[Title 14 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2024 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 14
Aeronautics and Space
________________________
Parts 1 to 59
Revised as of January 1, 2024
Containing a codification of documents of general
applicability and future effect
As of January 1, 2024
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. v
Title 14:
Chapter I--Federal Aviation Administration,
Department of Transportation 3
Finding Aids:
Table of CFR Titles and Chapters........................ 895
Alphabetical List of Agencies Appearing in the CFR...... 915
List of CFR Sections Affected........................... 925
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 14 CFR 1.1 refers to
title 14, part 1, section
1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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the Code prior to the LSA listings at the end of the volume, consult
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2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
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CFR INDEXES AND TABULAR GUIDES
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and Finding Aids. This volume contains the Parallel Table of Authorities
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alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
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the daily Federal Register.
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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INQUIRIES
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Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2024.
[[Page ix]]
THIS TITLE
Title 14--Aeronautics and Space is composed of five volumes. The
parts in these volumes are arranged in the following order: Parts 1-59,
60-109, 110-199, 200-1199, and part 1200-End. The first three volumes
containing parts 1-199 are comprised of chapter I--Federal Aviation
Administration, Department of Transportation (DOT). The fourth volume
containing parts 200-1199 is comprised of chapter II--Office of the
Secretary, DOT (Aviation Proceedings) and chapter III--Commercial Space
Transportation, Federal Aviation Administration, DOT. The fifth volume
containing part 1200-End is comprised of chapter V--National Aeronautics
and Space Administration and chapter VI--Air Transportation System
Stabilization. The contents of these volumes represent all current
regulations codified under this title of the CFR as of January 1, 2024.
For this volume, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 14--AERONAUTICS AND SPACE
(This book contains parts 1 to 59)
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Part
chapter i--Federal Aviation Administration, Department of
Transportation............................................ 1
[[Page 3]]
CHAPTER I--FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
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SUBCHAPTER A--DEFINITIONS AND GENERAL REQUIREMENTS
Part Page
1 Definitions and abbreviations............... 5
3 General requirements........................ 20
5 Safety management systems................... 22
SUBCHAPTER B--PROCEDURAL RULES
11 General rulemaking procedures............... 27
13 Investigative and enforcement procedures.... 37
14 Rules implementing the Equal Access to
Justice Act of 1980..................... 81
15 Administrative claims under Federal Tort
Claims Act.............................. 88
16 Rules of practice for Federally-assisted
airport enforcement proceedings......... 92
17 Procedures for protests and contract
disputes................................ 113
SUBCHAPTER C--AIRCRAFT
21 Certification procedures for products and
articles................................ 130
23 Airworthiness standards: Normal category
airplanes............................... 175
25 Airworthiness standards: Transport category
airplanes............................... 194
26 Continued airworthiness and safety
improvements for transport category
airplanes............................... 471
27 Airworthiness standards: Normal category
rotorcraft.............................. 486
29 Airworthiness standards: Transport category
rotorcraft.............................. 572
31 Airworthiness standards: Manned free
balloons................................ 691
33 Airworthiness standards: Aircraft engines... 698
34 Fuel venting and exhaust emission
requirements for turbine engine powered
airplanes............................... 745
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35 Airworthiness standards: Propellers......... 757
36 Noise standards: Aircraft type and
airworthiness certification............. 765
39 Airworthiness directives.................... 844
43 Maintenance, preventive maintenance,
rebuilding, and alteration.............. 846
45 Identification and registration marking..... 862
47 Aircraft registration....................... 869
48 Registration and marking requirements for
small unmanned aircraft................. 882
49 Recording of aircraft titles and security
documents............................... 887
50-59
[Reserved]
[[Page 5]]
SUBCHAPTER A_DEFINITIONS AND GENERAL REQUIREMENTS
PART 1_DEFINITIONS AND ABBREVIATIONS--Table of Contents
Sec.
1.1 General definitions.
1.2 Abbreviations and symbols.
1.3 Rules of construction.
Authority: 49 U.S.C. 106(f), 106(g), 40113, 44701.
Sec. 1.1 General definitions.
As used in Subchapters A through K of this chapter, unless the
context requires otherwise:
Administrator means the Federal Aviation Administrator or any person
to whom he has delegated his authority in the matter concerned.
Aerodynamic coefficients means non-dimensional coefficients for
aerodynamic forces and moments.
Air carrier means a person who undertakes directly by lease, or
other arrangement, to engage in air transportation.
Air commerce means interstate, overseas, or foreign air commerce or
the transportation of mail by aircraft or any operation or navigation of
aircraft within the limits of any Federal airway or any operation or
navigation of aircraft which directly affects, or which may endanger
safety in, interstate, overseas, or foreign air commerce.
Aircraft means a device that is used or intended to be used for
flight in the air.
Aircraft engine means an engine that is used or intended to be used
for propelling aircraft. It includes turbosuperchargers, appurtenances,
and accessories necessary for its functioning, but does not include
propellers.
Airframe means the fuselage, booms, nacelles, cowlings, fairings,
airfoil surfaces (including rotors but excluding propellers and rotating
airfoils of engines), and landing gear of an aircraft and their
accessories and controls.
Airplane means an engine-driven fixed-wing aircraft heavier than
air, that is supported in flight by the dynamic reaction of the air
against its wings.
Airport means an area of land or water that is used or intended to
be used for the landing and takeoff of aircraft, and includes its
buildings and facilities, if any.
Airship means an engine-driven lighter-than-air aircraft that can be
steered.
Air traffic means aircraft operating in the air or on an airport
surface, exclusive of loading ramps and parking areas.
Air traffic clearance means an authorization by air traffic control,
for the purpose of preventing collision between known aircraft, for an
aircraft to proceed under specified traffic conditions within controlled
airspace.
Air traffic control means a service operated by appropriate
authority to promote the safe, orderly, and expeditious flow of air
traffic.
Air Traffic Service (ATS) route is a specified route designated for
channeling the flow of traffic as necessary for the provision of air
traffic services. The term ``ATS route'' refers to a variety of airways,
including jet routes, area navigation (RNAV) routes, and arrival and
departure routes. An ATS route is defined by route specifications, which
may include:
(1) An ATS route designator;
(2) The path to or from significant points;
(3) Distance between significant points;
(4) Reporting requirements; and
(5) The lowest safe altitude determined by the appropriate
authority.
Air transportation means interstate, overseas, or foreign air
transportation or the transportation of mail by aircraft.
Alert Area. An alert area is established to inform pilots of a
specific area wherein a high volume of pilot training or an unusual type
of aeronautical activity is conducted.
Alternate airport means an airport at which an aircraft may land if
a landing at the intended airport becomes inadvisable.
Altitude engine means a reciprocating aircraft engine having a rated
takeoff
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power that is producible from sea level to an established higher
altitude.
Amateur rocket means an unmanned rocket that:
(1) Is propelled by a motor or motors having a combined total
impulse of 889,600 Newton-seconds (200,000 pound-seconds) or less; and
(2) Cannot reach an altitude greater than 150 kilometers (93.2
statute miles) above the earth's surface.
Appliance means any instrument, mechanism, equipment, part,
apparatus, appurtenance, or accessory, including communications
equipment, that is used or intended to be used in operating or
controlling an aircraft in flight, is installed in or attached to the
aircraft, and is not part of an airframe, engine, or propeller.
Approved, unless used with reference to another person, means
approved by the FAA or any person to whom the FAA has delegated its
authority in the matter concerned, or approved under the provisions of a
bilateral agreement between the United States and a foreign country or
jurisdiction.
Area navigation (RNAV) is a method of navigation that permits
aircraft operations on any desired flight path.
Area navigation (RNAV) route is an ATS route based on RNAV that can
be used by suitably equipped aircraft.
Armed Forces means the Army, Navy, Air Force, Marine Corps, and
Coast Guard, including their regular and reserve components and members
serving without component status.
Autorotation means a rotorcraft flight condition in which the
lifting rotor is driven entirely by action of the air when the
rotorcraft is in motion.
Auxiliary rotor means a rotor that serves either to counteract the
effect of the main rotor torque on a rotorcraft or to maneuver the
rotorcraft about one or more of its three principal axes.
Balloon means a lighter-than-air aircraft that is not engine driven,
and that sustains flight through the use of either gas buoyancy or an
airborne heater.
Brake horsepower means the power delivered at the propeller shaft
(main drive or main output) of an aircraft engine.
Calibrated airspeed means the indicated airspeed of an aircraft,
corrected for position and instrument error. Calibrated airspeed is
equal to true airspeed in standard atmosphere at sea level.
Canard means the forward wing of a canard configuration and may be a
fixed, movable, or variable geometry surface, with or without control
surfaces.
Canard configuration means a configuration in which the span of the
forward wing is substantially less than that of the main wing.
Category:
(1) As used with respect to the certification, ratings, privileges,
and limitations of airmen, means a broad classification of aircraft.
Examples include: airplane; rotorcraft; glider; and lighter-than-air;
and
(2) As used with respect to the certification of aircraft, means a
grouping of aircraft based upon intended use or operating limitations.
Examples include: transport, normal, utility, acrobatic, limited,
restricted, and provisional.
Category A, with respect to transport category rotorcraft, means
multiengine rotorcraft designed with engine and system isolation
features specified in Part 29 and utilizing scheduled takeoff and
landing operations under a critical engine failure concept which assures
adequate designated surface area and adequate performance capability for
continued safe flight in the event of engine failure.
Category B, with respect to transport category rotorcraft, means
single-engine or multiengine rotorcraft which do not fully meet all
Category A standards. Category B rotorcraft have no guaranteed stay-up
ability in the event of engine failure and unscheduled landing is
assumed.
Category II operations, with respect to the operation of aircraft,
means a straight-in ILS approach to the runway of an airport under a
Category II ILS instrument approach procedure issued by the
Administrator or other appropriate authority.
Category III operations, with respect to the operation of aircraft,
means an ILS approach to, and landing on, the runway of an airport using
a Category III ILS instrument approach procedure
[[Page 7]]
issued by the Administrator or other appropriate authority.
Ceiling means the height above the earth's surface of the lowest
layer of clouds or obscuring phenomena that is reported as ``broken'',
``overcast'', or ``obscuration'', and not classified as ``thin'' or
``partial''.
Civil aircraft means aircraft other than public aircraft.
Class:
(1) As used with respect to the certification, ratings, privileges,
and limitations of airmen, means a classification of aircraft within a
category having similar operating characteristics. Examples include:
single engine; multiengine; land; water; gyroplane; helicopter; airship;
and free balloon; and
(2) As used with respect to the certification of aircraft, means a
broad grouping of aircraft having similar characteristics of propulsion,
flight, or landing. Examples include: airplane; rotorcraft; glider;
balloon; landplane; and seaplane.
Clearway means:
(1) For turbine engine powered airplanes certificated after August
29, 1959, an area beyond the runway, not less than 500 feet wide,
centrally located about the extended centerline of the runway, and under
the control of the airport authorities. The clearway is expressed in
terms of a clearway plane, extending from the end of the runway with an
upward slope not exceeding 1.25 percent, above which no object nor any
terrain protrudes. However, threshold lights may protrude above the
plane if their height above the end of the runway is 26 inches or less
and if they are located to each side of the runway.
(2) For turbine engine powered airplanes certificated after
September 30, 1958, but before August 30, 1959, an area beyond the
takeoff runway extending no less than 300 feet on either side of the
extended centerline of the runway, at an elevation no higher than the
elevation of the end of the runway, clear of all fixed obstacles, and
under the control of the airport authorities.
Climbout speed, with respect to rotorcraft, means a referenced
airspeed which results in a flight path clear of the height-velocity
envelope during initial climbout.
Commercial operator means a person who, for compensation or hire,
engages in the carriage by aircraft in air commerce of persons or
property, other than as an air carrier or foreign air carrier or under
the authority of Part 375 of this title. Where it is doubtful that an
operation is for ``compensation or hire'', the test applied is whether
the carriage by air is merely incidental to the person's other business
or is, in itself, a major enterprise for profit.
Configuration, Maintenance, and Procedures (CMP) document means a
document approved by the FAA that contains minimum configuration,
operating, and maintenance requirements, hardware life-limits, and
Master Minimum Equipment List (MMEL) constraints necessary for an
airplane-engine combination to meet ETOPS type design approval
requirements.
Consensus standard means, for the purpose of certificating light-
sport aircraft, an industry-developed consensus standard that applies to
aircraft design, production, and airworthiness. It includes, but is not
limited to, standards for aircraft design and performance, required
equipment, manufacturer quality assurance systems, production acceptance
test procedures, operating instructions, maintenance and inspection
procedures, identification and recording of major repairs and major
alterations, and continued airworthiness.
Controlled airspace means an airspace of defined dimensions within
which air traffic control service is provided to IFR flights and to VFR
flights in accordance with the airspace classification.
Note: Controlled airspace is a generic term that covers Class A,
Class B, Class C, Class D, and Class E airspace.
Controlled Firing Area. A controlled firing area is established to
contain activities, which if not conducted in a controlled environment,
would be hazardous to nonparticipating aircraft.
Crewmember means a person assigned to perform duty in an aircraft
during flight time.
Critical altitude means the maximum altitude at which, in standard
atmosphere, it is possible to maintain, at a specified rotational speed,
a specified power or a specified manifold pressure.
[[Page 8]]
Unless otherwise stated, the critical altitude is the maximum altitude
at which it is possible to maintain, at the maximum continuous
rotational speed, one of the following:
(1) The maximum continuous power, in the case of engines for which
this power rating is the same at sea level and at the rated altitude.
(2) The maximum continuous rated manifold pressure, in the case of
engines, the maximum continuous power of which is governed by a constant
manifold pressure.
Critical engine means the engine whose failure would most adversely
affect the performance or handling qualities of an aircraft.
Decision altitude (DA) is a specified altitude in an instrument
approach procedure at which the pilot must decide whether to initiate an
immediate missed approach if the pilot does not see the required visual
reference, or to continue the approach. Decision altitude is expressed
in feet above mean sea level.
Decision height (DH) is a specified height above the ground in an
instrument approach procedure at which the pilot must decide whether to
initiate an immediate missed approach if the pilot does not see the
required visual reference, or to continue the approach. Decision height
is expressed in feet above ground level.
Early ETOPS means ETOPS type design approval obtained without
gaining non-ETOPS service experience on the candidate airplane-engine
combination certified for ETOPS.
EFVS operation means an operation in which visibility conditions
require an EFVS to be used in lieu of natural vision to perform an
approach or landing, determine enhanced flight visibility, identify
required visual references, or conduct a rollout.
Enhanced flight visibility (EFV) means the average forward
horizontal distance, from the cockpit of an aircraft in flight, at which
prominent topographical objects may be clearly distinguished and
identified by day or night by a pilot using an enhanced flight vision
system.
Enhanced flight vision system (EFVS) means an installed aircraft
system which uses an electronic means to provide a display of the
forward external scene topography (the natural or manmade features of a
place or region especially in a way to show their relative positions and
elevation) through the use of imaging sensors, including but not limited
to forward-looking infrared, millimeter wave radiometry, millimeter wave
radar, or low-light level image intensification. An EFVS includes the
display element, sensors, computers and power supplies, indications, and
controls.
Equivalent airspeed means the calibrated airspeed of an aircraft
corrected for adiabatic compressible flow for the particular altitude.
Equivalent airspeed is equal to calibrated airspeed in standard
atmosphere at sea level.
ETOPS Significant System means an airplane system, including the
propulsion system, the failure or malfunctioning of which could
adversely affect the safety of an ETOPS flight, or the continued safe
flight and landing of an airplane during an ETOPS diversion. Each ETOPS
significant system is either an ETOPS group 1 significant system or an
ETOPS group 2 significant system.
(1) An ETOPS group 1 Significant System--
(i) Has fail-safe characteristics directly linked to the degree of
redundancy provided by the number of engines on the airplane.
(ii) Is a system, the failure or malfunction of which could result
in an IFSD, loss of thrust control, or other power loss.
(iii) Contributes significantly to the safety of an ETOPS diversion
by providing additional redundancy for any system power source lost as a
result of an inoperative engine.
(iv) Is essential for prolonged operation of an airplane at engine
inoperative altitudes.
(2) An ETOPS group 2 significant system is an ETOPS significant
system that is not an ETOPS group 1 significant system.
Extended Operations (ETOPS) means an airplane flight operation,
other than an all-cargo operation in an airplane with more than two
engines, during
[[Page 9]]
which a portion of the flight is conducted beyond a time threshold
identified in part 121 or part 135 of this chapter that is determined
using an approved one-engine-inoperative cruise speed under standard
atmospheric conditions in still air.
Extended over-water operation means--
(1) With respect to aircraft other than helicopters, an operation
over water at a horizontal distance of more than 50 nautical miles from
the nearest shoreline; and
(2) With respect to helicopters, an operation over water at a
horizontal distance of more than 50 nautical miles from the nearest
shoreline and more than 50 nautical miles from an off-shore heliport
structure.
External load means a load that is carried, or extends, outside of
the aircraft fuselage.
External-load attaching means means the structural components used
to attach an external load to an aircraft, including external-load
containers, the backup structure at the attachment points, and any
quick-release device used to jettison the external load.
Final approach fix (FAF) defines the beginning of the final approach
segment and the point where final segment descent may begin.
Final takeoff speed means the speed of the airplane that exists at
the end of the takeoff path in the en route configuration with one
engine inoperative.
Fireproof--
(1) With respect to materials and parts used to confine fire in a
designated fire zone, means the capacity to withstand at least as well
as steel in dimensions appropriate for the purpose for which they are
used, the heat produced when there is a severe fire of extended duration
in that zone; and
(2) With respect to other materials and parts, means the capacity to
withstand the heat associated with fire at least as well as steel in
dimensions appropriate for the purpose for which they are used.
Fire resistant--
(1) With respect to sheet or structural members means the capacity
to withstand the heat associated with fire at least as well as aluminum
alloy in dimensions appropriate for the purpose for which they are used;
and
(2) With respect to fluid-carrying lines, fluid system parts,
wiring, air ducts, fittings, and powerplant controls, means the capacity
to perform the intended functions under the heat and other conditions
likely to occur when there is a fire at the place concerned.
Flame resistant means not susceptible to combustion to the point of
propagating a flame, beyond safe limits, after the ignition source is
removed.
Flammable, with respect to a fluid or gas, means susceptible to
igniting readily or to exploding.
Flap extended speed means the highest speed permissible with wing
flaps in a prescribed extended position.
Flash resistant means not susceptible to burning violently when
ignited.
Flightcrew member means a pilot, flight engineer, or flight
navigator assigned to duty in an aircraft during flight time.
Flight level means a level of constant atmospheric pressure related
to a reference datum of 29.92 inches of mercury. Each is stated in three
digits that represent hundreds of feet. For example, flight level 250
represents a barometric altimeter indication of 25,000 feet; flight
level 255, an indication of 25,500 feet.
Flight plan means specified information, relating to the intended
flight of an aircraft, that is filed orally or in writing with air
traffic control.
Flight simulation training device (FSTD) means a full flight
simulator or a flight training device.
Flight time means:
(1) Pilot time that commences when an aircraft moves under its own
power for the purpose of flight and ends when the aircraft comes to rest
after landing; or
(2) For a glider without self-launch capability, pilot time that
commences when the glider is towed for the purpose of flight and ends
when the glider comes to rest after landing.
Flight training device (FTD) means a replica of aircraft
instruments, equipment, panels, and controls in an open flight deck area
or an enclosed aircraft cockpit replica. It includes the equipment and
computer programs necessary to represent aircraft (or set of aircraft)
operations in ground and
[[Page 10]]
flight conditions having the full range of capabilities of the systems
installed in the device as described in part 60 of this chapter and the
qualification performance standard (QPS) for a specific FTD
qualification level.
Flight visibility means the average forward horizontal distance,
from the cockpit of an aircraft in flight, at which prominent unlighted
objects may be seen and identified by day and prominent lighted objects
may be seen and identified by night.
Foreign air carrier means any person other than a citizen of the
United States, who undertakes directly, by lease or other arrangement,
to engage in air transportation.
Foreign air commerce means the carriage by aircraft of persons or
property for compensation or hire, or the carriage of mail by aircraft,
or the operation or navigation of aircraft in the conduct or furtherance
of a business or vocation, in commerce between a place in the United
States and any place outside thereof; whether such commerce moves wholly
by aircraft or partly by aircraft and partly by other forms of
transportation.
Foreign air transportation means the carriage by aircraft of persons
or property as a common carrier for compensation or hire, or the
carriage of mail by aircraft, in commerce between a place in the United
States and any place outside of the United States, whether that commerce
moves wholly by aircraft or partly by aircraft and partly by other forms
of transportation.
Forward wing means a forward lifting surface of a canard
configuration or tandem-wing configuration airplane. The surface may be
a fixed, movable, or variable geometry surface, with or without control
surfaces.
Full flight simulator (FFS) means a replica of a specific type; or
make, model, and series aircraft cockpit. It includes the assemblage of
equipment and computer programs necessary to represent aircraft
operations in ground and flight conditions, a visual system providing an
out-of-the-cockpit view, a system that provides cues at least equivalent
to those of a three-degree-of-freedom motion system, and has the full
range of capabilities of the systems installed in the device as
described in part 60 of this chapter and the qualification performance
standards (QPS) for a specific FFS qualification level.
Glider means a heavier-than-air aircraft, that is supported in
flight by the dynamic reaction of the air against its lifting surfaces
and whose free flight does not depend principally on an engine.
Ground visibility means prevailing horizontal visibility near the
earth's surface as reported by the United States National Weather
Service or an accredited observer.
Go-around power or thrust setting means the maximum allowable in-
flight power or thrust setting identified in the performance data.
Gyrodyne means a rotorcraft whose rotors are normally engine-driven
for takeoff, hovering, and landing, and for forward flight through part
of its speed range, and whose means of propulsion, consisting usually of
conventional propellers, is independent of the rotor system.
Gyroplane means a rotorcraft whose rotors are not engine-driven,
except for initial starting, but are made to rotate by action of the air
when the rotorcraft is moving; and whose means of propulsion, consisting
usually of conventional propellers, is independent of the rotor system.
Helicopter means a rotorcraft that, for its horizontal motion,
depends principally on its engine-driven rotors.
Heliport means an area of land, water, or structure used or intended
to be used for the landing and takeoff of helicopters.
Idle thrust means the jet thrust obtained with the engine power
control level set at the stop for the least thrust position at which it
can be placed.
IFR conditions means weather conditions below the minimum for flight
under visual flight rules.
IFR over-the-top, with respect to the operation of aircraft, means
the operation of an aircraft over-the-top on an IFR flight plan when
cleared by air traffic control to maintain ``VFR conditions'' or ``VFR
conditions on top''.
Indicated airspeed means the speed of an aircraft as shown on its
pitot static airspeed indicator calibrated to reflect
[[Page 11]]
standard atmosphere adiabatic compressible flow at sea level uncorrected
for airspeed system errors.
In-flight shutdown (IFSD) means, for ETOPS only, when an engine
ceases to function (when the airplane is airborne) and is shutdown,
whether self induced, flightcrew initiated or caused by an external
influence. The FAA considers IFSD for all causes: for example, flameout,
internal failure, flightcrew initiated shutdown, foreign object
ingestion, icing, inability to obtain or control desired thrust or
power, and cycling of the start control, however briefly, even if the
engine operates normally for the remainder of the flight. This
definition excludes the airborne cessation of the functioning of an
engine when immediately followed by an automatic engine relight and when
an engine does not achieve desired thrust or power but is not shutdown.
Instrument means a device using an internal mechanism to show
visually or aurally the attitude, altitude, or operation of an aircraft
or aircraft part. It includes electronic devices for automatically
controlling an aircraft in flight.
Instrument approach procedure (IAP) is a series of predetermined
maneuvers by reference to flight instruments with specified protection
from obstacles and assurance of navigation signal reception capability.
It begins from the initial approach fix, or where applicable, from the
beginning of a defined arrival route to a point:
(1) From which a landing can be completed; or
(2) If a landing is not completed, to a position at which holding or
en route obstacle clearance criteria apply.
Interstate air commerce means the carriage by aircraft of persons or
property for compensation or hire, or the carriage of mail by aircraft,
or the operation or navigation of aircraft in the conduct or furtherance
of a business or vocation, in commerce between a place in any State of
the United States, or the District of Columbia, and a place in any other
State of the United States, or the District of Columbia; or between
places in the same State of the United States through the airspace over
any place outside thereof; or between places in the same territory or
possession of the United States, or the District of Columbia.
Interstate air transportation means the carriage by aircraft of
persons or property as a common carrier for compensation or hire, or the
carriage of mail by aircraft in commerce:
(1) Between a place in a State or the District of Columbia and
another place in another State or the District of Columbia;
(2) Between places in the same State through the airspace over any
place outside that State; or
(3) Between places in the same possession of the United States;
Whether that commerce moves wholly by aircraft of partly by aircraft and
partly by other forms of transportation.
Intrastate air transportation means the carriage of persons or
property as a common carrier for compensation or hire, by turbojet-
powered aircraft capable of carrying thirty or more persons, wholly
within the same State of the United States.
Kite means a framework, covered with paper, cloth, metal, or other
material, intended to be flown at the end of a rope or cable, and having
as its only support the force of the wind moving past its surfaces.
Landing gear extended speed means the maximum speed at which an
aircraft can be safely flown with the landing gear extended.
Landing gear operating speed means the maximum speed at which the
landing gear can be safely extended or retracted.
Large aircraft means aircraft of more than 12,500 pounds, maximum
certificated takeoff weight.
Light-sport aircraft means an aircraft, other than a helicopter or
powered-lift that, since its original certification, has continued to
meet the following:
(1) A maximum takeoff weight of not more than--
(i) 1,320 pounds (600 kilograms) for aircraft not intended for
operation on water; or
(ii) 1,430 pounds (650 kilograms) for an aircraft intended for
operation on water.
(2) A maximum airspeed in level flight with maximum continuous power
(VH) of not more than 120 knots CAS
[[Page 12]]
under standard atmospheric conditions at sea level.
(3) A maximum never-exceed speed (VNE) of not more than
120 knots CAS for a glider.
(4) A maximum stalling speed or minimum steady flight speed without
the use of lift-enhancing devices (VS1) of not more than 45
knots CAS at the aircraft's maximum certificated takeoff weight and most
critical center of gravity.
(5) A maximum seating capacity of no more than two persons,
including the pilot.
(6) A single, reciprocating engine, if powered.
(7) A fixed or ground-adjustable propeller if a powered aircraft
other than a powered glider.
(8) A fixed or feathering propeller system if a powered glider.
(9) A fixed-pitch, semi-rigid, teetering, two-blade rotor system, if
a gyroplane.
(10) A nonpressurized cabin, if equipped with a cabin.
(11) Fixed landing gear, except for an aircraft intended for
operation on water or a glider.
(12) Fixed or retractable landing gear, or a hull, for an aircraft
intended for operation on water.
(13) Fixed or retractable landing gear for a glider.
Lighter-than-air aircraft means aircraft that can rise and remain
suspended by using contained gas weighing less than the air that is
displaced by the gas.
Load factor means the ratio of a specified load to the total weight
of the aircraft. The specified load is expressed in terms of any of the
following: aerodynamic forces, inertia forces, or ground or water
reactions.
Long-range communication system (LRCS). A system that uses satellite
relay, data link, high frequency, or another approved communication
system which extends beyond line of sight.
Long-range navigation system (LRNS). An electronic navigation unit
that is approved for use under instrument flight rules as a primary
means of navigation, and has at least one source of navigational input,
such as inertial navigation system or global positioning system.
Mach number means the ratio of true airspeed to the speed of sound.
Main rotor means the rotor that supplies the principal lift to a
rotorcraft.
Maintenance means inspection, overhaul, repair, preservation, and
the replacement of parts, but excludes preventive maintenance.
Major alteration means an alteration not listed in the aircraft,
aircraft engine, or propeller specifications--
(1) That might appreciably affect weight, balance, structural
strength, performance, powerplant operation, flight characteristics, or
other qualities affecting airworthiness; or
(2) That is not done according to accepted practices or cannot be
done by elementary operations.
Major repair means a repair:
(1) That, if improperly done, might appreciably affect weight,
balance, structural strength, performance, powerplant operation, flight
characteristics, or other qualities affecting airworthiness; or
(2) That is not done according to accepted practices or cannot be
done by elementary operations.
Manifold pressure means absolute pressure as measured at the
appropriate point in the induction system and usually expressed in
inches of mercury.
Maximum engine overtorque, as it applies to turbopropeller and
turboshaft engines incorporating free power turbines for all ratings
except one engine inoperative (OEI) ratings of two minutes or less,
means the maximum torque of the free power turbine rotor assembly, the
inadvertent occurrence of which, for periods of up to 20 seconds, will
not require rejection of the engine from service, or any maintenance
action other than to correct the cause.
Maximum speed for stability characteristics, VFC/
MFC means a speed that may not be less than a speed midway
between maximum operating limit speed (VMO/MMO)
and demonstrated flight diving speed (VDF/MDF),
except that, for altitudes where the Mach number is the limiting factor,
MFC need not exceed the Mach number at which effective speed
warning occurs.
[[Page 13]]
Medical certificate means acceptable evidence of physical fitness on
a form prescribed by the Administrator.
Military operations area. A military operations area (MOA) is
airspace established outside Class A airspace to separate or segregate
certain nonhazardous military activities from IFR Traffic and to
identify for VFR traffic where theses activities are conducted.
Minimum descent altitude (MDA) is the lowest altitude specified in
an instrument approach procedure, expressed in feet above mean sea
level, to which descent is authorized on final approach or during
circle-to-land maneuvering until the pilot sees the required visual
references for the heliport or runway of intended landing.
Minor alteration means an alteration other than a major alteration.
Minor repair means a repair other than a major repair.
National defense airspace means airspace established by a regulation
prescribed, or an order issued under, 49 U.S.C. 40103(b)(3).
Navigable airspace means airspace at and above the minimum flight
altitudes prescribed by or under this chapter, including airspace needed
for safe takeoff and landing.
Night means the time between the end of evening civil twilight and
the beginning of morning civil twilight, as published in the Air
Almanac, converted to local time.
Nonprecision approach procedure means a standard instrument approach
procedure in which no electronic glide slope is provided.
Operate, with respect to aircraft, means use, cause to use or
authorize to use aircraft, for the purpose (except as provided in Sec.
91.13 of this chapter) of air navigation including the piloting of
aircraft, with or without the right of legal control (as owner, lessee,
or otherwise).
Operational control, with respect to a flight, means the exercise of
authority over initiating, conducting or terminating a flight.
Overseas air commerce means the carriage by aircraft of persons or
property for compensation or hire, or the carriage of mail by aircraft,
or the operation or navigation of aircraft in the conduct or furtherance
of a business or vocation, in commerce between a place in any State of
the United States, or the District of Columbia, and any place in a
territory or possession of the United States; or between a place in a
territory or possession of the United States, and a place in any other
territory or possession of the United States.
Overseas air transportation means the carriage by aircraft of
persons or property as a common carrier for compensation or hire, or the
carriage of mail by aircraft, in commerce:
(1) Between a place in a State or the District of Columbia and a
place in a possession of the United States; or
(2) Between a place in a possession of the United States and a place
in another possession of the United States; whether that commerce moves
wholly by aircraft or partly by aircraft and partly by other forms of
transportation.
Over-the-top means above the layer of clouds or other obscuring
phenomena forming the ceiling.
Parachute means a device used or intended to be used to retard the
fall of a body or object through the air.
Person means an individual, firm, partnership, corporation, company,
association, joint-stock association, or governmental entity. It
includes a trustee, receiver, assignee, or similar representative of any
of them.
Pilotage means navigation by visual reference to landmarks.
Pilot in command means the person who:
(1) Has final authority and responsibility for the operation and
safety of the flight;
(2) Has been designated as pilot in command before or during the
flight; and
(3) Holds the appropriate category, class, and type rating, if
appropriate, for the conduct of the flight.
Pitch setting means the propeller blade setting as determined by the
blade angle measured in a manner, and at a radius, specified by the
instruction manual for the propeller.
Portable oxygen concentrator means a medical device that separates
oxygen from other gasses in ambient air and dispenses this concentrated
oxygen to the user.
[[Page 14]]
Positive control means control of all air traffic, within designated
airspace, by air traffic control.
Powered parachute means a powered aircraft comprised of a flexible
or semi-rigid wing connected to a fuselage so that the wing is not in
position for flight until the aircraft is in motion. The fuselage of a
powered parachute contains the aircraft engine, a seat for each occupant
and is attached to the aircraft's landing gear.
Powered-lift means a heavier-than-air aircraft capable of vertical
takeoff, vertical landing, and low speed flight that depends principally
on engine-driven lift devices or engine thrust for lift during these
flight regimes and on nonrotating airfoil(s) for lift during horizontal
flight.
Precision approach procedure means a standard instrument approach
procedure in which an electronic glide slope is provided, such as ILS
and PAR.
Preventive maintenance means simple or minor preservation operations
and the replacement of small standard parts not involving complex
assembly operations.
Prohibited area. A prohibited area is airspace designated under part
73 within which no person may operate an aircraft without the permission
of the using agency.
Propeller means a device for propelling an aircraft that has blades
on an engine-driven shaft and that, when rotated, produces by its action
on the air, a thrust approximately perpendicular to its plane of
rotation. It includes control components normally supplied by its
manufacturer, but does not include main and auxiliary rotors or rotating
airfoils of engines.
Public aircraft means any of the following aircraft when not being
used for a commercial purpose or to carry an individual other than a
crewmember or qualified non-crewmenber:
(1) An aircraft used only for the United States Government; an
aircraft owned by the Government and operated by any person for purposes
related to crew training, equipment development, or demonstration; an
aircraft owned and operated by the government of a State, the District
of Columbia, or a territory or possession of the United States or a
political subdivision of one of these governments; or an aircraft
exclusively leased for at least 90 continuous days by the government of
a State, the District of Columbia, or a territory or possession of the
United States or a political subdivision of one of these governments.
(i) For the sole purpose of determining public aircraft status,
commercial purposes means the transportation of persons or property for
compensation or hire, but does not include the operation of an aircraft
by the armed forces for reimbursement when that reimbursement is
required by any Federal statute, regulation, or directive, in effect on
November 1, 1999, or by one government on behalf of another government
under a cost reimbursement agreement if the government on whose behalf
the operation is conducted certifies to the Administrator of the Federal
Aviation Administration that the operation is necessary to respond to a
significant and imminent threat to life or property (including natural
resources) and that no service by a private operator is reasonably
available to meet the threat.
(ii) For the sole purpose of determining public aircraft status,
governmental function means an activity undertaken by a government, such
as national defense, intelligence missions, firefighting, search and
rescue, law enforcement (including transport of prisoners, detainees,
and illegal aliens), aeronautical research, or biological or geological
resource management.
(iii) For the sole purpose of determining public aircraft status,
qualified non-crewmember means an individual, other than a member of the
crew, aboard an aircraft operated by the armed forces or an intelligence
agency of the United States Government, or whose presence is required to
perform, or is associated with the performance of, a governmental
function.
(2) An aircraft owned or operated by the armed forces or chartered
to provide transportation to the armed forces if--
(i) The aircraft is operated in accordance with title 10 of the
United States Code;
(ii) The aircraft is operated in the performance of a governmental
function under title 14, 31, 32, or 50 of the
[[Page 15]]
United States Code and the aircraft is not used for commercial purposes;
or
(iii) The aircraft is chartered to provide transportation to the
armed forces and the Secretary of Defense (or the Secretary of the
department in which the Coast Guard is operating) designates the
operation of the aircraft as being required in the national interest.
(3) An aircraft owned or operated by the National Guard of a State,
the District of Columbia, or any territory or possession of the United
States, and that meets the criteria of paragraph (2) of this definition,
qualifies as a public aircraft only to the extent that it is operated
under the direct control of the Department of Defense.
Rated 30-second OEI Power, with respect to rotorcraft turbine
engines, means the approved brake horsepower developed under static
conditions at specified altitudes and temperatures within the operating
limitations established for the engine under part 33 of this chapter,
for continuation of one flight operation after the failure or shutdown
of one engine in multiengine rotorcraft, for up to three periods of use
no longer than 30 seconds each in any one flight, and followed by
mandatory inspection and prescribed maintenance action.
Rated 2-minute OEI Power, with respect to rotorcraft turbine
engines, means the approved brake horsepower developed under static
conditions at specified altitudes and temperatures within the operating
limitations established for the engine under part 33 of this chapter,
for continuation of one flight operation after the failure or shutdown
of one engine in multiengine rotorcraft, for up to three periods of use
no longer than 2 minutes each in any one flight, and followed by
mandatory inspection and prescribed maintenance action.
Rated continuous OEI power, with respect to rotorcraft turbine
engines, means the approved brake horsepower developed under static
conditions at specified altitudes and temperatures within the operating
limitations established for the engine under part 33 of this chapter,
and limited in use to the time required to complete the flight after the
failure or shutdown of one engine of a multiengine rotorcraft.
Rated maximum continuous augmented thrust, with respect to turbojet
engine type certification, means the approved jet thrust that is
developed statically or in flight, in standard atmosphere at a specified
altitude, with fluid injection or with the burning of fuel in a separate
combustion chamber, within the engine operating limitations established
under Part 33 of this chapter, and approved for unrestricted periods of
use.
Rated maximum continuous power, with respect to reciprocating,
turbopropeller, and turboshaft engines, means the approved brake
horsepower that is developed statically or in flight, in standard
atmosphere at a specified altitude, within the engine operating
limitations established under part 33, and approved for unrestricted
periods of use.
Rated maximum continuous thrust, with respect to turbojet engine
type certification, means the approved jet thrust that is developed
statically or in flight, in standard atmosphere at a specified altitude,
without fluid injection and without the burning of fuel in a separate
combustion chamber, within the engine operating limitations established
under part 33 of this chapter, and approved for unrestricted periods of
use.
Rated takeoff augmented thrust, with respect to turbojet engine type
certification, means the approved jet thrust that is developed
statically under standard sea level conditions, with fluid injection or
with the burning of fuel in a separate combustion chamber, within the
engine operating limitations established under part 33 of this chapter,
and limited in use to periods of not over 5 minutes for takeoff
operation.
Rated takeoff power, with respect to reciprocating, turbopropeller,
and turboshaft engine type certification, means the approved brake
horsepower that is developed statically under standard sea level
conditions, within the engine operating limitations established under
part 33, and limited in use to periods of not over 5 minutes for takeoff
operation.
Rated takeoff thrust, with respect to turbojet engine type
certification, means the approved jet thrust that is
[[Page 16]]
developed statically under standard sea level conditions, without fluid
injection and without the burning of fuel in a separate combustion
chamber, within the engine operating limitations established under part
33 of this chapter, and limited in use to periods of not over 5 minutes
for takeoff operation.
Rated 30-minute OEI power, with respect to rotorcraft turbine
engines, means the approved brake horsepower developed under static
conditions at specified altitudes and temperatures within the operating
limitations established for the engine under part 33 of this chapter,
and limited in use to one period of use no longer than 30 minutes after
the failure or shutdown of one engine of a multiengine rotorcraft.
Rated 2\1/2\-minute OEI power, with respect to rotorcraft turbine
engines, means the approved brake horsepower developed under static
conditions at specified altitudes and temperatures within the operating
limitations established for the engine under part 33 of this chapter for
periods of use no longer than 2\1/2\ minutes each after the failure or
shutdown of one engine of a multiengine rotorcraft.
Rating means a statement that, as a part of a certificate, sets
forth special conditions, privileges, or limitations.
Reference landing speed means the speed of the airplane, in a
specified landing configuration, at the point where it descends through
the 50 foot height in the determination of the landing distance.
Reporting point means a geographical location in relation to which
the position of an aircraft is reported.
Restricted area. A restricted area is airspace designated under Part
73 within which the flight of aircraft, while not wholly prohibited, is
subject to restriction.
Rocket means an aircraft propelled by ejected expanding gases
generated in the engine from self-contained propellants and not
dependent on the intake of outside substances. It includes any part
which becomes separated during the operation.
Rotorcraft means a heavier-than-air aircraft that depends
principally for its support in flight on the lift generated by one or
more rotors.
Rotorcraft-load combination means the combination of a rotorcraft
and an external-load, including the external-load attaching means.
Rotorcraft-load combinations are designated as Class A, Class B, Class
C, and Class D, as follows:
(1) Class A rotorcraft-load combination means one in which the
external load cannot move freely, cannot be jettisoned, and does not
extend below the landing gear.
(2) Class B rotorcraft-load combination means one in which the
external load is jettisonable and is lifted free of land or water during
the rotorcraft operation.
(3) Class C rotorcraft-load combination means one in which the
external load is jettisonable and remains in contact with land or water
during the rotorcraft operation.
(4) Class D rotorcraft-load combination means one in which the
external-load is other than a Class A, B, or C and has been specifically
approved by the Administrator for that operation.
Route segment is a portion of a route bounded on each end by a fix
or navigation aid (NAVAID).
Sea level engine means a reciprocating aircraft engine having a
rated takeoff power that is producible only at sea level.
Second in command means a pilot who is designated to be second in
command of an aircraft during flight time.
Show, unless the context otherwise requires, means to show to the
satisfaction of the Administrator.
Small aircraft means aircraft of 12,500 pounds or less, maximum
certificated takeoff weight.
Small unmanned aircraft means an unmanned aircraft weighing less
than 55 pounds on takeoff, including everything that is on board or
otherwise attached to the aircraft.
Small unmanned aircraft system (small UAS) means a small unmanned
aircraft and its associated elements (including communication links and
the components that control the small unmanned aircraft) that are
required for the safe and efficient operation of the small unmanned
aircraft in the national airspace system.
Special VFR conditions mean meteorological conditions that are less
than those required for basic VFR flight in
[[Page 17]]
controlled airspace and in which some aircraft are permitted flight
under visual flight rules.
Special VFR operations means aircraft operating in accordance with
clearances within controlled airspace in meteorological conditions less
than the basic VFR weather minima. Such operations must be requested by
the pilot and approved by ATC.
Standard atmosphere means the atmosphere defined in U.S. Standard
Atmosphere, 1962 (Geopotential altitude tables).
Stopway means an area beyond the takeoff runway, no less wide than
the runway and centered upon the extended centerline of the runway, able
to support the airplane during an aborted takeoff, without causing
structural damage to the airplane, and designated by the airport
authorities for use in decelerating the airplane during an aborted
takeoff.
Suitable RNAV system is an RNAV system that meets the required
performance established for a type of operation, e.g. IFR; and is
suitable for operation over the route to be flown in terms of any
performance criteria (including accuracy) established by the air
navigation service provider for certain routes (e.g. oceanic, ATS
routes, and IAPs). An RNAV system's suitability is dependent upon the
availability of ground and/or satellite navigation aids that are needed
to meet any route performance criteria that may be prescribed in route
specifications to navigate the aircraft along the route to be flown.
Information on suitable RNAV systems is published in FAA guidance
material.
Synthetic vision means a computer-generated image of the external
scene topography from the perspective of the flight deck that is derived
from aircraft attitude, high-precision navigation solution, and database
of terrain, obstacles and relevant cultural features.
Synthetic vision system means an electronic means to display a
synthetic vision image of the external scene topography to the flight
crew.
Takeoff power:
(1) With respect to reciprocating engines, means the brake
horsepower that is developed under standard sea level conditions, and
under the maximum conditions of crankshaft rotational speed and engine
manifold pressure approved for the normal takeoff, and limited in
continuous use to the period of time shown in the approved engine
specification; and
(2) With respect to turbine engines, means the brake horsepower that
is developed under static conditions at a specified altitude and
atmospheric temperature, and under the maximum conditions of rotor shaft
rotational speed and gas temperature approved for the normal takeoff,
and limited in continuous use to the period of time shown in the
approved engine specification.
Takeoff safety speed means a referenced airspeed obtained after
lift-off at which the required one-engine-inoperative climb performance
can be achieved.
Takeoff thrust, with respect to turbine engines, means the jet
thrust that is developed under static conditions at a specific altitude
and atmospheric temperature under the maximum conditions of rotorshaft
rotational speed and gas temperature approved for the normal takeoff,
and limited in continuous use to the period of time shown in the
approved engine specification.
Tandem wing configuration means a configuration having two wings of
similar span, mounted in tandem.
TCAS I means a TCAS that utilizes interrogations of, and replies
from, airborne radar beacon transponders and provides traffic advisories
to the pilot.
TCAS II means a TCAS that utilizes interrogations of, and replies
from airborne radar beacon transponders and provides traffic advisories
and resolution advisories in the vertical plane.
TCAS III means a TCAS that utilizes interrogation of, and replies
from, airborne radar beacon transponders and provides traffic advisories
and resolution advisories in the vertical and horizontal planes to the
pilot.
Time in service, with respect to maintenance time records, means the
time from the moment an aircraft leaves the surface of the earth until
it touches it at the next point of landing.
Traffic pattern means the traffic flow that is prescribed for
aircraft landing at, taxiing on, or taking off from, an airport.
[[Page 18]]
True airspeed means the airspeed of an aircraft relative to
undisturbed air. True airspeed is equal to equivalent airspeed
multiplied by ([rho]0/[rho])\1/2\.
Type:
(1) As used with respect to the certification, ratings, privileges,
and limitations of airmen, means a specific make and basic model of
aircraft, including modifications thereto that do not change its
handling or flight characteristics. Examples include: DC-7, 1049, and F-
27; and
(2) As used with respect to the certification of aircraft, means
those aircraft which are similar in design. Examples include: DC-7 and
DC-7C; 1049G and 1049H; and F-27 and F-27F.
(3) As used with respect to the certification of aircraft engines
means those engines which are similar in design. For example, JT8D and
JT8D-7 are engines of the same type, and JT9D-3A and JT9D-7 are engines
of the same type.
United States, in a geographical sense, means (1) the States, the
District of Columbia, Puerto Rico, and the possessions, including the
territorial waters, and (2) the airspace of those areas.
United States air carrier means a citizen of the United States who
undertakes directly by lease, or other arrangement, to engage in air
transportation.
Unmanned aircraft means an aircraft operated without the possibility
of direct human intervention from within or on the aircraft.
Unmanned aircraft system means an unmanned aircraft and its
associated elements (including communication links and the components
that control the unmanned aircraft) that are required for the safe and
efficient operation of the unmanned aircraft in the airspace of the
United States.
VFR over-the-top, with respect to the operation of aircraft, means
the operation of an aircraft over-the-top under VFR when it is not being
operated on an IFR flight plan.
Warning area. A warning area is airspace of defined dimensions,
extending from 3 nautical miles outward from the coast of the United
States, that contains activity that may be hazardous to nonparticipating
aircraft. The purpose of such warning areas is to warn nonparticipating
pilots of the potential danger. A warning area may be located over
domestic or international waters or both.
Weight-shift-control aircraft means a powered aircraft with a framed
pivoting wing and a fuselage controllable only in pitch and roll by the
pilot's ability to change the aircraft's center of gravity with respect
to the wing. Flight control of the aircraft depends on the wing's
ability to flexibly deform rather than the use of control surfaces.
Winglet or tip fin means an out-of-plane surface extending from a
lifting surface. The surface may or may not have control surfaces.
[Doc. No. 1150, 27 FR 4588, May 15, 1962]
Editorial Note: For Federal Register citations affecting Sec. 1.1,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and at www.govinfo.gov.
Sec. 1.2 Abbreviations and symbols.
In Subchapters A through K of this chapter:
AFM means airplane flight manual.
AGL means above ground level.
ALS means approach light system.
APU means auxiliary power unit.
ASR means airport surveillance radar.
ATC means air traffic control.
ATS means Air Traffic Service.
CAMP means continuous airworthiness maintenance program.
CAS means calibrated airspeed.
CAT II means Category II.
CMP means configuration, maintenance, and procedures.
DH means decision height.
DME means distance measuring equipment compatible with TACAN.
EAS means equivalent airspeed.
EFVS means enhanced flight vision system.
Equi-Time Point means a point on the route of flight where the
flight time, considering wind, to each of two selected airports is
equal.
ETOPS means extended operations.
EWIS, as defined by Sec. 25.1701 of this chapter, means electrical
wiring interconnection system.
FAA means Federal Aviation Administration.
FFS means full flight simulator.
FM means fan marker.
[[Page 19]]
FSTD means flight simulation training device.
FTD means flight training device.
GS means glide slope.
HIRL means high-intensity runway light system.
IAS means indicated airspeed.
ICAO means International Civil Aviation Organization.
IFR means instrument flight rules.
IFSD means in-flight shutdown.
ILS means instrument landing system.
IM means ILS inner marker.
INT means intersection.
LDA means localizer-type directional aid.
LFR means low-frequency radio range.
LMM means compass locator at middle marker.
LOC means ILS localizer.
LOM means compass locator at outer marker.
M means mach number.
MAA means maximum authorized IFR altitude.
MALS means medium intensity approach light system.
MALSR means medium intensity approach light system with runway
alignment indicator lights.
MCA means minimum crossing altitude.
MDA means minimum descent altitude.
MEA means minimum en route IFR altitude.
MEL means minimum equipment list.
MM means ILS middle marker.
MOCA means minimum obstruction clearance altitude.
MRA means minimum reception altitude.
MSL means mean sea level.
NDB (ADF) means nondirectional beacon (automatic direction finder).
NM means nautical mile.
NOPAC means North Pacific area of operation.
NOPT means no procedure turn required.
OEI means one engine inoperative.
OM means ILS outer marker.
OPSPECS means operations specifications.
PACOTS means Pacific Organized Track System.
PAR means precision approach radar.
PMA means parts manufacturer approval.
POC means portable oxygen concentrator.
PTRS means Performance Tracking and Reporting System.
RAIL means runway alignment indicator light system.
RBN means radio beacon.
RCLM means runway centerline marking.
RCLS means runway centerline light system.
REIL means runway end identification lights.
RFFS means rescue and firefighting services.
RNAV means area navigation.
RR means low or medium frequency radio range station.
RVR means runway visual range as measured in the touchdown zone
area.
SALS means short approach light system.
SATCOM means satellite communications.
SSALS means simplified short approach light system.
SSALSR means simplified short approach light system with runway
alignment indicator lights.
TACAN means ultra-high frequency tactical air navigational aid.
TAS means true airspeed.
TCAS means a traffic alert and collision avoidance system.
TDZL means touchdown zone lights.
TSO means technical standard order.
TVOR means very high frequency terminal omnirange station.
VA means design maneuvering speed.
VB means design speed for maximum gust intensity.
VC means design cruising speed.
VD means design diving speed.
VDF/MDF means demonstrated flight diving speed.
VEF means the speed at which the critical engine is assumed to fail
during takeoff.
VF means design flap speed.
VFC/MFC means maximum speed for stability characteristics.
VFE means maximum flap extended speed.
VFTO means final takeoff speed.
[[Page 20]]
VH means maximum speed in level flight with maximum continuous
power.
VLE means maximum landing gear extended speed.
VLO means maximum landing gear operating speed.
VLOF means lift-off speed.
VMC means minimum control speed with the critical engine
inoperative.
VMO/MMO means maximum operating limit speed.
VMU means minimum unstick speed.
VNE means never-exceed speed.
VNO means maximum structural cruising speed.
VR means rotation speed.
VREF means reference landing speed.
VS means the stalling speed or the minimum steady flight speed at
which the airplane is controllable.
VS0 means the stalling speed or the minimum steady flight
speed in the landing configuration.
VS1 means the stalling speed or the minimum steady flight
speed obtained in a specific configuration.
VSR means reference stall speed.
VSRO means reference stall speed in the landing
configuration.
VSR1 means reference stall speed in a specific
configuration.
VSW means speed at which onset of natural or artificial stall
warning occurs.
VTOSS means takeoff safety speed for Category A rotorcraft.
VX means speed for best angle of climb.
VY means speed for best rate of climb.
V1 means the maximum speed in the takeoff at which the pilot must
take the first action (e.g., apply brakes, reduce thrust, deploy speed
brakes) to stop the airplane within the accelerate-stop distance.
V1 also means the minimum speed in the takeoff, following a
failure of the critical engine at VEF, at which the pilot can
continue the takeoff and achieve the required height above the takeoff
surface within the takeoff distance.
V2 means takeoff safety speed.
V2min means minimum takeoff safety speed.
VFR means visual flight rules.
VGSI means visual glide slope indicator.
VHF means very high frequency.
VOR means very high frequency omnirange station.
VORTAC means collocated VOR and TACAN.
[Doc. No. 1150, 27 FR 4590, May 15, 1962]
Editorial Note: For Federal Register citations affecting Sec. 1.2,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and at www.govinfo.gov.
Sec. 1.3 Rules of construction.
(a) In Subchapters A through K of this chapter, unless the context
requires otherwise:
(1) Words importing the singular include the plural;
(2) Words importing the plural include the singular; and
(3) Words importing the masculine gender include the feminine.
(b) In Subchapters A through K of this chapter, the word:
(1) Shall is used in an imperative sense;
(2) May is used in a permissive sense to state authority or
permission to do the act prescribed, and the words ``no person may * *
*'' or ``a person may not * * *'' mean that no person is required,
authorized, or permitted to do the act prescribed; and
(3) Includes means ``includes but is not limited to''.
[Doc. No. 1150, 27 FR 4590, May 15, 1962, as amended by Amdt. 1-10, 31
FR 5055, Mar. 29, 1966]
PART 3_GENERAL REQUIREMENTS--Table of Contents
Subpart A_General Requirements Concerning Type Certificated Products or
Products, Parts, Appliances, or Materials That May Be Used on Type-
Certificated Products
Sec.
3.1 Applicability.
3.5 Statements about products, parts, appliances and materials.
Subpart B_Security Threat Disqualification
3.200 Effect of Transportation Security Administration notification on a
certificate or any part of a certificate held by an
individual.
3.205 Effect of Transportation Security Administration notification on
applications
[[Page 21]]
by individuals for a certificate or any part of a certificate.
Authority: 49 U.S.C. 106(g), 40113, 44701, 44704, and 46111.
Source: 70 FR 54832, Sept. 16, 2005, unless otherwise noted.
Subpart A_General Requirements Concerning Type Certificated Products or
Products, Parts, Appliances, or Materials That May Be Used on Type-
Certificated Products
Sec. 3.1 Applicability.
(a) This part applies to any person who makes a record regarding:
(1) A type-certificated product, or
(2) A product, part, appliance or material that may be used on a
type-certificated product.
(b) Section 3.5(b) does not apply to records made under part 43 of
this chapter.
Sec. 3.5 Statements about products, parts, appliances and materials.
(a) Definitions. The following terms will have the stated meanings
when used in this section:
Airworthy means the aircraft conforms to its type design and is in a
condition for safe operation.
Product means an aircraft, aircraft engine, or aircraft propeller.
Record means any writing, drawing, map, recording, tape, film,
photograph or other documentary material by which information is
preserved or conveyed in any format, including, but not limited to,
paper, microfilm, identification plates, stamped marks, bar codes or
electronic format, and can either be separate from, attached to or
inscribed on any product, part, appliance or material.
(b) Prohibition against fraudulent and intentionally false
statements. When conveying information related to an advertisement or
sales transaction, no person may make or cause to be made:
(1) Any fraudulent or intentionally false statement in any record
about the airworthiness of a type-certificated product, or the
acceptability of any product, part, appliance, or material for
installation on a type-certificated product.
(2) Any fraudulent or intentionally false reproduction or alteration
of any record about the airworthiness of any type-certificated product,
or the acceptability of any product, part, appliance, or material for
installation on a type-certificated product.
(c) Prohibition against intentionally misleading statements. (1)
When conveying information related to an advertisement or sales
transaction, no person may make, or cause to be made, a material
representation that a type-certificated product is airworthy, or that a
product, part, appliance, or material is acceptable for installation on
a type-certificated product in any record if that representation is
likely to mislead a consumer acting reasonably under the circumstances.
(2) When conveying information related to an advertisement or sales
transaction, no person may make, or cause to be made, through the
omission of material information, a representation that a type-
certificated product is airworthy, or that a product, part, appliance,
or material is acceptable for installation on a type-certificated
product in any record if that representation is likely to mislead a
consumer acting reasonably under the circumstances.
(d) The provisions of Sec. 3.5(b) and Sec. 3.5(c) shall not apply
if a person can show that the product is airworthy or that the product,
part, appliance or material is acceptable for installation on a type-
certificated product.
Subpart B_Security Threat Disqualification
Source: 84 FR 42803, Aug. 19, 2019, FAA-2018-0656; Amendment No. 3-
2, unless otherwise noted.
Sec. 3.200 Effect of Transportation Security Administration notification
on a certificate or any part of a certificate held by an individual.
When the Transportation Security Administration (TSA) notifies the
FAA that an individual holding a certificate or part of a certificate
issued by the FAA poses, or is suspected of posing, a risk of air piracy
or terrorism or a threat to airline or passenger safety, the FAA will
issue an order amending,
[[Page 22]]
modifying, suspending, or revoking any certificate or part of a
certificate issued by the FAA.
Sec. 3.205 Effect of Transportation Security Administration notification
on applications by individuals for a certificate or any part of a certificate.
(a) When the TSA notifies the FAA that an individual who has applied
for a certificate or any part of a certificate issued by the FAA poses,
or is suspected of posing, a risk of air piracy or terrorism or a threat
to airline or passenger safety, the FAA will hold the individual's
certificate applications in abeyance pending further notification from
the TSA.
(b) When the TSA notifies the FAA that the TSA has made a final
security threat determination regarding an individual, the FAA will deny
all the individual's certificate applications. Alternatively, if the TSA
notifies the FAA that it has withdrawn its security threat
determination, the FAA will continue processing the individual's
applications.
PART 5_SAFETY MANAGEMENT SYSTEMS--Table of Contents
Subpart A_General
Sec.
5.1 Applicability.
5.3 General requirements.
5.5 Definitions.
Subpart B_Safety Policy
5.21 Safety policy.
5.23 Safety accountability and authority.
5.25 Designation and responsibilities of required safety management
personnel.
5.27 Coordination of emergency response planning.
Subpart C_Safety Risk Management
5.51 Applicability.
5.53 System analysis and hazard identification.
5.55 Safety risk assessment and control.
Subpart D_Safety Assurance
5.71 Safety performance monitoring and measurement.
5.73 Safety performance assessment.
5.75 Continuous improvement.
Subpart E_Safety Promotion
5.91 Competencies and training.
5.93 Safety communication.
Subpart F_SMS Documentation and Recordkeeping
5.95 SMS documentation.
5.97 SMS records.
Authority: Pub. L. 111-216, sec. 215 (Aug. 1, 2010); 49 U.S.C.
106(f), 106(g), 40101, 40113, 40119, 41706, 44101, 44701-44702, 44705,
44709-44711, 44713, 44716-44717, 44722, 46105.
Source: 80 FR 1326, Jan. 8, 2015, unless otherwise noted.
Subpart A_General
Sec. 5.1 Applicability.
(a) A certificate holder under part 119 of this chapter authorized
to conduct operations in accordance with the requirements of part 121 of
this chapter must have a Safety Management System that meets the
requirements of this part and is acceptable to the Administrator by
March 9, 2018.
(b) A certificate holder must submit an implementation plan to the
FAA Administrator for review no later than September 9, 2015. The
implementation plan must be approved no later than March 9, 2016.
(c) The implementation plan may include any of the certificate
holder's existing programs, policies, or procedures that it intends to
use to meet the requirements of this part, including components of an
existing SMS.
[80 FR 1326, Jan. 8, 2015, as amended at 80 FR 1584, Jan. 13, 2015]
Sec. 5.3 General requirements.
(a) Any certificate holder required to have a Safety Management
System under this part must submit the Safety Management System to the
Administrator for acceptance. The SMS must be appropriate to the size,
scope, and complexity of the certificate holder's operation and include
at least the following components:
(1) Safety policy in accordance with the requirements of subpart B
of this part;
(2) Safety risk management in accordance with the requirements of
subpart C of this part;
[[Page 23]]
(3) Safety assurance in accordance with the requirements of subpart
D of this part; and
(4) Safety promotion in accordance with the requirements of subpart
E of this part.
(b) The Safety Management System must be maintained in accordance
with the recordkeeping requirements in subpart F of this part.
(c) The Safety Management System must ensure compliance with the
relevant regulatory standards in chapter I of Title 14 of the Code of
Federal Regulations.
Sec. 5.5 Definitions.
Hazard means a condition that could foreseeably cause or contribute
to an aircraft accident as defined in 49 CFR 830.2.
Risk means the composite of predicted severity and likelihood of the
potential effect of a hazard.
Risk control means a means to reduce or eliminate the effects of
hazards.
Safety assurance means processes within the SMS that function
systematically to ensure the performance and effectiveness of safety
risk controls and that the organization meets or exceeds its safety
objectives through the collection, analysis, and assessment of
information.
Safety Management System (SMS) means the formal, top-down,
organization-wide approach to managing safety risk and assuring the
effectiveness of safety risk controls. It includes systematic
procedures, practices, and policies for the management of safety risk.
Safety objective means a measurable goal or desirable outcome
related to safety.
Safety performance means realized or actual safety accomplishment
relative to the organization's safety objectives.
Safety policy means the certificate holder's documented commitment
to safety, which defines its safety objectives and the accountabilities
and responsibilities of its employees in regards to safety.
Safety promotion means a combination of training and communication
of safety information to support the implementation and operation of an
SMS in an organization.
Safety Risk Management means a process within the SMS composed of
describing the system, identifying the hazards, and analyzing, assessing
and controlling risk.
Subpart B_Safety Policy
Sec. 5.21 Safety policy.
(a) The certificate holder must have a safety policy that includes
at least the following:
(1) The safety objectives of the certificate holder.
(2) A commitment of the certificate holder to fulfill the
organization's safety objectives.
(3) A clear statement about the provision of the necessary resources
for the implementation of the SMS.
(4) A safety reporting policy that defines requirements for employee
reporting of safety hazards or issues.
(5) A policy that defines unacceptable behavior and conditions for
disciplinary action.
(6) An emergency response plan that provides for the safe transition
from normal to emergency operations in accordance with the requirements
of Sec. 5.27.
(b) The safety policy must be signed by the accountable executive
described in Sec. 5.25.
(c) The safety policy must be documented and communicated throughout
the certificate holder's organization.
(d) The safety policy must be regularly reviewed by the accountable
executive to ensure it remains relevant and appropriate to the
certificate holder.
Sec. 5.23 Safety accountability and authority.
(a) The certificate holder must define accountability for safety
within the organization's safety policy for the following individuals:
(1) Accountable executive, as described in Sec. 5.25.
(2) All members of management in regard to developing, implementing,
and maintaining SMS processes within their area of responsibility,
including, but not limited to:
(i) Hazard identification and safety risk assessment.
(ii) Assuring the effectiveness of safety risk controls.
[[Page 24]]
(iii) Promoting safety as required in subpart E of this part.
(iv) Advising the accountable executive on the performance of the
SMS and on any need for improvement.
(3) Employees relative to the certificate holder's safety
performance.
(b) The certificate holder must identify the levels of management
with the authority to make decisions regarding safety risk acceptance.
Sec. 5.25 Designation and responsibilities of required safety
management personnel.
(a) Designation of the accountable executive. The certificate holder
must identify an accountable executive who, irrespective of other
functions, satisfies the following:
(1) Is the final authority over operations authorized to be
conducted under the certificate holder's certificate(s).
(2) Controls the financial resources required for the operations to
be conducted under the certificate holder's certificate(s).
(3) Controls the human resources required for the operations
authorized to be conducted under the certificate holder's
certificate(s).
(4) Retains ultimate responsibility for the safety performance of
the operations conducted under the certificate holder's certificate.
(b) Responsibilities of the accountable executive. The accountable
executive must accomplish the following:
(1) Ensure that the SMS is properly implemented and performing in
all areas of the certificate holder's organization.
(2) Develop and sign the safety policy of the certificate holder.
(3) Communicate the safety policy throughout the certificate
holder's organization.
(4) Regularly review the certificate holder's safety policy to
ensure it remains relevant and appropriate to the certificate holder.
(5) Regularly review the safety performance of the certificate
holder's organization and direct actions necessary to address
substandard safety performance in accordance with Sec. 5.75.
(c) Designation of management personnel. The accountable executive
must designate sufficient management personnel who, on behalf of the
accountable executive, are responsible for the following:
(1) Coordinate implementation, maintenance, and integration of the
SMS throughout the certificate holder's organization.
(2) Facilitate hazard identification and safety risk analysis.
(3) Monitor the effectiveness of safety risk controls.
(4) Ensure safety promotion throughout the certificate holder's
organization as required in subpart E of this part.
(5) Regularly report to the accountable executive on the performance
of the SMS and on any need for improvement.
Sec. 5.27 Coordination of emergency response planning.
Where emergency response procedures are necessary, the certificate
holder must develop and the accountable executive must approve as part
of the safety policy, an emergency response plan that addresses at least
the following:
(a) Delegation of emergency authority throughout the certificate
holder's organization;
(b) Assignment of employee responsibilities during the emergency;
and
(c) Coordination of the certificate holder's emergency response
plans with the emergency response plans of other organizations it must
interface with during the provision of its services.
Subpart C_Safety Risk Management
Sec. 5.51 Applicability.
A certificate holder must apply safety risk management to the
following:
(a) Implementation of new systems.
(b) Revision of existing systems.
(c) Development of operational procedures.
(d) Identification of hazards or ineffective risk controls through
the safety assurance processes in subpart D of this part.
[[Page 25]]
Sec. 5.53 System analysis and hazard identification.
(a) When applying safety risk management, the certificate holder
must analyze the systems identified in Sec. 5.51. Those system analyses
must be used to identify hazards under paragraph (c) of this section,
and in developing and implementing risk controls related to the system
under Sec. 5.55(c).
(b) In conducting the system analysis, the following information
must be considered:
(1) Function and purpose of the system.
(2) The system's operating environment.
(3) An outline of the system's processes and procedures.
(4) The personnel, equipment, and facilities necessary for operation
of the system.
(c) The certificate holder must develop and maintain processes to
identify hazards within the context of the system analysis.
Sec. 5.55 Safety risk assessment and control.
(a) The certificate holder must develop and maintain processes to
analyze safety risk associated with the hazards identified in Sec.
5.53(c).
(b) The certificate holder must define a process for conducting risk
assessment that allows for the determination of acceptable safety risk.
(c) The certificate holder must develop and maintain processes to
develop safety risk controls that are necessary as a result of the
safety risk assessment process under paragraph (b) of this section.
(d) The certificate holder must evaluate whether the risk will be
acceptable with the proposed safety risk control applied, before the
safety risk control is implemented.
Subpart D_Safety Assurance
Sec. 5.71 Safety performance monitoring and measurement.
(a) The certificate holder must develop and maintain processes and
systems to acquire data with respect to its operations, products, and
services to monitor the safety performance of the organization. These
processes and systems must include, at a minimum, the following:
(1) Monitoring of operational processes.
(2) Monitoring of the operational environment to detect changes.
(3) Auditing of operational processes and systems.
(4) Evaluations of the SMS and operational processes and systems.
(5) Investigations of incidents and accidents.
(6) Investigations of reports regarding potential non-compliance
with regulatory standards or other safety risk controls established by
the certificate holder through the safety risk management process
established in subpart C of this part.
(7) A confidential employee reporting system in which employees can
report hazards, issues, concerns, occurrences, incidents, as well as
propose solutions and safety improvements.
(b) The certificate holder must develop and maintain processes that
analyze the data acquired through the processes and systems identified
under paragraph (a) of this section and any other relevant data with
respect to its operations, products, and services.
[80 FR 1326, Jan. 8, 2015, as amended at 82 FR 24010, May 25, 2017]
Sec. 5.73 Safety performance assessment.
(a) The certificate holder must conduct assessments of its safety
performance against its safety objectives, which include reviews by the
accountable executive, to:
(1) Ensure compliance with the safety risk controls established by
the certificate holder.
(2) Evaluate the performance of the SMS.
(3) Evaluate the effectiveness of the safety risk controls
established under Sec. 5.55(c) and identify any ineffective controls.
(4) Identify changes in the operational environment that may
introduce new hazards.
(5) Identify new hazards.
(b) Upon completion of the assessment, if ineffective controls or
new hazards are identified under paragraphs (a)(2) through (5) of this
section, the certificate holder must use the safety
[[Page 26]]
risk management process described in subpart C of this part.
Sec. 5.75 Continuous improvement.
The certificate holder must establish and implement processes to
correct safety performance deficiencies identified in the assessments
conducted under Sec. 5.73.
Subpart E_Safety Promotion
Sec. 5.91 Competencies and training.
The certificate holder must provide training to each individual
identified in Sec. 5.23 to ensure the individuals attain and maintain
the competencies necessary to perform their duties relevant to the
operation and performance of the SMS.
Sec. 5.93 Safety communication.
The certificate holder must develop and maintain means for
communicating safety information that, at a minimum:
(a) Ensures that employees are aware of the SMS policies, processes,
and tools that are relevant to their responsibilities.
(b) Conveys hazard information relevant to the employee's
responsibilities.
(c) Explains why safety actions have been taken.
(d) Explains why safety procedures are introduced or changed.
Subpart F_SMS Documentation and Recordkeeping
Sec. 5.95 SMS documentation.
The certificate holder must develop and maintain SMS documentation
that describes the certificate holder's:
(a) Safety policy.
(b) SMS processes and procedures.
Sec. 5.97 SMS records.
(a) The certificate holder must maintain records of outputs of
safety risk management processes as described in subpart C of this part.
Such records must be retained for as long as the control remains
relevant to the operation.
(b) The certificate holder must maintain records of outputs of
safety assurance processes as described in subpart D of this part. Such
records must be retained for a minimum of 5 years.
(c) The certificate holder must maintain a record of all training
provided under Sec. 5.91 for each individual. Such records must be
retained for as long as the individual is employed by the certificate
holder.
(d) The certificate holder must retain records of all communications
provided under Sec. 5.93 for a minimum of 24 consecutive calendar
months.
[[Page 27]]
SUBCHAPTER B_PROCEDURAL RULES
PART 11_GENERAL RULEMAKING PROCEDURES--Table of Contents
Subpart A_Rulemaking Procedures
Sec.
11.1 To what does this part apply?
Definition of Terms
11.3 What is an advance notice of proposed rulemaking?
11.5 What is a notice of proposed rulemaking?
11.7 What is a supplemental notice of proposed rulemaking?
11.9 What is a final rule?
11.11 What is a final rule with request for comments?
11.13 What is a direct final rule?
11.15 What is a petition for exemption?
11.17 What is a petition for rulemaking?
11.19 What is a special condition?
General
11.21 What are the most common kinds of rulemaking actions for which FAA
follows the Administrative Procedure Act?
11.23 Does FAA follow the same procedures in issuing all types of rules?
11.25 How does FAA issue rules?
11.27 Are there other ways FAA collects specific rulemaking
recommendations before we issue an NPRM?
11.29 May FAA change its regulations without first issuing an ANPRM or
NPRM?
11.31 How does FAA process direct final rules?
11.33 How can I track FAA's rulemaking activities?
11.35 Does FAA include sensitive security information and proprietary
information in the Federal Docket Management System (FDMS)?
11.37 Where can I find information about an Airworthiness Directive, an
airspace designation, or a petition handled in a region?
11.38 What public comment procedures does FAA follow for Special
Conditions?
11.39 How may I participate in FAA's rulemaking process?
11.40 Can I get more information about a rulemaking?
Written Comments
11.41 Who may file comments?
11.43 What information must I put in my written comments?
11.45 Where and when do I file my comments?
11.47 May I ask for more time to file my comments?
Public Meetings and Other Proceedings
11.51 May I request that FAA hold a public meeting on a rulemaking
action?
11.53 What takes place at a public meeting?
Petitions for Rulemaking and for Exemptions
11.61 May I ask FAA to adopt, amend, or repeal a regulation, or grant
relief from the requirements of a current regulation?
11.63 How and to whom do I submit my petition for rulemaking or petition
for exemption?
11.71 What information must I include in my petition for rulemaking?
11.73 How does FAA process petitions for rulemaking?
11.75 Does FAA invite public comment on petitions for rulemaking?
11.77 Is there any additional information I must include in my petition
for designating airspace?
11.81 What information must I include in my petition for an exemption?
11.83 How can I operate under an exemption outside the United States?
11.85 Does FAA invite public comment on petitions for exemption?
11.87 Are there circumstances in which FAA may decide not to publish a
summary of my petition for exemption?
11.89 How much time do I have to submit comments to FAA on a petition
for exemption?
11.91 How does FAA inform me of its decision on my petition for
exemption?
11.101 May I ask FAA to reconsider my petition for rulemaking or
petition for exemption if it is denied?
11.103 What exemption relief may be available to federal, state, and
local governments when operating aircraft that are not public
aircraft?
Subpart B_Paperwork Reduction Act Control Numbers
11.201 Office of Management and Budget (OMB) control numbers assigned
under the Paperwork Reduction Act.
Authority: 49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40109,
40113, 44110, 44502, 44701-44702, 44711, 46102, and 51 U.S.C. 50901-
50923.
Source: Docket No. FAA-1999-6622, 65 FR 50863, Aug. 21, 2000, unless
otherwise noted.
Editorial Note: Nomenclature changes to part 11 appear at 61 FR
18052, April 24, 1996.
[[Page 28]]
Subpart A_Rulemaking Procedures
Sec. 11.1 To what does this part apply?
This part applies to the issuance, amendment, and repeal of any
regulation for which FAA (``we'') follows public rulemaking procedures
under the Administrative Procedure Act (``APA'') (5 U.S.C. 553).
Definition of Terms
Sec. 11.3 What is an advance notice of proposed rulemaking?
An advance notice of proposed rulemaking (ANPRM) tells the public
that FAA is considering an area for rulemaking and requests written
comments on the appropriate scope of the rulemaking or on specific
topics. An advance notice of proposed rulemaking may or may not include
the text of potential changes to a regulation.
Sec. 11.5 What is a notice of proposed rulemaking?
A notice of proposed rulemaking (NPRM) proposes FAA's specific
regulatory changes for public comment and contains supporting
information. It includes proposed regulatory text.
Sec. 11.7 What is a supplemental notice of proposed rulemaking?
On occasion, FAA may decide that it needs more information on an
issue, or that we should take a different approach than we proposed.
Also, we may want to follow a commenter's suggestion that goes beyond
the scope of the original proposed rule. In these cases, FAA may issue a
supplemental notice of proposed rulemaking (SNPRM) to give the public an
opportunity to comment further or to give us more information.
Sec. 11.9 What is a final rule?
A final rule sets out new or revised requirements and their
effective date. It also may remove requirements. When preceded by an
NPRM, a final rule will also identify significant substantive issues
raised by commenters in response to the NPRM and will give the agency's
response.
Sec. 11.11 What is a final rule with request for comments?
A final rule with request for comment is a rule that the FAA issues
in final (with an effective date) that invites public comment on the
rule. We usually do this when we have not first issued an ANPRM or NPRM,
because we have found that doing so would be impracticable, unnecessary,
or contrary to the public interest. We give our reasons for our
determination in the preamble. The comment period often ends after the
effective date of the rule. A final rule not preceded by an ANPRM or
NPRM is commonly called an ``immediately adopted final rule.'' We invite
comments on these rules only if we think that we will receive useful
information. For example, we would not invite comments when we are just
making an editorial clarification or correction.
Sec. 11.13 What is a direct final rule?
A direct final rule is a type of final rule with request for
comments. Our reason for issuing a direct final rule without an NPRM is
that we would not expect to receive any adverse comments, and so an NPRM
is unnecessary. However, to be certain that we are correct, we set the
comment period to end before the effective date. If we receive an
adverse comment, we will either publish a document withdrawing the
direct final rule before it becomes effective and may issue an NPRM, or
proceed by any other means permitted under the Administrative Procedure
Act, 5 U.S.C. 551 et seq., consistent with procedures at 49 CFR 5.13(l).
[Docket No. FAA-1999-6622, 65 FR 50863, Aug. 21, 2000, as amended at 84
FR 71717, Dec. 27, 2019]
Sec. 11.15 What is a petition for exemption?
A petition for exemption is a request to the FAA by an individual or
entity asking for relief from the requirements of a current regulation.
For petitions for waiver of commercial space transportation regulations,
see part 404 of this title.
[FAA-2016-6761, Amdt. No. 11-62, 83 FR 28534, June 20, 2016]
[[Page 29]]
Sec. 11.17 What is a petition for rulemaking?
A petition for rulemaking is a request to FAA by an individual or
entity asking the FAA to adopt, amend, or repeal a regulation.
Sec. 11.19 What is a special condition?
A special condition is a regulation that applies to a particular
aircraft design. The FAA issues special conditions when we find that the
airworthiness regulations for an aircraft, aircraft engine, or propeller
design do not contain adequate or appropriate safety standards, because
of a novel or unusual design feature.
General
Sec. 11.21 What are the most common kinds of rulemaking actions for
which FAA follows the Administrative Procedure Act?
FAA follows the Administrative Procedure Act (APA) procedures for
these common types of rules:
(a) Rules found in the Code of Federal Regulations;
(b) Airworthiness directives issued under part 39 of this chapter;
and
(c) Airspace Designations issued under various parts of this
chapter.
Sec. 11.23 Does FAA follow the same procedures in issuing all types
of rules?
Yes, in general, FAA follows the same procedures for all rule types.
There are some differences as to which FAA official has authority to
issue each type, and where you send petitions for FAA to adopt, amend,
or repeal each type. Assume that the procedures in this subpart apply to
all rules, except where we specify otherwise.
Sec. 11.25 How does FAA issue rules?
(a) The FAA uses APA rulemaking procedures to adopt, amend, or
repeal regulations. To propose or adopt a new regulation, or to change a
current regulation, FAA will issue one or more of the following
documents. We publish these rulemaking documents in the Federal Register
unless we name and personally serve a copy of a rule on every person
subject to it. We also make all documents available to the public by
posting them in the Federal Docket Management System at http://
www.regulations.gov.
(1) An advance notice of proposed rulemaking (ANPRM).
(2) A notice of proposed rulemaking (NPRM).
(3) A supplemental notice of proposed rulemaking (SNPRM).
(4) A final rule.
(5) A final rule with request for comments.
(6) A direct final rule.
(b) Each of the rulemaking documents in paragraph (a) of this
section generally contains the following information:
(1) The topic involved in the rulemaking document.
(2) FAA's legal authority for issuing the rulemaking document.
(3) How interested persons may participate in the rulemaking
proceeding (for example, by filing written comments or making oral
presentations at a public meeting).
(4) Whom to call if you have questions about the rulemaking
document.
(5) The date, time, and place of any public meetings FAA will hold
to discuss the rulemaking document.
(6) The docket number and regulation identifier number (RIN) for the
rulemaking proceeding.
[Doc. No. 1999-6622, 65 FR 50863, Aug. 21, 2000, as amended at 72 FR
68474, Dec. 5, 2007]
Sec. 11.27 Are there other ways FAA collects specific rulemaking
recommendations before we issue an NPRM?
Yes, the FAA obtains advice and recommendations from rulemaking
advisory committees. One of these committees is the Aviation Rulemaking
Advisory Committee (ARAC), which is a formal standing committee
comprised of representatives of aviation associations and industry,
consumer groups, and interested individuals. In conducting its
activities, ARAC complies with the Federal Advisory Committee Act and
the direction of FAA. We task ARAC with providing us with recommended
rulemaking actions dealing with specific areas and problems. If we
accept an ARAC recommendation to change an FAA rule, we ordinarily
publish an NPRM using the procedures in
[[Page 30]]
this part. The FAA may establish other rulemaking advisory committees as
needed to focus on specific issues for a limited period of time.
Sec. 11.29 May FAA change its regulations without first issuing an
ANPRM or NPRM?
The FAA normally adds or changes a regulation by issuing a final
rule after an NPRM. However, FAA may adopt, amend, or repeal regulations
without first issuing an ANPRM or NPRM in the following situations:
(a) We may issue a final rule without first requesting public
comment if, for good cause, we find that an NPRM is impracticable,
unnecessary, or contrary to the public interest. We place that finding
and a brief statement of the reasons for it in the final rule. For
example, we may issue a final rule in response to a safety emergency.
(b) If an NPRM would be unnecessary because we do not expect to
receive adverse comment, we may issue a direct final rule.
Sec. 11.31 How does FAA process direct final rules?
(a) A direct final rule will take effect on a specified date unless
FAA receives an adverse comment within the comment period--generally 60
days after the direct final rule is published in the Federal Register.
An adverse comment explains why a rule would be inappropriate, or would
be ineffective or unacceptable without a change. It may challenge the
rule's underlying premise or approach. Under the direct final rule
process, we do not consider the following types of comments to be
adverse:
(1) A comment recommending another rule change, in addition to the
change in the direct final rule at issue. We consider the comment
adverse, however, if the commenter states why the direct final rule
would be ineffective without the change.
(2) A frivolous or insubstantial comment.
(b) If FAA has not received an adverse comment, we will publish a
confirmation document in the Federal Register, generally within 15 days
after the comment period closes. The confirmation document tells the
public the effective date of the rule.
(c) If we receive an adverse comment, we will advise the public by
publishing a document in the Federal Register before the effective date
of the direct final rule. This document may withdraw the direct final
rule in whole or in part. If we withdraw a direct final rule because of
an adverse comment, we may incorporate the commenter's recommendation
into another direct final rule or may publish a notice of proposed
rulemaking.
[Docket No. FAA-1999-6622, 65 FR 50863, Aug. 21, 2000, as amended at 84
FR 71717, Dec. 27, 2019]
Sec. 11.33 How can I track FAA's rulemaking activities?
The best ways to track FAA's rulemaking activities are with the
docket number or the regulation identifier number.
(a) Docket ID. We assign a docket ID to each rulemaking document
proceeding. Each rulemaking document FAA issues in a particular
rulemaking proceeding, as well as public comments on the proceeding,
will display the same docket ID. This ID allows you to search the
Federal Docket Management System (FDMS) for information on most
rulemaking proceedings. You can view and copy docket materials during
regular business hours at the U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC 20590. Or you can view and download docketed
materials through the Internet at http://www.regulations.gov. If you
can't find the material in the electronic docket, contact the person
listed under FOR FURTHER INFORMATION CONTACT in the document you are
interested in.
(b) Regulation identifier number. DOT publishes a semiannual agenda
of all current and projected DOT rulemakings, reviews of existing
regulations, and completed actions. This semiannual agenda appears in
the Unified Agenda of Federal Regulations, published in the Federal
Register in April and October of each year. The semiannual agenda tells
the public
[[Page 31]]
about DOT's--including FAA's--regulatory activities. DOT assigns a
regulation identifier number (RIN) to each individual rulemaking
proceeding in the semiannual agenda. This number appears on all
rulemaking documents published in the Federal Register and makes it easy
for you to track those rulemaking proceedings in both the Federal
Register and the semiannual regulatory agenda.
[Doc. No. 1999-6622, 65 FR 50863, Aug. 21, 2000, as amended at 72 FR
68474, Dec. 5, 2007]
Sec. 11.35 Does FAA include sensitive security information and
proprietary information in the Federal Docket Management System (FDMS)?
(a) Sensitive security information. You should not submit sensitive
security information to the rulemaking docket, unless you are invited to
do so in our request for comments. If we ask for this information, we
will tell you in the specific document how to submit this information,
and we will provide a separate non-public docket for it. For all
proposed rule changes involving civil aviation security, we review
comments as we receive them, before they are placed in the docket. If we
find that a comment contains sensitive security information, we remove
that information before placing the comment in the general docket.
(b) Proprietary information. When we are aware of proprietary
information filed with a comment, we do not place it in the docket. We
hold it in a separate file to which the public does not have access, and
place a note in the docket that we have received it. If we receive a
request to examine or copy this information, we treat it as any other
request under the Freedom of Information Act (5 U.S.C. 552). We process
such a request under the DOT procedures found in 49 CFR part 7.
[Doc. No. 1999-6622, 65 FR 50863, Aug. 21, 2000, as amended at 72 FR
68474, Dec. 5, 2007]
Sec. 11.37 Where can I find information about an Airworthiness Directive,
an airspace designation, or a petition handled in a region?
The FAA includes most documents concerning Airworthiness Directives,
airspace designations, or petitions handled in a region in the
electronic docket. If the information isn't in the docket, contact the
person listed under FOR FURTHER INFORMATION CONTACT in the Federal
Register document about the action.
Sec. 11.38 What public comment procedures does the FAA follow for
Special Conditions?
Even though the Administrative Procedure Act does not require notice
and comment for rules of particular applicability, FAA does publish
proposed special conditions for comment. In the following circumstances
we may not invite comment before we issue a special condition. If we
don't, we will invite comment when we publish the final special
condition.
(a) The FAA considers prior notice to be impracticable if issuing a
design approval would significantly delay delivery of the affected
aircraft. We consider such a delay to be contrary to the public
interest.
(b) The FAA considers prior notice to be unnecessary if we have
provided previous opportunities to comment on substantially identical
proposed special conditions, and we are satisfied that new comments are
unlikely.
Sec. 11.39 How may I participate in FAA's rulemaking process?
You may participate in FAA's rulemaking process by doing any of the
following:
(a) File written comments on any rulemaking document that asks for
comments, including an ANPRM, NPRM, SNPRM, a final rule with request for
comments, or a direct final rule. Follow the directions for commenting
found in each rulemaking document.
(b) Ask that we hold a public meeting on any rulemaking, and
participate in any public meeting that we hold.
(c) File a petition for rulemaking that asks us to adopt, amend, or
repeal a regulation.
Sec. 11.40 Can I get more information about a rulemaking?
You can contact the person listed under FOR FURTHER INFORMATION
CONTACT in the preamble of a rule. That person can explain the meaning
[[Page 32]]
and intent of a proposed rule, the technical aspects of a document, the
terminology in a document, and can tell you our published schedule for
the rulemaking process. We cannot give you information that is not
already available to other members of the public. The Department of
Transportation policy regarding public contacts during rulemaking
appears at 49 CFR 5.19.
[Docket No. FAA-1999-6622, 65 FR 50863, Aug. 21, 2000, as amended at 84
FR 71717, Dec. 27, 2019]
Written Comments
Sec. 11.41 Who may file comments?
Anyone may file written comments about proposals and final rules
that request public comments.
Sec. 11.43 What information must I put in my written comments?
(a) Your written comments must be in English and must contain the
following:
(1) The docket number of the rulemaking document you are commenting
on, clearly set out at the beginning of your comments.
(2) Your name and mailing address, and, if you wish, other contact
information, such as a fax number, telephone number, or e-mail address.
(3) Your information, views, or arguments, following the
instructions for participation in the rulemaking document on which you
are commenting.
(b) You should also include all material relevant to any statement
of fact or argument in your comments, to the extent that the material is
available to you and reasonable for you to submit. Include a copy of the
title page of the document. Whether or not you submit a copy of the
material to which you refer, you should indicate specific places in the
material that support your position.
Sec. 11.45 Where and when do I file my comments?
(a) Send your comments to the location specified in the rulemaking
document on which you are commenting. If you are asked to send your
comments to the Federal Document Management System, you may send them in
either of the following ways:
(1) By mail to: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC 20590.
(2) Through the Internet to http://www.regulations.gov.
(3) In any other manner designated by FAA.
(b) Make sure that your comments reach us by the deadline set out in
the rulemaking document on which you are commenting. We will consider
late-filed comments to the extent possible only if they do not
significantly delay the rulemaking process.
(c) We may reject your paper or electronic comments if they are
frivolous, abusive, or repetitious. We may reject comments you file
electronically if you do not follow the electronic filing instructions
at the Federal Docket Management System Web site.
[Doc. No. 1999-6622, 65 FR 50863, Aug. 21, 2000, as amended at 72 FR
68474, Dec. 5, 2007]
Sec. 11.47 May I ask for more time to file my comments?
Yes, if FAA grants your request for more time to file comments, we
grant all persons the same amount of time. We will notify the public of
the extension by a document in the Federal Register. If FAA denies your
request, we will notify you of the denial. To ask for more time, you
must file a written or electronic request for extension at least 10 days
before the end of the comment period. Your letter or message must--
(a) Show the docket number of the rule at the top of the first page;
(b) State, at the beginning, that you are requesting an extension of
the comment period;
(c) Show that you have good cause for the extension and that an
extension is in the public interest;
(d) Be sent to the address specified for comments in the rulemaking
document on which you are commenting.
[[Page 33]]
Public Meetings and Other Proceedings
Sec. 11.51 May I request that FAA hold a public meeting on a rulemaking
action?
Yes, you may request that we hold a public meeting. FAA holds a
public meeting when we need more than written comments to make a fully
informed decision. Submit your written request to the address specified
in the rulemaking document on which you are commenting. Specify at the
top of your letter or message that you are requesting that the agency
hold a public meeting. Submit your request no later than 30 days after
our rulemaking notice. If we find good cause for a meeting, we will
notify you and publish a notice of the meeting in the Federal Register.
Sec. 11.53 What takes place at a public meeting?
A public meeting is a non-adversarial, fact-finding proceeding
conducted by an FAA representative. Public meetings are announced in the
Federal Register. We invite interested persons to attend and to present
their views to the agency on specific issues. There are no formal
pleadings and no adverse parties, and any regulation issued afterward is
not necessarily based exclusively on the record of the meeting.
Petitions for Rulemaking and for Exemption
Sec. 11.61 May I ask FAA to adopt, amend, or repeal a regulation, or
grant relief from the requirements of a current regulation?
(a) Using a petition for rulemaking, you may ask FAA to add a new
regulation to title 14 of the Code of Federal Regulations (14 CFR) or
ask FAA to amend or repeal a current regulation in 14 CFR.
(b) Using a petition for exemption, you may ask FAA to grant you
relief from current regulations in 14 CFR.
Sec. 11.63 How and to whom do I submit my petition for rulemaking or
petition for exemption?
(a) To submit a petition for rulemaking or exemption--
(1) By electronic submission, submit your petition for rulemaking or
exemption to the FAA through the internet at http://www.regulations.gov,
the Federal Docket Management System website. For additional
instructions, you may visit http://www.faa.gov, and navigate to the
Rulemaking home page.
(2) By paper submission, send the original signed copy of your
petition for rulemaking or exemption to this address: U.S. Department of
Transportation, Docket Operations, West Building Ground Floor, Room W12-
140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
(b) Submit a petition for rulemaking or exemption from part 139 of
this chapter--
(1) To the appropriate FAA airport field office in whose area your
airport is, or will be, established; and
(2) To the U.S. Department of Transportation, Docket Operations,
West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590 or by electronic submission to this Internet
address: http://www.regulations.gov.
(c) The FAA may designate other means by which you can submit
petitions in the future.
(d) Submit your petition for exemption 120 days before you need the
exemption to take effect.
[Amdt. 11-50, 69 FR 22386, Apr. 26, 2004, as amended at 72 FR 68474,
Dec. 5, 2007; Amdt. 11-55, 74 FR 202, Jan. 5, 2009; FAA-2016-6761, Amdt.
No. 11-62, 83 FR 28534, June 20, 2016]
Sec. 11.71 What information must I include in my petition for
rulemaking?
(a) You must include the following information in your petition for
rulemaking:
(1) Your name and mailing address and, if you wish, other contact
information such as a fax number, telephone number, or e-mail address.
(2) An explanation of your proposed action and its purpose.
(3) The language you propose for a new or amended rule, or the
language you would remove from a current rule.
(4) An explanation of why your proposed action would be in the
public interest.
[[Page 34]]
(5) Information and arguments that support your proposed action,
including relevant technical and scientific data available to you.
(6) Any specific facts or circumstances that support or demonstrate
the need for the action you propose.
(b) In the process of considering your petition, we may ask that you
provide information or data available to you about the following:
(1) The costs and benefits of your proposed action to society in
general, and identifiable groups within society in particular.
(2) The regulatory burden of your proposed action on small
businesses, small organizations, small governmental jurisdictions, and
Indian tribes.
(3) The recordkeeping and reporting burdens of your proposed action
and whom the burdens would affect.
(4) The effect of your proposed action on the quality of the natural
and social environments.
Sec. 11.73 How does FAA process petitions for rulemaking?
After we have determined the disposition of your petition, we will
contact you in writing about our decision. The FAA may respond to your
petition for rulemaking in one of the following ways:
(a) If we determine that your petition justifies our taking the
action you suggest, we may issue an NPRM or ANPRM. We will do so no
later than 6 months after the date we receive your petition. In making
our decision, we consider:
(1) The immediacy of the safety or security concerns you raise;
(2) The priority of other issues the FAA must deal with; and
(3) The resources we have available to address these issues.
(b) If we have issued an ANPRM or NPRM on the subject matter of your
petition, we will consider your arguments for a rule change as a comment
in connection with the rulemaking proceeding. We will not treat your
petition as a separate action.
(c) If we have begun a rulemaking project in the subject area of
your petition, we will consider your comments and arguments for a rule
change as part of that project. We will not treat your petition as a
separate action.
(d) If we have tasked ARAC to study the general subject area of your
petition, we will ask ARAC to review and evaluate your proposed action.
We will not treat your petition as a separate action.
(e) If we determine that the issues you identify in your petition
may have merit, but do not address an immediate safety concern or cannot
be addressed because of other priorities and resource constraints, we
may dismiss your petition. Your comments and arguments for a rule change
will be placed in a database, which we will examine when we consider
future rulemaking.
Sec. 11.75 Does FAA invite public comment on petitions for rulemaking?
Generally, FAA does not invite public comment on petitions for
rulemaking.
Sec. 11.77 Is there any additional information I must include in my
petition for designating airspace?
In petitions asking FAA to establish, amend, or repeal a designation
of airspace, including special use airspace, you must include all the
information specified by Sec. 11.71 and also:
(a) The location and a description of the airspace you want assigned
or designated;
(b) A complete description of the activity or use to be made of that
airspace, including a detailed description of the type, volume,
duration, time, and place of the operations to be conducted in the area;
(c) A description of the air navigation, air traffic control,
surveillance, and communication facilities available and to be provided
if we grant the designation; and
(d) The name and location of the agency, office, facility, or person
who would have authority to permit the use of the airspace when it was
not in use for the purpose to which you want it assigned.
[[Page 35]]
Sec. 11.81 What information must I include in my petition for an
exemption?
You must include the following information in your petition for an
exemption and submit it to FAA as soon as you know you need an
exemption.
(a) Your name and mailing address and, if you wish, other contact
information such as a fax number, telephone number, or e-mail address;
(b) The specific section or sections of 14 CFR from which you seek
an exemption;
(c) The extent of relief you seek, and the reason you seek the
relief;
(d) The reasons why granting your request would be in the public
interest; that is, how it would benefit the public as a whole;
(e) The reasons why granting the exemption would not adversely
affect safety, or how the exemption would provide a level of safety at
least equal to that provided by the rule from which you seek the
exemption;
(f) A summary we can publish in the Federal Register, stating:
(1) The rule from which you seek the exemption; and
(2) A brief description of the nature of the exemption you seek;
(g) Any additional information, views or arguments available to
support your request; and
(h) If you want to exercise the privileges of your exemption outside
the United States, the reason why you need to do so.
Sec. 11.83 How can I operate under an exemption outside the
United States?
If you want to be able to operate under your exemption outside the
United States, you must request this when you petition for relief and
give us the reason for this use. If you do not provide your reason or we
determine that it does not justify this relief, we will limit your
exemption to use within the United States. Before we extend your
exemption for use outside the United States, we will verify that the
exemption would be in compliance with the Standards of the International
Civil Aviation Organization (ICAO). If it would not, but we still
believe it would be in the public interest to allow you to do so, we
will file a difference with ICAO. However, a foreign country still may
not allow you to operate in that country without meeting the ICAO
standard.
Sec. 11.85 Does FAA invite public comment on petitions for exemption?
Yes, FAA publishes information about petitions for exemption in the
Federal Register. The information includes--
(a) The docket number of the petition;
(b) The citation to the rule or rules from which the petitioner
requested relief;
(c) The name of the petitioner;
(d) The petitioner's summary of the action requested and the reasons
for requesting it; and
(e) A request for comments to assist FAA in evaluating the petition.
Sec. 11.87 Are there circumstances in which FAA may decide not to
publish a summary of my petition for exemption?
The FAA may not publish a summary of your petition for exemption and
request comments if you present or we find good cause why we should not
delay action on your petition. The factors we consider in deciding not
to request comment include:
(a) Whether granting your petition would set a precedent.
(b) Whether the relief requested is identical to exemptions granted
previously.
(c) Whether our delaying action on your petition would affect you
adversely.
(d) Whether you filed your petition in a timely manner.
Sec. 11.89 How much time do I have to submit comments to FAA on a
petition for exemption?
The FAA states the specific time allowed for comments in the Federal
Register notice about the petition. We usually allow 20 days to comment
on a petition for exemption.
Sec. 11.91 How does FAA inform me of its decision on my petition
for exemption?
The FAA will notify you in writing about its decision on your
petition. A copy of this decision is also placed in
[[Page 36]]
the public docket. We will include the docket number associated with
your petition in our letter to you.
[Doc. No. FAA-2005-22982, 71 FR 1485, Jan. 10, 2006]
Sec. 11.101 May I ask FAA to reconsider my petition for rulemaking
or petition for exemption if it is denied?
Yes, you may petition FAA to reconsider your petition denial. You
must submit your request to the address to which you sent your original
petition, and FAA must receive it within 60 days after we issued the
denial. For us to accept your petition, show the following:
(a) That you have a significant additional fact and why you did not
present it in your original petition;
(b) That we made an important factual error in our denial of your
original petition; or
(c) That we did not correctly interpret a law, regulation, or
precedent.
Sec. 11.103 What exemption relief may be available to federal, state,
and local governments when operating aircraft that are not public aircraft?
The Federal Aviation Administration may grant a federal, state, or
local government an exemption from part A of subtitle VII of title 49
United States Code, and any regulation issued under that authority that
is applicable to an aircraft as a result of the Independent Safety Board
Act Amendments of 1994, Public Law 103-411, if--
(a) The Administrator finds that granting the exemption is necessary
to prevent an undue economic burden on the unit of government; and
(b) The Administrator certifies that the aviation safety program of
the unit of government is effective and appropriate to ensure safe
operations of the type of aircraft operated by the unit of government.
[68 FR 25488, May 13, 2003]
Subpart B_Paperwork Reduction Act Control Numbers
Sec. 11.201 Office of Management and Budget (OMB) control numbers
assigned under the Paperwork Reduction Act.
(a) The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520)
requires FAA to get approval from OMB for our information collection
activities, and to list a record of those approvals in the Federal
Register. This subpart lists the control numbers OMB assigned to FAA's
information collection activities.
(b) The table listing OMB control numbers assigned to FAA's
information collection activities follows:
------------------------------------------------------------------------
14 CFR part or section identified and
described Current OMB control number
------------------------------------------------------------------------
Part 13.5.............................. 2120-0795
Part 14................................ 2120-0539
Part 17................................ 2120-0632
Part 21................................ 2120-0018, 2120-0552
Part 34................................ 2120-0508
Part 39................................ 2120-0056
Part 43................................ 2120-0020
Part 45................................ 2120-0508
Part 47................................ 2120-0024, 2120-0042
Part 48................................ 2120-0765
Part 49................................ 2120-0043
Part 60................................ 2120-0680
Part 61................................ 2120-0021, 2120-0034, 2120-
0543, 2120-0571
Part 63................................ 2120-0007
Part 65................................ 2120-0022, 2120-0535, 2120-
0571, 2120-0648
Part 67................................ 2120-0034, 2120-0543
Part 77................................ 2120-0001
Part 89................................ 2120-0781, 2120-0782, 2120-
0783, 2120-0785.
Part 91................................ 2120-0005, 2120-0026, 2120-
0027, 2120-0573, 2120-0606,
2120-0620, 2120-0631, 2120-
0651
Part 93................................ 2120-0524, 2120-0606, 2120-0639
Part 101............................... 2120-0027
Part 105............................... 2120-0027, 2120-0641
Part 107............................... 2120-0005, 2120-0021, 2120-
0027, 2120-0767, 2120-0768,
2120-0775.
Part 111............................... 2120-0607
Part 119............................... 2120-0593
Part 121............................... 2120-0008, 2120-0028, 2120-
0535, 2120-0571, 2120-0600,
2120-0606, 2120-0614, 2120-
0616, 2120-0631, 2120-0651,
2120-0653, 2120-0691, 2120-
0739, 2120-0760, 2120-0766.
Part 125............................... 2120-0028, 2120-0085, 2120-
0616, 2120-0651
Part 129............................... 2120-0028, 2120-0536, 2120-
0616, 2120-0638
Part 133............................... 2120-0044
Part 135............................... 2120-0003, 2120-0028, 2120-
0039, 2120-0535, 2120-0571,
2120-0600, 2120-0606, 2120-
0614, 2120-0616, 2120-0620,
2120-0631, 2120-0653, 2120-
0766.
Part 137............................... 2120-0049
Part 139............................... 2120-0045, 2120-0063
Part 141............................... 2120-0009
Part 142............................... 2120-0570
Part 145............................... 2120-0003, 2120-0010, 2120-0571
Part 147............................... 2120-0040
Part 150............................... 2120-0517
Part 157............................... 2120-0036
Part 158............................... 2120-0557
Part 161............................... 2120-0563
Part 171............................... 2120-0014
Part 183............................... 2120-0033, 2120-0604
Part 193............................... 2120-0646
[[Page 37]]
Part 198............................... 2120-0514
Part 400............................... 2120-0643, 2120-0644, 0649
Part 401............................... 2120-0608
Part 440............................... 2120-0601
SFAR 36................................ 2120-0507
SFAR 71................................ 2120-0620
------------------------------------------------------------------------
[Doc. No. 1999-6622, 65 FR 50863, Aug. 21, 2000, as amended by Amdt. 11-
47, 67 FR 9553, Mar. 1, 2002; Amdt. 11-49, 68 FR 61321, Oct. 27, 2003;
Amdt. 11-49, 68 FR 70132, Dec. 17, 2003; 70 FR 40163, July 12, 2005; 71
FR 63426, Oct. 30, 2006; 72 FR 59599, Oct. 22, 2007; Amdt. 11-56, 79 FR
12937, Mar. 7, 2014; Amdt. 11-57, 80 FR 58586, Sept. 30, 2015; Doc. FAA-
2015-7396, Amdt. 11-58, 80 FR 79255, Dec. 21, 2015; Doc. FAA-2011-1136,
Amdt. 11-59, 81 FR 13969, Mar. 16, 2016; Doc. FAA-2014-0554, Amdt. 11-
60, 81 FR 33117, May 24, 2016; 81 FR 38573, June 14, 2016; Doc. FAA-
2016-9064, Amdt. 11-61, 81 FR 59129, Aug. 29, 2016; FAA-2018-1087, Amdt.
11-64, 86 FR 4381, Jan. 15, 2021; Docket No. FAA-2019-1100, Amdt. 11-63,
86 FR 4503, Jan. 15, 2021; FAA-2020-0246, Amdt. 11-65, 86 FR 31060, June
10, 2021; FAA-2018-1051, Amdt. 13-40A, 87 FR 61233, Oct. 11, 2022]
PART 13_INVESTIGATIVE AND ENFORCEMENT PROCEDURES--Table of Contents
Subpart A_General Authority to Re-Delegate and Investigative Procedures
Sec.
13.1 Re-delegation.
13.2 Reports of violations.
13.3 Investigations (general).
13.5 Formal complaints.
13.7 Records, documents, and reports.
Subpart B_Administrative Actions
13.11 Administrative disposition of certain violations.
Subpart C_Legal Enforcement Actions
13.13 Consent orders.
13.14 [Reserved]
13.15 Civil penalties: Other than by administrative assessment.
13.16 Civil penalties: Administrative assessment against a person other
than an individual acting as a pilot, flight engineer,
mechanic, or repairman; administrative assessment against all
persons for hazardous materials violations.
13.17 Seizure of aircraft.
13.18 Civil penalties: Administrative assessment against an individual
acting as a pilot, flight engineer, mechanic, or repairman.
13.19 Certificate actions appealable to the National Transportation
Safety Board.
13.20 Orders of compliance, cease and desist orders, orders of denial,
and other orders.
13.21-13.29 [Reserved]
Subpart D_Rules of Practice for FAA Hearings
13.31 Applicability.
13.33 Parties, representatives, and notice of appearance.
13.35 Request for hearing, complaint, and answer.
13.37 Hearing officer: Assignment and powers.
13.39 Disqualification of hearing officer.
13.41 Separation of functions and prohibition on ex parte
communications.
13.43 Service and filing of pleadings, motions, and documents.
13.44 [Reserved]
13.45 Computation of time and extension of time.
13.47 Withdrawal or amendment of the complaint, answer, or other
filings.
13.49 Motions.
13.51 Intervention.
13.53 Discovery.
13.55 Notice of hearing.
13.57 Subpoenas and witness fees.
13.59 Evidence.
13.61 Argument and submittals.
13.63 Record, decision, and aircraft registration proceedings.
13.65 Appeal to the Administrator, reconsideration, and judicial review.
13.67 Procedures for expedited proceedings.
13.69 Other matters: Alternative dispute resolution, standing orders,
and forms.
Subpart E_Orders of Compliance Under the Hazardous Materials
Transportation Act
13.70 Delegation of authority.
13.71 Applicability.
13.73 Notice of proposed order of compliance.
13.75 Reply or request for hearing.
13.77 Consent order of compliance.
13.79 [Reserved]
13.81 Emergency orders.
13.83-13.87 [Reserved]
Subpart F_Formal Fact-Finding Investigation Under an Order of
Investigation
13.101 Applicability.
13.103 Order of investigation.
13.105 Notification.
13.107 Designation of additional parties.
13.109 Convening the investigation.
13.111 Subpoenas.
13.113 Noncompliance with the investigative process.
13.115 Public proceedings.
13.117 Conduct of investigative proceeding or deposition.
[[Page 38]]
13.119 Immunity and orders requiring testimony or other information.
13.121 Witness fees.
13.123 Submission by party to the investigation.
13.125 Depositions.
13.127 Reports, decisions, and orders.
13.129 Post-investigation action.
13.131 Other procedures.
Subpart G_Rules of Practice In FAA Civil Penalty Actions
13.201 Applicability.
13.202 Definitions.
13.203 Separation of functions.
13.204 Appearances and rights of parties.
13.205 Administrative law judges.
13.206 Intervention.
13.207 Certification of documents.
13.208 Complaint.
13.209 Answer.
13.210 Filing of documents.
13.211 Service of documents.
13.212 Computation of time.
13.213 Extension of time.
13.214 Amendment of pleadings.
13.215 Withdrawal of complaint or request for hearing.
13.216 Waivers.
13.217 Joint procedural or discovery schedule.
13.218 Motions.
13.219 Interlocutory appeals.
13.220 Discovery.
13.221 Notice of hearing.
13.222 Evidence.
13.223 Standard of proof.
13.224 Burden of proof.
13.225 Offer of proof.
13.226 Public disclosure of information.
13.227 Expert or opinion witnesses.
13.228 Subpoenas.
13.229 Witness fees.
13.230 Record.
13.231 Argument before the administrative law judge.
13.232 Initial decision.
13.233 Appeal from initial decision.
13.234 Petition to reconsider or modify a final decision and order of
the FAA decisionmaker on appeal.
13.235 Judicial review of a final decision and order.
13.236 Alternative dispute resolution.
Subpart H_Civil Monetary Penalty Inflation Adjustment
13.301 Inflation adjustments of civil monetary penalties.
Subpart I_Flight Operational Quality Assurance Programs
13.401 Flight Operational Quality Assurance program: Prohibition against
use of data for enforcement purposes.
Authority: 18 U.S.C. 6002; 28 U.S.C. 2461 (note); 49 U.S.C. 106(g),
5121-5124, 40113-40114, 44103-44106, 44701-44704, 44709-44710, 44713,
44725, 44742, 44802 (note), 46101-46111, 46301, 46302 (for a violation
of 49 U.S.C. 46504), 46304-46316, 46318-46320, 46501-46502, 46504,
46507, 47106, 47107, 47111, 47122, 47306, 47531-47532; 49 CFR 1.83.
Source: Docket No. 18884, 44 FR 63723, Nov. 5, 1979, unless
otherwise noted.
Subpart A_General Authority to Re-Delegate and Investigative Procedures
Source: Docket No. FAA-2018-1051; Amdt. No. 13-40, 86 FR 54526, Oct.
1, 2021, unless otherwise noted.
Sec. 13.1 Re-delegation.
Unless otherwise specified, the Chief Counsel, each Deputy Chief
Counsel, and the Assistant Chief Counsel for Enforcement may re-delegate
the authority delegated to them under this part.
Sec. 13.2 Reports of violations.
(a) Any person who knows of any violation of 49 U.S.C. subtitle VII,
49 U.S.C. chapter 51, or any rule, regulation, or order issued under
those statutes, should report the violation to FAA personnel.
(b) FAA personnel will review each report made under this section to
determine whether any additional investigation or action is warranted.
Sec. 13.3 Investigations (general).
(a) The Administrator may conduct investigations; hold hearings;
issue subpoenas; require the production of relevant documents, records,
and property; and take evidence and depositions.
(b) The Administrator has delegated the authority to conduct
investigations to the various services and offices for matters within
their respective areas.
(c) The Administrator delegates to the Chief Counsel, each Deputy
Chief Counsel, and the Assistant Chief Counsel for Enforcement the
authority to:
(1) Issue orders;
(2) Conduct formal investigations;
(3) Subpoena witnesses and records in conducting a hearing or
investigation;
[[Page 39]]
(4) Order depositions and production of records in a proceeding or
investigation; and
(5) Petition a court of the United States to enforce a subpoena or
order described in paragraphs (c)(3) and (4) of this section.
(d) A complaint against the sponsor, proprietor, or operator of a
federally assisted airport involving violations of the legal authorities
listed in Sec. 16.1 of this chapter must be filed in accordance with
the provisions of part 16 of this chapter.
Sec. 13.5 Formal complaints.
(a) Any person may file a complaint with the Administrator with
respect to a violation by a person of any requirement under 49 U.S.C.
subtitle VII, 49 U.S.C. chapter 51, or any rule, regulation, or order
issued under those statutes, as to matters within the jurisdiction of
the Administrator. This section does not apply to complaints against the
Administrator or employees of the FAA acting within the scope of their
employment.
(b) Complaints filed under this section must--
(1) Be submitted in writing and identified as a complaint seeking an
appropriate order or other enforcement action;
(2) Be submitted to the Federal Aviation Administration, Office of
the Chief Counsel, Attention: Formal Complaint Clerk (AGC-300), 800
Independence Avenue SW, Washington, DC 20591;
(3) Set forth the name and address, if known, of each person who is
the subject of the complaint and, with respect to each person, the
specific provisions of the statute, rule, regulation, or order that the
complainant believes were violated;
(4) Contain a concise but complete statement of the facts relied
upon to substantiate each allegation;
(5) State the name, address, telephone number, and email of the
person filing the complaint; and
(6) Be signed by the person filing the complaint or an authorized
representative.
(c) A complaint that does not meet the requirements of paragraph (b)
of this section will be considered a report under Sec. 13.2.
(d) The FAA will send a copy of a complaint that meets the
requirements of paragraph (b) of this section to the subject(s) of the
complaint by certified mail.
(e) A subject of the complaint may serve a written answer to the
complaint to the Formal Complaint Clerk at the address specified in
paragraph (b)(2) of this section no later than 20 days after service of
a copy of the complaint. For purposes of this paragraph (e), the date of
service is the date on which the FAA mailed a copy of the complaint to
the subject of the complaint.
(f) After the subject(s) of the complaint have served a written
answer or after the allotted time to serve an answer has expired, the
Administrator will determine if there are reasonable grounds for
investigating the complaint, and--
(1) If the Administrator determines that a complaint does not state
facts that warrant an investigation or action, the complaint may be
dismissed without a hearing and the reason for the dismissal will be
given, in writing, to the person who filed the complaint and the
subject(s) of the complaint; or
(2) If the Administrator determines that reasonable grounds exist,
an informal investigation may be initiated or an order of investigation
may be issued in accordance with subpart F of this part, or both. The
subject(s) of a complaint will be advised which official has been
delegated the responsibility under Sec. 13.3(b) or (c), as applicable,
for conducting the investigation.
(g) If the investigation substantiates the allegations set forth in
the complaint, the Administrator may take action in accordance with
applicable law and FAA policy.
(h) The complaint and other records relating to the disposition of
the complaint are maintained in the Formal Complaint Docket (AGC-300),
Office of the Chief Counsel, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591. Any interested person may
examine any docketed material at that office at any time after the
docket is established, except material that is required to be withheld
from the public under applicable
[[Page 40]]
law, and may obtain a copy upon paying the cost of the copy.
Sec. 13.7 Records, documents, and reports.
Each record, document, and report that FAA regulations require to be
maintained, exhibited, or submitted to the Administrator may be used in
any investigation conducted by the Administrator; and, except to the
extent the use may be specifically limited or prohibited by the section
which imposes the requirement, the records, documents, and reports may
be used in any civil penalty action, certificate action, or other legal
proceeding.
Subpart B_Administrative Actions
Source: Docket No. FAA-2018-1051; Amdt. No. 13-40, 86 FR 54527, Oct.
1, 2021, unless otherwise noted.
Sec. 13.11 Administrative disposition of certain violations.
(a) If, after an investigation, FAA personnel determine that an
apparent violation of 49 U.S.C. subtitle VII, 49 U.S.C. chapter 51, or
any rule, regulation, or order issued under those statutes, does not
require legal enforcement action, an appropriate FAA official may take
administrative action to address the apparent violation.
(b) An administrative action under this section does not constitute
a formal adjudication of the matter, and may take the form of--
(1) A Warning Notice that recites available facts and information
about the incident or condition and indicates that it may have been a
violation; or
(2) A Letter of Correction that states the corrective action the
apparent violator has taken or agrees to take. If the apparent violator
does not complete the agreed corrective action, the FAA may take legal
enforcement action.
Subpart C_Legal Enforcement Actions
Source: Docket No. FAA-2018-1051; Amdt. No. 13-40, 86 FR 54527, Oct.
1, 2021, unless otherwise noted.
Sec. 13.13 Consent orders.
(a) The Chief Counsel, each Deputy Chief Counsel, and the Assistant
Chief Counsel for Enforcement may issue a consent order to resolve any
matter with a person that may be subject to legal enforcement action.
(b) A person that may be subject to legal enforcement action may
propose a consent order. The proposed consent order must include--
(1) An admission of all jurisdictional facts;
(2) An express waiver of the right to further procedural steps and
of all rights to legal review in any forum;
(3) An express waiver of attorney's fees and costs;
(4) If a notice or order has been issued prior to the proposed
consent order, an incorporation by reference of the notice or order and
an acknowledgment that the notice or order may be used to construe the
terms of the consent order; and
(5) If a request for hearing or appeal is pending in any forum, a
provision that the person will withdraw the request for hearing or
notice of appeal.
Sec. 13.14 [Reserved]
Sec. 13.15 Civil penalties: Other than by administrative assessment.
(a) The FAA uses the procedures in this section when it seeks a
civil penalty other than by the administrative assessment procedures in
Sec. 13.16 or Sec. 13.18.
(b) The authority of the Administrator to seek a civil penalty, and
the ability to refer cases to the United States Attorney General, or the
delegate of the Attorney General, for prosecution of civil penalty
actions sought by the Administrator is delegated to the Chief Counsel,
each Deputy Chief Counsel, and the Assistant Chief Counsel for
Enforcement. This delegation applies to cases involving one or more of
the following:
(1) An amount in controversy in excess of:
(i) $400,000, if the violation was committed by a person other than
an individual or small business concern; or
(ii) $50,000, if the violation was committed by an individual or
small business concern.
[[Page 41]]
(2) An in rem action, seizure of aircraft subject to lien, suit for
injunctive relief, or for collection of an assessed civil penalty.
(c) The Administrator may compromise any civil penalty proposed
under this section, before referral to the United States Attorney
General, or the delegate of the Attorney General, for prosecution.
(1) The Administrator, through the Chief Counsel, a Deputy Chief
Counsel, or the Assistant Chief Counsel for Enforcement sends a civil
penalty letter to the person charged with a violation. The civil penalty
letter contains a statement of the charges; the applicable law, rule,
regulation, or order; and the amount of civil penalty that the
Administrator will accept in full settlement of the action or an offer
to compromise the civil penalty.
(2) Not later than 30 days after receipt of the civil penalty
letter, the person cited with an alleged violation may respond to the
civil penalty letter by--
(i) Submitting electronic payment, a certified check, or money order
in the amount offered by the Administrator in the civil penalty letter.
The agency attorney will send a letter to the person charged with the
violation stating that payment is accepted in full settlement of the
civil penalty action; or
(ii) Submitting one of the following to the agency attorney:
(A) Written material or information that may explain, mitigate, or
deny the violation or that may show extenuating circumstances; or
(B) A written request for an informal conference to discuss the
matter with the agency attorney and to submit any relevant information
or documents that may explain, mitigate, or deny the violation; or that
may show extenuating circumstances.
(3) The documents, material, or information submitted under
paragraph (c)(2)(ii) of this section may include support for any claim
of inability to pay the civil penalty in whole or in part, or for any
claim of small business status as defined in 49 U.S.C. 46301(i).
(4) The Administrator will consider any material or information
submitted under paragraph (c)(2)(ii) of this section to determine
whether the person is subject to a civil penalty or to determine the
amount for which the Administrator will compromise the action.
(5) If the parties cannot agree to compromise the civil penalty, the
Administrator may refer the civil penalty action to the United States
Attorney General, or the delegate of the Attorney General, to begin
proceedings in a U.S. district court to prosecute and collect a civil
penalty.
Sec. 13.16 Civil penalties: Administrative assessment against a
person other than an individual acting as a pilot, flight engineer,
mechanic, or repairman; administrative assessment against all persons
for hazardous materials violations.
(a) General. The FAA uses the procedures in this section when it
assesses a civil penalty against a person other than an individual
acting as a pilot, flight engineer, mechanic, or repairman for a
violation cited in the first sentence of 49 U.S.C. 46301(d)(2), or in 49
U.S.C. 47531, or any implementing rule, regulation, or order, except
when the U.S. district courts have exclusive jurisdiction.
(b) District court jurisdiction. The U.S. district courts have
exclusive jurisdiction of any civil penalty action initiated by the FAA
for violations described in paragraph (a) of this section if--
(1) The amount in controversy is more than $400,000 for a violation
committed by a person other than an individual or small business
concern;
(2) The amount in controversy is more than $50,000 for a violation
committed by an individual or a small business concern;
(3) The action is in rem or another action in rem based on the same
violation has been brought;
(4) The action involves an aircraft subject to a lien that has been
seized by the Government; or
(5) Another action has been brought for an injunction based on the
same violation.
(c) Hazardous materials violations. An order assessing a civil
penalty for a violation under 49 U.S.C. chapter 51, or a rule,
regulation, or order issued under 49 U.S.C. chapter 51, is issued only
after the following factors have been considered:
[[Page 42]]
(1) The nature, circumstances, extent, and gravity of the violation;
(2) With respect to the violator, the degree of culpability, any
history of prior violations, the ability to pay, and any effect on the
ability to continue to do business; and
(3) Other matters that justice requires.
(d) Delegation of authority. The authority of the Administrator is
delegated to each Deputy Chief Counsel and the Assistant Chief Counsel
for Enforcement, as follows:
(1) Under 49 U.S.C. 46301(d), 47531, and 5123, and 49 CFR 1.83, to
initiate and assess civil penalties for a violation of those statutes or
a rule, regulation, or order issued under those provisions;
(2) Under 49 U.S.C. 5123, 49 CFR 1.83, 49 U.S.C. 46301(d), and 49
U.S.C. 46305, to refer cases to the Attorney General of the United
States or a delegate of the Attorney General for collection of civil
penalties;
(3) Under 49 U.S.C. 46301(f), to compromise the amount of a civil
penalty imposed; and
(4) Under 49 U.S.C. 5123(e) and (f) and 49 CFR 1.83, to compromise
the amount of a civil penalty imposed.
(e) Order assessing civil penalty. (1) An order assessing civil
penalty may be issued for a violation described in paragraph (a) or (c)
of this section, or as otherwise provided by statute, after notice and
opportunity for a hearing, when:
(i) A person charged with a violation agrees to pay a civil penalty
for a violation; or
(ii) A person charged with a violation does not request a hearing
under paragraph (g)(2)(ii) of this section within 15 days after receipt
of a final notice of proposed civil penalty.
(2) The following also serve as an order assessing civil penalty:
(i) An initial decision or order issued by an administrative law
judge as described in Sec. 13.232(e).
(ii) A decision or order issued by the FAA decisionmaker as
described in Sec. 13.233(j).
(f) Notice of proposed civil penalty. A civil penalty action is
initiated by sending a notice of proposed civil penalty to the person
charged with a violation, the designated agent for the person, or if
there is no such designated agent, the president of the company charged
with a violation. In response to a notice of proposed civil penalty, a
company may designate in writing another person to receive documents in
that civil penalty action. The notice of proposed civil penalty contains
a statement of the charges and the amount of the proposed civil penalty.
Not later than 30 days after receipt of the notice of proposed civil
penalty, the person charged with a violation may--
(1) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing civil penalty or
compromise order under paragraph (n) of this section may be issued in
that amount;
(2) Submit to the agency attorney one of the following:
(i) Written information, including documents and witness statements,
demonstrating that a violation of the regulations did not occur or that
a penalty or the amount of the penalty is not warranted by the
circumstances.
(ii) A written request to reduce the proposed civil penalty, stating
the amount of reduction and the reasons and providing any documents
supporting a reduction of the proposed civil penalty, including records
indicating a financial inability to pay or records showing that payment
of the proposed civil penalty would prevent the person from continuing
in business.
(iii) A written request for an informal conference to discuss the
matter with the agency attorney and to submit relevant information or
documents; or
(3) Request a hearing conducted in accordance with subpart G of this
part.
(g) Final notice of proposed civil penalty. A final notice of
proposed civil penalty will be sent to the person charged with a
violation, the designated agent for the person, the designated agent
named in accordance with paragraph (f) of this section, or the president
of the company charged with a violation. The final notice of proposed
civil penalty contains a statement of the charges and the amount of the
proposed civil penalty and, as a result of information submitted to the
agency attorney during informal procedures, may modify an allegation or
a
[[Page 43]]
proposed civil penalty contained in a notice of proposed civil penalty.
(1) A final notice of proposed civil penalty may be issued--
(i) If the person charged with a violation fails to respond to the
notice of proposed civil penalty within 30 days after receipt of that
notice; or
(ii) If the parties participated in any procedures under paragraph
(f)(2) of this section and the parties have not agreed to compromise the
action or the agency attorney has not agreed to withdraw the notice of
proposed civil penalty.
(2) Not later than 15 days after receipt of the final notice of
proposed civil penalty, the person charged with a violation may do one
of the following:
(i) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing civil penalty or a
compromise order under paragraph (n) of this section may be issued in
that amount; or
(ii) Request a hearing conducted in accordance with subpart G of
this part.
(h) Request for a hearing. Any person requesting a hearing, under
paragraph (f)(3) or (g)(2)(ii) of this section must file the request
with the FAA Hearing Docket Clerk and serve the request on the agency
attorney in accordance with the requirements in subpart G of this part.
(i) Hearing. The procedural rules in subpart G of this part apply to
the hearing.
(j) Appeal. Either party may appeal the administrative law judge's
initial decision to the FAA decisionmaker under the procedures in
subpart G of this part. The procedural rules in subpart G of this part
apply to the appeal.
(k) Judicial review. A person may seek judicial review only of a
final decision and order of the FAA decisionmaker in accordance with
Sec. 13.235.
(l) Payment. (1) A person must pay a civil penalty by:
(i) Sending a certified check or money order, payable to the Federal
Aviation Administration, to the FAA office identified in the notice of
proposed civil penalty, the final notice of proposed civil penalty, or
the order assessing civil penalty; or
(ii) Making an electronic payment according to the directions
specified in the notice of proposed civil penalty, the final notice of
proposed civil penalty, or the order assessing civil penalty.
(2) The civil penalty must be paid within 30 days after service of
the order assessing civil penalty, unless otherwise agreed to by the
parties. In cases where a hearing is requested, an appeal to the FAA
decisionmaker is filed, or a petition for review of the FAA
decisionmaker's decision is filed in a U.S. court of appeals, the civil
penalty must be paid within 30 days after all litigation in the matter
is completed and the civil penalty is affirmed in whole or in part.
(m) Collection of civil penalties. If an individual does not pay a
civil penalty imposed by an order assessing civil penalty or other final
order, the Administrator may take action to collect the penalty.
(n) Compromise. The FAA may compromise the amount of any civil
penalty imposed under this section under 49 U.S.C. 5123(e), 46301(f), or
46318 at any time before referring the action to the United States
Attorney General, or the delegate of the Attorney General, for
collection.
(1) When a civil penalty is compromised with a finding of violation,
an agency attorney issues an order assessing civil penalty.
(2) When a civil penalty is compromised without a finding of
violation, the agency attorney issues a compromise order that states the
following:
(i) The person has paid a civil penalty or has signed a promissory
note providing for installment payments.
(ii) The FAA makes no finding of a violation.
(iii) The compromise order will not be used as evidence of a prior
violation in any subsequent civil penalty proceeding or certificate
action proceeding.
Sec. 13.17 Seizure of aircraft.
(a) The Chief Counsel, or a Regional Administrator for an aircraft
within
[[Page 44]]
the region, may issue an order authorizing a State or Federal law
enforcement officer or a Federal Aviation Administration safety
inspector to seize an aircraft that is involved in a violation for which
a civil penalty may be imposed on its owner or the individual commanding
the aircraft.
(b) Each person seizing an aircraft under this section places it in
the nearest available and adequate public storage facility in the
judicial district in which it was seized.
(c) The Regional Administrator or Chief Counsel, without delay,
sends a written notice and a copy of this section to the registered
owner of the seized aircraft and to each other person shown by FAA
records to have an interest in it, stating the--
(1) Time, date, and place of seizure;
(2) Name and address of the custodian of the aircraft;
(3) Reasons for the seizure, including the violations alleged or
proven to have been committed; and
(4) Amount that may be tendered as--
(i) A compromise of a civil penalty for the alleged violation; or
(ii) Payment for a civil penalty imposed for a proven violation.
(d) The Chief Counsel or Assistant Chief Counsel for Enforcement
immediately sends a report to the United States Attorney for the
judicial district in which it was seized, requesting the United States
Attorney to institute proceedings to enforce a lien against the
aircraft.
(e) The Regional Administrator or Chief Counsel directs the release
of a seized aircraft when--
(1) The alleged violator pays a civil penalty or an amount agreed
upon in compromise, and the costs of seizing, storing, and maintaining
the aircraft;
(2) The aircraft is seized under an order of a court of the United
States in proceedings in rem initiated under 49 U.S.C. 46305 to enforce
a lien against the aircraft;
(3) The United States Attorney General, or the delegate of the
Attorney General, notifies the FAA that the United States Attorney
General, or the delegate of the Attorney General, refuses to institute
proceedings in rem under 49 U.S.C. 46305 to enforce a lien against the
aircraft; or
(4) A bond in the amount and with the sureties prescribed by the
Chief Counsel or the Assistant Chief Counsel for Enforcement is
deposited, conditioned on payment of the penalty or the compromise
amount, and the costs of seizing, storing, and maintaining the aircraft.
Sec. 13.18 Civil penalties: Administrative assessment against an
individual acting as a pilot, flight engineer, mechanic, or repairman.
(a) General. (1) This section applies to each action in which the
FAA seeks to assess a civil penalty by administrative procedures against
an individual acting as a pilot, flight engineer, mechanic, or repairman
under 49 U.S.C. 46301(d)(5) for a violation listed in 49 U.S.C.
46301(d)(2). This section does not apply to a civil penalty assessed for
a violation of 49 U.S.C. chapter 51, or a rule, regulation, or order
issued thereunder.
(2) Notwithstanding the provisions of paragraph (a)(1) of this
section, the U.S. district courts have exclusive jurisdiction of any
civil penalty action involving an individual acting as a pilot, flight
engineer, mechanic, or repairman for violations described in paragraph
(a)(1), or under 49 U.S.C. 46301(d)(4), if:
(i) The amount in controversy is more than $50,000;
(ii) The action involves an aircraft subject to a lien that has been
seized by the government; or
(iii) Another action has been brought for an injunction based on the
same violation.
(b) Definitions. As used in this part, the following definitions
apply:
(1) Flight engineer means an individual who holds a flight engineer
certificate issued under part 63 of this chapter.
(2) Individual acting as a pilot, flight engineer, mechanic, or
repairman means an individual acting in such capacity, whether or not
that individual holds the respective airman certificate issued by the
FAA.
(3) Mechanic means an individual who holds a mechanic certificate
issued under part 65 of this chapter.
[[Page 45]]
(4) Pilot means an individual who holds a pilot certificate issued
under part 61 of this chapter.
(5) Repairman means an individual who holds a repairman certificate
issued under part 65 of this chapter.
(c) Delegation of authority. The authority of the Administrator is
delegated to the Chief Counsel and each Deputy Chief Counsel, and the
Assistant Chief Counsel for Enforcement, as follows:
(1) To initiate and assess civil penalties under 49 U.S.C.
46301(d)(5);
(2) To refer cases to the Attorney General of the United States, or
the delegate of the Attorney General, for collection of civil penalties;
and
(3) To compromise the amount of a civil penalty under 49 U.S.C.
46301(f).
(d) Notice of proposed assessment. A civil penalty action is
initiated by sending a notice of proposed assessment to the individual
charged with a violation specified in paragraph (a) of this section. The
notice of proposed assessment contains a statement of the charges and
the amount of the proposed civil penalty. The individual charged with a
violation may do the following:
(1) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order of assessment or a compromise
order will be issued in that amount.
(2) Answer the charges in writing by submitting information,
including documents and witness statements, demonstrating that a
violation of the regulations did not occur or that a penalty, or the
amount of the penalty, is not warranted by the circumstances.
(3) Submit a written request to reduce the proposed civil penalty,
stating the amount of reduction and the reasons, and providing any
documents supporting a reduction of the proposed civil penalty,
including records indicating a financial inability to pay.
(4) Submit a written request for an informal conference to discuss
the matter with an agency attorney and submit relevant information or
documents.
(5) Request that an order of assessment be issued so that the
individual charged may appeal to the National Transportation Safety
Board.
(e) Failure to respond to notice of proposed assessment. An order of
assessment may be issued if the individual charged with a violation
fails to respond to the notice of proposed assessment within 15 days
after receipt of that notice.
(f) Order of assessment. An order of assessment, which imposes a
civil penalty, may be issued for a violation described in paragraph (a)
of this section after notice and an opportunity to answer any charges
and be heard as to why such order should not be issued.
(g) Appeal. Any individual who receives an order of assessment
issued under this section may appeal the order to the National
Transportation Safety Board. The appeal stays the effectiveness of the
Administrator's order.
(h) Judicial review. A party may seek judicial review only of a
final decision and order of the National Transportation Safety Board
under 49 U.S.C. 46301(d)(6) and 46110. Neither an initial decision, nor
an order issued by an administrative law judge that has not been
appealed to the National Transportation Safety Board, nor an order
compromising a civil penalty action, may be appealed under any of those
sections.
(i) Compromise. The FAA may compromise any civil penalty imposed
under this section at any time before referring the action to the United
States Attorney General, or the delegate of the Attorney General, for
collection.
(1) When a civil penalty is compromised with a finding of violation,
an agency attorney issues an order of assessment.
(2) When a civil penalty is compromised without a finding of
violation, the agency attorney issues a compromise order of assessment
that states the following:
(i) The individual has paid a civil penalty or has signed a
promissory note providing for installment payments;
(ii) The FAA makes no finding of violation; and
(iii) The compromise order will not be used as evidence of a prior
violation
[[Page 46]]
in any subsequent civil penalty proceeding or certificate action
proceeding.
(j) Payment. (1) An individual must pay a civil penalty by:
(i) Sending a certified check or money order, payable to the Federal
Aviation Administration, to the FAA office identified in the order of
assessment; or
(ii) Making an electronic payment according to the directions
specified in the order of assessment.
(2) The civil penalty must be paid within 30 days after service of
the order of assessment, unless an appeal is filed with the National
Transportation Safety Board. In cases where an appeal is filed with the
National Transportation Safety Board, or a petition for review is filed
with a U.S. court of appeals, the civil penalty must be paid within 30
days after all litigation in the matter is completed and the civil
penalty is affirmed in whole or in part.
(k) Collection of civil penalties. If an individual does not pay a
civil penalty imposed by an order of assessment or other final order,
the Administrator may take action provided under the law to collect the
penalty.
Sec. 13.19 Certificate actions appealable to the National Transportation
Safety Board.
(a) This section applies to certificate actions by the Administrator
that are appealable to the National Transportation Safety Board.
(1) Under 49 U.S.C. 44709(b) the Administrator may issue an order
amending, modifying, suspending, or revoking all or part of any type
certificate, production certificate, airworthiness certificate, airman
certificate, air carrier operating certificate, air navigation facility
certificate, or air agency certificate if as a result of a reinspection,
reexamination, or other investigation, the Administrator determines that
the public interest and safety in air commerce requires it, if a
certificate holder has violated an aircraft noise or sonic boom standard
or regulation prescribed under 49 U.S.C. 44715(a), or if the holder of
the certificate is convicted of violating 16 U.S.C. 742j-1(a).
(2) The authority of the Administrator to issue orders under 49
U.S.C. 44709(b)(1)(A) and (b)(2) is delegated to the Chief Counsel, each
Deputy Chief Counsel, and the Assistant Chief Counsel for Enforcement.
(b) The agency attorney will issue a notice before issuing a non-
immediately effective order to amend, modify, suspend, or revoke a type
certificate, production certificate, airworthiness certificate, airman
certificate, air carrier operating certificate, air navigation facility
certificate, air agency certificate, or to revoke an aircraft
certificate of registration because the aircraft was used to carry out
or facilitate an activity punishable under a law of the United States or
a State related to a controlled substance (except a law related to
simple possession of a controlled substance), by death or imprisonment
for more than one year, and the owner of the aircraft permitted the use
of the aircraft knowing that the aircraft was to be used for the
activity.
(1) A notice of proposed certificate action will advise the
certificate holder or aircraft owner of the charges or other reasons
upon which the Administrator bases the proposed action, and allows the
holder to answer any charges and to be heard as to why the certificate
should not be amended, suspended, modified, or revoked.
(2) In response to a notice of proposed certificate action described
in paragraph (b)(1) of this section, the certificate holder or aircraft
owner, within 15 days of the date of receipt of the notice, may--
(i) Surrender the certificate and waive any right to contest or
appeal the charged violations and sanction, in which case the
Administrator will issue an order;
(ii) Answer the charges in writing by submitting information,
including documents and witness statements, demonstrating that a
violation of the regulations did not occur or that the proposed sanction
is not warranted by the circumstances;
(iii) Submit a written request for an informal conference to discuss
the matter with an agency attorney and submit relevant information or
documents; or
[[Page 47]]
(iv) Request that an order be issued in accordance with the notice
of proposed certificate action so that the certificate holder or
aircraft owner may appeal to the National Transportation Safety Board.
(c) In the case of an emergency order amending, modifying,
suspending, or revoking a type certificate, production certificate,
airworthiness certificate, airman certificate, air carrier operating
certificate, air navigation facility certificate, or air agency
certificate, a person affected by the immediate effectiveness of the
Administrator's order may petition the National Transportation Safety
Board for a review of the Administrator's determination that an
emergency exists.
(d) A person may not petition the National Transportation Safety
Board for a review of the Administrator's determination that safety in
air transportation or air commerce requires the immediate effectiveness
of an order where the action is based on the circumstances described in
paragraph (d)(1), (2), or (3) of this section.
(1) The revocation of an individual's airman certificates for the
reasons stated in paragraph (d)(1)(i) or (ii) of this section:
(i) A conviction under a law of the United States or a State related
to a controlled substance (except a law related to simple possession of
a controlled substance), of an offense punishable by death or
imprisonment for more than one year if the Administrator finds that--
(A) An aircraft was used to commit, or facilitate the commission of
the offense; and
(B) The individual served as an airman, or was on the aircraft, in
connection with committing, or facilitating the commission of, the
offense.
(ii) Knowingly carrying out an activity punishable, under a law of
the United States or a State related to a controlled substance (except a
law related to simple possession of a controlled substance), by death or
imprisonment for more than one year; and--
(A) An aircraft was used to carry out or facilitate the activity;
and
(B) The individual served as an airman, or was on the aircraft, in
connection with carrying out, or facilitating the carrying out of, the
activity.
(2) The revocation of a certificate of registration for an aircraft,
and any other aircraft the owner of that aircraft holds, if the
Administrator finds that--
(i) The aircraft was used to carry out or facilitate an activity
punishable, under a law of the United States or a State related to a
controlled substance (except a law related to simple possession of a
controlled substance), by death or imprisonment for more than one year;
and
(ii) The owner of the aircraft permitted the use of the aircraft
knowing that the aircraft was to be used for the activity described in
paragraph (d)(2)(i) of this section.
(3) The revocation of an airman certificate, design organization
certificate, type certificate, production certificate, airworthiness
certificate, air carrier operating certificate, airport operating
certificate, air agency certificate, or air navigation facility
certificate if the Administrator finds that the holder of the
certificate or an individual who has a controlling or ownership interest
in the holder--
(i) Was convicted in a court of law of a violation of a law of the
United States relating to the installation, production, repair, or sale
of a counterfeit or fraudulently-represented aviation part or material;
or
(ii) Knowingly, and with the intent to defraud, carried out or
facilitated an activity described in paragraph (d)(3)(i) of this
section.
[Docket FAA-2018-1051, Amdt. 13-40, 86 FR 54527, Oct. 1, 2021, as
amended by Docket FAA-2018-1051, Amdt. 13-40A, 87 FR 61233, Oct. 11,
2022]
Sec. 13.20 Orders of compliance, cease and desist orders, orders of
denial, and other orders.
(a) General. This section applies to all of the following:
(1) Orders of compliance;
(2) Cease and desist orders;
(3) Orders of denial;
(4) Orders suspending or revoking a certificate of registration (but
not revocation of a certificate of registration because the aircraft was
used to carry
[[Page 48]]
out or facilitate an activity punishable, under a law of the United
States or a State related to a controlled substance (except a law
related to simple possession of a controlled substance), by death or
imprisonment for more than one year and the owner of the aircraft
permitted the use of the aircraft knowing that the aircraft was to be
used for the activity); and
(5) Other orders issued by the Administrator to carry out the
provisions of the Federal aviation statute codified at 49 U.S.C.
subtitle VII that apply this section by statute, rule, regulation, or
order, or for which there is no specific administrative process provided
by statute, rule, regulation, or order.
(b) Applicability of procedures. (1) Prior to the issuance of a non-
immediately effective order covered by this section, the Administrator
will provide the person who would be subject to the order with notice,
advising the person of the charges or other reasons upon which the
proposed action is based, and the provisions in paragraph (c) of this
section apply.
(2) If the Administrator is of the opinion that an emergency exists
related to safety in air commerce and requires immediate action and
issues an order covered by this section that is immediately effective,
the provisions of paragraph (d) of this section apply.
(c) Non-emergency procedures. (1) Within 30 days after service of
the notice, the person subject to the notice may:
(i) Submit a written reply;
(ii) Agree to the issuance of the order as proposed in the notice of
proposed action, waiving any right to contest or appeal the agreed-upon
order issued under this option in any administrative or judicial forum;
(iii) Submit a written request for an informal conference to discuss
the matter with an agency attorney; or
(iv) Request a hearing in accordance with the non-emergency
procedures of subpart D of this part.
(2) After an informal conference is held or a reply is filed, if the
agency attorney notifies the person that some or all of the proposed
agency action will not be withdrawn, the person may, within 10 days
after receiving the agency attorney's notification, request a hearing on
the parts of the proposed agency action not withdrawn, in accordance
with the non-emergency procedures of subpart D of this part.
(3) If a hearing is requested in accordance with paragraph
(c)(1)(iv) or (c)(2) of this section, the non-emergency procedures of
subpart D of this part apply.
(4) Failure to request a hearing within the periods provided in
paragraph (c)(1)(iv) or (c)(2) of this section:
(i) Constitutes a waiver of the right to a hearing and appeal; and
(ii) Authorizes the agency to make appropriate findings of fact and
to issue an appropriate order without further notice or proceedings.
(d) Emergency procedures. (1) If the Administrator is of the opinion
that an emergency exists related to safety in air commerce and requires
immediate action, the Administrator issues simultaneously:
(i) An immediately effective order that expires 80 days after the
date of issuance and sets forth the charges or other reasons upon which
the order is based; and
(ii) A notice of proposed action that:
(A) Sets forth the charges or other reasons upon which the notice of
proposed action is based; and
(B) Advises that within 10 days after service of the notice, the
person may appeal the notice by requesting an expedited hearing in
accordance with the emergency procedures of subpart D of this part.
(2) The Administrator will serve the immediately effective order and
the notice of proposed action together by personal or overnight delivery
and by certified or registered mail to the person subject to the order
and notice of proposed action.
(3) Failure to request a hearing challenging the notice of proposed
action under the expedited procedures in subpart D of this part within
10 days after service of the notice:
(i) Constitutes a waiver of the right to a hearing and appeal under
subpart D of this part; and
(ii) Authorizes the Administrator, without further notice or
proceedings, to make appropriate findings of fact, issue an immediately
effective order without expiration, and withdraw the 80-day immediately
effective order.
[[Page 49]]
(4) The filing of a request for hearing under subpart D of this part
does not stay the effectiveness of the 80-day immediately effective
order issued under this section.
(e) Delegation of authority. The authority of the Administrator
under this section is delegated to the Chief Counsel, each Deputy Chief
Counsel, and the Assistant Chief Counsel for Enforcement.
Sec. Sec. 13.21 -13.29 [Reserved]
Subpart D_Rules of Practice for FAA Hearings
Source: Docket No. FAA-2018-1051; Amdt. No. 13-40, 86 FR 54532, Oct.
1, 2021, unless otherwise noted.
Sec. 13.31 Applicability.
This subpart applies to proceedings in which a hearing has been
requested in accordance with Sec. 13.20 or Sec. 13.75. Hearings under
this subpart are considered informal and are provided through the Office
of Adjudication.
Sec. 13.33 Parties, representatives, and notice of appearance.
(a) Parties. Parties to proceedings under this subpart include the
following: Complainant, respondent, and where applicable, intervenor.
(1) Complainant is the FAA Office that issued the notice of proposed
action under the authorities listed in Sec. 13.31.
(2) Respondent is the party filing a request for hearing.
(3) Intervenor is a person permitted to participate as a party under
Sec. 13.51.
(b) Representatives. Any party to a proceeding under this subpart
may appear and be heard in person or by a representative. A
representative is an attorney, or another representative designated by
the party.
(c) Notice of appearance--(1) Content. The representative of a party
must file a notice of appearance that includes the representative's
name, address, telephone number, and, if available, fax number, and
email address.
(2) Filing. A notice of appearance may be incorporated into an
initial filing in a proceeding. A notice of appearance by additional
representatives or substitutes after an initial filing in a proceeding
must be filed independently.
Sec. 13.35 Request for hearing, complaint, and answer.
(a) Initial filing and service. A request for hearing must be filed
with the FAA Hearing Docket, and a copy must be served on the official
who issued the notice of proposed action, in accordance with the
requirements in Sec. 13.43 for filing and service of documents. The
request for hearing must be in writing and describe the action proposed
by the FAA, and must contain a statement that a hearing is requested
under this subpart.
(b) Complaint. Within 20 days after service of the copy of the
request for hearing, the official who issued the notice of proposed
action must forward a copy of that notice, which serves as the
complaint, to the FAA Hearing Docket.
(c) Answer. Within 30 days after service of the copy of the
complaint, the Respondent must file an answer to the complaint. All
allegations in the complaint not specifically denied in the answer are
deemed admitted.
Sec. 13.37 Hearing officer: Assignment and powers.
As soon as practicable after the filing of the complaint, the
Director of the Office of Adjudication will assign a hearing officer to
preside over the matter. The hearing officer may--
(a) Give notice concerning, and hold, prehearing conferences and
hearings;
(b) Administer oaths and affirmations;
(c) Examine witnesses;
(d) Adopt procedures for the submission of evidence in written form;
(e) Issue subpoenas;
(f) Rule on offers of proof;
(g) Receive evidence;
(h) Regulate the course of proceedings, including but not limited to
discovery, motions practice, imposition of sanctions, and the hearing;
(i) Hold conferences, before and during the hearing, to settle and
simplify issues by consent of the parties;
(j) Dispose of procedural requests and similar matters;
[[Page 50]]
(k) Issue protective orders governing the exchange and safekeeping
of information otherwise protected by law, except that national security
information may not be disclosed under such an order;
(l) Issue orders and decisions, and make findings of fact, as
appropriate; and
(m) Take any other action authorized by this subpart.
Sec. 13.39 Disqualification of hearing officer.
(a) Motion and supporting affidavit. Any party may file a motion for
disqualification under Sec. 13.49(g). A party must state the grounds
for disqualification, including, but not limited to, a financial or
other personal interest that would be affected by the outcome of the
enforcement action, personal animus against a party to the action or
against a group to which a party belongs, prejudgment of the
adjudicative facts at issue in the proceeding, or any other prohibited
conflict of interest. A party must submit an affidavit with the motion
for disqualification that sets forth, in detail, the matters alleged to
constitute grounds for disqualification.
(b) Timing. A motion for disqualification must be filed prior to the
issuance of the hearing officer's decision under Sec. 13.63(b). Any
party may file a response to a motion for disqualification, but must do
so no later than 5 days after service of the motion for
disqualification.
(c) Decision on motion for disqualification. The hearing officer
must render a decision on the motion for disqualification no later than
15 days after the motion has been filed. If the hearing officer finds
that the motion for disqualification and supporting affidavit show a
basis for disqualification, the hearing officer must withdraw from the
proceedings immediately. If the hearing officer finds that
disqualification is not warranted, the hearing officer must deny the
motion and state the grounds for the denial on the record. If the
hearing officer fails to rule on a party's motion for disqualification
within 15 days after the motion has been filed, the motion is deemed
granted.
(d) Self-disqualification. A hearing officer may disqualify himself
or herself at any time.
Sec. 13.41 Separation of functions and prohibition on ex parte
communications.
(a) Separation of powers. The hearing officer independently
exercises the powers under this subpart in a manner conducive to justice
and the proper dispatch of business. The hearing officer must not
participate in any appeal to the Administrator.
(b) Ex parte communications. (1) No substantive ex parte
communications between the hearing officer and any party are permitted.
(2) A hearing, conference, or other event scheduled with prior
notice will not constitute ex parte communication prohibited by this
section. A hearing, conference, or other event scheduled with prior
notice, may proceed in the hearing officer's sole discretion if a party
fails to appear, respond, or otherwise participate, and will not
constitute an ex parte communication prohibited by this section.
(3) For an appeal to the Administrator under this subpart, FAA
attorneys representing the complainant must not advise the Administrator
or engage in any ex parte communications with the Administrator or his
advisors.
Sec. 13.43 Service and filing of pleadings, motions, and documents.
(a) General rule. A party must file all requests for hearing,
pleadings, motions, and documents with the FAA Hearing Docket, and must
serve a copy upon all parties to the proceedings.
(b) Methods of filing. Filing must be by email, personal delivery,
expedited or overnight courier express service, mail, or fax.
(c) Address for filing. A person filing a document with the FAA
Hearing Docket must use the address identified for the method of filing
as follows:
(1) If delivery is in person, or by expedited or overnight express
courier service. Federal Aviation Administration, 600 Independence
Avenue SW, Wilbur Wright Building--Suite 2W100, Washington, DC 20597;
Attention: FAA Hearing Docket, AGC-70.
[[Page 51]]
(2) If delivery is via U.S. mail, or U.S. certified or registered
mail. Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591; Attention: FAA Hearing Docket, AGC-70, Wilbur
Wright Building--Suite 2W100.
(3) Contact information. The FAA Office of Adjudication will make
available on its website an email address and fax number for the FAA
Hearing Docket, as well as other contact information.
(d) Requirement to file an original document and number of copies. A
party must file an original document and one copy when filing by
personal delivery or by mail. Only one copy must be filed if filing is
accomplished by email or fax.
(e) Filing by email. A document that is filed by email must be
attached as a Portable Document Format (PDF) file to an email. The
document must be signed in accordance with Sec. 13.207. The email
message does not constitute a submission, but serves only to deliver the
attached PDF file to the FAA Hearing Docket.
(f) Methods of service--(1) General. A person may serve any document
by email, personal delivery, expedited or overnight courier express
service, mail, or fax.
(2) Service by email. Service of documents by email is voluntary and
requires the prior consent of the person to be served by email. A person
may retract consent to be served by email by filing and serving a
written retraction. A document that is served by email must be attached
as a PDF file to an email message.
(g) Certificate of service. A certificate of service must accompany
all documents filed with the FAA Hearing Docket. The certificate of
service must be signed, describe the method of service, and state the
date of service.
(h) Date of filing and service. If a document is sent by fax or
email, the date of filing and service is the date the email or fax is
sent. If a document is sent by personal delivery or by expedited or
overnight express courier service, the date of filing and service is the
date that delivery is accomplished. If a document is mailed, the date of
filing and service is the date shown on the certificate of service, the
date shown on the postmark if there is no certificate of service, or the
mailing date shown by other evidence if there is no certificate of
service or postmark.
Sec. 13.44 [Reserved]
Sec. 13.45 Computation of time and extension of time.
(a) In computing any period of time prescribed or allowed by this
subpart, the date of the act, event, default, notice, or order is not to
be included in the computation. The last day of the period so computed
is to be included unless it is a Saturday, Sunday, or Federal holiday,
in which event the period runs until the end of the next day that is not
a Saturday, Sunday, or a Federal holiday.
(b) Whenever a party must respond within a prescribed period after
service by mail, 5 days are added to the prescribed period.
(c) The parties may agree to extend the time for filing any document
required by this subpart with the consent of--
(1) The Director of the Office of Adjudication prior to the
designation of a hearing officer;
(2) The hearing officer prior to the filing of a notice of appeal;
or
(3) The Director of the Office of Adjudication after the filing of a
notice of appeal.
(d) If the parties do not agree, a party may make a written request
to extend the time for filing to the appropriate official identified in
paragraph (c) of this section. The appropriate official may grant the
request for good cause shown.
Sec. 13.47 Withdrawal or amendment of the complaint, answer, or
other filings.
(a) Withdrawal. At any time before the hearing, the complainant may
withdraw the complaint, and the respondent may withdraw the request for
hearing.
(b) Amendments. At any time more than 10 days before the date of
hearing, any party may amend its complaint, answer, or other pleading,
by filing the amendment with the FAA Hearing Docket and serving a copy
of it on every other party. After that time, amendment requires approval
of the hearing officer. If an initial pleading is
[[Page 52]]
amended, the hearing officer must allow the other parties a reasonable
opportunity to respond.
Sec. 13.49 Motions.
(a) Motions in lieu of an answer. A respondent may file a motion to
dismiss or a motion for a more definite statement in place of an answer.
If the hearing officer denies the motion, the respondent must file an
answer within 10 days.
(1) Motion to dismiss. The respondent may file a motion asserting
that the allegations in the complaint fail to state a violation of
Federal aviation statutes, a violation of regulations in this chapter,
lack of qualification of the respondent, or other appropriate grounds.
(2) Motion for more definite statement. The respondent may file a
motion that the allegations in the notice be made more definite and
certain.
(b) Motion to dismiss request for hearing. The FAA may file a motion
to dismiss a request for hearing based on jurisdiction, timeliness, or
other appropriate grounds.
(c) Motion for decision on the pleadings or for summary decision.
After the complaint and answer are filed, either party may move for a
decision on the pleadings or for a summary decision, in the manner
provided by Rules 12 and 56, respectively, of the Federal Rules of Civil
Procedure.
(d) Motion to strike. Upon motion of either party, the hearing
officer may order stricken, from any pleadings, any insufficient
allegation or defense, or any redundant, immaterial, impertinent, or
scandalous matter.
(e) Motion to compel. Any party may file a motion asking the hearing
officer to order any other party to produce discovery requested in
accordance with Sec. 13.53 if--
(1) The other party has failed to timely produce the requested
discovery; and
(2) The moving party certifies it has in good faith conferred with
the other party in an attempt to obtain the requested discovery prior to
filing the motion to compel.
(f) Motion for protective order. The hearing officer may order
information contained in anything filed, or in any testimony given
pursuant to this subpart withheld from public disclosure when, in the
judgment of the hearing officer, disclosure would be detrimental to
aviation safety; disclosure would not be in the public interest; or the
information is not otherwise required to be made available to the
public. Any person may make written objection to the public disclosure
of any information, stating the ground for such objection.
(g) Other motions. Any application for an order or ruling not
otherwise provided for in this subpart must be made by motion.
(h) Responses to motions. Any party may file a response to any
motion under this subpart within 10 days after service of the motion.
Sec. 13.51 Intervention.
Any person may move for leave to intervene in a proceeding and may
become a party thereto, if the hearing officer, after the case is sent
to the hearing officer for hearing, finds that the person may be bound
by the order to be issued in the proceedings or has a property or
financial interest that may not be adequately represented by existing
parties, and that the intervention will not unduly broaden the issues or
delay the proceedings. Except for good cause shown, a motion for leave
to intervene may not be considered if it is filed less than 10 days
before the hearing.
Sec. 13.53 Discovery.
(a) Filing. Discovery requests and responses are not filed with the
FAA Hearing Docket unless in support of a motion, offered for
impeachment, or other permissible circumstances as approved by the
hearing officer.
(b) Scope of discovery. Any party may discover any matter that is
not privileged and is relevant to any party's claim or defense.
(c) Time for response to written discovery requests. (1) Written
discovery includes interrogatories, requests for admission or
stipulations, and requests for production of documents.
(2) Unless otherwise directed by the hearing officer, a party must
serve its response to a discovery request no later than 30 days after
service of the discovery request.
[[Page 53]]
(d) Depositions. After the respondent has filed a request for
hearing and an answer, either party may take testimony by deposition.
(e) Limits on discovery. The hearing officer may limit the frequency
and extent of discovery upon a showing by a party that--
(1) The discovery requested is cumulative or repetitious;
(2) The discovery requested can be obtained from another less
burdensome and more convenient source;
(3) The party requesting the information has had ample opportunity
to obtain the information through other discovery methods permitted
under this section; or
(4) The method or scope of discovery requested by the party is
unduly burdensome or expensive.
Sec. 13.55 Notice of hearing.
The hearing officer must set a reasonable date, time, and location
for the hearing, and must give the parties adequate notice thereof, and
of the nature of the hearing. Due regard must be given to the
convenience of the parties with respect to the location of the hearing.
Sec. 13.57 Subpoenas and witness fees.
(a) Application. The hearing officer, upon application by any party
to the proceeding, may issue subpoenas requiring the attendance of
witnesses or the production of documents or tangible things at a hearing
or for the purpose of taking depositions, as permitted by law. The
application for producing evidence must show its general relevance and
reasonable scope. Absent good cause shown, a party must file a request
for a subpoena at least:
(1) 15 days before a scheduled deposition under the subpoena; or
(2) 30 days before a scheduled hearing where attendance at the
hearing is sought.
(b) Procedure. A party seeking the production of a document in the
custody of an FAA employee must use the discovery procedure found in
Sec. 13.53, and if necessary, a motion to compel under Sec. 13.49. A
party that applies for the attendance of an FAA employee at a hearing
must send the application, in writing, to the hearing officer. The
application must set forth the need for that employee's attendance.
(c) Fees. Except for an employee of the agency who appears at the
direction of the agency, a witness who appears at a deposition or
hearing is entitled to the same fees and allowances as provided for
under 28 U.S.C. 1821. The party who applies for a subpoena to compel the
attendance of a witness at a deposition or hearing, or the party at
whose request a witness appears at a deposition or hearing, must pay the
witness fees and allowances described in this section.
(d) Service of subpoenas. Any person who is at least 18 years old
and not a party may serve a subpoena. Serving a subpoena requires
delivering a copy to the named person. Except for the complainant, the
party that requested the subpoena must tender at the time of service the
fees for 1 day's attendance and the allowances allowed by law if the
subpoena requires that person's attendance. Proving service, if
necessary, requires the filing with the FAA Hearing Docket of a
statement showing the date and manner of service and the names of the
persons served. The server must certify the statement.
(e) Motion to quash or modify the subpoena. A party, or any person
served with a subpoena, may file a motion to quash or modify the
subpoena with the hearing officer at or before the time specified in the
subpoena for compliance. The movant must 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 thing
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. A motion to quash or modify the subpoena
will stay the effect of the subpoena pending a decision by the hearing
officer on the motion.
(f) Enforcement of subpoena. If a person disobeys a subpoena, a
party may apply to a U.S. district court to seek judicial enforcement of
the subpoena.
Sec. 13.59 Evidence.
(a) Each party to a hearing may present the party's case or defense
by
[[Page 54]]
oral or documentary evidence, submit evidence in rebuttal, and conduct
such cross-examination as may be needed for a full disclosure of the
facts.
(b) Except with respect to affirmative defenses and notices of
proposed denial, the burden of proof is upon the complainant.
Sec. 13.61 Argument and submittals.
The hearing officer must give the parties adequate opportunity to
present arguments in support of motions, objections, and the final
order. The hearing officer may determine whether arguments are to be
oral or written. At the end of the hearing, the hearing officer may
allow each party to submit written proposed findings and conclusions and
supporting reasons for them.
Sec. 13.63 Record, decision, and aircraft registration proceedings.
(a) The record. (1) The testimony and exhibits admitted at a
hearing, together with all papers, requests, and rulings filed in the
proceedings, are the exclusive basis for the issuance of the hearing
officer's decision.
(2) On appeal to the Administrator, the record shall include all of
the information identified in paragraph (a)(1) of this section and
evidence proffered but not admitted at the hearing.
(3) Any party may obtain a transcript of the hearing from the
official reporter upon payment of the required fees.
(b) Hearing officer's decision. The decision by the hearing officer
must include findings of fact based on the record, conclusions of law,
and an appropriate order.
(c) Certain aircraft registration proceedings. If the hearing
officer determines that an aircraft is ineligible for a certificate of
aircraft registration in proceedings relating to aircraft registration
orders suspending or revoking a certificate of registration under Sec.
13.20, the hearing officer may suspend or revoke the aircraft
registration certificate.
Sec. 13.65 Appeal to the Administrator, reconsideration, and
judicial review.
(a) Any party to a hearing may appeal from the order of the hearing
officer by filing with the FAA Hearing Docket a notice of appeal to the
Administrator within 20 days after the date of issuance of the order.
Filing and service of the notice of appeal, and any other papers, are
accomplished according to the procedures in Sec. 13.43.
(b) If a notice of appeal is not filed from the order issued by a
hearing officer, such order is final with respect to the parties. Such
order is not binding precedent and is not subject to judicial review.
(c) Any person filing an appeal authorized by paragraph (a) of this
section must file an appeal brief with the Administrator within 40 days
after the date of issuance of the order, and serve a copy on the other
party. A reply brief must be filed within 40 days after service of the
appeal brief and a copy served on the appellant.
(d) On appeal, the Administrator reviews the record of the
proceeding and issues an order dismissing, reversing, modifying or
affirming the order. The Administrator's order includes the reasons for
the Administrator's action. The Administrator considers only whether:
(1) Each finding of fact is supported by a preponderance of the
reliable, probative, and substantial evidence;
(2) Each conclusion is made in accordance with law, precedent, and
policy; and
(3) The hearing officer committed any prejudicial error.
(e) The Director and legal personnel of the Office of Adjudication
serve as the advisors to the Administrator for appeals under this
section.
(1) The Director has the authority to:
(i) Manage all or portions of individual appeals; and to prepare
written decisions and proposed final orders in such appeals;
(ii) Issue procedural and other interlocutory orders aimed at proper
and efficient appeal management, including, without limitation,
scheduling and sanctions orders;
(iii) Grant or deny motions to dismiss appeals;
[[Page 55]]
(iv) Dismiss appeals upon request of the appellant or by agreement
of the parties;
(v) Stay decisions and orders of the Administrator, pending judicial
review or reconsideration by the Administrator;
(vi) Summarily dismiss repetitious or frivolous petitions to
reconsider or modify orders;
(vii) Correct typographical, grammatical, and similar errors in the
Administrator's decisions and orders, and to make non-substantive
editorial changes; and
(viii) Take all other reasonable steps deemed necessary and proper
for the management of the appeals process, in accordance with this part
and applicable law.
(2) The Director's authority in paragraph (e)(1) of this section may
be re-delegated, as necessary, except to hearing officers and others
materially involved in the hearing that is the subject of the appeal.
(f) Motions to reconsider the final order of the Administrator must
be filed with the FAA Hearing Docket within thirty days of service of
the Administrator's order.
(g) Judicial review of the Administrator's final order under this
section is provided in accordance with 49 U.S.C. 5127 or 46110, as
applicable.
Sec. 13.67 Procedures for expedited proceedings.
(a) When an expedited administrative hearing is requested in
accordance with Sec. 13.20(d), the procedures in this subpart will
apply except as provided in paragraphs (a)(1) through (7) of this
section.
(1) Service and filing of pleadings, motions, and documents must be
by overnight delivery, and fax or email. Responses to motions must be
filed within 7 days after service of the motion.
(2) Within 3 days after receipt of the request for hearing, the
agency must file a copy of the notice of proposed action, which serves
as the complaint, to the FAA Hearing Docket.
(3) Within 3 days after receipt of the complaint, the person that
requested the hearing must file an answer to the complaint. All
allegations in the complaint not specifically denied in the answer are
deemed admitted. Failure to file a timely answer, absent a showing of
good cause, constitutes withdrawal of the request for hearing.
(4) Within 3 days of the filing of the complaint, the Director of
the Office of Adjudication will assign a hearing officer to preside over
the matter.
(5) The parties must serve discovery as soon as possible and set
time limits for compliance with discovery requests that accommodate the
accelerated adjudication schedule set forth in this subpart. The hearing
officer will resolve any failure of the parties to agree to a discovery
schedule.
(6) The expedited hearing must commence within 40 days after the
notice of proposed action was issued.
(7) The hearing officer must issue an oral decision and order
dismissing, reversing, modifying, or affirming the notice of proposed
action at the close of the hearing. If a notice of appeal is not filed,
such order is final with respect to the parties and is not subject to
judicial review.
(b) Any party to the expedited hearing may appeal from the initial
decision of the hearing officer to the Administrator by filing a notice
of appeal within 3 days after the date on which the decision was issued.
The time limitations for the filing of documents for appeals under this
section will not be extended by reason of the unavailability of the
hearing transcript.
(1) Any appeal to the Administrator under this section must be
perfected within 7 days after the date the notice of appeal was filed by
filing a brief in support of the appeal. Any reply to the appeal brief
must be filed within 7 days after the date the appeal brief was served
on that party. The Administrator must issue an order deciding the appeal
no later than 80 days after the date the notice of proposed action was
issued.
(2) The Administrator's order is immediately effective and
constitutes the final agency decision. The Administrator's order may be
appealed pursuant to 49 U.S.C. 46110. The filing of an appeal under 49
U.S.C. 46110 does not stay the effectiveness of the Administrator's
order.
(c) At any time after an immediately effective order is issued, the
FAA may
[[Page 56]]
request the United States Attorney General, or the delegate of the
Attorney General, to bring an action for appropriate relief.
Sec. 13.69 Other matters: Alternative dispute resolution, standing
orders, and forms.
(a) Parties may use mediation to achieve resolution of issues in
controversy addressed by this subpart. Parties seeking alternative
dispute resolution services may engage the services of a mutually
acceptable mediator. The mediator must not participate in the
adjudication under this subpart of any matter in which the mediator has
provided mediation services. Mediation discussions and submissions will
remain confidential consistent with the provisions of the Administrative
Dispute Resolution Act, the principles of Federal Rule of Evidence 408,
and other applicable Federal laws.
(b) The Director of the Office of Adjudication may issue standing
orders and forms needed for the proper dispatch of business under this
subpart.
Subpart E_Orders of Compliance Under the Hazardous Materials
Transportation Act
Source: Docket No. FAA-2018-1051; Amdt. No. 13-40, 86 FR 54536, Oct.
1, 2021, unless otherwise noted.
Sec. 13.70 Delegation of authority.
The authority of the Administrator under 49 U.S.C. 5121(a) and (d)
is delegated to the Chief Counsel, each Deputy Chief Counsel, and the
Assistant Chief Counsel for Enforcement.
[Docket FAA-2018-1051, Amdt. 13-40A, 87 FR 61233, Oct. 11, 2022]
Sec. 13.71 Applicability.
(a) An order of compliance may be issued after notice and an
opportunity for a hearing in accordance with Sec. Sec. 13.73 through
13.77 whenever the Chief Counsel, a Deputy Chief Counsel, or the
Assistant Chief Counsel for Enforcement has reason to believe that a
person is engaging in the transportation or shipment by air of hazardous
materials in violation of the Hazardous Materials Transportation Act, as
amended and codified at 49 U.S.C. chapter 51, or any rule, regulation,
or order issued under 49 U.S.C. chapter 51, for which the FAA exercises
enforcement responsibility, and the circumstances do not require the
issuance of an emergency order under 49 U.S.C. 5121(d).
(b) If circumstances require the issuance of an emergency order
under 49 U.S.C. 5121(d), the Chief Counsel, a Deputy Chief Counsel, or
the Assistant Chief Counsel for Enforcement will issue an emergency
order of compliance as described in Sec. 13.81.
Sec. 13.73 Notice of proposed order of compliance.
The Chief Counsel, a Deputy Chief Counsel, or the Assistant Chief
Counsel for Enforcement may issue to an alleged violator a notice of
proposed order of compliance advising the alleged violator of the
charges and setting forth the remedial action sought in the form of a
proposed order of compliance.
Sec. 13.75 Reply or request for hearing.
(a) Within 30 days after service upon the alleged violator of a
notice of proposed order of compliance, the alleged violator may--
(1) Submit a written reply;
(2) Submit a written request for an informal conference to discuss
the matter with an agency attorney; or
(3) Request a hearing in accordance with subpart D of this part.
(b) If, after an informal conference is held or a reply is filed,
the agency attorney notifies the person named in the notice that some or
all of the proposed agency action will not be withdrawn or will not be
subject to a consent order of compliance, the alleged violator may,
within 10 days after receiving the agency attorney's notification,
request a hearing in accordance with subpart D of this part.
(c) Failure of the alleged violator to file a reply or request a
hearing within the period provided in paragraph (a) or (b) of this
section, as applicable--
(1) Constitutes a waiver of the right to a hearing under subpart D
of this part and the right to petition for judicial review; and
(2) Authorizes the Administrator to make any appropriate findings of
fact
[[Page 57]]
and to issue an appropriate order of compliance, without further notice
or proceedings.
Sec. 13.77 Consent order of compliance.
(a) At any time before the issuance of an order of compliance, an
agency attorney and the alleged violator may agree to dispose of the
case by the issuance of a consent order of compliance.
(b) The alleged violator may submit a proposed consent order to an
agency attorney. The proposed consent order must include--
(1) An admission of all jurisdictional facts;
(2) An express waiver of the right to further procedural steps and
of all rights to legal review in any forum;
(3) An express waiver of attorney's fees and costs;
(4) If a notice has been issued prior to the proposed consent order
of compliance, an incorporation by reference of the notice and an
acknowledgement that the notice may be used to construe the terms of the
consent order of compliance; and
(5) If a request for hearing is pending in any forum, a provision
that the alleged violator will withdraw the request for a hearing and
request that the case be dismissed.
Sec. 13.79 [Reserved]
Sec. 13.81 Emergency orders.
(a) Notwithstanding Sec. Sec. 13.73 through 13.77, the Chief
Counsel, each Deputy Chief Counsel, or the Assistant Chief Counsel for
Enforcement may issue an emergency order of compliance, which is
effective upon issuance, in accordance with the procedures in subpart C
of 49 CFR part 109, if the person who issues the order finds that there
is an ``imminent hazard'' as defined in 49 CFR 109.1.
(b) The FAA official who issued the emergency order of compliance
may rescind or suspend the order if the criteria set forth in paragraph
(a) of this section are no longer satisfied, and, when appropriate, may
issue a notice of proposed order of compliance under Sec. 13.73.
(c) If at any time in the course of a proceeding commenced in
accordance with Sec. 13.73 the criteria set forth in paragraph (a) of
this section are satisfied, the official who issued the notice may issue
an emergency order of compliance, even if the period for filing a reply
or requesting a hearing specified in Sec. 13.75 has not expired.
13.83-13.87 [Reserved]
Subpart F_Formal Fact-Finding Investigation Under an Order of
Investigation
Source: Docket No. FAA-2018-1051; Amdt. No. 13-40, 86 FR 54536,
Oct. 1, 2021, unless otherwise noted.
Sec. 13.101 Applicability.
(a) This subpart applies to fact-finding investigations in which an
investigation has been ordered under Sec. 13.3(c) or Sec. 13.5(f)(2).
(b) This subpart does not limit the authority of any person to issue
subpoenas, administer oaths, examine witnesses, and receive evidence in
any informal investigation as otherwise provided by law.
Sec. 13.103 Order of investigation.
The order of investigation--
(a) Defines the scope of the investigation by describing the
information sought in terms of its subject matter or its relevancy to
specified FAA functions;
(b) Sets forth the form of the investigation which may be either by
individual deposition or investigative proceeding or both; and
(c) Names the official who is authorized to conduct the
investigation and serve as the presiding officer.
Sec. 13.105 Notification.
Any person under investigation and any person required to testify
and produce documentary or physical evidence during the investigation
will be advised of the purpose of the investigation, and of the place
where the investigative proceeding or deposition will be convened. This
may be accomplished by a notice of investigation or by a subpoena. A
copy of the order of investigation may be sent to such persons when
appropriate.
[[Page 58]]
Sec. 13.107 Designation of additional parties.
(a) The presiding officer may designate additional persons as
parties to the investigation, if in the discretion of the presiding
officer, it will aid in the conduct of the investigation.
(b) The presiding officer may designate any person as a party to the
investigation if--
(1) The person petitions the presiding officer to participate as a
party;
(2) The disposition of the investigation may as a practical matter
impair the ability to protect the person's interest unless allowed to
participate as a party; and
(3) The person's interest is not adequately represented by existing
parties.
Sec. 13.109 Convening the investigation.
The presiding officer will conduct the investigation at a location
convenient to the parties involved and as expeditious and efficient as
handling of the investigation permits.
Sec. 13.111 Subpoenas.
(a) At the discretion of the presiding officer, or at the request of
a party to the investigation, the presiding officer may issue a subpoena
directing any person to appear at a designated time and place to testify
or to produce documentary or physical evidence relating to any matter
under investigation.
(b) Subpoenas must be served by personal service on the person or an
agent designated in writing for the purpose, or by registered or
certified mail addressed to the person or agent. Whenever service is
made by registered or certified mail, the date of mailing will be
considered the time when service is made.
(c) Subpoenas extend in jurisdiction throughout the United States
and any territory or possession thereof.
Sec. 13.113 Noncompliance with the investigative process.
(a) If a person disobeys a subpoena, the Administrator or a party to
the investigation may petition a court of the United States to enforce
the subpoena in accordance with applicable statutes.
(b) If a party to the investigation fails to comply with the
provisions of this subpart or an order issued by the presiding officer,
the Administrator may bring a civil action to enforce the requirements
of this subpart or any order issued under this subpart in a court of the
United States in accordance with applicable statutes.
Sec. 13.115 Public proceedings.
(a) All investigative proceedings and depositions must be public
unless the presiding officer determines that the public interest
requires otherwise.
(b) The presiding officer may order information contained in any
report or document filed or in any testimony given pursuant to this
subpart withheld from public disclosure when, in the judgment of the
presiding officer, disclosure would adversely affect the interests of
any person and is not required in the public interest or is not
otherwise required by statute to be made available to the public. Any
person may make written objection to the public disclosure of
information, stating the grounds for such objection.
Sec. 13.117 Conduct of investigative proceeding or deposition.
(a) The presiding officer may question witnesses.
(b) Any witness may be accompanied by counsel.
(c) Any party may be accompanied by counsel and either the party or
counsel may--
(1) Question witnesses, provided the questions are relevant and
material to the matters under investigation and would not unduly impede
the progress of the investigation; and
(2) Make objections on the record and argue the basis for such
objections.
(d) Copies of all notices or written communications sent to a party
or witness must, upon request, be sent to that person's attorney of
record.
Sec. 13.119 Immunity and orders requiring testimony or other information.
(a) Whenever a person refuses, on the basis of a privilege against
self-incrimination, to testify or provide other information during the
course of any investigation conducted under this subpart, the presiding
officer may, with the approval of the United States Attorney General, or
the delegate of the
[[Page 59]]
Attorney General, issue an order requiring the person to give testimony
or provide other information. However, no testimony or other information
so compelled (or any information directly or indirectly derived from
such testimony or other information) may be used against the person in
any criminal case, except in a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the order.
(b) The presiding officer may issue an order under this section if--
(1) The testimony or other information from the witness may be
necessary to the public interest; and
(2) The witness has refused or is likely to refuse to testify or
provide other information on the basis of a privilege against self-
incrimination.
(c) Immunity provided by this section will not become effective
until the person has refused to testify or provide other information on
the basis of a privilege against self-incrimination, and an order under
this section has been issued. An order, however, may be issued
prospectively to become effective in the event of a claim of the
privilege.
Sec. 13.121 Witness fees.
All witnesses appearing, other than employees of the Federal
Aviation Administration, are entitled to the same fees and allowances as
provided for under 28 U.S.C. 1821.
Sec. 13.123 Submission by party to the investigation.
(a) During an investigation conducted under this subpart, a party
may submit to the presiding officer--
(1) A list of witnesses to be called, specifying the subject matter
of the expected testimony of each witness; and
(2) A list of exhibits to be considered for inclusion in the record.
(b) If the presiding officer determines that the testimony of a
witness or the receipt of an exhibit in accordance with paragraph (a) of
this section will be relevant, competent, and material to the
investigation, the presiding officer may subpoena the witness or use the
exhibit during the investigation.
Sec. 13.125 Depositions.
Depositions for investigative purposes may be taken at the
discretion of the presiding officer with reasonable notice to the party
under investigation. Depositions must be taken before the presiding
officer or other person authorized to administer oaths and designated by
the presiding officer. The testimony must be reduced to writing by the
person taking the deposition, or under the direction of that person, and
where possible must then be subscribed by the deponent. Any person may
be compelled to appear and testify and to produce physical and
documentary evidence.
Sec. 13.127 Reports, decisions, and orders.
The presiding officer must issue a written report based on the
record developed during the formal investigation, including a summary of
principal conclusions. A summary of principal conclusions must be
prepared by the official who issued the order of investigation in every
case that results in no action, or no action as to a particular party to
the investigation. All such reports must be furnished to the parties to
the investigation and made available to the public on request.
Sec. 13.129 Post-investigation action.
A decision on whether to initiate subsequent action must be made on
the basis of the record developed during the formal investigation and
any other information in the possession of the Administrator.
Sec. 13.131 Other procedures.
Any question concerning the scope or conduct of a formal
investigation not covered in this subpart may be ruled on by the
presiding officer on his or her own initiative, or on the motion of a
party or a person testifying or producing evidence.
Subpart G_Rules of Practice In FAA Civil Penalty Actions
Source: Docket No. FAA-2018-1051; Amdt. No. 13-40, 86 FR 54538, Oct.
1, 2021, unless otherwise noted.
[[Page 60]]
Sec. 13.201 Applicability.
This subpart applies to all civil penalty actions initiated under
Sec. 13.16 in which a hearing has been requested.
Sec. 13.202 Definitions.
For this subpart only, the following definitions apply:
Administrative law judge means an administrative law judge appointed
pursuant to the provisions of 5 U.S.C. 3105.
Agency attorney means the Deputy Chief Counsel or the Assistant
Chief Counsel responsible for the prosecution of enforcement-related
matters under this subpart, or attorneys who are supervised by those
officials or are assigned to prosecute a particular enforcement-related
matter under this subpart. Agency attorney does not include the Chief
Counsel or anyone from the Office of Adjudication.
Complaint means a document issued by an agency attorney alleging a
violation of a provision of the Federal aviation statute listed in the
first sentence of 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, or of the
Federal hazardous materials transportation statute, 49 U.S.C. 5121-5128,
or a rule, regulation, or order issued under those statutes, that has
been filed with the FAA Hearing Docket after a hearing has been
requested under Sec. 13.16(f)(3) or (g)(2)(ii).
Complainant means the FAA office that issued the notice of proposed
civil penalty under Sec. 13.16.
FAA decisionmaker means the Administrator of the Federal Aviation
Administration, acting in the capacity of the decisionmaker on appeal,
or any person to whom the Administrator has delegated the
Administrator's decisionmaking authority in a civil penalty action. As
used in this subpart, the FAA decisionmaker is the official authorized
to issue a final decision and order of the Administrator in a civil
penalty action.
Mail includes U.S. mail, U.S. certified mail, U.S. registered mail,
or use of an expedited or overnight express courier service, but does
not include email.
Office of Adjudication means the Federal Aviation Administration
Office of Adjudication, including the FAA Hearing Docket, the Director
of the Office of Adjudication and legal personnel, or any subsequently
designated office (including its head and any legal personnel) that
advises the FAA decisionmaker regarding appeals of initial decisions and
orders to the FAA decisionmaker.
Order assessing civil penalty means a document that contains a
finding of a violation of a provision of the Federal aviation statute
listed in the first sentence of 49 U.S.C. 46301(d)(2) or in 49 U.S.C.
47531, or of the Federal hazardous materials transportation statute, 49
U.S.C. 5121-5128, or a rule, regulation, or order issued under those
statutes, and may direct payment of a civil penalty. Unless an appeal is
filed with the FAA decisionmaker in a timely manner, an initial decision
or order of an administrative law judge is considered an order assessing
civil penalty if an administrative law judge finds that an alleged
violation occurred and determines that a civil penalty, in an amount
found appropriate by the administrative law judge, is warranted. Unless
a petition for review is filed with a U.S. Court of Appeals in a timely
manner, a final decision and order of the Administrator is considered an
order assessing civil penalty if the FAA decisionmaker finds that an
alleged violation occurred and a civil penalty is warranted.
Party means the Respondent, the complainant and any intervenor.
Personal delivery includes hand-delivery or use of a contract or
express messenger service. ``Personal delivery'' does not include the
use of Federal Government interoffice mail service.
Pleading means a complaint, an answer, and any amendment of these
documents permitted under this subpart.
Properly addressed means a document that shows an address contained
in agency records; a residential, business, or other address submitted
by a person on any document provided under this subpart; or any other
address shown by other reasonable and available means.
Respondent means a person named in a complaint.
Writing or written includes paper or electronic documents that are
filed or served by email, mail, personal delivery, or fax.
[[Page 61]]
Sec. 13.203 Separation of functions.
(a) Civil penalty proceedings, including hearings, are prosecuted by
an agency attorney.
(b) An agency employee who has engaged in the performance of
investigative or prosecutorial functions in a civil penalty action must
not participate in deciding or advising the administrative law judge or
the FAA decisionmaker in that case, or a factually-related case, but may
participate as counsel for the complainant or as a witness in the public
proceedings.
(c) The Chief Counsel and the Director and legal personnel of the
Office of Adjudication will advise the FAA decisionmaker regarding any
appeal of an initial decision or order in a civil penalty action to the
FAA decisionmaker.
Sec. 13.204 Appearances and rights of parties.
(a) Any party may appear and be heard in person.
(b) Any party may be accompanied, represented, or advised by an
attorney or representative designated by the party, and may be examined
by that attorney or representative in any proceeding governed by this
subpart. An attorney or representative who represents a party must file
a notice of appearance in the action, in the manner provided in Sec.
13.210, and must serve a copy of the notice of appearance on each party,
and on the administrative law judge, if assigned, in the manner provided
in Sec. 13.211, before participating in any proceeding governed by this
subpart. The attorney or representative must include the name, address,
and telephone number, and, if available, fax number and email address,
of the attorney or representative in the notice of appearance.
(c) Any person may request a copy of a document in the record upon
payment of reasonable costs. A person may keep an original document,
data, or evidence, with the consent of the administrative law judge, by
substituting a legible copy of the document for the record.
Sec. 13.205 Administrative law judges.
(a) Powers of an administrative law judge. In accordance with the
rules of this subpart, an administrative law judge may:
(1) Give notice of, and hold, prehearing conferences and hearings;
(2) Administer oaths and affirmations;
(3) Issue subpoenas as authorized by law;
(4) Rule on offers of proof;
(5) Receive relevant and material evidence;
(6) Regulate the course of the hearing in accordance with the rules
of this subpart;
(7) Hold conferences to settle or to simplify the issues by consent
of the parties;
(8) Dispose of procedural motions and requests;
(9) Make findings of fact and conclusions of law, and issue an
initial decision;
(10) Bar a person from a specific proceeding based on a finding of
obstreperous or disruptive behavior in that specific proceeding; and
(11) Take any other action authorized by this subpart.
(b) Limitations. The administrative law judge must not issue an
order of contempt, award costs to any party, or impose any sanction not
specified in this subpart. If the administrative law judge imposes any
sanction not specified in this subpart, a party may file an
interlocutory appeal of right under Sec. 13.219(c).
(c) Disqualification. The administrative law judge may disqualify
himself or herself at any time. A party may file a motion for
disqualification under Sec. 13.218.
Sec. 13.206 Intervention.
(a) A person may submit a motion for leave to intervene as a party
in a civil penalty action. Except for good cause shown, a motion for
leave to intervene must be submitted not later than 10 days before the
hearing.
(b) The administrative law judge may grant a motion for leave to
intervene if the administrative law judge finds that intervention will
not unduly broaden the issues or delay the proceedings and--
(1) The person seeking to intervene will be bound by any order or
decision entered in the action; or
[[Page 62]]
(2) The person seeking to intervene has a property, financial, or
other legitimate interest that may not be addressed adequately by the
parties.
(c) The administrative law judge may determine the extent to which
an intervenor may participate in the proceedings.
Sec. 13.207 Certification of documents.
(a) Signature required. The attorney of record, the party, or the
party's representative must sign, by hand, electronically, or by other
method acceptable to the administrative law judge, or, if the matter is
on appeal, to the FAA decisionmaker, each document tendered for filing
with the FAA Hearing Docket or served on the administrative law judge
and on each other party.
(b) Effect of signing a document. By signing a document, the
attorney of record, the party, or the party's representative certifies
that the attorney, the party, or the party's representative has read the
document and, based on reasonable inquiry and to the best of that
person's knowledge, information, and belief, the document is--
(1) Consistent with the rules in this subpart;
(2) Warranted by existing law or a good faith argument for
extension, modification, or reversal of existing law; and
(3) Not unreasonable or unduly burdensome or expensive, not made to
harass any person, not made to cause unnecessary delay, and not made to
cause needless increase in the cost of the proceedings or for any other
improper purpose.
(c) Sanctions. If the attorney of record, the party, or the party's
representative signs a document in violation of this section, the
administrative law judge or the FAA decisionmaker must:
(1) Strike the pleading signed in violation of this section;
(2) Strike the request for discovery or the discovery response
signed in violation of this section and preclude further discovery by
the party;
(3) Deny the motion or request signed in violation of this section;
(4) Exclude the document signed in violation of this section from
the record;
(5) Dismiss the interlocutory appeal and preclude further appeal on
that issue by the party who filed the appeal until an initial decision
has been entered on the record; or
(6) Dismiss the appeal of the administrative law judge's initial
decision to the FAA decisionmaker.
Sec. 13.208 Complaint.
(a) Filing. The agency attorney must file the complaint with the FAA
Hearing Docket, or may file a written motion to dismiss a request for
hearing under Sec. 13.218 instead of filing a complaint, not later than
20 days after receipt by the agency attorney of a request for hearing.
When filing the complaint, the agency attorney must follow the filing
instructions in Sec. 13.210. The agency attorney may suggest a location
for the hearing when filing the complaint.
(b) Service. An agency attorney must serve a copy of the complaint
on the respondent, the president of the corporation or company named as
a respondent, or a person designated by the respondent to accept service
of documents in the civil penalty action. When serving the complaint,
the agency attorney must follow the service instructions in Sec.
13.211.
(c) Contents. A complaint must set forth the facts alleged, any
regulation allegedly violated by the respondent, and the proposed civil
penalty in sufficient detail to provide notice of any factual or legal
allegation and proposed civil penalty.
(d) Motion to dismiss stale allegations or complaint. Instead of
filing an answer to the complaint, a respondent may move to dismiss the
complaint, or that part of the complaint, alleging a violation that
occurred more than 2 years before an agency attorney issued a notice of
proposed civil penalty to the respondent.
(1) An administrative law judge may not grant the motion and dismiss
the complaint or part of the complaint if the administrative law judge
finds that the agency has shown good cause for any delay in issuing the
notice of proposed civil penalty.
[[Page 63]]
(2) If the agency fails to show good cause for any delay, an
administrative law judge may dismiss the complaint, or that part of the
complaint, alleging a violation that occurred more than 2 years before
an agency attorney issued the notice of proposed civil penalty to the
respondent.
(3) A party may appeal the administrative law judge's ruling on the
motion to dismiss the complaint or any part of the complaint in
accordance with Sec. 13.219(b).
Sec. 13.209 Answer.
(a) Writing required. A respondent must file in the FAA Hearing
Docket a written answer to the complaint, or may file a written motion
pursuant to Sec. 13.208 or Sec. 13.218 instead of filing an answer,
not later than 30 days after service of the complaint. The answer must
be dated and signed by the person responding to the complaint. An answer
must be typewritten or legibly handwritten.
(b) Filing. A person filing an answer or motion under paragraph (a)
of this section must follow the filing instructions in Sec. 13.210.
(c) Service. A person filing an answer or a motion under paragraph
(a) of this section must serve a copy of the answer or motion in
accordance with the service instructions in Sec. 13.211.
(d) Contents. An answer must specifically state any affirmative
defense that the respondent intends to assert at the hearing. A person
filing an answer may include a brief statement of any relief requested
in the answer. The person filing an answer may recommend a location for
the hearing when filing the answer.
(e) Specific denial of allegations required. A person filing an
answer must admit, deny, or state that the person is without sufficient
knowledge or information to admit or deny, each allegation in the
complaint. All allegations in the complaint not specifically denied in
the answer are deemed admitted. A general denial of the complaint is
deemed a failure to file an answer.
(f) Failure to file answer. A person's failure to file an answer
without good cause will be deemed an admission of the truth of each
allegation contained in the complaint.
Sec. 13.210 Filing of documents.
(a) General rule. Unless provided otherwise in this subpart, all
documents in proceedings under this subpart must be tendered for filing
with the FAA Hearing Docket.
(b) Methods of filing. Filing must be by email, personal delivery,
mail, or fax.
(c) Address for filing. A person filing a document with the FAA
Hearing Docket must use the address identified for the method of filing
as follows:
(1) If delivery is in person, or by expedited or overnight express
courier service. Federal Aviation Administration, 600 Independence
Avenue SW, Wilbur Wright Building--Suite 2W100, Washington, DC 20597;
Attention: FAA Hearing Docket, AGC-70.
(2) If delivery is via U.S. mail, or U.S. certified or registered
mail. Federal Aviation Administration, 800 Independence Avenue SW,
Washington, DC 20591; Attention: FAA Hearing Docket, AGC-70, Wilbur
Wright Building--Suite 2W100.
(3) If delivery is via email or fax. The email address and fax
number for the FAA Hearing Docket, made available on the FAA Office of
Adjudication website.
(d) Date of filing. If a document is filed by fax or email, the date
of filing is the date the email or fax is sent. If a document is filed
by personal delivery, the date of filing is the date that personal
delivery is accomplished. If a document is filed by mail, the date of
filing is the date shown on the certificate of service, the date shown
on the postmark if there is no certificate of service, or the mailing
date shown by other evidence if there is no certificate of service or
postmark.
(e) Form. Each document must be typewritten or legibly handwritten.
(f) Contents. Unless otherwise specified in this subpart, each
document must contain a short, plain statement of the facts on which the
person's case rests and a brief statement of the action requested.
(g) Requirement to file an original document and number of copies. A
party must file an original document and one copy when filing by
personal delivery or by mail. Only one copy must be filed if filing is
accomplished by email or fax.
[[Page 64]]
(h) Filing by email. A document that is filed by email must be
attached as a PDF file to an email. The document must be signed in
accordance with Sec. 13.207. The email message does not constitute a
submission, but serves only to deliver the attached PDF file to the FAA
Hearing Docket.
Sec. 13.211 Service of documents.
(a) General. A person must serve a copy of all documents on each
party and the administrative law judge, if assigned, at the time of
filing with the FAA Hearing Docket except as provided otherwise in this
subpart.
(b) Service by the FAA Hearing Docket, the administrative law judge,
and the FAA decisionmaker. The FAA Hearing Docket, the administrative
law judge, and the FAA decisionmaker must send documents to a party by
personal delivery, mail, fax, or email as provided in this section.
(c) Methods of service--(1) General. A person may serve any document
by email, personal delivery, mail, or fax.
(2) Service by email. Service of documents by email is voluntary and
requires the prior consent of the person to be served by email. A person
may retract consent to be served by email by filing a written retraction
with the FAA Hearing Docket and serving it on the other party and the
administrative law judge. A document that is served by email must be
attached as a PDF file to an email message.
(d) Certificate of service. A certificate of service must accompany
all documents filed with the FAA Hearing Docket. The certificate of
service must be signed, describe the method of service, and state the
date of service.
(e) Date of service. If a document is served by fax or served by
email, the date of service is the date the email or fax is sent. If a
document is served by personal delivery, the date of service is the date
that personal delivery is accomplished. If a document is mailed, the
date of service is the date shown on the certificate of service, the
date shown on the postmark if there is no certificate of service, or the
mailing date shown by other evidence if there is no certificate of
service or postmark.
(f) Valid service. A document served by mail or personal delivery
that was properly addressed, was sent in accordance with this subpart,
and that was returned as unclaimed, or that was refused or not accepted,
is deemed to have been served in accordance with this subpart.
(g) Additional time after service by mail. Whenever a party must
respond within a prescribed period after service by mail, 5 days are
added to the prescribed period.
(h) Presumption of service. There is a presumption of service where
a party or a person, who customarily receives mail, or receives it in
the ordinary course of business, at either the person's residence or the
person's principal place of business, acknowledges receipt of the
document.
Sec. 13.212 Computation of time.
(a) This section applies to any period of time prescribed or allowed
by this subpart, by notice or order of the administrative law judge, or
by any applicable statute.
(b) The date of an act, event, or default is not included in a
computation of time under this subpart.
(c) The last day of a time period is included unless it is a
Saturday, Sunday, or a Federal holiday. If the last day is a Saturday,
Sunday, or Federal holiday, the time period runs until the end of the
next day that is not a Saturday, Sunday, or Federal holiday.
Sec. 13.213 Extension of time.
(a) The parties may agree to extend for a reasonable period the time
for filing a document under this subpart. The party seeking the
extension of time must submit a draft order to the administrative law
judge to be signed by the administrative law judge and filed with the
FAA Hearing Docket. The administrative law judge must sign and issue the
order if the extension agreed to by the parties is reasonable.
(b) A party may file a written motion for an extension of time. A
written motion for an extension of time must be filed with the FAA
Hearing Docket in accordance with Sec. 13.210. The motion must be filed
no later than seven days before the document is due unless good cause
for the late filing is shown. The party filing the motion must serve a
copy of the motion in accordance with
[[Page 65]]
Sec. 13.211. The administrative law judge may grant the extension of
time if good cause for the extension is shown.
(c) If the administrative law judge fails to rule on a motion for an
extension of time by the date the document was due, the motion for an
extension of time is deemed granted for no more than 20 days after the
original date the document was to be filed.
Sec. 13.214 Amendment of pleadings.
(a) Filing and service. A party must file the amendment with the FAA
Hearing Docket and must serve a copy of the amendment on the
administrative law judge, if assigned, and on all parties to the
proceeding.
(b) Time. (1) Not later than 15 days before the scheduled date of a
hearing, a party may amend a complaint or an answer without the consent
of the administrative law judge.
(2) Less than 15 days before the scheduled date of a hearing, the
administrative law judge may allow amendment of a complaint or an answer
only for good cause shown in a motion to amend.
(c) Responses. The administrative law judge must allow a reasonable
time, but not more than 20 days from the date of filing, for other
parties to respond if an amendment to a complaint, answer, or other
pleading has been filed with the FAA Hearing Docket and served on the
administrative law judge and other parties.
Sec. 13.215 Withdrawal of complaint or request for hearing.
At any time before or during a hearing, an agency attorney may
withdraw a complaint or a party may withdraw a request for a hearing
without the consent of the administrative law judge. If an agency
attorney withdraws the complaint or a party withdraws the request for a
hearing and the answer, the administrative law judge must dismiss the
proceedings under this subpart with prejudice.
Sec. 13.216 Waivers.
Waivers of any rights provided by statute or regulation must be in
writing or by stipulation made at a hearing and entered into the record.
The parties must set forth the precise terms of the waiver and any
conditions.
Sec. 13.217 Joint procedural or discovery schedule.
(a) General. The parties may agree to submit a schedule for filing
all prehearing motions, conducting discovery in the proceedings, or
both.
(b) Form and content of schedule. If the parties agree to a joint
procedural or discovery schedule, one of the parties must file the joint
schedule setting forth the dates to which the parties have agreed, in
accordance with Sec. 13.210, and must also serve a copy of the joint
schedule in accordance with Sec. 13.211. The filing of the joint
schedule must include a draft order establishing a joint schedule to be
signed by the administrative law judge.
(1) The joint schedule may include, but need not be limited to,
requests for discovery, objections to discovery requests, responses to
discovery requests to which there are no objections, submission of
prehearing motions, responses to prehearing motions, exchange of
exhibits to be introduced at the hearing, and a list of witnesses that
may be called at the hearing.
(2) Each party must sign the joint schedule.
(c) Time. The parties may agree to submit all prehearing motions and
responses and may agree to close discovery in the proceedings under the
joint schedule within a reasonable time before the date of the hearing,
but not later than 15 days before the hearing.
(d) Joint scheduling order. The joint schedule filed by the parties
is a proposed schedule that requires approval of the administrative law
judge to become the joint scheduling order.
(e) Disputes. The administrative law judge must resolve disputes
regarding discovery or disputes regarding compliance with the joint
scheduling order as soon as possible so that the parties may continue to
comply with the joint scheduling order.
(f) Sanctions for failure to comply with joint schedule. If a party
fails to comply with a joint scheduling order, the administrative law
judge may impose any of the following sanctions, proportional to the
party's failure to comply with the order:
[[Page 66]]
(1) Strike the relevant portion of a party's pleadings;
(2) Preclude prehearing or discovery motions by that party;
(3) Preclude admission of the relevant portion of a party's evidence
at the hearing; or
(4) Preclude the relevant portion of the testimony of that party's
witnesses at the hearing.
Sec. 13.218 Motions.
(a) General. A party applying for an order or ruling not
specifically provided in this subpart must do so by filing a motion in
accordance with Sec. 13.210. A party must serve a copy of each motion
in accordance with Sec. 13.211.
(b) Form and contents. A party must state the relief sought by the
motion and the particular grounds supporting that relief. If a party has
evidence in support of a motion, the party must attach any supporting
evidence, including affidavits, to the motion.
(c) Filing of motions. A motion made prior to the hearing must be in
writing. Unless otherwise agreed by the parties or for good cause shown,
a party must file any prehearing motion not later than 30 days before
the hearing in the FAA Hearing Docket in accordance with Sec. 13.210,
and must serve a copy on the administrative law judge, if assigned, and
on each party in accordance with Sec. 13.211. Motions introduced during
a hearing may be made orally on the record unless the administrative law
judge directs otherwise.
(d) Responses to motions. Any party may file a response, with
affidavits or other evidence in support of the response, not later than
10 days after service of a written motion on that party. When a motion
is made during a hearing, the response may be made at the hearing on the
record, orally or in writing, within a reasonable time determined by the
administrative law judge.
(e) Rulings on motions. The administrative law judge must rule on
all motions as follows:
(1) Discovery motions. The administrative law judge must resolve all
pending discovery motions not later than 10 days before the hearing.
(2) Prehearing motions. The administrative law judge must resolve
all pending prehearing motions not later than 7 days before the hearing.
If the administrative law judge issues a ruling or order orally, the
administrative law judge must serve a written copy of the ruling or
order, within 3 days, on each party. In all other cases, the
administrative law judge must issue rulings and orders in writing and
must serve a copy of the ruling or order on each party.
(3) Motions made during the hearing. The administrative law judge
must issue rulings and orders on oral motions. Oral rulings or orders on
motions must be made on the record.
(f) Specific motions. The motions that a party may file include but
are not limited to the following:
(1) Motion to dismiss for insufficiency. A respondent may file a
motion to dismiss the complaint for insufficiency instead of filing an
answer. If the administrative law judge denies the motion to dismiss the
complaint for insufficiency, the respondent must file an answer not
later than 10 days after service of the administrative law judge's
denial of the motion. A motion to dismiss the complaint for
insufficiency must show that the complaint fails to state a violation of
a provision of the Federal aviation statute listed in the first sentence
in 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, or any implementing
rule, regulation, or order, or a violation of the Federal hazardous
materials transportation statute, 49 U.S.C. 5121-5128, or any
implementing rule, regulation, or order.
(2) Motion to dismiss. A party may file a motion to dismiss,
specifying the grounds for dismissal. If an administrative law judge
grants a motion to dismiss in part, a party may appeal the
administrative law judge's ruling on the motion to dismiss under Sec.
13.219(b).
(i) Motion to dismiss a request for a hearing. An agency attorney
may file a motion to dismiss a request for a hearing instead of filing a
complaint. If the motion to dismiss is not granted, the agency attorney
must file the complaint in the FAA Hearing Docket and must serve a copy
of the complaint on the administrative law judge and on each party not
later than 10 days after service of the administrative law judge's
ruling or order on the motion
[[Page 67]]
to dismiss. If the motion to dismiss is granted and the proceedings are
terminated without a hearing, the respondent may appeal to the FAA
decisionmaker under Sec. 13.233. If required by the decision on appeal,
the agency attorney must file a complaint in the FAA Hearing Docket and
must serve a copy of the complaint on the administrative law judge and
each party not later than 10 days after service of the FAA
decisionmaker's decision on appeal.
(ii) Motion to dismiss a complaint. A respondent may file a motion
to dismiss a complaint instead of filing an answer, including a motion
to dismiss a stale complaint or allegations as provided in Sec. 13.208.
If the motion to dismiss is not granted, the respondent must file an
answer in the FAA Hearing Docket and must serve a copy of the answer on
the administrative law judge and on each party not later than 10 days
after service of the administrative law judge's ruling or order on the
motion to dismiss. If the motion to dismiss is granted and the
proceedings are terminated without a hearing, the agency attorney may
file an appeal in the FAA Hearing Docket under Sec. 13.233 and must
serve each other party. If required by the FAA decisionmaker's decision
on appeal, the respondent must file an answer in the FAA Hearing Docket,
and must serve a copy of the answer on the administrative law judge and
on each party not later than 10 days after service of the decision on
appeal.
(3) Motion for a more definite statement. A party may file a motion
for a more definite statement of any pleading which requires a response
under this subpart. A party must set forth, in detail, the indefinite or
uncertain allegations contained in a complaint or response to any
pleading and must submit the details that the party believes would make
the allegation or response definite and certain.
(i) Complaint. A respondent may file a motion requesting a more
definite statement of the allegations contained in the complaint instead
of filing an answer. If the administrative law judge grants the motion,
the agency attorney must supply a more definite statement not later than
15 days after service of the ruling granting the motion. If the agency
attorney fails to supply a more definite statement, the administrative
law judge may strike the allegations in the complaint to which the
motion is directed. If the administrative law judge denies the motion,
the respondent must file an answer in the FAA Hearing Docket and must
serve a copy of the answer on the administrative law judge and on each
party not later than 10 days after service of the order of denial.
(ii) Answer. An agency attorney may file a motion requesting a more
definite statement if an answer fails to respond clearly to the
allegations in the complaint. If the administrative law judge grants the
motion, the respondent must supply a more definite statement not later
than 15 days after service of the ruling on the motion. If the
respondent fails to supply a more definite statement, the administrative
law judge may strike those statements in the answer to which the motion
is directed. The respondent's failure to supply a more definite
statement may be deemed an admission of unanswered allegations in the
complaint.
(4) Motion to strike. Any party may make a motion to strike any
insufficient allegation or defense, or any redundant, immaterial,
impertinent, or scandalous matter in a pleading. A party must file a
motion to strike before a response is required under this subpart or, if
a response is not required, not later than 10 days after service of the
pleading. A motion to strike must be filed in the FAA Hearing Docket and
served on the administrative law judge, if assigned, and on each other
party.
(5) Motion for decision. A party may make a motion for decision,
regarding all or any part of the proceedings, at any time before the
administrative law judge has issued an initial decision in the
proceedings. The administrative law judge must grant a party's motion
for decision if the pleadings, depositions, answers to interrogatories,
admissions, matters that the administrative law judge has officially
noticed, or evidence introduced during the hearing shows that there is
no genuine issue of material fact and that the party making the motion
is entitled to a decision as a matter of law. The party making the
motion for decision has the burden
[[Page 68]]
of showing that there is no genuine issue of material fact disputed by
the parties.
(6) Motion for disqualification. A party may file a motion for
disqualification in the FAA Hearing Docket and must serve a copy on the
administrative law judge and on each party. A party may file the motion
at any time after the administrative law judge has been assigned to the
proceedings but must make the motion before the administrative law judge
files an initial decision in the proceedings.
(i) Motion and supporting affidavit. A party must state the grounds
for disqualification in a motion for disqualification, including, but
not limited to, a financial or other personal interest that would be
affected by the outcome of the enforcement action, personal animus
against a party to the action or against a group to which a party
belongs, prejudgment of the adjudicative facts at issue in the
proceeding, or any other prohibited conflict of interest. A party must
submit an affidavit with the motion for disqualification that sets
forth, in detail, the matters alleged to constitute grounds for
disqualification.
(ii) Response. A party must respond to the motion for
disqualification not later than 5 days after service of the motion for
disqualification.
(iii) Decision on motion for disqualification. The administrative
law judge must render a decision on the motion for disqualification not
later than 15 days after the motion has been filed. If the
administrative law judge finds that the motion for disqualification and
supporting affidavit show a basis for disqualification, the
administrative law judge must withdraw from the proceedings immediately.
If the administrative law judge finds that disqualification is not
warranted, the administrative law judge must deny the motion and state
the grounds for the denial on the record. If the administrative law
judge fails to rule on a party's motion for disqualification within 15
days after the motion has been filed, the motion is deemed granted.
(iv) Appeal. A party may appeal the administrative law judge's
denial of the motion for disqualification in accordance with Sec.
13.219(b).
(7) Motions for reconsideration of an initial decision, order
dismissing a complaint, order dismissing a request for hearing or order
dismissing a request for hearing and answer. The FAA decisionmaker may
treat motions for reconsideration of an initial decision, order
dismissing a complaint, order dismissing a request for hearing, or order
dismissing a request for hearing and answer as a notice of appeal under
Sec. 13.233, and if the motion was filed within the time allowed for
the filing of a notice of appeal, the FAA decisionmaker will issue a
briefing schedule.
Sec. 13.219 Interlocutory appeals.
(a) General. Unless otherwise provided in this subpart, a party may
not appeal a ruling or decision of the administrative law judge to the
FAA decisionmaker until the initial decision has been entered on the
record. A decision or order of the FAA decisionmaker on the
interlocutory appeal does not constitute a final order of the
Administrator for the purposes of judicial appellate review as provided
in Sec. 13.235.
(b) Interlocutory appeal for cause. If a party orally requests or
files a written request for an interlocutory appeal for cause, the
proceedings are stayed until the administrative law judge issues a
decision on the request. Any written request for interlocutory appeal
for cause must be filed in the FAA Hearing Docket and served on each
party and on the administrative law judge. If the administrative law
judge grants the request, the proceedings are stayed until the FAA
decisionmaker issues a decision on the interlocutory appeal. The
administrative law judge must grant the request if a party shows that
delay of the appeal would be detrimental to the public interest or would
result in undue prejudice to any party.
(c) Interlocutory appeals of right. If a party notifies the
administrative law judge of an interlocutory appeal of right, the
proceedings are stayed until the FAA decisionmaker issues a decision on
the interlocutory appeal. A party may file an interlocutory appeal of
right, without the consent of the administrative law judge, before an
initial decision has been entered in the case of:
[[Page 69]]
(1) A ruling or order by the administrative law judge barring a
person from the proceedings;
(2) Failure of the administrative law judge to dismiss the
proceedings in accordance with Sec. 13.215; or
(3) A ruling or order by the administrative law judge in violation
of Sec. 13.205(b).
(d) Procedure. A party must file a notice of interlocutory appeal,
with supporting documents, with the FAA Hearing Docket, and must serve a
copy of the notice and supporting documents on each party and the
administrative law judge not later than 10 days after the administrative
law judge's decision forming the basis of an interlocutory appeal of
right, or not later than 10 days after the administrative law judge's
decision granting an interlocutory appeal for cause, as appropriate. A
party must file a reply, if any, with the FAA Hearing Docket, and serve
a copy on each party and the administrative law judge not later than 10
days after service of the appeal. The FAA decisionmaker must render a
decision on the interlocutory appeal on the record and as a part of the
decision in the proceedings, within a reasonable time after receipt of
the interlocutory appeal.
(e) Summary rejection. The FAA decisionmaker may reject frivolous,
repetitive, or dilatory appeals, and may issue an order precluding one
or more parties from making further interlocutory appeals in a
proceeding in which there have been frivolous, repetitive, or dilatory
interlocutory appeals.
Sec. 13.220 Discovery.
(a) Initiation of discovery. Any party may initiate discovery
described in this section without the consent or approval of the
administrative law judge at any time after a complaint has been filed in
the proceedings.
(b) Methods of discovery. The following methods of discovery are
permitted under this section: Depositions on oral examination or written
questions of any person; written interrogatories directed to a party;
requests for production of documents or tangible items to any person;
and requests for admission by a party. A party must not file written
interrogatories and responses, requests for production of documents or
tangible items and responses, and requests for admission and response
with the FAA Hearing Docket or serve them on the administrative law
judge. In the event of a discovery dispute, a party must attach a copy
of the relevant documents in support of a motion made under this
section.
(c) Service on the agency. A party must serve each discovery request
directed to the agency or any agency employee on the agency attorney of
record.
(d) Time for response to discovery requests. Unless otherwise
directed by this subpart or agreed by the parties, a party must respond
to a request for discovery, including filing objections to a request for
discovery, not later than 30 days after service of the request.
(e) Scope of discovery. Subject to the limits on discovery set forth
in paragraph (f) of this section, a party may discover any matter that
is not privileged and that is relevant to any party's claim or defense,
including the existence, description, nature, custody, condition, and
location of any document or other tangible item and the identity and
location of any person having knowledge of discoverable matter. A party
may discover facts known, or opinions held, by an expert who any other
party expects to call to testify at the hearing. A party has no ground
to object to a discovery request on the basis that the information
sought would not be admissible at the hearing.
(f) Limiting discovery. The administrative law judge must limit the
frequency and extent of discovery permitted by this section if a party
shows that--
(1) The information requested is cumulative or repetitious;
(2) The information requested can be obtained from another less
burdensome and more convenient source;
(3) The party requesting the information has had ample opportunity
to obtain the information through other discovery methods permitted
under this section; or
(4) The method or scope of discovery requested by the party is
unduly burdensome or expensive.
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(g) Confidential orders. A party or person who has received a
discovery request for information that is related to a trade secret,
confidential or sensitive material, competitive or commercial
information, proprietary data, or information on research and
development, may file a motion for a confidential order in the FAA
Hearing Docket in accordance with Sec. 13.210, and must serve a copy of
the motion for a confidential order on each party and on the
administrative law judge in accordance with Sec. 13.211.
(1) The party or person making the motion must show that the
confidential order is necessary to protect the information from
disclosure to the public.
(2) If the administrative law judge determines that the requested
material is not necessary to decide the case, the administrative law
judge must preclude any inquiry into the matter by any party.
(3) If the administrative law judge determines that the requested
material may be disclosed during discovery, the administrative law judge
may order that the material may be discovered and disclosed under
limited conditions or may be used only under certain terms and
conditions.
(4) If the administrative law judge determines that the requested
material is necessary to decide the case and that a confidential order
is warranted, the administrative law judge must provide:
(i) An opportunity for review of the document by the parties off the
record;
(ii) Procedures for excluding the information from the record; and
(iii) Order that the parties must not disclose the information in
any manner and the parties must not use the information in any other
proceeding.
(h) Protective orders. A party or a person who has received a
request for discovery may file a motion for protective order in the FAA
Hearing Docket and must serve a copy of the motion for protective order
on the administrative law judge and each other party. The party or
person making the motion must show that the protective order is
necessary to protect the party or the person from annoyance,
embarrassment, oppression, or undue burden or expense. As part of the
protective order, the administrative law judge may:
(1) Deny the discovery request;
(2) Order that discovery be conducted only on specified terms and
conditions, including a designation of the time or place for discovery
or a determination of the method of discovery; or
(3) Limit the scope of discovery or preclude any inquiry into
certain matters during discovery.
(i) Duty to supplement or amend responses. A party who has responded
to a discovery request has a duty to supplement or amend the response,
as soon as the information is known, as follows:
(1) A party must supplement or amend any response to a question
requesting the identity and location of any person having knowledge of
discoverable matters.
(2) A party must supplement or amend any response to a question
requesting the identity of each person who will be called to testify at
the hearing as an expert witness and the subject matter and substance of
that witness's testimony.
(3) A party must supplement or amend any response that was incorrect
when made or any response that was correct when made but is no longer
correct, accurate, or complete.
(j) Depositions--(1) Form. A deposition must be taken on the record
and reduced to writing. The person being deposed must sign the
deposition unless the parties agree to waive the requirement of a
signature.
(2) Administration of oaths. Within the United States, or a
territory or possession subject to the jurisdiction of the United
States, a party must take a deposition before a person authorized to
administer oaths by the laws of the United States or authorized by the
law of the place where the examination is held. In foreign countries, a
party must take a deposition in any manner allowed by the Federal Rules
of Civil Procedure.
(3) Notice of deposition. A party must serve a notice of deposition,
stating the time and place of the deposition and the name and address of
each person to be examined, on the person to be deposed, the
administrative law judge, and each party not later than 7 days before
the deposition. The notice must
[[Page 71]]
be filed in the FAA Hearing Docket simultaneously. A party may serve a
notice of deposition less than 7 days before the deposition only with
consent of the administrative law judge. The party noticing a deposition
must attach a copy of any subpoena duces tecum requesting that materials
be produced at the deposition to the notice of deposition.
(4) Use of depositions. A party may use any part or all of a
deposition at a hearing authorized under this subpart only upon a
showing of good cause. The deposition may be used against any party who
was present or represented at the deposition or who had reasonable
notice of the deposition.
(k) Interrogatories. A party, the party's attorney, or the party's
representative may sign the party's responses to interrogatories. A
party must answer each interrogatory separately and completely in
writing. If a party objects to an interrogatory, the party must state
the objection and the reasons for the objection. An opposing party may
use any part or all of a party's responses to interrogatories at a
hearing authorized under this subpart to the extent that the response is
relevant, material, and not repetitious.
(1) A party must not serve more than 30 interrogatories to each
other party. Each subpart of an interrogatory must be counted as a
separate interrogatory.
(2) A party must file a motion for leave to serve additional
interrogatories on a party with the administrative law judge before
serving additional interrogatories on a party. The administrative law
judge may grant the motion only if the party shows good cause.
(l) Requests for admission. A party may serve a written request for
admission of the truth of any matter within the scope of discovery under
this section or the authenticity of any document described in the
request. A party must set forth each request for admission separately. A
party must serve copies of documents referenced in the request for
admission unless the documents have been provided or are reasonably
available for inspection and copying.
(1) Time. A party's failure to respond to a request for admission,
in writing and signed by the attorney or the party, not later than 30
days after service of the request, is deemed an admission of the truth
of the statement or statements contained in the request for admission.
The administrative law judge may determine that a failure to respond to
a request for admission is not deemed an admission of the truth if a
party shows that the failure was due to circumstances beyond the control
of the party or the party's attorney.
(2) Response. A party may object to a request for admission and must
state the reasons for objection. A party may specifically deny the truth
of the matter or describe the reasons why the party is unable to
truthfully deny or admit the matter. If a party is unable to deny or
admit the truth of the matter, the party must show that the party has
made reasonable inquiry into the matter or that the information known
to, or readily obtainable by, the party is insufficient to enable the
party to admit or deny the matter. A party may admit or deny any part of
the request for admission. If the administrative law judge determines
that a response does not comply with the requirements of this paragraph
(l)(2) or that the response is insufficient, the matter is deemed
admitted.
(3) Effect of admission. Any matter admitted or deemed admitted
under this section is conclusively established for the purpose of the
hearing and appeal.
(m) Motion to compel discovery. A party may make a motion to compel
discovery if a person refuses to answer a question during a deposition,
a party fails or refuses to answer an interrogatory, if a person gives
an evasive or incomplete answer during a deposition or when responding
to an interrogatory, or a party fails or refuses to produce documents or
tangible items. During a deposition, the proponent of a question may
complete the deposition or may adjourn the examination before making a
motion to compel if a person refuses to answer. Any motion to compel
must be filed with the FAA Hearing Docket and served on the
administrative law judge and other parties in accordance with Sec. Sec.
13.210 and 13.211, respectively.
(n) Failure to comply with a discovery order. If a party fails to
comply with a
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discovery order, the administrative law judge may impose any of the
following sanctions proportional to the party's failure to comply with
the order:
(1) Strike the relevant portion of a party's pleadings;
(2) Preclude prehearing or discovery motions by that party;
(3) Preclude admission of the relevant portion of a party's evidence
at the hearing; or
(4) Preclude the relevant portion of the testimony of that party's
witnesses at the hearing.
Sec. 13.221 Notice of hearing.
(a) Notice. The administrative law judge must provide each party
with notice of the date, time, and location of the hearing at least 60
days before the hearing date.
(b) Date, time, and location of the hearing. The administrative law
judge to whom the proceedings have been assigned must set a reasonable
date, time, and location for the hearing. The administrative law judge
must consider the need for discovery and any joint procedural or
discovery schedule submitted by the parties when determining the hearing
date. The administrative law judge must give due regard to the
convenience of the parties, the location where the majority of the
witnesses reside or work, and whether the location is served by a
scheduled air carrier.
(c) Earlier hearing. With the consent of the administrative law
judge, the parties may agree to hold the hearing on an earlier date than
the date specified in the notice of hearing.
Sec. 13.222 Evidence.
(a) General. A party is entitled to present the party's case or
defense by oral, documentary, or demonstrative evidence, to submit
rebuttal evidence, and to conduct any cross-examination that may be
required for a full and true disclosure of the facts.
(b) Admissibility. A party may introduce any oral, documentary, or
demonstrative evidence in support of the party's case or defense. The
administrative law judge must admit any relevant oral, documentary, or
demonstrative evidence introduced by a party, but must exclude
irrelevant, immaterial, or unduly repetitious evidence.
(c) Hearsay evidence. Hearsay evidence is admissible in proceedings
governed by this subpart. The fact that evidence submitted by a party is
hearsay goes only to the weight of the evidence and does not affect its
admissibility.
Sec. 13.223 Standard of proof.
The administrative law judge must issue an initial decision or must
rule in a party's favor only if the decision or ruling is supported by,
and in accordance with, the reliable, probative, and substantial
evidence contained in the record. In order to prevail, the party with
the burden of proof must prove the party's case or defense by a
preponderance of reliable, probative, and substantial evidence.
Sec. 13.224 Burden of proof.
(a) Except in the case of an affirmative defense, the burden of
proof is on the agency.
(b) Except as otherwise provided by statute or rule, the proponent
of a motion, request, or order has the burden of proof.
(c) A party who has asserted an affirmative defense has the burden
of proving the affirmative defense.
Sec. 13.225 Offer of proof.
A party whose evidence has been excluded by a ruling of the
administrative law judge may offer the evidence for the record on
appeal.
Sec. 13.226 Public disclosure of information.
(a) The administrative law judge may order that any information
contained in the record be withheld from public disclosure. Any party or
interested person may object to disclosure of information in the record
by filing and serving a written motion to withhold specific information
in accordance with Sec. Sec. 13.210 and 13.211 respectively. A party
may file a motion seeking to protect from public disclosure information
contained in a document that the party is filing at the same time it
files the document. The person or party must state the specific grounds
for nondisclosure in the motion.
[[Page 73]]
(b) The administrative law judge must grant the motion to withhold
if, based on the motion and any response to the motion, the
administrative law judge determines that: Disclosure would be
detrimental to aviation safety; disclosure would not be in the public
interest; or the information is not otherwise required to be made
available to the public.
Sec. 13.227 Expert or opinion witnesses.
An employee of the agency may not be called as an expert or opinion
witness for any party other than the FAA in any proceeding governed by
this subpart. An employee of a respondent may not be called by an agency
attorney as an expert or opinion witness for the FAA in any proceeding
governed by this subpart to which the respondent is a party.
Sec. 13.228 Subpoenas.
(a) Request for subpoena. The administrative law judge, upon
application by any party to the proceeding, may issue subpoenas
requiring the attendance of witnesses or the production of documents or
tangible things at a hearing or for the purpose of taking depositions,
as permitted by law. A request for a subpoena must show its general
relevance and reasonable scope. The party must serve the subpoena on the
witness or the holder of the documents or tangible items as permitted by
applicable statute. A request for a subpoena must be filed and served in
accordance with Sec. Sec. 13.210 and 13.211, respectively. Absent good
cause shown, the filing and service must be completed as follows:
(1) Not later than 15 days before a scheduled deposition under the
subpoena; or
(2) Not later than 30 days before a scheduled hearing where
attendance at the hearing is sought.
(b) Motion to quash or modify the subpoena. A party, or any person
upon whom a subpoena has been served, may file in the FAA Hearing Docket
a motion to quash or modify the subpoena and must serve a copy on the
administrative law judge and each party at or before the time specified
in the subpoena for compliance. The movant must describe, in detail, the
basis for the motion to quash or modify the subpoena including, but not
limited to, a statement that the testimony, document, or tangible
evidence 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. A motion to quash or modify the subpoena
will stay the effect of the subpoena pending a decision by the
administrative law judge on the motion.
(c) Enforcement of subpoena. Upon a showing that a person has failed
or refused to comply with a subpoena, a party may apply to the
appropriate U.S. district court to seek judicial enforcement of the
subpoena.
Sec. 13.229 Witness fees.
(a) General. The party who applies for a subpoena to compel the
attendance of a witness at a deposition or hearing, or the party at
whose request a witness appears at a deposition or hearing, must pay the
witness fees described in this section.
(b) Amount. Except for an employee of the agency who appears at the
direction of the agency, a witness who appears at a deposition or
hearing is entitled to the same fees and allowances provided for under
28 U.S.C. 1821.
Sec. 13.230 Record.
(a) Exclusive record. The pleadings, transcripts of the hearing and
prehearing conferences, exhibits admitted into evidence, rulings,
motions, applications, requests, briefs, and responses thereto,
constitute the exclusive record for decision of the proceedings and the
basis for the issuance of any orders in the proceeding. Any proceedings
regarding the disqualification of an administrative law judge must be
included in the record. Though only exhibits admitted into evidence are
part of the record before an administrative law judge, evidence
proffered but not admitted is also part of the record on appeal, as
provided by Sec. 13.225.
(b) Examination and copying of record. The parties may examine the
record at the FAA Hearing Docket and may obtain copies of the record
upon payment of applicable fees. Any other person may obtain copies of
the releasable
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portions of the record in accordance with applicable law.
Sec. 13.231 Argument before the administrative law judge.
(a) Arguments during the hearing. During the hearing, the
administrative law judge must give the parties a reasonable opportunity
to present arguments on the record supporting or opposing motions,
objections, and rulings if the parties request an opportunity for
argument. The administrative law judge may request written arguments
during the hearing if the administrative law judge finds that submission
of written arguments would be reasonable.
(b) Final oral argument. At the conclusion of the hearing and before
the administrative law judge issues an initial decision in the
proceedings, the administrative law judge must allow the parties to
submit oral proposed findings of fact and conclusions of law, exceptions
to rulings of the administrative law judge, and supporting arguments for
the findings, conclusions, or exceptions. At the conclusion of the
hearing, a party may waive final oral argument.
(c) Post-hearing briefs. The administrative law judge may request
written post-hearing briefs before the administrative law judge issues
an initial decision in the proceedings if the administrative law judge
finds that submission of written arguments would be reasonable. If a
party files a written post-hearing brief, the party must include
proposed findings of fact and conclusions of law, exceptions to rulings
of the administrative law judge, and supporting arguments for the
findings, conclusions, or exceptions. The administrative law judge must
give the parties a reasonable opportunity, but not more than 30 days
after receipt of the transcript, to prepare and submit the briefs. A
party must file and serve any post-hearing brief in in accordance with
Sec. Sec. 13.210 and 13.211, respectively.
Sec. 13.232 Initial decision.
(a) Contents. The administrative law judge must issue an initial
decision at the conclusion of the hearing. In each oral or written
decision, the administrative law judge must include findings of fact and
conclusions of law, as well as the grounds supporting those findings and
conclusions, for all material issues of fact, the credibility of
witnesses, the applicable law, any exercise of the administrative law
judge's discretion, and the amount of any civil penalty found
appropriate by the administrative law judge. The administrative law
judge must also include a discussion of the basis for any order issued
in the proceedings. The administrative law judge is not required to
provide a written explanation for rulings on objections, procedural
motions, and other matters not directly relevant to the substance of the
initial decision. If the administrative law judge refers to any previous
unreported or unpublished initial decision, the administrative law judge
must make copies of that initial decision available to all parties and
the FAA decisionmaker.
(b) Oral decision. Except as provided in paragraph (c) of this
section, at the conclusion of the hearing, the administrative law
judge's oral initial decision and order must be on the record.
(c) Written decision. The administrative law judge may issue a
written initial decision not later than 30 days after the conclusion of
the hearing or submission of the last post-hearing brief if the
administrative law judge finds that issuing a written initial decision
is reasonable. The administrative law judge must serve a copy of any
written initial decision on each party.
(d) Reconsideration of an initial decision. The FAA decisionmaker
may treat a motion for reconsideration of an initial decision as a
notice of appeal under Sec. 13.233, and if the motion was filed within
the time allowed for the filing of a notice of appeal, the FAA
decisionmaker will issue a briefing schedule, as provided in Sec.
13.218.
(e) Order assessing civil penalty. Unless appealed pursuant to Sec.
13.233, the initial decision issued by the administrative law judge is
considered an order assessing civil penalty if the administrative law
judge finds that an alleged violation occurred and determines that a
civil penalty, in an amount found appropriate by the administrative law
judge, is warranted. The administrative law judge may not assess a civil
penalty exceeding the amount sought in the complaint.
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Sec. 13.233 Appeal from initial decision.
(a) Notice of appeal. A party may appeal the administrative law
judge's initial decision, and any decision not previously appealed to
the FAA decisionmaker on interlocutory appeal pursuant to Sec. 13.219,
by filing a notice of appeal in accordance with Sec. 13.210 no later
than 10 days after entry of the oral initial decision on the record or
service of the written initial decision on the parties. The party must
serve a copy of the notice of appeal on each party in accordance with
Sec. 13.211. A party is not required to serve any documents under Sec.
13.233 on the administrative law judge.
(b) Issues on appeal. In any appeal from a decision of an
administrative law judge, the FAA decisionmaker considers only the
following issues:
(1) Whether each finding of fact is supported by a preponderance of
reliable, probative, and substantial evidence;
(2) Whether each conclusion of law is made in accordance with
applicable law, precedent, and public policy; and
(3) Whether the administrative law judge committed any prejudicial
errors.
(c) Perfecting an appeal. Except as follows in paragraphs (c)(1) and
(2) of this section, a party must perfect an appeal to the FAA
decisionmaker no later than 50 days after entry of the oral initial
decision on the record or service of the written initial decision on the
parties by filing an appeal brief in accordance with Sec. 13.210 and
serving a copy on every other party in accordance with Sec. 13.211.
(1) Extension of time by agreement of the parties. The parties may
agree to extend the time for perfecting the appeal with the consent of
the FAA decisionmaker. If the FAA decisionmaker grants an extension of
time to perfect the appeal, the FAA decisionmaker must serve a letter
confirming the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an
extension of time for perfecting an appeal, a party desiring an
extension of time may file a written motion for an extension in
accordance with Sec. 13.210 and must serve a copy of the motion on each
party under Sec. 13.211. Any party may file a written response to the
motion for extension no later than 10 days after service of the motion.
The FAA decisionmaker may grant an extension if good cause for the
extension is shown in the motion.
(d) Appeal briefs. A party must file the appeal brief in accordance
with Sec. 13.210 and must serve a copy of the appeal brief on each
party in accordance with Sec. 13.211.
(1) A party must set forth, in detail, the party's specific
objections to the initial decision or rulings in the appeal brief. A
party also must set forth, in detail, the basis for the appeal, the
reasons supporting the appeal, and the relief requested in the appeal.
If the party relies on evidence contained in the record for the appeal,
the party must specifically refer to the pertinent evidence contained in
the transcript in the appeal brief.
(2) The FAA decisionmaker may dismiss an appeal, on the FAA
decisionmaker's own initiative or upon motion of any other party, where
a party has filed a notice of appeal but fails to perfect the appeal by
timely filing an appeal brief with the FAA decisionmaker.
(e) Reply brief. Except as follows in paragraphs (e)(1) and (2) of
this section, any party may file a reply brief in accordance with Sec.
13.210 not later than 35 days after the appeal brief has been served on
that party. The party filing the reply brief must serve a copy of the
reply brief on each party in accordance with Sec. 13.211. If the party
relies on evidence contained in the record for the reply, the party must
specifically refer to the pertinent evidence contained in the transcript
in the reply brief.
(1) Extension of time by agreement of the parties. The parties may
agree to extend the time for filing a reply brief with the consent of
the FAA decisionmaker. If the FAA decisionmaker grants an extension of
time to file the reply brief, the FAA decisionmaker must serve a letter
confirming the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an
extension of time for filing a reply brief, a party desiring an
extension of time may file a written motion for an extension in
accordance with Sec. 13.210 and must serve a
[[Page 76]]
copy of the motion on each party in accordance with Sec. 13.211. Any
party choosing to respond to the motion must file and serve a written
response to the motion no later than 10 days after service of the motion
The FAA decisionmaker may grant an extension if good cause for the
extension is shown in the motion.
(f) Other briefs. The FAA decisionmaker may allow any person to
submit an amicus curiae brief in an appeal of an initial decision. A
party may not file more than one brief unless permitted by the FAA
decisionmaker. A party may petition the FAA decisionmaker, in writing,
for leave to file an additional brief and must serve a copy of the
petition on each party. The party may not file the additional brief with
the petition. The FAA decisionmaker may grant leave to file an
additional brief if the party demonstrates good cause for allowing
additional argument on the appeal. The FAA decisionmaker will allow a
reasonable time for the party to file the additional brief.
(g) Number of copies. A party must file the original plus one copy
of the appeal brief or reply brief, but only one copy if filing by email
or fax, as provided in Sec. 13.210.
(h) Oral argument. The FAA decisionmaker may permit oral argument on
the appeal. On the FAA decisionmaker's own initiative, or upon written
motion by any party, the FAA decisionmaker may find that oral argument
will contribute substantially to the development of the issues on appeal
and may grant the parties an opportunity for oral argument.
(i) Waiver of objections on appeal. If a party fails to object to
any alleged error regarding the proceedings in an appeal or a reply
brief, the party waives any objection to the alleged error. The FAA
decisionmaker is not required to consider any objection in an appeal
brief, or any argument in the reply brief, if a party's objection or
argument is based on evidence contained on the record and the party does
not specifically refer to the pertinent evidence from the record in the
brief.
(j) FAA decisionmaker's decision on appeal. The FAA decisionmaker
will review the record, the briefs on appeal, and the oral argument, if
any, when considering the issues on appeal. The FAA decisionmaker may
affirm, modify, or reverse the initial decision, make any necessary
findings, or remand the case for any proceedings that the FAA
decisionmaker determines may be necessary. The FAA decisionmaker may
assess a civil penalty but must not assess a civil penalty in an amount
greater than that sought in the complaint.
(1) The FAA decisionmaker may raise any issue, on the FAA
decisionmaker's own initiative, that is required for proper disposition
of the proceedings. The FAA decisionmaker will give the parties a
reasonable opportunity to submit arguments on the new issues before
making a decision on appeal. If an issue raised by the FAA decisionmaker
requires the consideration of additional testimony or evidence, the FAA
decisionmaker will remand the case to the administrative law judge for
further proceedings and an initial decision related to that issue. If an
issue raised by the FAA decisionmaker is solely an issue of law, or the
issue was addressed at the hearing but was not raised by a party in the
briefs on appeal, a remand of the case to the administrative law judge
for further proceedings is not required but may be provided in the
discretion of the FAA decisionmaker.
(2) The FAA decisionmaker will issue the final decision and order of
the Administrator on appeal in writing and will serve a copy of the
decision and order on each party. Unless a petition for review is filed
pursuant to Sec. 13.235, a final decision and order of the
Administrator will be considered an order assessing civil penalty if the
FAA decisionmaker finds that an alleged violation occurred and a civil
penalty is warranted.
(3) A final decision and order of the Administrator after appeal is
precedent in any other civil penalty action. Any issue, finding or
conclusion, order, ruling, or initial decision of an administrative law
judge that has not been appealed to the FAA decisionmaker is not
precedent in any other civil penalty action.
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Sec. 13.234 Petition to reconsider or modify a final decision and
order of the FAA decisionmaker on appeal.
(a) General. Any party may petition the FAA decisionmaker to
reconsider or modify a final decision and order issued by the FAA
decisionmaker on appeal from an initial decision. A party must file a
petition to reconsider or modify in accordance with Sec. 13.210 not
later than 30 days after service of the FAA decisionmaker's final
decision and order on appeal and must serve a copy of the petition on
each party in accordance with Sec. 13.211. A party is not required to
serve any documents under this section on the administrative law judge.
The FAA decisionmaker will not reconsider or modify an initial decision
and order issued by an administrative law judge that has not been
appealed by any party to the FAA decisionmaker.
(b) Number of copies. The parties must file the original plus one
copy of the petition or the reply to the petition, but only one copy if
filing by email or fax, as provided in Sec. 13.210.
(c) Contents. A party must state briefly and specifically the
alleged errors in the final decision and order on appeal, the relief
sought by the party, and the grounds that support the petition to
reconsider or modify.
(1) If the petition is based, in whole or in part, on allegations
regarding the consequences of the FAA decisionmaker's decision, the
party must describe these allegations and must describe, and support,
the basis for the allegations.
(2) If the petition is based, in whole or in part, on new material
not previously raised in the proceedings, the party must set forth the
new material and include affidavits of prospective witnesses and
authenticated documents that would be introduced in support of the new
material. The party must explain, in detail, why the new material was
not discovered through due diligence prior to the hearing.
(d) Repetitious and frivolous petitions. The FAA decisionmaker will
not consider repetitious or frivolous petitions. The FAA decisionmaker
may summarily dismiss repetitious or frivolous petitions to reconsider
or modify.
(e) Reply petitions. Any party replying to a petition to reconsider
or modify must file the reply in accordance with Sec. 13.210 no later
than 10 days after service of the petition on that party, and must also
serve a copy of the reply on each party in accordance with Sec. 13.211.
(f) Effect of filing petition. The filing of a timely petition under
this section will stay the effective date of the FAA decisionmaker's
decision and order on appeal until final disposition of the petition by
the FAA decisionmaker.
(g) FAA decisionmaker's decision on petition. The FAA decisionmaker
has discretion to grant or deny a petition to reconsider. The FAA
decisionmaker will grant or deny a petition to reconsider within a
reasonable time after receipt of the petition or receipt of the reply
petition, if any. The FAA decisionmaker may affirm, modify, or reverse
the final decision and order on appeal, or may remand the case for any
proceedings that the FAA decisionmaker determines may be necessary.
Sec. 13.235 Judicial review of a final decision and order.
(a) In cases under the Federal aviation statute, a party may seek
judicial review of a final decision and order of the Administrator, as
provided in 49 U.S.C. 46110(a), and, as applicable, in 49 U.S.C.
46301(d)(7)(D)(iii), 46301(g), or 47532.
(b) In cases under the Federal hazardous materials transportation
statute, a party may seek judicial review of a final decision and order
of the Administrator, as provided in 49 U.S.C. 5127.
(c) A party seeking judicial review of a final order issued by the
Administrator may file a petition for review in the United States Court
of Appeals for the District of Columbia Circuit or in the United States
Court of Appeals for the circuit in which the party resides or has its
principal place of business.
(d) The party must file the petition for review no later than 60
days after service of the Administrator's final decision and order.
[[Page 78]]
Sec. 13.236 Alternative dispute resolution.
Parties may use mediation to achieve resolution of issues in
controversy addressed by this subpart. Parties seeking alternative
dispute resolution services may engage the services of a mutually
acceptable mediator. The mediator must not participate in the
adjudication under this subpart of any matter in which the mediator has
provided mediation services. Mediation discussions and submissions will
remain confidential consistent with the provisions of the Administrative
Dispute Resolution Act and other applicable Federal laws.
Subpart H_Civil Monetary Penalty Inflation Adjustment
Source: Docket No. 28762, 61 FR 67445, Dec. 20, 1996, unless
otherwise noted.
Sec. 13.301 Inflation adjustments of civil monetary penalties.
(a) This subpart provides the maximum civil monetary penalties or
range of minimum and maximum civil monetary penalties for each statutory
civil penalty subject to FAA jurisdiction, as adjusted for inflation.
(b) Each adjustment to a maximum civil monetary penalty or to
minimum and maximum civil monetary penalties that establish a civil
monetary penalty range applies to actions initiated under this part for
violations occurring on or after December 28, 2023, notwithstanding
references to specific civil penalty amounts elsewhere in this part.
(c) Minimum and maximum civil monetary penalties are as follows:
Table 1 to Sec. 13.301(c)--Minimum and Maximum Civil Monetary Penalty Amounts for Certain Violations
----------------------------------------------------------------------------------------------------------------
New
adjusted
minimum
penalty New adjusted
2023 amount maximum penalty
Civil monetary minimum for 2023 maximum amount for
United States Code citation penalty penalty violations penalty amount violations
description amount occurring occurring on or
on or after December
after 28, 2023
December
28, 2023
----------------------------------------------------------------------------------------------------------------
49 U.S.C. 5123(a)(1)........... Violation of N/A N/A $96,624.......... $99,756.
hazardous
materials
transportation
law.
49 U.S.C. 5123(a)(2)........... Violation of N/A N/A $225,455......... $232,762.
hazardous
materials
transportation
law resulting in
death, serious
illness, severe
injury, or
substantial
property
destruction.
49 U.S.C. 5123(a)(3)........... Violation of $582 $601 $96,624.......... $99,756.
hazardous
materials
transportation
law relating to
training.
49 U.S.C. 44704(d)(3).......... Knowing N/A N/A $1,144,488....... $1,181,581.
presentation of
a nonconforming
aircraft for
issuance of an
initial
airworthiness
certificate by a
production
certificate
holder.
49 U.S.C. 44704(e)(4).......... Knowing failure N/A N/A $1,144,488....... $1,181,581.
by an applicant
for or holder of
a type
certificate to
submit safety
critical
information or
include certain
such information
in an airplane
flight manual or
flight crew
operating manual.
[[Page 79]]
49 U.S.C. 44704(e)(5).......... Knowing false N/A N/A See entries for See entries for
statement by an 49 U.S.C. 49 U.S.C.
airline 46301(a)(1) and 46301(a)(1) and
transport pilot (a)(5). (a)(5).
(ATP)
certificate
holder with
respect to the
submission of
certain safety
critical
information.
49 U.S.C. 44742................ Interference by a N/A N/A See entries for See entries for
supervisory 49 U.S.C. 49 U.S.C.
employee of an 46301(a)(1). 46301(a)(1).
organization
designation
authorization
(ODA) holder
that
manufactures a
transport
category
airplane with an
ODA unit
member's
performance of
authorized
functions.
49 U.S.C. 44802 note........... Operation of an N/A N/A $29,462.......... $30,417.
unmanned
aircraft or
unmanned
aircraft system
equipped or
armed with a
dangerous weapon.
49 U.S.C. 46301(a)(1).......... Violation by a N/A N/A $40,272.......... $41,577.
person other
than an
individual or
small business
concern under 49
U.S.C.
46301(a)(1)(A)
or (B).
49 U.S.C. 46301(a)(1).......... Violation by an N/A N/A $1,771........... $1,828.
airman serving
as an airman
under 49 U.S.C.
46301(a)(1)(A)
or (B) (but not
covered by
46301(a)(5)(A)
or (B)).
49 U.S.C. 46301(a)(1).......... Violation by an N/A N/A $1,771........... $1,828.
individual or
small business
concern under 49
U.S.C.
46301(a)(1)(A)
or (B) (but not
covered in 49
U.S.C.
46301(a)(5)).
49 U.S.C. 46301(a)(3).......... Violation of 49 N/A N/A Increase above No change.
U.S.C. 47107(b) otherwise
(or any applicable
assurance made maximum amount
under such not to exceed 3
section) or 49 times the amount
U.S.C. 47133. of revenues used
in violation of
such section.
49 U.S.C. 46301(a)(5)(A)....... Violation by an N/A N/A $16,108.......... $16,630.
individual or
small business
concern (except
an airman
serving as an
airman) under 49
U.S.C.
46301(a)(5)(A)(i
) or (ii).
49 U.S.C. 46301(a)(5)(B)(i).... Violation by an N/A N/A $16,108.......... $16,630.
individual or
small business
concern related
to the
transportation
of hazardous
materials.
[[Page 80]]
49 U.S.C. 46301(a)(5)(B)(ii)... Violation by an N/A N/A $16,108.......... $16,630.
individual or
small business
concern related
to the
registration or
recordation
under 49 U.S.C.
chapter 441, of
an aircraft not
used to provide
air
transportation.
49 U.S.C. 46301(a)(5)(B)(iii).. Violation by an N/A N/A $16,108.......... $16,630.
individual or
small business
concern of 49
U.S.C. 44718(d),
relating to
limitation on
construction or
establishment of
landfills.
49 U.S.C. 46301(a)(5)(B)(iv)... Violation by an N/A N/A $16,108.......... $16,630.
individual or
small business
concern of 49
U.S.C. 44725,
relating to the
safe disposal of
life-limited
aircraft parts.
49 U.S.C. 46301 note........... Individual who N/A N/A $30,820.......... $31,819.
aims the beam of
a laser pointer
at an aircraft
in the airspace
jurisdiction of
the United
States, or at
the flight path
of such an
aircraft.
49 U.S.C. 46301(b)............. Tampering with a N/A N/A $5,171........... $5,339.
smoke alarm
device.
49 U.S.C. 46302................ Knowingly N/A N/A $28,085.......... $28,995.
providing false
information
about alleged
violation
involving the
special aircraft
jurisdiction of
the United
States.
49 U.S.C. 46318................ Physical or N/A N/A $42,287.......... $43,658.
sexual assault
or threat to
physically or
sexually assault
crewmember or
other individual
on an aircraft,
or action that
poses an
imminent threat
to the safety of
the aircraft or
individuals on
board.
49 U.S.C. 46319................ Permanent closure N/A N/A $16,108.......... $16,630.
of an airport
without
providing
sufficient
notice.
49 U.S.C. 46320................ Operating an N/A N/A $24,656.......... $25,455.
unmanned aircra
ft and in so
doing knowingly
or recklessly
interfering with
a wildfire
suppression, law
enforcement, or
emergency
response effort.
49 U.S.C. 47531................ Violation of 49 N/A N/A See entries for See entries for
U.S.C. 47528- 49 U.S.C. 49 U.S.C.
47530 or 47534, 46301(a)(1) and 46301(a)(1) and
relating to the (a)(5). (a)(5).
prohibition of
operating
certain aircraft
not complying
with stage 3
noise levels.
----------------------------------------------------------------------------------------------------------------
[[Page 81]]
[84 FR 37068, July 31, 2019, as amended at 86 FR 1753, Jan. 11, 2021; 86
FR 23249, May 3, 2021; 87 FR 15863, Mar. 21, 2022; 88 FR 1122, Jan. 6,
2023; 88 FR 6971, Feb. 2, 2023; 88 FR 89557, Dec. 28, 2023]
Subpart I_Flight Operational Quality Assurance Programs
Sec. 13.401 Flight Operational Quality Assurance Program: Prohibition
against use of data for enforcement purposes.
(a) Applicability. This section applies to any operator of an
aircraft who operates such aircraft under an approved Flight Operational
Quality Assurance (FOQA) program.
(b) Definitions. For the purpose of this section, the terms--
(1) Flight Operational Quality Assurance (FOQA) program means an
FAA-approved program for the routine collection and analysis of digital
flight data gathered during aircraft operations, including data
currently collected pursuant to existing regulatory provisions, when
such data is included in an approved FOQA program.
(2) FOQA data means any digital flight data that has been collected
from an individual aircraft pursuant to an FAA-approved FOQA program,
regardless of the electronic format of that data.
(3) Aggregate FOQA data means the summary statistical indices that
are associated with FOQA event categories, based on an analysis of FOQA
data from multiple aircraft operations.
(c) Requirements. In order for paragraph (e) of this section to
apply, the operator must submit, maintain, and adhere to a FOQA
Implementation and Operation Plan that is approved by the Administrator
and which contains the following elements:
(1) A description of the operator's plan for collecting and
analyzing flight recorded data from line operations on a routine basis,
including identification of the data to be collected;
(2) Procedures for taking corrective action that analysis of the
data indicates is necessary in the interest of safety;
(3) Procedures for providing the FAA with aggregate FOQA data;
(4) Procedures for informing the FAA as to any corrective action
being undertaken pursuant to paragraph (c)(2) of this section.
(d) Submission of aggregate data. The operator will provide the FAA
with aggregate FOQA data in a form and manner acceptable to the
Administrator.
(e) Enforcement. Except for criminal or deliberate acts, the
Administrator will not use an operator's FOQA data or aggregate FOQA
data in an enforcement action against that operator or its employees
when such FOQA data or aggregate FOQA data is obtained from a FOQA
program that is approved by the Administrator.
(f) Disclosure. FOQA data and aggregate FOQA data, if submitted in
accordance with an order designating the information as protected under
part 193 of this chapter, will be afforded the nondisclosure protections
of part 193 of this chapter.
(g) Withdrawal of program approval. The Administrator may withdraw
approval of a previously approved FOQA program for failure to comply
with the requirements of this chapter. Grounds for withdrawal of
approval may include, but are not limited to--
(1) Failure to implement corrective action that analysis of
available FOQA data indicates is necessary in the interest of safety; or
(2) Failure to correct a continuing pattern of violations following
notice by the agency; or also
(3) Willful misconduct or willful violation of the FAA regulations
in this chapter.
[Doc. No. FAA-2000-7554, 66 FR 55048, Oct. 31, 2001; Amdt. 13-30, 67 FR
31401, May 9, 2002]
PART 14_RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 1980-
-Table of Contents
Subpart A_General Provisions
Sec.
14.01 Purpose of these rules.
14.02 Proceedings covered.
14.03 Eligibility of applicants.
14.04 Standards for awards.
14.05 Allowance fees and expenses.
Subpart B_Information Required From Applicants
14.10 Contents of application.
14.11 Net worth exhibit.
[[Page 82]]
14.12 Documentation of fees and expenses.
Subpart C_Procedures for Considering Applications
14.20 When an application may be filed.
14.21 Filing and service of documents.
14.22 Answer to application.
14.23 Reply.
14.24 Comments by other parties.
14.25 Settlement.
14.26 Further proceedings.
14.27 Decision.
14.28 Review by FAA decisionmaker.
14.29 Judicial review.
14.30 Payment of award.
Authority: 5 U.S.C. 504; 49 U.S.C. 106(f), 40113, 46104 and 47122.
Source: Docket No. 25958, 54 FR 46199, Nov. 1, 1989, unless
otherwise noted.
Subpart A_General Provisions
Sec. 14.01 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides
for the award of attorney fees and other expenses to eligible
individuals and entities who are parties to certain administrative
proceedings (adversary adjudications) before the Federal Aviation
Administration (FAA). An eligible party may receive an award when it
prevails over the FAA, unless the agency's position in the proceeding
was substantially justified or special circumstances make an award
unjust. The rules in this part describe the parties eligible for awards
and the proceedings that are covered. They also explain how to apply for
awards, and the procedures and standards that the FAA Decisionmaker will
use to make them. As used hereinafter, the term ``agency'' applies to
the FAA.
Sec. 14.02 Proceedings covered.
(a) The Act applies to certain adversary adjudications conducted by
the FAA under 49 CFR part 17 and the Acquisition Management System
(AMS). These are adjudications under 5 U.S.C. 554, in which the position
of the FAA is represented by an attorney or other representative who
enters an appearance and participates in the proceeding. This subpart
applies to proceedings under 49 U.S.C. 46301, 46302, and 46303 and to
the Default Adjudicative Process under part 17 of this chapter and the
AMS.
(b) If a proceeding includes both matters covered by the Act and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.
(c) Fees and other expenses may not be awarded to a party for any
portion of the adversary adjudication in which such party has
unreasonably protracted the proceedings.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32935, June
18, 1999]
Sec. 14.03 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to the adversary
adjudication for which it seeks an award. The term ``party'' is defined
in 5 U.S.C. 504(b)(1)(B) and 5 U.S.C. 551(3). The applicant must show
that it meets all conditions or eligibility set out in this subpart.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2 million at
the time the adversary adjudication was initiated;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $7 million, including both personal and business
interests, and not more than 500 employees at the time the adversary
adjudication was initiated;
(3) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees at the time the adversary adjudication
was initiated; and
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees at the time the adversary adjudication was initiated; and
(5) Any other partnership, corporation, association, or public or
private organization with a net worth of not more than $7 million and
not more than 500 employees at the time the adversary adjudication was
initiated.
(c) For the purpose of eligibility, the net worth and number of
employees of
[[Page 83]]
an applicant shall be determined as of the date the proceeding was
initiated.
(d) An applicant who owns an unincorporated business will be
considered an ``individual'' rather than a ``sole owner of an
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interest.
(e) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be included
on a proportional basis.
(f) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual, corporation, or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
part, unless the ALJ or adjudicative officer determines that such
treatment would be unjust and contrary to the purposes of the Act in
light of the actual relationship between the affiliated entities. In
addition, the ALJ or adjudicative officer may determine that financial
relationships of the applicant, other than those described in this
paragraph, constitute special circumstances that would make an award
unjust.
(g) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
if not itself eligible for an award.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32935, June
18, 1999]
Sec. 14.04 Standards for awards.
(a) A prevailing applicant may receive an award for attorney fees
and other expenses incurred in connection with a proceeding, or in a
significant and discrete substantive portion of the proceeding, unless
the position of the agency over which the applicant has prevailed was
substantially justified. Whether or not the position of the FAA was
substantially justified shall be determined on the basis of the record
(including the record with respect to the action or failure to act by
the agency upon which the civil action is based) which was made in the
civil action for which fees and other expenses are sought. The burden of
proof that an award should not be made to an eligible prevailing
applicant is on the agency counsel, who may avoid an award by showing
that the agency's position was reasonable in law and fact.
(b) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the proceeding or if special circumstances
make the award sought unjust.
Sec. 14.05 Allowance fees and expenses.
(a) Awards will be based on rates customarily charged by persons
engaged in the business of acting as attorneys, agents, and expert
witnesses, even if the services were made available without charge or at
a reduced rate to the applicant.
(b) No award for the fee of an attorney or agent under this part may
exceed $125 per hour, or such rate as prescribed by 5 U.S.C. 504. No
award to compensate an expert witness may exceed the highest rate at
which the agency pays expert witnesses. However, an award may also
include the reasonable expenses of the attorney, agent, or witness as a
separate item, if the attorney, agent, or witness ordinarily charges
clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an
attorney, agent, or expert witness, the ALJ or adjudicative officer
shall consider the following:
(1) If the attorney, agent, or witness is in private practice, his
or her customary fee for similar services, or if an employee of the
applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in
which the attorney, agent, or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
[[Page 84]]
(5) Such other factors as may bear on the value of the services
provided.
(d) The reasonable cost of any study, analysis, engineering report,
test, project, or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the service does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of the applicant's case.
(e) Fees may be awarded only for work performed after the issuance
of a complaint, or in the Default Adjudicative Process for a protest or
contract dispute under part 17 of this chapter and the AMS.
[Amdt. 13-18, 53 FR 34655, Sept. 7, 1988, as amended by Amdt. 14-1, 55
FR 15131, Apr. 20, 1990; Amdt. 14-03, 64 FR 32935, June 18, 1999]
Subpart B_Information Required From Applicants
Sec. 14.10 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought. The application shall show that the applicant has prevailed and
identify the position of the agency in the proceeding that the applicant
alleges was not substantially justified. Unless the applicant is an
individual, the application shall also state the number of employees of
the applicant and describe briefly the type and purpose of its
organization or business.
(b) The application shall also include a statement that the
applicant's net worth does not exceed $2 million (if an individual) or
$7 million (for all other applicants, including their affiliates) at the
time the adversary adjudication was initiated. However, an applicant may
omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)), or in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(2) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall state the amount of fees and expenses for
which an award is sought.
(d) The application may also include any other matters that the
applicant wishes this agency to consider in determining whether and in
what amount an award should be made.
(e) The application shall be signed by the applicant or an
authorized officer or attorney for the applicant. It shall also contain
or be accompanied by a written verification under oath or under penalty
of perjury that the information provided in the application is true and
correct.
(f) If the applicant is a partnership, corporation, association,
organization, or sole owner of an unincorporated business, the
application shall state that the applicant did not have more than 500
employees at the time the adversary adjudication was initiated, giving
the number of its employees and describing briefly the type and purpose
of its organization or business.
Sec. 14.11 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt organization or
cooperative association must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates when
the proceeding was initiated. If any individual, corporation, or other
entity directly or indirectly controls or owns a majority of the voting
shares or other interest of the applicant, or if the applicant directly
or indirectly owns or controls a majority of the voting shares or other
interest of any corporation or other entity, the exhibit must include a
showing of the net worth of all such affiliates or of the applicant
including the affiliates. The exhibit may be in any form convenient to
the applicant that provides full disclosure of the applicant's and its
affiliates' assets and liabilities and is sufficient to determine
whether the applicant qualifies under the standards in this part. The
administrative law judge may require an applicant to file additional
information to determine the eligibility for an award.
[[Page 85]]
(b) The net worth exhibit shall describe any transfers of assets
from, or obligations incurred by, the applicant or any affiliate,
occurring in the one-year period prior to the date on which the
proceeding was initiated, that reduced the net worth of the applicant
and its affiliates below the applicable net worth ceiling. If there were
no such transactions, the applicant shall so state.
(c) Ordinarily, the net worth exhibit will be included in the public
record of the proceeding. However, an applicant that objects to public
disclosure of the net worth exhibit, or any part of it, may submit that
portion of the exhibit directly to the ALJ or adjudicative officer in a
sealed envelope labeled ``Confidential Financial Information,''
accompanied by a motion to withhold the information.
(1) The motion shall describe the information sought to be withheld
and explain, in detail, why it should be exempt under applicable law or
regulation, why public disclosure would adversely affect the applicant,
and why disclosure is not required in the public interest.
(2) The net worth exhibit shall be served on the FAA counsel, but
need not be served on any other party to the proceeding.
(3) If the ALJ or adjudicative officer finds that the net worth
exhibit, or any part of it, should not be withheld from disclosure, it
shall be placed in the public record of the proceeding. Otherwise, any
request to inspect or copy the exhibit shall be disposed of in
accordance with the FAA's established procedures.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32935, June
18, 1999]
Sec. 14.12 Documentation of fees and expenses.
The application shall be accompanied by full documentation of the
fees and expenses, including the cost of any study, analysis,
engineering report, test, project or similar matter, for which an award
is sought. A separate itemized statement shall be submitted for each
professional firm or individual whose services are covered by the
application, showing the hours spent in connection with the proceedings
by each individual, a description of the specific services performed,
the rate at which each fee has been computed, any expenses for which
reimbursement is sought, the total amount claimed, and the total amount
paid or payable by the applicant or by any other person or entity for
the services provided. The administrative law judge may require the
applicant to provide vouchers, receipts, or other substantiation for any
expenses claimed.
Subpart C_Procedures for Considering Applications
Sec. 14.20 When an application may be filed.
(a) An application may be filed whenever the applicant has prevailed
in the proceeding, but in no case later than 30 days after the FAA
Decisionmaker's final disposition of the proceeding, or service of the
order of the Administrator in a proceeding under the AMS.
(b) If review or reconsideration is sought or taken of a decision to
which an applicant believes it has prevailed, proceedings for the award
of fees shall be stayed pending final disposition of the underlying
controversy.
(c) For purposes of this part, final disposition means the later of:
(1) Under part 17 of this chapter and the AMS, the date on which the
order of the Administrator is served;
(2) The date on which an unappealed initial decision becomes
administratively final;
(3) Issuance of an order disposing of any petitions for
reconsideration of the FAA Decisionmaker's final order in the
proceeding;
(4) If no petition for reconsideration is filed, the last date on
which such a petition could have been filed; or
(5) Issuance of a final order or any other final resolution of a
proceeding, such as a settlement or voluntary dismissal, which is not
subject to a petition for reconsideration.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32936, June
18, 1999]
Sec. 14.21 Filing and service of documents.
Any application for an award or other pleading or document related
to an application shall be filed and served
[[Page 86]]
on all parties to the proceeding in the same manner as other pleadings
in the proceeding, except as provided in Sec. 14.11(b) for confidential
financial information. Where the proceeding was held under part 17 of
this chapter and the AMS, the application shall be filed with the FAA's
attorney and with the Office of Dispute Resolution for Acquisition.
[Doc. No. FAA-1998-4379, 64 FR 32936, June 18, 1999]
Sec. 14.22 Answer to application.
(a) Within 30 days after service of an application, counsel
representing the agency against which an award is sought may file an
answer to the application. Unless agency counsel requests an extension
of time for filing or files a statement of intent to negotiate under
paragraph (b) of the section, failure to file an answer within the 30-
day period may be treated as a consent to the award requested.
(b) If the FAA's counsel and the applicant believe that the issues
in the fee application can be settled, they may jointly file a statement
of their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 30 days,
and further extensions may be granted by the ALJ or adjudicative officer
upon request by the FAA's counsel and the applicant.
(c) The answer shall explain in detail any objections to the award
requested and identify the facts relied on in support of agency
counsel's position. If the answer is based on any alleged facts not
already in the record of the proceeding, agency counsel shall include
with the answer either supporting affidavits or a request for further
proceedings under Sec. 14.26.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32936, June
18, 1999]
Sec. 14.23 Reply.
Within 15 days after service of an answer, the applicant may file a
reply. If the reply is based on any alleged facts not already in the
record of the proceeding, the applicant shall include with the reply
either supporting affidavits or a request for further proceedings under
Sec. 14.26.
Sec. 14.24 Comments by other parties.
Any party to a proceeding other than the applicant and the FAA's
counsel may file comments on an application within 30 days after it is
served, or on an answer within 15 days after it is served. A commenting
party may not participate further in proceedings on the application
unless the ALJ or adjudicative officer determines that the public
interest requires such participation in order to permit full exploration
of matters raised in the comments.
[Doc. No. FAA-1998-4379, 64 FR 32936, June 18, 1999]
Sec. 14.25 Settlement.
The applicant and agency counsel may agree on a proposed settlement
of the award before final action on the application, either in
connection with a settlement of the underlying proceeding, or after the
underlying proceeding has been concluded. If a prevailing party and
agency counsel agree on a proposed settlement of an award before an
application has been filed, the application shall be filed with the
proposed settlement.
Sec. 14.26 Further proceedings.
(a) Ordinarily the determination of an award will be made on the
basis of the written record; however, on request of either the applicant
or agency counsel, or on his or her own initiative, the ALJ or
adjudicative officer assigned to the matter may order further
proceedings, such as an informal conference, oral argument, additional
written submissions, or an evidentiary hearing. Such further proceedings
shall be held only when necessary for full and fair resolution of the
issues arising from the application and shall be conducted as promptly
as possible.
(b) A request that the administrative law judge order further
proceedings under this section shall specifically identify the
information sought or the disputed issues and shall explain why the
additional proceedings are necessary to resolve the issues.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32936, June
18, 1999]
[[Page 87]]
Sec. 14.27 Decision.
(a) The ALJ shall issue an initial decision on the application
within 60 days after completion of proceedings on the application.
(b) An adjudicative officer in a proceeding under part 17 of this
chapter and the AMS shall prepare a findings and recommendations for the
Office of Dispute Resolution for Acquisition.
(c) A decision under paragraph (a) or (b) of this section shall
include written findings and conclusions on the applicant's eligibility
and status as prevailing party and an explanation of the reasons for any
difference between the amount requested and the amount awarded. The
decision shall also include, if at issue, findings on whether the FAA's
position was substantially justified, or whether special circumstances
make an award unjust.
[Doc. No. FAA-1998-4379, 64 FR 32936, June 18, 1999]
Sec. 14.28 Review by FAA decisionmaker.
(a) In proceedings other than those under part 17 of this chapter
and the AMS, either the applicant or the FAA counsel may seek review of
the initial decision on the fee application in accordance with subpart G
of part 13 of this chapter, specifically Sec. 13.233. Additionally, the
FAA Decisionmaker may decide to review the decision on his/her own
initiative. If neither the applicant nor the FAA's counsel seeks review
within 30 days after the decision is issued, it shall become final.
Whether to review a decision is a matter within the discretion of the
FAA Decisionmaker. If review is taken, the FAA Decisionmaker will issue
a final decision on the application or remand the application to the ALJ
who issue the initial fee award determination for further proceedings.
(b) In proceedings under part 17 of this chapter and the AMS, the
adjudicative officer shall prepare findings and recommendations for the
Office of Dispute Resolution for Acquisition with recommendations as to
whether or not an award should be made, the amount of the award, and the
reasons therefor. The Office of Dispute Resolution for Acquisition shall
submit a recommended order to the Administrator after the completion of
all submissions related to the EAJA application. Upon the
Administrator's action, the order shall become final, and may be
reviewed under 49 U.S.C. 46110.
[Doc. No. FAA-1998-4379, 64 FR 32936, June 18, 1999, as amended at 70 FR
8238, Feb. 18, 2005]
Sec. 14.29 Judicial review.
If an applicant is dissatisfied with the determination of fees and
other expenses made under this subsection, pursuant 5 U.S.C. 504(c)(2),
that applicant may, within thirty (30) days after the determination is
made, appeal the determination to the court of the United States having
jurisdiction to review the merits of the underlying decision of the FAA
adversary adjudication. The court's determination on any appeal heard
under this paragraph shall be based solely on the factual record made
before the FAA. The court may modify the determination of fees and other
expenses only if the court finds that the failure to make an award of
fees and other expenses, or the calculation of the amount of the award,
was unsupported by substantial evidence.
Sec. 14.30 Payment of award.
An applicant seeking payment of an award shall submit to the
disbursing official of the FAA a copy of the FAA Decisionmaker's final
decision granting the award, accompanied by a statement that the
applicant will not seek review of the decision in the United States
courts. Applications for award grants in cases involving the FAA shall
be sent to: The Office of Accounting and Audit, AAA-1, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591. The
agency will pay the amount awarded to the applicant within 60 days,
unless judicial review of the award or of the underlying decision of the
adversary adjudication has been sought by the applicant or any other
party to the proceeding.
[[Page 88]]
PART 15_ADMINISTRATIVE CLAIMS UNDER FEDERAL TORT CLAIMS ACT-
-Table of Contents
Subpart A_General Procedures
Sec.
15.1 Scope of regulations.
15.3 Administrative claim, when presented; appropriate office.
15.5 Administrative claim, who may file.
15.7 Administrative claims; evidence and information to be submitted.
15.9 Investigation and examination.
Subpart B_Indemnification Under Section 1118 of the Federal Aviation Act
of 1958
15.101 Applicability.
15.103 Exclusions.
15.105 Filing of requests for indemnification.
15.107 Notification requirements.
15.109 Settlements.
15.111 Conduct of litigation.
15.113 Indemnification agreements.
15.115 Payment.
Authority: 5 U.S.C. 301; 28 U.S.C. 2672, 2675; 49 U.S.C. 106(g),
40113, 44721.
Subpart A_General Procedures
Source: Docket No. 25264, 52 FR 18171, May 13, 1987, unless
otherwise noted.
Sec. 15.1 Scope of regulations.
(a) These regulations apply to claims asserted under the Federal
Tort Claims Act, as amended, for money damages against the United States
for injury to, or loss of property, or for personal injury or death,
caused by the negligent or wrongful act or omission of an employee of
the FAA acting within the scope of office or employment. The regulations
in this part supplement the Attorney General's regulations in 28 CFR
part 14, as amended. The regulations in 28 CFR part 14, as amended, and
the regulations in this part apply to consideration by the FAA of
administrative claims under the Federal Tort Claims Act.
Sec. 15.3 Administrative claim, when presented; appropriate office.
(a) A claim is deemed to have been presented when the FAA receives,
at a place designated in paragraph (b) of this section, an executed
Standard Form 95 or other written notification of an incident,
accompanied by a claim for money damages in a sum certain for injury to,
or loss of, property or for personal injury or death, alleged to have
occurred by reason of the incident. A claim which should have been
presented to the FAA but which was mistakenly filed with another Federal
agency, is deemed presented to the FAA on the date the claim is received
by the FAA at a place designated in paragraph (b) of this section. A
claim addressed to, or filed with, the FAA by mistake will be
transferred to the appropriate Federal agency, if that agency can be
determined, or returned to the claimant.
(b) Claims shall be delivered or mailed to the Assistant Chief
Counsel, Litigation Division, AGC-400, Federal Aviation Administration,
800 Independence Avenue, SW., Washington, DC 20591, or alternatively,
may be mailed or delivered to the Regional Counsel in any of the FAA
Regional Offices or the Assistant Chief Counsel, Europe, Africa, and
Middle East Area Office.
(c) Claim forms are available at each location listed in paragraph
(b) of this section.
(d) A claim presented in accordance with this section may be amended
by the claimant at any time prior to final FAA action or prior to the
exercise of the claimant's option, under 28 U.S.C. 2675(a), to deem the
agency's failure to make a final disposition of his or her claim within
6 months after it was filed as a final denial. Each amendment to a claim
shall be submitted in writing and signed by the claimant or the
claimant's duly authorized agent or legal representative. Upon the
timely filing of an amendment to a pending claim, the FAA has 6 months
thereafter in which to make a final disposition of the claim as amended,
and the claimant's option under 28 U.S.C. 2675(a) does not accrue until
6 months after the filing of the amendment.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 15-1, 54
FR 39290, Sept. 25, 1989; Amdt. 15-4, 62 FR 46866, Sept. 4, 1997]
Sec. 15.5 Administrative claim, who may file.
(a) A claim for injury to, or loss of, property may be presented by
the owner of the property interest which is
[[Page 89]]
the subject of the claim or by the owner's duly authorized agent or
legal representative.
(b) A claim for personal injury may be presented by the injured
person or that person's duly authorized agent or legal representative.
(c) A claim based on death may be presented by the executor or
administrator of the decedent's estate or by any other person legally
entitled to assert such a claim under applicable State law.
(d) A claim for loss wholly compensated by an insurer with the
rights of a subrogee may be presented by the insurer. A claim for loss
partially compensated by an insurer with the rights of a subrogee may be
presented by the insurer or the insured individually, as their
respective interest appear, or jointly. Whenever an insurer presents a
claim asserting the rights of a subrogee, it shall present with its
claim appropriate evidence that it has the rights of a subrogee.
(e) A claim presented by an agent or legal representative shall be
presented in the name of the claimant, be signed by the agent or legal
representative, show the title or legal capacity of the person signing,
and be accompanied by evidence of authority to present a claim on behalf
of the claimant as agent, executor, administrator, parent, guardian, or
other representative.
Sec. 15.7 Administrative claims; evidence and information to be submitted.
(a) Death. In support of a claim based on death, the claimant may be
required to submit the following evidence or information:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) The decedent's employment or occupation at time of death,
including monthly or yearly salary or earnings (if any), and the
duration of last employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of the decedent's survivors, including identification of those survivors
who were dependent for support upon the decedent at the time of death.
(4) Degree of support afforded by the decedent to each survivor
dependent upon decedent for support at the time of death.
(5) Decedent's general, physical, and mental conditions before
death.
(6) Itemized bills for medical and burial expenses incurred by
reason of the incident causing death or itemized receipts of payment for
such expenses.
(7) If damages for pain and suffering prior to death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain, and the
decedent's physical condition in the interval between injury and death.
(8) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the death or the
amount of damages claimed.
(b) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant may be required to submit the
following evidence or information:
(1) A written report by the attending physician or dentist setting
forth the nature and extent of the injuries, nature and extent of
treatment, any degree of temporary or permanent disability, the
prognosis, period of hospitalization, and any diminished earning
capacity.
(2) In addition to the report required by paragraph (b)(1) of this
section, the claimant may be required to submit to a physical or mental
examination by a physician employed by the FAA or another Federal
agency. A copy of the report of the examining physician is made
available to the claimant upon the claimant's written request if the
claimant has, upon request, furnished the report required by paragraph
(b)(1), and has made or agrees to make available to the FAA any other
physician's reports previously or thereafter made on the physical or
mental condition which is the subject matter of the claim.
(3) Itemized bills for medical, dental, and hospital expenses
incurred or itemized receipts of payment for such expenses.
(4) If the prognosis reveals the necessity for future treatment, a
statement
[[Page 90]]
of expected expenses for such treatment.
(5) If a claim is made for loss of time from employment, a written
statement from the claimant's employer showing actual time lost from
employment, whether the claimant is a full or part-time employee, and
wages or salary actually lost.
(6) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually
lost.
(7) Any other evidence or information which may have a bearing on
the responsibility of the United States for the personal injury or the
damages claimed.
(c) Property damage. In support of a claim for injury to or loss of
property, real or personal, the claimant may be required to submit the
following evidence or information:
(1) Proof of ownership of the property interest which is the subject
of the claim.
(2) A detailed statement of the amount claimed with respect to each
item of property.
(3) An itemized receipt of payment for necessary repairs or itemized
written estimates of the cost of such repairs.
(4) A statement listing date of purchase, purchase price, and
salvage value, where repair is not economical.
(5) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the injury to or loss
of property or the damages claimed.
Sec. 15.9 Investigation and examination.
The FAA may investigate a claim or conduct a physical examination of
a claimant. The FAA may request any other Federal agency to investigate
a claim or conduct a physical examination of a claimant and provide a
report of the investigation or examination to the FAA.
Subpart B_Indemnification Under Section 1118 of the Federal Aviation Act
of 1958
Source: Amdt. 15-2, 55 FR 18710, May 3, 1990, unless otherwise
noted.
Sec. 15.101 Applicability.
This subpart prescribes procedural requirements for the
indemnification of a publisher of aeronautical charts or maps under
section 1118 of the Federal Aviation Act of 1958, as amended, when the
publisher incurs liability as a result of publishing--
(a) A chart or map accurately depicting a defective or deficient
flight procedure or airway that was promulgated by the FAA; or
(b) Aeronautical data that--
(1) Is visually displayed in the cockpit of an aircraft; and
(2) When visually displayed, accurately depicts a defective or
deficient flight procedure or airway promulgated by the FAA.
Sec. 15.103 Exclusions.
A publisher that requests indemnification under this part will not
be indemnified if--
(a) The complaint filed against the publisher, or demand for payment
against the publisher, first occurred before December 19, 1985;
(b) The publisher does not negotiate a good faith settlement;
(c) The publisher does not conduct a good faith defense;
(d) The defective or deficient flight procedure or airway--
(1) Was not promulgated by the FAA;
(2) Was not accurately depicted on the publisher's chart or map;
(3) Was not accurately displayed on a visual display in the cockpit,
or
(4) Was obviously defective or deficient;
(e) The publisher does not give notice as required by Sec. 15.107
of this part and that failure is prejudicial to the Government; or
(f) The publisher does not appeal a lower court's decision pursuant
to a request by the Administrator under Sec. 15.111(d)(2) of this part.
Sec. 15.105 Filing of requests for indemnification.
A request for indemnification under this part--
(a) May be filed by--
(1) A publisher described in Sec. 15.101 of this part; or
(2) The publisher's duly authorized agent or legal representative;
[[Page 91]]
(b) Shall be filed with the Chief Counsel, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591; and
(c) Shall state the basis for the publisher's assertion that
indemnification under this part is required.
Sec. 15.107 Notification requirements.
A request for indemnification will not be considered by the FAA
unless the following conditions are met:
(a) The publisher must notify the Chief Counsel of the FAA, within
the time limits prescribed in paragraph (b) or (c) of this section, of
the publisher's first receipt of a demand for payment, or service of a
complaint in any proceeding, federal or state, in which it appears that
indemnification under this part may be required.
(b) For each complaint filed, or demand for payment made, on or
after December 19, 1985, and before June 4, 1990, the notice required by
paragraph (a) of this section must be received by the FAA on or before
July 2, 1990.
(c) For each complaint filed, or demand for payment made, on or
after June 4, 1990, the notice required by paragraph (a) of this section
must be received by the FAA within 60 days after the day the publisher
first receives the demand for payment or service of the complaint.
(d) Within 5 days after the day a judgment is rendered against the
publisher in any proceeding, or within 30 days of the denial of an
appeal, whichever is later, the publisher must notify the FAA Chief
Counsel that--
(1) There is an adverse judgment against the publisher; and
(2) The publisher has a claim for indemnification against the FAA
arising out of that judgment.
Sec. 15.109 Settlements.
(a) A publisher may not settle a claim with another party, for which
the publisher has sought, or intends to seek, indemnification under this
part, unless--
(1) The publisher submits a copy of the proposed settlement, and a
statement justifying the settlement, to the Chief Counsel of the FAA;
and
(2) The Administrator and where necessary, the appropriate official
of the Department of Justice, approves the proposed settlement.
(3) The publisher submits a signed release that clearly releases the
United States from any further liability to the publisher and the
claimant.
(b) If the Administrator does not approve the proposed settlement,
the Administrator will--
(1) So notify the publisher by registered mail within 60 days of
receipt of the proposed settlement; and
(2) Explain why the request for indemnification was not approved.
(c) If the Administrator approves the proposed settlement, the
Administrator will so notify the publisher by registered mail within 60
days after the FAA's receipt of the proposed settlement.
(d) If the Administrator does not have sufficient information to
approve or disapprove the proposed settlement, the Administrator will
request, within 60 days after receipt of the proposed settlement, the
additional information needed to make a determination.
Sec. 15.111 Conduct of litigation.
(a) If a lawsuit is filed against the publisher and the publisher
has sought, or intends to seek, indemnification under this part, the
publisher shall--
(1) Give notice as required by Sec. 15.107 of this part;
(2) If requested by the United States--
(i) Implead the United States as a third-party defendant in the
action; and
(ii) Arrange for the removal of the action to Federal Court;
(3) Promptly provide any additional information requested by the
United States; and
(4) Cooperate with the United States in the defense of the lawsuit.
(b) If the lawsuit filed against the publisher results in a proposed
settlement, the publisher shall submit that proposed settlement to the
FAA for approval in accordance with Sec. 15.109 of this part.
(c) If the lawsuit filed against the publisher results in a judgment
against the publisher and the publisher has sought, or intends to seek,
indemnification under this part as a result of
[[Page 92]]
the adverse judgment, the publisher shall--
(1) Give notice to the FAA as required by Sec. 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 adverse judgment is
rendered; and
(3) If an appeal is taken from the adverse 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
Administrator by registered mail will--
(1) Notify the publisher that indemnification 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.
Sec. 15.113 Indemnification agreements.
(a) Upon a finding of the Administrator that indemnification is
required under this part, and after obtaining the concurrence of the
United States Department 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 publisher for--
(1) Compensatory damages awarded by the court against the publisher;
(2) Reasonable costs and fees, including 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 defense, 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
indemnify 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 counterclaims.
Sec. 15.115 Payment.
After execution of the indemnification agreement, the FAA will
submit the agreement to the United States Department of Justice and
request payment, in accordance with the agreement, from the Judgment
Fund.
PART 16_RULES OF PRACTICE FOR FEDERALLY-ASSISTED AIRPORT ENFORCEMENT
PROCEEDINGS--Table of Contents
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 investigations.
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 action.
16.103 Notice of investigation.
16.105 Failure to resolve informally.
[[Page 93]]
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 imposition of sanction.
Authority: 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.
Source: Docket No. 27783, 61 FR 54004, Oct. 16, 1996, unless
otherwise noted.
Subpart A_General Provisions
Sec. 16.1 Applicability and description of part.
(a) General. The provisions of this part govern all Federal Aviation
Administration (FAA) proceedings involving Federally-assisted airports,
except for complaints or requests for determination filed with the
Secretary under 14 CFR part 302, whether the proceedings 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 facility 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 Airport and Airway Development Act (49 U.S.C. 1723),
or section 516 of the Airport 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 assurance concerns a statute,
executive order, regulation, or other authority that provides an
administrative process for the investigation or adjudication of
complaints by a Federal agency other than the FAA, persons shall use the
administrative process established
[[Page 94]]
by those authorities. Where a grant assurance concerns a statute,
executive order, regulation, or other authority that enables a Federal
agency other than the FAA to investigate, adjudicate, 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 investigative and enforcement action under 14 CFR part 13,
``Investigative and Enforcement 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]
Sec. 16.3 Definitions.
Terms defined in the Acts are used as so defined. As used in this
part:
Act means a statute listed in Sec. 16.1 and any regulation,
agreement, or document of conveyance issued or made under that statute.
Administrator means the Administrator 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
Office 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 complaint or at a hearing on a complaint, and who
prosecute on behalf of the FAA, as appropriate. An agency attorney shall
not include the Chief Counsel; the Assistant Chief Counsel for
Litigation, or any attorney on the staff of the Assistant Chief Counsel
for Litigation, who advises the Associate Administrator regarding an
initial decision of the hearing officer or any appeal 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
Airports or a designee. For the purposes of this part only, Associate
Administrator also means the Assistant Administrator for Civil Rights or
a designee for complaints that the FAA Associate Administrator for
Airports transfers to the Assistant Administrator for Civil Rights.
Complainant means the person submitting a complaint.
Complaint means a written document meeting the requirements of this
part and filed under this part:
(1) By a person directly and substantially affected by anything
allegedly 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, or
(2) By a person under 49 CFR 26.105(c) against a recipient of FAA
funds alleged to have violated a provision of 49 CFR parts 23 and/or 26.
Decisional employee means the Administrator, Deputy Administrator,
Associate 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, Director also means the Deputy Assistant Administrator for Civil
Rights for complaints that the Director of the FAA Office of Airport
Compliance and Management Analysis transfers to the Deputy 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 requests for status
reports on any matter or proceeding covered by this part, or
[[Page 95]]
communications between FAA employees 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
Counsel 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 Regional or Center
Counsel and attorneys in the FAA region or center in which the
noncompliance has allegedly occurred or is occurring; the Assistant
Chief Counsel and attorneys in the Airports and Environmental Law
Division of the FAA Office of the Chief Counsel; and the Assistant Chief
Counsel and attorneys 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 required 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
complaint and, after an initial determination providing an opportunity
for hearing is issued under Sec. 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
delivery 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 received 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 assistance 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 documents 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]
Sec. 16.5 Separation of functions.
(a) Proceedings under this part, including hearings under subpart F
of this part, will be prosecuted by an agency attorney.
(b) After issuance of an initial determination in which the FAA
provides the opportunity for a hearing, an agency employee engaged in
the performance of investigative or prosecutorial functions in a
proceeding under this part will not, in that case or a factually related
case, participate or give advice in an initial decision by the hearing
officer, or a final decision by the Associate Administrator or designee
on written appeal, and will not, except as counsel or as witness in the
public proceedings, engage in any substantive 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 capacity.
(c) The Chief Counsel, the Assistant Chief Counsel for Litigation,
or an attorney 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.
[[Page 96]]
Subpart B_General Rules Applicable to Complaints, Proceedings Initiated
by the FAA, and Appeals
Sec. 16.11 General processes.
(a) Under the authority of 49 U.S.C. 40113 and 47121, the Director
may conduct investigations, issue orders, and take such other actions as
are necessary to fulfill the purposes of this part. This includes the
extension of any time period prescribed, where necessary or appropriate
for a fair and complete consideration of matters before the agency,
prior to issuance of the Director's Determination.
(b) Notwithstanding any other provision of this part, upon finding
that circumstances 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 Determination:
(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 concerning a Corrective Action Plan,
the jurisdiction of the Director terminates upon the issuance of the
Director's Determination. All matters arising during the appeal period,
such as requests for extension of time to make an appeal, 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 prepare and issue Director's Determinations pursuant to
Sec. 16.31 for complaints alleging violations of 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.
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as amended at Amdt. 16-1,
78 FR 56142, Sept. 12, 2013]
Sec. 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 address and in the manner stated in the hearing
order.
(b) Date and method of filing. Filing of any document shall be by
personal delivery or mail as defined in this part, by facsimile (when
confirmed by filing on the same date by one of the foregoing methods),
or electronically as set forth in paragraph (h) of this section. Unless
the date is shown to be inaccurate, 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 service, 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, documents 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 exception of electronic filing or
unless otherwise 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
[[Page 97]]
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 release 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 papers. The original of every
document filed shall be signed by the person filing 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 extension, modification, or reversal of existing 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 process.
(f) Designation of person to receive service. 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 documents
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
Docket 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 respondent has previously
agreed with the complainant in writing to participate in electronic
filing. Documents may be filed under this Part electronically 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 designated in
paragraph (h)(3) of this section.
(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
described in this section is [email protected]. 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 section, 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 decides 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 Sec. Sec. 16.13 and 16.15. This
subsection only exempts the parties from the filing and service
requirements in Sec. 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
requirements in Sec. 16.13(b), and the number of documents requirements
in Sec. 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 Director and Associate
Administrator in
[[Page 98]]
Part 16 cases, indexes of decisions, contact 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]
Sec. 16.15 Service of documents on the parties and the agency.
Except as otherwise provided in this part, documents shall be served
as follows:
(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 following persons at the following addresses, facsimile
numbers (if also served by facsimile), or email address (if served
electronically in accordance with Sec. 16.13(h)), by [specify 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 otherwise agreed by the parties
and, if applicable, the hearing officer, the method of service is the
same as set forth in Sec. 16.13(b) for filing documents.
(c) Where service shall be made. Service shall be made to the
persons identified in accordance with Sec. 16.13(f). If no such person
has been designated, service 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 receives mail at the address of the
party or of the person designated under Sec. 16.13(f);
(2) When a properly addressed envelope, sent to the most current
address submitted under Sec. 16.13(f), has been returned as
undeliverable, unclaimed, or refused; or
(3) When the party serving the document electronically has a
confirmation statement demonstrating that the email was properly sent to
a party correctly addressed.
(e) Date of service. The date of service shall be determined in the
same manner as the filing date under Sec. 16.13(b).
[Doc. No. 27783, 61 FR 54004, Oct. 16, 1996, as amended at Amdt. 16-1,
78 FR 56143, Sept. 12, 2013]
Sec. 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 officer, or by an
applicable statute.
(a) The date of an act, event, or default, after which a designated
time period 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 unless 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, Sunday, or legal holiday.
(c) Whenever a party has the right or is required to do some act
within a prescribed period after service of a document upon the party,
and the document 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]