[Federal Register Volume 84, Number 29 (Tuesday, February 12, 2019)]
[Proposed Rules]
[Pages 3614-3661]
[FR Doc No: 2019-00771]

Vol. 84

Tuesday,

No. 29

February 12, 2019

Part III

Department of Transportation

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Federal Aviation Administration

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14 CFR Part 13

Update to Investigative and Enforcement Procedures; Proposed Rule

Federal Register / Vol. 84 , No. 29 / Tuesday, February 12, 2019 /
Proposed Rules

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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<PHONE_NUMBER>.
    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<PHONE_NUMBER>; email<EMAIL_ADDRESS>or
Cole R. Milliard, Office of the Chief Counsel, AGC-300, Federal
Aviation Administration, 800 Independence Avenue SW, Washington, DC
20591; telephone<PHONE_NUMBER>; email<EMAIL_ADDRESS>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<PHONE_NUMBER>; email
<EMAIL_ADDRESS>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<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>
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

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,

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

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.

    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).

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

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

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

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).

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

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

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

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.

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.

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.

    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

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