title-14-part-16-sec16-223

108

14 CFR Ch. I (1–1–24 Edition)

§ 16.217

(2) Such depositions will be allowed

only with the specific written permis-
sion of the Chief Counsel or his or her
designee.

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

§ 16.217

Witnesses.

(a) Each party may designate as a

witness any person who is able and
willing to give testimony that is rel-
evant and material to the issues in the
hearing case, subject to the limitation
set forth in paragraph (b) of this sec-
tion.

(b) The hearing officer may exclude

testimony of witnesses that would be
irrelevant, immaterial, or unduly rep-
etitious.

by counsel. Counsel representing a
nonparty witness has no right to exam-
ine the witness or otherwise partici-
pate in the development of testimony.

§ 16.219

Subpoenas.

(a)

Request for subpoena. A party may

apply to the hearing officer, within the
time specified for such applications in
the prehearing conference report, for a
subpoena to compel testimony at a
hearing or to require the production of
documents only from the following per-
sons:

(1) Another party;
(2) An officer, employee, or agent of

another party;

(3) Any other person named in the

complaint as participating in or bene-
fiting from the actions of the respond-
ent alleged to have violated any Act;

(4) An officer, employee, or agent of

any other person named in the com-
plaint as participating in or benefiting
from the actions of the respondent al-
leged to have violated any Act.

(b)

Issuance and service of subpoena.

(1) The hearing officer issues the sub-
poena if the hearing officer determines
that the evidence to be obtained by the
subpoena is relevant and material to
the resolution of the issues in the case.

(2) Subpoenas shall be served by per-

sonal service, or upon an agent des-
ignated in writing for the purpose, or
by certified mail, return receipt ad-
dressed to such person or agent. When-
ever service is made by registered or

certified mail, the date of mailing shall
be considered as the time when service
is made.

(3) A subpoena issued under this part

is effective throughout the United
States or any territory or possession
thereof.

(c)

Motions to quash or modify sub-

poena. (1) A party or any person upon
whom a subpoena has been served may
file a motion to quash or modify the
subpoena with the hearing officer at or
before the time specified in the sub-
poena for the filing of such motions.
The applicant shall describe in detail
the basis for the application to quash
or modify the subpoena including, but
not limited to, a statement that the
testimony, document, or tangible evi-
dence is not relevant to the proceeding,
that the subpoena is not reasonably
tailored to the scope of the proceeding,
or that the subpoena is unreasonable
and oppressive.

(2) A motion to quash or modify the

subpoena stays the effect of the sub-
poena pending a decision by the hear-
ing officer on the motion.

§ 16.221

Witness fees.

(a) The party on whose behalf a wit-

ness appears is responsible for paying
any witness fees and mileage expenses.

(b) Except for employees of the

United States summoned to testify as
to matters related to their public em-
ployment, witnesses summoned by sub-
poena shall be paid the same fees and
mileage expenses as are paid to a wit-
ness in a court of the United States in
comparable circumstances.

§ 16.223

Evidence.

(a)

General. A party may submit di-

rect and rebuttal evidence in accord-
ance with this section.

(b)

Requirement for written testimony

and evidence. Except in the case of evi-
dence obtained by subpoena, or in the
case of a special ruling by the hearing
officer to admit oral testimony, a par-
ty’s direct and rebuttal evidence shall
be submitted in written form in ad-
vance of the oral hearing pursuant to
the schedule established in the hearing
officer’s prehearing conference report.
Written direct and rebuttal fact testi-
mony shall be certified by the witness
as true and correct. Subject to the

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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.

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.

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. A

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]