[Federal Register Volume 61, Number 201 (Wednesday, October 16, 1996)]
[Rules and Regulations]
[Pages 53998-54012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26180]
[[Page 53997]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Parts 13 and 16
Rules of Practice for Federally-Assisted Airport Proceedings; Final
Rule
Federal Register / Vol. 61, No. 201, Wednesday, October 16, 1996 /
Rules and Regulations
[[Page 53998]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 13 and 16
[Docket No. 27783; Amendment No. 13-27, 16]
RIN 2120-AF43
Rules of Practice for Federally-Assisted Airport Proceedings
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This rulemaking establishes rules of practice for filing
complaints and adjudicating compliance matters involving Federally-
assisted airports. The rule addresses exclusively airport compliance
matters arising under the Airport and Airway Improvement Act (AAIA) of
1982, as amended; certain airport-related provisions of the Federal
Aviation Act of 1994, as amended; the Surplus Property Act, as amended;
predecessors to those acts; and regulations, grant agreements, and
documents of conveyance issued or made under those acts. The rule is
intended to expedite substantially the handling and disposition of
airport-related complaints.
EFFECTIVE DATE: This rule is effective December 16, 1996.
FOR FURTHER INFORMATION CONTACT: Barry Molar or Frank J. San Martin,
Airports Law Branch (AGC-610), Office of the Chief Counsel, (202) 267-
3473, Federal Aviation Administration, (FAA), 800 Independence Avenue,
SW., Washington, DC 20591.
SUPPLEMENTARY INFORMATION:
Background
A notice of proposed rulemaking (NPRM) for this rulemaking was
issued on June 9, 1994 (59 FR 29880). The NPRM proposed to amend the
FAA's existing complaint and adjudication procedures, 14 CFR Part 13,
``Investigative and Enforcement Procedures,'' to remove from the
coverage of part 13 the airport-related matters that will be handled
under the new part 16. Certain disputes between U.S. and foreign air
carriers and airport proprietors concerning the reasonableness of fees
imposed by airport proprietors are not covered by the rule, but by 14
CFR part 302, subpart F, pursuant to section 113 of the Federal
Aviation Act of 1994 (FAAct), Public Law No. 103-305 (August 23, 1994),
49 United States Code (U.S.C.) 47129.
On September 16, 1994, the FAA published a notice to withdraw
subpart J of the proposed rule, subpart J contained special procedures
for handling airport fee complaints by air carriers [59 FR 47568]. The
withdrawal became necessary with the passage of section 113 of the FAA
Act, which contained specific provisions for airport fee complaints by
air carriers that differed from, and were inconsistent with, subpart J.
The withdrawal notice also extended the comment period for the
remainder of the NPRM, subparts A through I, to December 1, 1994 [59 FR
47568]
Discussion of Comments
Sixteen commenters responded to the NPRM. Commenters included the
Air Freight Association; Air Line Pilots Association (ALPA); Air Ottawa
Flying Service, Inc.; Aircraft Owners and Pilots Association (AOPA);
Airports Council International-North America (ACI-NA); American Car
Rental Association (ACRA); Hawkins, Delafield & Wood; Hogan & Harston;
Maryland Aviation Administration; Melbourne Airport Authority; National
Association of State Aviation Officials (NASAO); National Business
Aircraft Association, Inc. (NBAA); National Air Transportation
Association (NATA); Newton & Associates, Inc. (NAI); Regional Airline
Association (RAA); and the United States Parachute Association (USPA).
Seven commenters generally support the promulgation of the proposed
rule with some reservations. The remaining commenters address specific
sections of the proposed rule.
A discussion of the issues most widely addressed in the comments
and an analysis of the final rule follows. All comments received were
considered by the agency. The summary of comments is intended to
represent the general divergence or correspondence in industry views on
various issues, and is not intended to be an exhaustive restatement of
the comments received. Comments pertaining to withdrawn subpart J will
not be addressed.
Standing
A number of commenters address issues concerning who should be able
to file a complaint under new part 16. ACI-NA strongly supports
limiting a complainant to a person ``directly and substantially
affected by any alleged non-compliance,'' under proposed Sec. 16.23.
Otherwise, ACI-NA argues, proceedings could be initiated by persons
making only minimal use of an airport, burdening both the respondent
and the FAA with the time and expense of administrative proceedings.
AOPA states it is concerned that, under proposed Sec. 16.23, an
association would not have standing to file a complaint on behalf of
its individual members. ACRA requests clarification that a
nonaeronautical user of an airport, such as a car rental company, could
file a complaint under part 16.
The final rule adopts the ``directly and substantially affected''
standard of the NPRM, with a special applicability provision for cases
where review diversion is alleged. Under Sec. 16.23(a) of the final
rule, a person directly and substantially affected by any alleged
noncompliance may file a complaint with the Administrator. Under
Sec. 16.3 of the final rule, a ``complaint'' is defined as ``a written
document * * * filed with the FAA by a person directly and
substantially affected by anything allegedly done or omitted to be done
* * * in contravention of any provision of any Act, as defined in this
section.'' Complaints by persons not ``directly and substantially
affected'' by respondent's alleged noncompliance will be subject to
dismissal with prejudice under part 16.
Persons alleging revenue diversion by an airport, as defined in 49
U.S.C. 47107(b), that do business with, and pay fees or rents to, the
airport, are considered in the final rule to be directly and
substantially affected by the alleged revenue diversion for the sole
purpose of having and standing to file a revenue diversion complaint
under Part 16. This special applicability provision for complaints of
revenue diversion is necessary because revenue diversion principally
affects the United States as the grantor of the federal airport funds
allegedly diverted. However, entities that do business on the airport
and pay fees to the airport have some interest in alleging revenue
diversion because their payments constitute airport revenue.
An association will have to meet the same ``directly and
substantially affected'' standing requirement individually, but will be
able to file a part 16 complaint as a representative of its members who
are ``directly and substantially affected'' by an act or omission of
respondent.
The standing requirement is necessary to assure that scarce agency
resources are devoted to matters in which the complainant's interest is
sufficient to justify the burden of processing a complaint under part
16. Parties who meet part 16 standing requirements may be represented
by duly authorized representatives.
Nonaeronautical users of airports are subject to the same
``directly and substantially affected'' standard as aeronautical users,
and could forseeably have standing to file a complaint under
[[Page 53999]]
part 16. For example, an airport duty-free shop could have standing to
file a part 16 complaint alleging revenue diversion, and an airport
concession that is a disadvantaged business enterprise (DBE) could have
standing to file a part 16 complaint alleging non-compliance with the
applicable DBE regulation. However, most of an airport's obligations
are intended for the benefit of aeronautical users. A complaint
alleging that an airport operator's treatment of a nonaeronautical user
violates such obligation would be dismissed even though the
nonaeronautical user was directly and substantially affected by the
alleged practice. For example, the assurance against unjust
discrimination by an airport operator only applies to aeronautical
users, so a complaint by a nonaeronautical user alleging unjust
discrimination by an airport operator would be dismissed.
Notwithstanding, the standing requirement, complaints that are
dismissed because complainant lacks standing under Part 16 may be
referred by the FAA to the appropriate FAA region for consideration
under Subpart D, Special Rules Applicable to Proceedings Initiated by
the FAA.
Pre-complaint Resolution
Most commenters approve of the proposed requirement in Sec. 16.21,
that a person engage in good faith efforts to informally resolve a
disputed matter, directly with the person or entity in alleged
noncompliance, before filing a complaint. ACI-NA supports the proposed
rule but is concerned that the mention of ``mediation, arbitration, or
use of a dispute resolution board'' in Sec. 16.21 will be interpreted
to mean that such alternative dispute resolution (ADR) methods are
mandatory. AOPA suggests that the requirement to undertake informal
resolution before filing a complaint would be inappropriate to
complaints filed by general aviation and add to the costs and time to
arrive at resolution. USPA states that part 16 would not permit contact
with the FAA at the local level for assistance.
Under Sec. 16.21 as adopted, it will be necessary for a potential
complainant to certify that good faith efforts have been made to
achieve informal resolution. However, the final rule does not require
any particular informal resolution method, and mentions mediation,
arbitration, and dispute resolution board as examples only. The final
rule has been changed to add that the local FAA Airport District Office
(ADO), or FAA Regional Airports Division, may be asked by the parties
to assist them in resolving the dispute informally. That change is
intended to make the local airports office available to mediate a
dispute, and reflects the FAA's experience. In many cases, the
involvement of the FAA ADO or regional airports division can facilitate
informal resolution. Allegations of revenue diversion, however, may not
lend themselves to full resolution in the pre-complaint process unless
the proposed resolution addresses the total amounts allegedly diverted
by the airport. Nevertheless, a complainant must show that informal
resolution was attempted.
Hearing
Section 16.31(d) provides the respondent with the opportunity for a
hearing if the initial determination finds the respondent in
noncompliance and proposes the issuance of a compliance order and an
opportunity for a hearing required by statute. In all other cases no
opportunity for a hearing is provided, except at the discretion of the
agency.
The law firm of Hogan & Hartson proposes a fact-finding hearing
before the initial determination is issued in order to develop the
factual record. This recommendation is not adopted in the final rule.
Before issuing the initial determination, the FAA engages in the
process of investigating a complain. While complainants are entitled to
having their complaints investigated, they do not have a property
interest sufficient to require an oral evidentiary hearing as part of
that investigation, even when the investigation leads to a dismissal of
a complaint.
A respondent may be entitled to a hearing in some cases before the
FAA takes adverse action. However, Sec. 16.31(d) provides an
opportunity for a hearing in those cases after the initial
determination is made and before any final agency action is taken.
There is no need to provide a respondent with an additional oral
evidentiary hearing during the investigatory stage. Furthermore, the
factual record will be developed by the supporting documents that are
required to be submitted with each pleading under Sec. 16.23, an by any
additional information submitted by the parties or developed through
informal investigation under Sec. 16.29.
Several commenters argue that, contrary to Sec. 16.203(b)(1), which
provides in the NPRM that the respondent and the agency are the only
parties to the post-initial determination hearing, the complainant
should also be a party to the hearing. The NBAA argues that a
complainant should be a party to the hearing because the complainant's
participation will help develop the record of the case. NATA and Air
Ottawa Flying Service, Inc., argue that nonhearing party status for a
complainant deprives the complainant of due process of law because the
complainant may have property interests at stake.
The final rule revised Sec. 16.203(b)(1) to allow complainant to be
a party to a hearing along with the respondent and the agency. Under
Sec. 16.31(d), a case proceeds to a hearing only after the FAA has
found against the respondent in an initial determination that proposes
the issuance of a compliance order. Thus, at the hearing the FAA has
the burden of proof to establish the validity of its initial
determination, including the proposed order of compliance under
Sec. 16.109. The respondent is a party to the hearing who seeks
reversal of the FAA's initial determination. Although, a complainant's
status as an airport user alone does not give rise to a sufficient
property interests to justify party status as a matter of right, party
status for the complainant will permit it to have an opportunity to
assist in the development of the factual record as pointed out by NBAA.
In addition, providing automatic party status will avoid burdening the
hearing officer and parties with routine requests for intervention by
complainant. The rule provides the hearing officer with ample powers to
control the conduct of the hearing and to assure that complainant's
participation does not unduly delay the proceedings.
As noted in the NPRM, in the case in which an adjudicatory hearing
would be held (under Sec. 519 of the AAIA or Sec. 1002 of the FAA Act),
the hearing procedures are intended to permit the FAA to complete
compliance hearings within 180 days, while assuring that a respondent
receives a fair hearing and an opportunity to present evidence and
argument to support its position. Section 519 specifies that the FAA
may temporarily withhold new grants.
Several commenters object to proposed Sec. 16.3 which provides that
the part 16 hearing officer is an attorney designated by the FAA. They
state that the proposed provision gives the appearance and possibility
of nonobjectivity. NBAA suggests that hearing officers be
administrative law judges.
The commenters' concerns about the independence and objectivity of
an FAA designated hearing officer are misplaced. Under the terms of
Sec. 16.3, no FAA attorney in the region where the noncompliance
allegedly occurred, or in the Airports and Environmental Law
[[Page 54000]]
Division, may be a hearing officer. This excludes all FAA attorneys who
could have access to factual knowledge of a part 16 complaint obtained
by means other than the administrative record, insures that the hearing
officer is independent of the offices that conduct investigations and
prosecutions, and insures that the hearing officer is objective and
independent.
Further, section 519 by its terms requires the FAA to provide
notice and ``an opportunity for hearing'' before imposing certain
sanctions. The simple requirement for a hearing, without more, has been
held not to constitute ``an adjudication required by statute to be
determined on the record after opportunity for an agency hearing,''
within the meaning of section 554 of the Administrative Procedure Act
(APA). See, e.g., Friends of the Earth v. EPA, 966 F.2d 690, 693 (D.C.
Cir. 1992); St. Louis Fuel and Supply Co., Inc. v. FERC, 890 F.2d 446,
448 (D.C. Cir. 1989). Accordingly, part 16 is not required by the APA
to include all of the provisions of sections 554, 556 and 557 of the
APA. In particular, the requirement that administrative law judges
serve as hearing officers does not apply.
In the interests of assuring a fair hearing, however, part 16
includes many of the elements required by sections 554, 556 and 557 of
the APA. For example, the hearing officer is required to issue an
initial decision; ex parte communications are prohibited; separation of
the prosecutorial and decision-making functions are required; and the
hearing officer has virtually all of the authority specified in section
556(c).
Intervention
AOPA and NBAA comment that the intervention provisions of
Sec. 16.207 are too restrictive and give the hearing officer too much
discretion in admitting a new party to a hearing. As explained earlier,
a part 16 hearing is to a large extent a proceeding in which the FAA
acts as a prosecutor seeking an order of compliance under Sec. 16.109
against respondent within the statutory time limits for issuing such
actions. Furthermore, complainant will under the final rule be a party
to the hearing. For these reasons, intervention in such a proceeding
should only be allowed if it will not unnecessarily broaden the issues,
or cause delay, and, if the person requesting intervention has
interests that need to be protected.
Analysis of the Provisions of the Final Rule
After careful review of the available data, including the comments
received, the FAA has determined to adopt this proposed rule with the
changes described previously.
Subpart A--General Provisions
Subpart A includes provisions of general applicability to
proceedings brought under part 16, definitions of terms used in the
regulation, and a provision on separation of functions.
The final rule modifies proposed Sec. 16.1(a) to exclude from the
coverage of part 16 disputes between U.S. and foreign air carriers and
airport-proprietors concerning the reasonableness of airport fees now
covered by 14 CFR part 302, as mandated by Congress in the FAA Act,
Public Law No. 103-305 (August 23, 1994).
Proposed Sec. 16.1(d) is modified to specify that part 16 applies
to investigations initiated by the FAA, as well as complaints filed
with the FAA on or after the effective date of the rule.
The definitions in Sec. 16.3 are, for the most part, derived from
the definitions of like or similar terms in 14 CFR part 13. The term
``agency employee'' defined as any employee of the Department of
Transportation, was added to indicate that other offices within the
Department of Transportation may assist the FAA in part 16 cases.
The title of ``Assistant Administrator for Airports'' in the
definitions section and throughout the text of the rule has been
changed in the final rule to ``Associate Administrator for Airports''
to reflect the correct title for this FAA official, as changed by a
recent agency reorganization.
The term ``Director,'' defined as the Director of the Office of
Airport Safety and Standards, was added to the definitions section and
to the text of the rule. The ``Director'' replaces the ``Assistant
Administrator'' as the decisionmaker of the initial determination
without a hearing under Sec. 16.31, as discussed more fully herein.
Although not technically incorrect, the term ``FAA decisionmaker''
was deleted from the definitions section and text of the final rule
because the term is unnecessary. Deletion of the term should avoid
confusion surrounding the ultimate decisionmaker in appeals from
initial determinations of the Director without a hearing under
Sec. 16.31, and from the initial decisions of hearing officers after a
hearing under Sec. 16.241. In both cases, the appeal will be submitted
to the Associate Administrator, who will issue a final decision under
either Sec. 16.33 or Sec. 16.241.
The substitution of Director and Associate Administrator as
decisionmakers instead of higher-level officials reflects the concerns
and experiences of agency personnel who reviewed the proposed rule. The
Director and Associate Administrator are experienced in airport matters
and may be more accessible within the short time periods in the final
rule for issuing decisions. The substitution also conforms more closely
to current practice in deciding complaints regarding airport
compliance.
The term ``Presiding officer'' was deleted from the definitions
section because it was referred to only in subpart J, which was
withdrawn.
The final rule contains no changes to the separation of function
section, Sec. 16.5, except that ``Associate Administrator'' replaces
``Administrator'' in Sec. 16.5(b) and ``FAA decisionmaker'' in
Sec. 16.5(c).
Separation of functions is not required by statute because hearings
under part 16 are not subject to APA hearing requirements; however, the
separation is provided to promote confidence in the impartiality and
integrity of decisions under the new procedures. Separation of
prosecutorial and adjudicatory functions will be provided from the time
the Director's determination is issued in all cases in which an
opportunity for hearing is provided, including cases in which the
respondent waives hearing and appeals the Director's determination in
writing to the Associate Administrator. When separation applies, the
Director will be considered as performing the investigatory and
prosecutorial function and will not participate in the decision of the
Associate Administrator or hearing officer.
Subpart B--General Rules Applicable to Complaints, Proceedings, and
Appeals Initiated by the FAA
This subpart applies to all phases of the investigations and
adjudications under this part.
The provisions governing filing and service of documents,
computation of time, and motions (Secs. 16.13, 16.15, 16.17, and
16.19), are based on similar provisions in the Federal Rules of Civil
Procedure, the Department of Transportation's Rules of Practice in
Proceedings (14 CFR part 302), the FAA Rules of Practice in Civil
Penalty Actions (14 CFR part 13, subpart G), and the National
Transportation Safety Board's (NSTB) Rules of Practice in Air Safety
Proceedings (49 CFR part 821). The proposed rule was modified to change
the agency address in Sec. 16.13. To insure timely processing and to
reflect
[[Page 54001]]
changes in the organization of the Office of the Chief Counsel ``FAA
Part 16 Airport Proceedings Docket (AGC-600)'' replaces ``FAA
Enforcement Docket (AGC-10).'' The additional 5 days provided after
service on a party of a document by mail was changed to 3 days in
Sec. 16.17(c). This revision conforms to the ``mail rule'' used in
federal practice under the Federal Rules of Civil Procedure.
Subpart C--Special Rules Applicable to Complaints
The final rule requires, under Sec. 16.21, a potential complainant
to engage in good faith efforts to resolve the disputed matter
informally with potentially responsible respondents before filing a
complaint with the FAA under part 16. Informal resolution may include
mediation, arbitration, use of a dispute resolution board, or other
form of third-party assistance, including assistance from the
responsible FAA Airports District Office or FAA Regional Airports
Division.
Under Sec. 16.21, it will be necessary for the potential
complainant or its representative to certify that good faith efforts
have been made to achieve informal resolution. To protect the parties
and for consistency with Rule 408 of the Federal Rules of Evidence, the
certification will not include information on monetary or other
settlement offers made but not agreed upon in writing. As explained
earlier, under Sec. 16.21(a), the FAA ADO or Regional Airports
Division, will be available upon request to assist the parties with
informal resolution.
The final rule retains the requirement that a complainant be
``directly and substantially affected by any alleged noncompliance'' in
order to have standing to file a complaint under Sec. 16.23. However,
as explained above complainants alleging revenue diversion by an
airport will be considered to be directly and substantially affected by
the alleged revenue diversion, if complainants do business with the
airport and pay fees or rentals to the airport.
To provide a more efficient and expedited process the time periods
for filing a reply to the answer and a rebuttal to the reply in
Sec. 16.23 (e) and (f) were reduced from 15 to 10 days.
At the suggestion of one commenter, the final rule adds ``lack of
standing'' as another possible ground for dismissal with prejudice
under Sec. 16.25. Besides dismissal of complaints that clearly do not
state a cause of action, or those that do not come within the
jurisdiction of the Administrator, a complaint may also be dismissed if
the complainant lacks standing to file the complaint under Secs. 16.3
and 16.23. As a final order of the agency, a dismissal with prejudice
would be appealable to a United States Court of Appeals.
As explained above, the final rule substitutes the Director of the
Office of Airport Safety and Standards as the official who makes the
initial determination after investigation under Sec. 16.31. The
Director would issue an initial determination in every case in which
the FAA investigates a complaint. Under the final rule, the agency is
required to issue a Director's determination in 120 days from the due
date of the last pleading (i.e., reply or rebuttal). The provision in
the NPRM allowing the Director to extend the period for issuing an
initial determination by 60 days for good cause was deleted from the
final rule in order to further expedite this administrative complaint
procedure.
The Director's determination is intended to provide a timely and
authoritative indication of the agency's position on a complaint. While
the Director's determination can be appealed to the Associate
Administrator under Sec. 16.33, the FAA expects that, in many
instances, the Director's determination will resolve the issues raised
in the complaint to the satisfaction of the parties. In such cases, the
parties may find it more beneficial to negotiate a solution based on
the FAA's initial position than to continue to litigate the matter.
Under the final rule, the Associate Administrator will issue the
final decision on appeal from a Director's determination without a
hearing under Sec. 16.33. If the initial determination finds the
sponsor in compliance and dismisses the complaint, the complainant may
appeal the determination by a written appeal to the Associate
Administrator within 30 days. The Associate Administrator is required
to issue a final agency decision in an appeal by a complainant within
60, not 30 days of the due date for the reply brief, as proposed in the
NPRM. The additional time for issuing a final agency decision was added
to the final rule to assure the agency adequate time to review the
record, prepare, and issue a final decision.
If the Director's determination contains a finding of noncompliance
and the respondent is entitled to a hearing, the determination will
provide the sponsor the opportunity to elect an oral evidentiary
hearing under subpart F. The procedure for electing or waiving a
hearing is set forth in subpart E. If the respondent waives a hearing
and instead elects to file a written appeal to the Associate
Administrator, a final decision will be issued by the Associate
Administrator under Sec. 16.33.
Subpart D--Special Rules Applicable to Proceedings Initiated by the FAA
Section 16.101 makes clear the FAA's continuing authority to
initiate its own investigation of any matter within the applicability
of this part without having received a complaint, as authorized by
Secs. 313 and 1002 of the FAA Act and Sec. 519 of the AAIA.
Subpart E--Proposed Orders of Compliance
Subpart E contains procedures that provide the respondent an
opportunity to file a request for hearing within 20 days after service
of the Director's determination if the determination proposes a
sanction against the sponsor subject to Sec. 519(b) of the AAIA or
Sec. 1002 of the FAA Act. The 20-day period to file a request for
hearing was reduced from 30 days in the NPRM in order to provide a more
efficient and expedited process. If the respondent elects a hearing,
the agency will issue a hearing order.
Alternatively, if the respondent waives hearing and instead files a
written appeal (within 30 days), the Associate Administrator will issue
a final decision in accordance with the procedures set forth in
Sec. 16.33. If the respondent fails to respond to the Director's
determination, the initial determination becomes final.
The final rule, based on comments received, includes a new ground
for the agency to provide the opportunity for a hearing under
Sec. 16.109(a): If the agency proposes to issue an order withholding
approval of any new application to impose a passenger facility charge
pursuant to Sec. 112 of the FAA Act, 49 U.S.C. 47111(e). That new
statutory section creates additional enforcement mechanisms against
illegal revenue diversion including the withholding of a new
application to impose a passenger facility charge. The statute requires
the FAA to provide an opportunity for hearing before imposing this
sanction.
The opportunity for a hearing by the agency under part 16 is
limited to those cases where there is a statutory requirement to offer
the opportunity for a hearing before the FAA takes a particular action,
or specific cases in which the FAA elects to offer a hearing.
Section 16.109(b)(3) allows respondent and complainant to file a
joint motion to withdraw the complaint and dismiss the proposed
compliance action. The FAA may, subject to its discretion, grant the
motion if it finds that a settlement by the parties fully
[[Page 54002]]
resolves the complaint violation and further compliance action is not
necessary.
Subpart F--Hearings
Subpart F contains the procedures for initiating and conducting
adjudicative hearings. The hearing order, issued by the Deputy Chief
Counsel under Sec. 16.201, will set the scope of the hearing by
identifying the issues to be resolved, as well as assigning the hearing
officer. If no material facts that require oral examination of
witnesses are in dispute, the hearing may be limited to submission of
briefs and oral argument.
In the hearing, the agency attorney will represent the agency's
position before the hearing officer and will have the same status as
any other representatives of a party. The rule includes commonly used
adjudicatory procedures, such as representation of the parties by
attorneys, intervention, participation by non-parties, pretrial
procedures and discovery, the availability of compulsory process to
obtain evidence, and procedures for using at the hearing. These
provisions are intended to provide the parties with a reasonable
opportunity to prepare their cases, while allowing the process to be
completed expeditiously. To assure an expeditious hearing process,
paragraph (b) was added to Sec. 16.213, discovery, to emphasize the
hearing officer's authority and duty to limit discovery wherever
feasible.
The final rule made the following clarifications and corrections to
the subpart based on comments received. The final rule added ``or
notice of investigation'' to Sec. 16.201(1) to clarify that the
provisions of subpart F may apply to proceedings initiated by the FAA
under subpart D. The final rule deleted an incorrect citation in
Sec. 16.203(a)(2) and replaced it with a citation to Sec. 16.13.
In the NPRM, the last phrase in proposed Sec. 16.209(d) cited
section 519(b) of the AAIA. The citation to the AAIA was included
because the AAIA provision contains the 180-day time limitation for a
determination which could affect the length of extensions of time
granted under part 16. (Although, at this time, the FAA does not
foresee any circumstances where it would provide for a hearing and
section 519(b) of the AAIA would not be applicable, in a case not
covered by section 519(b), an extension of time by the hearing officer
for any reason could extend all of the due dates beyond the 180-day
time limitation.) This provision is being modified in the final rule to
clarify this point.
The provisions of Sec. 16.233 on evidence, in part, are to permit
the hearing officer to exercise control over the hearing. Contrary to
the suggestion of one commenter, they are not intended to authorize the
hearing officer to preclude all cross-examination of a witness.
In keeping with the time limitations imposed by section 519(b) of
the AAIA, Sec. 16.235(a) of the final rule retains the provision
permitting the hearing officer to allow written argument during the
hearing only if the hearing officer finds that such argument would not
delay the hearing. Parties may make their arguments in posthearing
briefs under Sec. 16.235(b).
Subpart G--Initial Decisions, Orders and Appeals
Subpart G provides procedures for issuance of initial decisions and
orders by hearing officers, appeals of the initial decision to the
Associate Administrator for Airports, and issuance of consent orders.
Section 16.241 governs procedures and time frames for initial
decisions and administrative appeals based on 14 CFR 13.20(g)-(i).
However, shorter time periods are provided to accommodate the time
limits of Sec. 519 of the AAIA. In appeals from initial decisions of
hearing officers, under Sec. 16.241(c) and 16.241(f)(2), the Associate
Administrator must issue the final agency decision within 30 days of
the due date of the reply. This provision insures that the final agency
decision is issued within the 180-day time period of section 519.
In addition, the rule includes a provision for sua sponte review of
an initial decision by the Associate Administrator, consistent with the
practice under 14 CFR 302.28(d).
Section 16.243 governing disposal of cases by consent orders is
derived from 14 CFR 13.13.
As explained above, the final rule replaced all references to the
``FAA decisionmaker,'' though technically correct, with the ``Associate
Administrator,'' to avoid confusion and clarify. The ultimate
decisionmaker in part 16 proceedings, with or without hearings, is the
Associate Administrator for Airports for the reasons previously given.
Subpart H--Judicial Review
Subpart H contains rules applicable to judicial review of final
agency orders. Section 16.247(a) sets forth the basic authority to seek
judicial review. The provision is based on 14 CFR 13.235. Specific
reference to section 519(b)(4) of the AAIA has been added. Section
16.247(b) identifies FAA decisions and actions under part 16 that the
FAA does not consider to be judicially reviewable final agency orders.
Subpart I--Ex Parte Communications
The rule on ex parte communications is based on subpart J of the
Rules of Practice in Air Safety Proceedings of the NTSB, 49 CFR Part
821, subpart J, modified to reflect the fact that FAA employees
function as both parties and decisional employees in hearings conducted
under subpart F of part 16.
Subpart J--Alternative Procedure for Certain Complaints Concerning
Airport Rates and Charges
As explained above, subpart J of the proposed rule, containing
special procedures for the handling of airport fee complaints by U.S.
and foreign air carriers, was withdrawn on September 16, 1994 [59 FR
47568].
Regulatory Evaluation Summary
Introduction
This regulatory evaluation examines the costs and benefits of the
final rule concerning Rules for Federally-Assisted Airport Proceedings.
The rule establishes rules of practice for filing complaints and
adjudicating compliance matters involving Federally-assisted airports.
The rule is intended to expedite substantially the handling and
disposition of airport-related complaints. Since the impacts of the
changes are relatively minor this economic summary constitutes the
analysis and no regulatory evaluation will be placed in the docket.
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic effect of regulatory changes on small entities. Third, the
Office of Management and Budget directs agencies to assess the effects
of regulatory changes on international trade. In conducting these
analyses, the FAA has determined that this rule is ``a significant
regulatory action'' as defined in the Executive Order and the
Department of Transportation Regulatory Policies and Procedures. This
rule would not have a significant impact on a substantial number of
small entities and would not constitute a barrier to international
trade.
[[Page 54003]]
Costs And Benefits
This final rule adopts a new procedure for the filing,
investigation, and adjudication of complaints against airports for
violation of certain statutes administered by the FAA. The new
procedures will substitute for existing procedures under 14 CFR part
13. There are no intended safety benefits that result from this rule.
The intended advantages of the rule are in the form of increased cost
effectiveness and timeliness in resolving complaints. The rule will use
FAA resources better and result in modest cost savings.
About 30 investigations are initiated per year due to complaints
filed with the FAA. Each investigation takes an average of 3 years
before a ruling is issued. The typical investigation requires a field
investigation, an initial review by the FAA's Office of Airports Safety
and Standards, and a legal review by an attorney in the Office of Chief
Counsel. A GS-12 (step 5) employee requires 30 hours to complete the
field investigation, a GS-13 (step 5) requires 30 hours to complete the
initial review, and a GS-14 (step 5) employee requires 20 hours to
complete the legal review. The average cost per investigation is
$3,100. (See Table 1.)
Table 1.--Cost of Investigations Current and Under New Rule
----------------------------------------------------------------------------------------------------------------
Average Yearly Hourly Loaded
Hours grade salary rate rate Cost
----------------------------------------------------------------------------------------------------------------
CURRENT SITUATION
Field investigation.............................. 35 GS-12 $50,388 $24.14 $31.39 $1,098.54
Initial review at HQ............................. 30 GS-13 59,917 28.71 37.32 1,119.68
Attorney review at HQ............................ 20 GS-14 70,804 33.93 44.10 882.08
==============================================================
Average cost per investigation...................................................................... $3,100
Average annual number of investigations............................................................. 30
---------
Average annual cost of investigations............................................................... $93,009
NEW SITUATION
Field............................................ 4 GS-12 $50,388 $24.14 $31.39 $125.55
Initial review at HQ............................. 40 GS-13 59,917 28.71 37.32 1,492.90
Attorney review at HQ............................ 20 GS-14 70,804 33.93 44.10 882.08
==============================================================
Average cost per investigation...................................................................... $2,501
Average annual number of investigations............................................................. 30
---------
Average annual cost of investigations............................................................... $75,016
Savings............................................................................................. $17,993
----------------------------------------------------------------------------------------------------------------
This number assumes a 30-percent loaded hourly rate for fringe
benefits. The annual cost of investigations is estimated to be $93,000.
Under the new rule, determinations will be made without the need
for a field investigation. The FAA will be able to decide the merits of
the case by looking at the record solely. The field investigation is
expected to require 4 hours of the GS-12 (step 5) employee time, mostly
to complete the proper forms; the initial review at headquarters is
expected to require 40 hours of the GS-13 (step 5) employee's time, and
the legal review is expected to remain at 20 hours of the GS-14 (step
5) employee's time. The average cost per investigation is estimated to
be $2,500 and the annual cost of investigations will be $75,000 (Table
1). The final rule will result in an average cost savings of $18,000
per year on investigations. Furthermore the FAA estimates that instead
of 3 years per investigation, each investigation will now take on
average 1 year.
Conclusion
The FAA has determined that the final rule would have only moderate
economic impacts on the industry, public, or government. The only
measurable economic impact the FAA estimates is a slight cost savings
to administer airport proceedings due to the utilization of government
resources in a more efficient manner. The FAA finds that the proposed
rule is cost-beneficial.
International Trade Impact Assessment
The Office of Management and Budget directs agencies to assess the
effects of regulatory changes on international trade. There should be
no effect on aircraft manufacturers or operators (U.S. or foreign).
Therefore, the FAA has determined that the proposed rule would neither
have an effect on the sale of foreign aviation products nor services in
the United States, nor would it have an effect on the sale of U.S.
products or services in foreign countries.
Regulatory Flexibility Determination
The Regulatory Flexibility Act (RFA) of 1980 was enacted by
Congress to ensure that small entities are not unnecessarily or
disproportionately burdened by Government regulations. The RFA requires
a Regulatory Flexibility Analysis if a rule would have a significant
economic impact, either detrimental or beneficial, on a substantial
number or small entities. Based on the potential relief that the rule
provides and the criteria contained in FAA Order 2100.14A, Regulatory
Flexibility Criteria and Guidance, the FAA has determined that the rule
will not have a significant economic impact on a substantial number of
small entities.
Federalism Implications
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Paperwork Reduction Act
This final rule contains no information collection requirements
that require approval of the Office of Management and Budget pursuant
to the Paperwork Reduction Act of 1980 (44 U.S.C. 3507 et seq.)
[[Page 54004]]
Conclusion
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Flexibility Determination and the
International Trade Analysis, the FAA has determined that this final
rule is not economically significant under Executive Order 12866. This
final rule is considered significant under DOT Regulatory Policies and
Procedures (44 FR 111034, February 26, 1979) and Executive Order 12866.
The FAA certifies that this final rule will not have a significant
economic impact, positive or negative, on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects
14 CFR Part 13
Enforcement procedures, Investigations, Penalties.
14 CFR Part 16
Enforcement procedures, Investigations.
The Amendments
Accordingly, the Federal Aviation Administration amends chapter I
of title 14 of the Code of Federal Regulations as follows:
PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
1. The authority citation for part 13 continues to read as follows:
Authority: 18 U.S.C. 6002; 49 U.S.C. 106(g), 5121-5124, 40113-
40114, 44103-44106, 44702-44703, 44709-44710, 44713, 46101-46110,
46301-46316, 46501-46502, 46504-46507, 47106, 47111, 47122, 47306,
47531-47532.
2. Section 13.3 is amended by adding a new paragraph (d) to read as
follows:
Sec. 13.3 Investigations (general).
* * * * *
(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 shall be filed in
accordance with the provisions of part 16 of this chapter, except in
the case of complaints, investigations, and proceedings initiated
before December 16, 1996, the effective date of part 16 of this
chapter.
3. A new part 16 is added to subchapter B to read as follows:
PART 16--RULES OF PRACTICE FOR FEDERALLY-ASSISTED AIRPORT
ENFORCEMENT PROCEEDINGS
Subpart A--General Provisions
Sec.
16.1 Applicability and description of part.
16.3 Definitions.
16.5 Separation of functions.
Subpart B--General Rules Applicable to Complaints, Proceedings
Initiated by the FAA, and Appeals
16.11 Expedition and other modification of process.
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 Complaints, answers, replies, rebuttals, and other documents.
16.25 Dismissals.
16.27 Incomplete complaints.
16.29 Investigations.
16.31 Director's determinations after investigations.
16.33 Final decisions without hearing.
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.
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.
Subpart G--Initial Decisions, Orders and Appeals
16.241 Initial decisions, orders, and appeals.
16.243 Consent orders.
Subpart H--Judicial Review
16.247 Judicial review of a final decision and order.
Subpart I--Ex Parte Communications
16.301 Definitions.
16.303 Prohibited ex parte communications.
16.305 Procedures for handling ex parte communications.
16.307 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, 47151-47153, 48103.
Subpart A--General Provisions
Sec. 16.1 Applicability and description of part.
(a) General. The provisions of this part govern all proceedings
involving Federally-assisted airports, except for disputes between U.S.
and foreign air carriers and airport proprietors concerning the
reasonableness of airport fees covered by 14 CFR part 302, whether the
proceedings are instituted by order of the FAA or by filing with the
FAA a complaint, 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 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 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 contained in grant-in-aid agreements issued
under the Airport and Airway Improvement Act of 1982 (AAIA), as
amended, 49 U.S.C. 47101 et seq., specifically section 511(a), 49
U.S.C. 47107(a) and (b).
(6) Section 505(d) of the Airport and Airway Improvement Act of
1982, as amended, 49 U.S.C. 47113.
(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
[[Page 54005]]
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 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.
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.
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 U.S. Department of
Transportation.
Associate Administrator means the Associate Administrator for
Airports or a designee.
Complainant means the person submitting a complaint.
Complaint means a written document meeting the requirements of this
part filed with the FAA 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.
Director means the Director of the Office of Airport Safety and
Standards.
Director's determination means the initial determination made by
the Director following an investigation, which is a non-final agency
decision.
File means to submit written documents to the FAA for inclusion in
the Part 16 Airport Proceedings Docket or to a hearing officer.
Final decision and order means a final agency decision that
disposes of a complaint or determines a respondent's compliance with
any Act, as defined in this section, and directs appropriate action.
Hearing officer means an attorney designated by the FAA 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 Assistant Chief 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.
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 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.
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.
Subpart B--General Rules Applicable to Complaints, Proceedings
Initiated by the FAA, and Appeals
Sec. 16.11 Expedition and other modification of process.
(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, including the
extension of any time period prescribed where necessary or appropriate
for a fair and complete hearing of matters before the agency.
(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
[[Page 54006]]
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.
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 to be filed with the FAA shall be
filed with the Office of the Chief Counsel, Attention: FAA Part 16
Airport Proceedings Docket, AGC-610, Federal Aviation Administration,
800 Independence Ave., SW., Washington, DC, 20591. Documents to be
filed with a hearing officer shall be filed at the address 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, or by facsimile
(when confirmed by filing on the same date by one of the foregoing
methods). Unless the date is shown to be inaccurate, documents to be
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.
(c) Number of copies. Unless otherwise specified, an executed
original and three copies of each document shall be filed with the FAA
Part 16 Airport Proceedings Docket. 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 the hearing officer. If filing by facsimile, the facsimile
copy does not constitute one of the copies required under this section.
(d) Form. Documents filed with the FAA shall be typewritten or
legibly printed. In the case of docketed proceedings, the document
shall include the docket number of the proceeding on the front page.
(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, post office
address, telephone number, and facsimile number, if any, 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 Airport Proceedings
Docket 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.
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) Who must be served. Copies of all documents filed with the FAA
Part 16 Airport Proceedings Docket 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 and
facsimile numbers (if also served by facsimile) by [specify method
of service]:
[list persons, addresses, facsimile numbers]
Dated this ______ day of ______, 19____.
[signature], for [party]
(b) Method of service. Except as otherwise agreed by the parties
and 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); or
(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.
(e) Date of service. The date of service shall be determined in the
same manner as the filing date under Sec. 16.13(b).
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 mail, 3 days shall be added
to the prescribed period.
Sec. 16.19 Motions.
(a) General. An application for an order or ruling not otherwise
specifically provided for in this part shall be by motion. Unless
otherwise ordered by the agency, the filing of a motion will not stay
the date that any action is permitted or required by this part.
(b) Form and contents. Unless made during a hearing, motions shall
be made in writing, shall state with particularity the relief sought
and the grounds for the relief sought, and shall be accompanied by
affidavits or other evidence relied upon. Motions introduced during
hearings may be made orally on the record, unless the hearing officer
directs otherwise.
(c) Answers to motions. Except as otherwise provided in this part,
or except when a motion is made during a hearing, any party may file an
answer in support of or in opposition to a motion, accompanied by
affidavits or other evidence relied upon, provided that the
[[Page 54007]]
answer to the motion is filed within 10 days after the motion has been
served upon the person answering, or any other period set by the
hearing officer. Where a motion is made during a hearing, the answer
and the ruling thereon may be made at the hearing, or orally or in
writing within the time set by the hearing officer.
Subpart C--Special Rules Applicable to Complaints
Sec. 16.21 Pre-complaint resolution.
(a) Prior to filing a complaint under this part, a person directly
and substantially affected by the alleged noncompliance shall initiate
and engage in good faith efforts to resolve the disputed matter
informally with those individuals or entities believed responsible for
the noncompliance. These efforts at informal resolution may include,
without limitation, at the parties' expense, mediation, arbitration, or
the use of a dispute resolution board, or other form of third party
assistance. The FAA Airports District Office, FAA Airports Field
Office, or FAA Regional Airports Division responsible for
administrating financial assistance to the respondent airport
proprietor, will be available upon request to assist the parties with
informal resolution.
(b) A complaint under this part will not be considered unless the
person or authorized representative filing the complaint certifies that
substantial and reasonable good faith efforts to resolve the disputed
matter informally prior to filing the complaint have been made and that
there appears no reasonable prospect for timely resolution of the
dispute. This certification shall include a brief description of the
party's efforts to obtain informal resolution but shall not include
information on monetary or other settlement offers made but not agreed
upon in writing by all parties.
Sec. 16.23 Complaints, answers, replies, rebuttals, and other
documents.
(a) A person directly and substantially affected by any alleged
noncompliance may file a complaint with the Administrator. A person
doing business with an airport and paying fees or rentals to the
airport shall be considered directly and substantially affected by
alleged revenue diversion as defined in 49 U.S.C. 47107(b).
(b) Complaints filed under this part shall--
(1) State the name and address of each person who is the subject of
the complaint and, with respect to each person, the specific provisions
of each Act that the complainant believes were violated;
(2) Be served, in accordance with Sec. 16.15, along with all
documents then available in the exercise of reasonable diligence,
offered in support of the complaint, upon all persons named in the
complaint as persons responsible for the alleged action(s) or
omission(s) upon which the complaint is based;
(3) Provide a concise but complete statement of the facts relied
upon to substantiate each allegation; and
(4) Describe how the complainant was directly and substantially
affected by the things done or omitted to be done by the respondents.
(c) Unless the complaint is dismissed pursuant to Sec. 16.25 or
Sec. 16.27, the FAA notifies the complainant and respondents in writing
within 20 days after the date the FAA receives the complaint that the
complaint has been docketed and that respondents are required to file
an answer within 20 days of the date of service of the notification.
(d) The respondent shall file an answer within 20 days of the date
of service of the FAA notification.
(e) The complainant may file a reply within 10 days of the date of
service of the answer.
(f) The respondent may file a rebuttal within 10 days of the date
of service of the complainant's reply.
(g) The answer, reply, and rebuttal shall, like the complaint, be
accompanied by supporting documentation upon which the parties rely.
(h) The answer shall deny or admit the allegations made in the
complaint or state that the person filing the document is without
sufficient knowledge or information to admit or deny an allegation, and
shall assert any affirmative defense.
(i) The answer, reply, and rebuttal shall each contain a concise
but complete statement of the facts relied upon to substantiate the
answers, admissions, denials, or averments made.
(j) The respondent's answer may include a motion to dismiss the
complaint, or any portion thereof, with a supporting memorandum of
points and authorities. If a motion to dismiss is filed, the
complainant may respond as part of its reply notwithstanding the 10-day
time limit for answers to motions in Sec. 16.19(c).
Sec. 16.25 Dismissals.
Within 20 days after the receipt of the complaint, the Director
will dismiss a complaint, or any claim made in a complaint, with
prejudice if:
(a) It appears on its face to be outside the jurisdiction of the
Administrator under the Acts listed in Sec. 16.1;
(b) On its face it does not state a claim that warrants an
investigation or further action by the FAA; or
(c) The complainant lacks standing to file a complaint under
Secs. 16.3 and 16.23. The Director's dismissal will include the reasons
for the dismissal.
Sec. 16.27 Incomplete complaints.
If a complaint is not dismissed pursuant to Sec. 16.25 of this
part, but is deficient as to one or more of the requirements set forth
in Sec. 16.21 or Sec. 16.23(b), the Director will dismiss the complaint
within 20 days after receiving it. Dismissal will be without prejudice
to the refiling of the complaint after amendment to correct the
deficiency. The Director's dismissal will include the reasons for the
dismissal.
Sec. 16.29 Investigations.
(a) If, based on the pleadings, there appears to be a reasonable
basis for further investigation, the FAA investigates the subject
matter of the complaint.
(b) The investigation may include one or more of the following, at
the sole discretion of the FAA:
(1) A review of the written submissions or pleadings of the
parties, as supplemented by any informal investigation the FAA
considers necessary and by additional information furnished by the
parties at FAA request. In rendering its initial determination, the FAA
may rely entirely on the complaint and the responsive pleadings
provided under this subpart. Each party shall file documents that it
considers sufficient to present all relevant facts and argument
necessary for the FAA to determine whether the sponsor is in
compliance.
(2) Obtaining additional oral and documentary evidence by use of
the agency's authority to compel production of such evidence under
section 313 Aviation Act, 49 U.S.C. 40113 and 46104, and section 519 of
the Airport and Airway Improvement Act, 49 U.S.C. 47122. The
Administrator's statutory authority to issue compulsory process has
been delegated to the Chief Counsel, the Deputy Chief Counsel, the
Assistant Chief Counsel for Airports and Environmental Law, and each
Assistant Chief Counsel for a region or center.
(3) Conducting or requiring that a sponsor conduct an audit of
airport financial records and transactions as provided in 49 U.S.C.
47107 and 47121.
Sec. 16.31 Director's determinations after investigations.
(a) After consideration of the pleadings and other information
obtained by the FAA after investigation,
[[Page 54008]]
the Director will render an initial determination and provide it to
each party by certified mail within 120 days of the date the last
pleading specified in Sec. 16.23 was due.
(b) The Director's determination will set forth a concise
explanation of the factual and legal basis for the Director's
determination on each claim made by the complainant.
(c) A party adversely affected by the Director's determination may
appeal the initial determination to the Associate Administrator as
provided in Sec. 16.33.
(d) If the Director's determination finds the respondent in
noncompliance and proposes the issuance of a compliance order, the
initial determination will include notice of opportunity for a hearing
under subpart F of this part, if such an opportunity is provided by the
FAA. The respondent may elect or waive a hearing as provided in subpart
E of this part.
Sec. 16.33 Final decisions without hearing.
(a) The Associate Administrator will issue a final decision on
appeal from the Director's determination, without a hearing, where--
(1) The complaint is dismissed after investigation;
(2) A hearing is not required by statute and is not otherwise made
available by the FAA; or
(3) The FAA provides opportunity for a hearing to the respondent
and the respondent waives the opportunity for a hearing as provided in
subpart E of this part.
(b) In the cases described in paragraph (a) of this section, a
party adversely affected by the Director's determination may file an
appeal with the Associate Administrator within 30 days after the date
of service of the initial determination.
(c) A reply to an appeal may be filed with the Associate
Administrator within 20 days after the date of service of the appeal.
(d) The Associate Administrator will issue a final decision and
order within 60 days after the due date of the reply.
(e) If no appeal is filed within the time period specified in
paragraph (b) of this section, the Director's determination becomes the
final decision and order of the FAA without further action. A
Director's determination that becomes final because there is no
administrative appeal is not judicially reviewable.
Subpart D--Special Rules Applicable to Proceedings Initiated by the
FAA
Sec. 16.101 Basis for the initiation of agency action.
The FAA may initiate its own investigation of any matter within the
applicability of this part without having received a complaint. The
investigation may include, without limitation, any of the actions
described in Sec. 16.29(b).
Sec. 16.103 Notice of investigation.
Following the initiation of an investigation under Sec. 16.101, the
FAA sends a notice to the person(s) subject to investigation. The
notice will set forth the areas of the agency's concern and the reasons
therefor; request a response to the notice within 30 days of the date
of service; and inform the respondent that the FAA will, in its
discretion, invite good faith efforts to resolve the matter.
Sec. 16.105 Failure to resolve informally.
If the matters addressed in the FAA notices are not resolved
informally, the FAA may issue a Director's determination under
Sec. 16.31.
Subpart E--Proposed Orders of Compliance
Sec. 16.109 Orders terminating eligibility for grants, cease and
desist orders, and other compliance orders.
This section applies to initial determinations issued under
Sec. 16.31 that provide the opportunity for a hearing.
(a) The agency will provide the opportunity for a hearing if, in
the Director's determination, the agency proposes to issue an order
terminating eligibility for grants pursuant to 49 U.S.C. 47106(e) and
47111(d), an order suspending the payment of grant funds, an order
withholding approval of any new application to impose a passenger
facility charge pursuant to section 112 of the Federal Aviation
Administration Act of 1994, 49 U.S.C. 47111(e), a cease and desist
order, an order directing the refund of fees unlawfully collected, or
any other compliance order issued by the Administrator to carry out the
provisions of the Acts, and required to be issued after notice and
opportunity for a hearing. In cases in which a hearing is not required
by statute, the FAA may provide opportunity for a hearing at its
discretion.
(b) In a case in which the agency provides the opportunity for a
hearing, the Director's determination issued under Sec. 16.31 will
include a statement of the availability of a hearing under subpart F of
this part.
(c) Within 20 days after service of a Director's determination
under Sec. 16.31 and paragraph (b) of this section, a person subject to
the proposed compliance order may--
(1) Request a hearing under subpart F of this part;
(2) Waive hearing and appeal the Director's determination in
writing to the Associate Administrator, as provided in Sec. 16.33;
(3) File, jointly with a complainant, a motion to withdraw the
complaint and to dismiss the proposed compliance action; or
(4) Submit, jointly with the agency attorney, a proposed consent
order under Sec. 16.243(e).
(d) If the respondent fails to request a hearing or to file an
appeal in writing within the time periods provided in paragraph (c) of
this section, the Director's determination becomes final.
Subpart F--Hearings
Sec. 16.201 Notice and order of hearing.
(a) If a respondent is provided the opportunity for hearing in an
initial determination and does not waive hearing, the Deputy Chief
Counsel within 10 days after the respondent elects a hearing will issue
and serve on the respondent and complainant a hearing order. The
hearing order will set forth:
(1) The allegations in the complaint, or notice of investigation,
and the chronology and results of the investigation preliminary to the
hearing;
(2) The relevant statutory, judicial, regulatory, and other
authorities;
(3) The issues to be decided;
(4) Such rules of procedure as may be necessary to supplement the
provisions of this part;
(5) The name and address of the person designated as hearing
officer, and the assignment of authority to the hearing officer to
conduct the hearing in accordance with the procedures set forth in this
part; and
(6) The date by which the hearing officer is directed to issue an
initial decision.
(b) Where there are no genuine issues of material fact requiring
oral examination of witnesses, the hearing order may contain a
direction to the hearing officer to conduct a hearing by submission of
briefs and oral argument without the presentation of testimony or other
evidence.
Sec. 16.202 Powers of a hearing officer.
In accordance with the rules of this subpart, a hearing officer
may:
(a) Give notice of, and hold, prehearing conferences and hearings;
[[Page 54009]]
(b) Administer oaths and affirmations;
(c) Issue subpoenas authorized by law and issue notices of
deposition requested by the parties;
(d) Limit the frequency and extent of discovery;
(e) Rule on offers of proof;
(f) Receive relevant and material evidence;
(g) Regulate the course of the hearing in accordance with the rules
of this part to avoid unnecessary and duplicative proceedings in the
interest of prompt and fair resolution of the matters at issue;
(h) Hold conferences to settle or to simplify the issues by consent
of the parties;
(i) Dispose of procedural motions and requests;
(j) Examine witnesses; and
(k) Make findings of fact and conclusions of law, and issue an
initial decision.
Sec. 16.203 Appearances, parties, and rights of parties.
(a) Appearances. Any party may appear and be heard in person.
(1) Any party may be accompanied, represented, or advised by an
attorney licensed by a State, the District of Columbia, or a territory
of the United States to practice law or appear before the courts of
that State or territory, or by another duly authorized representative.
(2) An attorney, or other duly authorized representative, who
represents a party shall file a notice of appearance in accordance with
Sec. 16.13.
(b) Parties and agency participation.
(1) The parties to the hearing are the respondent (s) named in the
hearing order, the complainant(s), and the agency.
(2) Unless otherwise specified in the hearing order, the agency
attorney will serve as prosecutor for the agency from the date of
issuance of the Director's determination providing an opportunity for
hearing.
Sec. 16.207 Intervention and other participation.
(a) A person may submit a motion for leave to intervene as a party.
Except for good cause shown, a motion for leave to intervene shall be
submitted not later than 10 days after the notice of hearing and
hearing order.
(b) If the hearing officer finds that intervention will not unduly
broaden the issues or delay the proceedings and, if the person has a
property or financial interest that may not be addressed adequately by
the parties, the hearing officer may grant a motion for leave to
intervene. The hearing officer may determine the extent to which an
intervenor may participate in the proceedings.
(c) Other persons may petition the hearing officer for leave to
participate in the hearing. Participation is limited to the filing of
post-hearing briefs and reply to the hearing officer and the Associate
Administrator. Such briefs shall be filed and served on all parties in
the same manner as the parties' post hearing briefs are filed.
(d) Participation under this section is at the discretion of the
FAA, and no decision permitting participation shall be deemed to
constitute an expression by the FAA that the participant has such a
substantial interest in the proceeding as would entitle it to judicial
review of such decision.
Sec. 16.209 Extension of time.
(a) Extension by oral agreement. The parties may agree to extend
for a reasonable period of time for filing a document under this part.
If the parties agree, the hearing officer shall grant one extension of
time to each party. The party seeking the extension of time shall
submit a draft order to the hearing officer to be signed by the hearing
officer and filed with the hearing docket. The hearing officer may
grant additional oral requests for an extension of time where the
parties agree to the extension.
(b) Extension by motion. A party shall file a written motion for an
extension of time with the hearing officer not later than 7 days before
the document is due unless good cause for the late filing is shown. A
party filing a written motion for an extension of time shall serve a
copy of the motion on each party.
(c) Failure to rule. If the hearing officer fails to rule on a
written motion for an extension of time by the date the document was
due, the motion for an extension of time is deemed denied.
(d) Effect on time limits. In a hearing required by section 519(b)
of the Airport and Airways Improvement Act, as amended in 1987, 49
U.S.C. 47106(e) and 47111(d), the due date for the hearing officer's
initial decision and for the final agency decision are extended by the
length of the extension granted by the hearing officer only if the
hearing officer grants an extension of time as a result of an agreement
by the parties as specified in paragraph (a) of this section or, if the
hearing officer grants an extension of time as a result of the
sponsor's failure to adhere to the hearing schedule. In any other
hearing, an extension of time granted by the hearing officer for any
reason extends the due date for the hearing officer's initial decision
and for the final agency decision by the length of time of the hearing
officer's decision.
16.211 Prehearing conference.
(a) Prehearing conference notice. The hearing officer schedules a
prehearing conference and serves a prehearing conference notice on the
parties promptly after being designated as a hearing officer.
(1) The prehearing conference notice specifies the date, time,
place, and manner (in person or by telephone) of the prehearing
conference.
(2) The prehearing conference notice may direct the parties to
exchange proposed witness lists, requests for evidence and the
production of documents in the possession of another party, responses
to interrogatories, admissions, proposed procedural schedules, and
proposed stipulations before the date of the prehearing conference.
(b) The prehearing conference. The prehearing conference is
conducted by telephone or in person, at the hearing officer's
discretion. The prehearing conference addresses matters raised in the
prehearing conference notice and such other matters as the hearing
officer determines will assist in a prompt, full and fair hearing of
the issues.
(c) Prehearing conference report. At the close of the prehearing
conference, the hearing officer rules on any requests for evidence and
the production of documents in the possession of other parties,
responses to interrogatories, and admissions; on any requests for
depositions; on any proposed stipulations; and on any pending
applications for subpoenas as permitted by Sec. 16.219. In addition,
the hearing officer establishes the schedule, which shall provide for
the issuance of an initial decision not later than 110 days after
issuance of the Director's determination order unless otherwise
provided in the hearing order.
Sec. 16.213 Discovery.
(a) Discovery is limited to requests for admissions, requests for
production of documents, interrogatories, and depositions as authorized
by Sec. 16.215.
(b) The hearing officer shall 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 may 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
[[Page 54010]]
discovery methods permitted under this section; or
(4) The method or scope of discovery requested by the party is
unduly burdensome or expensive.
Sec. 16.215 Depositions.
(a) General. For good cause shown, the hearing officer may order
that the testimony of a witness may be taken by deposition and that the
witness produce documentary evidence in connection with such testimony.
Generally, an order to take the deposition of a witness is entered only
if:
(1) The person whose deposition is to be taken would be unavailable
at the hearing;
(2) The deposition is deemed necessary to perpetuate the testimony
of the witness; or
(3) The taking of the deposition is necessary to prevent undue and
excessive expense to a party and will not result in undue burden to
other parties or in undue delay.
(b) Application for deposition. Any party desiring to take the
deposition of a witness shall make application therefor to the hearing
officer in writing, with a copy of the application served on each
party. The application shall include:
(1) The name and residence of the witness;
(2) The time and place for the taking of the proposed deposition;
(3) The reasons why such deposition should be taken; and
(4) A general description of the matters concerning which the
witness will be asked to testify.
(c) Order authorizing deposition. If good cause is shown, the
hearing officer, in his or her discretion, issues an order authorizing
the deposition and specifying the name of the witness to be deposed,
the location and time of the deposition and the general scope and
subject matter of the testimony to be taken.
(d) Procedures for deposition.
(1) Witnesses whose testimony is taken by deposition shall be sworn
or shall affirm before any questions are put to them. Each question
propounded shall be recorded and the answers of the witness transcribed
verbatim.
(2) Objections to questions or evidence shall be recorded in the
transcript of the deposition. The interposing of an objection shall not
relieve the witness of the obligation to answer questions, except where
the answer would violate a privilege.
(3) The written transcript shall be subscribed by the witness,
unless the parties by stipulation waive the signing, or the witness is
ill, cannot be found, or refuses to sign. The reporter shall note the
reason for failure to sign.
Sec. 16.217 Witnesses.
(a) Each party may designate as a witness any person who is able
and willing to give testimony that is relevant and material to the
issues in the hearing case, subject to the limitation set forth in
paragraph (b) of this section.
(b) The hearing officer may exclude testimony of witnesses that
would be irrelevant, immaterial, or unduly repetitious.
(c) Any witness may be accompanied by counsel. Counsel representing
a nonparty witness has no right to examine the witness or otherwise
participate in the development of testimony.
Sec. 16.219 Subpoenas.
(a) Request for subpoena. A party may apply to the hearing officer,
within the time specified for such applications in the prehearing
conference report, for a subpoena to compel testimony at a hearing or
to require the production of documents only from the following persons:
(1) Another party;
(2) An officer, employee, or agent of another party;
(3) Any other person named in the complaint as participating in or
benefiting from the actions of the respondent alleged to have violated
any Act;
(4) An officer, employee, or agent of any other person named in the
complaint as participating in or benefiting from the actions of the
respondent alleged to have violated any Act.
(b) Issuance and service of subpoena.
(1) The hearing officer issues the subpoena if the hearing officer
determines that the evidence to be obtained by the subpoena is relevant
and material to the resolution of the issues in the case.
(2) Subpoenas shall be served by personal service, or upon an agent
designated in writing for the purpose, or by certified mail, return
receipt addressed to such person or agent. Whenever service is made by
registered or certified mail, the date of mailing shall be considered
as the time when service is made.
(3) A subpoena issued under this part is effective throughout the
United States or any territory or possession thereof.
(c) Motions to quash or modify subpoena.
(1) A party or any person upon whom a subpoena has been served may
file a motion to quash or modify the subpoena with the hearing officer
at or before the time specified in the subpoena for the filing of such
motions. The applicant shall describe in detail the basis for the
application to quash or modify the subpoena including, but not limited
to, a statement that the testimony, document, or tangible 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.
(2) A motion to quash or modify the subpoena stays the effect of
the subpoena pending a decision by the hearing officer on the motion.
Sec. 16.221 Witness fees.
(a) The party on whose behalf a witness appears is responsible for
paying any witness fees and mileage expenses.
(b) Except for employees of the United States summoned to testify
as to matters related to their public employment, witnesses summoned by
subpoena shall be paid the same fees and mileage expenses as are paid
to a witness in a court of the United States in comparable
circumstances.
Sec. 16.223 Evidence.
(a) General. A party may submit direct and rebuttal evidence in
accordance with this section.
(b) Requirement for written testimony and evidence. Except in the
case of evidence obtained by subpoena, or in the case of a special
ruling by the hearing officer to admit oral testimony, a party's direct
and rebuttal evidence shall be submitted in written form in advance of
the oral hearing pursuant to the schedule established in the hearing
officer's prehearing conference report. Written direct and rebuttal
fact testimony shall be certified by the witness as true and correct.
Subject to the same exception (for evidence obtained by subpoena or
subject to a special ruling by the hearing officer), oral examination
of a party's own witness is limited to certification of the accuracy of
written evidence, including correction and updating, if necessary, and
reexamination following cross-examination by other parties.
(c) Subpoenaed testimony. Testimony of witnesses appearing under
subpoena may be obtained orally.
(d) Cross-examination. A party may conduct cross-examination that
may be required for disclosure of the facts, subject to control by the
hearing officer for fairness, expedition and exclusion of extraneous
matters.
(e) Hearsay evidence. Hearsay evidence is admissible in proceedings
governed by this part. The fact that
[[Page 54011]]
evidence is hearsay goes to the weight of evidence and does not affect
its admissibility.
(f) Admission of evidence. The hearing officer admits evidence
introduced by a party in support of its case in accordance with this
section, but may exclude irrelevant, immaterial, or unduly repetitious
evidence.
(g) Expert or opinion witnesses. An employee of the FAA or DOT may
not be called as an expert or opinion witness for any party other than
the agency except as provided in Department of Transportation
regulations at 49 CFR part 9.
Sec. 16.225 Public disclosure of evidence.
(a) Except as provided in this section, the hearing shall be open
to the public.
(b) The hearing officer may order that any information contained in
the record be withheld from public disclosure. Any person may object to
disclosure of information in the record by filing a written motion to
withhold specific information with the hearing officer. The person
shall state specific grounds for nondisclosure in the motion.
(c) The hearing officer shall grant the motion to withhold
information from public disclosure if the hearing officer determines
that disclosure would be in violation of the Privacy Act, would reveal
trade secrets or privileged or confidential commercial or financial
information, or is otherwise prohibited by law.
Sec. 16.227 Standard of proof.
The hearing officer shall issue an initial decision or shall rule
in a party's favor only if the decision or ruling is supported by, and
in accordance with, reliable, probative, and substantial evidence
contained in the record and is in accordance with law.
Sec. 16.229 Burden of proof.
(a) The burden of proof of noncompliance with an Act or any
regulation, order, agreement or document of conveyance issued under the
authority of an Act 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. 16.231 Offer of proof.
A party whose evidence has been excluded by a ruling of the hearing
officer may offer the evidence on the record when filing an appeal.
Sec. 16.233 Record.
(a) Exclusive record. The transcript of all testimony in the
hearing, all exhibits received into evidence, all motions, applications
requests and rulings, and all documents included in the hearing record
shall constitute the exclusive record for decision in the proceedings
and the basis for the issuance of any orders.
(b) Examination and copy of record. Any interested person may
examine the record at the Part 16 Airport Proceedings Docket, AGC-600,
Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591. Any person may have a copy of the record after
payment of reasonable costs for search and reproduction of the record.
Sec. 16.235 Argument before the hearing officer.
(a) Argument during the hearing. During the hearing, the hearing
officer shall give the parties reasonable opportunity to present oral
argument on the record supporting or opposing motions, objections, and
rulings if the parties request an opportunity for argument. The hearing
officer may direct written argument during the hearing if the hearing
officer finds that submission of written arguments would not delay the
hearing.
(b) Posthearing briefs. The hearing officer may request or permit
the parties to submit posthearing briefs. The hearing officer may
provide for the filing of simultaneous reply briefs as well, if such
filing will not unduly delay the issuance of the hearing officer's
initial decision. Posthearing briefs shall include proposed findings of
fact and conclusions of law; exceptions to rulings of the hearing
officer; references to the record in support of the findings of fact;
and supporting arguments for the proposed findings, proposed
conclusions, and exceptions.
Sec. 16.237 Waiver of procedures.
(a) The hearing officer shall waive such procedural steps as all
parties to the hearing agree to waive before issuance of an initial
decision.
(b) Consent to a waiver of any procedural step bars the raising of
this issue on appeal.
(c) The parties may not by consent waive the obligation of the
hearing officer to enter an initial decision on the record.
Subpart G--Initial Decisions, Orders and Appeals
Sec. 16.241 Initial decisions, order, and appeals.
(a) The hearing officer shall issue an initial decision based on
the record developed during the proceeding and shall send the initial
decision to the parties not later than 110 days after the Director's
determination unless otherwise provided in the hearing order.
(b) Each party adversely affected by the hearing officer's initial
decision may file an appeal with the Associate Administrator within 15
days of the date the initial decision is issued. Each party may file a
reply to an appeal within 10 days after it is served on the party.
Filing and service of appeals and replies shall be by personal
delivery.
(c) If an appeal is filed, the Associate Administrator reviews the
entire record and issues a final agency decision and order within 30
days of the due date of the reply. If no appeal is filed, the Associate
Administrator may take review of the case on his or her own motion. If
the Associate Administrator finds that the respondent is not in
compliance with any Act or any regulation, agreement, or document of
conveyance issued or made under such Act, the final agency order
includes a statement of corrective action, if appropriate, and
identifies sanctions for continued noncompliance.
(d) If no appeal is filed, and the Associate Administrator does not
take review of the initial decision on the Associate Administrator's
own motion, the initial decision shall take effect as the final agency
decision and order on the sixteenth day after the actual date the
initial decision is issued.
(e) The failure to file an appeal is deemed a waiver of any rights
to seek judicial review of an initial decision that becomes a final
agency decision by operation of paragraph (d) of this section.
(f) If the Associate Administrator takes review on the Associate
Administrator's own motion, the Associate Administrator issues a notice
of review by the sixteenth day after the actual date the initial
decision is issued.
(1) The notice sets forth the specific findings of fact and
conclusions of law in the initial decision that are subject to review
by the Associate Administrator.
(2) Parties may file one brief on review to the Associate
Administrator or rely on their posthearing briefs to the hearing
officer. Briefs on review shall be filed not later than 10 days after
service of the notice of review. Filing and service of briefs on review
shall be by personal delivery.
[[Page 54012]]
(3) The Associate Administrator issues a final agency decision and
order within 30 days of the due date of the briefs on review. If the
Associate Administrator finds that the respondent is not in compliance
with any Act or any regulation, agreement or document of conveyance
issued under such Act, the final agency order includes a statement of
corrective action, if appropriate, and identifies sanctions for
continued noncompliance.
Sec. 16.243 Consent orders.
(a) The agency attorney and the respondents may agree at any time
before the issuance of a final decision and order to dispose of the
case by issuance of a consent order. Good faith efforts to resolve a
complaint through issuance of a consent order may continue throughout
the administrative process. Except as provided in Sec. 16.209, such
efforts may not serve as the basis for extensions of the times set
forth in this part.
(b) A proposal for a consent order, specified in paragraph (a) of
this section, shall include:
(1) A proposed consent order;
(2) An admission of all jurisdictional facts;
(3) An express waiver of the right to further procedural steps and
of all rights of judicial review; and
(4) The hearing order, if issued, and an acknowledgment that the
hearing order may be used to construe the terms of the consent order.
(c) If the issuance of a consent order has been agreed upon by all
parties to the hearing, the proposed consent order shall be filed with
the hearing officer, along with a draft order adopting the consent
decree and dismissing the case, for the hearing officer's adoption.
(d) The deadline for the hearing officer's initial decision and the
final agency decision is extended by the amount of days elapsed between
the filing of the proposed consent order with the hearing officer and
the issuance of the hearing officer's order continuing the hearing.
(e) If the agency attorney and sponsor agree to dispose of a case
by issuance of a consent order before the FAA issues a hearing order,
the proposal for a consent order is submitted jointly to the official
authorized to issue a hearing order, together with a request to adopt
the consent order and dismiss the case. The official authorized to
issue the hearing order issues the consent order as an order of the FAA
and terminates the proceeding.
Subpart H--Judicial Review
Sec. 16.247 Judicial review of a final decision and order.
(a) A person may seek judicial review, in a United States Court of
Appeals, of a final decision and order of the Associate Administrator
as provided in 49 U.S.C. 46110 or section 519(b)(4) of the Airport and
Airway Improvement Act of 1982, as amended, (AAIA), 49 U.S.C. 47106(d)
and 47111(d). A party seeking judicial review of a final decision and
order shall file a petition for review with the Court not later than 60
days after a final decision and order under the AAIA has been served on
the party or within 60 days after the entry of an order under 49 U.S.C.
40101 et seq.
(b) The following do not constitute final decisions and orders
subject to judicial review:
(1) An FAA decision to dismiss a complaint without prejudice, as
set forth in Sec. 16.27;
(2) A Director's determination;
(3) An initial decision issued by a hearing officer at the
conclusion of a hearing;
(4) A Director's determination or an initial decision of a hearing
officer that becomes the final decision of the Associate Administrator
because it was not appealed within the applicable time periods provided
under Secs. 16.33(b) and 16.241(b).
Subpart I--Ex Parte Communications
Sec. 16.301 Definitions.
As used in this subpart:
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.
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
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.
Sec. 16.303 Prohibited ex parte communications.
(a) The prohibitions of this section shall apply from the time a
proceeding is noticed for hearing unless the person responsible for the
communication has knowledge that it will be noticed, in which case the
prohibitions shall apply at the time of the acquisition of such
knowledge.
(b) Except to the extent required for the disposition of ex parte
matters as authorized by law:
(1) No interested person outside the FAA and no FAA employee
participating as a party shall make or knowingly cause to be made to
any decisional employee an ex parte communication relevant to the
merits of the proceeding;
(2) No FAA employee shall make or knowingly cause to be made to any
interested person outside the FAA an ex parte communication relevant to
the merits of the proceeding; or
(3) Ex parte communications regarding solely matters of agency
procedure or practice are not prohibited by this section.
Sec. 16.305 Procedures for handling ex parte communications.
A decisional employee who receives or who makes or knowingly causes
to be made a communication prohibited by Sec. 16.303 shall place in the
public record of the proceeding:
(a) All such written communications;
(b) Memoranda stating the substance of all such oral
communications; and
(c) All written responses, and memoranda stating the substance of
all oral responses, to the materials described in paragraphs (a) and
(b) of this section.
Sec. 16.307 Requirement to show cause and imposition of sanction.
(a) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of Sec. 16.303, the Associate
Administrator or his designee or the hearing officer may, to the extent
consistent with the interests of justice and the policy of the
underlying statutes, require the party to show cause why his or her
claim or interest in the proceeding should not be dismissed, denied,
disregarded, or otherwise adversely affected on account of such
violation.
(b) The Associate Administrator may, to the extent consistent with
the interests of justice and the policy of the underlying statutes
administered by the FAA, consider a violation of this subpart
sufficient grounds for a decision adverse to a party who has knowingly
committed such violation or knowingly caused such violation to occur.
Issued in Washington, DC, on October 8, 1996.
David R. Hinson,
Administrator.
[FR Doc. 96-26180 Filed 10-10-96; 8:45 am]
BILLING CODE 4910-13-M