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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations existing provisions as 13.63a and adding new provisions at 13.63b and c.
EAA noted that the proposed amendment to 13.63a may unintentionally exclude from the appeal record exhibits that are offered at the subpart D hearing but not admitted into evidence. The commenter added that the proposed language was inconsistent with proposed 13.225 in subpart G.
FAA agrees that evidence offered as exhibits at a hearing but not admitted into evidence should still be a part of the record on appeal, as provided in the proposed subpart G provisions. FAA has amended 13.63a in this final rule to clarify that the record on appeal will include evidence proffered but not admitted at the hearing, consistent with proposed 13.225 and 13.230a.
J. Appeals and Judicial Review In the NPRM, FAA proposed adding a new 13.65 to consolidate all provisions for appeals, motions for reconsideration, and petitions for judicial review for subpart D hearings into one section. Proposed 13.65e delineates the authority of the Director of the Office of Adjudication as advisor to the Administrator for appeals.
EAA requested that FAA add a provision requiring notice and an opportunity for review. In support, EAA
expressed concern that the proposed 13.65e substantively expands the power of the Office of Adjudication.
The proposed revisions do not expand the power of the Office of Adjudication.
Rather, 13.65e merely codifies powers previously delegated to the Director of the Office of Adjudication by the FAA Administrator. Additional information on this delegation is contained in the Notice of Delegation of Authority published in the Federal Register on April 26, 2016 81 FR
24686. FAA did not change the final rule in response to this comment, and adopts 13.65e as proposed.
K. Expedited Proceedings In the NPRM, FAA proposed adding a new 13.67 to provide an expedited hearing and appeal process for emergency proceedings requested in accordance with 13.20d. New 13.67a gives accelerated deadlines for developing the record, commencing the hearing, and issuing the hearing officers decision.
EAA requested that FAA change the time for respondents to file an answer from 3 days to 10 days. In support of this request, EAA noted that three days is not enough time for a party to evaluate the complaint, secure counsel, and file an answer. EAA further
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distinguished the 3 days in the proposed rule from the 10 days allowed in proceedings before the National Transportation Safety Board NTSB
under 49 CFR 821.53.
FAA finds that three days to provide an answer is reasonable considering an expedited hearing must commence within 40 days under proposed 13.67a6. The 40-day deadline is driven by the 80-day period during which FAAs time-limited or temporary emergency order is effective.
The process in 13.67 allows a respondent to have both a hearing and an appeal to the Administrator completed prior to the expiration of the 80-day time-limited immediately effective order. The subject of the action will already be familiar with the complaint, as proposed 13.67a2
provides that the Administrator files a copy of the notice of proposed action as the complaint. Under proposed 13.20d3 and 13.67a2 and 3, the subject has 10 days from service of the notice of proposed action to appeal from the notice by requesting a hearing, FAA has 3 days after the receipt of the request for a hearing to file the notice as its complaint, and the subject has 3 days after receipt of the complaint to file an answer to the complaint. Therefore, a subject may have as many as 16 days or more, considering holidays or weekend days that may extend deadlines per proposed 13.45a from first seeing the allegations in which to decide whether to secure counsel and to file an answer. FAA finds this provides adequate notice and time for subjects to secure counsel.
Additionally, the commenters comparison to the NTSBs 10-day period for filing an answer is not germane, as that longer filing period only applies to answers filed in non-emergency NTSB
appeals. For emergency appeals, the NTSB provides five days to answer, which is comparable to the period in subpart D.17 The proposed 13.67a3
deadline is necessarily shorter than for actions that are not immediately effective, as the expedited process is designed to finish within 80 days.
Additionally, the commenters comparison to 49 CFR 821.53 is not germane as that provision does not address the time for filing an answer, but rather the time for an appeal of FAAs emergency order to the NTSB.
FAA did not change the final rule in response to this comment, and adopts the provisions on expedited proceedings as proposed.
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L. Dispute Resolution In the NPRM, FAA proposed adding new 13.69 and 13.236 to provide parties pursuing an appeal under subpart D or G, respectively, an opportunity to resolve the matter through mediation. Both sections proposed that any mediator used be mutually acceptable to the parties and be prohibited from participating in a subsequent adjudication of the same matter.
Comment on Separation of Functions NBAA requested that FAA revise the proposed rules to clarify that the Office of Adjudication will not be involved in mediation for any matter for which that Office could serve as an advisor to the Administrator. In support of this request, NBAA expressed concern about insufficient separation of functions if mediators in the Office of Adjudication provide ADR and then subsequently serve as an advisor to the Administrator in the same matter. NBAA further noted that since the Chief Counsels office reorganized, field attorneys who handle civil penalty cases now report directly to the Assistant Chief Counsel for Enforcement, who is co-located in Washington, DC with the Director of the Office of Adjudication. FAA infers from this comment that NBAA is concerned that their proximity will erode the functional, organizational, and ethical boundaries between litigants, adjudicators, and mediators. NBAA
requested that FAA make a similar clarification to the commercial space transportation regulations in 14 CFR
part 406.
FAA declines to make the requested clarifications. Both 13.69 and 13.236
already prohibit a mediator from participating in the adjudication of the same case. In addition, these rules do not prevent the parties from using a mediator from a source outside the Office of Adjudication. Regarding NBAAs request to amend the commercial space regulations in 14 CFR
parts 400 through 460, this request is outside the scope of this rulemaking, which is limited to 14 CFR part 13. FAA
did not make any changes to the final rule in response to this comment.
ACUS Guidance Comment ACUS noted that the proposed rules provide for the use of mediation and make settlement procedures more flexible for both FAA and opposing parties. While ACUS did not request a specific change to the language in 13.69 and 13.236, it suggested that FAA consider ACUS guidance materials
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