111
Federal Aviation Administration, DOT
§ 16.245
(3) An express waiver of the right to
further procedural steps and of all
rights of judicial review; and
(4) The hearing order, if issued, and
an acknowledgment that the hearing
order may be used to construe the
terms of the consent order.
(c) If the issuance of a consent order
has been agreed upon by all parties to
the hearing, the proposed consent order
shall be filed with the hearing officer,
along with a draft order adopting the
consent decree and dismissing the case,
for the hearing officer’s adoption.
(d) The deadline for the hearing offi-
cer’s initial decision and the final
agency decision is extended by the
amount of days elapsed between the fil-
ing of the proposed consent order with
the hearing officer and the issuance of
the hearing officer’s order continuing
the hearing.
(e) If the agency attorney and spon-
sor agree to dispose of a case by
issuance of a consent order before the
FAA issues a hearing order, the pro-
posal for a consent order is submitted
jointly to the official authorized to
issue a hearing order, together with a
request to adopt the consent order and
dismiss the case. The official author-
ized to issue the hearing order issues
the consent order as an order of the
FAA and terminates the proceeding.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56147, Sept. 12,
2013]
§ 16.245
Associate Administrator re-
view after a hearing.
(a) The Associate Administrator may
transfer to the FAA Assistant Adminis-
trator for Civil Rights the authority to
prepare and issue Final Agency Deci-
sions pursuant to § 16.241 for appeals
from a hearing concerning civil rights
issues.
(b) After a hearing is held, and, after
considering the issues as set forth in
§ 16.245(e), if the Associate Adminis-
trator determines that the hearing offi-
cer’s initial decision or order should be
changed, the Associate Administrator
may:
(1) Make any necessary findings and
issue an order in lieu of the hearing of-
ficer’s initial decision or order, or
(2) Remand the proceeding for any
such purpose as the Associate Adminis-
trator may deem necessary.
(c) If the Associate Administrator
takes review of the hearing officer’s
initial decision on the Associate Ad-
ministrator’s own motion, the Asso-
ciate Administrator will issue a notice
of review within 20 days of the actual
date the initial decision is issued.
(1) The notice sets forth the specific
findings of fact and conclusions of law
in the initial decision that are subject
to review by the Associate Adminis-
trator.
(2) Parties may file one brief on re-
view to the Associate Administrator or
rely on their posthearing brief to the
hearing officer. A brief on review shall
be filed not later than 10 days after
service of the notice of review. Filing
and service of a brief on review shall be
by personal delivery.
(3) The Associate Administrator
issues a final agency decision and order
within 30 days of the due date of the
brief. If the Associate Administrator
finds that the respondent is not in
compliance with any Act or any regu-
lation, agreement or document of con-
veyance issued under such Act, the
final agency order includes a statement
of corrective action, if appropriate.
(d) When the final agency decision
finds a respondent in noncompliance,
and where a respondent fails to prop-
erly seek judicial review of the final
agency decision as set forth in subpart
G of this part, the Associate Adminis-
trator will issue an order remanding
the case to the Director for the fol-
lowing action:
(1) In the event that the respondent
fails to submit, in accordance with the
final agency decision, a Corrective Ac-
tion Plan acceptable to the FAA within
the time provided, unless extended by
the FAA for good cause, and/or if the
respondent fails to complete the Cor-
rective Action Plan as specified there-
in, the Director may initiate action to
revoke and/or deny applications for
Airport Improvement Program grants
issued under 49 U.S.C. 47114(c)–(e) and
47115. When the Director concludes
that the respondent has fully complied
with the Corrective Action Plan, the
Director will issue an Order termi-
nating the proceeding.
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14 CFR Ch. I (1–1–24 Edition)
§ 16.247
(2) 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 grants issued under 49 U.S.C.
47114(c)–(e) and 47115.
(e) On appeal from a hearing officer’s
initial decision, the Associate Adminis-
trator will consider the following ques-
tions:
(1) Are the findings of fact each sup-
ported by a preponderance of reliable,
probative and substantial evidence?
(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
allowed unless accompanied by a cer-
tified petition and good cause found as
to why the new matter was not pre-
sented to the Director. Such a petition
must:
(1) Set forth the new issues or evi-
dence;
(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 matter could not have
been discovered in the exercise of due
diligence prior to the date on which the
evidentiary record closed.
(g) A Final Agency Decision may be
appealed in accordance with subpart G
of this part.
[Amdt. 16–1, 78 FR 56147, Sept. 12, 2013]
Subpart G—Judicial Review
S
OURCE
: Docket No. 27783, 61 FR 54004, Oct.
16, 1996, unless otherwise noted. Redesig-
nated by Amdt. 16–1, 78 FR 56148, Sept. 12,
2013.
§ 16.247
Judicial review of a final deci-
sion and order.
(a) A person may seek judicial re-
view, in a United States Court of Ap-
peals, of a final decision and order of
the Associate Administrator, and of an
order of dismissal with prejudice issued
by the Director, as provided in 49
U.S.C. 46110 or 49 U.S.C. 47106(d) and
47111(d). A party seeking judicial re-
view shall file a petition for review
with the Court not later than 60 days
after the order has been served on the
party or within 60 days after the entry
of an order under 49 U.S.C. 46110.
(b) The following do not constitute
final decisions and orders subject to ju-
dicial review:
(1) An FAA decision to dismiss a
complaint without prejudice, as set
forth in § 16.27;
(2) A Director’s Determination;
(3) An initial decision issued by a
hearing officer at the conclusion of a
hearing;
(4) A Director’s Determination or an
initial decision of a hearing officer be-
comes the final decision of the Asso-
ciate Administrator because it was not
appealed within the applicable time pe-
riods provided under §§ 16.33(c) and
16.241(b).
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re-
designated and amended by Amdt. 16–1, 78 FR
56148, Sept. 12, 2013]
Subpart H—Ex Parte
Communications
S
OURCE
: Docket No. 27783, 61 FR 54004, Oct.
16, 1996, unless otherwise noted. Redesig-
nated at 78 FR 56148, Sept. 12, 2013.
§ 16.301
Prohibited ex parte commu-
nications.
(a) The prohibitions of this section
shall apply from the time a proceeding
is noticed for hearing unless the person
responsible for the communication has
knowledge that it will be noticed, in
which case the prohibitions shall apply
at the time of the acquisition of such
knowledge.
(b) Except to the extent required for
the disposition of ex parte matters as
authorized by law:
(1) No interested person outside the
FAA and no FAA employee partici-
pating as a party shall make or know-
ingly cause to be made to any
decisional employee an ex parte com-
munication relevant to the merits of
the proceeding;
(2) No FAA employee shall make or
knowingly cause to be made to any in-
terested person outside the FAA an ex
parte communication relevant to the
merits of the proceeding; or
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