposes to explicitly state that
motions to dismiss a request for hearing could be based on
jurisdiction, timeliness, or other appropriate grounds.
Proposed Sec. 13.49(c) would address motions for decisions on the
pleadings, currently called motions for judgment on the pleadings in
Sec. 13.49(d), and it would add an option to file motions for summary
decision. The FAA proposes that parties file these motions in the
manner provided by Rules 12 and 56, respectively, of the Federal Rules
of Civil Procedure.
Proposed Sec. 13.49(d) would provide for motions to strike, which
are currently provided for in Sec. 13.49(e). It would also add
``redundant'' matters as a basis for motions to strike, consistent with
the Federal Rules of Civil Procedure.
Proposed Sec. 13.49(e) would address motions to compel, which were
previously addressed as motions for production of documents in Sec.
13.49(f).
[[Page 3623]]
This change is intended to align with the revised discovery rule in
proposed Sec. 13.53. The proposal would also remove the reference to
Rule 34 of the Federal Rules of Civil Procedure. Additionally, the FAA
would clarify that a party may file a motion to compel if the other
party fails to timely produce requested discovery and the moving party
certifies it has conferred in good faith with the other party in an
attempt to obtain the requested discovery prior to filing the motion.
Section 13.49(f), as proposed, would permit a party to file motions
for protective orders. It would also permit Hearing Officers to order
information or testimony withheld from public disclosure if: Such
disclosure would be detrimental to aviation safety; the disclosure
would not be in the public interest; or the information is not
otherwise required to be made available to the public.
The FAA proposes removing the requirement to consolidate motions
currently in Sec. 13.49(g), and replacing this paragraph with a catch-
all provision stating that any application for an order or ruling not
otherwise provided for in subpart D would have to be made by motion.
Finally, Sec. 13.49(h) would be amended to provide a party filing
a response to a motion with 10 days to respond after service of the
motion instead of 5 days. This amendment would provide a more
reasonable length of time to permit the parties to prepare better-
developed responses to motions, and create uniformity with subpart G
motions practice. The amendment would also replace the term ``answer''
with ``response,'' as to avoid confusion with the pleading called an
``answer'' found in revised Sec. 13.35(c).
Discovery (Sec. 13.53)
Section 13.53 currently provides that a party may take depositions
in accordance with section 1004 of the Federal Aviation Act of 1958 (49
U.S.C. 1484, presently codified at 49 U.S.C. 46104) or Rule 26, Federal
Rules of Civil Procedure. It does not address other means of discovery.
The FAA proposes amending Sec. 13.53 by establishing the scope for
discovery in subpart D hearings, setting relevant time limits and
procedures for discovery, and clarifying that parties do not ordinarily
file discovery requests and responses with the FAA Hearing Docket
unless in support of a motion, offered for impeachment, or other
permissible circumstances as approved by the Hearing Officer.
Proposed Sec. 13.53(b) would provide the scope of discovery,
modeled after Rule 26 of the Federal Rules of Civil Procedure, which
provides that the scope is any matter that is not privileged and is
relevant to any party's claim or defense.
Proposed Sec. 13.53(c) would provide for written discovery
requests and set a 30-day time frame for responding to such requests.
This time frame would be consistent with comparable discovery-related
provisions in Sec. 13.220(d), and Rules 33(b)(2) and 36(a)(3) of the
Federal Rules of Civil Procedure.
Proposed Sec. 13.53(d) would include the deposition provision
currently in Sec. 13.53, amended to remove the outdated statutory
citation to 49 U.S.C. 1484, and to remove the reference to Rule 26 of
the Federal Rules of Civil Procedure which only governs oral
depositions. The FAA has the discretion to rely on its authority in
section 49 U.S.C. 46104, as 46104(c) specifically provides how to give
notice of and conduct depositions in proceedings or investigations by
the Secretary of Transportation or the Administrator of the Federal
Aviation Administration.
Finally, proposed Sec. 13.53(e)(1) through (4) would provide that
the Hearing Officer could limit the frequency and extent of discovery
upon a party's showing 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. These limitations on discovery align
with Rule 26(b) of the Federal Rules of Civil Procedure and they
parallel the discovery limits in Sec. 13.220(f).
Subpoenas and Witness Fees (Sec. 13.57)
Section 13.57, which governs subpoenas and witness fees, does not
currently provide any deadlines for requesting subpoenas, or any
process for quashing, modifying, or enforcing subpoenas. It does
contain a provision that shifts the standard witness fee burden from
the party requesting the appearance of the witness to the FAA when
certain circumstances are met. The proposed amendments would address
each of these items.
The FAA proposes amending Sec. 13.57(a) to include deadlines for
requesting subpoenas to ensure people receiving a subpoena have
adequate notice. Specifically, the proposed rule would require parties
requesting subpoenas to file subpoena requests 15 days before the
scheduled deposition or 30 days before the scheduled hearing, barring
good cause shown.
The FAA proposes amending Sec. 13.57(b) by adding a reference to
amended Sec. 13.53 which would provide the process for requesting
production of documents. This section would also be amended to clarify
that only a party could request the production of documents under this
section.
Amendments to Sec. 13.57(c) would explain that the provision does
not apply to FAA employees who appear at the direction of the FAA,
because consistent with current practice, FAA employees appearing at
the direction of the agency do not receive additional compensation for
testifying on behalf of the agency. The amendments would also clarify
the current witness payment provision in Sec. 13.57(c) by specifying
that subpoenaed witnesses would be entitled to fees and allowances as
provided under 28 U.S.C. 1821, the applicable statute governing the
payment of witnesses in judicial proceedings. Additionally, this
section would explain that 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,
would pay the witness fees. This would align the subpart D witness fee
provision with the current provision in Sec. 13.229 of subpart G, and
Sec. 13.121 of subpart F, as amended by this proposed rule.
The FAA proposes removing the fee-shifting provision in Sec.
13.57(d) which currently permits the Hearing Officer to shift the
standard witness fee burden from the party requesting the appearance of
the witness to the FAA. This fee-shifting authority has not been used,
is not supported by an applicable statute, and runs contrary to the
``American Rule'' that parties pay their own costs.
Proposed Sec. 13.57(d) would state the requirements for service of
subpoenas, modeled on the analogous Federal Rule of Civil Procedure
45(b). It would require that except for the Complainant, the party that
requested the subpoena must tender at the time of service of the
subpoena the fees for 1 day's attendance and the allowances allowed by
law if the subpoena requires that person's attendance. The proposed
exemption for the Complainant would align the rule with Federal Rule of
Civil Procedure 45(b), which does not require pre-payment of fees and
allowances when the subpoena issues on behalf of the United States or
any of its officers or agencies. This exemption would also
[[Page 3624]]
align with the general principles against advance payment in 31 U.S.C.
3324.
The FAA proposes a new Sec. 13.57(e) to explain how any person
upon whom a subpoena has been served could 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 rule would require that
the motion 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 things are 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.
The FAA proposes that a motion to quash or modify the subpoena would
stay the effect of the subpoena pending a decision by the Hearing
Officer.
Finally, the proposed amendment would add Sec. 13.57(f) to include
instructions for seeking enforcement of a subpoena if it is disobeyed,
allowing a party to apply to a U.S. district court to seek judicial
enforcement of the subpoena.
Evidence (Sec. 13.59)
Section 13.59 provides how parties may present evidence at subpart
D hearings, which party carries the burden of proof, and the Hearing
Officer's authority to withhold private information from public
disclosure. The FAA proposes to update the reference to ``FAA counsel''
to ``complainant'' to conform to the proposed explanation of
complainant in Sec. 13.33. The FAA also proposes moving the Hearing
Officer's authority to withhold private information from public
disclosure to proposed Sec. 13.49(f).
Record, Decision, and Aircraft Registration Proceedings (Sec. 13.63)
Section 13.63 currently defines what establishes the record in a
case and provides that the record is the exclusive basis for the
issuance of an order. The rule also permits either party to obtain a
transcript of the hearing from the official reporter upon payment of a
fee. The FAA proposes amending Sec. 13.63 by creating new paragraphs
(a) through (c) to define the parameters of a subpart D hearing record
and also address the Hearing Officer's decisions.
Proposed Sec. 13.63(a) would contain the content currently in
Sec. 13.63, with a minor edit to clarify that only admitted exhibits
at the hearing, not all exhibits presented at the hearing, form part of
the record.
Proposed Sec. 13.63(b) would establish minimum standards for a
Hearing Officer's decision, by requiring that the decision include
findings of fact based on the record, conclusions of law, and an
appropriate order.
The FAA would move the contents of current Sec. 13.27(a),
describing the Hearing Officer's authority to suspend or revoke a
respondent's aircraft registration certificate upon the Hearing
Officer's determination that the aircraft is ineligible for an aircraft
registration certificate in proceedings relating to aircraft
registration under 49 U.S.C. 44105, into proposed Sec. 13.63(c).
Appeal to the Administrator, Reconsideration, and Judicial Review
(Sec. 13.65)
The FAA proposes adding Sec. 13.65 to subpart D, which would be
titled ``Appeal to the Administrator, reconsideration, and judicial
review.'' This new section would consolidate all pertinent subpart D
appeal procedures, including appeals from Hearing Officer decisions,
motions for reconsideration of the Administrator's decisions, and
petitions for judicial review, currently found in Sec. 13.20(g)
through (k); Sec. 13.83(a), (c) through (e), and (g); and the filing
and service requirements currently referenced in Sec. Sec. 13.20(m)
and 13.85.
Proposed Sec. 13.65(a) would provide the consolidated procedures
for appealing 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, would continue to be
accomplished according to the filing and service procedures proposed in
Sec. 13.43.
Proposed Sec. 13.65(b) would contain the consolidated procedures
which provide that if a notice of appeal is not filed from the order
issued by a Hearing Officer, such order would be final with respect to
the parties, but would not be binding precedent or subject to judicial
review. This amendment would make clear that all Hearing Officer
decisions could be appealed to the Administrator, and are otherwise
final if not appealed. This amendment would also clarify an ambiguity
in current Sec. 13.19 by making clear that subpart D Hearing Officer
decisions regarding notices of proposed certificate actions for matters
under Title V of the Federal Aviation Act, now codified at 49 U.S.C.
chapter 441, are appealable to the Administrator. Currently, Sec.
13.19(c)(5) provides that a subpart D hearing may be requested for
certificate actions regarding aircraft registration (covered by Title V
of the Federal Aviation Act). However, unlike current Sec. Sec.
13.20(g) and 13.83(a) and (b), it fails to provide that a Hearing
Officer's decision reached at the conclusion of the subpart D hearing
is appealable to the Administrator. This proposed amendment clarifies
this point.
Proposed Sec. 13.65(c) would provide filing deadlines for briefs
to the Administrator, keeping the current time frames provided in
current Sec. Sec. 13.20(i) and 13.83(e), but with a deadline of 40
days, rather than 20, for filing a reply brief. This modified deadline
of 40 days would provide both parties an equal amount of time to
prepare their briefs to the Administrator.
The FAA would add Sec. 13.65(d) to consolidate provisions in
current Sec. Sec. 13.20(j) and 13.83(g). These provisions provide that
on appeal of a Hearing Officer's order to the Administrator, the
Administrator would review the record of the proceeding, and issue an
order dismissing, reversing, modifying or affirming the order,
including the reasons for the Administrator's action. Additionally, the
proposed amendment would add a requirement specifying that the
Administrator could only consider 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. This addition would harmonize this subpart D appeal
provision with Sec. 13.233(b) in subpart G and 49 U.S.C.
46301(d)(7)(A), which apply to civil penalty cases against persons not
acting as pilots, mechanics, repairmen or flight engineers. Adopting
this same standard for subpart D appeals to the Administrator would
preclude frivolous and unnecessary appeals of initial decisions that
merely delay the proceedings and decrease the deterrent effect of the
sanction imposed.
Proposed Sec. 13.65(e) would address the role of the Director and
legal personnel of the Office of Adjudication. Specifically, this
section would describe the scope of the Director's authority and
provide that the Director and legal personnel of the Office of
Adjudication serve as the advisors to the Administrator for appeals
under this section. The proposed addition would also provide for re-
delegation of the Director's authority, as necessary, except to Hearing
Officers and others materially involved in the hearing that is the
subject of an appeal.
Proposed Sec. 13.65(f) would allow a party to file a motion
requesting reconsideration of the final order of the
[[Page 3625]]
Administrator. There are not currently any reconsideration procedures
for orders of the Administrator on appeal from the Hearing Officer in
subpart D matters. In contrast, parties in civil penalty proceedings
under subpart G may file petitions for reconsideration of the
Administrator's order under Sec. 13.234. This proposed addition to
subpart D would provide consistency across the various FAA proceedings
provided for under part 13. The FAA proposes that motions for
reconsideration filed under Sec. 13.65(f) would be filed with the FAA
Hearing Docket within thirty days of service of the Administrator's
Order. This would harmonize with the time provided for motions for
reconsideration under subpart G in Sec. 13.234.
Finally, proposed Sec. 13.65(g) would address judicial review of
the Administrator's final order under this proposed section as provided
under 49 U.S.C. 5127 or 46110. This would create uniformity with the
judicial review provision in subpart G, Sec. 13.235.
Procedures for Expedited Proceedings (Sec. 13.67)
The FAA proposes adding a new Sec. 13.67 to subpart D, which would
provide an expedited hearing process for notices to which emergency
procedures proposed in Sec. 13.20(d) apply, as well as an expedited
appeal process to the Administrator from a Hearing Officer's decision
after an expedited hearing. Section 13.67(a) would explain that the
procedures in subpart D generally apply to the proposed expedited
administrative process, except as provided by certain procedures in
Sec. 13.67 intended to facilitate the expedited nature of the process.
For example, service and filing of pleadings, motions, and documents
would have to be by overnight delivery and fax or email to accommodate
the shorter time-periods provided under the proposed expedited
procedures. Additionally, all responses to motions, the complaint, and
an answer would be due on an abbreviated timeline as compared to other
subpart D matters. The rule would make clear that all allegations in
the complaint not specifically denied in the answer would be deemed
admitted, which is consistent with the Federal Rules of Civil
Procedure, current Sec. 13.35(c) in subpart D, and Sec. 13.209 in
subpart G. Additionally, a failure to file a timely answer, absent a
showing of good cause, would constitute withdrawal of the request for
hearing. The proposed rule would also require that within 3 days of the
filing of the complaint the Director of the Office of Adjudication
would assign a Hearing Officer to preside over the matter. Furthermore,
the expedited hearing would commence within 40 days after the filing of
the complaint.
Given the abbreviated time frames in the proposed expedited
administrative process, the parties would be required to serve
discovery requests as soon as possible. The proposed rule would allow
parties to set the time limits for compliance with discovery requests
to accommodate the accelerated schedule. The rule would also provide
that the Hearing Officer would resolve any failure of the parties to
agree to a discovery schedule.
Proposed Sec. 13.67(a)(7) would provide that, at the conclusion of
the proposed expedited hearing, a Hearing Officer would issue an order
dismissing, reversing, modifying, or affirming the notice. The Hearing
Officer's order would be appealable to the Administrator under an
expedited appeal process. If neither party filed a notice of appeal
from the order, it would be final with respect to the parties and not
subject to judicial review.
Proposed Sec. 13.67(b) would provide the procedures for an
expedited appeal of the Hearing Officer's final order to the
Administrator. A party would file a notice of appeal within 3 days
after the issuance of the order. Time limitations for the filing of
documents for appeals under this section would not be extended because
of the unavailability of the hearing transcript. Under proposed Sec.
13.67(b)(1), the expedited appeal would require a party to perfect the
appeal within 7 days after filing the notice of appeal by filing a
brief. Any reply would have to be filed within 7 days after the date
the appeal brief was served on that party. The Administrator would
issue an immediately effective order deciding the appeal no later than
80 days after the date the notice of proposed action was issued. This
80-day time period is proposed to ensure that the Administrator's order
would be issued prior to the expiration of the 80-day time-limited
immediately effective order. Proposed Sec. 13.67(b)(2) would explain
that the Administrator's order would be immediately effective and
constitute the final agency decision. It would also provide that a
respondent could petition a U.S court of appeals for review of the
Administrator's order pursuant to 49 U.S.C. 46110, although such a
petition for review would not stay the effectiveness of the
Administrator's order due to the emergency nature of the order.
Finally, proposed Sec. 13.67(c) would provide that any time after
an immediately effective order is issued, the FAA could ask the United
States Attorney General, or the delegate of the Attorney General, to
bring an action for appropriate relief in accordance with Sec. 13.25.
The FAA's current authority to request such action is located in Sec.
13.25, in subpart C. By adding such a provision to subpart D, the
amendment would clarify that a Hearing Officer's final, non-appealed
order issued after an expedited administrative hearing would be
enforceable by the FAA in a U.S. district court, as provided in Sec.
13.25. The same would be true of the Administrator's final order issued
under the proposed subpart D expedited appeal provisions.
Other Matters: Alternative Dispute Resolution, Standing Orders, and
Forms (Sec. 13.69)
The FAA proposes adding Sec. 13.69 titled ``Other matters:
Alternative dispute resolution, standing orders, and forms.'' This new
section would provide for the voluntary use of mediation, consistent
with the DOT's statement on ADR.\7\ Mediation is a form of ADR in which
a neutral mediator assists with open discussion between parties in
dispute and helps them come to a mutually agreeable solution. A
mediator has no authority to impose a decision on the parties. Parties
may engage the services of a mutually acceptable mediator. The mediator
could not participate in any subsequent adjudication of the case under
subpart D.
---------------------------------------------------------------------------
\7\ Department of Transportation Alternative Dispute Resolution
Policy Statement, 67 FR 40367 (Jun. 12, 2002).
---------------------------------------------------------------------------
As provided in DOT's ADR statement, the FAA believes that the use
of ADR would help resolve disputes at an early stage in an expeditious,
cost-effective, and mutually acceptable manner. Participation in ADR is
voluntary and there must be mutual agreement to its use. The FAA would
not impose ADR on parties. Additionally, the FAA recognizes the
importance of confidentiality in ADR, which would ensure that the
parties may speak freely with a neutral who will not disclose their
confidences to other parties or to the outside world. Without that
assurance, the parties may be unwilling to freely discuss their
interests and possible settlements. Confidentiality would also allow
the parties to raise sensitive issues and discuss creative ideas and
solutions that they would be unwilling to discuss publicly. The
proposed mediation process, therefore, would provide confidentiality
consistent with the provisions of the Administrative Dispute Resolution
Act, 5 U.S.C. 571-584, the principles of
[[Page 3626]]
Federal Rule of Evidence 408, and other applicable Federal laws.
The FAA also proposes providing the Director of the Office of
Adjudication with the authority to issue standing orders and forms
needed for the proper dispatch of business under subpart D. Such
standing orders could describe common procedure or practices such as
font requirements and page limits on pleadings. All applicable forms
and standing orders would be published on the official website of the
Office of Adjudication: http://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/adjudication/.
The use of standing orders and forms promotes efficient case
management practices, ensures that the Office of Adjudication can adapt
to new circumstances, and provides the public with pertinent
information. The authority to issue forms would be used to standardize
the subpoena process as well as other processes if the need arises.
E. Subpart E--Orders of Compliance Under the Hazardous Materials
Transportation Act
Subpart E (current Sec. 13.71 through 13.87) states who has the
authority to issue an order of compliance related to violations of the
HMTA. It includes the process of issuing a notice of proposed order of
compliance, how a person may respond to a notice, and the consequences
of failing to respond to a notice. It also provides for disposing of a
case through a consent order of compliance. Statutory citations would
be updated throughout this section.
Current Sec. Sec. 13.79, 13.83, 13.85, and 13.87 would be removed
and reserved because their subjects, related to appeals of non-
emergency orders of compliance, would be addressed in proposed subpart
D. The remaining amendments to this subpart are addressed in the
section-by-section discussion.
Applicability (Sec. 13.71)
Section 13.71 describes when an order of compliance may be issued
under this subpart. Proposed Sec. 13.71(a) would add an explicit
statement that an order of compliance may be issued after notice and an
opportunity for hearing per proposed Sec. Sec. 13.73 through 13.79. It
would also amend the delegation of authority to reflect the
reorganization of the Office of the Chief Counsel.
A new Sec. 13.71(b) would be added to clarify that emergency
orders of compliance are issued per Sec. 13.81.
Notice of Proposed Order of Compliance (Sec. 13.73)
Section 13.73 currently provides the authority to issue a notice of
proposed order of compliance and describes its contents. The FAA
proposes to update the delegation of authority in this section just as
described in the delegation amendment for Sec. 13.71.
Reply or Request for Hearing (Sec. 13.75)
A person may reply to a notice of proposed order of compliance
consistent with Sec. 13.75. The FAA proposes to amend Sec.
13.75(a)(2) by adding an express statement that a person may request an
informal conference with an agency attorney. Accordingly, the process
for requesting a hearing must also be amended to account for instances
in which an informal conference has occurred. This change supports the
harmonization of options for responding to a notice throughout part 13
and is consistent with current practice in HMTA proceedings.
Consent Order of Compliance (Sec. 13.77)
Currently, Sec. 13.77 provides the process for issuing a consent
order of compliance to settle a case initiated under this subpart. The
proposed Sec. 13.77 changes parallel similar proposed amendments to
the consent order requirements in Sec. 13.13.\8\
---------------------------------------------------------------------------
\8\ Section 13.13 governs consent orders associated with orders
issued under subpart C while Sec. 13.77 addresses only consent
orders associated with hazmat orders of compliance issued under
subpart E.
---------------------------------------------------------------------------
Emergency Orders (Sec. 13.81)
Existing Sec. 13.81 describes the authority and procedure for
issuing an emergency order of compliance. The FAA proposes to amend the
delegation of authority to issue an emergency order in the same way as
proposed in Sec. 13.71(a). For purposes of consistency and clarity,
the FAA also proposes to revise Sec. 13.81(a) to reference the
criteria for issuing an emergency order of compliance.
Current Sec. 13.81(a)(2) and (a)(3) would be deleted and replaced
with Sec. 13.81(a). That section would cite the definition of
``imminent hazard'' in 49 CFR 109.1, which is the source of current
Sec. 13.81(a)(2) and (a)(3).
Current Sec. 13.81(b) and (e) through (g) would be removed as
those matters are now addressed in 49 CFR part 109, subpart C.
F. Subpart F--Formal Fact-Finding Investigation Under an Order of
Investigation
Subpart F (current Sec. 13.101 through 13.131) governs formal
fact-finding investigations under FAA orders of investigation. The FAA
proposes amending this subpart for clarity, improved readability, to
update outdated statutory references, and to harmonize provisions in
this subpart with other subparts in part 13. The FAA has proposed
several editorial changes to Sec. Sec. 13.101 through 13.109 to
clarify the existing language but no substantive changes have been made
to these sections.
Subpoenas (Sec. 13.111)
Section 13.111 governs the issuance, service, and jurisdiction of
subpoenas under subpart F. The FAA proposes amending Sec. 13.111(a) to
clarify that a Presiding Officer, an FAA employee who is named in an
investigation report by an individual authorized in current Sec. 13.3,
need not file a motion for the issuance of a subpoena; rather the
Presiding Officer may issue a subpoena at his or her discretion.
Noncompliance With the Investigative Process (Sec. 13.113)
Section 13.113 provides consequences for noncompliance with a
subpoena or order issued under subpart F, as well as for noncompliance
with the provisions in subpart F. The FAA proposes amending this
section to divide the text into paragraphs (a) and (b) to delineate
against whom judicial enforcement may be sought for noncompliance with
subpoenas, orders of the Presiding Officer, and with the provisions of
subpart F. Section 13.113 currently provides for judicial enforcement
for noncompliance by ``any person.'' The FAA proposes creating Sec.
13.113(a) to specify that the Administrator may seek judicial
enforcement of a subpoena when any person disobeys a subpoena. Proposed
Sec. 13.113(b), however, would only provide for judicial enforcement
of the provisions of this subpart or an order issued by the Presiding
Officer against a party to the investigation.
Immunity and Orders Requiring Testimony or Other Information (Sec.
13.119)
The FAA proposes amending the title of Sec. 13.119 from ``Rights
of persons against self-incrimination'' to ``Immunity and orders
requiring testimony or other information.'' This proposed title would
more accurately reflect the current contents of this section.
[[Page 3627]]
Witness Fees (Sec. 13.121)
Section 13.121 governs witness fees in formal fact-finding
investigations under subpart F. This section currently provides that
all witnesses appearing shall be compensated at the same rate as a
witness appearing before a U.S. district court. The proposed amendment
would include additional specificity by citing the provision that
describes the fees and allowances that must be paid to witnesses in 28
U.S.C. 1821, and would incorporate language consistent with the statute
by replacing ``rate'' with ``fees and allowances.''
Reports, Decisions, and Orders (Sec. 13.127)
Currently, Sec. 13.127 provides that the FAA will publish a report
of investigation in ``the public docket'' to comply with the
requirement in 49 U.S.C. 40114 to publish the report. Because the
statute does not require publication by a specific means and the
existing regulation does not specify a particular docket, the FAA
proposes to remove the non-specific docket reference to provide
continued flexibility on how to publish a report. For example, the FAA
could publish the report on the FAA website and provide notice of its
availability on the FAA website in the Federal Register as a way to
meet the statutory requirement to publish it ``in the form and way best
adapted for public use.'' The provision has also been amended to remove
language that is not regulatory in nature because it describes how the
regulation demonstrates compliance with the statute.
G. Subpart G--Rules of Practice in FAA Civil Penalty Actions
Subpart G (Sec. Sec. 13.201 through 13.235) provides the rules of
practice applicable to appeals of FAA civil penalty actions initiated
under Sec. 13.16. This rulemaking proposes to reorganize and modernize
the rules of practice applicable to subpart G proceedings (referred to
as civil penalty proceedings) and create consistency, where
appropriate, within subpart G and across part 13.
The applicability of subpart G as provided in Sec. 13.201 has not
changed, however, this rulemaking would remove the date reference to
September 7, 1988, as there are no longer any open proceedings that
were initiated on or prior to September 7, 1988, so the antiquated
reference no longer serves any purpose. The following miscellaneous
changes are also proposed throughout subpart G, but are not
specifically addressed in the section-by-section analysis. For accuracy
and consistency, the FAA proposes replacing references to the FAA
``decisionmaker,'' with ``FAA Hearing Docket'' when in reference to
filing requirements, because under current practice, documents are sent
to the FAA Hearing Docket, not the FAA decisionmaker. Similarly, all
references to the ``hearing docket clerk'' would be replaced with ``FAA
Hearing Docket'' to accurately reflect current practice.
The FAA also proposes amending the filing and service instructions
by adding cross-references to Sec. Sec. 13.210 and 13.211, which would
contain amended filing and service instructions permitting the use of
email or fax to file and serve documents. The FAA anticipates that
these additional methods of filing and service will increase the speed,
efficiency, and convenience of the process of filing and service, and
in some instances may decrease costs. Email service and filing would be
voluntary. The FAA also proposes removing redundant filing and service
information. Any service or filing requirements that diverge from the
proposed instructions in Sec. Sec. 13.210 and 13.211 would be
specifically described in the provision addressing that particular
document.
Definitions (Sec. 13.202)
Section 13.202 currently contains the definitions applicable to
civil penalty proceedings. The FAA proposes amending this section to
define new terms and to revise some current definitions.
To accurately reflect the reorganization of the Chief Counsel's
Office, the FAA proposes defining the term ``Office of Adjudication''
as 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.
The definition of ``agency attorney'' would be amended to make it
consistent with the current structure and operation of the Office of
the Chief Counsel. The definition would also amend the list of those
persons specifically precluded from acting as agency attorneys by
removing enumerated paragraphs (1) through (3) and providing that an
agency attorney would not include the Chief Counsel or anyone from the
Office of Adjudication. The FAA notes that the Deputy Chief Counsel
responsible for enforcement-related prosecutions does not participate
in the advising of the FAA decisionmaker on the resolution of appeals
from initial decisions or orders issued by administrative law judges
and thus is not excluded from the definition of agency attorney.
The FAA also proposes amending the definition of ``mail'' to
clarify that it does not include email, and does include all U.S. mail
and expedited courier service.
The FAA proposes changing the definition of the word ``party'' to
include an intervenor. The FAA also proposes adding a definition of the
word ``Complainant'' to clarify that the Complainant is the office that
initiates the action by issuing a notice of proposed civil penalty
under Sec. 13.16.
Finally, the FAA proposes adding a definition of ``writing or
written'' to provide that it would include paper or electronic
documents that are filed or served by email, mail, personal delivery,
or fax.
Separation of Functions (Sec. 13.203)
Section 13.203 currently provides that agency attorneys prosecute
civil penalty proceedings. It also addresses the separation of
functions within the FAA. The FAA proposes amending Sec. 13.203(c) by
replacing the current list of advisors to the FAA decisionmaker with
the Chief Counsel, and the Director and legal personnel of the Office
of Adjudication. This amendment would reflect the current structure of
the Office of the Chief Counsel, as set forth in FAA Order GC 1100.170,
effective January 3, 2017 (available at http://www.faa.gov/regulations_policies/orders_notices/), and would also be consistent
with the Administrator's delegation of authority to the Chief Counsel
and the Director of the Office of Adjudication to manage appeals in
civil penalty cases governed by part 13, subpart G (81 FR 24686, April
26, 2016).
As in the current rule, the Chief Counsel is an advisor to the FAA
decisionmaker regarding appeals of initial decisions and orders. Under
the current delegation of authority and office structure, the Director
of the Office of Adjudication has replaced the Assistant Chief Counsel
for Litigation as advisor to the FAA decisionmaker on appeals from
initial decisions and orders issued by an ALJ. The Director of the
Office of Adjudication has no responsibilities for the investigation or
prosecution of civil penalty cases.
These proposed amendments would maintain the separation of
functions between FAA employees who serve as prosecutors--the ``agency
attorneys''--and the employees who advise the Administrator regarding
the resolution of appeals in civil penalty cases.
[[Page 3628]]
Appearances and Rights of Parties (Sec. 13.204)
Section 13.204 provides the rights of parties to appear and be
heard in person, to have representation, and to request copies of
documents in the record. While it is common practice for a party's
representative to file a notice of appearance, the rule currently does
not require a notice of appearance. Additionally, the rule does not
currently require a party to file a copy of the notice of appearance on
the ALJ assigned to the matter.
The FAA proposes amending Sec. 13.204(b) to clarify that any
attorney or other representative of a party in a matter must file a
notice of appearance in the action. The content currently required in a
notice of appearance would also be amended to include the email address
and fax number, if available, of the attorney or other representative.
The amendment would also require a party to serve a copy of the notice
of appearance on the ALJ, if one is assigned to the matter when the
notice of appearance is filed. Under current practice, the notice of
appearance is served only on each party and not on the ALJ. These
amendments would facilitate an ALJ's administration of a case.
Administrative Law Judges (Sec. 13.205)
Section 13.205 currently enumerates the powers and limitations of
an ALJ in FAA civil penalty proceedings. It also provides that an ALJ
may self-disqualify at any time and that parties may file a motion for
disqualification of the assigned ALJ.
The FAA proposes amending Sec. 13.205(a) by removing from the list
of an ALJ's powers the authority to issue a notice of deposition. This
reference was originally included in error, as the ALJ is not
responsible for providing a notice of deposition. Rather, a party
requesting a deposition is responsible for providing a notice of
deposition, as is correctly provided in current Sec. 13.220(j)(3).
Section 13.205(b), which limits an ALJ's sanction authority,
provides that an ALJ retains the authority to bar a person from a
specific proceeding based on a finding of obstreperous or disruptive
behavior in that specific proceeding. The FAA proposes to amend Sec.
13.205 by moving the provision authorizing an ALJ to bar a person from
a specific proceeding under specified circumstances to Sec. 13.205(a),
where the other powers of an ALJ are listed, as new Sec.
13.205(a)(10).
The FAA also proposes adding a new Sec. 13.205(a)(11), to state
that an ALJ could take any other action authorized under subpart G.
This amendment would make clear that the list of powers enumerated in
Sec. 13.205 is not exhaustive and must be read in the context of
subpart G in its entirety.
The FAA also proposes amending Sec. 13.205(b) to correct an
erroneous cross-reference. The amendment would replace the cross-
reference to Sec. 13.219(c)(4) with a cross-reference to section Sec.
13.219(c), since Sec. 13.219(c)(4) does not exist in either the
current or proposed rule.
Certification of Documents (Sec. 13.207)
Section 13.207 currently provides the rules for certification of
documents that are filed or served in subpart G matters. The FAA
proposes amending the existing signature requirement in Sec. 13.207(a)
to explain how to satisfy the signature requirement when filing or
serving a document by email. The amendment would provide that documents
tendered for filing with the FAA Hearing Docket or served on the ALJ
and on each party must be signed by hand, electronically, or by other
method acceptable to the ALJ, or if the matter is on appeal, to the FAA
decisionmaker.
Complaint (Sec. 13.208)
Section 13.208 governs complaints filed in FAA civil penalty
proceedings. It addresses filing, service, and content requirements, as
well as instructions for motions to dismiss allegations or the entire
complaint.
Section 13.208(a) contains the instructions for filing complaints.
The FAA proposes removing the filing instructions regarding the number
of required copies, as this requirement would be addressed in Sec.
13.210. The FAA also proposes amending the cross-reference in Sec.
13.208(a) from Sec. 13.218(f)(2)(i) to Sec. 13.218 and specifying
that the referenced ``written motion'' specifically refers to a motion
to dismiss a request for hearing.
Section 13.208(b) contains the instructions for serving the
complaint in civil penalty proceedings. The FAA proposes removing the
reference to service by personal delivery or mail and instead cross-
referencing Sec. 13.211.
Answer (Sec. 13.209)
Section 13.209 contains the rules governing answers filed in FAA
civil penalty proceedings. The FAA proposes a non-substantive
reorganization of the various paragraphs in Sec. 13.209, as indicated
in the Redesignation Table. Additional amendments would include
replacing the specific filing instructions in Sec. 13.209(b) with a
cross-reference to the proposed filing instructions in proposed Sec.
13.210. The language regarding the 30-day time frame to file an answer
in current Sec. 13.209(b) would be removed because this requirement
already appears in current Sec. 13.209(a).
Section 13.209(c) would be amended to address service of motions
filed in lieu of an answer to the complaint, as provided in Sec.
13.209(a). The FAA also proposes adding a cross-reference to the
service instructions in proposed Sec. 13.211.
The FAA proposes amending Sec. 13.209(d), which addresses the
contents of an answer, to provide that the person filing an answer may
suggest a location for the hearing when filing the answer. This
requirement is being moved from current Sec. 13.209(b) and into
proposed Sec. 13.209(d) to consolidate all the content requirements
for an answer.
The FAA proposes amending Sec. 13.209(e), which currently provides
that a statement or allegation in the complaint that is not
specifically denied in an answer may be deemed admitted. The amendment
would provide that all allegations in the complaint not specifically
denied in the answer are deemed admitted. This is consistent with the
Federal Rules of Civil Procedure, and current Sec. 13.35(c) in subpart
D.
Filing of Documents (Sec. 13.210)
Section 13.210 provides filing instructions for civil penalty
proceedings, but currently does not permit parties to file by email or
fax. The FAA proposes amending Sec. 13.210 to provide for filing by
email and fax. In addition, the filing addresses would be updated to
reflect organizational updates and to correct existing address errors.
Section 13.210(a) would be amended to move the methods of filing to
proposed Sec. 13.210(b). The FAA also proposes reorganizing Sec.
13.210(a) by moving the requirements regarding the number of copies
needed for filing to new proposed Sec. 13.210(g), and moving the FAA
Hearing Docket addresses for filing by mail and in person to Sec.
13.210(c). Two new methods of filing with the FAA Hearing Docket, by
email and fax, would be added in proposed Sec. 13.210(b). Guidelines
for filing can be found on the FAA Office of Adjudication website:
http://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/adjudication/civil_penalty/. Amendments throughout
subpart G would add cross-references to proposed Sec. 13.210, which
would require documents to be filed with the FAA Hearing Docket.
[[Page 3629]]
Section 13.210(b) contains the date of filing provision, which
explains when a document would be considered filed with the FAA Hearing
Docket. The FAA proposes moving this date of filing provision to Sec.
13.210(d) and in its place adding the FAA Hearing Docket mailing
addresses currently in Sec. 13.210(a)(1) and (a)(2), amended to
reflect organizational updates and to correct existing address errors.
The FAA also proposes adding a new provision that would explain how to
file by email or fax.
Section 13.210(c) would specifically require a person filing a
document with the FAA Hearing Docket to use the appropriate address
corresponding to the method of service used. The email address and fax
number, as well as other contact information, for the FAA Hearing
Docket would be available on the FAA Office of Adjudication website at:
http://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/adjudication/civil_penalty/.
Section 13.210(c) currently contains the form requirements for
filings with the FAA Hearing Docket. The FAA proposes moving these
requirements to Sec. 13.210(e) and in their place adding the date of
filing definition currently in Sec. 13.210(b), amended to add the date
of filing for email and fax filing. Section 13.210(d) would provide how
the date of filing is determined depending on the method of filing
used.
Section 13.210(d) currently provides the required contents for
documents filed with the FAA Hearing Docket. The FAA proposes to
redesignate paragraph (d) as paragraph (f), and in its place provide
the form requirements for filings with the FAA Hearing Docket currently
in Sec. 13.210(c), without amendment.
Section 13.210(e)(1) currently explains that materials filed in the
FAA Hearing Docket in civil penalty adjudications are made publicly
available on the Federal Docket Management System's (FDMS) website,
www.regulations.gov. For purposes of administrative efficiency, the FAA
plans to discontinue using the FDMS website for such materials. Final
decisions will continue to be made available on the FAA's website and
through commercial legal reporting services.
The FAA notes that the Freedom of Information Act (FOIA), 5 U.S.C.
552(a)(2), requires federal agencies to make certain adjudicatory
materials available to the public electronically for public inspection.
Each agency must make final opinions and orders issued in the
adjudication of cases ``available for public inspection in an
electronic format'' and ``to maintain and make available for public
inspection current indexes of final decisions and orders in an
electronic format.'' 5 U.S.C. 552(a)(2).
When a party appeals from an initial decision issued by an ALJ in a
civil penalty proceeding, the Administrator will issue a final decision
and order. The Administrator's final decisions and orders are
precedential.\9\ The FAA makes the Administrator's final agency
decisions and indexes of those decisions available on its website. In
addition, the Administrator's final agency decisions, as well as the
initial decisions issued by ALJs, are published in electronic and paper
formats by commercial publishers. Thus, the FAA will continue to meet
the requirements of the FOIA.
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\9\ Under existing 14 CFR 13.233(f)(3) (proposed Sec.
13.233(j)(3)), ``Any issue, finding or conclusion, order, ruling, or
initial decision of an administrative law judge that has not been
appealed'' to the Administrator ``is not precedent in any other
civil penalty action.''
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In addition, due to the service requirements in subpart G, parties
and the ALJs will have copies of all documents filed in the FAA Hearing
Docket. Hence, they will not need to rely on FDMS website.
Section 13.210(e)(2) currently explains that certain information,
including the Administrator's final decisions and orders and indexes of
those decisions and orders, are available on the FAA website. Although
we plan to continue to make these materials available on the FAA
website, we propose to delete this paragraph because it is only
informational.
Section 13.210(f) would be amended to set forth the content
requirements for documents filed with the FAA Hearing Docket that are
currently in Sec. 13.210(d).
The FAA proposes adding new Sec. 13.210(g) titled ``Requirement to
File an Original Document and Number of Copies.'' This new section
would retain the filing requirement currently in Sec. 13.210(a) which
provides that a party shall file an original document and one copy when
filing by personal delivery or by mail. To accommodate for the addition
of email and fax filing, the amendment would provide that only one copy
is required when filing is accomplished by email or fax.
Finally, the FAA proposes adding new Sec. 13.210(h) titled
``Filing by email.'' This new section would require all documents filed
by email to be attached to the email message as a Portable Document
Format (PDF) file. The email message, however, would not constitute a
submission, but serves only to deliver the attached PDF file to the FAA
Hearing Docket. The amendment would also require that all documents
emailed for filing be signed in accordance with Sec. 13.207 as
amended.
Service of Documents (Sec. 13.211)
Section 13.211 provides instructions for serving documents in civil
penalty proceedings. It currently does not provide for service by email
or fax. The FAA proposes amending Sec. 13.211 to permit service by
email and fax and reorganizing and amending the existing provisions to
accommodate service by fax and email.
Section 13.211(a) states who must be served a copy of a document
filed with the FAA Hearing Docket. Currently, the section only provides
for service on each party at the time of filing. The FAA proposes
amending this section to also require service of any document filed in
the FAA Hearing Docket on the ALJ, if assigned, unless otherwise
provided. This new requirement to serve the ALJ would not add a
paperwork burden on the parties because under current practice the ALJ
issues procedural orders requiring that the parties send documents to
them directly. The FAA also proposes amending Sec. 13.211(a) by
removing the explanation that service on a party's attorney of record
or a party's designated representative may be considered adequate
service on the party. This provision is unnecessary as it simply states
the universally accepted legal practice in the United States, and its
removal would harmonize subpart G with the other subparts in part 13
which do not address this universal principal by regulation.
Section 13.211(b) provides the types of service permitted in civil
penalty proceedings. The FAA proposes moving this requirement to Sec.
13.211(c) and in its place adding a provision that would allow the FAA
Hearing Docket, the ALJ, and the FAA decisionmaker to send documents to
a party by personal delivery, mail, fax, or email. This provision would
replace a similar provision currently in Sec. 13.211(f), which
provides that an ALJ shall serve parties with documents by personal
delivery or mail. Allowing email service, if the party has consented to
it, or service by fax would enable parties to receive documents faster
and by more cost-effective means.
Section 13.211(c) provides the rules regarding certificates of
service accompanying served documents. The FAA proposes moving these
requirements to Sec. 13.211(d) and in their place, describing the
types of service permitted, currently in Sec. 13.211(b). The FAA
proposes adding paragraph (c)(1), which would expand the currently
permitted methods of service to include service by email or fax. This
addition should make service less costly and more efficient for
parties. The
[[Page 3630]]
amendment would also add paragraph (c)(2) to make clear that service of
documents by email is voluntary and requires the prior consent of the
person to be served by email. The proposed amendment would also allow a
person to retract consent to be served by email by filing a written
retraction with the FAA Hearing Docket and serving it on the other
party and the ALJ. Finally, for consistency with the subpart G proposed
filing requirements, the amendment would require that all documents
filed by email be attached as a PDF file to an email. These amendments
to the subpart G service requirements would provide parties with
greater flexibility in how they choose to serve documents and how they
are served by other parties.
Section 13.211(d) explains the date a document is considered
served. The FAA would move this explanation to Sec. 13.211(e) and in
its place including the certificate of service requirement currently in
Sec. 13.211(c). The FAA proposes amending the description of a
certificate of service to make clear that a person is required to
include a certificate of service with a document filed with the FAA
Hearing Docket and that the certificate must include a statement, dated
and signed by the person filing the document, reciting the date it was
served, the method of service, and on whom it was served.
Section 13.211(e) currently contains the ``mailing rule'' which
provides parties with additional time to serve documents when service
is accomplished by mail. The FAA proposes removing the ``mailing rule''
which automatically extends parties' deadlines by five additional days.
Instead, under this proposal, a party who may or must act within a
specified time after service would need to seek an extension of time if
additional time to act is needed. Elimination of the mailing rule would
ensure that the same filing and service deadlines, without automatic
extensions, apply to all the methods of filing and service. This
amendment would also help harmonize part 13, as subpart D does not
currently provide an equivalent mailing rule. While the proposed new
methods of service by email and fax negate the need for the mailing
rule, the FAA recognizes that parties may still choose to serve
documents by mail. The FAA, therefore, is considering extending the
time frames provided in subpart G for actions or responses, such as,
but not limited to: The 10-day time frame in section 13.218(d); the 15-
day time frame in section 13.218(f)(6); and the 30-day time frames in
sections 13.231(c) and 13.232(c). The FAA requests the public's
comments on whether such time frames are sufficient in light of the
removal of the mailing rule, or whether they should be extended, and by
how much.
The FAA proposes moving current Sec. 13.211(g), which addresses
when there is valid service of documents, to Sec. 13.211(f), and
amending the section to specify that it applies to documents served by
mail or personal delivery.
Finally, Sec. 13.211(h), describing when there is a presumption of
service, would be removed as unnecessary because proposed Sec.
13.211(f) would already describe when there is valid service.
Extension of Time (Sec. 13.213)
Section 13.213 provides the rules for requesting extensions of
time, which are currently divided into oral requests and written
motions. The FAA would amend this section to eliminate the distinction
between oral requests and written motions, and instead to distinguish
between requests for extensions that the parties have or have not
agreed upon.
Proposed Sec. 13.213(a) would provide that the ALJ must sign and
issue the parties' proposed order for extension of time if the
extension request is for a reasonable length of time. This added
requirement of reasonableness would help avoid unnecessary delays in
litigation and it would also eliminate the restriction that the ALJ
could only grant an agreed-upon extension once for each party.
Section 13.213(b), which addresses written motions for extensions
of time would no longer be titled ``written motions,'' since this
section actually addresses extension requests where the parties have
not agreed to the extension. The FAA would amend this section by
removing the current mandatory language and replacing it with
discretionary language to make clear that a party ``may'' file a
written motion for an extension request. The FAA also proposes adding
regulatory cross-references to Sec. Sec. 13.210 and 13.211 to make
clear that if a party files such a motion with the FAA Hearing Docket,
it must be done in accordance with these sections, which require that a
copy of the motion be served on the ALJ and on each party. The FAA
would not amend the timing requirement currently in Sec. 13.213(b).
Section 13.213(c) would be amended to remove the ``failure to
rule'' title and the reference to a ``written'' motion for an extension
of time, to make clear that this provision applies to all requests for
extensions. The remaining contents of the paragraph would not change.
Amendment of Pleadings (Sec. 13.214)
Section 13.214 governs the amendment of pleadings and currently
requires a party to file all proposed amendments and responses with the
ALJ, and also serve a copy on each party to the proceedings. The FAA
proposes amending Sec. 13.214(a) and (c) to align with the amended
filing and service requirements in Sec. Sec. 13.210 and 13.211. This
would require parties to file proposed amendments and responses with
the FAA Hearing Docket, and would also require service of a copy on the
ALJ and each party to the proceedings. This would ensure consistency in
filing and service requirements throughout subpart G.
Joint Procedural or Discovery Schedule (Sec. 13.217)
Section 13.217 governs joint procedural and discovery schedules.
The FAA proposes amending Sec. 13.217 to update the filing and service
requirements for consistency across subpart G, to restate the scope of
the ALJ's sanction options for failure to comply with a joint schedule,
and to increase readability of the section.
The FAA proposes amendments to Sec. 13.217(b) and (b)(2) to update
the filing and service requirements which currently provide that
parties must file the joint schedule with the ALJ, and must serve each
party with a copy. To ensure consistency in the filing and service of
documents across subpart G, these proposed amendments would provide
that the joint schedule must be filed and served in accordance with
proposed Sec. Sec. 13.210 and 13.211 respectively.
The FAA also proposes a minor, non-substantive amendment to Sec.
13.217(d) to change the section title to ``Joint scheduling order,''
and to make clear that a joint schedule filed by the parties is a
proposed schedule that requires approval of the administrative law
judge to become the joint scheduling order.
Section 13.217(f) governs the ALJ's sanction options for a party's
failure to comply with a joint scheduling order. The FAA proposes
amending this section to clarify that if a party fails to comply with a
joint scheduling order, the ALJ may impose any of the listed sanctions
as long as the sanction is proportional to the party's failure to
comply with the scheduling order. The amendment would replace the
current language ``limited to the extent of the party's failure to
comply'' with the phrase ``proportional to the party's failure to
comply'' simply to make the rule less wordy and more readable. The
amendment would also delete the
[[Page 3631]]
current language that the ALJ ``may direct the party to comply with a
motion to discovery request'' because a party does not have to comply
with a motion or discovery request but instead with the scheduling
order. These proposed revisions would not affect the ALJ's authority to
adjust the schedule or direct a party to respond to a discovery
request, as that authority is distinct from the ALJ's authority to
impose sanctions under Sec. 13.217(f).
Motions (Sec. 13.218)
Section 13.218 governs motions practice in civil penalty
proceedings. The FAA proposes amending the filing and service
requirements in this section to align with and reference the filing and
service amendments in proposed Sec. Sec. 13.210 and 13.211. Proposed
amendments would also add clarity, specify that the list of motions
included in this section is not exhaustive, provide that the ALJ's
authority to strike allegations in the complaint in response to a
motion for more definite statement is discretionary, more closely align
motions to strike with Rule 12 of the Federal Rules of Civil Procedure,
and add a new provision to address motions for reconsideration of an
initial decision, order dismissing a complaint, order dismissing a
request for hearing, or order dismissing a request for hearing and
answer.
Section 13.218(f) would be amended to clarify that the listed
motions are not exclusive by modifying the provision to state that the
motions that a party may file ``include'' the listed motions.
Paragraphs (f)(2)(i) and (f)(2)(ii) would be amended for clarity by
specifying that the referenced decision on appeal refers to the FAA
decisionmaker's decision on appeal. Section 13.218(f)(2)(ii), which
addresses motions to dismiss a complaint, would also be amended to add
a cross-reference to Sec. 13.208 which permits the filing of a motion
to dismiss a complaint in lieu of filing an answer to the complaint
when the allegations are ``stale.''
Additionally, Sec. 13.218(f)(3)(i) would be amended to provide
that the ALJ may--rather than must--strike an allegation in the
complaint if the agency attorney fails to comply with the ALJ's order
to supply a more definite statement. This change gives the ALJ more
flexibility to regulate the course of the proceedings.
Section 13.218(f)(4) would be amended to add that a party may move
to strike ``impertinent'' and ``scandalous'' matters in a pleading, to
conform with Rule 12 of the Federal Rules of Civil Procedure. The
current rule permits a motion to strike ``redundant,'' ``immaterial''
or ``irrelevant'' material. The FAA proposes deleting the word
``irrelevant'' as unnecessary with the proposed addition of
``impertinent'' matter. The proposed rule would be in harmony with the
similar proposed rule regarding motions to strike in subpart D, Sec.
13.49(d).
Finally, the FAA would add a new Sec. 13.218(f)(7), titled
``Motions for reconsideration of an initial decision, order dismissing
a complaint, order dismissing a request for hearing or order dismissing
a request for hearing and answer.'' This proposed section would explain
that the FAA decisionmaker could treat such motions as notices of
appeal to the FAA decisionmaker. If such motions were filed within the
time permitted for filing a notice of appeal, the FAA decisionmaker
would issue a briefing schedule. This proposed addition would not
establish new practice, but rather reflect current practice and case
law. The Administrator has held that once the ALJ issues an initial
decision, the ALJ loses jurisdiction over the matter and therefore does
not have authority to reconsider the initial decision. Degenhardt, FAA
Order No. 90-20 (August 16, 1990). The Administrator has also held that
the ALJ has no jurisdiction after issuing an order dismissing a
complaint, (Keller, FAA Order No. 2011-2 (Jan. 11, 2011)), or an order
dismissing a request for hearing, (Seeman, FAA Order No. 2014-3 (Oct.
29, 2014); Barnhill, FAA Order No. 92-32 (May 5, 1992) (ALJ does not
have jurisdiction to reconsider an order granting a motion for summary
judgment)).
Parties have at times filed motions seeking reconsideration,
rehearing or modification after the ALJ has issued an initial decision
or an order dismissing a request for hearing or complaint even though
the rules of practice do not provide for such motions. The
Administrator has directed that in such instances, the ALJ should
forward the motions to the FAA decisionmaker for consideration as an
appeal. The ALJs have referred these motions to the Administrator and
the Administrator has construed such motions as notices of appeal, and
at times, if the motions were sufficiently detailed, as appeal briefs
as well.\10\
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\10\ E.g., Seeman, (Administrator construed Complainant's motion
to vacate order for default judgment as a notice of appeal and an
appeal brief); Rawlings, FAA Order No. 1997-33 (Oct. 21, 1997)
(Administrator construed a memorandum to the ALJ that was received
after the ALJ dismissed the proceedings due to the respondent's
failure to file an answer as a notice of appeal.
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The FAA has concluded that amending the rules to permit an ALJ to
reconsider an order dismissing a request for hearing or a complaint, or
an initial decision would unduly lengthen the civil penalty
proceedings. The FAA therefore proposes amending the rule to reflect
current practice and case law, clarifying that the FAA decisionmaker
may treat any motion for reconsideration or the like as a notice of
appeal under Sec. 13.233. Further, if the motion was filed during the
time period for filing notices of appeal, then the Administrator, if
appropriate, would issue a briefing schedule.
Interlocutory Appeals (Sec. 13.219)
Section 13.219 addresses interlocutory appeals in civil penalty
proceedings. The FAA proposes amending Sec. 13.219(b), (c) and (d) to
provide that written notices of, requests for, or briefs on
interlocutory appeal must be filed with the FAA Hearing Docket and
served on each party and the ALJ. This would ensure conformity with the
service and filing amendments made to Sec. Sec. 13.210 and 13.211.
Discovery (Sec. 13.220)
Section 13.220 governs discovery in civil penalty proceedings. The
FAA would amend Sec. 13.220(b), (g), and (h), the provisions
addressing methods of discovery, confidential orders, and protective
orders, to align their filing and service instructions with proposed
amendments to Sec. Sec. 13.210 and 13.211 requiring documents to be
filed with the FAA Hearing Docket and served on the ALJ and each other
party.
Additionally, the FAA proposes amending Sec. 13.220(b) to clarify
that a party must not file or serve written interrogatories, requests
for production of documents or tangible items, requests for admissions,
or responses to any of these with the FAA Hearing Docket or the ALJ.
The current provision does not make this clear, as it merely states
that a party ``is not required'' to file these with the ALJ or the FAA
Hearing Docket Clerk. This amendment is intended to prevent unnecessary
cluttering of the official record in a case. As the rule currently
provides, if a discovery dispute arises, the discovery documents must
be attached to any related motion so that the ALJ would have the
relevant documents to make rulings to resolve the dispute.
Section 13.220(e) currently provides, in part, that a party has no
ground to object to a discovery request on the basis that the
information sought would
[[Page 3632]]
not be admissible at the hearing if the information sought during
discovery is ``reasonably calculated'' to lead to the discovery of
admissible evidence. The FAA proposes changing the ``reasonably
calculated'' standard to the ``relevant to any party's claim or
defense'' standard consistent with recently amended Rule 26(b) of the
Federal Rules of Civil Procedure.
Current Sec. 13.220(k) provides that a party must not serve more
than 30 interrogatories, but allows a party to file a motion for
permission to serve more than 30 interrogatories. In accordance with
current paragraph (k)(2), the ALJ must ``grant the motion only if the
party shows good cause for the party's failure to inquire about the
information previously and the information cannot reasonably be
obtained using less burdensome discovery methods or be obtained from
other sources.'' To clarify this provision, the FAA proposes to amend
Sec. 13.220(k)(2) to provide that the ALJ may grant a motion to serve
more than 30 interrogatories only upon a showing of good cause. A
showing of good cause could include reasons why the party did not
inquire about particular information in a previously served set of
interrogatories.
Section 13.220(n) currently governs the ALJ's sanction options for
a party's failure to comply with discovery orders and orders to compel.
The FAA proposes removing references to ``order to compel'' that are in
13.220(n) and its title to streamline the regulation, as it already
refers to the broader term ``discovery order'' which includes an order
to compel. The proposed amendment would also remove the term ``motion
to compel'' which was clearly an error in the original drafting,
because a party does not have to comply with a motion to compel but
instead with a discovery order.
Additionally, the FAA proposes streamlining the text in Sec.
13.220(n) to parallel that in amended Sec. 13.217(f). The amendment
would provide that if a party fails to comply with a discovery order,
the ALJ may impose any of the listed sanctions as long as the sanction
is proportional to the party's failure to comply with the order. The
FAA proposes to replace the current language ``limited to the extent of
the party's failure to comply'' with the phrase ``proportional to the
party's failure to comply'' simply to make the rule less wordy and more
readable. The proposed revisions would not restrict the ALJ's authority
to adjust the discovery schedule or to direct a party to respond to a
discovery request, as that authority is distinct from the ALJ's
authority to impose sanctions under Sec. 13.220(n).
Public Disclosure of Information (Sec. 13.226)
Section 13.226 governs public disclosure of any information
contained in the record. Therefore, the FAA proposes amending the title
of this section to ``Public disclosure of information.''
The FAA proposes amending the filing and service provision in Sec.
13.226(a) to align with the amended filing and service instructions in
Sec. Sec. 13.210 and 13.211.
Subpoenas (Sec. 13.228)
Section 13.228 governs subpoenas in civil penalty proceedings. The
FAA proposes amending Sec. 13.228(a) and (b), which address requests
for subpoenas and motions to quash or modify subpoenas, to align with
the proposed filing and service amendments in Sec. Sec. 13.210 and
13.211.
Section 13.228(a) would also be amended to remove the authority of
the FAA Hearing Docket Clerk and the ALJ to issue blank subpoenas upon
request by a party. Instead, a party would need to apply for a subpoena
from the ALJ as permitted by the relevant governing statutes (i.e., 49
U.S.C. 46104 and 5121). The party applying for the subpoena would be
required to show the general relevance and reasonable scope of the
evidence sought by the subpoena. This amendment would place the burden
on the requester to prove that a subpoena would be appropriate rather
than permit the issuance of a subpoena in blank with the burden to
prove the inappropriateness of the subpoena on the person to whom it
was directed. Under the proposed change, only the ALJ--and not the FAA
Hearing Docket Clerk--could issue the requested subpoena if warranted.
This change would harmonize Sec. 13.228(a) with Sec. 13.205(a)(3),
which currently provides that it is within the ALJ's authority to issue
subpoenas. It would also harmonize the subpart G subpoena procedures
with the proposed amended subpoena rule in subpart D, Sec. 13.57.
The FAA also proposes broadening Sec. 13.228(a) by providing that
the subpoena may be served on the holder of requested documents or
tangible items as permitted by applicable statute, rather than solely
on a witness in a proceeding, as is currently provided in the rule. The
FAA proposes this amendment to make clear that under applicable law
parties must serve subpoenas for relevant documents or tangible items
on the witness or the holder of the documents or tangible items.
Finally, the FAA proposes adding time frames for the service and filing
of requests for subpoenas that would be applicable absent good cause
shown. A request for a subpoena for the purpose of taking depositions
would be filed and served at least 15 days before a scheduled
deposition. A request for a subpoena for the purpose of requiring the
attendance of witnesses or the production of documents or tangible
things at a hearing would be filed and served at least 30 days before a
scheduled hearing. These amendments would harmonize this provision with
subpart D subpoena procedures proposed in Sec. 13.57.
Witness Fees (Sec. 13.229)
Section 13.229 governs witness fees in civil penalty proceedings.
Section 13.229(a) provides that the party who applies for a subpoena
shall pay the associated witness fees, unless otherwise authorized by
the ALJ. The FAA would remove this fee-shifting provision which permits
the ALJ to shift the standard witness fee burden away from the party
requesting the appearance of a witness. This fee-shifting authority has
not been used, it is not supported by an applicable statute, and it
runs contrary to the ``American Rule'' \11\ that parties pay their own
costs. Under the proposed rule, the party applying for a subpoena would
pay the associated witness fees. This same change is proposed in
subpart D, Sec. 13.57(d).
---------------------------------------------------------------------------
\11\ See Rule 54(d)(1) of the Federal Rules of Civil Procedure
(each party is responsible for paying its own attorney's fees unless
specific authority permits otherwise).
---------------------------------------------------------------------------
The FAA also proposes amending Sec. 13.229(b), which currently
provides that a witness who appears at a deposition or hearing (with
the exception of an employee of the FAA who appears at the direction of
the FAA) is entitled to the same fees and mileage expenses as are paid
to a witness in a court of the United States in comparable
circumstances. The amendment would provide clarification by specifying
that that these witnesses would be entitled to fees and allowances as
provided under 28 U.S.C. 1821, the applicable statute governing the
payment of witnesses in judicial proceedings. This change would also
harmonize the witness fee provision in subpart G with Sec. 13.57 in
subpart D, as revised by this proposal.
Record (Sec. 13.230)
Section 13.230 explains what constitutes the record in civil
penalty proceedings and how to examine or acquire a copy of the record.
Section 13.230(a) provides that the record in a civil penalty
proceeding is comprised of
[[Page 3633]]
transcripts of the hearing, exhibits received into evidence, motions,
applications, requests, and rulings. The FAA proposes amending this
section to add that pleadings, transcripts of the prehearing
conferences, briefs, responses to motions, applications, and requests
are also part of the record. Additionally, the FAA would clarify that
only exhibits admitted into evidence are part of the record before an
ALJ, although excluded evidence may form part of the record on appeal
under Sec. 13.225. These proposed amendments would align the rule with
current practice.
The FAA also proposes amending Sec. 13.230(b), which provides how
a person may examine the record or acquire a copy. This section does
not currently distinguish between parties and nonparties. Under current
practice, parties may have access to all documents that constitute the
record unless ordered otherwise by an ALJ. Current practice is that
non-parties, however, may only obtain a copy of the publicly available
portions of the record. The public, for example, may not examine or
obtain a copy of the portions of the record that the ALJ has ordered to
be withheld from public disclosure or that contain financial
information. To align the regulation with statutory requirements and
existing practice, the FAA proposes specifying that any person may
obtain a copy of the releasable portions of the record in accordance
with applicable law.
Argument Before the Administrative Law Judge (Sec. 13.231)
Section 13.231 provides the rules governing argument before an ALJ
in civil penalty proceedings, including arguments during the hearing,
final oral argument, and post-hearing briefs. The FAA proposes amending
Sec. 13.231 by adding filing and service requirements to align with
proposed filing and service amendments in Sec. Sec. 13.210 and 13.211.
This would create consistency with filing and service amendments made
throughout subpart G and ensure that FAA Hearing Docket has the
complete record.
Initial Decision (Sec. 13.232)
Section 13.232 governs the ALJ's initial decision. The FAA would
amend Sec. 13.232(d), which currently addresses when the ALJ's initial
decision is considered an order assessing civil penalty, by moving this
provision to new proposed Sec. 13.232(e). In its place, the FAA would
add a provision that would allow the FAA decisionmaker to treat a
motion for reconsideration of an initial decision as a notice of appeal
under Sec. 13.233, and if the motion were filed within the time
allowed for the filing of a notice of appeal, the FAA decisionmaker
would issue a briefing schedule, as provided in Sec. 13.218. This
reflects current practice, as previously explained in the discussion of
proposed amendments to Sec. 13.218. The FAA decisionmaker would not be
required to treat such motions as notices of appeal.
Proposed Sec. 13.232(e) would contain the provision currently in
Sec. 13.232(d), amended to provide that the ALJ may not assess a civil
penalty exceeding the amount sought in the complaint. This limitation
is currently provided in Sec. 13.16(j) of subpart C. The FAA proposes
moving the requirement to this section as it pertains to a limitation
on the ALJ's initial decision.
Appeal From Initial Decision (Sec. 13.233)
Section 13.233 governs the rules for appealing from an ALJ's
initial decision in civil penalty proceedings. The FAA proposes adding
references to the filing and service rules in Sec. Sec. 13.210 and
13.211 throughout Sec. 13.233. The proposed amendment to Sec.
13.233(a) provides an exception to the requirement in proposed Sec.
13.211 that documents be served on the ALJ. The proposed amendment
would provide that a party is not required to serve any appellate
documents under Sec. 13.233 on the ALJ. This exception includes the
notice of appeal, appeal brief, and reply brief.
The FAA also proposes amending Sec. 13.233(c)(1) and (e)(1) to
replace references to the ``appellate docket clerk'' with the FAA
decisionmaker, as there is no separate appellate docket clerk. This
amendment would clarify that the FAA decisionmaker, rather than the FAA
Hearing Docket Clerk, must serve a letter confirming an extension of
time to file a brief when the parties agree to the extension.
Sections 13.233(c)(2) and (e)(2) would be amended to permit a party
to file a written response to a motion for extension of time filed by
another party when the parties do not agree to an extension of time.
The current rule does not provide for such responses. The amendment
would provide that a response must be filed no later than 10 days after
service of the motion for extension of time.
Section 13.233(g) would be amended to require a party to file the
original plus only one copy, instead of two copies, of the appeal brief
or reply brief with the FAA Hearing Docket. The amendment would also
accommodate proposed filing by fax and email as provided in Sec.
13.210, by requiring only one copy of the appeal brief or reply brief.
Finally, Sec. 13.232(j) would be amended to provide that the FAA
decisionmaker may not assess a civil penalty that is greater than the
amount sought in the complaint as is currently provided in current
Sec. 13.16(j), in subpart C of part 13. The FAA proposes moving the
requirement to this section where is it more suited as it pertains to a
limitation on the FAA decisionmaker's decision.
Petition To Reconsider or Modify a Final Decision and Order of the FAA
Decisionmaker on Appeal (Sec. 13.234)
Section 13.234 governs petitions for reconsideration or
modification of a final decision and order of the FAA decisionmaker on
appeal. The FAA proposes amending Sec. 13.234(a), (b), and (e) to
align with the proposed filing amendments in Sec. Sec. 13.210 and
13.211. Specifically, under Sec. 13.234(a), a party would file a
petition for reconsideration or modification of a final decision and
order of the FAA decisionmaker with the FAA Hearing Docket, as there is
no appellate docket. The amendment would also accommodate proposed
filing by fax and email by requiring only one copy of the petition for
review. Additionally, Sec. 13.234(e) would be amended to provide that
replies to petitions for reconsideration or modification must be filed
with the FAA Hearing Docket and served on each party as provided under
amended Sec. Sec. 13.210 and 13.211. This proposed amendment provides
an exception to the requirement that documents be served on the ALJ.
The proposed amendment to Sec. 13.234(a) would provide that a party is
not required to serve any documents under Sec. 13.234 on the ALJ.
Section 13.234(f) describes the effect of filing petitions for
reconsideration or modification of a final decision and order of the
FAA decisionmaker. The FAA proposes amending this section to provide
that the filing of a timely petition would stay the effectiveness of a
decision and order of the FAA decisionmaker until final disposition of
the petition by the FAA decisionmaker. The amended rule would ensure
that the effective date of the Administrator's final decision and order
would be the date that reconsideration or modification is granted,
dismissed or denied. This amendment would bring Sec. 13.234(f) in line
with the comparable provision of the NTSB's Rules of Practice (49 CFR
821.50(f)) and current case law. As a result of this amendment, the FAA
would remove the provision indicating that such petitions to reconsider
or modify a final decision and order of the FAA decisionmaker on
[[Page 3634]]
appeal do not toll the time allowed for judicial review.
Alternate Dispute Resolution (Sec. 13.236)
The FAA proposes adding a new Sec. 13.236 titled ``Alternative
dispute resolution.'' This new section would provide for the voluntary
use of mediation, consistent with the DOT's policy statement on
ADR.\12\ This proposed section would be similar to the ADR provision
proposed in subpart D, Sec. 13.69(a).
---------------------------------------------------------------------------
\12\ Department of Transportation Alternative Dispute Resolution
Policy Statement, 67 FR 40367, June 12, 2002.
---------------------------------------------------------------------------
H. Redesignation Table
------------------------------------------------------------------------
Current section Proposed section
------------------------------------------------------------------------
Subpart A:
N/A................................... Sec. 13.1.
Sec. 13.1........................... Sec. 13.2.
Sec. 13.3........................... Sec. 13.3.
Sec. 13.5(a)-(d), (f)-(k)........... Sec. 13.5.
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).
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(a)....................... Sec. 13.45(a).
Sec. 13.44(b)....................... Sec. 13.45(b), (c).
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.
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).
N/A................................... Sec. 13.205(a)(11).
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)...................... Sec. 13.230(b).
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)...................... Removed.
Sec. 13.211(f)...................... Sec. 13.211(b).
Sec. 13.211(g)...................... Sec. 13.211(f).
Sec. 13.211(h)...................... Removed.
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.
[[Page 3635]]
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
A. Regulatory Evaluation
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). This portion of the preamble summarizes the FAA's
analysis of the economic impacts of this proposed rule.
This proposed rule would amend the FAA's investigative and
enforcement procedures to update position title references and reflect
organizational changes in the Chief Counsel's Office, update outdated
statutory and regulatory references, update outdated addresses, and
provide uniformity across part 13. The proposal would also reorganize
and reword existing provisions to eliminate inconsistencies, clarify
ambiguity, increase efficiency, and improve readability. These changes
would ensure that the public has current information and rule language
that is easier to understand. Another proposed change would require
that persons filing documents take reasonable steps to prevent
disclosure of certain personally identifiable information via documents
filed under Subpart G. A person or party may object to public
disclosure of the information by filing a motion as is currently
required, but under this proposed rule would have to include both an
un-redacted and a redacted copy that indicates the information sought
to be withheld. The cost of these changes would be minimal.
The proposed rule would also provide 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.
The rule proposes adding the option of an expedited administrative
hearing before a Hearing Officer followed by an expedited
administrative appeal to the Administrator. The proposed 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 proposed
process is similar to existing processes, and because there have only
been two appeals of such orders since 2012 where it would apply, the
costs stemming from the proposed process would be minimal. Finally, an
order issued after exhaustion of the proposed expedited administrative
process could be appealed to a U.S. court of appeals under 49 U.S.C.
46110.
The proposed expedited administrative process could also lead to an
efficient resolution of the matter, without an appeal to a U.S. court
of appeals. This could result in lower costs than if the matter had
been directly litigated before a U.S. court of appeals, which requires
an initial $500 filing fee versus no initial filing fee in the proposed
administrative proceedings. Other 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, for the expedited administrative process, either
proceeding pro se (without an attorney) or hiring an attorney. 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 proposed expedited
administrative process within 80 days. U.S. court of appeals cases, on
the other hand, have a median duration of approximately 8 months that
could result in protracted litigation costs and business loss.
Additionally, 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 proposed expedited administrative process.
After exhaustion of the proposed 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 proposed
expedited administrative process, records developed during that process
could later be used by the U.S. court of appeals, reducing the
potential costs of a judicial appeal.
As the 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, the FAA cannot conclude how many
persons would potentially receive cost savings. However, the FAA
expects small cost savings because emergency orders issued under Sec.
13.20 are infrequent. As already mentioned, there have been only two
such cases since 2012.
The proposed rule also provides the additional option of using
mediation as an alternative dispute resolution 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
litigation can be avoided 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.
[[Page 3636]]
The FAA does not know how many parties would participate in a mediation
process, or whether the outcome would be lower costs. The annual
average number of subpart D and G cases received by the FAA Hearing
Docket from 2012 through 2016 was 61. The FAA expects that the number
of parties opting for mediation would likely not exceed this number. As
the cost savings of opting for mediation is expected to be minimal, the
FAA concludes that the total cost savings of providing this option
would be minimal.
The proposed rule would also add 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 would have the potential of minimal
cost savings. Current requirements only allow filing and serving
documents by personal delivery or by mail. The party must file an
original and a copy of each document and also serve a copy on each
party.
The rule also proposes to remove 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 the proposal, only the ALJ
would 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 would be on the party requesting the subpoena to
prove it is appropriate. Because it could avoid subpoenas that impose
irrelevant and burdensome requests for testimony, documents, and
tangible things, it is potentially cost saving. From the start of 2014
through the end of 2017, the FAA Hearing Docket Clerk has issued 40
subpoenas, and if some unnecessary and irrelevant subpoenas could be
avoided in the future there might be minimal cost savings.
Finally, section 13.210(e)(1) currently explains that materials
filed in the FAA Hearing Docket in civil penalty adjudications are made
publicly available on the Federal Docket Management System's (FDMS)
website, www.regulations.gov. For purposes of administrative
efficiency, the FAA proposes to discontinue using the FDMS website for
such materials.\13\ Based on current billing, the FAA estimates the
cost savings would be approximately $50,000 per year to discontinue
using the FDMS website for part 13 adjudication docket materials.\14\
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.
---------------------------------------------------------------------------
\13\ Final decisions will continue to be made available on the
FAA's website and through commercial legal reporting services.
\14\ Savings based on the portion of FAA's total annual billing
costs for dockets and FDMS services attributable to adjudication
materials.
---------------------------------------------------------------------------
The FAA concludes that this proposed rule is a minimal cost rule
based on the potential for minimal cost savings as explained herein.
The FAA has, therefore, determined that this proposed 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.
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.
The proposed rule, if promulgated is likely to affect a substantial
number of small entities, but as it is a minimal cost rule it is not
expected to have a significant economic impact on a substantial number
of small entities.
The rule would codify current practice, and rewrite and reorganize
a part of the CFR to make it more understandable. It would update
outdated references and addresses. It would add less burdensome and
faster-moving administrative appeal options. It would require that
persons filing documents take reasonable steps to prevent disclosure of
certain personally identifiable information via those documents, and
that motions to withhold information from the public be accompanied by
an un-redacted and a redacted copy of the document. It would also add
less burdensome options for serving and filing papers. It could
eliminate some requests for subpoenas that otherwise would cost parties
or subpoenaed persons time and money to defend against. The FAA has
determined the proposed rule is a minimal cost rule with the potential
for 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 the FAA certifies that this proposed rule, if promulgated,
will 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 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. The FAA has
assessed the potential effect of this proposed rule and determined that
it would impose the same minimal costs and minimal 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
[[Page 3637]]
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.'' The FAA currently uses an inflation-
adjusted value of $155 million in lieu of $100 million. This proposed
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 the 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)(2)(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.
This action does not propose new information collection
requirements. Currently, the public may voluntarily submit information
to the FAA as provided in Section 13.5 of title 14 of the CFR. To
address this voluntary information collection, the FAA has submitted
this information collection assessment to OMB for its review, as
required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)).
Summary: Section 13.5 of title 14 of the CFR currently allows any
person to file a complaint with the FAA Administrator regarding a
person's violation of 49 U.S.C. subtitle VII, 49 U.S.C. chapter 51, or
any rule, regulation, or order issued under those statutes. Thus, the
overall burden associated with submission and processing of these
complaints is not new. It is also optional, as there is no obligation
for any individual file a formal complaint.
As laid out in 14 CFR 13.5(b), a formal complaint must be in
writing, state that it is a complaint seeking an appropriate order or
enforcement action, identify the subjects of the complaint, state the
specific laws that each subject violated, provide a concise but
complete statement of the facts substantiating the violations, and
include the name, address, telephone number, email, and signature of
the person filing the complaint. After the FAA confirms that the
complaint meets these requirements, it sends the complaint to the
subjects of the complaint and gives them an opportunity to submit a
written answer. If a complaint does not meet these requirements, it is
considered a report under 14 CFR 13.2.
Use: The FAA uses the information in the complaint and answer to
determine if the matter warrants investigation or action. If it does,
the FAA proceeds with an investigation. If not, the FAA dismisses the
complaint and gives the reason for dismissal in writing to both the
person who filed the complaint and the subjects of the complaint.
Respondents: Formal complaints are typically submitted by a single
individual or organization. Almost all formal complaints are about
evenly split between three basic categories (complainant listed first):
Individual vs. individual, individual vs. organization, and
organization vs. organization.
Frequency: We estimate this collection of information would result
in 7 formal complaints per year.\15\
---------------------------------------------------------------------------
\15\ This estimate is based on the number of formal complaints
the FAA has received in the last three years. Between calendar years
2015 and 2017, 18 formal complaints were submitted to the FAA: 3 in
2015, 7 in 2016, and 8 in 2017.
---------------------------------------------------------------------------
Annual Burden Estimate: We estimate that it would take an
individual about 4 hours to write a formal complaint acceptable under
Sec. 13.5. Most of this time would be the research required to
determine which laws the subject of the complaint supposedly violated.
The second largest amount of time would be devoted to writing the
``concise but complete'' statement of facts substantiating the
complaint.
The FAA estimates there would be 7 complaints filed per year by 7
respondents. Each complaint would take no more than 4 hours to
complete. The annual hourly burden would be 28 hours for the public to
submit formal complaints (7 complaints x 4 hours = 28 hours).
After the FAA reviews the complaint and confirms it meets the
requirements, each subject of the complaint would have an opportunity
to submit a written answer. We estimate this would take the subject 4
hours. The annual hourly burden to the public would be another 28 hours
for the subject of the complaint to provide a written answer (7 written
answers x 4 hours = 28 hours).\16\ The total annual hourly burden to
the public would be 56 hours.
---------------------------------------------------------------------------
\16\ Assumes each formal complaint would meet the requirements
as laid out in 14 CFR 13.5(b), so the FAA can send the complaint to
the subject of the complaint to give them an opportunity to submit a
written answer.
---------------------------------------------------------------------------
Since a complainant and a subject of a complaint could be employed
in any occupation, we selected a mean hourly wage rate for all
occupations in the U.S. The U.S. Bureau of Labor Statistics estimates
of the mean hourly wage rate of all occupations was $24.34 in May
2017.\17\ The FAA estimates the total burdened hourly wage rate is
$35.69 when including full employee benefits.\18\ The total annual cost
burden to the public would be about $1,999 ($35.69 x 56 hours).
---------------------------------------------------------------------------
\17\ Source: U.S. Bureau of Labor Statistics, May 2017 National
Occupational Employment and Wage Estimates, see Occupational Code
#00-0000, All Occupations (https://www.bls.gov/oes/current/oes_nat.htm#00-0000).
\18\ Derived from the U.S. Bureau of Labor Statistics, Employer
Costs for Employee Compensation--March 2018 (https://www.bls.gov/news.release/pdf/ecec.pdf, June 8, 2018 release), which indicates
that wages and salaries were 68.2% of total employee compensation
(salary and benefits) providing a fringe benefit factor of about
1.4663 (=1 / 0.682). We use this factor to estimate the total
``burdened'' employee compensation (salary and benefits) hourly wage
rate of $35.69 (=$24.34 x 1.4663).
---------------------------------------------------------------------------
The complaint would take an FAA attorney no more than 4 hours to
review to confirm it meets the requirements as laid out in 14 CFR
13.5(b). The annual time burden for the FAA would be 28 hours. The FAA
would take an additional hour to send the complaint to the subjects of
that complaint, which would add an additional 7 hours. The FAA would
then take another estimated 3 hours to determine if an investigation
would be necessary, adding an additional 21 hours to the FAA annual
burden. The total annual burden would be 56 hours for the FAA.
We assume an FAA hourly wage rate of $63.51.\19\ We estimate the
total burdened FAA hourly wage rate to be $86.54 when including full
civilian employee benefits.\20\ The total annual cost burden to the FAA
to review and process the complaint would be $4,846 ($86.54 x 56 =
$4,846).
---------------------------------------------------------------------------
\19\ We assume that 75% of the work would be performed by an FAA
attorney at a grade level 14 step 5 hourly wage of $60.83 and 25% by
an FAA attorney at a grade level 15 step 5 hourly wage of $71.56
(wages based on U.S. Office of Personnel Management General Schedule
Salary Data).
\20\ We use a civilian fringe benefit cost factor of 36.25% (or
1.3625) to estimate the total ``burdened'' FAA employee compensation
(salary and benefits) hourly wage rate of $86.54 (=$63.51 x 1.3625).
The civilian fringe benefit cost factor is based on guidance from
the U.S. Office of Management and Budget (https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2008/m08-13.pdf).
---------------------------------------------------------------------------
We estimate the total combined (public + FAA) annual burden and
cost of the information requirements to be about 112 hours and $6,845.
The total combined burden and cost over three years is about 336 hours
and $20,535. This annual burden and cost already exists under the
current regulations and it is optional, as there is no obligation for
any individual to file a formal complaint.
[[Page 3638]]
The agency is soliciting comments to--
(1) Evaluate whether the proposed information requirement is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of collecting information on those who are
to respond, including by using appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology.
Individuals and organizations may send comments on the information
collection requirement to the address listed in the ADDRESSES section
at the beginning of this preamble by April 15, 2019. Comments also
should be submitted to the Office of Management and Budget, Office of
Information and Regulatory Affairs, Attention: Desk Officer for FAA,
New Executive Building, Room 10202, 725 17th Street NW, Washington, DC
20053.
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. The FAA has
reviewed the corresponding ICAO Standards and Recommended Practices and
has identified no differences with 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. The 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
The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. The agency has
determined that this action would 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, would not have
Federalism implications.
B. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this proposed 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
would not be a ``significant energy action'' under the executive order
and would not be 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. The FAA has
analyzed this action under the policies and agency responsibilities of
Executive Order 13609, and has determined that this action would have
no effect on international regulatory cooperation.
D. Executive Order 13771, Reducing Regulation and Controlling
Regulatory Costs
This proposed rule is expected to be an E.O. 13771 deregulatory
action. Details on the estimated cost savings of this proposed rule can
be found in the rule's economic analysis.
VI. Additional Information
A. Comments Invited
The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The agency
also invites comments relating to the economic, environmental, energy,
or federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data or rationale. To ensure the docket does not
contain duplicate comments, commenters should send only one copy of
written comments, or if comments are filed electronically, commenters
should submit only one time.
The FAA will file in the docket all comments it receives, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed rulemaking. Before acting on this
proposal, the FAA will consider all comments it receives on or before
the closing date for comments. The FAA will consider comments filed
after the comment period has closed if it is possible to do so without
incurring expense or delay. The agency may change this proposal in
light of the comments it receives.
B. Availability of Rulemaking Documents
An electronic copy of rulemaking documents may be obtained from the
internet by--
1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);
2. Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies; or
3. Accessing the Government Printing Office's web page at http://www.gpo.gov/fdsys/.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling (202) 267-9680.
Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed from
the internet through the Federal eRulemaking Portal referenced in item
(1) above.
List of Subjects in 14 CFR Part 13
Administrative practice and procedure, Air transportation, Aviation
safety, Hazardous material transportation, Investigations, Law
enforcement, Penalties.
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend chapter 1 of title 14, Code of Federal
Regulations as follows:
PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
0
1. Revise the authority citation for part 13 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.
[[Page 3639]]
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 may delegate the authority to conduct
investigations to the various services and offices for matters within
their respective areas.
(c) The Administrator's authority to issue orders, conduct
investigations, order depositions, hold hearings, issue subpoenas, and
require the production of relevant documents, records, and property, is
delegated to the Chief Counsel, each Deputy Chief Counsel, and the
Assistant Chief Counsel for Enforcement.
(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. 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, 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, a notice of proposed order may be issued or other
enforcement action taken in accordance with this part.
(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 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:
[[Page 3640]]
Subpart C--Legal Enforcement Actions
Sec.
13.13 Consent orders.
13.14 [Removed and 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 [Removed and Reserved]
13.23 [Removed and Reserved]
13.25 [Removed and Reserved]
13.27 [Removed and Reserved]
13.29 [Removed and 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. Sec. 13.16 or 13.18.
(b) The authority of the Administrator to seek a civil penalty, and
the ability to refer cases to the United States Attorney General, or
the delegate of the Attorney General, for prosecution of civil penalty
actions sought by the Administrator is delegated to the Chief Counsel,
each Deputy Chief Counsel, and the Assistant Chief Counsel for
Enforcement. This delegation applies to cases involving one or more of
the following:
(1) An amount in controversy in excess of:
(i) $400,000, if the violation was committed by a person other than
an individual or small business concern; or
(ii) $50,000, if the violation was committed by an individual or
small business concern.
(2) An in rem action, seizure of aircraft subject to lien, suit for
injunctive relief, or for collection of an assessed civil penalty.
(c) The Administrator may compromise any civil penalty proposed
under this section, before referral to the United States Attorney
General, or the delegate of the Attorney General, for prosecution.
(1) The Administrator, through the Chief Counsel, a Deputy Chief
Counsel, or the Assistant Chief Counsel for Enforcement sends a civil
penalty letter to the person charged with a violation. The civil
penalty letter contains a statement of the charges, the applicable law,
rule, regulation, or order, and the amount of civil penalty that the
Administrator will accept in full settlement of the action or an offer
to compromise the civil penalty.
(2) Not later than 30 days after receipt of the civil penalty
letter, the person cited with an alleged violation may respond to the
civil penalty letter by--
(i) Submitting electronic payment, a certified check, or money
order in the amount offered by the Administrator in the civil penalty
letter. The agency attorney will send a letter to the person charged
with the violation stating that payment is accepted in full settlement
of the civil penalty action; or
(ii) Submitting one of the following to the agency attorney:
(A) Written material or information that may explain, mitigate, or
deny the violation or that may show extenuating circumstances; or
(B) A written request for an informal conference to discuss the
matter with the agency attorney and to submit any relevant information
or documents that may explain, mitigate, or deny the violation or that
may show extenuating circumstances.
(3) The documents, material, or information submitted under
subparagraph (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 the
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) 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 implementing rule, regulation or order, except when the U.S.
district courts have exclusive jurisdiction.
(b) 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 that chapter 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
[[Page 3641]]
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 paragraphs (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 decision maker 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, the
amount of reduction, and the reasons and 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 under 49 U.S.C. 46103,
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 paragraph (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
(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
[[Page 3642]]
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) A State or federal law enforcement officer, or a Federal
Aviation Administration safety inspector, authorized in an order of
seizure issued by the Regional Administrator of the region, or by the
Chief Counsel, may 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 federal court in
proceedings in rem initiated under 49 U.S.C. 46305 to enforce a lien
against the aircraft, or the United States Attorney for the judicial
district concerned notifies the FAA that the United States Attorney
refuses to institute those proceedings; or
(3) 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 or order
issued thereunder.
(2) District court jurisdiction. 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 that paragraph, 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 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 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 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
[[Page 3643]]
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), 46301(g), 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. The civil penalty must be paid within 30
days after a final order of the Board or a court of appeals affirms the
order of assessment 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) 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) The agency attorney issues a notice advising 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 an
emergency exists where the action is based on the circumstances
described in paragraphs (d)(1), (d)(2) or (d)(3) of this section.
(1) The revocation of an individual's airman certificates for the
reasons stated in paragraph (d)(1)(i) or (d)(1)(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
[[Page 3644]]
(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) 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 for which there is no administrative process provided by
statute, rule, regulation, or order.
(b)(1) Prior to the issuance of a non-immediately effective order
covered by this section, the person who would be subject to the order
is provided 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
(d)(1)(iv) or (d)(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
paragraphs (d)(1)(iv) or (d)(2) of this section:
(i) Constitutes a waiver of the right to a hearing and appeal; and
(ii) Authorizes the agency to make any 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.
(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 within 10 days after
service of the notice:
(i) Constitutes a waiver of the right to a hearing and appeal under
subpart D; 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 does not
stay the effectiveness of the 80-day immediately effective order issued
under this section.
(e) 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. 13.21 [Removed and Reserved]
Sec. 13.23 [Removed and Reserved]
Sec. 13.25 [Removed and Reserved]
Sec. 13.27 [Removed and Reserved]
Sec. 13.29 [Removed and 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 [Removed and 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.
[[Page 3645]]
Sec. 13.31 Applicability.
This subpart applies to proceedings in which a hearing has been
requested in accordance with Sec. Sec. 13.20 or 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 D.
(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.
If disqualified for any reason, the Hearing Officer must withdraw
from the case.
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 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
Administrators 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,
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) 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, 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
[[Page 3646]]
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 [Removed and 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) 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.
(c) 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 (b) 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 each 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, 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 redundant, immaterial, impertinent, or
scandalous matter.
(e) Motion to compel. Any party may file a motion asking the
Hearing Offer 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) 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.
[[Page 3647]]
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) 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) 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 setting forth the
need for that employee's attendance.
(c) 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, 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. 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 an order. 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;
[[Page 3648]]
(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 (a)(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.
(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 in
accordance with Sec. 13.25.
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 where he serves as a
mediator. 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 [Removed and Reserved]
13.81 Emergency orders.
13.83 [Removed and Reserved]
13.85 [Removed and Reserved]
13.87 [Removed and 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 regulation, or order issued under it, 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.
[[Page 3649]]
(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 not
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 [Removed and 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. 13.83 [Removed and Reserved]
Sec. 13.85 [Removed and Reserved]
Sec. 13.87 [Removed and 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.
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. Sec. 13.3(c) or 13.5(f)(2)
of this part.
(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
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.
[[Page 3650]]
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 Attorney General of the United
States, 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--
(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 which 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.
[[Page 3651]]
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.
(a) This subpart applies to all civil penalty actions initiated
under Sec. 13.16 of this part 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) of this part.
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'' 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;
[[Page 3652]]
(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 on the power of the administrative law judge. 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 these rules;
(2) Warranted by existing law or that a good faith argument exists
for extension, modification, or reversal of existing law; and
(3) Not unreasonable or unduly burdensome or expensive, not made to
harass any person, not made to cause unnecessary delay, not made to
cause needless increase in the cost of the proceedings, or for any
other improper purpose.
(c) Sanctions. If the attorney of record, the party, or the party's
representative signs a document in violation of this section, the
administrative law judge or the FAA decisionmaker must:
(1) Strike the pleading signed in violation of this section;
(2) Strike the request for discovery or the discovery response
signed in violation of this section and preclude further discovery by
the party;
(3) Deny the motion or request signed in violation of this section;
(4) Exclude the document signed in violation of this section from
the record;
(5) Dismiss the interlocutory appeal and preclude further appeal on
that issue by the party who filed the appeal until an initial decision
has been entered on the record; or
(6) Dismiss the appeal of the administrative law judge's initial
decision to the FAA decisionmaker.
Sec. 13.208 Complaint.
(a) Filing. The agency attorney must file the complaint with the
FAA Hearing Docket, or may file a written motion to dismiss a request
for hearing under Sec. 13.218 instead of filing a complaint, not later
than 20 days after receipt by the agency attorney of a request for
hearing. When filing the complaint, the agency attorney must follow the
filing instructions in Sec. 13.210. The agency attorney may suggest a
location for the hearing when filing the complaint.
(b) Service. An agency attorney must serve a copy of the complaint
on the respondent, the president of the corporation or company named as
a respondent, or a person designated by the respondent to accept
service of documents in the civil penalty action. When serving the
complaint, the agency attorney must follow the service instructions in
Sec. 13.211.
(c) Contents. A complaint must set forth the facts alleged, any
regulation allegedly violated by the respondent, and the proposed civil
penalty in sufficient detail to provide notice of any factual or legal
allegation and proposed civil penalty.
(d) Motion to dismiss stale allegations or complaint. Instead of
filing an answer to the complaint, a respondent may move to dismiss the
complaint, or that part of the complaint, alleging a violation that
occurred on or after August 2, 1990, and more than 2 years before an
agency attorney issued a notice of proposed civil penalty to the
respondent.
(1) An administrative law judge may not grant the motion and
dismiss the complaint or part of the complaint if the administrative
law judge finds that the agency has shown good cause for any delay in
issuing the notice of proposed civil penalty.
(2) If the agency fails to show good cause for any delay, an
administrative law judge may dismiss the complaint, or that part of the
complaint, alleging a violation that occurred more than 2 years before
an agency attorney issued the notice of proposed civil penalty to the
respondent.
(3) A party may appeal the administrative law judge's ruling on the
motion to dismiss the complaint or any part of the complaint in
accordance with Sec. 13.219(b).
Sec. 13.209 Answer.
(a) Writing required. A respondent must file in the FAA Hearing
Docket a written answer to the complaint, or may file a written motion
pursuant to Sec. Sec. 13.208 or 13.218 instead of filing an answer,
not later than 30 days after service of the complaint. The answer must
be dated and signed by the person responding to the complaint. An
answer must be typewritten or legibly handwritten.
(b) Filing. A person filing an answer or motion under paragraph (a)
of this section must follow the filing instructions in Sec. 13.210.
(c) Service. A person filing an answer or a motion under paragraph
(a) of this section must serve a copy of the answer or motion in
accordance with the service instructions in Sec. 13.211.
(d) Contents. An answer must specifically state any affirmative
defense that the respondent intends to assert at the hearing. A person
filing an answer may include a brief statement of any relief requested
in the answer. The person filing an answer may recommend a location for
the hearing when filing the answer.
(e) Specific denial of allegations required. A person filing an
answer must admit, deny, or state that the person is without sufficient
knowledge or information to admit or deny, each allegation in the
complaint. All allegations in the complaint not specifically denied in
the answer are deemed admitted. A general denial of
[[Page 3653]]
the complaint is deemed a failure to file an answer.
(f) Failure to file answer. A person's failure to file an answer
without good cause will be deemed an admission of the truth of each
allegation contained in the complaint.
Sec. 13.210 Filing of documents.
(a) General rule. Unless provided otherwise in this subpart, all
documents in proceedings under this subpart must be tendered for filing
with the FAA Hearing Docket.
(b) Methods of filing. Filing must be by email, personal delivery,
mail, or fax.
(c) Address for filing. A person filing a document with the FAA
Hearing Docket must use the address identified for the method of filing
as follows:
(1) If delivery is in person, or by expedited or overnight express
courier service: Federal Aviation Administration, 600 Independence
Avenue SW, Wilbur Wright Building--Suite 2W100, Washington, DC 20597;
Attention: FAA Hearing Docket, AGC-70.
(2) If delivery is via U.S. mail, or U.S. certified or registered
mail: Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591; Attention: FAA Hearing Docket, AGC-70, Wilbur
Wright Building--Suite 2W100.
(3) If delivery is via email or fax: The email address and fax
number for the FAA Hearing Docket, made available on FAA Office of
Adjudication website.
(d) Date of filing. If a document is filed by fax or email, the
date of filing is the date the email or fax is sent. If a document is
filed by personal delivery, the date of filing is the date that
personal delivery is accomplished. If a document is filed by mail, the
date of filing is the date shown on the certificate of service, the
date shown on the postmark if there is no certificate of service, or
the mailing date shown by other evidence if there is no certificate of
service or postmark.
(e) Form. Each document must be typewritten or legibly handwritten.
(f) Contents. Unless otherwise specified in this subpart, each
document must contain a short, plain statement of the facts on which
the person's case rests and a brief statement of the action requested.
(g) Requirement to File an Original Document and Number of Copies.
A party must file an original document and one copy when filing by
personal delivery or by mail. Only one copy must be filed if filing is
accomplished by email or fax.
(h) Filing by email. A document that is filed by email must be
attached as a 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.
Sec. 13.211 Service of documents.
(a) General. A person must serve a copy of all documents on each
party and the administrative law judge, if assigned, at the time of
filing with the FAA Hearing Docket except as provided otherwise in this
subpart.
(b) Service by the FAA Hearing Docket, the Administrative Law
Judge, and the FAA Decisionmaker. The FAA Hearing Docket, the
administrative law judge, and the FAA decisionmaker must send documents
to a party by personal delivery, mail, fax, or email as provided in
this section.
(c) Methods of service.--(1) General. A person may serve any
document by email, personal delivery, mail, or fax.
(2) Service by email. Service of documents by email is voluntary
and requires the prior consent of the person to be served by email. A
person may retract consent to be served by email by filing a written
retraction with the FAA Hearing Docket and serving it on the other
party and the administrative law judge. A document that is served by
email must be attached as a PDF file to an email message.
(d) Certificate of service. A certificate of service must accompany
all documents filed with the FAA Hearing Docket. The certificate of
service must be signed, describe the method of service, and state the
date of service.
(e) Date of service. If a document is served by fax or served by
email, the date of service is the date the email or fax is sent. If a
document is served by personal delivery, the date of service is the
date that personal delivery is accomplished. If a document is mailed,
the date of service is the date shown on the certificate of service,
the date shown on the postmark if there is no certificate of service,
or the mailing date shown by other evidence if there is no certificate
of service or postmark.
(f) Valid service. A document served by mail or personal delivery
that was properly addressed, was sent in accordance with this subpart,
and that was returned as unclaimed, or that was refused or not
accepted, is deemed to have been served in accordance with this
subpart.
Sec. 13.212 Computation of time.
(a) This section applies to any period of time prescribed or
allowed by this subpart, by notice or order of the administrative law
judge, or by any applicable statute.
(b) The date of an act, event, or default is not included in a
computation of time under this subpart.
(c) The last day of a time period is included unless it is a
Saturday, Sunday, or a Federal holiday. If the last day is a Saturday,
Sunday, or Federal holiday, the time period runs until the end of the
next day that is not a Saturday, Sunday, or Federal holiday.
Sec. 13.213 Extension of time.
(a) The parties may agree to extend for a reasonable period the
time for filing a document under this subpart. The party seeking the
extension of time must submit a draft order to the administrative law
judge to be signed by the administrative law judge and filed with the
FAA Hearing Docket. The administrative law judge must sign and issue
the order if the extension is reasonable.
(b) A party may file a written motion for an extension of time. A
written motion for an extension of time must be filed with the FAA
Hearing Docket in accordance with Sec. 13.210. The motion must be
filed no later than seven days before the document is due unless good
cause for the late filing is shown. The party filing the motion must
serve a copy of the motion in accordance with Sec. 13.211. The
administrative law judge may grant the extension of time if good cause
for the extension is shown.
(c) If the administrative law judge fails to rule on a motion for
an extension of time by the date the document was due, the motion for
an extension of time is deemed granted for no more than 20 days after
the original date the document was to be filed.
Sec. 13.214 Amendment of pleadings.
(a) Filing and service. A party must file the amendment with the
FAA Hearing Docket and must serve a copy of the amendment on the
administrative law judge, if assigned, and on all parties to the
proceeding.
(b) Time. (1) Not later than 15 days before the scheduled date of a
hearing, a party may amend a complaint or an answer without the consent
of the administrative law judge.
(2) Less than 15 days before the scheduled date of a hearing, the
administrative law judge may allow amendment of a complaint or an
answer only for good cause shown in a motion to amend.
(c) Responses. The administrative law judge must allow a reasonable
time, but not more than 20 days from the date of filing, for other
parties to respond if an amendment to a complaint, answer, or
[[Page 3654]]
other pleading has been filed with the FAA Hearing Docket and served on
the administrative law judge and other parties.
Sec. 13.215 Withdrawal of complaint or request for hearing.
At any time before or during a hearing, an agency attorney may
withdraw a complaint or a party may withdraw a request for a hearing
without the consent of the administrative law judge. If an agency
attorney withdraws the complaint or a party withdraws the request for a
hearing and the answer, the administrative law judge must dismiss the
proceedings under this subpart with prejudice.
Sec. 13.216 Waivers.
Waivers of any rights provided by statute or regulation must be in
writing or by stipulation made at a hearing and entered into the
record. The parties must set forth the precise terms of the waiver and
any conditions.
Sec. 13.217 Joint procedural or discovery schedule.
(a) General. The parties may agree to submit a schedule for filing
all prehearing motions, conducting discovery in the proceedings, or
both.
(b) Form and content of schedule. If the parties agree to a joint
procedural or discovery schedule, one of the parties must file the
joint schedule setting forth the dates to which the parties have
agreed, in accordance with Sec. 13.210, and must also serve a copy of
the joint schedule in accordance with Sec. 13.211. The filing of the
joint schedule must include a draft order establishing a joint schedule
to be signed by the administrative law judge.
(1) The joint schedule may include, but need not be limited to,
requests for discovery, objections to discovery requests, responses to
discovery requests to which there are no objections, submission of
prehearing motions, responses to prehearing motions, exchange of
exhibits to be introduced at the hearing, and a list of witnesses that
may be called at the hearing.
(2) Each party must sign the joint schedule.
(c) Time. The parties may agree to submit all prehearing motions
and responses and may agree to close discovery in the proceedings under
the joint schedule within a reasonable time before the date of the
hearing, but not later than 15 days before the hearing.
(d) Joint scheduling order. The joint schedule filed by the parties
is a proposed schedule that requires approval of the administrative law
judge to become the joint scheduling order.
(e) Disputes. The administrative law judge must resolve disputes
regarding discovery or disputes regarding compliance with the joint
scheduling order as soon as possible so that the parties may continue
to comply with the joint scheduling order.
(f) Sanctions for failure to comply with joint schedule. If a party
fails to comply with a joint scheduling order, the administrative law
judge may impose any of the following sanctions, proportional to the
party's failure to comply with the order:
(1) Strike the relevant portion of a party's pleadings;
(2) Preclude prehearing or discovery motions by that party;
(3) Preclude admission of the relevant portion of a party's
evidence at the hearing, or
(4) Preclude the relevant portion of the testimony of that party's
witnesses at the hearing.
Sec. 13.218 Motions.
(a) General. A party applying for an order or ruling not
specifically provided in this subpart must do so by filing a motion in
accordance with Sec. 13.210. A party must serve a copy of each motion
in accordance with Sec. 13.211.
(b) Form and contents. A party must state the relief sought by the
motion and the particular grounds supporting that relief. If a party
has evidence in support of a motion, the party must attach any
supporting evidence, including affidavits, to the motion.
(c) Filing of motions. A motion made prior to the hearing must be
in writing. Unless otherwise agreed by the parties or for good cause
shown, a party must file any prehearing motion not later than 30 days
before the hearing in the FAA Hearing Docket in accordance with Sec.
13.210, and must serve a copy on the administrative law judge, if
assigned, and on each party in accordance with Sec. 13.211. Motions
introduced during a hearing may be made orally on the record unless the
administrative law judge directs otherwise.
(d) Responses to motions. Any party may file a response, with
affidavits or other evidence in support of the response, not later than
10 days after service of a written motion on that party. When a motion
is made during a hearing, the response may be made at the hearing on
the record, orally or in writing, within a reasonable time determined
by the administrative law judge.
(e) Rulings on motions. The administrative law judge must rule on
all motions as follows:
(1) Discovery motions. The administrative law judge must resolve
all pending discovery motions not later than 10 days before the
hearing.
(2) Prehearing motions. The administrative law judge must resolve
all pending prehearing motions not later than 7 days before the
hearing. If the administrative law judge issues a ruling or order
orally, the administrative law judge must serve a written copy of the
ruling or order, within 3 days, on each party. In all other cases, the
administrative law judge must issue rulings and orders in writing and
must serve a copy of the ruling or order on each party.
(3) Motions made during the hearing. The administrative law judge
must issue rulings and orders on oral motions. Oral rulings or orders
on motions must be made on the record.
(f) Specific motions. The motions that a party may file include but
are not limited to the following:
(1) Motion to dismiss for insufficiency. A respondent may file a
motion to dismiss the complaint for insufficiency instead of filing an
answer. If the administrative law judge denies the motion to dismiss
the complaint for insufficiency, the respondent must file an answer not
later than 10 days after service of the administrative law judge's
denial of the motion. A motion to dismiss the complaint for
insufficiency must show that the complaint fails to state a violation
of a provision of the Federal aviation statute listed in the first
sentence in 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, or any
implementing rule, regulation, or order, or a violation of the Federal
hazardous materials transportation statute, 49 U.S.C. 5121-5128, or any
implementing rule, regulation or order.
(2) Motion to dismiss. A party may file a motion to dismiss,
specifying the grounds for dismissal. If an administrative law judge
grants a motion to dismiss in part, a party may appeal the
administrative law judge's ruling on the motion to dismiss under Sec.
13.219(b).
(i) Motion to dismiss a request for a hearing. An agency attorney
may file a motion to dismiss a request for a hearing instead of filing
a complaint. If the motion to dismiss is not granted, the agency
attorney must file the complaint in the FAA Hearing Docket and must
serve a copy of the complaint on the administrative law judge and on
each party not later than 10 days after service of the administrative
law judge's ruling or order on the motion to dismiss. If the motion to
dismiss is granted and the proceedings are terminated without a
hearing, the respondent may appeal to
[[Page 3655]]
the FAA decisionmaker under Sec. 13.233. If required by the decision
on appeal, the agency attorney must file a complaint in the FAA Hearing
Docket and must serve a copy of the complaint on the administrative law
judge and each party not later than 10 days after service of the FAA
decisionmaker's decision on appeal.
(ii) Motion to dismiss a complaint. A respondent may file a motion
to dismiss a complaint instead of filing an answer, including a motion
to dismiss a stale complaint or allegations as provided in Sec.
13.208. If the motion to dismiss is not granted, the respondent must
file an answer in the FAA Hearing Docket and must serve a copy of the
answer on the administrative law judge and on each party not later than
10 days after service of the administrative law judge's ruling or order
on the motion to dismiss. If the motion to dismiss is granted and the
proceedings are terminated without a hearing, the agency attorney may
file an appeal in the FAA Hearing Docket under Sec. 13.233 and must
serve each other party. If required by the FAA decisionmaker's decision
on appeal, the respondent must file an answer in the FAA Hearing Docket
and must serve a copy of the answer on the administrative law judge and
on each party not later than 10 days after service of the decision on
appeal.
(3) Motion for more definite statement. A party may file a motion
for more definite statement of any pleading which requires a response
under this subpart. A party must set forth, in detail, the indefinite
or uncertain allegations contained in a complaint or response to any
pleading and must submit the details that the party believes would make
the allegation or response definite and certain.
(i) Complaint. A respondent may file a motion requesting a more
definite statement of the allegations contained in the complaint
instead of filing an answer. If the administrative law judge grants the
motion, the agency attorney must supply a more definite statement not
later than 15 days after service of the ruling granting the motion. If
the agency attorney fails to supply a more definite statement, the
administrative law judge may strike the allegations in the complaint to
which the motion is directed. If the administrative law judge denies
the motion, the respondent must file an answer in the FAA Hearing
Docket and must serve a copy of the answer on the administrative law
judge and on each party not later than 10 days after service of the
order of denial.
(ii) Answer. An agency attorney may file a motion requesting a more
definite statement if an answer fails to respond clearly to the
allegations in the complaint. If the administrative law judge grants
the motion, the respondent must supply a more definite statement not
later than 15 days after service of the ruling on the motion. If the
respondent fails to supply a more definite statement, the
administrative law judge must strike those statements in the answer to
which the motion is directed. The respondent's failure to supply a more
definite statement may be deemed an admission of unanswered allegations
in the complaint.
(4) Motion to strike. Any party may make a motion to strike any
insufficient allegation or defense, or any redundant, immaterial,
impertinent, or scandalous matter in a pleading. A party must file a
motion to strike before a response is required under this subpart or,
if a response is not required, not later than 10 days after service of
the pleading. A motion to strike must be filed in the FAA Hearing
Docket and served on the administrative law judge, if assigned, and on
each other party.
(5) Motion for decision. A party may make a motion for decision,
regarding all or any part of the proceedings, at any time before the
administrative law judge has issued an initial decision in the
proceedings. The administrative law judge must grant a party's motion
for decision if the pleadings, depositions, answers to interrogatories,
admissions, matters that the administrative law judge has officially
noticed, or evidence introduced during the hearing shows that there is
no genuine issue of material fact and that the party making the motion
is entitled to a decision as a matter of law. The party making the
motion for decision has the burden of showing that there is no genuine
issue of material fact disputed by the parties.
(6) Motion for disqualification. A party may file a motion for
disqualification in the FAA Hearing Docket and must serve a copy on the
administrative law judge and on each party. A party may file the motion
at any time after the administrative law judge has been assigned to the
proceedings but must make the motion before the administrative law
judge files an initial decision in the proceedings.
(i) Motion and supporting affidavit. A party must state the grounds
for disqualification, including, but not limited to, personal bias,
pecuniary interest, or other factors showing disqualification, in the
motion for disqualification. A party must submit an affidavit with the
motion for disqualification that sets forth, in detail, the matters
alleged to constitute grounds for disqualification.
(ii) Response. A party must respond to the motion for
disqualification not later than 5 days after service of the motion for
disqualification.
(iii) Decision on motion for disqualification. The administrative
law judge must render a decision on the motion for disqualification not
later than 15 days after the motion has been filed. If the
administrative law judge finds that the motion for disqualification and
supporting affidavit show a basis for disqualification, the
administrative law judge must withdraw from the proceedings
immediately. If the administrative law judge finds that
disqualification is not warranted, the administrative law judge must
deny the motion and state the grounds for the denial on the record. If
the administrative law judge fails to rule on a party's motion for
disqualification within 15 days after the motion has been filed, the
motion is deemed granted.
(iv) Appeal. A party may appeal the administrative law judge's
denial of the motion for disqualification in accordance with Sec.
13.219(b).
(7) Motions for reconsideration of an initial decision, order
dismissing a complaint, order dismissing a request for hearing or order
dismissing a request for hearing and answer. The FAA decisionmaker may
treat motions for reconsideration of an initial decision, order
dismissing a complaint, order dismissing a request for hearing or order
dismissing a request for hearing and answer as a notice of appeal under
Sec. 13.233, and if the motion was filed within the time allowed for
the filing of a notice of appeal, the FAA decisionmaker will issue a
briefing schedule.
Sec. 13.219 Interlocutory appeals.
(a) General. Unless otherwise provided in this subpart, a party may
not appeal a ruling or decision of the administrative law judge to the
FAA decisionmaker until the initial decision has been entered on the
record. A decision or order of the FAA decisionmaker on the
interlocutory appeal does not constitute a final order of the
Administrator for the purposes of judicial appellate review as provided
in Sec. 13.235.
(b) Interlocutory appeal for cause. If a party orally requests or
files a written request for an interlocutory appeal for cause, the
proceedings are stayed until the administrative law judge issues a
decision on the request. Any written request for interlocutory appeal
for cause must be filed in the FAA Hearing Docket and served on each
party and on the administrative law judge. If the
[[Page 3656]]
administrative law judge grants the request, the proceedings are stayed
until the FAA decisionmaker issues a decision on the interlocutory
appeal. The administrative law judge must grant the request if a party
shows that delay of the appeal would be detrimental to the public
interest or would result in undue prejudice to any party.
(c) Interlocutory appeals of right. If a party notifies the
administrative law judge of an interlocutory appeal of right, the
proceedings are stayed until the FAA decisionmaker issues a decision on
the interlocutory appeal. A party may file an interlocutory appeal of
right, without the consent of the administrative law judge, before an
initial decision has been entered in the case of:
(1) A ruling or order by the administrative law judge barring a
person from the proceedings;
(2) Failure of the administrative law judge to dismiss the
proceedings in accordance with Sec. 13.215; or
(3) A ruling or order by the administrative law judge in violation
of Sec. 13.205(b).
(d) Procedure. A party must file a notice of interlocutory appeal,
with supporting documents, with the FAA Hearing Docket, and must serve
a copy of the notice and supporting documents on each party and the
administrative law judge not later than 10 days after the
administrative law judge's decision forming the basis of an
interlocutory appeal of right or not later than 10 days after the
administrative law judge's decision granting an interlocutory appeal
for cause, as appropriate. A party must file a reply, if any, with the
FAA Hearing Docket, and serve a copy on each party and the
administrative law judge not later than 10 days after service of the
appeal. The FAA decisionmaker must render a decision on the
interlocutory appeal on the record and as a part of the decision in the
proceedings, within a reasonable time after receipt of the
interlocutory appeal.
(e) The FAA decisionmaker may reject frivolous, repetitive, or
dilatory appeals, and may issue an order precluding one or more parties
from making further interlocutory appeals in a proceeding in which
there have been frivolous, repetitive, or dilatory interlocutory
appeals.
Sec. 13.220 Discovery.
(a) Initiation of discovery. Any party may initiate discovery
described in this section without the consent or approval of the
administrative law judge at any time after a complaint has been filed
in the proceedings.
(b) Methods of discovery. The following methods of discovery are
permitted under this section: Depositions on oral examination or
written questions of any person; written interrogatories directed to a
party; requests for production of documents or tangible items to any
person; and requests for admission by a party. A party must not file
written interrogatories and responses, requests for production of
documents or tangible items and responses, and requests for admission
and response with the FAA Hearing Docket or serve them on the
administrative law judge. In the event of a discovery dispute, a party
must attach a copy of the relevant documents in support of a motion
made under this section.
(c) Service on the agency. A party must serve each discovery
request directed to the agency or any agency employee on the agency
attorney of record.
(d) Time for response to discovery requests. Unless otherwise
directed by this subpart or agreed by the parties, a party must respond
to a request for discovery, including filing objections to a request
for discovery, not later than 30 days after service of the request.
(e) Scope of discovery. Subject to the limits on discovery set
forth in paragraph (f) of this section, a party may discover any matter
that is not privileged and that is relevant to any party's claim or
defense, including the existence, description, nature, custody,
condition, and location of any document or other tangible item and the
identity and location of any person having knowledge of discoverable
matter. A party may discover facts known, or opinions held, by an
expert who any other party expects to call to testify at the hearing. A
party has no ground to object to a discovery request on the basis that
the information sought would not be admissible at the hearing.
(f) Limiting discovery. The administrative law judge must limit the
frequency and extent of discovery permitted by this section if a party
shows that--
(1) The information requested is cumulative or repetitious;
(2) The information requested can be obtained from another less
burdensome and more convenient source;
(3) The party requesting the information has had ample opportunity
to obtain the information through other discovery methods permitted
under this section; or
(4) The method or scope of discovery requested by the party is
unduly burdensome or expensive.
(g) Confidential orders. A party or person who has received a
discovery request for information that is related to a trade secret,
confidential or sensitive material, competitive or commercial
information, proprietary data, or information on research and
development, may file a motion for a confidential order in the FAA
Hearing Docket in accordance with Sec. 13.210 and must serve a copy of
the motion for a confidential order on each party and on the
administrative law judge in accordance with Sec. 13.211.
(1) The party or person making the motion must show that the
confidential order is necessary to protect the information from
disclosure to the public.
(2) If the administrative law judge determines that the requested
material is not necessary to decide the case, the administrative law
judge must preclude any inquiry into the matter by any party.
(3) If the administrative law judge determines that the requested
material may be disclosed during discovery, the administrative law
judge may order that the material may be discovered and disclosed under
limited conditions or may be used only under certain terms and
conditions.
(4) If the administrative law judge determines that the requested
material is necessary to decide the case and that a confidential order
is warranted, the administrative law judge must provide:
(i) An opportunity for review of the document by the parties off
the record;
(ii) Procedures for excluding the information from the record; and
(iii) Order that the parties must not disclose the information in
any manner and the parties must not use the information in any other
proceeding.
(h) Protective orders. A party or a person who has received a
request for discovery may file a motion for protective order in the FAA
Hearing Docket and must serve a copy of the motion for protective order
on the administrative law judge and each other party. The party or
person making the motion must show that the protective order is
necessary to protect the party or the person from annoyance,
embarrassment, oppression, or undue burden or expense. As part of the
protective order, the administrative law judge may:
(1) Deny the discovery request;
(2) Order that discovery be conducted only on specified terms and
conditions, including a designation of the time or place for discovery
or a determination of the method of discovery; or
(3) Limit the scope of discovery or preclude any inquiry into
certain matters during discovery.
[[Page 3657]]
(i) Duty to supplement or amend responses. A party who has
responded to a discovery request has a duty to supplement or amend the
response, as soon as the information is known, as follows:
(1) A party must supplement or amend any response to a question
requesting the identity and location of any person having knowledge of
discoverable matters.
(2) A party must supplement or amend any response to a question
requesting the identity of each person who will be called to testify at
the hearing as an expert witness and the subject matter and substance
of that witness's testimony.
(3) A party must supplement or amend any response that was
incorrect when made or any response that was correct when made but is
no longer correct, accurate, or complete.
(j) Depositions. (1) Form. A deposition must be taken on the record
and reduced to writing. The person being deposed must sign the
deposition unless the parties agree to waive the requirement of a
signature.
(2) Administration of oaths. Within the United States, or a
territory or possession subject to the jurisdiction of the United
States, a party must take a deposition before a person authorized to
administer oaths by the laws of the United States or authorized by the
law of the place where the examination is held. In foreign countries, a
party must take a deposition in any manner allowed by the Federal Rules
of Civil Procedure.
(3) Notice of deposition. A party must serve a notice of
deposition, stating the time and place of the deposition and the name
and address of each person to be examined, on the person to be deposed,
the administrative law judge, and each party not later than 7 days
before the deposition. The notice must be filed in the FAA Hearing
Docket simultaneously. A party may serve a notice of deposition less
than 7 days before the deposition only with consent of the
administrative law judge. The party noticing a deposition must attach a
copy of any subpoena duces tecum requesting that materials be produced
at the deposition to the notice of deposition.
(4) Use of depositions. A party may use any part or all of a
deposition at a hearing authorized under this subpart only upon a
showing of good cause. The deposition may be used against any party who
was present or represented at the deposition or who had reasonable
notice of the deposition.
(k) Interrogatories. A party, the party's attorney, or the party's
representative may sign the party's responses to interrogatories. A
party must answer each interrogatory separately and completely in
writing. If a party objects to an interrogatory, the party must state
the objection and the reasons for the objection. An opposing party may
use any part or all of a party's responses to interrogatories at a
hearing authorized under this subpart to the extent that the response
is relevant, material, and not repetitious.
(1) A party must not serve more than 30 interrogatories to each
other party. Each subpart of an interrogatory must be counted as a
separate interrogatory.
(2) A party must file a motion for leave to serve additional
interrogatories on a party with the administrative law judge before
serving additional interrogatories on a party. The administrative law
judge may grant the motion only if the party shows good cause.
(l) Requests for admission. A party may serve a written request for
admission of the truth of any matter within the scope of discovery
under this section or the authenticity of any document described in the
request. A party must set forth each request for admission separately.
A party must serve copies of documents referenced in the request for
admission unless the documents have been provided or are reasonably
available for inspection and copying.
(1) Time. A party's failure to respond to a request for admission,
in writing and signed by the attorney or the party, not later than 30
days after service of the request, is deemed an admission of the truth
of the statement or statements contained in the request for admission.
The administrative law judge may determine that a failure to respond to
a request for admission is not deemed an admission of the truth if a
party shows that the failure was due to circumstances beyond the
control of the party or the party's attorney.
(2) Response. A party may object to a request for admission and
must state the reasons for objection. A party may specifically deny the
truth of the matter or describe the reasons why the party is unable to
truthfully deny or admit the matter. If a party is unable to deny or
admit the truth of the matter, the party must show that the party has
made reasonable inquiry into the matter or that the information known
to, or readily obtainable by, the party is insufficient to enable the
party to admit or deny the matter. A party may admit or deny any part
of the request for admission. If the administrative law judge
determines that a response does not comply with the requirements of
this paragraph or that the response is insufficient, the matter is
deemed admitted.
(3) Effect of admission. Any matter admitted or deemed admitted
under this section is conclusively established for the purpose of the
hearing and appeal.
(m) Motion to compel discovery. A party may make a motion to compel
discovery if a person refuses to answer a question during a deposition,
a party fails or refuses to answer an interrogatory, if a person gives
an evasive or incomplete answer during a deposition or when responding
to an interrogatory, or a party fails or refuses to produce documents
or tangible items. During a deposition, the proponent of a question may
complete the deposition or may adjourn the examination before making a
motion to compel if a person refuses to answer. Any motion to compel
must be filed with the FAA Hearing Docket and served on the
administrative law judge and other parties in accordance with
Sec. Sec. 13.210 and 13.211, respectively.
(n) Failure to comply with a discovery order. If a party fails to
comply with a discovery order, the administrative law judge may impose
any of the following sanctions proportional to the party's failure to
comply with the order:
(1) Strike the relevant portion of a party's pleadings;
(2) Preclude prehearing or discovery motions by that party;
(3) Preclude admission of the relevant portion of a party's
evidence at the hearing; or
(4) Preclude the relevant portion of the testimony of that party's
witnesses at the hearing.
Sec. 13.221 Notice of hearing.
(a) Notice. The administrative law judge must provide each party
with notice of the date, time and location of the hearing at least 60
days before the hearing date.
(b) Date, time, and location of the hearing. The administrative law
judge to whom the proceedings have been assigned must set a reasonable
date, time, and location for the hearing. The administrative law judge
must consider the need for discovery and any joint procedural or
discovery schedule submitted by the parties when determining the
hearing date. The administrative law judge must give due regard to the
convenience of the parties, the location where the majority of the
witnesses reside or work, and whether the location is served by a
scheduled air carrier.
(c) Earlier hearing. With the consent of the administrative law
judge, the parties may agree to hold the hearing on
[[Page 3658]]
an earlier date than the date specified in the notice of hearing.
Sec. 13.222 Evidence.
(a) General. A party is entitled to present the party's case or
defense by oral, documentary, or demonstrative evidence, to submit
rebuttal evidence, and to conduct any cross-examination that may be
required for a full and true disclosure of the facts.
(b) Admissibility. A party may introduce any oral, documentary, or
demonstrative evidence in support of the party's case or defense. The
administrative law judge must admit any relevant oral, documentary, or
demonstrative evidence introduced by a party but must exclude
irrelevant, immaterial, or unduly repetitious evidence.
(c) Hearsay evidence. Hearsay evidence is admissible in proceedings
governed by this subpart. The fact that evidence submitted by a party
is hearsay goes only to the weight of the evidence and does not affect
its admissibility.
Sec. 13.223 Standard of proof.
The administrative law judge must issue an initial decision or must
rule in a party's favor only if the decision or ruling is supported by,
and in accordance with, the reliable, probative, and substantial
evidence contained in the record. In order to prevail, the party with
the burden of proof must prove the party's case or defense by a
preponderance of reliable, probative, and substantial evidence.
Sec. 13.224 Burden of proof.
(a) Except in the case of an affirmative defense, the burden of
proof is on the agency.
(b) Except as otherwise provided by statute or rule, the proponent
of a motion, request, or order has the burden of proof.
(c) A party who has asserted an affirmative defense has the burden
of proving the affirmative defense.
Sec. 13.225 Offer of proof.
A party whose evidence has been excluded by a ruling of the
administrative law judge may offer the evidence for the record on
appeal.
Sec. 13.226 Public disclosure of information.
(a) The administrative law judge may order that any information
contained in the record be withheld from public disclosure. Any party
or interested person may object to disclosure of information in the
record by filing and serving a written motion to withhold specific
information in accordance with Sec. Sec. 13.210 and 13.211
respectively. A party may file a motion seeking to protect from public
disclosure information contained in a document that the party is filing
at the same time it files the document. The person or party must state
the specific grounds for nondisclosure in the motion.
(b) The administrative law judge must grant the motion to withhold
if, based on the motion and any response to the motion, the
administrative law judge determines that: Disclosure would be
detrimental to aviation safety; disclosure would not be in the public
interest; or the information is not otherwise required to be made
available to the public.
Sec. 13.227 Expert or opinion witnesses.
An employee of the agency may not be called as an expert or opinion
witness for any party other than the FAA in any proceeding governed by
this subpart. An employee of a respondent may not be called by an
agency attorney as an expert or opinion witness for the FAA in any
proceeding governed by this subpart to which the respondent is a party.
Sec. 13.228 Subpoenas.
(a) Request for subpoena. The administrative law judge, upon
application by any party to the proceeding, may issue subpoenas
requiring the attendance of witnesses or the production of documents or
tangible things at a hearing or for the purpose of taking depositions,
as permitted by law. A request for a subpoena must show its general
relevance and reasonable scope. The party must serve the subpoena on
the witness or the holder of the documents or tangible items as
permitted by applicable statute. A request for a subpoena must be filed
and served in accordance with Sec. Sec. 13.210 and 13.211,
respectively. Absent good cause shown, the filing and service must be
completed as follows:
(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) Motion to quash or modify the subpoena. A party or any person
upon whom a subpoena has been served may file in the FAA Hearing Docket
a motion to quash or modify the subpoena and must serve a copy on the
administrative law judge and each party at or before the time specified
in the subpoena for compliance. The movant must describe, in detail,
the basis for the motion to quash or modify the subpoena including, but
not limited to, a statement that the testimony, document, or tangible
evidence is not relevant to the proceeding, that the subpoena is not
reasonably tailored to the scope of the proceeding, or that the
subpoena is unreasonable and oppressive. A motion to quash or modify
the subpoena will stay the effect of the subpoena pending a decision by
the administrative law judge on the motion.
(c) Enforcement of subpoena. Upon a showing that a person has
failed or refused to comply with a subpoena, a party may apply to the
appropriate U.S. district court to seek judicial enforcement of the
subpoena.
Sec. 13.229 Witness fees.
(a) General. The party who applies for a subpoena to compel the
attendance of a witness at a deposition or hearing, or the party at
whose request a witness appears at a deposition or hearing, must pay
the witness fees described in this section.
(b) Amount. Except for an employee of the agency who appears at the
direction of the agency, a witness who appears at a deposition or
hearing is entitled to the same fees and allowances provided for under
28 U.S.C. 1821.
Sec. 13.230 Record.
(a) Exclusive record. The pleadings, transcripts of the hearing and
prehearing conferences, exhibits admitted into evidence, rulings,
motions, applications, requests, briefs, and responses thereto,
constitute the exclusive record for decision of the proceedings and the
basis for the issuance of any orders in the proceeding. Any proceedings
regarding the disqualification of an administrative law judge must be
included in the record. Though only exhibits admitted into evidence are
part of the record before an administrative law judge, evidence
proffered but not admitted is also part of the record on appeal, as
provided by Sec. 13.225.
(b) Examination and copying of record. The parties may examine the
record at the FAA Hearing Docket and may obtain copies of the record
upon payment of applicable fees. Any other person may obtain copies of
the releasable portions of the record in accordance with applicable
law.
Sec. 13.231 Argument before the administrative law judge.
(a) Arguments during the hearing. During the hearing, the
administrative law judge must give the parties a reasonable opportunity
to present arguments on the record supporting or opposing motions,
objections, and rulings if the parties request an opportunity for
argument. The administrative law judge may request written arguments
during the hearing if
[[Page 3659]]
the administrative law judge finds that submission of written arguments
would be reasonable.
(b) Final oral argument. At the conclusion of the hearing and
before the administrative law judge issues an initial decision in the
proceedings, the administrative law judge must allow the parties to
submit oral proposed findings of fact and conclusions of law,
exceptions to rulings of the administrative law judge, and supporting
arguments for the findings, conclusions, or exceptions. At the
conclusion of the hearing, a party may waive final oral argument.
(c) Post-hearing briefs. The administrative law judge may request
written post-hearing briefs before the administrative law judge issues
an initial decision in the proceedings if the administrative law judge
finds that submission of written arguments would be reasonable. If a
party files a written post-hearing brief, the party must include
proposed findings of fact and conclusions of law, exceptions to rulings
of the administrative law judge, and supporting arguments for the
findings, conclusions, or exceptions. The administrative law judge must
give the parties a reasonable opportunity, but not more than 30 days
after receipt of the transcript, to prepare and submit the briefs. A
party must file and serve any post-hearing brief in in accordance with
Sec. Sec. 13.210 and 13.211, respectively.
Sec. 13.232 Initial decision.
(a) Contents. The administrative law judge must issue an initial
decision at the conclusion of the hearing. In each oral or written
decision, the administrative law judge must include findings of fact
and conclusions of law, as well as the grounds supporting those
findings and conclusions, for all material issues of fact, the
credibility of witnesses, the applicable law, any exercise of the
administrative law judge's discretion, and the amount of any civil
penalty found appropriate by the administrative law judge. The
administrative law judge must also include a discussion of the basis
for any order issued in the proceedings. The administrative law judge
is not required to provide a written explanation for rulings on
objections, procedural motions, and other matters not directly relevant
to the substance of the initial decision. If the administrative law
judge refers to any previous unreported or unpublished initial
decision, the administrative law judge must make copies of that initial
decision available to all parties and the FAA decisionmaker.
(b) Oral decision. Except as provided in paragraph (c) of this
section, at the conclusion of the hearing, the administrative law
judge's oral initial decision and order must be on the record.
(c) Written decision. The administrative law judge may issue a
written initial decision not later than 30 days after the conclusion of
the hearing or submission of the last post-hearing brief if the
administrative law judge finds that issuing a written initial decision
is reasonable. The administrative law judge must serve a copy of any
written initial decision on each party.
(d) Reconsideration of an initial decision. The FAA decisionmaker
may treat a motion for reconsideration of an initial decision as a
notice of appeal under Sec. 13.233, and if the motion was filed within
the time allowed for the filing of a notice of appeal, the FAA
decisionmaker will issue a briefing schedule, as provided in Sec.
13.218.
(e) Order assessing civil penalty. Unless appealed pursuant to
Sec. 13.233, the initial decision issued by the administrative law
judge is considered an order assessing civil penalty if the
administrative law judge finds that an alleged violation occurred and
determines that a civil penalty, in an amount found appropriate by the
administrative law judge, is warranted. The administrative law judge
may not assess a civil penalty exceeding the amount sought in the
complaint.
Sec. 13.233 Appeal from initial decision.
(a) Notice of appeal. A party may appeal the administrative law
judge's initial decision, and any decision not previously appealed to
the FAA decisionmaker on interlocutory appeal pursuant to Sec. 13.219,
by filing a notice of appeal in accordance with Sec. 13.210 no later
than 10 days after entry of the oral initial decision on the record or
service of the written initial decision on the parties. The party must
serve a copy of the notice of appeal on each party in accordance with
Sec. 13.211. A party is not required to serve any documents under
Sec. 13.233 on the administrative law judge.
(b) Issues on appeal. In any appeal from a decision of an
administrative law judge, the FAA decisionmaker considers only the
following issues:
(1) Whether each finding of fact is supported by a preponderance of
reliable, probative, and substantial evidence;
(2) Whether each conclusion of law is made in accordance with
applicable law, precedent, and public policy; and
(3) Whether the administrative law judge committed any prejudicial
errors.
(c) Perfecting an appeal. Unless otherwise agreed by the parties, a
party must perfect an appeal to the FAA decisionmaker no later than 50
days after entry of the oral initial decision on the record or service
of the written initial decision on the parties by filing an appeal
brief in accordance with Sec. 13.210 and serving a copy on each other
party in accordance with Sec. 13.211.
(1) Extension of time by agreement of the parties. The parties may
agree to extend the time for perfecting the appeal with the consent of
the FAA decisionmaker. If the FAA decisionmaker grants an extension of
time to perfect the appeal, the FAA decisionmaker must serve a letter
confirming the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an
extension of time for perfecting an appeal, a party desiring an
extension of time may file a written motion for an extension in
accordance with Sec. 13.210 and must serve a copy of the motion on
each party under Sec. 13.211. Any party may file a written response to
the motion for extension no later than 10 days after service of the
motion. The FAA decisionmaker may grant an extension if good cause for
the extension is shown in the motion.
(d) Appeal briefs. A party must file the appeal brief in accordance
with Sec. 13.210 and must serve a copy of the appeal brief on each
party in accordance with Sec. 13.211.
(1) A party must set forth, in detail, the party's specific
objections to the initial decision or rulings in the appeal brief. A
party also must set forth, in detail, the basis for the appeal, the
reasons supporting the appeal, and the relief requested in the appeal.
If the party relies on evidence contained in the record for the appeal,
the party must specifically refer to the pertinent evidence contained
in the transcript in the appeal brief.
(2) The FAA decisionmaker may dismiss an appeal, on the FAA
decisionmaker's own initiative or upon motion of any other party, where
a party has filed a notice of appeal but fails to perfect the appeal by
timely filing an appeal brief with the FAA decisionmaker.
(e) Reply brief. Unless otherwise agreed by the parties, any party
may file a reply brief in accordance with Sec. 13.210 not later than
35 days after the appeal brief has been served on that party. The party
filing the reply brief must serve a copy of the reply brief on each
party in accordance with Sec. 13.211. If the party
[[Page 3660]]
relies on evidence contained in the record for the reply, the party
must specifically refer to the pertinent evidence contained in the
transcript in the reply brief.
(1) Extension of time by agreement of the parties. The parties may
agree to extend the time for filing a reply brief with the consent of
the FAA decisionmaker. If the FAA decisionmaker grants an extension of
time to file the reply brief, the FAA decisionmaker must serve a letter
confirming the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an
extension of time for filing a reply brief, a party desiring an
extension of time may file a written motion for an extension in
accordance with Sec. 13.210 and must serve a copy of the motion on
each party in accordance with Sec. 13.211. Any party choosing to
respond to the motion must file and serve a written response to the
motion no later than 10 days after service of the motion. The FAA
decisionmaker may grant an extension if good cause for the extension is
shown in the motion.
(f) Other briefs. The FAA decisionmaker may allow any person to
submit an amicus curiae brief in an appeal of an initial decision. A
party may not file more than one brief unless permitted by the FAA
decisionmaker. A party may petition the FAA decisionmaker, in writing,
for leave to file an additional brief and must serve a copy of the
petition on each party. The party may not file the additional brief
with the petition. The FAA decisionmaker may grant leave to file an
additional brief if the party demonstrates good cause for allowing
additional argument on the appeal. The FAA decisionmaker will allow a
reasonable time for the party to file the additional brief.
(g) Number of copies. A party must file the original plus one copy
of the appeal brief or reply brief, but only one copy if filing by
email or fax, as provided in Sec. 13.210.
(h) Oral argument. The FAA decisionmaker may permit oral argument
on the appeal. On the FAA decisionmaker's own initiative or upon
written motion by any party, the FAA decisionmaker may find that oral
argument will contribute substantially to the development of the issues
on appeal and may grant the parties an opportunity for oral argument.
(i) Waiver of objections on appeal. If a party fails to object to
any alleged error regarding the proceedings in an appeal or a reply
brief, the party waives any objection to the alleged error. The FAA
decisionmaker is not required to consider any objection in an appeal
brief or any argument in the reply brief if a party's objection or
argument is based on evidence contained on the record and the party
does not specifically refer to the pertinent evidence from the record
in the brief.
(j) FAA decisionmaker's decision on appeal. The FAA decisionmaker
will review the record, the briefs on appeal, and the oral argument, if
any, when considering the issues on appeal. The FAA decisionmaker may
affirm, modify, or reverse the initial decision, make any necessary
findings, or may remand the case for any proceedings that the FAA
decisionmaker determines may be necessary. The FAA decisionmaker may
assess a civil penalty but must not assess a civil penalty in an amount
greater than that sought in the complaint.
(1) The FAA decisionmaker may raise any issue, on the FAA
decisionmaker's own initiative, that is required for proper disposition
of the proceedings. The FAA decisionmaker will give the parties a
reasonable opportunity to submit arguments on the new issues before
making a decision on appeal. If an issue raised by the FAA
decisionmaker requires the consideration of additional testimony or
evidence, the FAA decisionmaker will remand the case to the
administrative law judge for further proceedings and an initial
decision related to that issue. If an issue raised by the FAA
decisionmaker is solely an issue of law or the issue was addressed at
the hearing but was not raised by a party in the briefs on appeal, a
remand of the case to the administrative law judge for further
proceedings is not required but may be provided in the discretion of
the FAA decisionmaker.
(2) The FAA decisionmaker will issue the final decision and order
of the Administrator on appeal in writing and will serve a copy of the
decision and order on each party. Unless a petition for review is filed
pursuant to Sec. 13.235, a final decision and order of the
Administrator will be considered an order assessing civil penalty if
the FAA decisionmaker finds that an alleged violation occurred and a
civil penalty is warranted.
(3) A final decision and order of the Administrator after appeal is
precedent in any other civil penalty action. Any issue, finding or
conclusion, order, ruling, or initial decision of an administrative law
judge that has not been appealed to the FAA decisionmaker is not
precedent in any other civil penalty action.
Sec. 13.234 Petition to reconsider or modify a final decision and
order of the FAA decisionmaker on appeal.
(a) General. Any party may petition the FAA decisionmaker to
reconsider or modify a final decision and order issued by the FAA
decisionmaker on appeal from an initial decision. A party must file a
petition to reconsider or modify in accordance with Sec. 13.210 not
later than 30 days after service of the FAA decisionmaker's final
decision and order on appeal and must serve a copy of the petition on
each party in accordance with Sec. 13.211. A party is not required to
serve any documents under Sec. 13.234 on the administrative law judge.
The FAA decisionmaker will not reconsider or modify an initial decision
and order issued by an administrative law judge that has not been
appealed by any party to the FAA decisionmaker.
(b) Number of copies. The parties must file the original plus one
copy of the petition or the reply to the petition, but only one copy if
filing by email or fax, as provided in Sec. 13.210.
(c) Contents. A party must state briefly and specifically the
alleged errors in the final decision and order on appeal, the relief
sought by the party, and the grounds that support the petition to
reconsider or modify.
(1) If the petition is based, in whole or in part, on allegations
regarding the consequences of the FAA decisionmaker's decision, the
party must describe these allegations and must describe, and support,
the basis for the allegations.
(2) If the petition is based, in whole or in part, on new material
not previously raised in the proceedings, the party must set forth the
new material and include affidavits of prospective witnesses and
authenticated documents that would be introduced in support of the new
material. The party must explain, in detail, why the new material was
not discovered through due diligence prior to the hearing.
(d) Repetitious and frivolous petitions. The FAA decisionmaker will
not consider repetitious or frivolous petitions. The FAA decisionmaker
may summarily dismiss repetitious or frivolous petitions to reconsider
or modify.
(e) Reply petitions. Any party replying to a petition to reconsider
or modify must file the reply in accordance with Sec. 13.210 no later
than 10 days after service of the petition on that party, and must also
serve a copy of the reply on each party in accordance with Sec.
13.211.
(f) Effect of filing petition. The filing of a timely petition
under this section will stay the effective date of the FAA
decisionmaker's decision and order on
[[Page 3661]]
appeal until final disposition of the petition by the FAA
decisionmaker.
(g) FAA decisionmaker's decision on petition. The FAA decisionmaker
has discretion to grant or deny a petition to reconsider. The FAA
decisionmaker will grant or deny a petition to reconsider within a
reasonable time after receipt of the petition or receipt of the reply
petition, if any. The FAA decisionmaker may affirm, modify, or reverse
the final decision and order on appeal, or may remand the case for any
proceedings that the FAA decisionmaker determines may be necessary.
Sec. 13.235 Judicial review of a final decision and order.
(a) In cases under the Federal aviation statute, a party may seek
judicial review of a final decision and order of the Administrator, as
provided in 49 U.S.C. 46110(a), and, as applicable, in 49 U.S.C.
46301(d)(7)(D)(iii), 46301(g), or 447532.
(b) In cases under the Federal hazardous materials transportation
statute, a party may seek judicial review of a final decision and order
of the Administrator, as provided in 49 U.S.C. 5127.
(c) A party seeking judicial review of a final order issued by the
Administrator may file a petition for review in the United States Court
of Appeals for the District of Columbia Circuit or in the United States
Court of Appeals for the circuit in which the party resides or has its
principal place of business.
(d) The party must file the petition for review no later than 60
days after service of the Administrator's final decision and order.
Sec. 13.236. Alternative dispute resolution.
Parties may use mediation to achieve resolution of issues in
controversy addressed by this subpart. Parties seeking alternative
dispute resolution services may engage the services of a mutually
acceptable mediator. The mediator must not participate in the
adjudication under this subpart of any matter where he serves as a
mediator. Mediation discussions and submissions will remain
confidential consistent with the provisions of the Administrative
Dispute Resolution Act and other applicable federal laws.
Issued under the authority provided by 49 U.S.C. 106(f) and
44701(a) in Washington, DC, on December 18, 2018.
Charles M. Trippe, Jr.
Chief Counsel.
[FR Doc. 2019-00771 Filed 2-11-19; 8:45 am]
BILLING CODE 4910-13-P
