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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations confirm compliance with law.5 When FAA seeks to enforce one of these investigative subpoenas, it must show that the inquiry is within the authority of the agency, the demand is not too indefinite, and the information sought is reasonably relevant. 6 So, contrary to NBAAs concerns, FAAs investigative subpoena power is not unlimited, and the subject of an investigative subpoena has a means to contest it. Finally, neither the PBR nor FAAs Compliance Program address investigative subpoenas. The PBR provisions NBAA
refers to in its comment only concern Letters of Investigation.7 FAA issues investigative subpoenas to obtain evidence during an investigation, while the decision to take compliance action occurs after conducting a thorough investigation.8 FAA made no changes as a result of this comment.
Based on the foregoing discussion, FAA is not making any changes to its proposal for 13.3 based on NBAAs comments. However, as explained in more detail in section III.S. of this preamble, the final rule amends proposed paragraph c of 13.3 to align with the statutory language containing the delegated authority.
B. Service of Formal Complaints The current 13.5 provides that FAA
will mail a copy of the formal complaint to each person named in the complaint. In the NPRM, FAA
proposed to change this language so that FAA would mail a copy to the subjects of the complaint.
EAA requested that FAA withdraw the proposed change in the language describing who would receive copies of a formal complaint. EAA stated the proposed change would mean that witnesses and interested parties mentioned in a complaint would not be entitled to receive a copy. In support of its comment, EAA cited the public nature of the concerns often raised by complaints.
FAA has consistently mailed copies of formal complaints only to those persons accused of a violation subjects. The proposed language therefore matches FAAs longstanding practice. FAA finds it would be inappropriate to serve copies of a formal complaint on anyone other than those accused in the complaint. FAA uses the formal complaint, and answer if filed, to determine if there are reasonable grounds for an investigation. Even if 5 U.S. v. Morton Salt Co., 338 U.S. 632, 64243
1950.
6 Id. at 652.
7 PBR, section 2b2C and D.
8 FAA Order 2150.3C, Chapter 4, 2.b.

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there are reasonable grounds, the investigation may not substantiate a violation. Serving a copy of a complaint on persons whose names appear in the complaint, but who are not the individual alleged to have committed a violation e.g., a witness, is unnecessary, particularly when FAA
has not yet determined if an investigation into the complaint is even appropriate. FAA can contact witnesses and other relevant parties as part of any investigation justified by the complaint.
Further, release of the formal complaint to persons other than the alleged violators could violate the Privacy Act, as a formal complaint may contain personally identifiable information PII.
Therefore, FAA has adopted this rule as proposed in the NPRM.
C. Date of Service of a Formal Complaint Current 13.5f requires that an answer to a complaint be filed within 20
days after service. In the NPRM, FAA
proposed moving the provisions of current 13.5f to 13.5e and adding language to clarify that the date of service of the complaint is the date of mailing.
EAA requested that FAA not implement these proposed changes.
EAA stated that using the date of mailing is contrary to due process notions of service and notice and fails to take into account lost mailings.
According to EAA, this would conflict with the proposed language in 13.18e, which uses the date of receipt, as well as the PBR and Rule 4
of the Federal Rules of Civil Procedure.
Lastly, EAA stated that the proposed change would create a presumption of service even when there is no constructive or actual service.
Using the date of mailing as the date of service is a common provision in both an FAA statute and in other procedural regulations.9 Under 49
U.S.C. 46103b1C and b2, the Administrator may generally serve a person by certified or registered mail, with the date of mailing deemed the date of service.10 This is consistent with 9 See NLRB v. Local 264, Laborers Intl Union of N. Am., 529 F.2d 778, 784 8th Cir. 1976 noting, in finding that NLRB had power to create rule establishing date of mailing as date of service, that this kind of rule was not novel or unique and that it had been explicitly sanctioned in Fed. R. Civ.
P. 5b and several administrative agencies procedures.
10 See Skydive Myrtle Beach Inc. v. Horry Cty.
Dept. of Airports, 735 F. Appx 810, 814 4th Cir.
2018 stating that 46103b articulates the proper methods of service for proceedings resulting from the enforcement of Part A of Subtitle VII of Title 49; cf. Avia Dynamics, Inc. v. FAA, 641 F.3d 515, 520 D.C. Cir. 2011 holding that informal orders of an advisory nature are not subject to the
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due process requirements.11 Current and proposed 13.43 and 13.211
provide that the date of mailing is the date of service on a party when a document is mailed in subpart D
hearings. The NTSBs Rules of Practice in Air Safety Proceedings also designate the date of mailing to be the date of service.12
Concerns regarding PBR are misplaced, as the PBR does not apply to formal complaints. Section 2, paragraph a of the PBR states that a proceeding conducted under subpart C, D, or F of part 821 of title 49, Code of Federal Regulations, relating to denial, amendment, modification, suspension, or revocation of an airman certificate, shall be conducted, to the extent practicable, in accordance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence. 13 Formal complaints are not conducted under 49
CFR part 821, subpart C, D, or F. No other part of the PBR applies to formal complaints. FAA is therefore adopting the proposed rule without change.
Finally, EAAs reliance on proposed 13.18e is misplaced. The proposed language in 13.18e permits the Administrator to issue an order of assessment if an individual does not respond to a notice of proposed assessment within 15 days of receipt.
Thus, it neither defines the date of service nor conflicts with proposed 13.5e.
D. FAA Actions Resulting From Formal Complaints Current 13.5j is restated in proposed 13.5g. In general, it provides that if an investigation resulting from a formal complaint substantiates any allegation of wrongdoing, FAA may take enforcement action.
EAA requested FAA revise proposed 13.5g to allow the Administrator to issue administrative or compliance action when an investigation substantiates the allegations in a complaint, in accordance with FAAs compliance and enforcement order, FAA Order 2150.3C. EAA expressed procedural requirements in section 46103; Admr v. Dangberg, NTSB Order No. EA5694, 2013 WL
7206204, at 3 Dec. 18, 2013 stating that in proceedings before National Transportation Safety Board, section 46103b2, not Fed. R. Civ. P. 4, governs date of service for FAA orders served on certificate holders.
11 See Jones v. Flowers, 547 U.S. 220, 226 2006
in which the Supreme Court stated that certified mail service is constitutionally sufficient where it is reasonably calculated to reach the intended recipient when sent.
12 49 CFR 821.7a4 and 821.8e.
13 Public Law 112153, 126 Stat. 1159, section 2a 2012 codified at 49 U.S.C. 44703 note.

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