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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations
FAA in any proceeding governed by this subpart. An employee of a respondent may not be called by an agency attorney as an expert or opinion witness for the FAA in any proceeding governed by this subpart to which the respondent is a party.
13.228

Subpoenas.

a Request for subpoena. The administrative law judge, upon application by any party to the proceeding, may issue subpoenas requiring the attendance of witnesses or the production of documents or tangible things at a hearing or for the purpose of taking depositions, as permitted by law.
A request for a subpoena must show its general relevance and reasonable scope.
The party must serve the subpoena on the witness or the holder of the documents or tangible items as permitted by applicable statute. A
request for a subpoena must be filed and served in accordance with 13.210 and 13.211, respectively. Absent good cause shown, the filing and service must be completed as follows:
1 Not later than 15 days before a scheduled deposition under the subpoena; or 2 Not later than 30 days before a scheduled hearing where attendance at the hearing is sought.
b Motion to quash or modify the subpoena. A party, or any person upon whom a subpoena has been served, may file in the FAA Hearing Docket a motion to quash or modify the subpoena and must serve a copy on the administrative law judge and each party at or before the time specified in the subpoena for compliance. The movant must describe, in detail, the basis for the motion to quash or modify the subpoena including, but not limited to, a statement that the testimony, document, or tangible evidence is not relevant to the proceeding, that the subpoena is not reasonably tailored to the scope of the proceeding, or that the subpoena is unreasonable and oppressive. A motion to quash or modify the subpoena will stay the effect of the subpoena pending a decision by the administrative law judge on the motion.
c Enforcement of subpoena. Upon a showing that a person has failed or refused to comply with a subpoena, a party may apply to the appropriate U.S.
district court to seek judicial enforcement of the subpoena.
13.229

Witness fees.

a General. The party who applies for a subpoena to compel the attendance of a witness at a deposition or hearing, or the party at whose request a witness appears at a deposition or hearing, must
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pay the witness fees described in this section.
b Amount. Except for an employee of the agency who appears at the direction of the agency, a witness who appears at a deposition or hearing is entitled to the same fees and allowances provided for under 28 U.S.C. 1821.
13.230

Record.

a Exclusive record. The pleadings, transcripts of the hearing and prehearing conferences, exhibits admitted into evidence, rulings, motions, applications, requests, briefs, and responses thereto, constitute the exclusive record for decision of the proceedings and the basis for the issuance of any orders in the proceeding. Any proceedings regarding the disqualification of an administrative law judge must be included in the record. Though only exhibits admitted into evidence are part of the record before an administrative law judge, evidence proffered but not admitted is also part of the record on appeal, as provided by 13.225.
b Examination and copying of record. The parties may examine the record at the FAA Hearing Docket and may obtain copies of the record upon payment of applicable fees. Any other person may obtain copies of the releasable portions of the record in accordance with applicable law.
13.231 Argument before the administrative law judge.

a Arguments during the hearing.
During the hearing, the administrative law judge must give the parties a reasonable opportunity to present arguments on the record supporting or opposing motions, objections, and rulings if the parties request an opportunity for argument. The administrative law judge may request written arguments during the hearing if the administrative law judge finds that submission of written arguments would be reasonable.
b Final oral argument. At the conclusion of the hearing and before the administrative law judge issues an initial decision in the proceedings, the administrative law judge must allow the parties to submit oral proposed findings of fact and conclusions of law, exceptions to rulings of the administrative law judge, and supporting arguments for the findings, conclusions, or exceptions. At the conclusion of the hearing, a party may waive final oral argument.
c Post-hearing briefs. The administrative law judge may request written post-hearing briefs before the administrative law judge issues an
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initial decision in the proceedings if the administrative law judge finds that submission of written arguments would be reasonable. If a party files a written post-hearing brief, the party must include proposed findings of fact and conclusions of law, exceptions to rulings of the administrative law judge, and supporting arguments for the findings, conclusions, or exceptions.
The administrative law judge must give the parties a reasonable opportunity, but not more than 30 days after receipt of the transcript, to prepare and submit the briefs. A party must file and serve any post-hearing brief in in accordance with 13.210 and 13.211, respectively.
13.232

Initial decision.

a Contents. The administrative law judge must issue an initial decision at the conclusion of the hearing. In each oral or written decision, the administrative law judge must include findings of fact and conclusions of law, as well as the grounds supporting those findings and conclusions, for all material issues of fact, the credibility of witnesses, the applicable law, any exercise of the administrative law judges discretion, and the amount of any civil penalty found appropriate by the administrative law judge. The administrative law judge must also include a discussion of the basis for any order issued in the proceedings. The administrative law judge is not required to provide a written explanation for rulings on objections, procedural motions, and other matters not directly relevant to the substance of the initial decision. If the administrative law judge refers to any previous unreported or unpublished initial decision, the administrative law judge must make copies of that initial decision available to all parties and the FAA
decisionmaker.
b Oral decision. Except as provided in paragraph c of this section, at the conclusion of the hearing, the administrative law judges oral initial decision and order must be on the record.
c Written decision. The administrative law judge may issue a written initial decision not later than 30
days after the conclusion of the hearing or submission of the last post-hearing brief if the administrative law judge finds that issuing a written initial decision is reasonable. The administrative law judge must serve a copy of any written initial decision on each party.
d Reconsideration of an initial decision. The FAA decisionmaker may treat a motion for reconsideration of an initial decision as a notice of appeal
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