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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations
concern that proposed 13.5g, because it solely references the issuance of a notice of proposed order or other enforcement action, could be construed to prohibit FAA from taking administrative action or compliance action.
FAA did not intend to limit its ability to choose an appropriate response to a violation of law, including taking administrative or compliance action.
Therefore, in this final rule FAA has amended 13.5g to make clear that the Administrator may take action in accordance with applicable law and FAA policy if an investigation substantiates allegations set forth in a complaint.
E. Administrative Actions Section 13.11 currently states that FAA may take administrative action rather than legal enforcement action for a violation or apparent violation and defines such administrative action. In the NPRM, FAA proposed updating the statutory references and simplifying the language for readability, without changing the requirements of this section.
EAA and NBAA requested that FAA
further amend 13.11 to include compliance actions, consistent with FAA Order 8000.373A, Federal Aviation Administrative Compliance Program which created compliance actions, as an option for addressing a violation.
The requested changes are unnecessary. FAA established the Compliance Program, including compliance actions, in 2015.14 It is an agency policy relying in part on the agencys prosecutorial discretion.
Accordingly, FAA did not need to codify it in its regulations. Instead, FAA
implemented the policy in FAA Order 8000.373A and further addressed it in FAA Order 2150.3C, FAA Compliance and Enforcement Program, and FAA
Order 8900.1, Flight Standards Information Management System. The absence of an express reference to compliance actions in part 13 does not prevent FAA from taking compliance actions where appropriate.
In addition, despite retaining the reference to administrative action, this rulemaking, and part 13 generally, focuses primarily on two areas: 1 How the Office of the Chief Counsel conducts legal enforcement actions; and 2 due process for those subject to legal enforcement action. Compliance actions 14 FAA Order 8000.373 June 26, 2015 canceled by Order 8000.373A in 2018; see generally https
www.faa.gov/about/initiatives/cp/ last visited July 7, 2020.

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are not legal enforcement actions, and the Office of the Chief Counsel does not administer compliance actions.
Therefore, FAA did not change the final rule in response to these comments and adopts 13.11 as proposed.
F. Consent Orders Current 13.13 addresses disposition of a legal enforcement action through a consent order. Paragraph b specifies the required contents for a consent order. In the NPRM, FAA proposed retaining most of the existing requirements and adding requirements for an express waiver of attorneys fees and costs, and a withdrawal of the request for hearing or notice of appeal.
NBAA requested that FAA amend the rule to allow for consent orders that do not include all the required terms listed in proposed 13.13b. In support of this request, NBAA expressed concern that the proposed changes to 13.13b would take away the ability of the parties to negotiate consent order terms such as fees and costs, or waive these requirements in certain circumstances.
As a matter of practice, FAAs experience is that certain terms of a consent agreement are non-negotiable.
This rule codifies FAAs expectations, for transparency. If the subject of an enforcement action wants the benefits of a consent order, it must be willing to include the terms in 13.13b. FAA did not change the final rule in response to this comment, and adopts this section as proposed.
G. Deposition Authority Section 13.37 currently sets forth the powers of a hearing officer in subpart D
hearings, while 13.205 sets forth the powers of an ALJ in subpart G hearings.
In the NPRM, FAA proposed clarifying revisions to these sections, including removing language regarding depositions from 13.37e and 13.205a3, adding language regarding discovery to 13.37h, and adding language allowing a hearing officer or ALJ to take any other authorized action as new paragraph m in 13.37 and new paragraph a11 in 13.205.
EAA requested that FAA preserve the language regarding depositions in current 13.37e and 13.205a3.
Specifically, EAA stated that despite the additional language proposed by FAA, these sections would no longer expressly empower hearing officers and ALJs to take or require depositions.
FAA does not agree to preserve this language. The proposed amendments to 13.37e and 13.205a3 do not eliminate the ability for hearing officers or ALJs to require the taking of depositions. Hearing officers retain the
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authority under 13.37 to regulate discovery proceedings in subpart D
hearings. Depositions are included as a form of discovery in proposed 13.53d. Parties may apply for a subpoena to require attendance at a deposition under 13.57. In subpart G
hearings, parties may serve notices of depositions, as described in proposed 13.220j3, and file motions to compel discovery under 13.220m.
Inasmuch as both subparts D and G
provide for depositions and motions to compel, FAAs proposed changes maintain the authority of hearing officers and ALJs with regard to depositions. Additionally, as EAA
recognized, the proposed rule includes a catch-all power for hearing officers and ALJs to regulate depositions. FAA
did not change the final rule in response to this comment and adopts the deposition authority as proposed.
H. Witness Fees Current 13.57 and 13.229 address witness fees in subpart D and subpart G
hearings, respectively. Section 13.57d allows a hearing officer to shift the burden of paying a witness from the party requesting the witnesss appearance to FAA under certain conditions. Section 13.229a requires the party requesting the witnesss appearance to pay witness fees unless otherwise authorized by the ALJ. In the NPRM, FAA proposed, among other changes, removing these fee-shifting provisions.
EAA requested that FAA retain the fee-shifting authority in 13.57d and incorporate it into 13.229. In support of this request, EAA stated that FAA
enjoys a financial advantage over respondents.
As explained in the NPRM, the current fee-shifting authority has not been used, is not supported by any identified statutory authority, and runs contrary to the American Rule 15 that parties pay their own costs. Parties seeking to recover fees and expenses in subpart G hearings may still pursue an award under the Equal Access to Justice Act of 1980 EAJA 16 and FAAs Rules Implementing the EAJA 14 CFR
part 14. FAA did not change the final rule in response to this comment, and adopts 13.57d and 13.229 as proposed.
I. Record on Appeal Current 13.63 describes the contents of the record in a subpart D hearing. The NPRM proposed redesignating the 15 Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 1975.
16 28 U.S.C. 2412.

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