CHAPTER 461—INVESTIGATIONS AND PROCEEDINGS

§46101. Complaints and investigations

(a) General.—(1) A person may file a complaint in writing with the Secretary of Transportation (or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator) about a person violating this part or a requirement prescribed under this part. Except as provided in subsection (b) of this section, the Secretary or Administrator shall investigate the complaint if a reasonable ground appears to the Secretary or Administrator for the investigation.

(2) On the initiative of the Secretary of Transportation or the Administrator, as appropriate, the Secretary or Administrator may conduct an investigation, if a reasonable ground appears to the Secretary or Administrator for the investigation, about—

(A) a person violating this part or a requirement prescribed under this part; or

(B) any question that may arise under this part.

(3) The Secretary of Transportation or Administrator may dismiss a complaint without a hearing when the Secretary or Administrator is of the opinion that the complaint does not state facts that warrant an investigation or action.

(4) After notice and an opportunity for a hearing and subject to section 40105(b) of this title, the Secretary of Transportation or Administrator shall issue an order to compel compliance with this part if the Secretary or Administrator finds in an investigation under this subsection that a person is violating this part.

(b) Complaints Against Members of Armed Forces.—The Secretary of Transportation or Administrator shall refer a complaint against a member of the armed forces of the United States performing official duties to the Secretary of the department concerned for action. Not later than 90 days after receiving the complaint, the Secretary of that department shall inform the Secretary of Transportation or Administrator of the action taken on the complaint, including any corrective or disciplinary action taken.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1226.)

In subsection (a)(1), the words “the Secretary of Transportation (or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator) about a person violating this part or a requirement prescribed under this part” are substituted for “the Secretary of Transportation or the Board, as to matters within their respective jurisdictions . . . with respect to anything done or omitted to be done by any person in contravention of any provisions of this chapter, or of any requirement established pursuant thereto” for clarity and because of the restatement. The words “Except as provided in subsection (b) of this section” are added because of the restatement of the source provisions in subsection (b) of this section. The words “If the person complained against shall not satisfy the complaint and” are omitted as surplus.

In subsection (a)(2), before clause (A), the words “the Secretary of Transportation or the Administrator, as appropriate” are substituted for “The Secretary of Transportation or Board, with respect to matters within their respective jurisdictions” to eliminate unnecessary words. The words “if a reasonable ground appears to the Secretary or Administrator for the investigation” are substituted for 49 App.:1482(b) (last sentence) for clarity and to eliminate unnecessary words. Clause (A) is substituted for “in any case and as to any matter or thing within their respective jurisdictions, concerning which complaint is authorized to be made to or before the Secretary of Transportation or Board by any provision of this chapter . . . or relating to the enforcement of any of the provisions of this chapter” for clarity and to eliminate unnecessary words.

In subsection (a)(4), the words “an opportunity for a” are added for consistency in the revised title and with other titles of the United States Code. The words “compel compliance with this part” are substituted for “compel such person to comply therewith” for clarity. The words “in an investigation under this subsection” are substituted for “in any investigation instituted upon complaint or upon their own initiative” to eliminate unnecessary words. The words “is violating this part” are substituted for “has failed to comply with any provision of this chapter or any requirement established pursuant thereto” for clarity and to eliminate unnecessary words. The words “with respect to matters within their jurisdiction” are omitted as unnecessary because of the restatement.

§46102. Proceedings

(a) Conducting Proceedings.—Subject to subchapter II of chapter 5 of title 5, the Secretary of Transportation (or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator) may conduct proceedings in a way conducive to justice and the proper dispatch of business.

(b) Appearance.—A person may appear and be heard before the Secretary and the Administrator in person or by an attorney. The Secretary may appear and participate as an interested party in a proceeding the Administrator conducts under section 40113(a) of this title.

(c) Recording and Public Access.—Official action taken by the Secretary and Administrator under this part shall be recorded. Proceedings before the Secretary and Administrator shall be open to the public on the request of an interested party unless the Secretary or Administrator decides that secrecy is required because of national defense.

(d) Conflicts of Interest.—The Secretary, the Administrator, or an officer or employee of the Administration may not participate in a proceeding referred to in subsection (a) of this section in which the individual has a pecuniary interest.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1226.)

In subsection (a), the cross-reference to chapter 7 of title 5 is omitted as unnecessary.

In subsection (b), the text of 49 App.:1481 (4th sentence words after last comma) is omitted as obsolete. The words “National Transportation Safety Board” were substituted for “Board” in 49 App.:1481 (4th sentence) because 49 App.:1655(d) transferred all functions, duties, and powers of the Civil Aeronautics Board under titles VI and VII of the Federal Aviation Act of 1958 (Public Law 85–726, 72 Stat. 775) to the Secretary of Transportation to be carried out through the former National Transportation Safety Board in the Department of Transportation. Title VI includes sections 602 and 609 [49 App.:1422, 1429], that provide for appeals to the Civil Aeronautics Board (subsequently transferred to the National Transportation Safety Board), and section 611(e) [49 App.:1431(e)], that provides for appeals to the National Transportation Safety Board. Under 49 App.:1902(a), the National Transportation Safety Board in the Department of Transportation was replaced by an independent National Transportation Safety Board outside the Department, and 49 App.:1903(a)(9)(A) gave the independent Board the authority to review appeals from actions of the Secretary under 49 App.:1422, 1429, and 1431(e).

In subsection (c), the words “vote and” are omitted as surplus.

In subsection (d), the words “officer or employee of the Administration” are substituted for “member” for clarity and consistency in the revised title and with other titles of the United States Code. The words “hearing or” are omitted as surplus. The words “referred to in subsection (a) of this section” are added for clarity.

§46103. Service of notice, process, and actions

(a) Designating Agents.—(1) Each air carrier and foreign air carrier shall designate an agent on whom service of notice and process in a proceeding before, and an action of, the Secretary of Transportation (or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator) may be made.

(2) The designation—

(A) shall be in writing and filed with the Secretary or Administrator; and

(B) may be changed in the same way as originally made.

(b) Service.—(1) Service may be made—

(A) by personal service;

(B) on a designated agent; or

(C) by certified or registered mail to the person to be served or the designated agent of the person.

(2) The date of service made by certified or registered mail is the date of mailing.

(c) Serving Agents.—Service on an agent designated under this section shall be made at the office or usual place of residence of the agent. If an air carrier or foreign air carrier does not have a designated agent, service may be made by posting the notice, process, or action in the office of the Secretary or Administrator.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1227.)

In subsection (a)(1), the words “in a proceeding before” are added for clarity. The word “action” is substituted for “orders, decisions, and requirements” to eliminate unnecessary words. The words “for and on behalf of said carrier” are omitted as surplus.

In subsection (a)(2)(B), the words “from time to time” are omitted as surplus.

In subsection (b)(1)(B), the words “in writing for the purpose” are omitted as surplus.

In subsection (b)(1)(C), the word “addressed” is omitted as surplus.

In subsection (b)(2), the word “date” is substituted for “time” for clarity and consistency.

In subsection (c), the words “with like effect as if made personally upon such carrier” are omitted as surplus.

§46104. Evidence

(a) General.—In conducting a hearing or investigation under this part, the Secretary of Transportation (or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator) may—

(1) subpena witnesses and records related to a matter involved in the hearing or investigation from any place in the United States to the designated place of the hearing or investigation;

(2) administer oaths;

(3) examine witnesses; and

(4) receive evidence at a place in the United States the Secretary or Administrator designates.

(b) Compliance With Subpenas.—If a person disobeys a subpena, the Secretary, the Administrator, or a party to a proceeding before the Secretary or Administrator may petition a court of the United States to enforce the subpena. A judicial proceeding to enforce a subpena under this section may be brought in the jurisdiction in which the proceeding or investigation is conducted. The court may punish a failure to obey an order of the court to comply with the subpena as a contempt of court.

(c) Depositions.—(1) In a proceeding or investigation, the Secretary or Administrator may order a person to give testimony by deposition and to produce records. If a person fails to be deposed or to produce records, the order may be enforced in the same way a subpena may be enforced under subsection (b) of this section.

(2) A deposition may be taken before an individual designated by the Secretary or Administrator and having the power to administer oaths.

(3) Before taking a deposition, the party or the attorney of the party proposing to take the deposition must give reasonable notice in writing to the opposing party or the attorney of record of that party. The notice shall state the name of the witness and the time and place of taking the deposition.

(4) The testimony of a person deposed under this subsection shall be under oath. The person taking the deposition shall prepare, or cause to be prepared, a transcript of the testimony taken. The transcript shall be subscribed by the deponent. Each deposition shall be filed promptly with the Secretary or Administrator.

(5) If the laws of a foreign country allow, the testimony of a witness in that country may be taken by deposition—

(A) by a consular officer or an individual commissioned by the Secretary or Administrator or agreed on by the parties by written stipulation filed with the Secretary or Administrator; or

(B) under letters rogatory issued by a court of competent jurisdiction at the request of the Secretary or Administrator.

(d) Witness Fees and Mileage and Certain Foreign Country Expenses.—A witness summoned before the Secretary or Administrator or whose deposition is taken under this section and the individual taking the deposition are each entitled to the same fee and mileage that the witness and individual would have been paid for those services in a court of the United States. Under regulations of the Secretary or Administrator, the Secretary or Administrator shall pay the necessary expenses incident to executing, in another country, a commission or letter rogatory issued at the initiative of the Secretary or Administrator.

(e) Designating Employees To Conduct Hearings.—When designated by the Secretary or Administrator, an employee appointed under section 3105 of title 5 may conduct a hearing, subpena witnesses, administer oaths, examine witnesses, and receive evidence at a place in the United States the Secretary or Administrator designates. On request of a party, the Secretary or Administrator shall hear or receive argument.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1227.)

In this section, the word “Administrator” in section 313(c) of the Federal Aviation Act of 1958 (Public Law 85–726, 72 Stat. 753) is retained on authority of 49:106(g).

Subsection (a)(1) is substituted for “sign and issue subpenas”, “shall have the power to require by subpena the attendance and testimony of witnesses and the production of all books, papers, and documents relating to any matter under investigation”, and “The attendance of witnesses, and the production of books, papers, and documents, may be required from any place in the United States, at any designated place of hearing” in 49 App.:1484 for clarity and consistency in the revised title and with other titles of the United States Code and to eliminate unnecessary words.

In subsection (b), the words “petition a court of the United States to enforce the subpena” are substituted for “invoke the aid of any court of the United States in requiring attendance and testimony of witnesses and the production of such books, papers, and documents under the provisions of this section” in 49 App.:1484(c) to eliminate unnecessary words. The words “to enforce a subpena under this section” are substituted for “in case of contumacy or refusal to obey a subpena issued to any person, issue an order requiring such person to appear before the Board (and produce books, papers, or documents if so ordered) and give evidence touching the matter in question” in 49 App.:1484(d) to eliminate unnecessary words.

In subsection (c)(1), the words “pending before it, at any stage of such proceeding or investigation” in 49 App.:1484(e) are omitted as surplus. The words “a person to give” are substituted for “to be taken”, and the words “to produce records” are added, for clarity and consistency. The last sentence is substituted for 49 App.:1484(e) (last sentence) for clarity and consistency and to eliminate unnecessary words.

In subsection (c)(4), the words “shall be cautioned . . . to testify the whole truth, and shall be carefully examined” in 49 App.:1484(f) are omitted as surplus. The words “shall be under oath” are substituted for “shall be required to swear (or affirm, if he so requests)” for consistency and because of 1:1.

In subsection (d), the words “that the witness and individual would have been” are added for clarity and consistency in the revised title and with other titles of the Code. The words “fees, charges, or” and “on the subject” are omitted as surplus.

In subsection (e), the words “duly . . . for such purpose” are omitted as surplus. The words “employee appointed under section 3105 of title 5” are substituted for “examiner”, and the words “subpena witnesses” are substituted for “sign and issue subpenas”, for consistency in the revised title and with other titles of the Code. The words “In all cases heard by an examiner or a single member” are omitted as surplus.

Section Referred to in Other Sections

This section is referred to in sections 106, 47122 of this title.

§46105. Regulations and orders

(a) Effectiveness of Orders.—Except as provided in this part, a regulation prescribed or order issued by the Secretary of Transportation (or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator) takes effect within a reasonable time prescribed by the Secretary or Administrator. The regulation or order remains in effect under its own terms or until superseded. Except as provided in this part, the Secretary or Administrator may amend, modify, or suspend an order in the way, and by giving the notice, the Secretary or Administrator decides.

(b) Contents and Service of Orders.—An order of the Secretary or Administrator shall include the findings of fact on which the order is based and shall be served on the parties to the proceeding and the persons affected by the order.

(c) Emergencies.—When the Administrator is of the opinion that an emergency exists related to safety in air commerce and requires immediate action, the Administrator, on the initiative of the Administrator or on complaint, may prescribe regulations and issue orders immediately to meet the emergency, with or without notice and without regard to this part and subchapter II of chapter 5 of title 5. The Administrator shall begin a proceeding immediately about an emergency under this subsection and give preference, when practicable, to the proceeding.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1228.)

In subsection (a), the words “under its own terms or until superseded” are substituted for “until their further order, rule, or regulation, or for a specified period of time, as shall be prescribed in the order, rule, or regulation” for clarity and to eliminate unnecessary words. The word “amend” is added for consistency in the revised title. The text of 49 App.:1485(e) is omitted as surplus.

In subsection (c), the words “without complaint” and “if he so orders” are omitted as surplus. The words “prescribe . . . issue” are substituted for “make” for consistency in the revised title and with other titles of the United States Code. The words “just and reasonable” and “as may be essential in the interest of safety in air commerce” are omitted as surplus. The words “without regard to this part and subchapter II of chapter 5 of title 5” are substituted for “without answer or other form of pleading by the interested person or persons, and . . . hearing, or the making or filing of a report” to eliminate unnecessary words. The words “over all others under this chapter” are omitted as surplus.

§46106. Enforcement by the Secretary of Transportation and Administrator of the Federal Aviation Administration

The Secretary of Transportation (or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator) may bring a civil action against a person in a district court of the United States to enforce this part or a requirement or regulation prescribed, or an order or any term of a certificate or permit issued, under this part. The action may be brought in the judicial district in which the person does business or the violation occurred.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1229.)

The words “their duly authorized agents” are omitted as surplus. The words “may bring a civil action” are substituted for “may apply” for consistency in the revised title and with other titles of the United States Code and rule 2 of the Federal Rules of Civil Procedure (28 App. U.S.C.). The word “prescribed” is added for consistency in the revised title and with other titles of the Code. The words “condition, or limitation” are omitted as being included in “term”. The text of 49 App.:1487(a) (words after semicolon related to Secretary and CAB) is omitted as surplus because of 28:1651 and rule 81(b) of the Federal Rules of Civil Procedure (28 App. U.S.C.).

§46107. Enforcement by the Attorney General

(a) Civil Actions To Enforce Section 40106(b).—The Attorney General may bring a civil action in a district court of the United States against a person to enforce section 40106(b) of this title. The action may be brought in the judicial district in which the person does business or the violation occurred.

(b) Civil Actions To Enforce This Part.—(1) On request of the Secretary of Transportation (or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator), the Attorney General may bring a civil action in an appropriate court—

(A) to enforce this part or a requirement or regulation prescribed, or an order or any term of a certificate or permit issued, under this part; and

(B) to prosecute a person violating this part or a requirement or regulation prescribed, or an order or any term of a certificate or permit issued, under this part.

(2) The costs and expenses of a civil action shall be paid out of the appropriations for the expenses of the courts of the United States.

(c) Participation of Secretary or Administrator.—On request of the Attorney General, the Secretary or Administrator, as appropriate, may participate in a civil action under this part.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1229.)

In subsection (a), the words “may bring a civil action” are substituted for “may apply” for consistency in the revised title and with other titles of the United States Code and rule 2 of the Federal Rules of Civil Procedure (28 App. U.S.C.). The text of 49 App.:1487(a) (words after semicolon related to Attorney General) is omitted as surplus because of 28:1651 and rule 81(b) of the Federal Rules of Civil Procedure.

In subsection (b)(1), before clause (A), the words “Attorney General” are substituted for “any district attorney of the United States to whom the Board or Secretary of Transportation may apply”, and the words “under the direction of the Attorney General” are omitted, because of 28:503 and 509. The words “bring a civil action” are substituted for “institute . . . and to prosecute . . . all necessary proceedings” for consistency in the revised title and with other titles of the Code and rule 2 of the Federal Rules of Civil Procedure. In clauses (A) and (B), the words “prescribed” and “issued” are added for consistency in the revised title and with other titles of the Code. The words “condition, or limitation” are omitted as being included in “term”.

In subsection (b)(2), the words “civil action” are substituted for “prosecutions” for consistency in the revised title and with other titles of the Code.

In subsection (c), the words “civil action” are substituted for “proceeding in court” for consistency in the revised title and with other titles of the Code and rule 2 of the Federal Rules of Civil Procedure.

§46108. Enforcement of certificate requirements by interested persons

An interested person may bring a civil action in a district court of the United States against a person to enforce section 41101(a)(1) of this title. The action may be brought in the judicial district in which the defendant does business or the violation occurred.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1229.)

The words “interested person” are substituted for “party in interest” for consistency. The words “may bring a civil action” are substituted for “may apply” for consistency in the revised title and with other titles of the United States Code and rule 2 of the Federal Rules of Civil Procedure (28 App. U.S.C.). The text of 49 App.:1487(a) (words after semicolon related to party in interest) is omitted as surplus because of 28:1651 and rule 81(b) of the Federal Rules of Civil Procedure.

§46109. Joinder and intervention

A person interested in or affected by a matter under consideration in a proceeding before the Secretary of Transportation or civil action to enforce this part or a requirement or regulation prescribed, or an order or any term of a certificate or permit issued, under this part may be joined as a party or permitted to intervene in the proceeding or civil action.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1230.)

The words “proceeding . . . or civil action” are substituted for “proceeding . . . whether such proceedings be instituted . . . or be begun originally in any court of the United States” for consistency in the revised title and with other titles of the United States Code and rule 2 of the Federal Rules of Civil Procedure (28 App. U.S.C.). The words “prescribed . . . issued” are added for consistency in the revised title and with other titles of the Code. The words “condition, or limitation” are omitted as being included in “term”. The words “may be joined as a party or permitted to intervene” are substituted for “it shall be lawful to include as parties, or to permit the intervention of” for clarity. The text of 49 App.:1489 (words after semicolon) is omitted as surplus.

§46110. Judicial review

(a) Filing and Venue.—Except for an order related to a foreign air carrier subject to disapproval by the President under section 41307 or 41509(f) of this title, a person disclosing a substantial interest in an order issued by the Secretary of Transportation (or the Administrator of the Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out by the Administrator) under this part may apply for review of the order by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business. The petition must be filed not later than 60 days after the order is issued. The court may allow the petition to be filed after the 60th day only if there are reasonable grounds for not filing by the 60th day.

(b) Judicial Procedures.—When a petition is filed under subsection (a) of this section, the clerk of the court immediately shall send a copy of the petition to the Secretary or Administrator, as appropriate. The Secretary or Administrator shall file with the court a record of any proceeding in which the order was issued, as provided in section 2112 of title 28.

(c) Authority of Court.—When the petition is sent to the Secretary or Administrator, the court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the order and may order the Secretary or Administrator to conduct further proceedings. After reasonable notice to the Secretary or Administrator, the court may grant interim relief by staying the order or taking other appropriate action when good cause for its action exists. Findings of fact by the Secretary or Administrator, if supported by substantial evidence, are conclusive.

(d) Requirement for Prior Objection.—In reviewing an order under this section, the court may consider an objection to an order of the Secretary or Administrator only if the objection was made in the proceeding conducted by the Secretary or Administrator or if there was a reasonable ground for not making the objection in the proceeding.

(e) Supreme Court Review.—A decision by a court under this section may be reviewed only by the Supreme Court under section 1254 of title 28.

(Pub. L. 103–272, §1(e), July 5, 1994, 108 Stat. 1230.)

In subsections (a)–(d), the word “Administrator” in section 1006 of the Federal Aviation Act of 1958 (Public Law 85–726, 72 Stat. 795) is retained on authority of 49:106(g).

In subsection (a), the words “affirmative or negative” are omitted as surplus. The words “is issued” are substituted for “the entry of” for consistency in the revised title and with other titles of the United States Code.

In subsection (b), the words “if any” are omitted as surplus. The words “of any proceeding” are added for clarity. The words “complained of” are omitted as surplus.

In subsection (c), the word “amend” is added for consistency in the revised title. The word “interim” is substituted for “interlocutory” for clarity. The words “taking other appropriate action” are substituted for “by such mandatory or other relief as may be appropriate” for clarity and to eliminate unnecessary words.

In subsection (d), the words “made in the proceeding conducted by” are substituted for “urged before” for clarity.

Section Referred to in Other Sections

This section is referred to in sections 1153, 41108, 41307, 44106, 44709, 44710, 46301, 47532 of this title.