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. 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]
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