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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations
and model rules on ADR and settlement procedures.
FAA reviewed ACUSs comment and finds that the proposed ADR provisions are consistent with the Administrative Dispute Resolution Act of 1996 and the guidance materials and model rules cited by ACUS. FAA did not change the final rule in response to this comment.
Comment on Superfluity and Choice of Mediator An individual commenter stated that the dispute resolution provisions in proposed 13.69 and 13.236 are superfluous because DOT already encourages parties to use mediation.18
The commenter requested that FAAs rule require only neutral, third-party mediators instead of in-house mediators, asserting that in-house mediators may be unfairly biased in favor of the DOT and FAA.
Regarding the individual commenters statement that the new ADR provisions are superfluous given DOTs ADR policy statement, FAA explained in the NPRM
that the proposed ADR provisions complement the DOT policy statement by codifying the use of voluntary mediation in FAAs regulations. FAA
believes that this will ensure that parties are aware of their option to use mediation as they consider the overarching enforcement process described in subpart D. Contrary to the commenters interpretation, these rules, which are adopted as proposed, do not require the use of FAA, DOT, or other government-employee mediators.
Rather, the rules provide that the parties may engage the services of any mutually acceptable mediator.
M. Federal Docket Management System and Use of Email for Filing and Service Current 13.210 describes where and how to file documents for subpart G
matters, as well as how to access documents filed with the Hearing Docket via the internet. It also defines the date of filing. In the NPRM, FAA
proposed changes to 13.210 to update addresses, provide for fax and email filing, and describe the date of filing for each method of filing. FAA also proposed to remove the provision in current paragraph e allowing accessibility to all documents in the Hearing Docket through the Federal Docket Management System FDMS. In the preamble of the NPRM, FAA
explained its intention to continue to provide the Administrators final decisions on appeal, with an index, on its website.
18 DOT Statement of Policy on Alternative Dispute Resolution 67 FR 40367, June 12, 2002.

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EAA, NBAA, and an individual commenter requested that FAA
continue using either FDMS or another electronic system for posting decisions and other filings. EAA and the individual commenter stated that the public should have access to all the materials currently available on FDMS, and its access should not be limited to final decisions available through FAAs website as proposed in the NPRM. The individual commenter also stated, that under the proposed rule, the public would have to subscribe to paid online reporting services for the materials currently available on FDMS, and suggested that this raises due process concerns.
NBAA noted the only reason given for the proposed change is administrative efficiency. NBAA stated the public would be better served by having the final decisions available in the same location as all U.S. Government documents instead of on FAAs website.
Both NBAA and EAA stated that FAAs reason for the proposed change administrative efficiencydoes not outweigh the inefficiency and loss of benefit to the public that will result from the proposed change. Lastly, ACUS
requested that FAA consider its guidance materials on electronic case management and providing access to adjudicative documents.
FAAs decision to discontinue use of FDMS balances costs and benefits to both FAA and the public associated with the change. Contrary to NBAAs assertion, FDMS is not where all U.S.
Government documents are currently stored. Rather, FDMS is a centralized tool created and used mainly for rulemaking and public comments on rulemaking rather than for judicial dockets.
Further, while FDMS is suitable for receiving comments on rulemaking documents, it is different from systems like the Federal judiciarys Public Access to Court Electronic Records PACER and Case Management/
Electronic Case Filing System CM/
ECF, or the Government Accountability Offices Electronic Protest Docketing System EPDS. Systems such as CM/
ECF and EPDS require parties to ensure private information is not included in documents filed into the case docket.
Current 13.210 requires parties to file documents by sending them to the Hearing Docket Clerk. The Hearing Docket clerk, in turn, must upload the documents to FDMS so that they are publicly accessible pursuant to current 13.210e. This places the responsibility on FAA to ensure that it does not release private, proprietary, or otherwise sensitive information in
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documents made publicly available. As a result, the FAA Hearing Docket clerk must review each filed paper document for sensitive information, create a version of each document that is publicly releasable, and submit the releasable version to FDMS staff for uploading into the system. Thus, using FDMS does not expedite filing; rather, it adds delay due to the time required for processing and creates an administrative burden on FAA.
Moreover, as ACUS recognizes, FAA
may not post documents that are prohibited from public release under the Privacy Act, or exempted from release under the Freedom of Information Act FOIA, meaning that what FAA posts on FDMS is only an incomplete representation of the official, paper docket. FAA can thoroughly review a document for Privacy Act and FOIA
issues before releasing it in paper to each specific requester, whereas FDMS
makes filings available to anyone who can access the internet.
As explained in the NPRM, the agency is mindful of the publics interest in cost-effective electronic filing and access to materials. Electronic docket systems such as PACER, CM/
ECF, and EPDS impose user fees for electronic filing and access to documents. While FAA proposed to eliminate public internet access to the entire docket, the proposed changes do allow for electronic filing through email and fax without charging fees.
Additionally, the Office of Adjudication will continue to publish and index Decisions and Orders of the FAA
Administrator on its website, also without requiring a fee. Thus, FAA
determined that the benefits provided to parties and to FAA outweigh any inefficiencies created by the proposed rule. FAA did not change the final rule in response to this comment.
Comment Urging Mandatory Email Filing An individual commenter urged FAA
to require email filing and email service for all documents in subpart G cases, rather than permitting the parties to choose their method of filing and service with the option of using email.
FAA declines to impose this requirement. By giving parties the choice to file and serve documents by email, rather than requiring it, FAA is permitting more efficient, expeditious, and cost-effective filing and service, without creating an undue hardship on parties lacking access to the internet.
FAA did not change the final rule in response to this comment.

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