92
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§ 15.113
the adverse judgment, the publisher
shall—
(1) Give notice to the FAA as re-
quired by § 15.107(d) of this part;
(2) Submit a copy of the trial court’s
decision to the FAA Chief Counsel not
more than 5 business days after the ad-
verse judgment is rendered; and
(3) If an appeal is taken from the ad-
verse judgment, submit a copy of the
appellate decision to the FAA Chief
Counsel not more than 30 days after
that decision is rendered.
(d) Within 60 days after receipt of the
trial court’s decision, the Adminis-
trator by registered mail will—
(1) Notify the publisher that indem-
nification is required under this part;
(2) Request that the publisher appeal
the trial court’s adverse decision; or
(3) Notify the publisher that it is not
entitled to indemnification under this
part and briefly state the basis for the
denial.
§ 15.113
Indemnification agreements.
(a) Upon a finding of the Adminis-
trator that indemnification is required
under this part, and after obtaining the
concurrence of the United States De-
partment of Justice, the FAA will
promptly enter into an indemnification
agreement providing for the payment
of the costs specified in paragraph (c)
of this section.
(b) The indemnification agreement
will be signed by the Chief Counsel and
the publisher.
(c) The FAA will indemnify the pub-
lisher for—
(1) Compensatory damages awarded
by the court against the publisher;
(2) Reasonable costs and fees, includ-
ing reasonable attorney fees at a rate
not to exceed that permitted under the
Equal Access to Justice Act (5 U.S.C.
504), and any postjudgment interest, if
the publisher conducts a good faith de-
fense, or pursues a good faith appeal, at
the request, or with the concurrence, of
the FAA.
(d) Except as otherwise provided in
this section, the FAA will not indem-
nify the publisher for—
(1) Punitive or exemplary damages;
(2) Civil or criminal fines or any
other litigation sanctions;
(3) Postjudgment interest;
(4) Costs;
(5) Attorney fees; or
(6) Other incidental expenses.
(e) The indemnification agreement
must provide that the Government will
be subrogated to all claims or rights of
the publisher, including third-party
claims, cross-claims, and counter-
claims.
§ 15.115
Payment.
After execution of the indemnifica-
tion agreement, the FAA will submit
the agreement to the United States De-
partment of Justice and request pay-
ment, in accordance with the agree-
ment, from the Judgment Fund.
PART 16—RULES OF PRACTICE FOR
FEDERALLY-ASSISTED AIRPORT
ENFORCEMENT PROCEEDINGS
Subpart A—General Provisions
Sec.
16.1
Applicability and description of part.
16.3
Definitions.
16.5
Separation of functions.
Subpart B—General Rules Applicable to
Complaints, Proceedings Initiated by
the FAA, and Appeals
16.11
General processes.
16.13
Filing of documents.
16.15
Service of documents on the parties
and the agency.
16.17
Computation of time.
16.19
Motions.
Subpart C—Special Rules Applicable to
Complaints
16.21
Pre-complaint resolution.
16.23
Pleadings.
16.25
Dismissals.
16.26
Motions to dismiss and motions for
summary judgment.
16.27
Incomplete complaints.
16.29
Investigations.
16.31
Director’s determinations after inves-
tigations.
16.33
Final decisions without hearing.
16.34
Consent orders.
Subpart D—Special Rules Applicable to
Proceedings Initiated by the FAA
16.101
Basis for the initiation of agency ac-
tion.
16.103
Notice of investigation.
16.105
Failure to resolve informally.
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§ 16.1
Subpart E—Proposed Orders of
Compliance
16.109
Orders terminating eligibility for
grants, cease and desist orders, and other
compliance orders.
Subpart F—Hearings
16.201
Notice and order of hearing.
16.202
Powers of a hearing officer.
16.203
Appearances, parties, and rights of
parties.
16.207
Intervention and other participation.
16.209
Extension of time.
16.211
Prehearing conference.
16.213
Discovery.
16.215
Depositions.
16.217
Witnesses.
16.219
Subpoenas.
16.221
Witness fees.
16.223
Evidence.
16.225
Public disclosure of evidence.
16.227
Standard of proof.
16.229
Burden of proof.
16.231
Offer of proof.
16.233
Record.
16.235
Argument before the hearing officer.
16.237
Waiver of procedures.
16.241
Initial decisions, orders, and appeals.
16.243
Consent orders.
16.245
Associate Administrator review after
a hearing.
Subpart G—Judicial Review
16.247
Judicial review of a final decision and
order.
Subpart H—Ex Parte Communications
16.301
Prohibited ex parte communications.
16.303
Procedures for handling ex parte
communications.
16.305
Requirement to show cause and impo-
sition of sanction.
A
UTHORITY
: 49 U.S.C. 106(g), 322, 1110, 1111,
1115, 1116, 1718(a) and (b), 1719, 1723, 1726, 1727,
40103(e), 40113, 40116, 44502(b), 46101, 46104,
46110, 47104, 47106(e), 47107, 47108, 47111(d),
47122, 47123–47125, 47133, 47151–47153, 48103.
S
OURCE
: Docket No. 27783, 61 FR 54004, Oct.
16, 1996, unless otherwise noted.
Subpart A—General Provisions
§ 16.1
Applicability and description of
part.
(a)
General. The provisions of this
part govern all Federal Aviation Ad-
ministration (FAA) proceedings involv-
ing Federally-assisted airports, except
for complaints or requests for deter-
mination filed with the Secretary
under 14 CFR part 302, whether the pro-
ceedings are instituted by order of the
FAA or by filing a complaint with the
FAA under the following authorities:
(1) 49 U.S.C. 40103(e), prohibiting the
grant of exclusive rights for the use of
any landing area or air navigation fa-
cility on which Federal funds have
been expended (formerly section 308 of
the Federal Aviation Act of 1958, as
amended).
(2) Requirements of the Anti-Head
Tax Act, 49 U.S.C. 40116.
(3) The assurances and other Federal
obligations contained in grant-in-aid
agreements issued under the Federal
Airport Act of 1946, 49 U.S.C. 1101
et seq.
(repealed 1970).
(4) The assurances and other Federal
obligations contained in grant-in-aid
agreements issued under the Airport
and Airway Development Act of 1970,
as amended, 49 U.S.C. 1701
et seq.
(5) The assurances and other Federal
obligations contained in grant-in-aid
agreements issued under the Airport
and Airway Improvement Act of 1982
(AAIA), as amended and recodified, 49
U.S.C. 47101
et seq., specifically section
511(a), 49 U.S.C. 47107, and 49 U.S.C.
47133.
(6) Section 505(d) of the Airport and
Airway Improvement Act of 1982, and
the requirements concerning civil
rights and/or Disadvantaged Business
Enterprise (DBE) issues contained in 49
U.S.C. 47107(e) and 49 U.S.C. 47113; 49
U.S.C. 47123; 49 U.S.C. 322, as amended;
49 CFR parts 23 and/or 26; and/or grant
assurance 30 and/or grant assurance 37.
(7) Obligations contained in property
deeds for property transferred pursuant
to section 16 of the Federal Airport Act
(49 U.S.C. 1115), section 23 of the Air-
port and Airway Development Act (49
U.S.C. 1723), or section 516 of the Air-
port and Airway Improvement Act (49
U.S.C. 47125).
(8) Obligations contained in property
deeds for property transferred under
the Surplus Property Act (49 U.S.C.
47151–47153).
(b)
Other agencies. Where a grant as-
surance concerns a statute, executive
order, regulation, or other authority
that provides an administrative proc-
ess for the investigation or adjudica-
tion of complaints by a Federal agency
other than the FAA, persons shall use
the administrative process established
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§ 16.3
by those authorities. Where a grant as-
surance concerns a statute, executive
order, regulation, or other authority
that enables a Federal agency other
than the FAA to investigate, adju-
dicate, and enforce compliance under
those authorities on its own initiative,
the FAA may defer to that Federal
agency.
(c)
Other enforcement. If a complaint
or action initiated by the FAA involves
a violation of the 49 U.S.C. subtitle VII
or FAA regulations, except as specified
in paragraphs (a)(1) and (a)(2) of this
section, the FAA may take investiga-
tive and enforcement action under 14
CFR part 13, ‘‘Investigative and En-
forcement Procedures.’’
(d)
Effective date. This part applies to
a complaint filed with the FAA and to
an investigation initiated by the FAA
on or after December 16, 1996.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56141, Sept. 12,
2013]
§ 16.3
Definitions.
Terms defined in the Acts are used as
so defined. As used in this part:
Act means a statute listed in § 16.1
and any regulation, agreement, or doc-
ument of conveyance issued or made
under that statute.
Administrator means the Adminis-
trator of the FAA.
Agency means the FAA.
Agency attorney means the Deputy
Chief Counsel; the Assistant Chief
Counsel and attorneys in the Airports/
Environmental Law Division of the Of-
fice of the Chief Counsel; the Assistant
Chief Counsel and attorneys in an FAA
region or center who represent the
FAA during the investigation of a com-
plaint or at a hearing on a complaint,
and who prosecute on behalf of the
FAA, as appropriate. An agency attor-
ney shall not include the Chief Coun-
sel; the Assistant Chief Counsel for
Litigation, or any attorney on the staff
of the Assistant Chief Counsel for Liti-
gation, who advises the Associate Ad-
ministrator regarding an initial deci-
sion of the hearing officer or any ap-
peal to the Associate Administrator or
who is supervised in that action by a
person who provides such advice in an
action covered by this part.
Agency employee means any employee
of the FAA.
Associate Administrator means the
FAA Associate Administrator for Air-
ports or a designee. For the purposes of
this part only, Associate Adminis-
trator also means the Assistant Ad-
ministrator for Civil Rights or a des-
ignee for complaints that the FAA As-
sociate Administrator for Airports
transfers to the Assistant Adminis-
trator for Civil Rights.
Complainant means the person sub-
mitting a complaint.
Complaint means a written document
meeting the requirements of this part
and filed under this part:
(1) By a person directly and substan-
tially affected by anything allegedly
done or omitted to be done by any per-
son in contravention of any provision
of any Act, as defined in this section,
as to matters within the jurisdiction of
the Administrator, or
(2) By a person under 49 CFR 26.105(c)
against a recipient of FAA funds al-
leged to have violated a provision of 49
CFR parts 23 and/or 26.
Decisional employee means the Admin-
istrator, Deputy Administrator, Asso-
ciate Administrator, Director, hearing
officer, or other FAA employee who is
or who may reasonably be expected to
be involved in the decisional process of
the proceeding.
Director means the Director of the
FAA Office of Airport Compliance and
Management Analysis, or a designee.
For the purposes of this part only, Di-
rector also means the Deputy Assistant
Administrator for Civil Rights for com-
plaints that the Director of the FAA
Office of Airport Compliance and Man-
agement Analysis transfers to the Dep-
uty Assistant Administrator for Civil
Rights or designee.
Electronic filing means the process of
sending electronic mail (email) to the
FAA Part 16 Docket Clerk, with
scanned documents attached, as a
Portable Document Format (PDF) file.
Ex parte communication means an oral
or written communication not on the
public record with respect to which
reasonable prior notice to all parties is
not given, but it shall not include re-
quests for status reports on any matter
or proceeding covered by this part, or
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§ 16.5
communications between FAA employ-
ees who participate as parties to a
hearing pursuant to 16.203(b) of this
part and other parties to a hearing.
Hearing officer means an attorney
designated by the Deputy Chief Coun-
sel in a hearing order to serve as a
hearing officer in a hearing under this
part. The following are not designated
as hearing officers: the Chief Counsel
and Deputy Chief Counsel; the Re-
gional or Center Counsel and attorneys
in the FAA region or center in which
the noncompliance has allegedly oc-
curred or is occurring; the Assistant
Chief Counsel and attorneys in the Air-
ports and Environmental Law Division
of the FAA Office of the Chief Counsel;
and the Assistant Chief Counsel and at-
torneys in the Litigation Division of
the FAA Office of Chief Counsel.
Initial decision means a decision made
by the hearing officer in a hearing
under subpart F of this part.
Mail means U.S. first class mail; U.S.
certified mail; and U.S. express mail.
Unless otherwise noted, mail also
means electronic mail containing PDF
copies of pleadings or documents re-
quired herein.
Noncompliance means anything done
or omitted to be done by any person in
contravention of any provision of any
Act, as defined in this section, as to
matters within the jurisdiction of the
Administrator.
Party means the complainant(s) and
the respondent(s) named in the com-
plaint and, after an initial determina-
tion providing an opportunity for hear-
ing is issued under § 16.31 and subpart E
of this part, the agency.
Person in addition to its meaning
under 49 U.S.C. 40102(a)(33), includes a
public agency as defined in 49 U.S.C.
47102(a)(15).
Personal delivery means same-day
hand delivery or overnight express de-
livery service.
Respondent means any person named
in a complaint as a person responsible
for noncompliance.
Sponsor means:
(1) Any public agency which, either
individually or jointly with one or
more other public agencies, has re-
ceived Federal financial assistance for
airport development or planning under
the Federal Airport Act, Airport and
Airway Development Act or Airport
and Airway Improvement Act;
(2) Any private owner of a public-use
airport that has received financial as-
sistance from the FAA for such airport;
and
(3) Any person to whom the Federal
Government has conveyed property for
airport purposes under section 13(g) of
the Surplus Property Act of 1944, as
amended.
Writing or written includes paper doc-
uments that are filed and/or served by
mail, personal delivery, facsimile, or
email (as attached PDF files).
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56141, Sept. 12,
2013]
§ 16.5
Separation of functions.
(a) Proceedings under this part, in-
cluding hearings under subpart F of
this part, will be prosecuted by an
agency attorney.
(b) After issuance of an initial deter-
mination in which the FAA provides
the opportunity for a hearing, an agen-
cy employee engaged in the perform-
ance of investigative or prosecutorial
functions in a proceeding under this
part will not, in that case or a factu-
ally related case, participate or give
advice in an initial decision by the
hearing officer, or a final decision by
the Associate Administrator or des-
ignee on written appeal, and will not,
except as counsel or as witness in the
public proceedings, engage in any sub-
stantive communication regarding that
case or a related case with the hearing
officer, the Associate Administrator on
written appeal, or agency employees
advising those officials in that capac-
ity.
(c) The Chief Counsel, the Assistant
Chief Counsel for Litigation, or an at-
torney on the staff of the Assistant
Chief Counsel for Litigation advises
the Associate Administrator regarding
an initial decision, an appeal, or a final
decision regarding any case brought
under this part.
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14 CFR Ch. I (1–1–24 Edition)
§ 16.11
Subpart B—General Rules Appli-
cable to Complaints, Pro-
ceedings Initiated by the FAA,
and Appeals
§ 16.11
General processes.
(a) Under the authority of 49 U.S.C.
40113 and 47121, the Director may con-
duct investigations, issue orders, and
take such other actions as are nec-
essary to fulfill the purposes of this
part. This includes the extension of
any time period prescribed, where nec-
essary or appropriate for a fair and
complete consideration of matters be-
fore the agency, prior to issuance of
the Director’s Determination.
(b) Notwithstanding any other provi-
sion of this part, upon finding that cir-
cumstances require expedited handling
of a particular case or controversy, the
Director may issue an order directing
any of the following prior to the
issuance of the Director’s Determina-
tion:
(1) Shortening the time period for
any action under this part consistent
with due process;
(2) If other adequate opportunity to
respond to pleadings is available,
eliminating the reply, rebuttal, or
other actions prescribed by this part;
(3) Designating alternative methods
of service; or
(4) Directing such other measures as
may be required.
(c) Other than those matters con-
cerning a Corrective Action Plan, the
jurisdiction of the Director terminates
upon the issuance of the Director’s De-
termination. All matters arising dur-
ing the appeal period, such as requests
for extension of time to make an ap-
peal, will be addressed by the Associate
Administrator.
(d) The Director may transfer to the
FAA Deputy Assistant Administrator
for Civil Rights or Office of Civil
Rights designee the authority to pre-
pare and issue Director’s Determina-
tions pursuant to § 16.31 for complaints
alleging violations of section 505(d) of
the Airport and Airway Improvement
Act of 1982, and the requirements con-
cerning civil rights and/or Disadvan-
taged Business Enterprise (DBE) issues
contained in 49 U.S.C. 47107(e) and 49
U.S.C. 47113; 49 U.S.C. 47123; 49 U.S.C.
322, as amended; 49 CFR parts 23 and/or
26; and/or grant assurance 30 and/or
grant assurance 37.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56142, Sept. 12,
2013]
§ 16.13
Filing of documents.
Except as otherwise provided in this
part, documents shall be filed with the
FAA during a proceeding under this
part as follows:
(a)
Filing address. Documents filed
under this Part shall be filed with the
Office of the Chief Counsel, Attention:
FAA Part 16 Docket Clerk, AGC–600,
Federal Aviation Administration, 800
Independence Avenue SW., Washington,
DC 20591. Documents to be filed with a
hearing officer shall be filed at the ad-
dress and in the manner stated in the
hearing order.
(b)
Date and method of filing. Filing of
any document shall be by personal de-
livery or mail as defined in this part,
by facsimile (when confirmed by filing
on the same date by one of the fore-
going methods), or electronically as set
forth in paragraph (h) of this section.
Unless the date is shown to be inac-
curate, documents filed with the FAA
shall be deemed to be filed on the date
of personal delivery, on the mailing
date shown on the certificate of serv-
ice, on the date shown on the postmark
if there is no certificate of service, on
the send date shown on the facsimile
(provided filing has been confirmed
through one of the foregoing methods),
or on the mailing date shown by other
evidence if there is no certificate of
service and no postmark. Unless the
date is shown to be inaccurate, docu-
ments filed electronically shall be
deemed to be filed on the date shown
on the certificate of service or, if none,
the date of electronic transmission to
the last party required to be served.
(c)
Number of copies. With the excep-
tion of electronic filing or unless oth-
erwise specified, an executed original
and three copies of each document
shall be filed with the FAA Part 16
Docket Clerk. One of the three copies
shall not be stapled, bound or hole-
punched. Copies need not be signed, but
the name of the person signing the
original shall be shown. If a hearing
order has been issued in the case, one
of the three copies shall be filed with
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§ 16.13
the hearing officer unless otherwise
prescribed by the hearing officer.
(d)
Form. Documents filed under this
part shall:
(1) Be typewritten or legibly printed;
(2) Include, in the case of docketed
proceedings, the docket number of the
proceeding on the front page; and
(3) Be marked to identify personal,
privileged or proprietary information.
Decisions for the publication and re-
lease of these documents will be made
in accordance with 5 U.S.C. 552 and 49
CFR part 7.
(e)
Signing of documents and other pa-
pers. The original of every document
filed shall be signed by the person fil-
ing it or the person’s duly authorized
representative. The signature shall
serve as a certification that the signer
has read the document and, based on
reasonable inquiry and to the best of
the signer’s knowledge, information,
and belief, the document is—
(1) Consistent with this part;
(2) Warranted by existing law or that
a good faith argument exists for exten-
sion, modification, or reversal of exist-
ing law; and
(3) Not interposed for any improper
purpose, such as to harass or to cause
unnecessary delay or needless increase
in the cost of the administrative proc-
ess.
(f)
Designation of person to receive serv-
ice. The initial document filed by any
person shall state on the first page the
name, physical address, telephone
number, facsimile number, if any, and
email address, if filing electronically,
of the person(s) to be served with docu-
ments in the proceeding. If any of these
items change during the proceeding,
the person shall promptly file notice of
the change with the FAA Part 16 Dock-
et Clerk and the hearing officer and
shall serve the notice on all parties.
(g)
Docket numbers. Each submission
identified as a complaint under this
part by the submitting person will be
assigned a docket number.
(h)
Electronic filing. (1) The initial
complaint may be served electronically
upon the respondent only if the re-
spondent has previously agreed with
the complainant in writing to partici-
pate in electronic filing. Documents
may be filed under this Part electroni-
cally by sending an email containing
(an) attachment(s) of (a) PDF file(s) of
the required pleading to the FAA
Docket Clerk, and the person des-
ignated in paragraph (h)(3) of this sec-
tion.
(2) The subject line of the email must
contain the names of the complainant
and respondent, and must contain the
FAA docket number (if assigned). The
size of each email must be less than 10
MB. Email attachments containing
executable files (e.g., .exe and .vbs
files) will not be accepted.
(3) The email address at which the
parties may file the documents de-
scribed in this section is
9-AWA-AGC-
Part-16@faa.gov. No acknowledgement
or receipt will be provided by the FAA
to parties using this method. A party
filing electronically as described in
this section must provide to the FAA
Part 16 Docket Clerk and the opposing
party an email address of the person
designated by the party to receive
pleadings.
(4) By filing a pleading or document
electronically as described in this sec-
tion, a party waives the rights under
this part for service by the opposing
party and the FAA by methods other
than email. If a party subsequently de-
cides to ‘‘opt-out’’ of electronic filing,
that party must so notify the FAA
Part 16 Docket Clerk and the other
party in writing, from which time the
FAA and the parties will begin serving
the opting-out party in accordance
with §§ 16.13 and 16.15. This subsection
only exempts the parties from the fil-
ing and service requirements in
§ 16.13(a) (with the exception that
‘‘Documents to be filed with a hearing
officer shall be filed at the address and
in the manner stated in the hearing
order.’’), the method of filing require-
ments in § 16.13(b), and the number of
documents requirements in § 16.13(c).
(i)
Internet accessibility of documents
filed in the Hearing Docket. (1) Unless
protected from public disclosure, all
documents filed in the Hearing Docket
are accessible through the Federal
Docket Management System (FDMS):
http://www.regulations.gov. To access a
particular case file, use the FDMS
number assigned to the case.
(2) Determinations issued by the Di-
rector and Associate Administrator in
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14 CFR Ch. I (1–1–24 Edition)
§ 16.15
Part 16 cases, indexes of decisions, con-
tact information for the FAA Hearing
Docket, the rules of practice, and other
information are available on the FAA
Office of Airports’ Web site at:
http://
part16.airports.faa.gov/index.cfm.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56142, Sept. 12,
2013]
§ 16.15
Service of documents on the
parties and the agency.
Except as otherwise provided in this
part, documents shall be served as fol-
lows:
(a)
Whom must be served. Copies of all
documents filed with the FAA Part 16
Docket Clerk shall be served by the
persons filing them on all parties to
the proceeding. A certificate of service
shall accompany all documents when
they are tendered for filing and shall
certify concurrent service on the FAA
and all parties. Certificates of service
shall be in substantially the following
form:
I hereby certify that I have this day served
the foregoing [name of document] on the fol-
lowing persons at the following addresses,
facsimile numbers (if also served by fac-
simile), or email address (if served electroni-
cally in accordance with § 16.13(h)), by [speci-
fy method of service]:
[list persons, addresses, facsimile numbers,
email addresses (as applicable)]
Dated this
_
day of
_
, 20
_
.
[signature], for [party]
(b) Method of service. Except as oth-
erwise agreed by the parties and, if ap-
plicable, the hearing officer, the meth-
od of service is the same as set forth in
§ 16.13(b) for filing documents.
(c)
Where service shall be made. Serv-
ice shall be made to the persons identi-
fied in accordance with § 16.13(f). If no
such person has been designated, serv-
ice shall be made on the party.
(d)
Presumption of service. There shall
be a presumption of lawful service—
(1) When acknowledgment of receipt
is by a person who customarily or in
the ordinary course of business re-
ceives mail at the address of the party
or of the person designated under
§ 16.13(f);
(2) When a properly addressed enve-
lope, sent to the most current address
submitted under § 16.13(f), has been re-
turned as undeliverable, unclaimed, or
refused; or
(3) When the party serving the docu-
ment electronically has a confirmation
statement demonstrating that the
email was properly sent to a party cor-
rectly addressed.
(e)
Date of service. The date of service
shall be determined in the same man-
ner as the filing date under § 16.13(b).
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56143, Sept. 12,
2013]
§ 16.17
Computation of time.
This section applies to any period of
time prescribed or allowed by this part,
by notice or order of the hearing offi-
cer, or by an applicable statute.
(a) The date of an act, event, or de-
fault, after which a designated time pe-
riod begins to run, is not included in a
computation of time under this part.
(b) The last day of a time period is
included in a computation of time un-
less it is a Saturday, Sunday, or legal
holiday for the FAA, in which case, the
time period runs until the end of the
next day that is not a Saturday, Sun-
day, or legal holiday.
(c) Whenever a party has the right or
is required to do some act within a pre-
scribed period after service of a docu-
ment upon the party, and the docu-
ment is served on the party by first
class mail or certified mail, 5 days
shall be added to the prescribed period.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56143, Sept. 12,
2013]
§ 16.19
Motions.
(a)
General. An application for an
order or ruling not otherwise specifi-
cally provided for in this part shall be
by motion. Unless otherwise ordered by
the agency, the filing of a motion will
not stay the date that any action is
permitted or required by this part.
(b)
Form and contents. Unless made
during a hearing, motions shall be
made in writing, shall state with par-
ticularity the relief sought and the
grounds for the relief sought, and shall
be accompanied by affidavits or other
evidence relied upon. Motions intro-
duced during hearings may be made
orally on the record, unless the hearing
officer directs otherwise.
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§ 16.23
(c)
Answers to motions. Except as oth-
erwise provided in this part, or except
when a motion is made during a hear-
ing, any party may file an answer in
support of or in opposition to a motion,
accompanied by affidavits or other evi-
dence relied upon, provided that the
answer to the motion is filed within 10
days after the motion has been served
upon the person answering, or any
other period set by the hearing officer.
Where a motion is made during a hear-
ing, the answer and the ruling thereon
may be made at the hearing, or orally
or in writing within the time set by the
hearing officer.
(d)
Deferred actions on motions. A rul-
ing on a motion made before the time
set for the issuance of the Director’s
Determination may be deferred to and
included with the Director’s Deter-
mination.
(e)
Extension by motion. A party shall
file a written motion for an extension
of time not later than 3 business days
before the document is due unless good
cause for the late filing is shown. A
party filing a motion for extension
should attempt to obtain the concur-
rence of the opposing party. A party
filing a written motion for an exten-
sion of time shall file the motion as re-
quired under § 16.13, and serve a copy of
the motion on all parties and the dock-
et clerk as required under § 16.15.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56143, Sept. 12,
2013]
Subpart C—Special Rules
Applicable to Complaints
§ 16.21
Pre-complaint resolution.
(a) Except for those persons filing
under 49 CFR 26.105(c), prior to filing a
complaint under this part, a person di-
rectly and substantially affected by the
alleged noncompliance shall initiate
and engage in good faith efforts to re-
solve the disputed matter informally
with those individuals or entities be-
lieved responsible for the noncompli-
ance. These efforts at informal resolu-
tion may include, without limitation,
at the parties’ expense, mediation, ar-
bitration, or the use of a dispute reso-
lution board, or other form of third
party assistance. The FAA Airports
District Office, FAA Airports Field Of-
fice, FAA Regional Airports Division
responsible for administering financial
assistance to the sponsor, or the FAA
Office of Civil Rights will be available
upon request to assist the parties with
informal resolution.
(b) Except for complaints filed under
49 CFR 26.105(c), a complaint will be
dismissed under § 16.27 unless the per-
son or authorized representative filing
the complaint certifies that:
(1) The complainant has made sub-
stantial and reasonable good faith ef-
forts to resolve the disputed matter in-
formally prior to filing the complaint;
and
(2) There is no reasonable prospect
for practical and timely resolution of
the dispute.
(c) The certification required under
paragraph (b) of this section, shall in-
clude a brief description of the party’s
efforts to obtain informal resolution
but shall not include information on
monetary or other settlement offers
made but not agreed upon in writing by
all parties. Such efforts to resolve in-
formally should be relatively recent
and be demonstrated by pertinent doc-
umentation. There is no required form
or process for informal resolution, but
in each case the requirements to re-
solve the matter informally must meet
the requirements of this paragraph.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56143, Sept. 12,
2013]
§ 16.23
Pleadings.
(a) A person directly and substan-
tially affected by any alleged non-
compliance or a person qualified under
49 CFR 26.105(c) may file a complaint
under this part. A person doing busi-
ness with an airport and paying fees or
rentals to the airport shall be consid-
ered directly and substantially affected
by alleged revenue diversion as defined
in 49 U.S.C. 47107(b).
(b) Complaints filed under this part
shall—
(1) State the name and address of
each person who is the subject of the
complaint and, with respect to each
person, the specific provisions of each
Act that the complainant believes were
violated;
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14 CFR Ch. I (1–1–24 Edition)
§ 16.25
(2) Include all documents then avail-
able in the exercise of reasonable dili-
gence, to be offered in support of the
complaint, and to be served upon all
persons named in the complaint as per-
sons responsible for the alleged ac-
tion(s) or omission(s) upon which the
complaint is based;
(3) Provide a concise but complete
statement of the facts relied upon to
substantiate each allegation; and
(4) Except for complaints filed under
49 CFR 26.105(c), describe how the com-
plainant was directly and substantially
affected by the things done or omitted
to be done by the respondents.
(c) Unless the complaint is dismissed
pursuant to § 16.25 or § 16.27, the FAA
notifies the complainant and respond-
ent in writing within 20 days after the
date the FAA receives the complaint
that the complaint has been docketed.
(d) The respondent shall file an an-
swer within 20 days of the date of serv-
ice of the FAA notification or, if a mo-
tion is filed under § 16.26, within 20 days
of the date of service of an FAA order
denying all or part of that motion.
(e) The complainant may file a reply
within 10 days of the date of service of
the answer.
(f) The respondent may file a rebuttal
within 10 days of the date of service of
the complainant’s reply.
(g) The answer, reply, and rebuttal
shall, like the complaint, be accom-
panied by supporting documentation
upon which the parties rely.
(h) The answer shall deny or admit
the allegations made in the complaint
or state that the person filing the doc-
ument is without sufficient knowledge
or information to admit or deny an al-
legation, and shall assert any affirma-
tive defense.
(i) The answer, reply, and rebuttal
shall each contain a concise but com-
plete statement of the facts relied upon
to substantiate the answers, admis-
sions, denials, or averments made.
(j) Amendments or supplements to
the pleadings described in this section
will not be allowed without showing
good cause through a motion and sup-
porting documents.
(k)
Burden of proof. Except as used in
subpart F of this part,
(1) The burden of proof is on the com-
plainant to show noncompliance with
an Act or any regulation, order, agree-
ment or document of conveyance
issued under the authority of an Act.
(2) Except as otherwise provided by
statute or rule, the proponent of a mo-
tion, request, or order has the burden
of proof.
(3) A party who has asserted an af-
firmative defense has the burden of
proving the affirmative defense.
(l) Except for good cause shown
through motion and supporting docu-
ments, discovery is not permitted ex-
cept as provided in §§ 16.213 and 16.215.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56143, Sept. 12,
2013]
§ 16.25
Dismissals.
(a) Within 20 days after the receipt of
the complaint, unless a motion has
been filed under § 16.26, the Director
will dismiss a complaint, or any claim
made in a complaint, with prejudice if:
(1) It appears on its face to be outside
the jurisdiction of the Administrator
under the Acts listed in § 16.1;
(2) On its face it does not state a
claim that warrants an investigation
or further action by the FAA; or
(3) The complainant lacks standing
to file a complaint under §§ 16.3 and
16.23.
(b) A dismissal under this section
will include the reasons for the dis-
missal.
[Amdt. 16–1, 78 FR 56144, Sept. 12, 2013]
§ 16.26
Motions to dismiss and motions
for summary judgment.
(a) In lieu of an answer, the respond-
ent may file a motion to dismiss the
complaint or a motion for summary
judgment on the complaint. The re-
spondent may move for dismissal of the
entire complaint or move for dismissal
of particular issues from adjudication.
The motion must be filed within 20
days after the date of service of the
FAA notification of docketing.
(b)
Motions to dismiss. (1) A motion to
dismiss shall be accompanied by a con-
cise statement of the reasons for seek-
ing dismissal. The respondent must
show that the complaint should be dis-
missed, with prejudice, if:
(i) It appears on its face to be outside
the jurisdiction of the Administrator
under the Acts listed in § 16.1;
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§ 16.29
(ii) On its face it does not state a
claim that warrants an investigation
or further action by the FAA; or
(iii) The complainant lacks standing
to file a complaint under §§ 16.3 and
16.23.
(2) A motion to dismiss may seek dis-
missal of the entire complaint or the
dismissal of specified claims in the
complaint. A motion to dismiss shall
be accompanied by a supporting memo-
randum of points and authorities.
(3) A complainant may file an answer
to the motion to dismiss within 10 days
of the date the motion is served on the
complainant, or within any other pe-
riod set by the Director. The answer
shall be accompanied by a concise
statement of reasons for opposing dis-
missal, and may be accompanied by af-
fidavits and other documentary evi-
dence in support of that contention.
(4) Within 30 days of the date an an-
swer to a motion to dismiss is due
under this section, the Director may
issue an order disposing of the motion.
If the Director denies the motion to
dismiss in whole or in part, or grants
the motion in part, then within 20 days
of when the order is served on the re-
spondent, the respondent shall file an
answer to the complaint.
(5) If the Director does not act on the
motion to dismiss within 30 days of the
date an answer to a motion is due
under this section, the respondent shall
file an answer to the complaint within
the next 20 days.
(c)
Motions for summary judgment. (1)
A motion for summary judgment may
be based upon the ground that there is
no genuine issue of material fact for
adjudication and that the complaint,
when viewed in the light most favor-
able to the complainant, should be
summarily adjudicated in favor of the
respondent as a matter of law. A mo-
tion for summary judgment may seek
dismissal of the entire complaint or
dismissal of specified claims or issues
in the complaint.
(2) The motion for summary judg-
ment shall be accompanied by a con-
cise statement of the material facts as
to which the respondent contends there
is no genuine issue of material fact.
The motion may include affidavits and
documentary evidence in support of the
contention that there is no genuine
issue of material fact in dispute.
(3) A complainant may file an answer
to the motion for summary judgment
within 10 days of the date the motion is
served on the complainant, or within
any other period set by the Director.
The answer shall be accompanied by a
concise statement of the material facts
as to which the complainant contends
there is a genuine issue, and may be ac-
companied by affidavits and other doc-
umentary evidence in support of that
contention.
(4) Within 30 days of the date an an-
swer to a motion for summary judg-
ment is due under this section, the Di-
rector may issue an order disposing of
the motion. If the Director denies the
motion in whole or in part, or grants
the motion in part, then within 20 days
of when the order is served on the re-
spondent, the respondent shall file an
answer to the complaint.
(5) If the Director does not act on the
motion for summary judgment within
30 days of the date an answer to a mo-
tion is due under this section, the re-
spondent shall file an answer to the
complaint within the next 20 days.
[Amdt. 16–1, 78 FR 56144, Sept. 12, 2013]
§ 16.27
Incomplete complaints.
(a) If a complaint is not dismissed
pursuant to § 16.25, but is deficient as to
one or more of the requirements set
forth in § 16.21 or § 16.23(b), the Director
will dismiss the complaint within 20
days after receiving it. Dismissal will
be without prejudice to the refiling of
the complaint after amendment to cor-
rect the deficiencies. The Director’s
dismissal will include the reasons for
the dismissal.
(b) Dismissals under this section are
not initial determinations, and appeals
from decisions under this section will
not be permitted.
[Amdt. 16–1, 78 FR 56144, Sept. 12, 2013]
§ 16.29
Investigations.
(a) If, based on the pleadings, there
appears to be a reasonable basis for fur-
ther investigation, the FAA inves-
tigates the subject matter of the com-
plaint.
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14 CFR Ch. I (1–1–24 Edition)
§ 16.31
(b) The investigation may include
one or more of the following, at the
sole discretion of the FAA:
(1) A review of the written submis-
sions or pleadings of the parties, as
supplemented by any informal inves-
tigation the FAA considers necessary
and by additional information fur-
nished by the parties at FAA request.
In rendering its initial determination,
the FAA may rely entirely on the com-
plaint and the responsive pleadings
provided under this subpart. Each
party shall file documents that it con-
siders sufficient to present all relevant
facts and argument necessary for the
FAA to determine whether the sponsor
is in compliance.
(2) Obtaining additional oral and doc-
umentary evidence by use of the agen-
cy’s authority to compel production of
such evidence under 49 U.S.C. 40113 and
46104, and 49 U.S.C. 47122. The Adminis-
trator’s statutory authority to issue
compulsory process has been delegated
to the Chief Counsel, the Deputy Chief
Counsel, the Assistant Chief Counsel
for Airports and Environmental Law,
and each Assistant Chief Counsel for a
region or center.
(3) Conducting or requiring that a
sponsor conduct an audit of airport fi-
nancial records and transactions as
provided in 49 U.S.C. 47107 and 47121.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1 78 FR 56145, Sept. 12,
2013]
§ 16.31
Director’s Determinations after
investigations.
(a) After consideration of the plead-
ings and other information obtained by
the FAA after investigation, the Direc-
tor will render an initial determination
and serve it upon each party within 120
days of the date the last pleading speci-
fied in § 16.23 was due.
(b)(1) The Director’s Determination
shall include findings of fact and con-
clusions of law, accompanied by expla-
nations and based upon all material
issues of fact, credibility of the evi-
dence, law and discretion presented on
the record, together with a statement
of the reasons therefor.
(2) The Director shall issue a deter-
mination or rule in a party’s favor only
if the determination 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.
(c) A party adversely affected by the
Director’s Determination may appeal
the initial determination as provided
in § 16.33. However, if the Director’s De-
termination that is appealed contains a
Corrective Action Plan, the Director
has the discretion to suspend the Cor-
rective Action Plan until the appeal is
resolved.
(d) If the Director’s Determination
finds the respondent in noncompliance
and proposes the issuance of a compli-
ance order, the initial determination
will include notice of opportunity for a
hearing under subpart F of this part if
a hearing is required by statute or oth-
erwise provided by the FAA. A hearing
may be required by statute if the FAA
determination would terminate eligi-
bility for grants under 49 U.S.C.
47114(c) or (e), or terminate payments
on a grant agreement under 49 U.S.C.
subchapter 471. The respondent may
elect or waive a hearing, as provided in
subpart E of this part.
(e) The Director will not consider re-
quests for rehearing, reargument, re-
consideration, or modification of a Di-
rector’s Determination without a find-
ing of good cause.
[Amdt. 16–1, 78 FR 56145, Sept. 12, 2013]
§ 16.33
Final decisions without hear-
ing.
(a) The Associate Administrator may
transfer to the FAA Assistant Adminis-
trator for Civil Rights the responsi-
bility to prepare and issue Final Agen-
cy Decisions pursuant to this section
for appeals with issues concerning civil
rights.
(b) The Associate Administrator will
issue a final decision on appeal from
the Director’s Determination, without
a hearing, where—
(1) The complaint is dismissed after
investigation;
(2) A hearing is not required by stat-
ute and is not otherwise made avail-
able by the FAA; or
(3) The FAA provides opportunity for
a hearing to the respondent and the re-
spondent waives the opportunity for a
hearing as provided in subpart E of this
part.
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§ 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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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.
(c) The Director may either direct
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
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§ 16.207
the Director finds noncompliance on
all identified issues.
[Amdt. 16–1, 78 FR 56146, Sept. 12, 2013]
Subpart F—Hearings
§ 16.201
Notice and order of hearing.
(a) If a respondent is provided the op-
portunity for hearing in an initial de-
termination and does not waive hear-
ing, the Deputy Chief Counsel within 10
days after the respondent elects a hear-
ing will issue and serve on the respond-
ent and complainant a hearing order.
The hearing order will set forth:
(1) The allegations in the complaint,
or notice of investigation, and the
chronology and results of the inves-
tigation preliminary to the hearing;
(2) The relevant statutory, judicial,
regulatory, and other authorities;
(3) The issues to be decided;
(4) Such rules of procedure as may be
necessary to supplement the provisions
of this part;
(5) The name and address of the per-
son designated as hearing officer, and
the assignment of authority to the
hearing officer to conduct the hearing
in accordance with the procedures set
forth in this part; and
(6) The date by which the hearing of-
ficer is directed to issue an initial deci-
sion.
(b) Where there are no genuine issues
of material fact requiring oral exam-
ination of witnesses, the hearing order
may contain a direction to the hearing
officer to conduct a hearing by submis-
sion of briefs and oral argument with-
out the presentation of testimony or
other evidence.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56146, Sept. 12,
2013]
§ 16.202
Powers of a hearing officer.
In accordance with the rules of this
subpart, a hearing officer may:
(a) Give notice of, and hold, pre-
hearing conferences and hearings;
(b) Administer oaths and affirma-
tions;
(c) Issue subpoenas authorized by law
and issue notices of deposition re-
quested by the parties;
(d) Limit the frequency and extent of
discovery;
(e) Rule on offers of proof;
(f) Receive relevant and material evi-
dence;
(g) Regulate the course of the hear-
ing in accordance with the rules of this
part to avoid unnecessary and duplica-
tive proceedings in the interest of
prompt and fair resolution of the mat-
ters at issue;
(h) Hold conferences to settle or to
simplify the issues by consent of the
parties;
(i) Dispose of procedural motions and
requests;
(j) Examine witnesses; and
(k) Make findings of fact and conclu-
sions of law, and issue an initial deci-
sion.
§ 16.203
Appearances, parties, and
rights of parties.
(a)
Appearances. Any party may ap-
pear and be heard in person.
(1) Any party may be accompanied,
represented, or advised by an attorney
licensed by a State, the District of Co-
lumbia, or a territory of the United
States to practice law or appear before
the courts of that State or territory, or
by another person authorized by the
hearing officer to be the party’s rep-
resentative.
(2) An attorney, or other duly author-
ized representative, who represents a
party shall file a notice of appearance
in accordance with § 16.13.
(b)
Parties and agency participation. (1)
The parties to the hearing are the com-
plainant(s) and respondent(s) named in
the hearing order, and the agency. The
style of any pleadings filed under this
Subpart shall name the respondent as
the Appellant, and the Federal Avia-
tion Administration as the Agency.
(2) Unless otherwise specified in the
hearing order, the agency attorney will
serve as prosecutor for the agency from
the date of issuance of the Director’s
Determination providing an oppor-
tunity for hearing.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56146, Sept. 12,
2013]
§ 16.207
Intervention and other par-
ticipation.
(a) Intervention and participation by
other persons are permitted only at the
hearing stage of the complaint process
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14 CFR Ch. I (1–1–24 Edition)
§ 16.209
and with the written approval of the
hearing officer.
(b) A person may submit a written
motion for leave to intervene as a
party. Except for good cause shown, a
motion for leave to intervene shall be
submitted not later than 10 days after
the notice of hearing and hearing
order.
(c) If the hearing officer finds that
intervention will not unduly broaden
the issues or delay the proceedings and,
if the person has an interest that will
benefit the proceedings, the hearing of-
ficer may grant a motion for leave to
intervene. The hearing officer may de-
termine the extent to which an inter-
venor may participate in the pro-
ceedings.
(d) Other persons may petition the
hearing officer for leave to participate
in the hearing. Participation is limited
to the filing of a posthearing brief and
reply to the hearing officer and the As-
sociate Administrator. Such a brief
shall be filed and served on all parties
in the same manner as the parties’
posthearing briefs are filed.
(e) Participation under this section is
at the discretion of the hearing officer,
and no decision permitting participa-
tion shall be deemed to constitute an
expression that the participant has
such a substantial interest in the pro-
ceeding as would entitle it to judicial
review of such decision.
[Amdt. 16–1, 78 FR 56146, Sept. 12, 2013]
§ 16.209
Extension of time.
(a)
Extension by oral agreement. The
parties may agree to extend for a rea-
sonable period of time for filing a docu-
ment under this part. If the parties
agree, the hearing officer shall grant
one extension of time to each party.
The party seeking the extension of
time shall submit a draft order to the
hearing officer to be signed by the
hearing officer and filed with the hear-
ing docket. The hearing officer may
grant additional oral requests for an
extension of time where the parties
agree to the extension.
(b)
Extension by motion. A party shall
file a written motion for an extension
of time with the hearing officer not
later than 7 days before the document
is due unless good cause for the late fil-
ing is shown. A party filing a written
motion for an extension of time shall
serve a copy of the motion on each
party.
(c)
Failure to rule. If the hearing offi-
cer fails to rule on a written motion for
an extension of time by the date the
document was due, the motion for an
extension of time is deemed denied.
(d)
Effect on time limits. In a hearing
required by section 519(b) of the Air-
port and Airways Improvement Act, as
amended in 1987, 49 U.S.C. 47106(e) and
47111(d), the due date for the hearing
officer’s initial decision and for the
final agency decision are extended by
the length of the extension granted by
the hearing officer only if the hearing
officer grants an extension of time as a
result of an agreement by the parties
as specified in paragraph (a) of this sec-
tion or, if the hearing officer grants an
extension of time as a result of the
sponsor’s failure to adhere to the hear-
ing schedule. In any other hearing, an
extension of time granted by the hear-
ing officer for any reason extends the
due date for the hearing officer’s ini-
tial decision and for the final agency
decision by the length of time of the
hearing officer’s decision.
§ 16.211
Prehearing conference.
(a)
Prehearing conference notice. The
hearing officer schedules a prehearing
conference and serves a prehearing con-
ference notice on the parties promptly
after being designated as a hearing of-
ficer.
(1) The prehearing conference notice
specifies the date, time, place, and
manner (in person or by telephone) of
the prehearing conference.
(2) The prehearing conference notice
may direct the parties to exchange pro-
posed witness lists, requests for evi-
dence and the production of documents
in the possession of another party, re-
sponses to interrogatories, admissions,
proposed procedural schedules, and pro-
posed stipulations before the date of
the prehearing conference.
(b)
The prehearing conference. The pre-
hearing conference is conducted by
telephone or in person, at the hearing
officer’s discretion. The prehearing
conference addresses matters raised in
the prehearing conference notice and
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§ 16.215
such other matters as the hearing offi-
cer determines will assist in a prompt,
full and fair hearing of the issues.
(c)
Prehearing conference report. At
the close of the prehearing conference,
the hearing officer rules on any re-
quests for evidence and the production
of documents in the possession of other
parties, responses to interrogatories,
and admissions; on any requests for
depositions; on any proposed stipula-
tions; and on any pending applications
for subpoenas as permitted by § 16.219.
In addition, the hearing officer estab-
lishes the schedule, which shall provide
for the issuance of an initial decision
not later than 110 days after issuance
of the Director’s Determination order
unless otherwise provided in the hear-
ing order.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56147, Sept. 12,
2013]
§ 16.213
Discovery.
(a) Discovery is limited to requests
for admissions, requests for production
of documents, interrogatories, and
depositions as authorized by § 16.215.
(b) The hearing officer shall limit the
frequency and extent of discovery per-
mitted by this section if a party shows
that—
(1) The information requested is cu-
mulative or repetitious;
(2) The information requested may be
obtained from another less burdensome
and more convenient source;
(3) The party requesting the informa-
tion has had ample opportunity to ob-
tain the information through other dis-
covery methods permitted under this
section; or
(4) The method or scope of discovery
requested by the party is unduly bur-
densome or expensive.
§ 16.215
Depositions.
(a)
General. For good cause shown,
the hearing officer may order that the
testimony of a witness may be taken
by deposition and that the witness
produce documentary evidence in con-
nection with such testimony. Gen-
erally, an order to take the deposition
of a witness is entered only if:
(1) The person whose deposition is to
be taken would be unavailable at the
hearing;
(2) The deposition is deemed nec-
essary to perpetuate the testimony of
the witness; or
(3) The taking of the deposition is
necessary to prevent undue and exces-
sive expense to a party and will not re-
sult in undue burden to other parties or
in undue delay.
(b)
Application for deposition. Any
party desiring to take the deposition of
a witness shall make application there-
for to the hearing officer in writing,
with a copy of the application served
on each party. The application shall in-
clude:
(1) The name and residence of the
witness;
(2) The time and place for the taking
of the proposed deposition;
(3) The reasons why such deposition
should be taken; and
(4) A general description of the mat-
ters concerning which the witness will
be asked to testify.
(c)
Order authorizing deposition. If
good cause is shown, the hearing offi-
cer, in his or her discretion, issues an
order authorizing the deposition and
specifying the name of the witness to
be deposed, the location and time of
the deposition and the general scope
and subject matter of the testimony to
be taken.
(d)
Procedures for deposition. (1) Wit-
nesses whose testimony is taken by
deposition shall be sworn or shall af-
firm before any questions are put to
them. Each question propounded shall
be recorded and the answers of the wit-
ness transcribed verbatim.
(2) Objections to questions or evi-
dence shall be recorded in the tran-
script of the deposition. The inter-
posing of an objection shall not relieve
the witness of the obligation to answer
questions, except where the answer
would violate a privilege.
(3) The written transcript shall be
subscribed by the witness, unless the
parties by stipulation waive the sign-
ing, or the witness is ill, cannot be
found, or refuses to sign. The reporter
shall note the reason for failure to
sign.
(e)
Depositions of agency employees. (1)
Depositions of Agency Employees will
not be allowed except under the provi-
sions of 49 CFR part 9.
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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.
(c) Any witness may be accompanied
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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§ 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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14 CFR Ch. I (1–1–24 Edition)
§ 16.235
§ 16.235
Argument before the hearing
officer.
(a)
Argument during the hearing. Dur-
ing the hearing, the hearing officer
shall give the parties reasonable oppor-
tunity to present oral argument on the
record supporting or opposing motions,
objections, and rulings if the parties
request an opportunity for argument.
The hearing officer may direct written
argument during the hearing if the
hearing officer finds that submission of
written arguments would not delay the
hearing.
(b)
Posthearing briefs. The hearing of-
ficer may request or permit the parties
to submit posthearing briefs. The hear-
ing officer may provide for the filing of
simultaneous reply briefs as well, if
such filing will not unduly delay the
issuance of the hearing officer’s initial
decision. Posthearing briefs shall in-
clude proposed findings of fact and con-
clusions of law; exceptions to rulings of
the hearing officer; references to the
record in support of the findings of
fact; and supporting arguments for the
proposed findings, proposed conclu-
sions, and exceptions.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56147, Sept. 12,
2013]
§ 16.237
Waiver of procedures.
(a) The hearing officer shall waive
such procedural steps as all parties to
the hearing agree to waive before
issuance of an initial decision.
(b) Consent to a waiver of any proce-
dural step bars the raising of this issue
on appeal.
(c) The parties may not by consent
waive the obligation of the hearing of-
ficer to enter an initial decision on the
record.
§ 16.241
Initial decisions, order, and
appeals.
(a) The hearing officer shall issue an
initial decision based on the record de-
veloped during the proceeding and shall
send the initial decision to the parties
not later than 110 days after the Direc-
tor’s Determination unless otherwise
provided in the hearing order.
(b) Each party adversely affected by
the hearing officer’s initial decision
may file an appeal with the Associate
Administrator within 15 days of the
date the initial decision is issued. Each
party may file a reply to an appeal
within 10 days after it is served on the
party. Filing and service of appeals and
replies shall be by personal delivery.
(c) If an appeal is filed, the Associate
Administrator reviews the entire
record and issues a final agency deci-
sion and order within 60 days of the due
date of the reply. If no appeal is filed,
the Associate Administrator may take
review of the case on his or her own
motion. 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 or made under such
Act, the final agency order includes, in
accordance with § 16.245(d), a statement
of corrective action, if appropriate, and
identifies sanctions for continued non-
compliance.
(d) If no appeal is filed, and the Asso-
ciate Administrator does not take re-
view of the initial decision on the Asso-
ciate Administrator’s own motion, the
initial decision shall take effect as the
final agency decision and order on the
sixteenth day after the actual date the
initial decision is issued.
(e) The failure to file an appeal is
deemed a waiver of any rights to seek
judicial review of an initial decision
that becomes a final agency decision
by operation of paragraph (d) of this
section.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as
amended at Amdt. 16–1, 78 FR 56147, Sept. 12,
2013]
§ 16.243
Consent orders.
(a) The agency attorney and the re-
spondents may agree at any time be-
fore the issuance of a final decision and
order to dispose of the case by issuance
of a consent order. Good faith efforts to
resolve a complaint through issuance
of a consent order may continue
throughout the administrative process.
Except as provided in § 16.209, such ef-
forts may not serve as the basis for ex-
tensions 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;
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§ 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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Federal Aviation Administration, DOT
Pt. 17
(3) Ex parte communications regard-
ing solely matters of agency procedure
or practice are not prohibited by this
section.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re-
designated at Amdt. 16–1, 78 FR 56148, Sept.
12, 2013]
§ 16.303
Procedures for handling ex
parte communications.
A decisional employee who receives
or who makes or knowingly causes to
be made a communication prohibited
by § 16.303 shall place in the public
record of the proceeding:
(a) All such written communications;
(b) Memoranda stating the substance
of all such oral communications; and
(c) All written responses, and memo-
randa stating the substance of all oral
responses, to the materials described in
paragraphs (a) and (b) of this section.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re-
designated at Amdt. 16–1, 78 FR 56148, Sept.
12, 2013]
§ 16.305
Requirement to show cause
and imposition of sanction.
(a) Upon receipt of a communication
knowingly made or knowingly caused
to be made by a party in violation of
§ 16.303, the Associate Administrator or
his designee or the hearing officer may,
to the extent consistent with the inter-
ests of justice and the policy of the un-
derlying statutes, require the party to
show cause why his or her claim or in-
terest in the proceeding should not be
dismissed, denied, disregarded, or oth-
erwise adversely affected on account of
such violation.
(b) The Associate Administrator
may, to the extent consistent with the
interests of justice and the policy of
the underlying statutes administered
by the FAA, consider a violation of
this subpart sufficient grounds for a de-
cision adverse to a party who has
knowingly committed such violation or
knowingly caused such violation to
occur.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996. Re-
designated at Amdt. 16–1, 78 FR 56148, Sept.
12, 2013]
PART 17—PROCEDURES FOR PRO-
TESTS AND CONTRACT DISPUTES
Subpart A—General
Sec.
17.1
Applicability.
17.3
Definitions.
17.5
Delegation of authority.
17.7
Filing and computation of time.
17.9
Protective orders.
Subpart B—Protests
17.11
Matters not subject to protest.
17.13
Dispute resolution process for pro-
tests.
17.15
Filing a protest.
17.17
Initial protest procedures.
17.19
Motions practice and dismissal or
summary decision of protests.
17.21
Adjudicative Process for protests.
17.23
Protest remedies.
Subpart C—Contract Disputes
17.25
Dispute resolution process for con-
tract disputes.
17.27
Filing a contract dispute.
17.29
Informal resolution period.
17.31
Dismissal or summary decision of con-
tract disputes.
17.33
Adjudicative Process for contract dis-
putes.
Subpart D—Alternative Dispute Resolution
17.35
Use of alternative dispute resolution.
17.37
Election of alternative dispute resolu-
tion process.
17.39
Confidentiality of ADR.
Subpart E—Finality and Review
17.41
Final orders.
17.43
Judicial review.
17.45
Conforming amendments.
17.47
Reconsideration.
Subpart F—Other Matters
17.49
Sanctions.
17.51
Decorum and professional conduct.
17.53
Orders and subpoenas for testimony
and document production.
17.55
Standing orders of the ODRA director.
Subpart G—Pre-Disputes
17.57
Dispute resolution process for Pre-dis-
putes.
17.59
Filing a Pre-dispute.
17.61
Use of alternative dispute resolution.
A
PPENDIX
A
TO
P
ART
17—A
LTERNATIVE
D
IS
-
PUTE
R
ESOLUTION
(ADR)
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