title-14-part-13-sec13-226

14 CFR Ch. I (1–1–24 Edition)

§ 13.221

discovery order, the administrative law
judge may impose any of the following
sanctions proportional to the party’s
failure to comply with the order:

(1) Strike the relevant portion of a

party’s pleadings;

(2) Preclude prehearing or discovery

motions by that party;

(3) Preclude admission of the rel-

evant portion of a party’s evidence at
the hearing; or

(4) Preclude the relevant portion of

the testimony of that party’s witnesses
at the hearing.

§ 13.221

Notice of hearing.

(a)

Notice. The administrative law

judge must provide each party with no-
tice of the date, time, and location of
the hearing at least 60 days before the
hearing date.

(b)

Date, time, and location of the hear-

ing. The administrative law judge to
whom the proceedings have been as-
signed must set a reasonable date,
time, and location for the hearing. The
administrative law judge must consider
the need for discovery and any joint
procedural or discovery schedule sub-
mitted by the parties when deter-
mining the hearing date. The adminis-
trative law judge must give due regard
to the convenience of the parties, the
location where the majority of the wit-
nesses reside or work, and whether the
location is served by a scheduled air
carrier.

(c)

Earlier hearing. With the consent

of the administrative law judge, the
parties may agree to hold the hearing
on an earlier date than the date speci-
fied in the notice of hearing.

§ 13.222

Evidence.

(a)

General. A party is entitled to

present the party’s case or defense by
oral, documentary, or demonstrative
evidence, to submit rebuttal evidence,
and to conduct any cross-examination
that may be required for a full and true
disclosure of the facts.

(b)

Admissibility. A party may intro-

duce any oral, documentary, or demon-
strative evidence in support of the par-
ty’s case or defense. The administra-
tive law judge must admit any relevant
oral, documentary, or demonstrative
evidence introduced by a party, but

must exclude irrelevant, immaterial,
or unduly repetitious evidence.

(c)

Hearsay evidence. Hearsay evi-

dence is admissible in proceedings gov-
erned by this subpart. The fact that
evidence submitted by a party is hear-
say goes only to the weight of the evi-
dence and does not affect its admissi-
bility.

§ 13.223

Standard of proof.

The administrative law judge must

issue an initial decision or must rule in
a party’s favor only if the decision or
ruling is supported by, and in accord-
ance with, the reliable, probative, and
substantial evidence contained in the
record. In order to prevail, the party
with the burden of proof must prove
the party’s case or defense by a prepon-
derance of reliable, probative, and sub-
stantial evidence.

§ 13.224

Burden of proof.

(a) Except in the case of an affirma-

tive defense, the burden of proof 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.

firmative defense has the burden of
proving the affirmative defense.

§ 13.225

Offer of proof.

A party whose evidence has been ex-

cluded by a ruling of the administra-
tive law judge may offer the evidence
for the record on appeal.

§ 13.226

Public disclosure of informa-

tion.

(a) The administrative law judge may

order that any information contained
in the record be withheld from public
disclosure. Any party or interested per-
son may object to disclosure of infor-
mation in the record by filing and serv-
ing a written motion to withhold spe-
cific information in accordance with
§§ 13.210 and 13.211 respectively. A party
may file a motion seeking to protect
from public disclosure information
contained in a document that the party
is filing at the same time it files the
document. The person or party must
state the specific grounds for non-
disclosure in the motion.

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§ 13.230

(b) The administrative law judge

must grant the motion to withhold if,
based on the motion and any response
to the motion, the administrative law
judge determines that: Disclosure
would be detrimental to aviation safe-
ty; disclosure would not be in the pub-
lic interest; or the information is not
otherwise required to be made avail-
able to the public.

§ 13.227

Expert or opinion witnesses.

An employee of the agency may not

be called as an expert or opinion wit-
ness for any party other than the FAA
in any proceeding governed by this sub-
part. An employee of a respondent may
not be called by an agency attorney as
an expert or opinion witness for the
FAA in any proceeding governed by
this subpart to which the respondent is
a party.

§ 13.228

Subpoenas.

(a)

Request for subpoena. The adminis-

trative law judge, upon application by
any party to the proceeding, may issue
subpoenas requiring the attendance of
witnesses or the production of docu-
ments or tangible things at a hearing
or for the purpose of taking deposi-
tions, as permitted by law. A request
for a subpoena must show its general
relevance and reasonable scope. The
party must serve the subpoena on the
witness or the holder of the documents
or tangible items as permitted by ap-
plicable statute. A request for a sub-
poena must be filed and served in ac-
cordance with §§ 13.210 and 13.211, re-
spectively. Absent good cause shown,
the filing and service must be com-
pleted as follows:

(1) Not later than 15 days before a

scheduled deposition under the sub-
poena; or

(2) Not later than 30 days before a

scheduled hearing where attendance at
the hearing is sought.

(b)

Motion to quash or modify the sub-

poena. A party, or any person upon
whom a subpoena has been served, may
file in the FAA Hearing Docket a mo-
tion to quash or modify the subpoena
and must serve a copy on the adminis-
trative law judge and each party at or
before the time specified in the sub-
poena for compliance. The movant
must describe, in detail, the basis for

the motion to quash or modify the sub-
poena including, but not limited to, a
statement that the testimony, docu-
ment, or tangible evidence is not rel-
evant to the proceeding, that the sub-
poena is not reasonably tailored to the
scope of the proceeding, or that the
subpoena is unreasonable and oppres-
sive. A motion to quash or modify the
subpoena will stay the effect of the
subpoena pending a decision by the ad-
ministrative law judge on the motion.

(c)

Enforcement of subpoena. Upon a

showing that a person has failed or re-
fused to comply with a subpoena, a
party may apply to the appropriate
U.S. district court to seek judicial en-
forcement of the subpoena.

§ 13.229

Witness fees.

(a)

General. The party who applies for

a subpoena to compel the attendance of
a witness at a deposition or hearing, or
the party at whose request a witness
appears at a deposition or hearing,
must pay the witness fees described in
this section.

(b)

Amount. Except for an employee

of the agency who appears at the direc-
tion of the agency, a witness who ap-
pears at a deposition or hearing is enti-
tled to the same fees and allowances
provided for under 28 U.S.C. 1821.

§ 13.230

Record.

(a)

Exclusive record. The pleadings,

transcripts of the hearing and pre-
hearing conferences, exhibits admitted
into evidence, rulings, motions, appli-
cations, requests, briefs, and responses
thereto, constitute the exclusive record
for decision of the proceedings and the
basis for the issuance of any orders in
the proceeding. Any proceedings re-
garding the disqualification of an ad-
ministrative law judge must be in-
cluded in the record. Though only ex-
hibits admitted into evidence are part
of the record before an administrative
law judge, evidence proffered but not
admitted is also part of the record on
appeal, as provided by § 13.225.

(b)

Examination and copying of record.

The parties may examine the record at
the FAA Hearing Docket and may ob-
tain copies of the record upon payment
of applicable fees. Any other person
may obtain copies of the releasable