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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations
a direct appeal to a U.S. court of appeals could require a remand to the agency for it to consider matters that otherwise could have been resolved under the expedited administrative process. After exhaustion of the expedited administrative process, a respondent could still appeal to a U.S. court of appeals. Even if a respondent resorts to judicial review first, the court of appeals has discretion to require further administrative proceedings, if, for example, the court believes doing so would help develop the record in the case. Therefore, even if the case is not resolved by the expedited administrative process, the U.S. court of appeals could use records developed during that process, reducing the potential costs of a judicial appeal.
As FAA does not know how many persons subject to emergency orders would opt for expedited hearings, and of these how many would end up before a U.S. court of appeals, FAA cannot conclude how many persons would potentially receive cost savings.
However, FAA expects small cost savings because emergency orders issued under 13.20 are infrequent.
The rule also provides the additional option of using mediation as an ADR
procedure in actions under subparts D
and G to reduce the potential burden associated with litigating these matters.
Litigation could be avoided if mediation results in a mutually agreeable outcome.
If mediation is successful and parties can avoid litigation, there is the potential for cost savings as the cost of mediation is likely to be less than that of litigation.
As with the option for an expedited hearing, mediation may not fully resolve a matter and the respondent may still choose to litigate. However, mediation may reduce the cost of litigation because it can narrow issues and provide for greater cooperation during discovery.
FAA does not know how many parties would participate in a mediation process. The annual average number of subpart D and G cases received by the FAA Hearing Docket from 2015 through 2019 was 41. FAA estimates that the average annual number of parties opting for mediation would likely not exceed this number. As FAA expects the cost savings of opting for mediation will be minimal, FAA concludes that the total cost savings of providing this option will be minimal.
This final rule also adds the less burdensome options of serving and filing a single copy of a document in subpart D and G proceedings by email or fax. This has the potential of minimal cost savings. Currently, the parties must file by mail or personally deliver an
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original and a copy of each document, and serve a copy on each party. Service by these methods imposes costs not applicable to emailing or faxing, like postage, copying, and delivery fees.
This final rule also removes the FAA
Hearing Docket Clerks authority in civil penalty cases under subpart G to issue blank subpoenas upon request by a party, and instead requires a party applying for a subpoena to show the general relevance and reasonable scope of the evidence sought by the subpoena.
Under this final rule, only the ALJ will have the authority to issue a subpoena upon a showing of the general relevance and reasonable scope of the evidence sought by the subpoena. The burden is on the party requesting the subpoena to prove it is appropriate. Because this change could avoid subpoenas that impose irrelevant and burdensome requests for testimony, documents, and tangible things, it is potentially cost saving.
Finally, current 13.210e1
explains that materials filed in FAAs Hearing Docket in civil penalty adjudications are made publicly available on the FDMS website, www.regulations.gov. FAA is discontinuing use of the FDMS website for such materials, but will continue to make Administrator final decisions available on FAAs website. Based on current billing, this rule will save FAA
approximately $50,000 per year from discontinuing the use of the FDMS
website for part 13 adjudication docket materials.21 Over a 10-year period of analysis this cost savings would total about $500,000 or about $351,179
present value at a 7% discount rate.
FAA concludes that this rule will result in small cost savings as explained herein.
B. Regulatory Flexibility Determination The Regulatory Flexibility Act of 1980
Pub. L. 96354 RFA establishes as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA
covers a wide-range of small entities, including small businesses, not-for21 Savings based on the portion of FAAs total annual billing costs for dockets and FDMS services attributable to adjudication materials.

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profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605b of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
This final rule is likely to affect a substantial number of small entities, but as it will provide small cost savings it is not expected to have a significant economic impact on a substantial number of small entities.
This final rule codifies current practice, and rewrites and reorganizes a part of the CFR to make it more understandable. It updates outdated references and addresses. It adds less burdensome and faster-moving administrative appeal options. It also adds less burdensome options for serving and filing papers. It may eliminate some requests for subpoenas that otherwise would cost parties or subpoenaed persons time and money to defend against. FAA has determined this final rule will result in small cost savings.
If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605b of the RFA. Therefore, as provided in section 605b and based on the foregoing, the head of FAA certifies that this final rule does not result in a significant economic impact on a substantial number of small entities.
C. International Trade Impact Assessment The Trade Agreements Act of 1979
Pub. L. 9639, as amended by the Uruguay Round Agreements Act Pub.
L. 103465, prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States.
Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a
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