title-14-part-14

Federal Aviation Administration, DOT

Pt. 14

[84 FR 37068, July 31, 2019, as amended at 86
FR 1753, Jan. 11, 2021; 86 FR 23249, May 3,
2021; 87 FR 15863, Mar. 21, 2022; 88 FR 1122,
Jan. 6, 2023; 88 FR 6971, Feb. 2, 2023; 88 FR
89557, Dec. 28, 2023]

Subpart I—Flight Operational

Quality Assurance Programs

§ 13.401

Flight Operational Quality As-

surance Program: Prohibition
against use of data for enforcement
purposes.

(a)

Applicability. This section applies

to any operator of an aircraft who op-
erates such aircraft under an approved
Flight Operational Quality Assurance
(FOQA) program.

(b)

Definitions. For the purpose of this

section, the terms—

(1)

Flight Operational Quality Assur-

ance (FOQA) program means an FAA-
approved program for the routine col-
lection and analysis of digital flight
data gathered during aircraft oper-
ations, including data currently col-
lected pursuant to existing regulatory
provisions, when such data is included
in an approved FOQA program.

(2)

FOQA data means any digital

flight data that has been collected
from an individual aircraft pursuant to
an FAA-approved FOQA program, re-
gardless of the electronic format of
that data.

(3)

Aggregate FOQA data means the

summary statistical indices that are
associated with FOQA event cat-
egories, based on an analysis of FOQA
data from multiple aircraft operations.

(c)

Requirements. In order for para-

graph (e) of this section to apply, the
operator must submit, maintain, and
adhere to a FOQA Implementation and
Operation Plan that is approved by the
Administrator and which contains the
following elements:

(1) A description of the operator’s

plan for collecting and analyzing flight
recorded data from line operations on a
routine basis, including identification
of the data to be collected;

(2) Procedures for taking corrective

action that analysis of the data indi-
cates is necessary in the interest of
safety;

(3) Procedures for providing the FAA

with aggregate FOQA data;

(4) Procedures for informing the FAA

as to any corrective action being un-

dertaken pursuant to paragraph (c)(2)
of this section.

(d)

Submission of aggregate data. The

operator will provide the FAA with ag-
gregate FOQA data in a form and man-
ner acceptable to the Administrator.

(e)

Enforcement. Except for criminal

or deliberate acts, the Administrator
will not use an operator’s FOQA data
or aggregate FOQA data in an enforce-
ment action against that operator or
its employees when such FOQA data or
aggregate FOQA data is obtained from
a FOQA program that is approved by
the Administrator.

(f)

Disclosure. FOQA data and aggre-

gate FOQA data, if submitted in ac-
cordance with an order designating the
information as protected under part 193
of this chapter, will be afforded the
nondisclosure protections of part 193 of
this chapter.

(g)

Withdrawal of program approval.

The Administrator may withdraw ap-
proval of a previously approved FOQA
program for failure to comply with the
requirements of this chapter. Grounds
for withdrawal of approval may in-
clude, but are not limited to—

(1) Failure to implement corrective

action that analysis of available FOQA
data indicates is necessary in the inter-
est of safety; or

(2) Failure to correct a continuing

pattern of violations following notice
by the agency; or also

(3) Willful misconduct or willful vio-

lation of the FAA regulations in this
chapter.

[Doc. No. FAA–2000–7554, 66 FR 55048, Oct. 31,
2001; Amdt. 13–30, 67 FR 31401, May 9, 2002]

PART 14—RULES IMPLEMENTING

THE EQUAL ACCESS TO JUSTICE
ACT OF 1980

Subpart A—General Provisions

Sec.
14.01

Purpose of these rules.

14.02

Proceedings covered.

14.03

Eligibility of applicants.

14.04

Standards for awards.

14.05

Allowance fees and expenses.

Subpart B—Information Required From

Applicants

14.10

Contents of application.

14.11

Net worth exhibit.

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14 CFR Ch. I (1–1–24 Edition)

§ 14.01

14.12

Documentation of fees and expenses.

Subpart C—Procedures for Considering

Applications

14.20

When an application may be filed.

14.21

Filing and service of documents.

14.22

Answer to application.

14.23

Reply.

14.24

Comments by other parties.

14.25

Settlement.

14.26

Further proceedings.

14.27

Decision.

14.28

Review by FAA decisionmaker.

14.29

Judicial review.

14.30

Payment of award.

UTHORITY

: 5 U.S.C. 504; 49 U.S.C. 106(f),

40113, 46104 and 47122.

OURCE

: Docket No. 25958, 54 FR 46199, Nov.

1, 1989, unless otherwise noted.

Subpart A—General Provisions

§ 14.01

Purpose of these rules.

The Equal Access to Justice Act, 5

U.S.C. 504 (the Act), provides for the
award of attorney fees and other ex-
penses to eligible individuals and enti-
ties who are parties to certain adminis-
trative proceedings (adversary adju-
dications) before the Federal Aviation
Administration (FAA). An eligible
party may receive an award when it
prevails over the FAA, unless the agen-
cy’s position in the proceeding was sub-
stantially justified or special cir-
cumstances make an award unjust. The
rules in this part describe the parties
eligible for awards and the proceedings
that are covered. They also explain
how to apply for awards, and the proce-
dures and standards that the FAA De-
cisionmaker will use to make them. As
used hereinafter, the term ‘‘agency’’
applies to the FAA.

§ 14.02

Proceedings covered.

(a) The Act applies to certain adver-

sary adjudications conducted by the
FAA under 49 CFR part 17 and the Ac-
quisition Management System (AMS).
These are adjudications under 5 U.S.C.
554, in which the position of the FAA is
represented by an attorney or other
representative who enters an appear-
ance and participates in the pro-
ceeding. This subpart applies to pro-
ceedings under 49 U.S.C. 46301, 46302,
and 46303 and to the Default Adjudica-

tive Process under part 17 of this chap-
ter and the AMS.

(b) If a proceeding includes both mat-

ters covered by the Act and matters
specifically excluded from coverage,
any award made will include only fees
and expenses related to covered issues.

be awarded to a party for any portion
of the adversary adjudication in which
such party has unreasonably pro-
tracted the proceedings.

[54 FR 46199, Nov. 1, 1989, as amended by
Amdt. 14–03, 64 FR 32935, June 18, 1999]

§ 14.03

Eligibility of applicants.

(a) To be eligible for an award of at-

torney fees and other expenses under
the Act, the applicant must be a party
to the adversary adjudication for which
it seeks an award. The term ‘‘party’’ is
defined in 5 U.S.C. 504(b)(1)(B) and 5
U.S.C. 551(3). The applicant must show
that it meets all conditions or eligi-
bility set out in this subpart.

(b) The types of eligible applicants

are as follows:

(1) An individual with a net worth of

not more than $2 million at the time
the adversary adjudication was initi-
ated;

(2) The sole owner of an unincor-

porated business who has a net worth
of not more than $7 million, including
both personal and business interests,
and not more than 500 employees at the
time the adversary adjudication was
initiated;

(3) A charitable or other tax-exempt

organization described in section
501(c)(3) of the Internal Revenue Code
(26 U.S.C. 501(c)(3)) with not more than
500 employees at the time the adver-
sary adjudication was initiated; and

(4) A cooperative association as de-

fined in section 15(a) of the Agricul-
tural Marketing Act (12 U.S.C. 1141j(a))
with not more than 500 employees at
the time the adversary adjudication
was initiated; and

(5) Any other partnership, corpora-

tion, association, or public or private
organization with a net worth of not
more than $7 million and not more
than 500 employees at the time the ad-
versary adjudication was initiated.

net worth and number of employees of

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§ 14.05

an applicant shall be determined as of
the date the proceeding was initiated.

(d) An applicant who owns an unin-

corporated business will be considered
an ‘‘individual’’ rather than a ‘‘sole
owner of an unincorporated business’’
if the issues on which the applicant
prevails are related primarily to per-
sonal interests rather than to business
interest.

(e) The employees of an applicant in-

clude all persons who regularly per-
form services for remuneration for the
applicant, under the applicant’s direc-
tion and control. Part-time employees
shall be included on a proportional
basis.

(f) The net worth and number of em-

ployees of the applicant and all of its
affiliates shall be aggregated to deter-
mine eligibility. Any individual, cor-
poration, or other entity that directly
or indirectly controls or owns a major-
ity of the voting shares or other inter-
est of the applicant, or any corporation
or other entity of which the applicant
directly or indirectly owns or controls
a majority of the voting shares or
other interest, will be considered an af-
filiate for purposes of this part, unless
the ALJ or adjudicative officer deter-
mines that such treatment would be
unjust and contrary to the purposes of
the Act in light of the actual relation-
ship between the affiliated entities. In
addition, the ALJ or adjudicative offi-
cer may determine that financial rela-
tionships of the applicant, other than
those described in this paragraph, con-
stitute special circumstances that
would make an award unjust.

(g) An applicant that participates in

a proceeding primarily on behalf of one
or more other persons or entities that
would be ineligible if not itself eligible
for an award.

[54 FR 46199, Nov. 1, 1989, as amended by
Amdt. 14–03, 64 FR 32935, June 18, 1999]

§ 14.04

Standards for awards.

(a) A prevailing applicant may re-

ceive an award for attorney fees and
other expenses incurred in connection
with a proceeding, or in a significant
and discrete substantive portion of the
proceeding, unless the position of the
agency over which the applicant has
prevailed was substantially justified.
Whether or not the position of the FAA

was substantially justified shall be de-
termined on the basis of the record (in-
cluding the record with respect to the
action or failure to act by the agency
upon which the civil action is based)
which was made in the civil action for
which fees and other expenses are
sought. The burden of proof that an
award should not be made to an eligi-
ble prevailing applicant is on the agen-
cy counsel, who may avoid an award by
showing that the agency’s position was
reasonable in law and fact.

(b) An award will be reduced or de-

nied if the applicant has unduly or un-
reasonably protracted the proceeding
or if special circumstances make the
award sought unjust.

§ 14.05

Allowance fees and expenses.

(a) Awards will be based on rates cus-

tomarily charged by persons engaged
in the business of acting as attorneys,
agents, and expert witnesses, even if
the services were made available with-
out charge or at a reduced rate to the
applicant.

(b) No award for the fee of an attor-

ney or agent under this part may ex-
ceed $125 per hour, or such rate as pre-
scribed by 5 U.S.C. 504. No award to
compensate an expert witness may ex-
ceed the highest rate at which the
agency pays expert witnesses. However,
an award may also include the reason-
able expenses of the attorney, agent, or
witness as a separate item, if the attor-
ney, agent, or witness ordinarily
charges clients separately for such ex-
penses.

of the fee sought for an attorney,
agent, or expert witness, the ALJ or
adjudicative officer shall consider the
following:

(1) If the attorney, agent, or witness

is in private practice, his or her cus-
tomary fee for similar services, or if an
employee of the applicant, the fully al-
located cost of the services;

(2) The prevailing rate for similar

services in the community in which the
attorney, agent, or witness ordinarily
performs services;

(3) The time actually spent in the

representation of the applicant;

(4) The time reasonably spent in light

of the difficulty or complexity of the
issues in the proceeding; and

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§ 14.10

(5) Such other factors as may bear on

the value of the services provided.

(d) The reasonable cost of any study,

analysis, engineering report, test,
project, or similar matter prepared on
behalf of a party may be awarded, to
the extent that the charge for the serv-
ice does not exceed the prevailing rate
for similar services, and the study or
other matter was necessary for prepa-
ration of the applicant’s case.

(e) Fees may be awarded only for

work performed after the issuance of a
complaint, or in the Default Adjudica-
tive Process for a protest or contract
dispute under part 17 of this chapter
and the AMS.

[Amdt. 13–18, 53 FR 34655, Sept. 7, 1988, as
amended by Amdt. 14–1, 55 FR 15131, Apr. 20,
1990; Amdt. 14–03, 64 FR 32935, June 18, 1999]

Subpart B—Information Required

From Applicants

§ 14.10

Contents of application.

(a) An application for an award of

fees and expenses under the Act shall
identify the applicant and the pro-
ceeding for which an award is sought.
The application shall show that the ap-
plicant has prevailed and identify the
position of the agency in the pro-
ceeding that the applicant alleges was
not substantially justified. Unless the
applicant is an individual, the applica-
tion shall also state the number of em-
ployees of the applicant and describe
briefly the type and purpose of its or-
ganization or business.

(b) The application shall also include

a statement that the applicant’s net
worth does not exceed $2 million (if an
individual) or $7 million (for all other
applicants, including their affiliates)
at the time the adversary adjudication
was initiated. However, an applicant
may omit this statement if:

(1) It attaches a copy of a ruling by

the Internal Revenue Service that it
qualifies as an organization described
in section 501(c)(3) of the Internal Rev-
enue Code (26 U.S.C. 501(c)(3)), or in the
case of a tax-exempt organization not
required to obtain a ruling from the In-
ternal Revenue Service on its exempt
status, a statement that describes the
basis for the applicant’s belief that it
qualifies under such section; or

(2) It states that it is a cooperative

association as defined in section 15(a)
of the Agricultural Marketing Act (12
U.S.C. 1141j(a)).

amount of fees and expenses for which
an award is sought.

(d) The application may also include

any other matters that the applicant
wishes this agency to consider in deter-
mining whether and in what amount an
award should be made.

(e) The application shall be signed by

the applicant or an authorized officer
or attorney for the applicant. It shall
also contain or be accompanied by a
written verification under oath or
under penalty of perjury that the infor-
mation provided in the application is
true and correct.

(f) If the applicant is a partnership,

corporation, association, organization,
or sole owner of an unincorporated
business, the application shall state
that the applicant did not have more
than 500 employees at the time the ad-
versary adjudication was initiated, giv-
ing the number of its employees and
describing briefly the type and purpose
of its organization or business.

§ 14.11

Net worth exhibit.

(a) Each applicant except a qualified

tax-exempt organization or cooperative
association must provide with its ap-
plication a detailed exhibit showing
the net worth of the applicant and any
affiliates when the proceeding was ini-
tiated. If any individual, corporation,
or other entity directly or indirectly
controls or owns a majority of the vot-
ing shares or other interest of the ap-
plicant, or if the applicant directly or
indirectly owns or controls a majority
of the voting shares or other interest of
any corporation or other entity, the
exhibit must include a showing of the
net worth of all such affiliates or of the
applicant including the affiliates. The
exhibit may be in any form convenient
to the applicant that provides full dis-
closure of the applicant’s and its affili-
ates’ assets and liabilities and is suffi-
cient to determine whether the appli-
cant qualifies under the standards in
this part. The administrative law judge
may require an applicant to file addi-
tional information to determine the
eligibility for an award.

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§ 14.21

(b) The net worth exhibit shall de-

scribe any transfers of assets from, or
obligations incurred by, the applicant
or any affiliate, occurring in the one-
year period prior to the date on which
the proceeding was initiated, that re-
duced the net worth of the applicant
and its affiliates below the applicable
net worth ceiling. If there were no such
transactions, the applicant shall so
state.

will be included in the public record of
the proceeding. However, an applicant
that objects to public disclosure of the
net worth exhibit, or any part of it,
may submit that portion of the exhibit
directly to the ALJ or adjudicative of-
ficer in a sealed envelope labeled
‘‘Confidential Financial Information,’’
accompanied by a motion to withhold
the information.

(1) The motion shall describe the in-

formation sought to be withheld and
explain, in detail, why it should be ex-
empt under applicable law or regula-
tion, why public disclosure would ad-
versely affect the applicant, and why
disclosure is not required in the public
interest.

(2) The net worth exhibit shall be

served on the FAA counsel, but need
not be served on any other party to the
proceeding.

(3) If the ALJ or adjudicative officer

finds that the net worth exhibit, or any
part of it, should not be withheld from
disclosure, it shall be placed in the
public record of the proceeding. Other-
wise, any request to inspect or copy
the exhibit shall be disposed of in ac-
cordance with the FAA’s established
procedures.

[54 FR 46199, Nov. 1, 1989, as amended by
Amdt. 14–03, 64 FR 32935, June 18, 1999]

§ 14.12

Documentation of fees and ex-

penses.

The application shall be accompanied

by full documentation of the fees and
expenses, including the cost of any
study, analysis, engineering report,
test, project or similar matter, for
which an award is sought. A separate
itemized statement shall be submitted
for each professional firm or individual
whose services are covered by the ap-
plication, showing the hours spent in
connection with the proceedings by

each individual, a description of the
specific services performed, the rate at
which each fee has been computed, any
expenses for which reimbursement is
sought, the total amount claimed, and
the total amount paid or payable by
the applicant or by any other person or
entity for the services provided. The
administrative law judge may require
the applicant to provide vouchers, re-
ceipts, or other substantiation for any
expenses claimed.

Subpart C—Procedures for

Considering Applications

§ 14.20

When an application may be

filed.

(a) An application may be filed when-

ever the applicant has prevailed in the
proceeding, but in no case later than 30
days after the FAA Decisionmaker’s
final disposition of the proceeding, or
service of the order of the Adminis-
trator in a proceeding under the AMS.

(b) If review or reconsideration is

sought or taken of a decision to which
an applicant believes it has prevailed,
proceedings for the award of fees shall
be stayed pending final disposition of
the underlying controversy.

disposition means the later of:

(1) Under part 17 of this chapter and

the AMS, the date on which the order
of the Administrator is served;

(2) The date on which an unappealed

initial decision becomes administra-
tively final;

(3) Issuance of an order disposing of

any petitions for reconsideration of the
FAA Decisionmaker’s final order in the
proceeding;

(4) If no petition for reconsideration

is filed, the last date on which such a
petition could have been filed; or

(5) Issuance of a final order or any

other final resolution of a proceeding,
such as a settlement or voluntary dis-
missal, which is not subject to a peti-
tion for reconsideration.

[54 FR 46199, Nov. 1, 1989, as amended by
Amdt. 14–03, 64 FR 32936, June 18, 1999]

§ 14.21

Filing and service of docu-

ments.

Any application for an award or

other pleading or document related to
an application shall be filed and served

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§ 14.22

on all parties to the proceeding in the
same manner as other pleadings in the
proceeding, except as provided in
§ 14.11(b) for confidential financial in-
formation. Where the proceeding was
held under part 17 of this chapter and
the AMS, the application shall be filed
with the FAA’s attorney and with the
Office of Dispute Resolution for Acqui-
sition.

[Doc. No. FAA–1998–4379, 64 FR 32936, June 18,
1999]

§ 14.22

Answer to application.

(a) Within 30 days after service of an

application, counsel representing the
agency against which an award is
sought may file an answer to the appli-
cation. Unless agency counsel requests
an extension of time for filing or files
a statement of intent to negotiate
under paragraph (b) of the section, fail-
ure to file an answer within the 30-day
period may be treated as a consent to
the award requested.

(b) If the FAA’s counsel and the ap-

plicant believe that the issues in the
fee application can be settled, they
may jointly file a statement of their
intent to negotiate a settlement. The
filing of this statement shall extend
the time for filing an answer for an ad-
ditional 30 days, and further extensions
may be granted by the ALJ or adju-
dicative officer upon request by the
FAA’s counsel and the applicant.

any objections to the award requested
and identify the facts relied on in sup-
port of agency counsel’s position. If the
answer is based on any alleged facts
not already in the record of the pro-
ceeding, agency counsel shall include
with the answer either supporting affi-
davits or a request for further pro-
ceedings under § 14.26.

[54 FR 46199, Nov. 1, 1989, as amended by
Amdt. 14–03, 64 FR 32936, June 18, 1999]

§ 14.23

Reply.

Within 15 days after service of an an-

swer, the applicant may file a reply. If
the reply is based on any alleged facts
not already in the record of the pro-
ceeding, the applicant shall include
with the reply either supporting affida-
vits or a request for further pro-
ceedings under § 14.26.

§ 14.24

Comments by other parties.

Any party to a proceeding other than

the applicant and the FAA’s counsel
may file comments on an application
within 30 days after it is served, or on
an answer within 15 days after it is
served. A commenting party may not
participate further in proceedings on
the application unless the ALJ or adju-
dicative officer determines that the
public interest requires such participa-
tion in order to permit full exploration
of matters raised in the comments.

[Doc. No. FAA–1998–4379, 64 FR 32936, June 18,
1999]

§ 14.25

Settlement.

The applicant and agency counsel

may agree on a proposed settlement of
the award before final action on the ap-
plication, either in connection with a
settlement of the underlying pro-
ceeding, or after the underlying pro-
ceeding has been concluded. If a pre-
vailing party and agency counsel agree
on a proposed settlement of an award
before an application has been filed,
the application shall be filed with the
proposed settlement.

§ 14.26

Further proceedings.

(a) Ordinarily the determination of

an award will be made on the basis of
the written record; however, on request
of either the applicant or agency coun-
sel, or on his or her own initiative, the
ALJ or adjudicative officer assigned to
the matter may order further pro-
ceedings, such as an informal con-
ference, oral argument, additional
written submissions, or an evidentiary
hearing. Such further proceedings shall
be held only when necessary for full
and fair resolution of the issues arising
from the application and shall be con-
ducted as promptly as possible.

(b) A request that the administrative

law judge order further proceedings
under this section shall specifically
identify the information sought or the
disputed issues and shall explain why
the additional proceedings are nec-
essary to resolve the issues.

[54 FR 46199, Nov. 1, 1989, as amended by
Amdt. 14–03, 64 FR 32936, June 18, 1999]

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§ 14.30

§ 14.27

Decision.

(a) The ALJ shall issue an initial de-

cision on the application within 60 days
after completion of proceedings on the
application.

(b) An adjudicative officer in a pro-

ceeding under part 17 of this chapter
and the AMS shall prepare a findings
and recommendations for the Office of
Dispute Resolution for Acquisition.

(b) of this section shall include written
findings and conclusions on the appli-
cant’s eligibility and status as pre-
vailing party and an explanation of the
reasons for any difference between the
amount requested and the amount
awarded. The decision shall also in-
clude, if at issue, findings on whether
the FAA’s position was substantially
justified, or whether special cir-
cumstances make an award unjust.

[Doc. No. FAA–1998–4379, 64 FR 32936, June 18,
1999]

§ 14.28

Review by FAA decisionmaker.

(a) In proceedings other than those

under part 17 of this chapter and the
AMS, either the applicant or the FAA
counsel may seek review of the initial
decision on the fee application in ac-
cordance with subpart G of part 13 of
this chapter, specifically § 13.233. Addi-
tionally, the FAA Decisionmaker may
decide to review the decision on his/her
own initiative. If neither the applicant
nor the FAA’s counsel seeks review
within 30 days after the decision is
issued, it shall become final. Whether
to review a decision is a matter within
the discretion of the FAA Decision-
maker. If review is taken, the FAA De-
cisionmaker will issue a final decision
on the application or remand the appli-
cation to the ALJ who issue the initial
fee award determination for further
proceedings.

(b) In proceedings under part 17 of

this chapter and the AMS, the adju-
dicative officer shall prepare findings
and recommendations for the Office of
Dispute Resolution for Acquisition
with recommendations as to whether
or not an award should be made, the
amount of the award, and the reasons
therefor. The Office of Dispute Resolu-
tion for Acquisition shall submit a rec-
ommended order to the Administrator

after the completion of all submissions
related to the EAJA application. Upon
the Administrator’s action, the order
shall become final, and may be re-
viewed under 49 U.S.C. 46110.

[Doc. No. FAA–1998–4379, 64 FR 32936, June 18,
1999, as amended at 70 FR 8238, Feb. 18, 2005]

§ 14.29

Judicial review.

If an applicant is dissatisfied with

the determination of fees and other ex-
penses made under this subsection,
pursuant 5 U.S.C. 504(c)(2), that appli-
cant may, within thirty (30) days after
the determination is made, appeal the
determination to the court of the
United States having jurisdiction to re-
view the merits of the underlying deci-
sion of the FAA adversary adjudica-
tion. The court’s determination on any
appeal heard under this paragraph
shall be based solely on the factual
record made before the FAA. The court
may modify the determination of fees
and other expenses only if the court
finds that the failure to make an award
of fees and other expenses, or the cal-
culation of the amount of the award,
was unsupported by substantial evi-
dence.

§ 14.30

Payment of award.

An applicant seeking payment of an

award shall submit to the disbursing
official of the FAA a copy of the FAA
Decisionmaker’s final decision grant-
ing the award, accompanied by a state-
ment that the applicant will not seek
review of the decision in the United
States courts. Applications for award
grants in cases involving the FAA shall
be sent to: The Office of Accounting
and Audit, AAA–1, Federal Aviation
Administration, 800 Independence Ave-
nue, SW., Washington, DC 20591. The
agency will pay the amount awarded to
the applicant within 60 days, unless ju-
dicial review of the award or of the un-
derlying decision of the adversary ad-
judication has been sought by the ap-
plicant or any other party to the pro-
ceeding.

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