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109 

Federal Aviation Administration, DOT 

§ 16.233 

same exception (for evidence obtained 
by subpoena or subject to a special rul-
ing by the hearing officer), oral exam-
ination of a party’s own witness is lim-
ited to certification of the accuracy of 
written evidence, including correction 
and updating, if necessary, and reexam-
ination following cross-examination by 
other parties. 

(c)  Subpoenaed testimony. Testimony 

of witnesses appearing under subpoena 
may be obtained orally. 

(d)  Cross-examination.  A party may 

conduct cross-examination that may be 
required for disclosure of the facts, 
subject to control by the hearing offi-
cer for fairness, expedition and exclu-
sion of extraneous matters. 

(e)  Hearsay evidence. Hearsay evi-

dence is admissible in proceedings gov-
erned by this part. The fact that evi-
dence is hearsay goes to the weight of 
evidence and does not affect its admis-
sibility. 

(f)  Admission of evidence. The hearing 

officer admits evidence introduced by a 
party in support of its case in accord-
ance with this section, but may ex-
clude irrelevant, immaterial, or unduly 
repetitious evidence. 

(g) Expert or opinion witnesses. An em-

ployee of the FAA or DOT may not be 
called as an expert or opinion witness 
for any party other than the agency ex-
cept as provided in Department of 
Transportation regulations at 49 CFR 
part 9. 

§ 16.225

Public disclosure of evidence. 

(a) Except as provided in this section, 

the hearing shall be open to the public. 

(b) The hearing officer may order 

that any information contained in the 
record be withheld from public disclo-
sure. Any person may object to disclo-
sure of information in the record by fil-
ing a written motion to withhold spe-
cific information with the hearing offi-
cer. The person shall state specific 
grounds for nondisclosure in the mo-
tion. 

(c) The hearing officer shall grant the 

motion to withhold information from 
public disclosure if the hearing officer 
determines that disclosure would be in 
violation of the Privacy Act, would re-
veal trade secrets or privileged or con-
fidential commercial or financial infor-

mation, or is otherwise prohibited by 
law. 

§ 16.227

Standard of proof. 

The hearing officer shall issue an ini-

tial decision or rule in a party’s favor 
only if the decision or ruling is in ac-
cordance with law and supported by a 
preponderance of the reliable, pro-
bative, and substantial evidence con-
tained in the record. 

[Amdt. 16–1, as amended at 78 FR 56147, Sept. 
12, 2013] 

§ 16.229

Burden of proof. 

As used in this subpart, the burden of 

proof is as follows: 

(a) The burden of proof of noncompli-

ance with an Act or any regulation, 
order, agreement or document of con-
veyance issued under the authority of 
an Act is on the agency. 

(b) Except as otherwise provided by 

statute or rule, the proponent of a mo-
tion, request, or order has the burden 
of proof. 

(c) A party who has asserted an af-

firmative defense has the burden of 
proving the affirmative defense. 

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as 
amended at Amdt. 16–1, 78 FR 56147, Sept. 12, 
2013] 

§ 16.231

Offer of proof. 

A party whose evidence has been ex-

cluded by a ruling of the hearing offi-
cer may offer the evidence on the 
record when filing an appeal. 

§ 16.233

Record. 

(a)  Exclusive record. The transcript of 

all testimony in the hearing, all exhib-
its received into evidence, all motions, 
applications requests and rulings, all 
documents included in the hearing 
record and the Director’s Determina-
tion shall constitute the exclusive 
record for decision in the proceedings 
and the basis for the issuance of any 
orders. 

(b)  Examination and copy of record. 

copy of the record will be filed by the 
FAA Part 16 Docket Clerk in the Fed-
eral Docket Management System 
(FDMS). Any person desiring to review 
the record may then do so at http:// 
www.regulations.gov. 

[Amdt. 16–1, 78 FR 56147, Sept. 12, 2013] 

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