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Federal Register / Vol. 86, No. 188 / Friday, October 1, 2021 / Rules and Regulations N. Time for Responding After Service by Mail Section 13.211e currently allows parties in civil penalty proceedings to add five additional days to the prescribed period they have to respond to documents that are served by mail. In the NPRM, FAA proposed eliminating these five additional days to respond after service by mail.
AOPA, EAA, and an individual commenter requested FAA retain the five-day mailing rule by preserving the additional time provided in current 13.211e to respond to documents served by mail. AOPA stated the five additional days adequately compensates for possible delays involved with service by mail. AOPA suggested that requiring a party to seek an extension of time if needed, as FAA explained in the NPRM, is less efficient and creates additional workload.
FAA agrees with the comments on the five-day mailing rule. This final rule restores the additional time provision to subpart G in 13.211g and adds it to subpart D in 13.45b to maintain consistency between both subparts. The final rule also updates the paragraph designation in 13.45 to reflect the addition of the five-day mailing rule.
O. Valid Service of Documents Section 13.211g currently defines valid service of documents in civil penalty proceedings. Current 13.211h provides what constitutes a presumption of service. FAA
proposed revising the provision on valid service and moving it from 13.211g to 13.211f, as well as removing the presumption of service provisions in paragraph h as duplicative of the instructions for valid service.
EAA requested that FAA retain the presumption of service provision in current 13.211h. EAA asserted that the language deeming service valid in proposed paragraph f is significantly different from the current presumption of service language, which requires an acknowledgement of receipt. In addition, EAA asserted that FAAs proposed changes conflict with notions of due process and fairness, the PBR, and the intent of Fed. R. Civ. P. 4.
FAA agrees with the comments that the language deeming service valid in proposed paragraph f is significantly different from the current presumption of service language, which requires an acknowledgement of receipt. This final rule restores the provision defining presumption of service to 13.211h.
P. Disqualification/Recusal Sections 13.39, 13.205c, and 13.218f6 address the disqualification
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and recusal of administrative adjudicators under their respective subparts. In the NPRM, FAA did not propose any changes to these regulations.
ACUS requested that FAA consider ACUSs guidance and its model rule on ALJ/hearing officer recusal. In support, ACUS stated that recusal is important for maintaining the integrity of an adjudication, protects the parties, and promotes public confidence in agency adjudication.
In light of the recommendations on Recusal Rules for Administrative Adjudicators 84 FR 2139, Feb. 6, 2019
cited in ACUSs comment, the agency notes that subpart D does not have procedural recusal provisions akin to those in 13.205. As a result, FAA has amended this final rule by adding language to 13.39 and proposed 13.218f6 to address motions for disqualification consistent with ACUSs guidance and model rule. This amendment, however, does not include a provision for interlocutory appeal of a disqualification decision, because subpart D unlike subpart G does not currently provide for interlocutory appeals. Rather, a party may appeal a disqualification decision under the general appeal provisions in proposed 13.65 and 13.67b. FAA has not amended the subpart G disqualification provisions in proposed 13.205c, as the proposed language provides more detail than the guidance and model rule cited by the commenter.
Q. Motion for a More Definite Statement Current 13.218f3 describes how to file a motion for a more definite statement, whether by the complainant or respondent. In the NPRM, FAA
proposed only grammatical and stylistic changes to 13.218f3.
AOPA and an individual commenter requested that FAA amend 13.218f3i and ii to make them consistent with regard to the consequences of a partys failure to supply a more definite statement. Both AOPA and the individual commenter noted a discrepancy between proposed 13.218f3i and proposed 13.218f3ii in how an ALJ would handle a motion for a more definite statement depending on whether it is made by the complainant FAA or respondent. Proposed rule 13.218f3i provides that if the complainant fails to provide a more definite statement, the ALJ may strike the offending statement. Proposed 13.218f3ii, however, states that if the respondent fails to provide a more definite statement, the ALJ must strike the offending statement. AOPA

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noted that the current regulations provide that the ALJ shall strike the offending statement regardless of which party failed to comply. AOPA requested that both provisions provide that the ALJ may strike the offending statement.
FAA has changed the final rule in response to this comment. FAA
intended for both provisions to be changed from shall to may and has revised 13.218f3ii to correct the typographical error in the NPRM.
R. Technological Advances in All Adjudications and Proceedings ACUS requested that FAA consider ACUSs guidance and model rules for incorporating technology advances into discovery, case management, and hearings.
FAA has considered ACUSs guidance and model rules. However, the requested changes, including recommendations to add video hearings and use complex case management systems, go beyond the scope of this rulemaking. The rules do not prevent the use of advanced technology in managing a case. Video systems for hearings, for example, might be appropriate on a case-by-case basis or for a class of cases. If necessary, these matters can be addressed by standing orders issued under subpart D or specific orders of an ALJ or hearing officer. FAA did not change the final rule in response to this comment.
S. Other Differences Between the NPRM
and the Final Rule The final rule contains the following additional changes to correct style, format, inconsistencies, and typographical errors, including:
Changing the verb tense in 13.3b to provide that the Administrator has delegated certain authority, rather than may delegate authority, to more closely reflect the verb tense in the current rule.
Reformatting 13.3c to enumerate the list of delegated authority from the Administrator in separate paragraphs as 13.3c1 through 4, and adding a delegation for petitioning a court of the United States to enforce a subpoena or order as 13.3c5. FAA intended the proposed list of delegated authority in the NPRM to mirror the authority provided by the statutes cited in current 13.3b, which include the authority to petition a court of the United States to enforce a subpoena or order.
Inserting formal to modify investigations in 13.3c2 as the Agency did not intend for this final rule to change the nature or scope of the existing delegations in 13.3.

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