103 

Federal Aviation Administration, DOT 

§ 16.103 

(c) In the cases described in para-

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. 

(c) If the parties agree to dispose of a 

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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