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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations members of the armed services, to align with the removal of current 13.21; and the addition of a definition for the date of service of a written answer to a formal complaint in 13.5e in this final rule as no definition is provided in current 13.5f, which 13.5e replaces.
Subpart C addresses legal enforcement actions. This final rule provides a new emergency procedure allowing for an expedited administrative appeal process when issuing a notice under 14 CFR 13.20d simultaneously with a temporary emergency order under 49 U.S.C. 40113
and 46105c. FAA is amending 13.13
to update the list of required elements for a proposed consent order to include a withdrawal of all requests for hearing or appeals in any forum as well as an express waiver of attorneys fees and costs. This final rule also amends 13.17a to replace the term operator with the individual commanding the aircraft to align with the underlying statute. Finally, this final rule removes 13.29 pertaining to FAA enforcement procedures against individuals who present dangerous or deadly weapons for screening at airports or in checked baggage, as these proceedings are now under the Transportation Security Administrations authority.
Current subpart D provides the rules of practice applicable to FAA hearings involving legal enforcement actions pertaining to certain FAA-issued certificates, hazardous materials violations by any person, and other types of enforcement actions. This final rule amends the applicability section of subpart D to no longer apply to hearings for emergency orders of compliance issued under the Hazardous Materials Transportation Act,1 because 49 CFR
part 109, DOT Hazardous Material Procedural Regulations, now provides the procedures for this process.
Additional amendments to subpart D
recognize the role and function of FAAs Office of Adjudication and provide for the use of alternative dispute resolution ADR procedures. This final rule consolidates sections relating to filing and service; updates addresses; allows for filing and service by fax and email;
clarifies the discovery process, including a modification to the subpoena rule; and consolidates and incorporates the appeal procedures stated in other subparts of part 13 into subpart D. Finally, a new provision in subpart D at 13.67 provides an expedited review process for the subjects of emergency orders to which 13.20 applies.
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Subpart E provides for orders of compliance under the Hazardous Materials Transportation Act. This final rule harmonizes procedures associated with notices of proposed orders of compliance and consent orders issued under subpart E with procedures for non-hazardous material notices and orders in subpart C. This final rule also moves subpart D-related provisions regarding rules of practice in hearings from subpart E to subpart D, and updates procedures that have been superseded by subsequent amendments to the hazardous material hazmat statutes. Finally, this final rule adds a new cross-reference to the procedures in 49 CFR part 109, subpart C, applicable to hazmat emergency orders issued by all DOT modes.
Subpart G provides the rules of practice in FAA civil penalty actions.
Just as with subpart D, this final rule amends subpart G to include recognition of FAAs Office of Adjudication, the use of mediation as an ADR procedure, and the addition of fax and email as options for filing and service. This final rule also codifies the current practice of treating timely petitions for reconsideration of administrative law judge ALJ initial decisions as appeals to the FAA
decisionmaker. Additionally, this final rule requires a party applying for a subpoena to make a showing of the general relevance and reasonable scope of the evidence sought by the subpoena.
Other changes codify existing practices and create consistency within subpart G.
II. Background A. Statement of the Problem The majority of the rules in part 13
were last amended a decade or more ago. Since then, there have been statutory, organizational, and technological changes that necessitate updates. This rulemaking updates outdated statutory references and reflects the organizational changes made in FAAs Office of the Chief Counsel prior to the publication of the notice of proposed rulemaking NPRM 84 FR
3614, February 12, 2019, including the revised position titles and new offices within the Office of the Chief Counsel described in the NPRM.
Additionally, this final rule updates many antiquated provisions in the current part 13. Adoption of fax and email as additional options in the filing and service provisions make these administrative proceedings more efficient, expeditious, and cost-effective.
The final rule also provides for use of ADR in subpart D and subpart G

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proceedings. ADR is now commonplace in Federal courts and other agencies, but has not been an option in the current part 13 provisions.
In some instances, the current rules do not reflect procedures and practices in part 13 that have evolved or been refined since the last amendment of these rules. This final rule captures these procedures and practices. For example, it incorporates the informal practice of serving the ALJ in subpart G
civil penalty provisions in addition to the filing of documents with FAAs Hearing Docket. The final rule also codifies the current practice of treating certain motions and orders as notices of appeal to the FAA decisionmaker.
This final rule adds a new administrative appeal process for emergency orders to which 13.20
applies. In the current regulation, the only recourse for litigating such an order is a direct appeal under 49 U.S.C.
46110 to a U.S. court of appeals, without an opportunity to develop a record through the administrative process before appellate review. The new process balances the Administrators interest in responding to conditions posing an immediate threat to public safety with the interest of providing subjects of these emergency orders a meaningful post-deprivation administrative process.
Finally, many of the changes in this final rule address discrepancies between similar provisions across part 13 and harmonize the rules of practice in agency enforcement proceedings. Other amendments reword and reorganize provisions for clarity and ease of use.
B. Summary of the NPRM
The NPRM was published in the Federal Register on February 12, 2019
84 FR 3614. The comment period for the NPRM closed on May 13, 2019. The NPRM proposed substantive amendments to subparts A, C, D, E, and G. Proposed amendments in the NPRM
include:
Streamlining and updating statutory and regulatory references, eliminating inconsistencies, clarifying existing ambiguities, increasing efficiency, and improving readability;
Amending the required elements of proposed consent orders to include a withdrawal of any pending request for hearing or appeal and an express waiver of attorneys fees and costs;
Adding service and filing by fax and email in subpart D and subpart G
proceedings;
Amending subparts D and G that recognize the role and function of FAAs Office of Adjudication;

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