title-14-part-16-sec16-103

103

Federal Aviation Administration, DOT

§ 16.103

graph (b) of this section, within 30 days
after the date of service of the initial
determination, a party adversely af-
fected by the Director’s Determination
may file in accordance with § 16.13 and
serve in accordance with § 16.15 a simul-
taneous Notice of Appeal and Brief.

(d) A reply to an appeal brief may be

filed within 20 days after the date of
service of the appeal.

(e) On appeal, the Associate Adminis-

trator will consider the issues ad-
dressed in any order on a motion to
dismiss or motion for summary judg-
ment and any issues accepted in the
Director’s Determination using the fol-
lowing analysis:

(1) Are the findings of fact each sup-

ported by a preponderance of reliable,
probative, and substantial evidence
contained in the record?

(2) Are conclusions made in accord-

ance with law, precedent and policy?

(3) Are the questions on appeal sub-

stantial?

(4) Have any prejudicial errors oc-

curred?

(f) Any new issues or evidence pre-

sented in an appeal or reply will not be
considered unless accompanied by a pe-
tition and good cause found as to why
the new issue or evidence was not pre-
sented to the Director. Such a petition
must:

(1) Set forth the new matter;
(2) Contain affidavits of prospective

witnesses, authenticated documents, or
both, or an explanation of why such
substantiation is unavailable; and

(3) Contain a statement explaining

why such new issue or evidence could
not have been discovered in the exer-
cise of due diligence prior to the date
on which the evidentiary record closed.

(g) The Associate Administrator will

issue a final decision and order within
60 days after the due date of the reply.

(h) If no appeal is filed within the

time period specified in paragraph (c)
of this section, the Director’s Deter-
mination becomes the final decision
and order of the FAA without further
action. A Director’s Determination
that becomes final, because there is no
administrative appeal, is not judicially
reviewable.

(i) No requests for rehearing, reargu-

ment, reconsideration, or modification

of a final order will be considered with-
out a finding of good cause.

[Amdt. 16–1, 78 FR 56145, Sept. 12, 2013]

§ 16.34

Consent orders.

(a) The parties may agree at any

time before the issuance of a final
agency decision to dispose of the case
by proposing a consent order. Good
faith efforts to resolve a complaint
through issuance of a consent order
may continue throughout the adminis-
trative process. However, except as
provided in § 16.11(a), such efforts may
not serve as the basis for extensions of
the times set forth in this part.

(b) A proposal for a consent order,

specified in paragraph (a) of this sec-
tion, shall include:

(1) A proposed consent order;
(2) An admission of all jurisdictional

facts; and

(3) An express waiver of the right to

further procedural steps and of all
rights of judicial review.

case by issuance of a consent order be-
fore the FAA issues a Director’s Deter-
mination, the proposal for a consent
order is submitted jointly by the par-
ties to the Director, together with a re-
quest to adopt the consent order and
dismiss the case. The Director may
issue the consent order as an order of
the FAA and terminate the proceeding.

[Amdt. 16–1, 78 FR 56145, Sept. 12, 2013]

Subpart D—Special Rules Applica-

ble to Proceedings Initiated
by the FAA

§ 16.101

Basis for the initiation of

agency action.

The FAA may initiate its own inves-

tigation of any matter within the ap-
plicability of this part without having
received a complaint. The investiga-
tion may include, without limitation,
any of the actions described in
§ 16.29(b).

§ 16.103

Notice of investigation.

Following the initiation of an inves-

tigation under § 16.101, the FAA sends a
notice to the person(s) subject to inves-
tigation. The notice will set forth the
areas of the agency’s concern and the
reasons therefor; request a response to

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14 CFR Ch. I (1–1–24 Edition)

§ 16.105

the notice within 30 days of the date of
service; and inform the respondent that
the FAA will, in its discretion, invite
good faith efforts to resolve the mat-
ter.

§ 16.105

Failure to resolve informally.

If the matters addressed in the FAA

notices are not resolved informally, the
FAA may issue a Director’s Determina-
tion under § 16.31.

[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56146, Sept. 12,
2013]

Subpart E—Proposed Orders of

Compliance

§ 16.109

Orders terminating eligibility

for grants, cease and desist orders,
and other compliance orders.

(a) The agency will provide the op-

portunity for a hearing if, in the Direc-
tor’s determination, the agency issues
or proposes to issue an order termi-
nating eligibility for grants pursuant
to 49 U.S.C. 47106(d), an order sus-
pending the payment of grant funds
pursuant to 49 U.S.C. 47111(d); an order
withholding approval of any new appli-
cation to impose a passenger facility
charge pursuant to 49 U.S.C. 47111(e); a
cease and desist order; an order direct-
ing the refund of fees unlawfully col-
lected; or any other compliance order
issued by the Administrator to carry
out the provisions of the Acts, and re-
quired to be issued after notice and op-
portunity for a hearing. In cases in
which a hearing is not required by stat-
ute, the FAA may provide opportunity
for a hearing at its discretion.

(b) In a case in which the agency pro-

vides the opportunity for a hearing, the
Director’s Determination issued under
§ 16.31 will include a statement of the
availability of a hearing under subpart
F of this part.

(1) Within 20 days after service of a

Director’s Determination under § 16.31
that provides an opportunity for a
hearing a person subject to the pro-
posed compliance order may—

(i) Request a hearing under subpart F

of this part;

(ii) Waive hearing and appeal the Di-

rector’s Determination in writing, as
provided in § 16.33;

(iii) File, jointly with a complainant,

a motion to withdraw the complaint
and to dismiss the proposed compliance
action; or

(iv) Submit, jointly with the agency,

a proposed consent order under
§ 16.34(c).

(2) If the respondent fails to file an

appeal in writing within the time peri-
ods provided in paragraph (c) of this
section, the Director’s Determination
becomes final.

the respondent to submit a Corrective
Action Plan or initiate proceedings to
revoke and/or deny the respondent’s
application for Airport Improvement
Program discretionary grants under 49
U.S.C. 47115 and general aviation air-
port grants under 49 U.S.C. 47114(d)
when a Director’s Determination finds
a respondent in noncompliance and
does not provide for a hearing.

(d) In the event that the respondent

fails to submit, in accordance with a
Director’s Determination, a Corrective
Action Plan acceptable to the FAA
within the time provided, unless ex-
tended by the FAA for good cause, and/
or if the respondent fails to complete
the Corrective Action Plan as specified
therein, the Director may initiate ac-
tion to revoke and/or deny applications
for Airport Improvement Program dis-
cretionary grants under 49 U.S.C. 47115
and general aviation airport grants
under 49 U.S.C. 47114(d).

(e) For those violations that cannot

be remedied through corrective action,
the Director may initiate action to re-
voke and/or deny the respondent’s ap-
plications for Airport Improvement
Program discretionary grants under 49
U.S.C. 47115 and general aviation air-
port grants under 49 U.S.C. 47114(d).

(f) When the Director concludes that

the respondent has fully complied with
the Corrective Action Plan and/or when
the Director determines that the re-
spondent has corrected the areas of
noncompliance, the Director will ter-
minate the proceeding.

(g) A complainant’s standing termi-

nates upon the issuance of a Director’s
Determination that finds a respondent
in noncompliance on all identified
issues. The complainant may not ap-
peal the Director’s Determination if