[Title 14 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2003 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
14
Parts 1 to 59
Revised as of January 1, 2003
Aeronautics and Space
Containing a codification of documents of general
applicability and future effect
As of January 1, 2003
With Ancillaries
Published by:
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 14:
Chapter I--Federal Aviation Administration,
Department of Transportation (parts 1 to 59) 3
Finding Aids:
Material Approved for Incorporation by Reference........ 893
Table of CFR Titles and Chapters........................ 1079
Alphabetical List of Agencies Appearing in the CFR...... 1097
List of CFR Sections Affected........................... 1107
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 14 CFR 1.1 refers
to title 14, part 1,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
and parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2003.
[[Page ix]]
THIS TITLE
Title 14--Aeronautics and Space is composed of five volumes. The
parts in these volumes are arranged in the following order: parts 1-59,
60-139, 140-199, 200-1199, and part 1200-End. The first three volumes
containing parts 1-199 are comprised of chapter I--Federal Aviation
Administration, Department of Transportation (DOT). The fourth volume
containing parts 200-1199 is comprised of chapter II--Office of the
Secretary, DOT (Aviation Proceedings) and chapter III--Commercial Space
Transportation, Federal Aviation Administration, DOT. The fifth volume
containing part 1200-End is comprised of chapter V--National Aeronautics
and Space Administration and chapter VI--Air Transportation System
Stabilization. The contents of these volumes represent all current
regulations codified under this title of the CFR as of January 1, 2003.
[[Page x]]
[[Page 1]]
TITLE 14--AERONAUTICS AND SPACE
(This book contains parts 1 to 59)
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Part
chapter i--Federal Aviation Administration, Department of
Transportation............................................ 1
Cross References: Department of the Air Force; Use of Air Force
installations by other than U.S. Department of Defense aircraft: See
National Defense, 32 CFR Part 855.
Federal Communications Commission, aviation services: See
Telecommunication, 47 CFR Part 87.
[[Page 3]]
CHAPTER I--FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
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SUBCHAPTER A--DEFINITIONS
Part Page
1 Definitions and abbreviations............... 5
SUBCHAPTER B--PROCEDURAL RULES
11 General rulemaking procedures............... 18
13 Investigative and enforcement procedures.... 28
14 Rules implementing the Equal Access to
Justice Act of 1980..................... 71
15 Administrative claims under Federal Tort
Claims Act.............................. 77
16 Rules of practice for Federally-assisted
airport enforcement poceedings.......... 82
17 Procedures for protests and contracts
disputes................................ 97
SUBCHAPTER C--AIRCRAFT
21 Certification procedures for products and
parts................................... 113
23 Airworthiness standards: Normal, utility,
acrobatic, and commuter category
airplanes............................... 160
25 Airworthiness standards: Transport category
airplanes............................... 334
27 Airworthiness standards: Normal category
rotorcraft.............................. 532
29 Airworthiness standards: Transport category
rotorcraft.............................. 612
31 Airworthiness standards: Manned free
balloons................................ 727
33 Airworthiness standards: Aircraft engines... 734
34 Fuel venting and exhaust emission
requirements for turbine engine powered
airplanes............................... 765
35 Airworthiness standards: Propellers......... 775
36 Noise standards: Aircraft type and
airworthiness certification............. 779
39 Airworthiness directives.................... 849
[[Page 4]]
43 Maintenance, preventive maintenance,
rebuilding, and alteration.............. 851
45 Identification and registration marking..... 866
47 Aircraft registration....................... 872
49 Recording of aircraft titles and security
documents............................... 884
50-59 [Reserved]
[[Page 5]]
SUBCHAPTER A--DEFINITIONS
PART 1--DEFINITIONS AND ABBREVIATIONS--Table of Contents
Sec.
1.1 General definitions.
1.2 Abbreviations and symbols.
1.3 Rules of construction.
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 1.1 General definitions.
As used in Subchapters A through K of this chapter, unless the
context requires otherwise:
Administrator means the Federal Aviation Administrator or any person
to whom he has delegated his authority in the matter concerned.
Aerodynamic coefficients means non-dimensional coefficients for
aerodynamic forces and moments.
Air carrier means a person who undertakes directly by lease, or
other arrangement, to engage in air transportation.
Air commerce means interstate, overseas, or foreign air commerce or
the transportation of mail by aircraft or any operation or navigation of
aircraft within the limits of any Federal airway or any operation or
navigation of aircraft which directly affects, or which may endanger
safety in, interstate, overseas, or foreign air commerce.
Aircraft means a device that is used or intended to be used for
flight in the air.
Aircraft engine means an engine that is used or intended to be used
for propelling aircraft. It includes turbosuperchargers, appurtenances,
and accessories necessary for its functioning, but does not include
propellers.
Airframe means the fuselage, booms, nacelles, cowlings, fairings,
airfoil surfaces (including rotors but excluding propellers and rotating
airfoils of engines), and landing gear of an aircraft and their
accessories and controls.
Airplane means an engine-driven fixed-wing aircraft heavier than
air, that is supported in flight by the dynamic reaction of the air
against its wings.
Airport means an area of land or water that is used or intended to
be used for the landing and takeoff of aircraft, and includes its
buildings and facilities, if any.
Airship means an engine-driven lighter-than-air aircraft that can be
steered.
Air traffic means aircraft operating in the air or on an airport
surface, exclusive of loading ramps and parking areas.
Air traffic clearance means an authorization by air traffic control,
for the purpose of preventing collision between known aircraft, for an
aircraft to proceed under specified traffic conditions within controlled
airspace.
Air traffic control means a service operated by appropriate
authority to promote the safe, orderly, and expeditious flow of air
traffic.
Air transportation means interstate, overseas, or foreign air
transportation or the transportation of mail by aircraft.
Alert Area. An alert area is established to inform pilots of a
specific area wherein a high volume of pilot training or an unusual type
of aeronautical activity is conducted.
Alternate airport means an airport at which an aircraft may land if
a landing at the intended airport becomes inadvisable.
Altitude engine means a reciprocating aircraft engine having a rated
takeoff power that is producible from sea level to an established higher
altitude.
Appliance means any instrument, mechanism, equipment, part,
apparatus, appurtenance, or accessory, including communications
equipment, that is used or intended to be used in operating or
controlling an aircraft in flight, is installed in or attached to the
aircraft, and is not part of an airframe, engine, or propeller.
Approved, unless used with reference to another person, means
approved by the Administrator.
Area navigation (RNAV) means a method of navigation that permits
aircraft operations on any desired course within the coverage of
station-referenced navigation signals or within the limits of self-
contained system capability.
[[Page 6]]
Area navigation low route means an area navigation route within the
airspace extending upward from 1,200 feet above the surface of the earth
to, but not including, 18,000 feet MSL.
Area navigation high route means an area navigation route within the
airspace extending upward from, and including, 18,000 feet MSL to flight
level 450.
Armed Forces means the Army, Navy, Air Force, Marine Corps, and
Coast Guard, including their regular and reserve components and members
serving without component status.
Autorotation means a rotorcraft flight condition in which the
lifting rotor is driven entirely by action of the air when the
rotorcraft is in motion.
Auxiliary rotor means a rotor that serves either to counteract the
effect of the main rotor torque on a rotorcraft or to maneuver the
rotorcraft about one or more of its three principal axes.
Balloon means a lighter-than-air aircraft that is not engine driven,
and that sustains flight through the use of either gas buoyancy or an
airborne heater.
Brake horsepower means the power delivered at the propeller shaft
(main drive or main output) of an aircraft engine.
Calibrated airspeed means the indicated airspeed of an aircraft,
corrected for position and instrument error. Calibrated airspeed is
equal to true airspeed in standard atmosphere at sea level.
Canard means the forward wing of a canard configuration and may be a
fixed, movable, or variable geometry surface, with or without control
surfaces.
Canard configuration means a configuration in which the span of the
forward wing is substantially less than that of the main wing.
Category:
(1) As used with respect to the certification, ratings, privileges,
and limitations of airmen, means a broad classification of aircraft.
Examples include: airplane; rotorcraft; glider; and lighter-than-air;
and
(2) As used with respect to the certification of aircraft, means a
grouping of aircraft based upon intended use or operating limitations.
Examples include: transport, normal, utility, acrobatic, limited,
restricted, and provisional.
Category A, with respect to transport category rotorcraft, means
multiengine rotorcraft designed with engine and system isolation
features specified in Part 29 and utilizing scheduled takeoff and
landing operations under a critical engine failure concept which assures
adequate designated surface area and adequate performance capability for
continued safe flight in the event of engine failure.
Category B, with respect to transport category rotorcraft, means
single-engine or multiengine rotorcraft which do not fully meet all
Category A standards. Category B rotorcraft have no guaranteed stay-up
ability in the event of engine failure and unscheduled landing is
assumed.
Category II operations, with respect to the operation of aircraft,
means a straight-in ILS approach to the runway of an airport under a
Category II ILS instrument approach procedure issued by the
Administrator or other appropriate authority.
Category III operations, with respect to the operation of aircraft,
means an ILS approach to, and landing on, the runway of an airport using
a Category III ILS instrument approach procedure issued by the
Administrator or other appropriate authority.
Category IIIa operations, an ILS approach and landing with no
decision height (DH), or a DH below 100 feet (30 meters), and
controlling runway visual range not less than 700 feet (200 meters).
Category IIIb operations, an ILS approach and landing with no DH, or
with a DH below 50 feet (15 meters), and controlling runway visual range
less than 700 feet (200 meters), but not less than 150 feet (50 meters).
Category IIIc operations, an ILS approach and landing with no DH and
no runway visual range limitation.
Ceiling means the height above the earth's surface of the lowest
layer of clouds or obscuring phenomena that is reported as ``broken'',
``overcast'', or ``obscuration'', and not classified as ``thin'' or
``partial''.
Civil aircraft means aircraft other than public aircraft.
[[Page 7]]
Class:
(1) As used with respect to the certification, ratings, privileges,
and limitations of airmen, means a classification of aircraft within a
category having similar operating characteristics. Examples include:
single engine; multiengine; land; water; gyroplane; helicopter; airship;
and free balloon; and
(2) As used with respect to the certification of aircraft, means a
broad grouping of aircraft having similar characteristics of propulsion,
flight, or landing. Examples include: airplane; rotorcraft; glider;
balloon; landplane; and seaplane.
Clearway means:
(1) For turbine engine powered airplanes certificated after August
29, 1959, an area beyond the runway, not less than 500 feet wide,
centrally located about the extended centerline of the runway, and under
the control of the airport authorities. The clearway is expressed in
terms of a clearway plane, extending from the end of the runway with an
upward slope not exceeding 1.25 percent, above which no object nor any
terrain protrudes. However, threshold lights may protrude above the
plane if their height above the end of the runway is 26 inches or less
and if they are located to each side of the runway.
(2) For turbine engine powered airplanes certificated after
September 30, 1958, but before August 30, 1959, an area beyond the
takeoff runway extending no less than 300 feet on either side of the
extended centerline of the runway, at an elevation no higher than the
elevation of the end of the runway, clear of all fixed obstacles, and
under the control of the airport authorities.
Climbout speed, with respect to rotorcraft, means a referenced
airspeed which results in a flight path clear of the height-velocity
envelope during initial climbout.
Commercial operator means a person who, for compensation or hire,
engages in the carriage by aircraft in air commerce of persons or
property, other than as an air carrier or foreign air carrier or under
the authority of Part 375 of this title. Where it is doubtful that an
operation is for ``compensation or hire'', the test applied is whether
the carriage by air is merely incidental to the person's other business
or is, in itself, a major enterprise for profit.
Controlled airspace means an airspace of defined dimensions within
which air traffic control service is provided to IFR flights and to VFR
flights in accordance with the airspace classification.
Note: Controlled airspace is a generic term that covers Class A,
Class B, Class C, Class D, and Class E airspace.
Controlled Firing Area. A controlled firing area is established to
contain activities, which if not conducted in a controlled environment,
would be hazardous to nonparticipating aircraft.
Crewmember means a person assigned to perform duty in an aircraft
during flight time.
Critical altitude means the maximum altitude at which, in standard
atmosphere, it is possible to maintain, at a specified rotational speed,
a specified power or a specified manifold pressure. Unless otherwise
stated, the critical altitude is the maximum altitude at which it is
possible to maintain, at the maximum continuous rotational speed, one of
the following:
(1) The maximum continuous power, in the case of engines for which
this power rating is the same at sea level and at the rated altitude.
(2) The maximum continuous rated manifold pressure, in the case of
engines, the maximum continuous power of which is governed by a constant
manifold pressure.
Critical engine means the engine whose failure would most adversely
affect the performance or handling qualities of an aircraft.
Decision height, with respect to the operation of aircraft, means
the height at which a decision must be made, during an ILS or PAR
instrument approach, to either continue the approach or to execute a
missed approach.
Equivalent airspeed means the calibrated airspeed of an aircraft
corrected for adiabatic compressible flow for the particular altitude.
Equivalent airspeed is equal to calibrated airspeed in standard
atmosphere at sea level.
Extended over-water operation means--
(1) With respect to aircraft other than helicopters, an operation
over water at a horizontal distance of more
[[Page 8]]
than 50 nautical miles from the nearest shoreline; and
(2) With respect to helicopters, an operation over water at a
horizontal distance of more than 50 nautical miles from the nearest
shoreline and more than 50 nautical miles from an off-shore heliport
structure.
External load means a load that is carried, or extends, outside of
the aircraft fuselage.
External-load attaching means means the structural components used
to attach an external load to an aircraft, including external-load
containers, the backup structure at the attachment points, and any
quick-release device used to jettison the external load.
Final takeoff speed means the speed of the airplane that exists at
the end of the takeoff path in the en route configuration with one
engine inoperative.
Fireproof--
(1) With respect to materials and parts used to confine fire in a
designated fire zone, means the capacity to withstand at least as well
as steel in dimensions appropriate for the purpose for which they are
used, the heat produced when there is a severe fire of extended duration
in that zone; and
(2) With respect to other materials and parts, means the capacity to
withstand the heat associated with fire at least as well as steel in
dimensions appropriate for the purpose for which they are used.
Fire resistant--
(1) With respect to sheet or structural members means the capacity
to withstand the heat associated with fire at least as well as aluminum
alloy in dimensions appropriate for the purpose for which they are used;
and
(2) With respect to fluid-carrying lines, fluid system parts,
wiring, air ducts, fittings, and powerplant controls, means the capacity
to perform the intended functions under the heat and other conditions
likely to occur when there is a fire at the place concerned.
Flame resistant means not susceptible to combustion to the point of
propagating a flame, beyond safe limits, after the ignition source is
removed.
Flammable, with respect to a fluid or gas, means susceptible to
igniting readily or to exploding.
Flap extended speed means the highest speed permissible with wing
flaps in a prescribed extended position.
Flash resistant means not susceptible to burning violently when
ignited.
Flightcrew member means a pilot, flight engineer, or flight
navigator assigned to duty in an aircraft during flight time.
Flight level means a level of constant atmospheric pressure related
to a reference datum of 29.92 inches of mercury. Each is stated in three
digits that represent hundreds of feet. For example, flight level 250
represents a barometric altimeter indication of 25,000 feet; flight
level 255, an indication of 25,500 feet.
Flight plan means specified information, relating to the intended
flight of an aircraft, that is filed orally or in writing with air
traffic control.
Flight time means:
(1) Pilot time that commences when an aircraft moves under its own
power for the purpose of flight and ends when the aircraft comes to rest
after landing; or
(2) For a glider without self-launch capability, pilot time that
commences when the glider is towed for the purpose of flight and ends
when the glider comes to rest after landing.
Flight visibility means the average forward horizontal distance,
from the cockpit of an aircraft in flight, at which prominent unlighted
objects may be seen and identified by day and prominent lighted objects
may be seen and identified by night.
Foreign air carrier means any person other than a citizen of the
United States, who undertakes directly, by lease or other arrangement,
to engage in air transportation.
Foreign air commerce means the carriage by aircraft of persons or
property for compensation or hire, or the carriage of mail by aircraft,
or the operation or navigation of aircraft in the conduct or furtherance
of a business or vocation, in commerce between a place in the United
States and any place outside thereof; whether such commerce moves wholly
by aircraft or partly by aircraft and partly by other forms of
transportation.
[[Page 9]]
Foreign air transportation means the carriage by aircraft of persons
or property as a common carrier for compensation or hire, or the
carriage of mail by aircraft, in commerce between a place in the United
States and any place outside of the United States, whether that commerce
moves wholly by aircraft or partly by aircraft and partly by other forms
of transportation.
Forward wing means a forward lifting surface of a canard
configuration or tandem-wing configuration airplane. The surface may be
a fixed, movable, or variable geometry surface, with or without control
surfaces.
Glider means a heavier-than-air aircraft, that is supported in
flight by the dynamic reaction of the air against its lifting surfaces
and whose free flight does not depend principally on an engine.
Ground visibility means prevailing horizontal visibility near the
earth's surface as reported by the United States National Weather
Service or an accredited observer.
Go-around power or thrust setting means the maximum allowable in-
flight power or thrust setting identified in the performance data.
Gyrodyne means a rotorcraft whose rotors are normally engine-driven
for takeoff, hovering, and landing, and for forward flight through part
of its speed range, and whose means of propulsion, consisting usually of
conventional propellers, is independent of the rotor system.
Gyroplane means a rotorcraft whose rotors are not engine-driven,
except for initial starting, but are made to rotate by action of the air
when the rotorcraft is moving; and whose means of propulsion, consisting
usually of conventional propellers, is independent of the rotor system.
Helicopter means a rotorcraft that, for its horizontal motion,
depends principally on its engine-driven rotors.
Heliport means an area of land, water, or structure used or intended
to be used for the landing and takeoff of helicopters.
Idle thrust means the jet thrust obtained with the engine power
control level set at the stop for the least thrust position at which it
can be placed.
IFR conditions means weather conditions below the minimum for flight
under visual flight rules.
IFR over-the-top, with respect to the operation of aircraft, means
the operation of an aircraft over-the-top on an IFR flight plan when
cleared by air traffic control to maintain ``VFR conditions'' or ``VFR
conditions on top''.
Indicated airspeed means the speed of an aircraft as shown on its
pitot static airspeed indicator calibrated to reflect standard
atmosphere adiabatic compressible flow at sea level uncorrected for
airspeed system errors.
Instrument means a device using an internal mechanism to show
visually or aurally the attitude, altitude, or operation of an aircraft
or aircraft part. It includes electronic devices for automatically
controlling an aircraft in flight.
Interstate air commerce means the carriage by aircraft of persons or
property for compensation or hire, or the carriage of mail by aircraft,
or the operation or navigation of aircraft in the conduct or furtherance
of a business or vocation, in commerce between a place in any State of
the United States, or the District of Columbia, and a place in any other
State of the United States, or the District of Columbia; or between
places in the same State of the United States through the airspace over
any place outside thereof; or between places in the same territory or
possession of the United States, or the District of Columbia.
Interstate air transportation means the carriage by aircraft of
persons or property as a common carrier for compensation or hire, or the
carriage of mail by aircraft in commerce:
(1) Between a place in a State or the District of Columbia and
another place in another State or the District of Columbia;
(2) Between places in the same State through the airspace over any
place outside that State; or
(3) Between places in the same possession of the United States;
Whether that commerce moves wholly by aircraft of partly by aircraft and
partly by other forms of transportation.
Intrastate air transportation means the carriage of persons or
property as a
[[Page 10]]
common carrier for compensation or hire, by turbojet-powered aircraft
capable of carrying thirty or more persons, wholly within the same State
of the United States.
Kite means a framework, covered with paper, cloth, metal, or other
material, intended to be flown at the end of a rope or cable, and having
as its only support the force of the wind moving past its surfaces.
Landing gear extended speed means the maximum speed at which an
aircraft can be safely flown with the landing gear extended.
Landing gear operating speed means the maximum speed at which the
landing gear can be safely extended or retracted.
Large aircraft means aircraft of more than 12,500 pounds, maximum
certificated takeoff weight.
Lighter-than-air aircraft means aircraft that can rise and remain
suspended by using contained gas weighing less than the air that is
displaced by the gas.
Load factor means the ratio of a specified load to the total weight
of the aircraft. The specified load is expressed in terms of any of the
following: aerodynamic forces, inertia forces, or ground or water
reactions.
Long-range communication system (LRCS). A system that uses satellite
relay, data link, high frequency, or another approved communication
system which extends beyond line of sight.
Long-range navigation system (LRNS). An electronic navigation unit
that is approved for use under instrument flight rules as a primary
means of navigation, and has at least one source of navigational input,
such as inertial navigation system, global positioning system, Omega/
very low frequency, or Loran C.
Mach number means the ratio of true airspeed to the speed of sound.
Main rotor means the rotor that supplies the principal lift to a
rotorcraft.
Maintenance means inspection, overhaul, repair, preservation, and
the replacement of parts, but excludes preventive maintenance.
Major alteration means an alteration not listed in the aircraft,
aircraft engine, or propeller specifications--
(1) That might appreciably affect weight, balance, structural
strength, performance, powerplant operation, flight characteristics, or
other qualities affecting airworthiness; or
(2) That is not done according to accepted practices or cannot be
done by elementary operations.
Major repair means a repair:
(1) That, if improperly done, might appreciably affect weight,
balance, structural strength, performance, powerplant operation, flight
characteristics, or other qualities affecting airworthiness; or
(2) That is not done according to accepted practices or cannot be
done by elementary operations.
Manifold pressure means absolute pressure as measured at the
appropriate point in the induction system and usually expressed in
inches of mercury.
Maximum speed for stability characteristics, VFC/
MFC means a speed that may not be less than a speed midway
between maximum operating limit speed (VMO/MMO)
and demonstrated flight diving speed (VDF/MDF),
except that, for altitudes where the Mach number is the limiting factor,
MFC need not exceed the Mach number at which effective speed
warning occurs.
Medical certificate means acceptable evidence of physical fitness on
a form prescribed by the Administrator.
Military operations area. A military operations area (MOA) is
airspace established outside Class A airspace to separate or segregate
certain nonhazardous military activities from IFR Traffic and to
identify for VFR traffic where theses activities are conducted.
VA means design maneuvering speed.
VB means design speed for maximum gust intensity.
VC means design cruising speed.
VD means design diving speed.
VDF/MDF means demonstrated flight diving
speed.
VEF means the speed at which the critical engine is
assumed to fail during takeoff.
VF means design flap speed.
VFC/MFC means maximum speed for stability
characteristics.
VFE means maximum flap extended speed.
[[Page 11]]
VH means maximum speed in level flight with maximum
continuous power.
VLE means maximum landing gear extended speed.
VLO means maximum landing gear operating speed.
VLOF means lift-off speed.
VMC means minimum control speed with the critical engine
inoperative.
VMO/MMO means maximum operating limit speed.
VMU means minimum unstick speed.
VNE means never-exceed speed.
VNO means maximum structural cruising speed.
VR means rotation speed.
VS means the stalling speed or the minimum steady flight
speed at which the airplane is controllable.
Minimum descent altitude means the lowest altitude, expressed in
feet above mean sea level, to which descent is authorized on final
approach or during circle-to-land maneuvering in execution of a standard
instrument approach procedure, where no electronic glide slope is
provided.
Minor alteration means an alteration other than a major alteration.
Minor repair means a repair other than a major repair.
Navigable airspace means airspace at and above the minimum flight
altitudes prescribed by or under this chapter, including airspace needed
for safe takeoff and landing.
Night means the time between the end of evening civil twilight and
the beginning of morning civil twilight, as published in the American
Air Almanac, converted to local time.
Nonprecision approach procedure means a standard instrument approach
procedure in which no electronic glide slope is provided.
Operate, with respect to aircraft, means use, cause to use or
authorize to use aircraft, for the purpose (except as provided in
Sec. 91.13 of this chapter) of air navigation including the piloting of
aircraft, with or without the right of legal control (as owner, lessee,
or otherwise).
Operational control, with respect to a flight, means the exercise of
authority over initiating, conducting or terminating a flight.
Overseas air commerce means the carriage by aircraft of persons or
property for compensation or hire, or the carriage of mail by aircraft,
or the operation or navigation of aircraft in the conduct or furtherance
of a business or vocation, in commerce between a place in any State of
the United States, or the District of Columbia, and any place in a
territory or possession of the United States; or between a place in a
territory or possession of the United States, and a place in any other
territory or possession of the United States.
Overseas air transportation means the carriage by aircraft of
persons or property as a common carrier for compensation or hire, or the
carriage of mail by aircraft, in commerce:
(1) Between a place in a State or the District of Columbia and a
place in a possession of the United States; or
(2) Between a place in a possession of the United States and a place
in another possession of the United States; whether that commerce moves
wholly by aircraft or partly by aircraft and partly by other forms of
transportation.
Over-the-top means above the layer of clouds or other obscuring
phenomena forming the ceiling.
Parachute means a device used or intended to be used to retard the
fall of a body or object through the air.
Person means an individual, firm, partnership, corporation, company,
association, joint-stock association, or governmental entity. It
includes a trustee, receiver, assignee, or similar representative of any
of them.
Pilotage means navigation by visual reference to landmarks.
Pilot in command means the person who:
(1) Has final authority and responsibility for the operation and
safety of the flight;
(2) Has been designated as pilot in command before or during the
flight; and
(3) Holds the appropriate category, class, and type rating, if
appropriate, for the conduct of the flight.
Pitch setting means the propeller blade setting as determined by the
blade angle measured in a manner, and at a radius, specified by the
instruction manual for the propeller.
[[Page 12]]
Positive control means control of all air traffic, within designated
airspace, by air traffic control.
Powered-lift means a heavier-than-air aircraft capable of vertical
takeoff, vertical landing, and low speed flight that depends principally
on engine-driven lift devices or engine thrust for lift during these
flight regimes and on nonrotating airfoil(s) for lift during horizontal
flight.
Precision approach procedure means a standard instrument approach
procedure in which an electronic glide slope is provided, such as ILS
and PAR.
Preventive maintenance means simple or minor preservation operations
and the replacement of small standard parts not involving complex
assembly operations.
Prohibited area. A prohibited area is airspace designated under part
73 within which no person may operate an aircraft without the permission
of the using agency.
Propeller means a device for propelling an aircraft that has blades
on an engine-driven shaft and that, when rotated, produces by its action
on the air, a thrust approximately perpendicular to its plane of
rotation. It includes control components normally supplied by its
manufacturer, but does not include main and auxiliary rotors or rotating
airfoils of engines.
Public aircraft means an aircraft used only for the United States
Government, or owned and operated (except for commercial purposes), or
exclusively leased for at least 90 continuous days, by a government
(except the United States Government), including a State, the District
of Columbia, or a territory or possession of the United States, or
political subdivision of that government; but does not include a
government-owned aircraft transporting property for commercial purposes,
or transporting passengers other than transporting (for other than
commercial purposes) crewmembers or other persons aboard the aircraft
whose presence is required to perform, or is associated with the
performance of, a governmental function such as firefighting, search and
rescue, law enforcement, aeronautical research, or biological or
geological resource management; or transporting (for other than
commercial purposes) persons aboard the aircraft if the aircraft is
operated by the Armed Forces or an intelligence agency of the United
States. An aircraft described in the preceding sentence shall,
notwithstanding any limitation relating to use of the aircraft for
commercial purposes, be considered to be a public aircraft for the
purposes of this Chapter without regard to whether the aircraft is
operated by a unit of government on behalf of another unit of
government, pursuant to a cost reimbursement agreement between such
units of government, if the unit of government on whose behalf the
operation is conducted certifies to the Administrator of the Federal
Aviation Administration that the operation was necessary to respond to a
significant and imminent threat to life or property (including natural
resources) and that no service by a private operator was reasonably
available to meet the threat.
Rated 30-second OEI power, with respect to rotorcraft turbine
engines, means the approved brake horsepower developed under static
conditions at specified altitudes and temperatures within the operating
limitations established for the engine under part 33 of this chapter,
for continued one-flight operation after the failure of one engine in
multiengine rotorcraft, limited to three periods of use no longer than
30 seconds each in any one flight, and followed by mandatory inspection
and prescribed maintenance action.
Rated 2-minute OEI power, with respect to rotorcraft turbine
engines, means the approved brake horsepower developed under static
conditions at specified altitudes and temperatures within the operating
limitations established for the engine under part 33 of this chapter,
for continued one-flight operation after the failure of one engine in
multiengine rotorcraft, limited to three periods of use no longer than 2
minutes each in any one flight, and followed by mandatory inspection and
prescribed maintenance action.
Rated continuous OEI power, with respect to rotorcraft turbine
engines, means the approved brake horsepower developed under static
conditions at specified altitudes and temperatures
[[Page 13]]
within the operating limitations established for the engine under Part
33 of this chapter, and limited in use to the time required to complete
the flight after the failure of one engine of a multiengine rotorcraft.
Rated maximum continuous augmented thrust, with respect to turbojet
engine type certification, means the approved jet thrust that is
developed statically or in flight, in standard atmosphere at a specified
altitude, with fluid injection or with the burning of fuel in a separate
combustion chamber, within the engine operating limitations established
under Part 33 of this chapter, and approved for unrestricted periods of
use.
Rated maximum continuous power, with respect to reciprocating,
turbopropeller, and turboshaft engines, means the approved brake
horsepower that is developed statically or in flight, in standard
atmosphere at a specified altitude, within the engine operating
limitations established under Part 33, and approved for unrestricted
periods of use.
Rated maximum continuous thrust, with respect to turbojet engine
type certification, means the approved jet thrust that is developed
statically or in flight, in standard atmosphere at a specified altitude,
without fluid injection and without the burning of fuel in a separate
combustion chamber, within the engine operating limitations established
under Part 33 of this chapter, and approved for unrestricted periods of
use.
Rated takeoff augmented thrust, with respect to turbojet engine type
certification, means the approved jet thrust that is developed
statically under standard sea level conditions, with fluid injection or
with the burning of fuel in a separate combustion chamber, within the
engine operating limitations established under Part 33 of this chapter,
and limited in use to periods of not over 5 minutes for takeoff
operation.
Rated takeoff power, with respect to reciprocating, turbopropeller,
and turboshaft engine type certification, means the approved brake
horsepower that is developed statically under standard sea level
conditions, within the engine operating limitations established under
Part 33, and limited in use to periods of not over 5 minutes for takeoff
operation.
Rated takeoff thrust, with respect to turbojet engine type
certification, means the approved jet thrust that is developed
statically under standard sea level conditions, without fluid injection
and without the burning of fuel in a separate combustion chamber, within
the engine operating limitations established under Part 33 of this
chapter, and limited in use to periods of not over 5 minutes for takeoff
operation.
Rated 30-minute OEI power, with respect to rotorcraft turbine
engines, means the approved brake horsepower developed under static
conditions at specified altitudes and temperatures within the operating
limitations established for the engine under Part 33 of this chapter,
and limited in use to a period of not more than 30 minutes after the
failure of one engine of a multiengine rotorcraft.
Rated 2\1/2\-minute OEI power, with respect to rotorcraft turbine
engines, means the approved brake horsepower developed under static
conditions at specified altitudes and temperatures within the operating
limitations established for the engine under Part 33 of this chapter,
and limited in use to a period of not more than 2\1/2\ minutes after the
failure of one engine of a multiengine rotorcraft.
Rating means a statement that, as a part of a certificate, sets
forth special conditions, privileges, or limitations.
Reference landing speed means the speed of the airplane, in a
specified landing configuration, at the point where it descends through
the 50 foot height in the determination of the landing distance.
Reporting point means a geographical location in relation to which
the position of an aircraft is reported.
Restricted area. A restricted area is airspace designated under Part
73 within which the flight of aircraft, while not wholly prohibited, is
subject to restriction.
RNAV way point (W/P) means a predetermined geographical position
used for route or instrument approach definition or progress reporting
purposes that is defined relative to a VORTAC station position.
[[Page 14]]
Rocket means an aircraft propelled by ejected expanding gases
generated in the engine from self-contained propellants and not
dependent on the intake of outside substances. It includes any part
which becomes separated during the operation.
Rotorcraft means a heavier-than-air aircraft that depends
principally for its support in flight on the lift generated by one or
more rotors.
Rotorcraft-load combination means the combination of a rotorcraft
and an external-load, including the external-load attaching means.
Rotorcraft-load combinations are designated as Class A, Class B, Class
C, and Class D, as follows:
(1) Class A rotorcraft-load combination means one in which the
external load cannot move freely, cannot be jettisoned, and does not
extend below the landing gear.
(2) Class B rotorcraft-load combination means one in which the
external load is jettisonable and is lifted free of land or water during
the rotorcraft operation.
(3) Class C rotorcraft-load combination means one in which the
external load is jettisonable and remains in contact with land or water
during the rotorcraft operation.
(4) Class D rotorcraft-load combination means one in which the
external-load is other than a Class A, B, or C and has been specifically
approved by the Administrator for that operation.
Route segment means a part of a route. Each end of that part is
identified by:
(1) A continental or insular geographical location; or
(2) A point at which a definite radio fix can be established.
Sea level engine means a reciprocating aircraft engine having a
rated takeoff power that is producible only at sea level.
Second in command means a pilot who is designated to be second in
command of an aircraft during flight time.
Show, unless the context otherwise requires, means to show to the
satisfaction of the Administrator.
Small aircraft means aircraft of 12,500 pounds or less, maximum
certificated takeoff weight.
Special VFR conditions mean meteorological conditions that are less
than those required for basic VFR flight in controlled airspace and in
which some aircraft are permitted flight under visual flight rules.
Special VFR operations means aircraft operating in accordance with
clearances within controlled airspace in meteorological conditions less
than the basic VFR weather minima. Such operations must be requested by
the pilot and approved by ATC.
Standard atmosphere means the atmosphere defined in U.S. Standard
Atmosphere, 1962 (Geopotential altitude tables).
Stopway means an area beyond the takeoff runway, no less wide than
the runway and centered upon the extended centerline of the runway, able
to support the airplane during an aborted takeoff, without causing
structural damage to the airplane, and designated by the airport
authorities for use in decelerating the airplane during an aborted
takeoff.
Takeoff power:
(1) With respect to reciprocating engines, means the brake
horsepower that is developed under standard sea level conditions, and
under the maximum conditions of crankshaft rotational speed and engine
manifold pressure approved for the normal takeoff, and limited in
continuous use to the period of time shown in the approved engine
specification; and
(2) With respect to turbine engines, means the brake horsepower that
is developed under static conditions at a specified altitude and
atmospheric temperature, and under the maximum conditions of rotor shaft
rotational speed and gas temperature approved for the normal takeoff,
and limited in continuous use to the period of time shown in the
approved engine specification.
Takeoff safety speed means a referenced airspeed obtained after
lift-off at which the required one-engine-inoperative climb performance
can be achieved.
Takeoff thrust, with respect to turbine engines, means the jet
thrust that is developed under static conditions at a specific altitude
and atmospheric temperature under the maximum conditions of rotorshaft
rotational speed and gas temperature approved for the
[[Page 15]]
normal takeoff, and limited in continuous use to the period of time
shown in the approved engine specification.
Tandem wing configuration means a configuration having two wings of
similar span, mounted in tandem.
TCAS I means a TCAS that utilizes interrogations of, and replies
from, airborne radar beacon transponders and provides traffic advisories
to the pilot.
TCAS II means a TCAS that utilizes interrogations of, and replies
from airborne radar beacon transponders and provides traffic advisories
and resolution advisories in the vertical plane.
TCAS III means a TCAS that utilizes interrogation of, and replies
from, airborne radar beacon transponders and provides traffic advisories
and resolution advisories in the vertical and horizontal planes to the
pilot.
Time in service, with respect to maintenance time records, means the
time from the moment an aircraft leaves the surface of the earth until
it touches it at the next point of landing.
True airspeed means the airspeed of an aircraft relative to
undisturbed air. True airspeed is equal to equivalent airspeed
multiplied by ([rho]0/[rho])\1/2\.
Traffic pattern means the traffic flow that is prescribed for
aircraft landing at, taxiing on, or taking off from, an airport.
Type:
(1) As used with respect to the certification, ratings, privileges,
and limitations of airmen, means a specific make and basic model of
aircraft, including modifications thereto that do not change its
handling or flight characteristics. Examples include: DC-7, 1049, and F-
27; and
(2) As used with respect to the certification of aircraft, means
those aircraft which are similar in design. Examples include: DC-7 and
DC-7C; 1049G and 1049H; and F-27 and F-27F.
(3) As used with respect to the certification of aircraft engines
means those engines which are similar in design. For example, JT8D and
JT8D-7 are engines of the same type, and JT9D-3A and JT9D-7 are engines
of the same type.
United States, in a geographical sense, means (1) the States, the
District of Columbia, Puerto Rico, and the possessions, including the
territorial waters, and (2) the airspace of those areas.
United States air carrier means a citizen of the United States who
undertakes directly by lease, or other arrangement, to engage in air
transportation.
VFR over-the-top, with respect to the operation of aircraft, means
the operation of an aircraft over-the-top under VFR when it is not being
operated on an IFR flight plan.
Warning area. A warning area is airspace of defined dimensions,
extending from 3 nautical miles outward from the coast of the United
States, that contains activity that may be hazardous to nonparticipating
aircraft. The purpose of such warning areas is to warn nonparticipating
pilots of the potential danger. A warning area may be located over
domestic or international waters or both.
Winglet or tip fin means an out-of-plane surface extending from a
lifting surface. The surface may or may not have control surfaces.
[Doc. No. 1150, 27 FR 4588, May 15, 1962]
Editorial Note: For Federal Register citations affecting Sec. 1.1,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and on GPO Access.
Sec. 1.2 Abbreviations and symbols.
In Subchapters A through K of this chapter:
AGL means above ground level.
ALS means approach light system.
ASR means airport surveillance radar.
ATC means air traffic control.
CAS means calibrated airspeed.
CAT II means Category II.
CONSOL or CONSOLAN means a kind of low or medium frequency long
range navigational aid.
DH means decision height.
DME means distance measuring equipment compatible with TACAN.
EAS means equivalent airspeed.
FAA means Federal Aviation Administration.
FM means fan marker.
GS means glide slope.
HIRL means high-intensity runway light system.
IAS means indicated airspeed.
[[Page 16]]
ICAO means International Civil Aviation Organization.
IFR means instrument flight rules.
ILS means instrument landing system.
IM means ILS inner marker.
INT means intersection.
LDA means localizer-type directional aid.
LFR means low-frequency radio range.
LMM means compass locator at middle marker.
LOC means ILS localizer.
LOM means compass locator at outer marker.
M means mach number.
MAA means maximum authorized IFR altitude.
MALS means medium intensity approach light system.
MALSR means medium intensity approach light system with runway
alignment indicator lights.
MCA means minimum crossing altitude.
MDA means minimum descent altitude.
MEA means minimum en route IFR altitude.
MM means ILS middle marker.
MOCA means minimum obstruction clearance altitude.
MRA means minimum reception altitude.
MSL means mean sea level.
NDB(ADF) means nondirectional beacon (automatic direction finder).
NOPT means no procedure turn required.
OEI means one engine inoperative.
OM means ILS outer marker.
PAR means precision approach radar.
RAIL means runway alignment indicator light system.
RBN means radio beacon.
RCLM means runway centerline marking.
RCLS means runway centerline light system.
REIL means runway end identification lights.
`RR'' means low or medium frequency radio range station.
RVR means runway visual range as measured in the touchdown zone
area.
SALS means short approach light system.
SSALS means simplified short approach light system.
SSALSR means simplified short approach light system with runway
alignment indicator lights.
TACAN means ultra-high frequency tactical air navigational aid.
TAS means true airspeed.
TCAS means a traffic alert and collision avoidance system.
TDZL means touchdown zone lights.
TVOR means very high frequency terminal omnirange station.
VA means design maneuvering speed.
VB means design speed for maximum gust intensity.
VC means design cruising speed.
VD means design diving speed.
VDF/MDF means demonstrated flight diving
speed.
VEF means the speed at which the critical engine is
assumed to fail during takeoff.
VF means design flap speed.
VFC/MFC means maximum speed for stability
characteristics.
VFE means maximum flap extended speed.
VFTO means final takeoff speed.
VH means maximum speed in level flight with maximum
continuous power.
VLE means maximum landing gear extended speed.
VLO means maximum landing gear operating speed.
VLOF means lift-off speed.
VMC means minimum control speed with the critical engine
inoperative.
VMO/MMO means maximum operating limit speed.
VMU means minimum unstick speed.
VNE means never-exceed speed.
VNO means maximum structural cruising speed.
VR means rotation speed.
VREF means reference landing speed.
VS means the stalling speed or the minimum steady flight
speed at which the airplane is controllable.
VS0 means the stalling speed or the minimum
steady flight speed in the landing configuration.
VS1 means the stalling speed or the minimum
steady flight speed obtained in a specific configuration.
VSR means reference stall speed.
VSRO means reference stall speed in the
landing configuration.
VSR1 means reference stall speed in a specific
configuration.
[[Page 17]]
VSW means speed at which onset of natural or artificial
stall warning occurs.
VTOSS means takeoff safety speed for Category A
rotorcraft.
VX means speed for best angle of climb.
VY means speed for best rate of climb.
V1 means the maximum speed in the takeoff at which the
pilot must take the first action (e.g., apply brakes, reduce thrust,
deploy speed brakes) to stop the airplane within the accelerate-stop
distance. V1 also means the minimum speed in the takeoff,
following a failure of the critical engine at VEF, at which
the pilot can continue the takeoff and achieve the required height above
the takeoff surface within the takeoff distance.
V2 means takeoff safety speed.
V2min means minimum takeoff safety speed.
VFR means visual flight rules.
VHF means very high frequency.
VOR means very high frequency omnirange station.
VORTAC means collocated VOR and TACAN.
[Doc. No. 1150, 27 FR 4590, May 15, 1962]
Editorial Note: For Federal Register citations affecting Sec. 1.2,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and on GPO Access.
Sec. 1.3 Rules of construction.
(a) In Subchapters A through K of this chapter, unless the context
requires otherwise:
(1) Words importing the singular include the plural;
(2) Words importing the plural include the singular; and
(3) Words importing the masculine gender include the feminine.
(b) In Subchapters A through K of this chapter, the word:
(1) Shall is used in an imperative sense;
(2) May is used in a permissive sense to state authority or
permission to do the act prescribed, and the words ``no person may * *
*'' or ``a person may not * * *'' mean that no person is required,
authorized, or permitted to do the act prescribed; and
(3) Includes means ``includes but is not limited to''.
[Doc. No. 1150, 27 FR 4590, May 15, 1962, as amended by Amdt. 1-10, 31
FR 5055, Mar. 29, 1966]
[[Page 18]]
SUBCHAPTER B--PROCEDURAL RULES
PART 11--GENERAL RULEMAKING PROCEDURES--Table of Contents
Subpart A--Rulemaking Procedures
Sec.
11.1 To what does this part apply?
Definition of Terms
11.3 What is an advance notice of proposed rulemaking?
11.5 What is a notice of proposed rulemaking?
11.7 What is a supplemental notice of proposed rulemaking?
11.9 What is a final rule?
11.11 What is a final rule with request for comments?
11.13 What is a direct final rule?
11.15 What is a petition for exemption?
11.17 What is a petition for rulemaking?
11.19 What is a special condition?
General
11.21 What are the most common kinds of rulemaking actions for which
FAA follows the Administrative Procedure Act?
11.23 Does FAA follow the same procedures in issuing all types of
rules?
11.25 How does FAA issue rules?
11.27 Are there other ways FAA collects specific rulemaking
recommendations before we issue an NPRM?
11.29 May FAA change its regulations without first issuing an ANPRM or
NPRM?
11.31 How does FAA process direct final rules?
11.33 How can I track FAA's rulemaking activities?
11.35 Does FAA include sensitive security information and proprietary
information in the Docket Management System (DMS)?
11.37 Where can I find information about an Airworthiness Directive, an
airspace designation, or a petition handled in a region?
11.38 What public comment procedures does FAA follow for Special
Conditions?
11.39 How may I participate in FAA's rulemaking process?
11.40 Can I get more information about a rulemaking?
Written Comments
11.41 Who may file comments?
11.43 What information must I put in my written comments?
11.45 Where and when do I file my comments?
11.47 May I ask for more time to file my comments?
Public Meetings and Other Proceedings
11.51 May I request that FAA hold a public meeting on a rulemaking
action?
11.53 What takes place at a public meeting?
Petitions for Rulemaking and for Exemptions
11.61 May I ask FAA to adopt, amend, or repeal a regulation, or grant
relief from the requirements of a current regulation?
11.63 How and to whom do I submit my petition for rulemaking or
petition for exemption?
11.71 What information must I include in my petition for rulemaking?
11.73 How does FAA process petitions for rulemaking?
11.75 Does FAA invite public comment on petitions for rulemaking?
11.77 Is there any additional information I must include in my petition
for designating airspace?
11.81 What information must I include in my petition for an exemption?
11.83 How can I operate under an exemption outside the United States?
11.85 Does FAA invite public comment on petitions for exemption?
11.87 Are there circumstances in which FAA may decide not to publish a
summary of my petition for exemption?
11.89 How much time do I have to submit comments to FAA on a petition
for exemption?
11.91 How does FAA inform me of its decision on my petition for
exemption?
11.101 May I ask FAA to reconsider my petition for rulemaking or
petition for exemption if it is denied?
Subpart B--Paperwork Reduction Act Control Numbers
11.201 Office of Management and Budget (OMB) control numbers assigned
under the Paperwork Reduction Act.
Appendix 1 to Part 11--Oral Communications With the Public During
Rulemaking
Authority: 49 U.S.C. 106(g), 40101, 40103, 40105, 40109, 40113,
44110, 44502, 44701-44702, 44711, and 46102.
Source: Docket No. 1999-6622, 65 FR 50863, Aug. 21, 2000, unless
otherwise noted.
Editorial Note: Nomenclature changes to part 11 appear at 61 FR
18052, April 24, 1996.
[[Page 19]]
Subpart A--Rulemaking Procedures
Sec. 11.1 To what does this part apply?
This part applies to the issuance, amendment, and repeal of any
regulation for which FAA (``we'') follows public rulemaking procedures
under the Administrative Procedure Act (``APA'') (5 U.S.C. 553).
Definition of Terms
Sec. 11.3 What is an advance notice of proposed rulemaking?
An advance notice of proposed rulemaking (ANPRM) tells the public
that FAA is considering an area for rulemaking and requests written
comments on the appropriate scope of the rulemaking or on specific
topics. An advance notice of proposed rulemaking may or may not include
the text of potential changes to a regulation.
Sec. 11.5 What is a notice of proposed rulemaking?
A notice of proposed rulemaking (NPRM) proposes FAA's specific
regulatory changes for public comment and contains supporting
information. It includes proposed regulatory text.
Sec. 11.7 What is a supplemental notice of proposed rulemaking?
On occasion, FAA may decide that it needs more information on an
issue, or that we should take a different approach than we proposed.
Also, we may want to follow a commenter's suggestion that goes beyond
the scope of the original proposed rule. In these cases, FAA may issue a
supplemental notice of proposed rulemaking (SNPRM) to give the public an
opportunity to comment further or to give us more information.
Sec. 11.9 What is a final rule?
A final rule sets out new or revised requirements and their
effective date. It also may remove requirements. When preceded by an
NPRM, a final rule will also identify significant substantive issues
raised by commenters in response to the NPRM and will give the agency's
response.
Sec. 11.11 What is a final rule with request for comments?
A final rule with request for comment is a rule that the FAA issues
in final (with an effective date) that invites public comment on the
rule. We usually do this when we have not first issued an ANPRM or NPRM,
because we have found that doing so would be impracticable, unnecessary,
or contrary to the public interest. We give our reasons for our
determination in the preamble. The comment period often ends after the
effective date of the rule. A final rule not preceded by an ANPRM or
NPRM is commonly called an ``immediately adopted final rule.'' We invite
comments on these rules only if we think that we will receive useful
information. For example, we would not invite comments when we are just
making an editorial clarification or correction.
Sec. 11.13 What is a direct final rule?
A direct final rule is a type of final rule with request for
comments. Our reason for issuing a direct final rule without an NPRM is
that we would not expect to receive any adverse comments, and so an NPRM
is unnecessary. However, to be certain that we are correct, we set the
comment period to end before the effective date. If we receive an
adverse comment or notice of intent to file an adverse comment, we then
withdraw the final rule before it becomes effective and may issue an
NPRM.
Sec. 11.15 What is a petition for exemption?
A petition for exemption is a request to FAA by an individual or
entity asking for relief from the requirements of a current regulation.
Sec. 11.17 What is a petition for rulemaking?
A petition for rulemaking is a request to FAA by an individual or
entity asking the FAA to adopt, amend, or repeal a regulation.
Sec. 11.19 What is a special condition?
A special condition is a regulation that applies to a particular
aircraft design. The FAA issues special conditions when we find that the
airworthiness
[[Page 20]]
regulations for an aircraft, aircraft engine, or propeller design do not
contain adequate or appropriate safety standards, because of a novel or
unusual design feature.
General
Sec. 11.21 What are the most common kinds of rulemaking actions for which FAA follows the Administrative Procedure Act?
FAA follows the Administrative Procedure Act (APA) procedures for
these common types of rules:
(a) Rules found in the Code of Federal Regulations;
(b) Airworthiness directives issued under part 39 of this chapter;
and
(c) Airspace Designations issued under various parts of this
chapter.
Sec. 11.23 Does FAA follow the same procedures in issuing all types of rules?
Yes, in general, FAA follows the same procedures for all rule types.
There are some differences as to which FAA official has authority to
issue each type, and where you send petitions for FAA to adopt, amend,
or repeal each type. Assume that the procedures in this subpart apply to
all rules, except where we specify otherwise.
Sec. 11.25 How does FAA issue rules?
(a) The FAA uses APA rulemaking procedures to adopt, amend, or
repeal regulations. To propose or adopt a new regulation, or to change a
current regulation, FAA will issue one or more of the following
documents. We publish these rulemaking documents in the Federal Register
unless we name and personally serve a copy of a rule on every person
subject to it. We also make all documents available to the public by
posting them in the Department of Transportation's electronic docket at
http://dms.dot.gov.
(1) An advance notice of proposed rulemaking (ANPRM).
(2) A notice of proposed rulemaking (NPRM).
(3) A supplemental notice of proposed rulemaking (SNPRM).
(4) A final rule.
(5) A final rule with request for comments.
(6) A direct final rule.
(b) Each of the rulemaking documents in paragraph (a) of this
section generally contains the following information:
(1) The topic involved in the rulemaking document.
(2) FAA's legal authority for issuing the rulemaking document.
(3) How interested persons may participate in the rulemaking
proceeding (for example, by filing written comments or making oral
presentations at a public meeting).
(4) Whom to call if you have questions about the rulemaking
document.
(5) The date, time, and place of any public meetings FAA will hold
to discuss the rulemaking document.
(6) The docket number and regulation identifier number (RIN) for the
rulemaking proceeding.
Sec. 11.27 Are there other ways FAA collects specific rulemaking recommendations before we issue an NPRM?
Yes, the FAA obtains advice and recommendations from rulemaking
advisory committees. One of these committees is the Aviation Rulemaking
Advisory Committee (ARAC), which is a formal standing committee
comprised of representatives of aviation associations and industry,
consumer groups, and interested individuals. In conducting its
activities, ARAC complies with the Federal Advisory Committee Act and
the direction of FAA. We task ARAC with providing us with recommended
rulemaking actions dealing with specific areas and problems. If we
accept an ARAC recommendation to change an FAA rule, we ordinarily
publish an NPRM using the procedures in this part. The FAA may establish
other rulemaking advisory committees as needed to focus on specific
issues for a limited period of time.
Sec. 11.29 May FAA change its regulations without first issuing an ANPRM or NPRM?
The FAA normally adds or changes a regulation by issuing a final
rule after an NPRM. However, FAA may adopt, amend, or repeal regulations
without first issuing an ANPRM or NPRM in the following situations:
(a) We may issue a final rule without first requesting public
comment if, for
[[Page 21]]
good cause, we find that an NPRM is impracticable, unnecessary, or
contrary to the public interest. We place that finding and a brief
statement of the reasons for it in the final rule. For example, we may
issue a final rule in response to a safety emergency.
(b) If an NPRM would be unnecessary because we do not expect to
receive adverse comment, we may issue a direct final rule.
Sec. 11.31 How does FAA process direct final rules?
(a) A direct final rule will take effect on a specified date unless
FAA receives an adverse comment or notice of intent to file an adverse
comment within the comment period--generally 60 days after the direct
final rule is published in the Federal Register. An adverse comment
explains why a rule would be inappropriate, or would be ineffective or
unacceptable without a change. It may challenge the rule's underlying
premise or approach. Under the direct final rule process, we do not
consider the following types of comments to be adverse:
(1) A comment recommending another rule change, in addition to the
change in the direct final rule at issue. We consider the comment
adverse, however, if the commenter states why the direct final rule
would be ineffective without the change.
(2) A frivolous or insubstantial comment.
(b) If FAA has not received an adverse comment or notice of intent
to file an adverse comment, we will publish a confirmation document in
the Federal Register, generally within 15 days after the comment period
closes. The confirmation document tells the public the effective date of
the rule.
(c) If we receive an adverse comment or notice of intent to file an
adverse comment, we will advise the public by publishing a document in
the Federal Register before the effective date of the direct final rule.
This document may withdraw the direct final rule in whole or in part. If
we withdraw a direct final rule because of an adverse comment, we may
incorporate the commenter's recommendation into another direct final
rule or may publish a notice of proposed rulemaking.
Sec. 11.33 How can I track FAA's rulemaking activities?
The best ways to track FAA's rulemaking activities are with the
docket number or the regulation identifier number.
(a) Docket number. We assign a docket number to each rulemaking
proceeding. Each rulemaking document FAA issues in a particular
rulemaking proceeding, as well as public comments on the proceeding,
will display the same docket number. This number allows you to search
DOT's Docket Management System (DMS) for information on most rulemaking
proceedings. You can view and copy docket materials during regular
business hours at the U.S. Department of Transportation, Plaza Level
401, 400 7th Street, SW., Washington, DC 20590-0001. Or you can view and
download docketed materials through the Internet at http://dms.dot.gov.
If you can't find the material in the electronic docket, contact the
person listed under FOR FURTHER INFORMATION CONTACT in the document you
are interested in.
(b) Regulation identifier number. DOT publishes a semiannual agenda
of all current and projected DOT rulemakings, reviews of existing
regulations, and completed actions. This semiannual agenda appears in
the Unified Agenda of Federal Regulations, published in the Federal
Register in April and October of each year. The semiannual agenda tells
the public about DOT's--including FAA's--regulatory activities. DOT
assigns a regulation identifier number (RIN) to each individual
rulemaking proceeding in the semiannual agenda. This number appears on
all rulemaking documents published in the Federal Register and makes it
easy for you to track those rulemaking proceedings in both the Federal
Register and the semiannual regulatory agenda.
Sec. 11.35 Does FAA include sensitive security information and proprietary information in the Docket Management System (DMS)?
(a) Sensitive security information. You should not submit sensitive
security information to the rulemaking docket, unless you are invited to
do so in our request for comments. If we ask for
[[Page 22]]
this information, we will tell you in the specific document how to
submit this information, and we will provide a separate non-public
docket for it. For all proposed rule changes involving civil aviation
security, we review comments as we receive them, before they are placed
in the docket. If we find that a comment contains sensitive security
information, we remove that information before placing the comment in
the general docket.
(b) Proprietary information. When we are aware of proprietary
information filed with a comment, we do not place it in the docket. We
hold it in a separate file to which the public does not have access, and
place a note in the docket that we have received it. If we receive a
request to examine or copy this information, we treat it as any other
request under the Freedom of Information Act (5 U.S.C. 552). We process
such a request under the DOT procedures found in 49 CFR part 7.
Sec. 11.37 Where can I find information about an Airworthiness Directive, an airspace designation, or a petition handled in a region?
The FAA includes most documents concerning Airworthiness Directives,
airspace designations, or petitions handled in a region in the
electronic docket. If the information isn't in the docket, contact the
person listed under FOR FURTHER INFORMATION CONTACT in the Federal
Register document about the action.
Sec. 11.38 What public comment procedures does the FAA follow for Special Conditions?
Even though the Administrative Procedure Act does not require notice
and comment for rules of particular applicability, FAA does publish
proposed special conditions for comment. In the following circumstances
we may not invite comment before we issue a special condition. If we
don't, we will invite comment when we publish the final special
condition.
(a) The FAA considers prior notice to be impracticable if issuing a
design approval would significantly delay delivery of the affected
aircraft. We consider such a delay to be contrary to the public
interest.
(b) The FAA considers prior notice to be unnecessary if we have
provided previous opportunities to comment on substantially identical
proposed special conditions, and we are satisfied that new comments are
unlikely.
Sec. 11.39 How may I participate in FAA's rulemaking process?
You may participate in FAA's rulemaking process by doing any of the
following:
(a) File written comments on any rulemaking document that asks for
comments, including an ANPRM, NPRM, SNPRM, a final rule with request for
comments, or a direct final rule. Follow the directions for commenting
found in each rulemaking document.
(b) Ask that we hold a public meeting on any rulemaking, and
participate in any public meeting that we hold.
(c) File a petition for rulemaking that asks us to adopt, amend, or
repeal a regulation.
Sec. 11.40 Can I get more information about a rulemaking?
You can contact the person listed under FOR FURTHER INFORMATION
CONTACT in the preamble of a rule. That person can explain the meaning
and intent of a proposed rule, the technical aspects of a document, the
terminology in a document, and can tell you our published schedule for
the rulemaking process. We cannot give you information that is not
already available to other members of the public. Department of
Transportation policy on oral communications with the public during
rulemaking appears in appendix 1 of this part.
Written Comments
Sec. 11.41 Who may file comments?
Anyone may file written comments about proposals and final rules
that request public comments.
Sec. 11.43 What information must I put in my written comments?
(a) Your written comments must be in English and must contain the
following:
(1) The docket number of the rulemaking document you are commenting
[[Page 23]]
on, clearly set out at the beginning of your comments.
(2) Your name and mailing address, and, if you wish, other contact
information, such as a fax number, telephone number, or e-mail address.
(3) Your information, views, or arguments, following the
instructions for participation in the rulemaking document on which you
are commenting.
(b) You should also include all material relevant to any statement
of fact or argument in your comments, to the extent that the material is
available to you and reasonable for you to submit. Include a copy of the
title page of the document. Whether or not you submit a copy of the
material to which you refer, you should indicate specific places in the
material that support your position.
Sec. 11.45 Where and when do I file my comments?
(a) Send your comments to the location specified in the rulemaking
document on which you are commenting. If you are asked to send your
comments to the Docket Management System, you may send them in either of
the following ways:
(1) By mail to: U.S. Department of Transportation, Docket Management
System, 400 7th Street, SW., Plaza Level 401, Washington, DC 20591.
(2) Through the Internet to http://dms.dot.gov/.
(3) In any other manner designated by FAA.
(b) Make sure that your comments reach us by the deadline set out in
the rulemaking document on which you are commenting. We will consider
late-filed comments to the extent possible only if they do not
significantly delay the rulemaking process.
(c) We may reject your paper or electronic comments if they are
frivolous, abusive, or repetitious. We may reject comments you file
electronically if you do not follow the electronic filing instructions
at the Docket Management System web site.
Sec. 11.47 May I ask for more time to file my comments?
Yes, if FAA grants your request for more time to file comments, we
grant all persons the same amount of time. We will notify the public of
the extension by a document in the Federal Register. If FAA denies your
request, we will notify you of the denial. To ask for more time, you
must file a written or electronic request for extension at least 10 days
before the end of the comment period. Your letter or message must--
(a) Show the docket number of the rule at the top of the first page;
(b) State, at the beginning, that you are requesting an extension of
the comment period;
(c) Show that you have good cause for the extension and that an
extension is in the public interest;
(d) Be sent to the address specified for comments in the rulemaking
document on which you are commenting.
Public Meetings and Other Proceedings
Sec. 11.51 May I request that FAA hold a public meeting on a rulemaking action?
Yes, you may request that we hold a public meeting. FAA holds a
public meeting when we need more than written comments to make a fully
informed decision. Submit your written request to the address specified
in the rulemaking document on which you are commenting. Specify at the
top of your letter or message that you are requesting that the agency
hold a public meeting. Submit your request no later than 30 days after
our rulemaking notice. If we find good cause for a meeting, we will
notify you and publish a notice of the meeting in the Federal Register.
Sec. 11.53 What takes place at a public meeting?
A public meeting is a non-adversarial, fact-finding proceeding
conducted by an FAA representative. Public meetings are announced in the
Federal Register. We invite interested persons to attend and to present
their views to the agency on specific issues. There are no formal
pleadings and no adverse parties, and any regulation issued afterward is
not necessarily based exclusively on the record of the meeting.
[[Page 24]]
Petitions for Rulemaking and for Exemption
Sec. 11.61 May I ask FAA to adopt, amend, or repeal a regulation, or grant relief from the requirements of a current regulation?
(a) Using a petition for rulemaking, you may ask FAA to add a new
regulation to title 14 of the Code of Federal Regulations (14 CFR) or
ask FAA to amend or repeal a current regulation in 14 CFR.
(b) Using a petition for exemption, you may ask FAA to grant you
relief from current regulations in 14 CFR.
Sec. 11.63 How and to whom do I submit my petition for rulemaking or petition for exemption?
(a) For paper submissions, send the original signed copy of your
petition for rulemaking or exemption to this address: U.S. Department of
Transportation, Docket Management System, 400 7th Street, SW., Room PL
401, Washington, DC 20591-0001.
(b) For electronic submissions, submit your petition to FAA through
the Internet using the Docket Management System web site at this
Internet address: http://dms.dot.gov/.
(c) In the future, FAA may designate other means by which you can
submit petitions.
(d) Submit your petition for exemption 120 days before you need the
exemption to take effect.
Sec. 11.71 What information must I include in my petition for rulemaking?
(a) You must include the following information in your petition for
rulemaking:
(1) Your name and mailing address and, if you wish, other contact
information such as a fax number, telephone number, or e-mail address.
(2) An explanation of your proposed action and its purpose.
(3) The language you propose for a new or amended rule, or the
language you would remove from a current rule.
(4) An explanation of why your proposed action would be in the
public interest.
(5) Information and arguments that support your proposed action,
including relevant technical and scientific data available to you.
(6) Any specific facts or circumstances that support or demonstrate
the need for the action you propose.
(b) In the process of considering your petition, we may ask that you
provide information or data available to you about the following:
(1) The costs and benefits of your proposed action to society in
general, and identifiable groups within society in particular.
(2) The regulatory burden of your proposed action on small
businesses, small organizations, small governmental jurisdictions, and
Indian tribes.
(3) The recordkeeping and reporting burdens of your proposed action
and whom the burdens would affect.
(4) The effect of your proposed action on the quality of the natural
and social environments.
Sec. 11.73 How does FAA process petitions for rulemaking?
After we have determined the disposition of your petition, we will
contact you in writing about our decision. The FAA may respond to your
petition for rulemaking in one of the following ways:
(a) If we determine that your petition justifies our taking the
action you suggest, we may issue an NPRM or ANPRM. We will do so no
later than 6 months after the date we receive your petition. In making
our decision, we consider:
(1) The immediacy of the safety or security concerns you raise;
(2) The priority of other issues the FAA must deal with; and
(3) The resources we have available to address these issues.
(b) If we have issued an ANPRM or NPRM on the subject matter of your
petition, we will consider your arguments for a rule change as a comment
in connection with the rulemaking proceeding. We will not treat your
petition as a separate action.
(c) If we have begun a rulemaking project in the subject area of
your petition, we will consider your comments and arguments for a rule
change as part of that project. We will not treat your petition as a
separate action.
[[Page 25]]
(d) If we have tasked ARAC to study the general subject area of your
petition, we will ask ARAC to review and evaluate your proposed action.
We will not treat your petition as a separate action.
(e) If we determine that the issues you identify in your petition
may have merit, but do not address an immediate safety concern or cannot
be addressed because of other priorities and resource constraints, we
may dismiss your petition. Your comments and arguments for a rule change
will be placed in a database, which we will examine when we consider
future rulemaking.
Sec. 11.75 Does FAA invite public comment on petitions for rulemaking?
Generally, FAA does not invite public comment on petitions for
rulemaking.
Sec. 11.77 Is there any additional information I must include in my petition for designating airspace?
In petitions asking FAA to establish, amend, or repeal a designation
of airspace, including special use airspace, you must include all the
information specified by Sec. 11.71 and also:
(a) The location and a description of the airspace you want assigned
or designated;
(b) A complete description of the activity or use to be made of that
airspace, including a detailed description of the type, volume,
duration, time, and place of the operations to be conducted in the area;
(c) A description of the air navigation, air traffic control,
surveillance, and communication facilities available and to be provided
if we grant the designation; and
(d) The name and location of the agency, office, facility, or person
who would have authority to permit the use of the airspace when it was
not in use for the purpose to which you want it assigned.
Sec. 11.81 What information must I include in my petition for an exemption?
You must include the following information in your petition for an
exemption and submit it to FAA as soon as you know you need an
exemption.
(a) Your name and mailing address and, if you wish, other contact
information such as a fax number, telephone number, or e-mail address;
(b) The specific section or sections of 14 CFR from which you seek
an exemption;
(c) The extent of relief you seek, and the reason you seek the
relief;
(d) The reasons why granting your request would be in the public
interest; that is, how it would benefit the public as a whole;
(e) The reasons why granting the exemption would not adversely
affect safety, or how the exemption would provide a level of safety at
least equal to that provided by the rule from which you seek the
exemption;
(f) A summary we can publish in the Federal Register, stating:
(1) The rule from which you seek the exemption; and
(2) A brief description of the nature of the exemption you seek;
(g) Any additional information, views or arguments available to
support your request; and
(h) If you want to exercise the privileges of your exemption outside
the United States, the reason why you need to do so.
Sec. 11.83 How can I operate under an exemption outside the United States?
If you want to be able to operate under your exemption outside the
United States, you must request this when you petition for relief and
give us the reason for this use. If you do not provide your reason or we
determine that it does not justify this relief, we will limit your
exemption to use within the United States. Before we extend your
exemption for use outside the United States, we will verify that the
exemption would be in compliance with the Standards of the International
Civil Aviation Organization (ICAO). If it would not, but we still
believe it would be in the public interest to allow you to do so, we
will file a difference with ICAO. However, a foreign country still may
not allow you to operate in that country without meeting the ICAO
standard.
[[Page 26]]
Sec. 11.85 Does FAA invite public comment on petitions for exemption?
Yes, FAA publishes information about petitions for exemption in the
Federal Register. The information includes--
(a) The docket number of the petition;
(b) The citation to the rule or rules from which the petitioner
requested relief;
(c) The name of the petitioner;
(d) The petitioner's summary of the action requested and the reasons
for requesting it; and
(e) A request for comments to assist FAA in evaluating the petition.
Sec. 11.87 Are there circumstances in which FAA may decide not to publish a summary of my petition for exemption?
The FAA may not publish a summary of your petition for exemption and
request comments if you present or we find good cause why we should not
delay action on your petition. The factors we consider in deciding not
to request comment include:
(a) Whether granting your petition would set a precedent.
(b) Whether the relief requested is identical to exemptions granted
previously.
(c) Whether our delaying action on your petition would affect you
adversely.
(d) Whether you filed your petition in a timely manner.
Sec. 11.89 How much time do I have to submit comments to FAA on a petition for exemption?
The FAA states the specific time allowed for comments in the Federal
Register notice about the petition. We usually allow 20 days to comment
on a petition for exemption.
Sec. 11.91 How does FAA inform me of its decision on my petition for exemption?
(a) The FAA will notify you in writing about its decision on your
petition.
(b) The FAA publishes a summary in the Federal Register that
includes--
(1) The docket number of your petition;
(2) Your name;
(3) The citation to the rules from which you requested relief;
(4) A brief description of the general nature of the relief
requested;
(5) Whether FAA granted or denied the request;
(6) The date of FAA's decision; and
(7) An exemption number.
Sec. 11.101 May I ask FAA to reconsider my petition for rulemaking or petition for exemption if it is denied?
Yes, you may petition FAA to reconsider your petition denial. You
must submit your request to the address to which you sent your original
petition, and FAA must receive it within 60 days after we issued the
denial. For us to accept your petition, show the following:
(a) That you have a significant additional fact and why you did not
present it in your original petition;
(b) That we made an important factual error in our denial of your
original petition; or
(c) That we did not correctly interpret a law, regulation, or
precedent.
Subpart B--Paperwork Reduction Act Control Numbers
Sec. 11.201 Office of Management and Budget (OMB) control numbers assigned under the Paperwork Reduction Act.
(a) The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520)
requires FAA to get approval from OMB for our information collection
activities, and to list a record of those approvals in the Federal
Register. This subpart lists the control numbers OMB assigned to FAA's
information collection activities.
(b) The table listing OMB control numbers assigned to FAA's
information collection activities follows:
------------------------------------------------------------------------
14 CFR part or section identified and
described Current OMB control number
------------------------------------------------------------------------
Part 14................................... *COM041*2120-0539
Part 17................................... 2120-0632
Part 21................................... 2120-0018, 2120-0552
Part 34................................... 2120-0508
Part 39................................... 2120-0056
Part 43................................... 2120-0020
Part 45................................... 2120-0508
Part 47................................... 2120-0024, 2120-0042
Part 49................................... 2120-0043
Part 61................................... 2120-0021, 2120-0034, 2120-
0543, 2120-0571
[[Page 27]]
Part 63................................... 2120-0007
Part 65................................... 2120-0022, 2120-0535, 2120-
0571, 2120-0648
Part 67................................... 2120-0034, 2120-0543
Part 77................................... 2120-0001
Part 91................................... 2120-0005, 2120-0026, 2120-
0027, 2120-0573, 2120-0606,
2120-0620, 2120-0631, 2120-
0651
Part 93................................... 2120-0524, 2120-0606, 2120-
0639
Part 101.................................. 2120-0027
Part 105.................................. 2120-0027, 2120-0641
Part 107.................................. 2120-0075, 2120-0554, 2120-
0628
Part 108.................................. 2120-0098, 2120-0554, 2120-
0577, 2120-0628, 2120-0642
Part 109.................................. 2120-0505
Part 119.................................. 2120-0593
Part 121.................................. 2120-0008, 2120-0028, 2120-
0535, 2120-0571, 2120-0600,
2120-0606, 2120-0614, 2120-
0616, 2120-0631, 2120-0651,
2120-0653
Part 125.................................. 2120-0028, 2120-0085, 2120-
0616, 2120-0651
Part 129.................................. 2120-0028, 2120-0536, 2120-
0616, 2120-0638
Part 133.................................. 2120-0044
Part 135.................................. 2120-0003, 2120-0028, 2120-
0039, 2120-0535, 2120-0571,
2120-0600, 2120-0606, 2120-
0614, 2120-0616, 2120-0620,
2120-0631, 2120-0653
Part 137.................................. 2120-0049
Part 139.................................. 2120-0045, 2120-0063
Part 141.................................. 2120-0009
Part 142.................................. 2120-0570
Part 145.................................. 2120-0003, 2120-0010, 2120-
0571
Part 147.................................. 2120-0040
Part 150.................................. 2120-0517
Part 157.................................. 2120-0036
Part 158.................................. 2120-0557
Part 161.................................. 2120-0563
Part 171.................................. 2120-0014
Part 183.................................. 2120-0033, 2120-0604
Part 193.................................. 2120-0646
Part 198.................................. 2120-0514
Part 400.................................. 2120-0643, 2120-0644, 0649
Part 401.................................. 2120-0608
Part 440.................................. 2120-0601
SFAR 36................................... 2120-0507
SFAR 71................................... 2120-0620
------------------------------------------------------------------------
[Doc. No. 1999-6622, 65 FR 50863, Aug. 21, 2000, as amended by Amdt. 11-
47, 67 FR 9553, Mar. 1, 2002]
Appendix 1 to Part 11--Oral Communications With the Public During
Rulemaking
1. What is an ex parte contact?
``Ex parte'' is a Latin term that means ``one sided,'' and indicates
that not all parties to an issue were present when it was discussed. An
ex parte contact involving rulemaking is any communication between FAA
and someone outside the government regarding a specific rulemaking
proceeding, before that proceeding closes. A rulemaking proceeding does
not close until we publish the final rule or withdraw the NPRM. Because
an ex parte contact excludes other interested persons, including the
rest of the public, from the communication, it may give an unfair
advantage to one party, or appear to do so.
2. Are written comments to the docket ex parte contacts?
Written comments submitted to the docket are not ex parte contacts
because they are available for inspection by all members of the public.
3. What is DOT policy on ex parte contacts?
It is DOT policy to provide for open development of rules and to
encourage full public participation in rulemaking actions. In addition
to providing opportunity to respond in writing to an NPRM and to appear
and be heard at a hearing, DOT policy encourages agencies to contact the
public directly when we need factual information to resolve questions of
substance. It also encourages DOT agencies to be receptive to
appropriate contacts from persons affected by or interested in a
proposed action. But under some circumstances an ex parte contact could
affect the basic openness and fairness of the rulemaking process. Even
the appearance of impropriety can affect public confidence in the
process. For this reason, DOT policy sets careful guidelines for these
contacts. The kind of ex parte contacts permitted and the procedures we
follow depend on when the contact occurs in the rulemaking process.
4. What kinds of ex parte contacts does DOT policy permit before we
issue an ANPRM, NPRM, Supplemental NPRM, or immediately adopted final
rule?
The DOT policy authorizes ex parte contacts that we need to obtain
technical and economic information. We need this information to decide
whether to issue a regulation and what it should say. Each contact that
influences our development of the regulation is noted in the preamble.
For multiple contacts that are similar, we may provide only a general
discussion. For contacts not discussed in the preamble, we place a
report discussing each contact or group of related contacts in the
rulemaking docket when it is opened.
5. Does DOT policy permit ex parte contacts during the comment period?
No, during the comment period, the public docket is available for
written comments
[[Page 28]]
from any member of the public. These comments can be examined and
responded to by any interested person. Because this public forum is
available, DOT policy discourages ex parte contacts during the comment
period. They are not necessary to collect the information the agency
needs to make its decision.
6. What if the FAA believes it needs to meet with members of the public
to discuss the proposal?
If the FAA determines that it would be helpful to invite members of
the public to make oral presentations to it regarding the proposal, we
will announce a public meeting in the Federal Register.
7. Are any oral contacts concerning the proposal permitted during the
comment period?
If you contact the agency with questions regarding the proposal
during the comment period, we can only provide you with information that
has already been made available to the general public. If you contact
the agency to discuss the proposal, you will be told that the proper
avenue of communication during the comment period is a written
communication to the docket.
8. If a substantive ex parte contact does occur during the comment
period, what does FAA do?
While FAA tries to ensure that FAA personnel and the public are
aware of DOT policy, substantive ex parte contacts do occasionally
occur, for example, at meetings not intended for that purpose. In such a
case, we place a summary of the contact and a copy of any materials
provided at the meeting in the rulemaking docket. We encourage
participants in such a meeting to file written comments in the docket.
9. Does DOT policy permit ex parte contacts the comment period has
closed?
DOT policy strongly discourages ex parte contacts initiated by
commenters to discuss their position on the proposal once the comment
period has closed. Such a contact at this time would be improper, since
other interested persons would not have an opportunity to respond. If we
need further information regarding a comment in the docket, we may
request this from a commenter. A record of this contact and the
information provided is placed in the docket. If we need to make other
contacts to update factual information, such as economic data, we will
disclose this information in the final rule docket or in the economic
studies accompanying it, which are available in the docket.
10. What if FAA needs to meet with interested persons to discuss the
proposal after the comment period has closed?
If FAA determines that it would be helpful to meet with a person or
group after the close of the comment period to discuss a course of
action to be taken, we will announce the meeting in the Federal
Register. We will also consider reopening the comment period. If an
inappropriate ex parte contact does occur after the comment period
closes, a summary of the contact and a copy of any material distributed
during meeting will be placed in the docket if it could be seen as
influencing the rulemaking process.
11. Under what circumstances will FAA reopen the comment period?
If we receive an ex parte communication after the comment period has
closed that could substantially influence the rulemaking, we may reopen
the comment period. DOT policy requires the agency to carefully consider
whether the substance of the contact will give the commenter an unfair
advantage, since the rest of the public may not see the record of the
contact in the docket. When the substance of a proposed rule is
significantly changed as a result of such an oral communication, DOT
policy and practice requires that the comment period be reopened by
issuing a supplemental NPRM in which the reasons for the change are
discussed.
12. What if I have important information for FAA and the comment period
is closed?
You may always provide FAA with written information after the close
of the comment period and it will be considered if time permits. Because
contacts after the close of the comment may not be seen by other
interested persons, if they substantially and specifically influence the
FAA's decision, we may need to reopen the comment period.
PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES--Table of Contents
Subpart A--Investigative Procedures
Sec.
13.1 Reports of violations.
13.3 Investigations (general).
13.5 Formal complaints.
13.7 Records, documents and reports.
Subpart B--Administrative Actions
13.11 Administrative disposition of certain violations.
Subpart C--Legal Enforcement Actions
13.13 Consent orders.
13.15 Civil penalties: Federal Aviation Act of 1958, as amended,
involving an amount
[[Page 29]]
in controversy in excess of $50,000; an in rem action; seizure
of aircraft; or injunctive relief.
13.16 Civil penalties: Federal Aviation Act of 1958, involving an
amount in controversy not exceeding $50,000; Hazardous
Materials Transportation Act.
13.17 Seizure of aircraft.
13.19 Certificate action.
13.20 Orders of compliance, cease and desist orders, orders of denial,
and other orders.
13.21 Military personnel.
13.23 Criminal penalties.
13.25 Injunctions.
13.27 Final order of Hearing Officer in certificate of aircraft
registration proceedings.
13.29 Civil penalties: Streamlined enforcement procedures for certain
security violations.
Subpart D--Rules of Practice for FAA Hearings
13.31 Applicability.
13.33 Appearances.
13.35 Request for hearing.
13.37 Hearing Officer's powers.
13.39 Disqualification of Hearing Officer.
13.41 [Reserved]
13.43 Service and filing of pleadings, motions, and documents.
13.44 Computation of time and extension of time.
13.45 Amendment of notice and answer.
13.47 Withdrawal of notice or request for hearing.
13.49 Motions.
13.51 Intervention.
13.53 Depositions.
13.55 Notice of hearing.
13.57 Subpoenas and witness fees.
13.59 Evidence.
13.61 Argument and submittals.
13.63 Record.
Subpart E--Orders of Compliance Under the Hazardous Materials
Transportation Act
13.71 Applicability.
13.73 Notice of proposed order of compliance.
13.75 Reply or request for hearing.
13.77 Consent order of compliance.
13.79 Hearing.
13.81 Order of immediate compliance.
13.83 Appeal.
13.85 Filing, service and computation of time.
13.87 Extension of time.
Subpart F--Formal Fact-Finding Investigation Under an Order of
Investigation
13.101 Applicability.
13.103 Order of investigation.
13.105 Notification.
13.107 Designation of additional parties.
13.109 Convening the investigation.
13.111 Subpoenas.
13.113 Noncompliance with the investigative process.
13.115 Public proceedings.
13.117 Conduct of investigative proceeding or deposition.
13.119 Rights of persons against self-incrimination.
13.121 Witness fees.
13.123 Submission by party to the investigation.
13.125 Depositions.
13.127 Reports, decisions and orders.
13.129 Post-investigation action.
13.131 Other procedures.
Subpart G--Rules of Practice in FAA Civil Penalty Actions
13.201 Applicability.
13.202 Definitions.
13.203 Separation of functions.
13.204 Appearances and rights of parties.
13.205 Administrative law judges.
13.206 Intervention.
13.207 Certification of documents.
13.208 Complaint.
13.209 Answer.
13.210 Filing of documents.
13.211 Service of documents.
13.212 Computation of time.
13.213 Extension of time.
13.214 Amendment of pleadings.
13.215 Withdrawal of complaint or request for hearing.
13.216 Waivers.
13.217 Joint procedural or discovery schedule.
13.218 Motions.
13.219 Interlocutory appeals.
13.220 Discovery.
13.221 Notice of hearing.
13.222 Evidence.
13.223 Standard of proof.
13.224 Burden of proof.
13.225 Offer of proof.
13.226 Public disclosure of evidence.
13.227 Expert or opinion witnesses.
13.228 Subpoenas.
13.229 Witness fees.
13.230 Record.
13.231 Argument before the administrative law judge.
13.232 Initial decision.
13.233 Appeal from initial decision.
13.234 Petition to reconsider or modify a final decision and order of
the FAA decisionmaker on appeal.
13.235 Judicial review of a final decision and order.
Subpart H--Civil Monetary Penalty Inflation Adjustment
13.301 Scope and purpose.
[[Page 30]]
13.303 Definitions.
13.305 Cost of living adjustments of civil monetary penalties.
Subpart I--Flight Operational Quality Assurance Programs
13.401 Flight Operational Quality Assurance program: Prohibition
against use of data for enforcement purposes.
Authority: 18 U.S.C. 6002; 28 U.S.C. 2461 (note); 49 U.S.C. 106(g),
5121-5124, 40113-40114, 44103-44106, 44702-44703, 44709-44710, 44713,
46101-46110, 46301-46316, 46501-46502, 46504-46507, 47106, 47111, 47122,
47306, 47531-47532.
Source: Docket No. 18884, 44 FR 63723, Nov. 5, 1979, unless
otherwise noted.
Subpart A--Investigative Procedures
Sec. 13.1 Reports of violations.
(a) Any person who knows of a violation of the Federal Aviation Act
of 1958, as amended, the Hazardous Materials Transportation Act relating
to the transportation or shipment by air of hazardous materials, the
Airport and Airway Development Act of 1970, the Airport and Airway
Improvement Act of 1982, the Airport and Airway Improvement Act of 1982
as amended by the Airport and Airway Safety and Capacity Expansion Act
of 1987, or any rule, regulation, or order issued thereunder, should
report it to appropriate personnel of any FAA regional or district
office.
(b) Each report made under this section, together with any other
information the FAA may have that is relevant to the matter reported,
will be reviewed by FAA personnel to determine the nature and type of
any additional investigation or enforcement action the FAA will take.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-17,
53 FR 33783, Aug. 31, 1988]
Sec. 13.3 Investigations (general).
(a) Under the Federal Aviation Act of 1958, as amended, (49 U.S.C.
1301 et seq.), the Hazardous Materials Transportation Act (49 U.S.C.
1801 et seq.), the Airport and Airway Development Act of 1970 (49 U.S.C.
1701 et seq.), the Airport and Airway Improvement Act of 1982 (49 U.S.C.
2201 et seq.), the Airport and Airway Improvement Act of 1982 (as
amended, 49 U.S.C. App. 2201 et seq., Airport and Airway Safety and
Capacity Expansion Act of 1987), and the Regulations of the Office of
the Secretary of Transportation (49 CFR 1 et seq.), the Administrator
may conduct investigations, hold hearings, issue subpoenas, require the
production of relevant documents, records, and property, and take
evidence and depositions.
(b) For the purpose of investigating alleged violations of the
Federal Aviation Act of 1958, as amended the Hazardous Materials
Transportation Act, the Airport and Airway Development Act of 1970, the
Airport and Airway Improvement Act of 1982, the Airport and Airway
Improvement Act of 1982 as amended by the Airport and Airway Safety and
Capacity Expansion Act of 1987, or any rule, regulation, or order issued
thereunder, the Administrator's authority has been delegated to the
various services and or offices for matters within their respective
areas for all routine investigations. When the compulsory processes of
sections 313 and 1004 (49 U.S.C. 1354 and 1484) of the Federal Aviation
Act, or section 109 of the Hazardous Materials Transportation Act (49
U.S.C. 1808) are invoked, the Administrator's authority has been
delegated to the Chief Counsel, the Deputy Chief Counsel, each Assistant
Chief Counsel, each Regional Counsel, the Aeronautical Center Counsel,
and the Technical Center Counsel.
(c) In conducting formal investigations, the Chief Counsel, the
Deputy Chief Counsel, each Assistant Chief Counsel, each Regional
Counsel, the Aeronautical Center Counsel, and the Technical Center
Counsel may issue an order of investigation in accordance with Subpart F
of this part.
(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
[[Page 31]]
initiated before December 16, 1996, the effective date of part 16 of
this chapter.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-17,
53 FR 33783, Aug. 31, 1988; 53 FR 35255, Sept. 12, 1988; Amdt. 13-19, 54
FR 39290, Sept. 25, 1989; Amdt. 13-27, 61 FR 54004, Oct. 16, 1996; Amdt.
13-29, 62 FR 46865, Sept. 4, 1997]
Sec. 13.5 Formal complaints.
(a) Any person may file a complaint with the Administrator with
respect to anything done or omitted to be done by any person in
contravention of any provision of any Act or of any regulation or order
issued under it, as to matters within the jurisdiction of the
Administrator. This section does not apply to complaints against the
Administrator or employees of the FAA acting within the scope of their
employment.
(b) Complaints filed under this section must--
(1) Be submitted in writing and identified as a complaint filed for
the purpose of seeking an appropriate order or other enforcement action;
(2) Be submitted to the Federal Aviation Administration, Office of
the Chief Counsel, Attention: Enforcement Docket (AGC-10), 800
Independence Avenue, S.W., Washington, DC 20591;
(3) Set forth the name and address, if known, of each person who is
the subject of the complaint and, with respect to each person, the
specific provisions of the Act or regulation or order that the
complainant believes were violated;
(4) Contain a concise but complete statement of the facts relied
upon to substantiate each allegation;
(5) State the name, address and telephone number of the person
filing the complaint; and
(6) Be signed by the person filing the complaint or a duly
authorized representative.
(c) Complaints which do not meet the requirements of paragraph (b)
of this section will be considered reports under Sec. 13.1.
(d) Complaints which meet the requirements of paragraph (b) of this
section will be docketed and a copy mailed to each person named in the
complaint.
(e) Any complaint filed against a member of the Armed Forces of the
United States acting in the performance of official duties shall be
referred to the Secretary of the Department concerned for action in
accordance with the procedures set forth in Sec. 13.21 of this part.
(f) The person named in the complaint shall file an answer within 20
days after service of a copy of the complaint.
(g) After the complaint has been answered or after the allotted time
in which to file an answer has expired, the Administrator shall
determine if there are reasonable grounds for investigating the
complaint.
(h) If the Administrator determines that a complaint does not state
facts which warrant an investigation or action, the complaint may be
dismissed without a hearing and the reason for the dismissal shall be
given, in writing, to the person who filed the complaint and the person
named in the complaint.
(i) If the Administrator determines that reasonable grounds exist,
an informal investigation may be initiated or an order of investigation
may be issued in accordance with Subpart F of this part, or both. Each
person named in the complaint shall be advised which official has been
delegated the responsibility under Sec. 13.3(b) or (c) for conducting
the investigation.
(j) If the investigation substantiates the allegations set forth in
the complaint, a notice of proposed order may be issued or other
enforcement action taken in accordance with this part.
(k) The complaint and other pleadings and official FAA records
relating to the disposition of the complaint are maintained in current
docket form in the Enforcement Docket (AGC-10), Office of the Chief
Counsel, Federal Aviation Administration, 800 Independence Avenue, S.W.,
Washington, D. C. 20591. Any interested person may examine any docketed
material at that office, at any time after the docket is established,
except material that is ordered
[[Page 32]]
withheld from the public under applicable law or regulations, and may
obtain a photostatic or duplicate copy upon paying the cost of the copy.
(Secs. 313(a), 314(a), 601 through 610, and 1102 of the Federal Aviation
Act of 1958 (49 U.S.C. 1354(a), 1421 through 1430, 1502); sec. 6(c),
Dept. of Transportation Act (49 U.S.C. 1655(c)))
[Doc. No 13-14, 44 FR 63723, Nov. 5, 1979; as amended by Amdt. 13-16, 45
FR 35307, May 27, 1980; Amdt. 13-19, 54 FR 39290, Sept. 25, 1989]
Sec. 13.7 Records, documents and reports.
Each record, document and report that the Federal Aviation
Regulations require to be maintained, exhibited or submitted to the
Administrator may be used in any investigation conducted by the
Administrator; and, except to the extent the use may be specifically
limited or prohibited by the section which imposes the requirement, the
records, documents and reports may be used in any civil penalty action,
certificate action, or other legal proceeding.
Subpart B--Administrative Actions
Sec. 13.11 Administrative disposition of certain violations.
(a) If it is determined that a violation or an alleged violation of
the Federal Aviation Act of 1958, or an order or regulation issued under
it, or of the Hazardous Materials Transportation Act, or an order or
regulation issued under it, does not require legal enforcement action,
an appropriate official of the FAA field office responsible for
processing the enforcement case or other appropriate FAA official may
take administrative action in disposition of the case.
(b) An administrative action under this section does not constitute
a formal adjudication of the matter, and may be taken by issuing the
alleged violator--
(1) A ``Warning Notice'' which recites available facts and
information about the incident or condition and indicates that it may
have been a violation; or
(2) A ``Letter of Correction'' which confirms the FAA decision in
the matter and states the necessary corrective action the alleged
violator has taken or agrees to take. If the agreed corrective action is
not fully completed, legal enforcement action may be taken.
Subpart C--Legal Enforcement Actions
Sec. 13.13 Consent orders.
(a) At any time before the issuance of an order under this subpart,
the official who issued the notice and the person subject to the notice
may agree to dispose of the case by the issuance of a consent order by
the official.
(b) A proposal for a consent order, submitted to the official who
issued the notice, under this section must include--
(1) A proposed order;
(2) An admission of all jurisdictional facts;
(3) An express waiver of the right to further procedural steps and
of all rights to judicial review; and
(4) An incorporation by reference of the notice and an
acknowledgment that the notice may be used to construe the terms of the
order.
(c) If the issuance of a consent order has been agreed upon after
the filing of a request for hearing in accordance with Subpart D of this
part, the proposal for a consent order shall include a request to be
filed with the Hearing Officer withdrawing the request for a hearing and
requesting that the case be dismissed.
Sec. 13.15 Civil penalties: Federal Aviation Act of 1958, as amended, involving an amount in controversy in excess of $50,000; an in rem action; seizure of
aircraft; or injunctive relief.
(a) The following penalties apply to persons who violate the Federal
Aviation Act of l958, as amended:
(1) Any person who violates any provision of Title III, V, VI, or
XII of the Federal Aviation Act of 1958, as amended, or any rule,
regulation, or order issued thereunder, is subject to a civil penalty of
not more than the amount specified in the Act for each violation in
accordance with section 901 of the Federal Aviation Act of 1958, as
amended (49 U.S.C. 1471, et seq.).
(2) Any person who violates section 404(d) of the Federal Aviation
Act of
[[Page 33]]
1958, as amended, or any rule, regulation, or order issued thereunder,
is subject to a civil penalty of not more than the amount specified in
the Act for each violation in accordance with section 404(d) or section
901 of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1374,
1471, et seq.).
(3) Any person who operates aircraft for the carriage of persons or
property for compensation or hire (other than an airman serving in the
capacity of an airman) is subject to a civil penalty of not more than
$10,000 for each violation of Title III, VI, or XII of the Federal
Aviation Act of 1958, as amended, or any rule, regulation, or order
issued thereunder, occurring after December 30, 1987, in accordance with
section 901 of the Federal Aviation Act of l958, as amended (49 U.S.C.
1471 et seq.).
(b) The authority of the Administrator, under section 901 of the
Federal Aviation Act of 1958, as amended, to propose a civil penalty for
a violation of that Act, or a rule, regulation, or order issued
thereunder, and the ability to refer cases to the United States Attorney
General, or the delegate of the Attorney General, for prosecution of
civil penalty actions proposed by the Administrator, involving an amount
in controversy in excess of $50,000, an in rem action, seizure of
aircraft subject to lien, or suit for injunctive relief, or for
collection of an assessed civil penalty, is delegated to the Chief
Counsel, the Assistant Chief Counsel, Enforcement, the Assistant Chief
Counsel, Regulations, the Assistant Chief Counsel, Europe, Africa, and
Middle East Area Office, the Regional Counsel, the Aeronautical Center
Counsel, and the Technical Center Counsel.
(c) The Administrator may compromise any civil penalty, proposed in
accordance with section 901 of the Federal Aviation Act of 1958, as
amended, involving an amount in controversy in excess of $50,000, an in
rem action, seizure of aircraft subject to lien, or suit for injunctive
relief, prior to referral of the civil penalty action to the United
States Attorney General, or the delegate of the Attorney General, for
prosecution.
(1) The Administrator, through the Chief Counsel, the Assistant
Chief Counsel, Enforcement, the Assistant Chief Counsel, Regulations,
the Assistant Chief Counsel, Europe, Africa, and Middle East Area
Office, the Regional Counsel, the Aeronautical Center Counsel, and the
Technical Center Counsel sends a civil penalty letter to the person
charged with a violation of the Federal Aviation Act of 1958, as
amended, or a rule, regulation, or order issued thereunder. The civil
penalty letter contains a statement of the charges, the applicable law,
rule, regulation, or order, the amount of civil penalty that the
Administrator will accept in full settlement of the action or an offer
to compromise the civil penalty.
(2) Not later than 30 days after receipt of the civil penalty
letter, the person charged with a violation may present any material or
information in answer to the charges to the agency attorney, either
orally or in writing, that may explain, mitigate, or deny the violation
or that may show extenuating circumstances. The Administrator will
consider any material or information submitted in accordance with this
paragraph to determine whether the person is subject to a civil penalty
or to determine the amount for which the Administrator will compromise
the action.
(3) If the person charged with the violation offers to compromise
for a specific amount, that person shall send a certified check or money
order for that amount, payable to the Federal Aviation Administration,
to the agency attorney. The Chief Counsel, the Assistant Chief Counsel,
Enforcement, the Assistant Chief Counsel, Regulations, the Assistant
Chief Counsel, Europe, Africa, and Middle East Area Office, the Regional
Counsel, the Aeronautical Center Counsel, or the Technical Center
Counsel may accept the certified check or money order or may refuse and
return the certified check or money order.
(4) If the offer to compromise is accepted by the Administrator, the
agency attorney will send a letter to the person charged with the
violation stating that the certified check or money order is accepted in
full settlement of the civil penalty action.
(5) If the parties cannot agree to compromise the civil penalty
action or
[[Page 34]]
the offer to compromise is rejected and the certified check or money
order submitted in compromise is returned, the Administrator may refer
the civil penalty action to the United States Attorney General, or the
delegate of the Attorney General, to begin proceedings in a United
States District Court, pursuant to the authority in section 903 of the
Federal Aviation Act, as amended (49 U.S.C. 1473), to prosecute and
collect the civil penalty.
[Amdt. 13-18, 53 FR 34653, Sept. 7, 1988, as amended by Amdt. 13-20, 55
FR 15128, Apr. 20, 1990; Amdt. 13-29, 62 FR 46865, Sept. 4, 1997]
Sec. 13.16 Civil penalties: Federal Aviation Act of 1958, involving an amount in controversy not exceeding $50,000; Hazardous Materials Transportation Act.
(a) General. The following penalties apply to persons who violate
the Federal Aviation Act of 1958, as amended, and the Hazardous
Materials Transportation Act:
(1) Any person who violates any provision of title III, V, VI, or
XII of the Federal Aviation Act of 1958, as amended, or any rule,
regulation, or order issued thereunder, is subject to a civil penalty of
not more than the amount specified in the Act for each violation in
accordance with section 901 of the Federal Aviation Act, of 1958, as
amended (49 U.S.C. 1471, et seq.).
(2) Any person who violates section 404(d) of the Federal Aviation
Act of 1958, as amended, or any rule, regulation, or order issued
thereunder, is subject to a civil penalty of not more than the amount
specified in the Act for each violation in accordance with section
404(d) or section 901 of the Federal Aviation Act of 1958, as amended
(49 U.S.C. 1374, 1471, et seq.).
(3) Any person who operates aircraft for the carriage of persons or
property for compensation or hire (other than an airman serving in the
capacity of an airman) is subject to a civil penalty of not more than
$10,000 for each violation of title III, VI, or XII of the Federal
Aviation Act of 1958, as amended, or any rule, regulation, or order
issued thereunder, occurring after December 30, 1987, in accordance with
section 901 of the Federal Aviation Act of 1958, as amended (49 U.S.C.
1471, et seq.).
(4) Any person who knowingly commits an act in violation of the
Hazardous Materials Transportation Act, or any rule, regulation, or
order issued thereunder, is subject to a civil penalty of not more than
$10,000 for each violation in accordance with section 901 of the Federal
Aviation Act of 1958, as amended, and section 110 of the Hazardous
Materials Transportation Act (49 U.S.C. 1471 and 1809, et seq.). An
order assessing civil penalty for a violation under the Hazardous
Materials Transportation Act, or a rule, regulation, or order issued
thereunder, will be issued only after consideration of--
(i) The nature and circumstances of the violation;
(ii) The extent and gravity of the violation;
(iii) The person's degree of culpability;
(iv) The person's history of prior violations;
(v) The person's ability to pay the civil penalty;
(vi) The effect on the person's ability to continue in business; and
(vii) Such other matters as justice may require.
(b) Order assessing civil penalty. An order assessing civil penalty
may be issued for a violation described in paragraph (a) of this
section, or as otherwise provided by statute, after notice and
opportunity for a hearing. A person charged with a violation may be
subject to an order assessing civil penalty in the following
circumstances:
(1) An order assessing civil penalty may be issued if a person
charged with a violation submits or agrees to submit a civil penalty for
a violation.
(2) An order assessing civil penalty may be issued if a person
charged with a violation does not request a hearing under paragraph
(e)(2)(ii) of this section within 15 days after receipt of a final
notice of proposed civil penalty.
(3) Unless an appeal is filed with the FAA decisionmaker in a timely
manner, an initial decision or order of an administrative law judge
shall be considered an order assessing civil penalty if an
administrative law judge finds that an alleged violation occurred and
determines that a civil penalty, in an amount found appropriate by the
administrative law judge, is warranted.
[[Page 35]]
(4) Unless a petition for review is filed with a U.S. Court of
Appeals in a timely manner, a final decision and order of the
Administrator shall be considered an order assessing civil penalty if
the FAA decisionmaker finds that an alleged violation occurred and a
civil penalty is warranted.
(c) Delegation of authority. The authority of the Administrator,
under section 901 and section 905 of the Federal Aviation Act of 1958,
as amended, and section 110 of the Hazardous Materials Transportation
Act, to initiate and assess civil penalties for a violation of those
Acts, or a rule, regulation, or order issued thereunder, is delegated to
the Deputy Chief Counsel, the Assistant Chief Counsel, Enforcement, the
Assistant Chief Counsel, Regulations, the Assistant Chief Counsel,
Europe, Africa, and Middle East Area Office, each Regional Counsel, the
Aeronautical Center Counsel, and the Technical Center Counsel. The
authority of the Administrator to refer cases to the Attorney General of
the United States, or the delegate of the Attorney General, for the
collection of civil penalties, is delegated to the Chief Counsel, the
Deputy Chief Counsel, the Assistant Chief Counsel, Enforcement, the
Assistant Chief Counsel, Regulations, the Assistant Chief Counsel,
Europe, Africa, and Middle East Area Office, each Regional Counsel, the
Aeronautical Center Counsel, and the Technical Center Counsel.
(d) Notice of proposed civil penalty. A civil penalty action is
initiated by sending a notice of proposed civil penalty to the person
charged with a violation of the Federal Aviation Act of 1958, as
amended, the Hazardous Materials Transportation Act, or a rule,
regulation, or order issued thereunder. A notice of proposed civil
penalty will be sent to the individual charged with a violation or to
the president of the corporation or company charged with a violation. In
response to a notice of proposed civil penalty, a corporation or company
may designate in writing another person to receive documents in that
civil penalty action. The notice of proposed civil penalty contains a
statement of the charges and the amount of the proposed civil penalty.
Not later than 30 days after receipt of the notice of proposed civil
penalty, the person charged with a violation shall--
(1) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing civil penalty or
compromise order shall be issued in that amount;
(2) Submit to the agency attorney one of the following:
(i) Written information, including documents and witness statements,
demonstrating that a violation of the regulations did not occur or that
a penalty or the amount of the penalty is not warranted by the
circumstances.
(ii) A written request to reduce the proposed civil penalty, the
amount of reduction, and the reasons and any documents supporting a
reduction of the proposed civil penalty, including records indicating a
financial inability to pay or records showing that payment of the
proposed civil penalty would prevent the person from continuing in
business.
(iii) A written request for an informal conference to discuss the
matter with the agency attorney and to submit relevant information or
documents; or
(3) Request a hearing in which case a complaint shall be filed with
the hearing docket clerk.
(e) Final notice of proposed civil penalty. A final notice of
proposed civil penalty may be issued after participation in informal
procedures provided in paragraph (d)(2) of this section or failure to
respond in a time1y manner to a notice of proposed civil penalty. A
final notice of proposed civil penalty will be sent to the individual
charged with a violation, to the president of the corporation or company
charged with a violation, or a person previously designated in writing
by the individual, corporation, or company to receive documents in that
civil penalty action. If not previously done in response to a notice of
proposed civil penalty, a corporation or company may designate in
writing another person to receive documents in that civil penalty
action. The final notice of proposed civil penalty contains a statement
of the charges and the amount of the proposed civil penalty and, as a
result of information submitted to the agency attorney during informal
procedures, may modify
[[Page 36]]
an allegation or a proposed civil penalty contained in a notice of
proposed civil penalty.
(1) A final notice of proposed civil penalty may be issued--
(i) If the person charged with a violation fails to respond to the
notice of proposed civil penalty within 30 days after receipt of that
notice; or
(ii) If the parties participated in any informal procedures under
paragraph (d)(2) of this section and the parties have not agreed to
compromise the action or the agency attorney has not agreed to withdraw
the notice of proposed civil penalty.
(2) Not later than 15 days after receipt of the final notice of
proposed civil penalty, the person charged with a violation shall do one
of the following--
(i) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing civil penalty or a
compromise order shall be issued in that amount; or
(ii) Request a hearing in which case a complaint shall be filed with
the hearing docket clerk.
(f) Request for a hearing. Any person charged with a violation may
request a hearing, pursuant to paragraph (d)(3) or paragraph (e)(2)(ii)
of this section, to be conducted in accordance with the procedures in
subpart G of this part. A person requesting a hearing shall file a
written request for a hearing with the hearing docket clerk (Hearing
Docket, Federal Aviation Administration, 800 Independence Avenue, SW.,
Room 924A, Washington, DC 20591, Attention: Hearing Docket Clerk) and
shall mail a copy of the request to the agency attorney. The request for
a hearing may be in the form of a letter but must be dated and signed by
the person requesting a hearing. The request for a hearing may be
typewritten or may be legibly handwritten.
(g) Hearing. If the person charged with a violation requests a
hearing pursuant to paragraph (d)(3) or paragraph (e)(2)(ii) of this
section, the original complaint shall be filed with the hearing docket
clerk and a copy shall be sent to the person requesting the hearing. The
procedural rules in subpart G of this part apply to the hearing and any
appeal. At the close of the hearing, the administrative law judge shall
issue, either orally on the record or in writing, an initial decision,
including the reasons for the decision, that contains findings or
conclusions on the allegations contained, and the civil penalty sought,
in the complaint.
(h) Appeal. Either party may appeal the administrative law judge's
initial decision to the FAA decisionmaker pursuant to the procedures in
subpart G of this part. If a party files a notice of appeal pursuant to
Sec. 13.233 of subpart G, the effectiveness of the initial decision is
stayed until a final decision and order of the Administrator have been
entered on the record. The FAA decisionmaker shall review the record and
issue a final decision and order of the Administrator that affirm,
modify, or reverse the initial decision. The FAA decisionmaker may
assess a civil penalty but shall not assess a civil penalty in an amount
greater than that sought in the complaint.
(i) Payment. A person shall pay a civil penalty by sending a
certified check or money order, payable to the Federal Aviation
Administration, to the agency attorney.
(j) Collection of civil penalties. If a person does not pay a civil
penalty imposed by an order assessing civil penalty or a compromise
order within 60 days after service of the order, the Administrator may
refer the order to the United States Attorney General, or the delegate
of the Attorney General, to begin proceedings to collect the civil
penalty. The action shall be brought in a United States District Court,
pursuant to the authority in section 903 of the Federal Aviation Act of
1958, as amended (49 U.S.C. 1473), or section 110 of the Hazardous
Materials Transportation Act (49 U.S.C. 1809).
(k) Exhaustion of administrative remedies. A party may only petition
for review of a final decision and order of the Administrator to the
courts of appeals of the United States or the United States Court of
Appeals for the District of Columbia pursuant to section 1006 of the
Federal Aviation Act of 1958, as amended. Neither an initial decision or
order issued by an administrative law judge, that has not been appealed
to
[[Page 37]]
the FAA decisionmaker, nor an order compromising a civil penalty action
constitutes a final order of the Administrator for the purposes of
judicial appellate review under section 1006 of the Federal Aviation Act
of 1958, as amended.
(l) Compromise. The FAA may compromise any civil penalty action
initiated in accordance with section 901 and section 905 of the Federal
Aviation Act of 1958, as amended, involving an amount in controversy not
exceeding $50,000, or any civil penalty action initiated in accordance
with section 901 of the Federal Aviation Act of 1958, as amended, and
section 110 of the Hazardous Materials Transportation Act, at any time
before referring the action to the United States Attorney for
collection.
(1) An agency attorney may compromise any civil penalty action where
a person charged with a violation agrees to pay a civil penalty and the
FAA agrees to make no finding of violation. Pursuant to such agreement,
a compromise order shall be issued, stating:
(i) The person agrees to pay a civil penalty.
(ii) The FAA makes no finding of a violation.
(iii) The compromise order shall not be used as evidence of a prior
violation in any subsequent civil penalty proceeding or certificate
action proceeding.
(2) An agency attorney may compromise the amount of any civil
penalty proposed in a notice, assessed in an order, or imposed in a
compromise order.
[Amdt. 13-21, 55 FR 27574, July 3, 1990; 55 FR 29293, July 18, 1990; 55
FR 31027, July 30, 1990; Amdt. 13-29, 62 FR 46865, Sept. 4, 1997]
Sec. 13.17 Seizure of aircraft.
(a) Under section 903 of the Federal Aviation Act of 1958 (49 U.S.C.
1473), a State or Federal law enforcement officer, or a Federal Aviation
Administration safety inspector, authorized in an order of seizure
issued by the Regional Administrator of the region, or by the Chief
Counsel, may summarily seize an aircraft that is involved in a violation
for which a civil penalty may be imposed on its owner or operator.
(b) Each person seizing an aircraft under this section shall place
it in the nearest available and adequate public storage facility in the
judicial district in which it was seized.
(c) The Regional Administrator or Chief Counsel, without delay,
sends a written notice and a copy of this section, to the registered
owner of the seized aircraft, and to each other persons shown by FAA
records to have an interest in it, stating the--
(1) Time, date, and place of seizure;
(2) Name and address of the custodian of the aircraft;
(3) Reasons for the seizure, including the violations believed, or
judicially determined, to have been committed; and
(4) Amount that may be tendered as--
(i) A compromise of a civil penalty for the alleged violation; or
(ii) Payment for a civil penalty imposed by a Federal court for a
proven violation.
(d) The Chief Counsel, or the Regional Counsel or Assistant Chief
Counsel for the region or area in which an aircraft is seized under this
section, immediately sends a report to the United States District
Attorney for the judicial district in which it was seized, requesting
the District Attorney to institute proceedings to enforce a lien against
the aircraft.
(e) The Regional Administrator or Chief Counsel directs the release
of a seized aircraft whenever--
(1) The alleged violator pays a civil penalty or an amount agreed
upon in compromise, and the costs of seizing, storing, and maintaining
the aircraft;
(2) The aircraft is seized under an order of a Federal Court in
proceedings in rem to enforce a lien against the aircraft, or the United
States District Attorney for the judicial district concerned notifies
the FAA that the District Attorney refuses to institute those
proceedings; or
(3) A bond in the amount and with the sureties prescribed by the
Chief Counsel, the Regional Counsel, or the Assistant Chief Counsel is
deposited, conditioned on payment of the penalty, or the compromise
amount, and the
[[Page 38]]
costs of seizing, storing, and maintaining the aircraft.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19,
54 FR 39290, Sept. 25, 1989; Amdt. 13-29, 62 FR 46865, Sept. 4, 1997]
Sec. 13.19 Certificate action.
(a) Under section 609 of the Federal Aviation Act of 1958 (49 U.S.C.
1429), the Administrator may reinspect any civil aircraft, aircraft
engine, propeller, appliance, air navigation facility, or air agency,
and may re-examine any civil airman. Under section 501(e) of the FA Act,
any Certificate of Aircraft Registration may be suspended or revoked by
the Administrator for any cause that renders the aircraft ineligible for
registration.
(b) If, as a result of such a reinspection re-examination, or other
investigation made by the Administrator under section 609 of the FA Act,
the Administrator determines that the public interest and safety in air
commerce requires it, the Administrator may issue an order amending,
suspending, or revoking, all or part of any type certificate, production
certificate, airworthiness certificate, airman certificate, air carrier
operating certificate, air navigation facility certificate, or air
agency certificate. This authority may be exercised for remedial
purposes in cases involving the Hazardous Materials Transportation Act
(49 U.S.C. 1801 et seq.) or regulations issued under that Act. This
authority is also exercised by the Chief Counsel, the Assistant Chief
Counsel, Enforcement, the Assistant Chief Counsel, Regulations, the
Assistant Chief Counsel, Europe, Africa, and Middle East Area Office,
each Regional Counsel, and the Aeronautical Center Counsel. If the
Administrator finds that any aircraft registered under Part 47 of this
chapter is ineligible for registration or if the holder of a Certificate
of Aircraft Registration has refused or failed to submit AC Form 8050-
73, as required by Sec. 47.51 of this chapter, the Administrator issues
an order suspending or revoking that certificate. This authority as to
aircraft found ineligible for registration is also exercised by each
Regional Counsel, the Aeronautical Center Counsel, and the Assistant
Chief Counsel, Europe, Africa, and Middle East Area Office.
(c) Before issuing an order under paragraph (b) of this section, the
Chief Counsel, the Assistant Chief Counsel, Enforcement, the Assistant
Chief Counsel, Regulations, the Assistant Chief Counsel, Europe, Africa,
and Middle East Area Office, each Regional Counsel, or the Aeronautical
Center Counsel advises the certificate holder of the charges or other
reasons upon which the Administrator bases the proposed action and,
except in an emergency, allows the holder to answer any charges and to
be heard as to why the certificate should not be amended, suspended, or
revoked. The holder may, by checking the appropriate box on the form
that is sent to the holder with the notice of proposed certificate
action, elect to--
(1) Admit the charges and surrender his or her certificate;
(2) Answer the charges in writing;
(3) Request that an order be issued in accordance with the notice of
proposed certificate action so that the certificate holder may appeal to
the National Transportation Safety Board, if the charges concerning a
matter under Title VI of the FA Act;
(4) Request an opportunity to be heard in an informal conference
with the FAA counsel; or
(5) Request a hearing in accordance with Subpart D of this part if
the charges concern a matter under Title V of the FA Act.
Except as provided in Sec. 13.35(b), unless the certificate holder
returns the form and, where required, an answer or motion, with a
postmark of not later than 15 days after the date of receipt of the
notice, the order of the Administrator is issued as proposed. If the
certificate holder has requested an informal conference with the FAA
counsel and the charges concern a matter under Title V of the FA Act,
the holder may after that conference also request a formal hearing in
writing with a postmark of not later than 10 days after the close of the
conference. After considering any information submitted by the
certificate holder, the Chief Counsel, the Assistant Chief Counsel for
Regulations and Enforcement, the Regional Counsel concerned, or the
Aeronautical Center
[[Page 39]]
Counsel (as to matters under Title V of the FA Act) issues the order of
the Administrator, except that if the holder has made a valid request
for a formal hearing on a matter under Title V of the FA Act initially
or after an informal conference, Subpart D of this part governs further
proceedings.
(d) Any person whose certificate is affected by an order issued
under this section may appeal to the National Transportation Safety
Board. If the certificate holder files an appeal with the Board, the
Administrator's order is stayed unless the Administrator advises the
Board that an emergency exists and safety in air commerce requires that
the order become effective immediately. If the Board is so advised, the
order remains effective and the Board shall finally dispose of the
appeal within 60 days after the date of the advice. This paragraph does
not apply to any person whose Certificate of Aircraft Registration is
affected by an order issued under this section.
[Doc. No. 13-14, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-15,
45 FR 20773, Mar. 31, 1980; Amdt. 13-19, 54 FR 39290, Sept. 25, 1989;
Amdt. 13-29, 62 FR 46865, Sept. 4, 1997]
Sec. 13.20 Orders of compliance, cease and desist orders, orders of denial, and other orders.
(a) This section applies to orders of compliance, cease and desist
orders, orders of denial, and other orders issued by the Administrator
to carry out the provisions of the Federal Aviation Act of 1958, as
amended, the Hazardous Materials Transportation Act, the Airport and
Airway Development Act of 1970, and the Airport and Airway Improvement
Act of 1982, or the Airport and Airway Improvement Act of 1982 as
amended by the Airport and Airway Safety and Capacity Expansion Act of
1987. This section does not apply to orders issued pursuant to section
602 or section 609 of the Federal Aviation Act of 1958, as amended.
(b) Unless the Administrator determines that an emergency exists and
safety in air commerce requires the immediate issuance of an order under
this section, the person subject to the order shall be provided with
notice prior to issuance.
(c) Within 30 days after service of the notice, the person subject
to the order may reply in writing or request a hearing in accordance
with Subpart D of this part.
(d) If a reply is filed, as to any charges not dismissed or not
subject to a consent order, the person subject to the order may, within
10 days after receipt of notice that the remaining charges are not
dismissed, request a hearing in accordance with Subpart D of this part.
(e) Failure to request a hearing within the period provided in
paragraphs (c) or (d) of this section--
(1) Constitutes a waiver of the right to appeal and the right to a
hearing, and
(2) Authorizes the official who issued the notice to find the facts
to be as alleged in the notice, or as modified as the official may
determine necessary based on any written response, and to issue an
appropriate order, without further notice or proceedings.
(f) If a hearing is requested in accordance with paragraph (c) or
(d) of this section, the procedure of Subpart D of this part applies. At
the close of the hearing, the Hearing Officer, on the record or
subsequently in writing, shall set forth findings and conclusions and
the reasons therefor, and either--
(1) Dismiss the notice; or
(2) Issue an order.
(g) Any party to the hearing may appeal from the order of the
Hearing Officer by filing a notice of appeal with the Administrator
within 20 days after the date of issuance of the order.
(h) If a notice of appeal is not filed from the order issued by a
Hearing Officer, such order is the final agency order.
(i) Any person filing an appeal authorized by paragraph (g) of this
section shall file an appeal brief with the Administrator within 40 days
after the date of issuance of the order, and serve a copy on the other
party. A reply brief must be filed within 20 days after service of the
appeal brief and a copy served on the appellant.
(j) On appeal the Administrator reviews the available record of the
proceeding, and issues an order dismissing, reversing, modifying or
affirming the
[[Page 40]]
order. The Administrator's order includes the reasons for the
Administrator's action.
(k) For good cause shown, requests for extensions of time to file
any document under this section may be granted by--
(1) The official who issued the order, if the request is filed prior
to the designation of a Hearing Officer; or
(2) The Hearing Officer, if the request is filed prior to the filing
of a notice of appeal; or
(3) The Administrator, if the request is filed after the filing of a
notice of appeal.
(l) Except in the case of an appeal from the decision of a Hearing
Officer, the authority of the Administrator under this section is also
exercised by the Chief Counsel, Deputy Chief Counsel, each Assistant
Chief Counsel, each Regional Counsel, and the Aeronautical Center
Counsel (as to matters under Title V of the Federal Aviation Act of
1958).
(m) Filing and service of documents under this section shall be
accomplished in accordance with Sec. 13.43; and the periods of time
specified in this section shall be computed in accordance with
Sec. 13.44.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-17,
53 FR 33783, Aug. 31, 1988; Amdt. 13-19, 54 FR 39290, Sept. 25, 1989;
Amdt. 13-29, 62 FR 46865, Sept. 4, 1997]
Sec. 13.21 Military personnel.
If a report made under this part indicates that, while performing
official duties, a member of the Armed Forces, or a civilian employee of
the Department of Defense who is subject to the Uniform Code of Military
Justice (10 U.S.C. Ch. 47), has violated the Federal Aviation Act of
1958, or a regulation or order issued under it, the Chief Counsel, the
Assistant Chief Counsel, Enforcement, the Assistant Chief Counsel,
Regulations, the Assistant Chief Counsel, Europe, Africa, and Middle
East Area Office, each Regional Counsel, and the Aeronautical Center
Counsel send a copy of the report to the appropriate military authority
for such disciplinary action as that authority considers appropriate and
a report to the Administrator thereon.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19,
54 FR 39290, Sept. 25, 1989; Amdt. 13-29, 62 FR 46866, Sept. 4, 1997]
Sec. 13.23 Criminal penalties.
(a) Sections 902 and 1203 of the Federal Aviation Act of 1958 (49
U.S.C. 1472 and 1523), provide criminal penalties for any person who
knowingly and willfully violates specified provisions of that Act, or
any regulation or order issued under those provisions. Section 110(b) of
the Hazardous Materials Transportation Act (49 U.S.C. 1809(b)) provides
for a criminal penalty of a fine of not more than $25,000, imprisonment
for not more than five years, or both, for any person who willfully
violates a provision of that Act or a regulation or order issued under
it.
(b) If an inspector or other employee of the FAA becomes aware of a
possible violation of any criminal provision of the Federal Aviation Act
of 1958 (except a violation of section 902 (i) through (m) which is
reported directly to the Federal Bureau of Investigation), or of the
Hazardous Materials Transportation Act, relating to the transportation
or shipment by air of hazardous materials, he or she shall report it to
the Office of the Chief Counsel or the Regional Counsel or Assistant
Chief Counsel for the region or area concerned. If appropriate, that
office refers the report to the Department of Justice for criminal
prosecution of the offender. If such an inspector or other employee
becomes aware of a possible violation of a Federal statute that is
within the investigatory jurisdiction of another Federal agency, he or
she shall immediately report it to that agency according to standard FAA
practices.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19,
54 FR 39290, Sept. 25, 1989; Amdt. 13-29, 62 FR 46866, Sept. 4, 1997]
Sec. 13.25 Injunctions.
(a) Whenever it is determined that a person has engaged, or is about
to engage, in any act or practice constituting a violation of the
Federal Aviation Act of 1958, or any regulation or order issued under it
for which the
[[Page 41]]
FAA exercises enforcement responsibility, or, with respect to the
transportation or shipment by air of any hazardous materials, in any act
or practice constituting a violation of the Hazardous Materials
Transportation Act, or any regulation or order issued under it for which
the FAA exercises enforcement responsibility, the Chief Counsel, the
Assistant Chief Counsel, Enforcement, the Assistant Chief Counsel,
Regulations, the Assistant Chief Counsel, Europe, Africa, and Middle
East Area Office, each Regional Counsel, and the Aeronautical Center
Counsel may request the United States Attorney General, or the delegate
of the Attorney General, to bring an action in the appropriate United
States District Court for such relief as is necessary or appropriate,
including mandatory or prohibitive injunctive relief, interim equitable
relief, and punitive damages, as provided by section 1007 of the Federal
Aviation Act of 1958 (49 U.S.C. 1487) and section 111(a) of the
Hazardous Materials Transportation Act (49 U.S.C. 1810).
(b) Whenever it is determined that there is substantial likelihood
that death, serious illness, or severe personal injury, will result from
the transportation by air of a particular hazardous material before an
order of compliance proceeding, or other administrative hearing or
formal proceeding to abate the risk of the harm can be completed, the
Chief Counsel, the Assistant Chief Counsel, Enforcement, the Assistant
Chief Counsel, Regulations, the Assistant Chief Counsel, Europe, Africa,
and Middle East Area Office, each Regional Counsel, and the Aeronautical
Center Counsel may bring, or request the United States Attorney General
to bring, an action in the appropriate United States District Court for
an order suspending or restricting the transportation by air of the
hazardous material or for such other order as is necessary to eliminate
or ameliorate the imminent hazard, as provided by section 111(b) of the
Hazardous Materials Transportation Act (49 U.S.C. 1810).
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19,
54 FR 39290, Sept. 25, 1989; Amdt. 13-29, 62 FR 46866, Sept. 4, 1997]
Sec. 13.27 Final order of Hearing Officer in certificate of aircraft registration proceedings.
(a) If, in proceedings under section 501(b) of the Federal Aviation
Act of 1958 (49 USC 1401), the Hearing Officer determines that the
holder of the Certificate of Aircraft Registration has refused or failed
to submit AC Form 8050-73, as required by Sec. 47.51 of this chapter, or
that the aircraft is ineligible for a Certificate of Aircraft
Registration, the Hearing Officer shall suspend or revoke the
respondent's certificate, as proposed in the notice of proposed
certificate action.
(b) If the final order of the Hearing Officer makes a decision on
the merits, it shall contain a statement of the findings and conclusions
of law on all material issues of fact and law. If the Hearing Officer
finds that the allegations of the notice have been proven, but that no
sanction is required, the Hearing Officer shall make appropriate
findings and issue an order terminating the notice. If the Hearing
Officer finds that the allegations of the notice have not been proven,
the Hearing Officer shall issue an order dismissing the notice. If the
Hearing Officer finds it to be equitable and in the public interest, the
Hearing Officer shall issue an order terminating the proceeding upon
payment by the respondent of a civil penalty in an amount agreed upon by
the parties.
(c) If the order is issued in writing, it shall be served upon the
parties.
[Doc. No. 13-14, 44 FR 63723, Nov. 5, 1979; as amended by Amdt. 13-15,
45 FR 20773, Mar. 31, 1980]
Sec. 13.29 Civil penalties: Streamlined enforcement procedures for certain security violations.
This section may be used, at the agency's discretion, in enforcement
actions involving individuals presenting dangerous or deadly weapons for
screening at airports or in checked baggage where the amount of the
proposed civil penalty is less than $5,000. In these cases, sections
13.16(a), 13.16(c), and 13.16 (f) through (l) of this chapter are used,
as well as paragraphs (a) through (d) of this section:
(a) Delegation of authority. The authority of the Administrator,
under 49
[[Page 42]]
U.S.C. 46301, to initiate the assessment of civil penalties for a
violation of 49 U.S.C. Subtitle VII, or a rule, regulation, or order
issued thereunder, is delegated to the regional Civil Aviation Security
Division Manager and the regional Civil Aviation Security Deputy
Division Manager for the purpose of issuing notices of violation in
cases involving violations of 49 U.S.C. Subtitle VII and the FAA's
regulations by individuals presenting dangerous or deadly weapons for
screening at airport checkpoints or in checked baggage. This authority
may not be delegated below the level of the regional Civil Aviation
Security Deputy Division Manager.
(b) Notice of violation. A civil penalty action is initiated by
sending a notice of violation to the person charged with the violation.
The notice of violation contains a statement of the charges and the
amount of the proposed civil penalty. Not later than 30 days after
receipt of the notice of violation, the person charged with a violation
shall:
(1) Submit the amount of the proposed civil penalty or an agreed-
upon amount, in which case either an order assessing a civil penalty or
a compromise order shall be issued in that amount; or
(2) Submit to the agency attorney identified in the material
accompanying the notice any of the following:
(i) Written information, including documents and witness statements,
demonstrating that a violation of the regulations did not occur or that
a penalty or the penalty amount is not warranted by the circumstances;
or
(ii) A written request to reduce the proposed civil penalty, the
amount of reduction, and the reasons and any documents supporting a
reduction of the proposed civil penalty, including records indicating a
financial inability to pay or records showing that payment of the
proposed civil penalty would prevent the person from continuing in
business; or
(iii) A written request for an informal conference to discuss the
matter with an agency attorney and submit relevant information or
documents; or
(3) Request a hearing in which case a complaint shall be filed with
the hearing docket clerk.
(c) Final notice of violation and civil penalty assessment order. A
final notice of violation and civil penalty assessment order (``final
notice and order'') may be issued after participation in any informal
proceedings as provided in paragraph (b)(2) of this section, or after
failure of the respondent to respond in a timely manner to a notice of
violation. A final notice and order will be sent to the individual
charged with a violation. The final notice and order will contain a
statement of the charges and the amount of the proposed civil penalty
and, as a result of information submitted to the agency attorney during
any informal procedures, may reflect a modified allegation or proposed
civil penalty.
A final notice and order may be issued--
(1) If the person charged with a violation fails to respond to the
notice of violation within 30 days after receipt of that notice; or
(2) If the parties participated in any informal procedures under
paragraph (b)(2) of this section and the parties have not agreed to
compromise the action or the agency attorney has not agreed to withdraw
the notice of violation.
(d) Order assessing civil penalty. An order assessing civil penalty
may be issued after notice and opportunity for a hearing. A person
charged with a violation may be subject to an order assessing civil
penalty in the following circumstances:
(1) An order assessing civil penalty may be issued if a person
charged with a violation submits, or agrees to submit, the amount of
civil penalty proposed in the notice of violation.
(2) An order assessing civil penalty may be issued if a person
charged with a violation submits, or agrees to submit, an agreed-upon
amount of civil penalty that is not reflected in either the notice of
violation or the final notice and order.
(3) The final notice and order becomes (and contains a statement so
indicating) an order assessing a civil penalty when the person charged
with a violation submits the amount of the proposed civil penalty that
is reflected in the final notice and order.
[[Page 43]]
(4) The final notice and order becomes (and contains a statement so
indicating) an order assessing a civil penalty 16 days after receipt of
the final notice and order, unless not later than 15 days after receipt
of the final notice and order, the person charged with a violation does
one of the following--
(i) Submits an agreed-upon amount of civil penalty that is not
reflected in the final notice and order, in which case an order
assessing civil penalty or a compromise order shall be issued in that
amount; or
(ii) Requests a hearing in which case a complaint shall be filed
with the hearing docket clerk.
(5) Unless an appeal is filed with the FAA decisionmaker in a timely
manner, an initial decision or order of an administrative law judge
shall be considered an order assessing civil penalty if an
administrative law judge finds that an alleged violation occurred and
determines that a civil penalty, in an amount found to be appropriate by
the administrative law judge, is warranted.
(6) Unless a petition for review is filed with a U.S. Court of
Appeals in a timely manner, a final decision and order of the
Administrator shall be considered an order assessing civil penalty if
the FAA decisionmaker finds that an alleged violation occurred and a
civil penalty is warranted.
[Doc. No. 27873, 61 FR 44155, Aug. 28, 1996]
Subpart D--Rules of Practice for FAA Hearings
Sec. 13.31 Applicability.
This subpart applies to proceedings in which a hearing has been
requested in accordance with Secs. 13.19(c)(5), 13.20(c), 13.20(d),
13.75(a)(2), 13.75(b), or 13.81(e).
[Amdt. 13-18, 53 FR 34655, Sept. 7, 1988]
Sec. 13.33 Appearances.
Any party to a proceeding under this subpart may appear and be heard
in person or by attorney.
Sec. 13.35 Request for hearing.
(a) A request for hearing must be made in writing to the Hearing
Docket, Room 924A, Federal Aviation Administration, 800 Independence
Avenue, S.W., Washington, D.C. 20591. It must describe briefly the
action proposed by the FAA, and must contain a statement that a hearing
is requested. A copy of the request for hearing and a copy of the answer
required by paragraph (b) of this section must be served on the official
who issued the notice of proposed action.
(b) An answer to the notice of proposed action must be filed with
the request for hearing. All allegations in the notice not specifically
denied in the answer are deemed admitted.
(c) Within 15 days after service of the copy of the request for
hearing, the official who issued the notice of proposed action forwards
a copy of that notice, which serves as the complaint, to the Hearing
Docket.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19,
54 FR 39290, Sept. 25, 1989]
Sec. 13.37 Hearing Officer's powers.
Any Hearing Officer may--
(a) Give notice concerning, and hold, prehearing conferences and
hearings;
(b) Administrator oaths and affirmations;
(c) Examine witnesses;
(d) Adopt procedures for the submission of evidence in written form;
(e) Issue subpoenas and take depositions or cause them to be taken;
(f) Rule on offers of proof;
(g) Receive evidence;
(h) Regulate the course of the hearing;
(i) Hold conferences, before and during the hearing, to settle and
simplify issues by consent of the parties;
(j) Dispose of procedural requests and similar matters; and
(k) Issue decisions, make findings of fact, make assessments, and
issue orders, as appropriate.
Sec. 13.39 Disqualification of Hearing Officer.
If disqualified for any reason, the Hearing Officer shall withdraw
from the case.
[[Page 44]]
Sec. 13.41 [Reserved]
Sec. 13.43 Service and filing of pleadings, motions, and documents.
(a) Copies of all pleadings, motions, and documents filed with the
Hearing Docket must be served upon all parties to the proceedings by the
person filing them.
(b) Service may be made by personal delivery or by mail.
(c) A certificate of service shall accompany all documents when they
are tendered for filing and shall consist of a certificate of personal
delivery or a certificate of mailing, executed by the person making the
personal delivery or mailing the document.
(d) Whenever proof of service by mail is made, the date of mailing
or the date as shown on the postmark shall be the date of service, and
where personal service is made, the date of personal delivery shall be
the date of service.
(e) The date of filing is the date the document is actually
received.
Sec. 13.44 Computation of time and extension of time.
(a) In computing any period of time prescribed or allowed by this
subpart, the date of the act, event, default, notice or order after
which the designated period of time begins to run is not to be included
in the computation. The last day of the period so computed is to be
included unless it is a Saturday, Sunday, or legal holiday for the FAA,
in which event the period runs until the end of the next day which is
neither a Saturday, Sunday nor a legal holiday.
(b) Upon written request filed with the Hearing Docket and served
upon all parties, and for good cause shown, a Hearing Officer may grant
an extension of time to file any documents specified in this subpart.
Sec. 13.45 Amendment of notice and answer.
At any time more than 10 days before the date of hearing, any party
may amend his or her notice, answer, or other pleading, by filing the
amendment with the Hearing Officer and serving a copy of it on each
other party. After that time, amendments may be allowed only in the
discretion of the Hearing Officer. If an amendment to an initial
pleading has been allowed, the Hearing Officer shall allow the other
parties a reasonable opportunity to answer.
Sec. 13.47 Withdrawal of notice or request for hearing.
At any time before the hearing, the FAA counsel may withdraw the
notice of proposed action, and the party requesting the hearing may
withdraw the request for hearing.
Sec. 13.49 Motions.
(a) Motion to dismiss for insufficiency. A respondent who requests a
formal hearing may, in place of an answer, file a motion to dismiss for
failure of the allegations in the notice of proposed action to state a
violation of the FA Act or of this chapter or to show lack of
qualification of the respondent. If the Hearing Officer denies the
motion, the respondent shall file an answer within 10 days.
(b) [Reserved]
(c) Motion for more definite statement. The certificate holder may,
in place of an answer, file a motion that the allegations in the notice
be made more definite and certain. If the Hearing Officer grants the
motion, the FAA counsel shall comply within 10 days after the date it is
granted. If the Hearing Officer denies the motion the certificate holder
shall file an answer within 10 days after the date it is denied.
(d) Motion for judgment on the pleadings. After the pleadings are
closed, either party may move for a judgment on the pleadings.
(e) Motion to strike. Upon motion of either party, the Hearing
Officer may order stricken, from any pleadings, any insufficient
allegation or defense, or any immaterial, impertinent, or scandalous
matter.
(f) Motion for production of documents. Upon motion of any party
showing good cause, the Hearing Officer may, in the manner provided by
Rule 34, Federal Rules of Civil Procedure, order any party to produce
any designated document, paper, book, account, letter, photograph,
object, or other tangible thing, that is not privileged, that
constitutes or contains evidence relevant to the subject matter of the
hearings,
[[Page 45]]
and that is in the party's possession, custody, or control.
(g) Consolidation of motions. A party who makes a motion under this
section shall join with it all other motions that are then available to
the party. Any objection that is not so raised is considered to be
waived.
(h) Answers to motions. Any party may file an answer to any motion
under this section within 5 days after service of the motion.
Sec. 13.51 Intervention.
Any person may move for leave to intervene in a proceeding and may
become a party thereto, if the Hearing Officer, after the case is sent
to the Hearing Officer for hearing, finds that the person may be bound
by the order to be issued in the proceedings or has a property or
financial interest that may not be adequately represented by existing
parties, and that the intervention will not unduly broaden the issues or
delay the proceedings. Except for good cause shown, a motion for leave
to intervene may not be considered if it is filed less than 10 days
before the hearing.
Sec. 13.53 Depositions.
After the respondent has filed a request for hearing and an answer,
either party may take testimony by deposition in accordance with section
1004 of the Federal Aviation Act of 1958 (49 U.S.C. 1484) or Rule 26,
Federal Rules of Civil Procedure.
Sec. 13.55 Notice of hearing.
The Hearing Officer shall set a reasonable date, time, and place for
the hearing, and shall give the parties adequate notice thereof and of
the nature of the hearing. Due regard shall be given to the convenience
of the parties with respect to the place of the hearing.
Sec. 13.57 Subpoenas and witness fees.
(a) The Hearing Officer to whom a case is assigned may, upon
application by any party to the proceeding, issue subpoenas requiring
the attendance of witnesses or the production of documentary or tangible
evidence at a hearing or for the purpose of taking depositions. However,
the application for producing evidence must show its general relevance
and reasonable scope. This paragraph does not apply to the attendance of
FAA employees or to the production of documentary evidence in the
custody of such an employee at a hearing.
(b) A person who applies for the production of a document in the
custody of an FAA employee must follow the procedure in Sec. 13.49(f). A
person who applies for the attendance of an FAA employee must send the
application, in writing, to the Hearing Officer setting forth the need
for that employee's attendance.
(c) A witness in a proceeding under this subpart is entitled to the
same fees and mileage as is paid to a witness in a court of the United
States under comparable circumstances. The party at whose instance the
witness is subpoenaed or appears shall pay the witness fees.
(d) Notwithstanding the provisions of paragraph (c) of this section,
the FAA pays the witness fees and mileage if the Hearing Officer who
issued the subpoena determines, on the basis of a written request and
good cause shown, that--
(1) The presence of the witness will materially advance the
proceeding; and
(2) The party at whose instance the witness is subpoenaed would
suffer a serious hardship if required to pay the witness fees and
mileage.
Sec. 13.59 Evidence.
(a) Each party to a hearing may present the party's case or defense
by oral or documentary evidence, submit evidence in rebuttal, and
conduct such cross-examination as may be needed for a full disclosure of
the facts.
(b) Except with respect to affirmative defenses and orders of
denial, the burden of proof is upon the FAA counsel.
(c) The Hearing Officer may order information contained in any
report or document filed or in any testimony given pursuant to this
subpart withheld from public disclosure when, in the judgment of the
Hearing Officer, disclosure would adversely affect the interests of any
person and is not required in the public interest or is not otherwise
required by statute to be
[[Page 46]]
made available to the public. Any person may make written objection to
the public disclosure of such information, stating the ground for such
objection.
Sec. 13.61 Argument and submittals.
The Hearing Officer shall give the parties adequate opportunity to
present arguments in support of motions, objections, and the final
order. The Hearing Officer may determine whether arguments are to be
oral or written. At the end of the hearing the Hearing Officer may, in
the discretion of the Hearing Officer, allow each party to submit
written proposed findings and conclusions and supporting reasons for
them.
Sec. 13.63 Record.
The testimony and exhibits presented at a hearing, together with all
papers, requests, and rulings filed in the proceedings are the exclusive
basis for the issuance of an order. Either party may obtain a transcript
from the official reporter upon payment of the fees fixed therefor.
Subpart E--Orders of Compliance Under the Hazardous Materials
Transportation Act
Sec. 13.71 Applicability.
Whenever the Chief Counsel, the Assistant Chief Counsel,
Enforcement, the Assistant Chief Counsel, Europe, Africa, and Middle
East Area Office, or a Regional Counsel has reason to believe that a
person is engaging in the transportation or shipment by air of hazardous
materials in violation of the Hazardous Materials Transportation Act, or
any regulation or order issued under it for which the FAA exercises
enforcement responsibility, and the circumstances do not require the
issuance of an order of immediate compliance, he may conduct proceedings
pursuant to section 109 of that Act (49 U.S.C. 1808) to determine the
nature and extent of the violation, and may thereafter issue an order
directing compliance.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19,
54 FR 39290, Sept. 25, 1989; Amdt. 13-29, 62 FR 46866, Sept. 4, 1997]
Sec. 13.73 Notice of proposed order of compliance.
A compliance order proceeding commences when the Chief Counsel, the
Assistant Chief Counsel, Enforcement, the Assistant Chief Counsel,
Europe, Africa, and Middle East Area Office, or a Regional Counsel sends
the alleged violator a notice of proposed order of compliance advising
the alleged violator of the charges and setting forth the remedial
action sought in the form of a proposed order of compliance.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19,
54 FR 39290, Sept. 25, 1989; Amdt. 13-29, 62 FR 46866, Sept. 4, 1997]
Sec. 13.75 Reply or request for hearing.
(a) Within 30 days after service upon the alleged violator of a
notice of proposed order of compliance, the alleged violator may--
(1) File a reply in writing with the official who issued the notice;
or
(2) Request a hearing in accordance with Subpart D of this part.
(b) If a reply is filed, as to any charges not dismissed or not
subject to a consent order of compliance, the alleged violator may,
within 10 days after receipt of notice that the remaining charges are
not dismissed, request a hearing in accordance with Subpart D of this
part.
(c) Failure of the alleged violator to file a reply or request a
hearing within the period provided in paragraph (a) or (b) of this
section--
(1) Constitutes a waiver of the right to a hearing and the right to
an appeal, and
(2) Authorizes the official who issued the notice to find the facts
to be as alleged in the notice and to issue an appropriate order
directing compliance, without further notice or proceedings.
Sec. 13.77 Consent order of compliance.
(a) At any time before the issuance of an order of compliance, the
official who issued the notice and the alleged violator may agree to
dispose of the case by the issuance of a consent order of compliance by
the official.
(b) A proposal for a consent order submitted to the official who
issued the notice under this section must include--
[[Page 47]]
(1) A proposed order of compliance;
(2) An admission of all jurisdictional facts;
(3) An express waiver of right to further procedural steps and of
all rights to judicial review;
(4) An incorporation by reference of the notice and an
acknowledgement that the notice may be used to construe the terms of the
order of compliance; and
(5) If the issuance of a consent order has been agreed upon after
the filing of a request for hearing in accordance with Subpart D of this
part, the proposal for a consent order shall include a request to be
filed with the Hearing Officer withdrawing the request for a hearing and
requesting that the case be dismissed.
Sec. 13.79 Hearing.
If an alleged violator requests a hearing in accordance with
Sec. 13.75, the procedure of Subpart D of this part applies. At the
close of the hearing, the Hearing Officer, on the record or subsequently
in writing, sets forth the Hearing Officer's findings and conclusion and
the reasons therefor, and either--
(a) Dismisses the notice of proposed order of compliance; or
(b) Issues an order of compliance.
Sec. 13.81 Order of immediate compliance.
(a) Notwithstanding Secs. 13.73 through 13.79, the Chief Counsel,
the Assistant Chief Counsel, Enforcement, the Assistant Chief Counsel,
Europe, Africa, and Middle East Area Office, or a Regional Counsel may
issue an order of immediate compliance, which is effective upon
issuance, if the person who issues the order finds that--
(1) There is strong probability that a violation is occurring or is
about to occur;
(2) The violation poses a substantial risk to health or to safety of
life or property; and
(3) The public interest requires the avoidance or amelioration of
that risk through immediate compliance and waiver of the procedures
afforded under Secs. 13.73 through 13.79.
(b) An order of immediate compliance is served promptly upon the
person against whom the order is issued by telephone or telegram, and a
written statement of the relevant facts and the legal basis for the
order, including the findings required by paragraph (a) of this section,
is served promptly by personal service or by mail.
(c) The official who issued the order of immediate compliance may
rescind or suspend the order if it appears that the criteria set forth
in paragraph (a) of this section are no longer satisfied, and, when
appropriate, may issue a notice of proposed order of compliance under
Sec. 13.73 in lieu thereof.
(d) If at any time in the course of a proceeding commenced in
accordance with Sec. 13.73 the criteria set forth in paragraph (a) of
this section are satisfied, the official who issued the notice may issue
an order of immediate compliance, even if the period for filing a reply
or requesting a hearing specified in Sec. 13.75 has not expired.
(e) Within three days after receipt of service of an order of
immediate compliance, the alleged violator may request a hearing in
accordance with Subpart D of this part and the procedure in that subpart
will apply except that--
(1) The case will be heard within fifteen days after the date of the
order of immediate compliance unless the alleged violator requests a
later date;
(2) The order will serve as the complaint; and
(3) The Hearing Officer shall issue his decision and order
dismissing, reversing, modifying, or affirming the order of immediate
compliance on the record at the close of the hearing.
(f) The filing of a request for hearing in accordance with paragraph
(e) of this section does not stay the effectiveness of an order of
immediate compliance.
(g) At any time after an order of immediate compliance has become
effective, the official who issued the order may request the United
States Attorney General, or the delegate of the Attorney General, to
bring an action for appropriate relief in accordance with Sec. 13.25.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 13-19,
54 FR 39290, Sept. 25, 1989; Amdt. 13-29, 62 FR 46866, Sept. 4, 1997]
[[Page 48]]
Sec. 13.83 Appeal.
(a) Any party to the hearing may appeal from the order of the
Hearing Officer by filing a notice of appeal with the Administrator
within 20 days after the date of issuance of the order.
(b) Any person against whom an order of immediate compliance has
been issued in accordance with Sec. 13.81 or the official who issued the
order of immediate compliance may appeal from the order of the Hearing
Officer by filing a notice of appeal with the Administrator within three
days after the date of issuance of the order by the Hearing Officer.
(c) Unless the Administrator expressly so provides, the filing of a
notice of appeal does not stay the effectiveness of an order of
immediate compliance.
(d) If a notice of appeal is not filed from the order of compliance
issued by a Hearing Officer, such order is the final agency order of
compliance.
(e) Any person filing an appeal authorized by paragraph (a) of this
section shall file an appeal brief with the Administrator within 40 days
after the date of the issuance of the order, and serve a copy on the
other party. Any reply brief must be filed within 20 days after service
of the appeal brief. A copy of the reply brief must be served on the
appellant.
(f) Any person filing an appeal authorized by paragraph (b) of this
section shall file an appeal brief with the Administrator with the
notice of appeal and serve a copy on the other party. Any reply brief
must be filed within 3 days after receipt of the appeal brief. A copy of
the reply brief must be served on the appellant.
(g) On appeal the Administrator reviews the available record of the
proceeding, and issues an order dismissing, reversing, modifying or
affirming the order of compliance or the order of immediate compliance.
The Administrator's order includes the reasons for the action.
(h) In cases involving an order of immediate compliance, the
Administrator's order on appeal is issued within ten days after the
filing of the notice of appeal.
Sec. 13.85 Filing, service and computation of time.
Filing and service of documents under this subpart shall be
accomplished in accordance with Sec. 13.43 except service of orders of
immediate compliance under Sec. 13.81(b); and the periods of time
specified in this subpart shall be computed in accordance with
Sec. 13.44.
Sec. 13.87 Extension of time.
(a) The official who issued the notice of proposed order of
compliance, for good cause shown, may grant an extension of time to file
any document specified in this subpart, except documents to be filed
with the Administrator.
(b) Extensions of time to file documents with the Administrator may
be granted by the Administrator upon written request, served upon all
parties, and for good cause shown.
Subpart F--Formal Fact-Finding Investigation Under an Order of
Investigation
Sec. 13.101 Applicability.
(a) This subpart applies to fact-finding investigations in which an
order of investigation has been issued under Sec. 13.3(c) or
Sec. 13.5(i) of this part.
(b) This subpart does not limit the authority of duly designated
persons to issue subpoenas, administer oaths, examine witnesses and
receive evidence in any informal investigation as provided for in
sections 313 and 1004(a) of the Federal Aviation Act (49 U.S.C. 1354 and
1484(a)) and section 109(a) of the Hazardous Materials Transportation
Act (49 U.S.C. 1808(a)).
Sec. 13.103 Order of investigation.
The order of investigation--
(a) Defines the scope of the investigation by describing the
information sought in terms of its subject matter or its relevancy to
specified FAA functions;
(b) Sets forth the form of the investigation which may be either by
individual deposition or investigative proceeding or both; and
(c) Names the official who is authorized to conduct the
investigation and serve as the Presiding Officer.
[[Page 49]]
Sec. 13.105 Notification.
Any person under investigation and any person required to testify
and produce documentary or physical evidence during the investigation
will be advised of the purpose of the investigation, and of the place
where the investigative proceeding or deposition will be convened. This
may be accomplished by a notice of investigation or by a subpoena. A
copy of the order of investigation may be sent to such persons, when
appropriate.
Sec. 13.107 Designation of additional parties.
(a) The Presiding Officer may designate additional persons as
parties to the investigation, if in the discretion of the Presiding
Officer, it will aid in the conduct of the investigation.
(b) The Presiding Officer may designate any person as a party to the
investigation if that person--
(1) Petitions the Presiding Officer to participate as a party; and
(2) Is so situated that the disposition of the investigation may as
a practical matter impair the ability to protect that person's interest
unless allowed to participate as a party, and
(3) Is not adequately represented by existing parties.
Sec. 13.109 Convening the investigation.
The investigation shall be conducted at such place or places
designated by the Presiding Officer, and as convenient to the parties
involved as expeditious and efficient handling of the investigation
permits.
Sec. 13.111 Subpoenas.
(a) Upon motion of the Presiding Officer, or upon the request of a
party to the investigation, the Presiding Officer may issue a subpoena
directing any person to appear at a designated time and place to testify
or to produce documentary or physical evidence relating to any matter
under investigation.
(b) Subpoenas shall be served by personal service, or upon an agent
designated in writing for the purpose, or by registered or certified
mail 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.
(c) Subpoenas shall extend in jurisdiction throughout the United
States or any territory or possession thereof.
Sec. 13.113 Noncompliance with the investigative process.
If any person fails to comply with the provisions of this subpart or
with any subpoena or order issued by the Presiding Officer or the
designee of the Presiding Officer, judicial enforcement may be initiated
against that person under applicable statutes.
Sec. 13.115 Public proceedings.
(a) All investigative proceedings and depositions shall be public
unless the Presiding Officer determines that the public interest
requires otherwise.
(b) The Presiding Officer may order information contained in any
report or document filed or in any testimony given pursuant to this
subpart withheld from public disclosure when, in the judgment of the
Presiding Officer, disclosure would adversely affect the interests of
any person and is not required in the public interest or is not
otherwise required by statute to be made available to the public. Any
person may make written objection to the public disclosure of such
information, stating the grounds for such objection.
Sec. 13.117 Conduct of investigative proceeding or deposition.
(a) The Presiding Officer or the designee of the Presiding Officer
may question witnesses.
(b) Any witness may be accompanied by counsel.
(c) Any party may be accompanied by counsel and either the party or
counsel may--
(1) Question witnesses, provided the questions are relevant and
material to the matters under investigation and would not unduly impede
the progress of the investigation; and
(2) Make objections on the record and argue the basis for such
objections.
(d) Copies of all notices or written communications sent to a party
or witness shall upon request be sent to that person's attorney of
record.
[[Page 50]]
Sec. 13.119 Rights of persons against self-incrimination.
(a) Whenever a person refuses, on the basis of a privilege against
self-incrimination, to testify or provide other information during the
course of any investigation conducted under this subpart, the Presiding
Officer may, with the approval of the Attorney General of the United
States, issue an order requiring the person to give testimony or provide
other information. However, no testimony or other information so
compelled (or any information directly or indirectly derived from such
testimony or other information) may be used against the person in any
criminal case, except in a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the order.
(b) The Presiding Officer may issue an order under this section if--
(1) The testimony or other information from the witness may be
necessary to the public interest; and
(2) The witness has refused or is likely to refuse to testify or
provide other information on the basis of a privilege against self-
incrimination.
(c) Immunity provided by this section will not become effective
until the person has refused to testify or provide other information on
the basis of a privilege against self-incrimination, and an order under
this section has been issued. An order, however, may be issued
prospectively to become effective in the event of a claim of the
privilege.
Sec. 13.121 Witness fees.
All witnesses appearing shall be compensated at the same rate as a
witness appearing before a United States District Court.
Sec. 13.123 Submission by party to the investigation.
(a) During an investigation conducted under this subpart, a party
may submit to the Presiding Officer--
(1) A list of witnesses to be called, specifying the subject matter
of the expected testimony of each witness, and
(2) A list of exhibits to be considered for inclusion in the record.
(b) If the Presiding Officer determines that the testimony of a
witness or the receipt of an exhibit in accordance with paragraph (a) of
this section will be relevant, competent and material to the
investigation, the Presiding Officer may subpoena the witness or use the
exhibit during the investigation.
Sec. 13.125 Depositions.
Depositions for investigative purposes may be taken at the
discretion of the Presiding Officer with reasonable notice to the party
under investigation. Such depositions shall be taken before the
Presiding Officer or other person authorized to administer oaths and
designated by the Presiding Officer. The testimony shall be reduced to
writing by the person taking the deposition, or under the direction of
that person, and where possible shall then be subscribed by the
deponent. Any person may be compelled to appear and testify and to
produce physical and documentary evidence.
Sec. 13.127 Reports, decisions and orders.
The Presiding Officer shall issue a written report based on the
record developed during the formal investigation, including a summary of
principal conclusions. A summary of principal conclusions shall be
prepared by the official who issued the order of investigation in every
case which results in no action, or no action as to a particular party
to the investigation. All such reports shall be furnished to the parties
to the investigation and filed in the public docket. Insertion of the
report in the Public Docket shall constitute ``entering of record'' and
publication as prescribed by section 313(b) of the Federal Aviation Act.
Sec. 13.129 Post-investigation action.
A decision on whether to initiate subsequent action shall be made on
the basis of the record developed during the formal investigation and
any other information in the possession of the Administrator.
Sec. 13.131 Other procedures.
Any question concerning the scope or conduct of a formal
investigation not covered in this subpart may be ruled on by the
Presiding Officer on motion of the Presiding Officer, or on the motion
[[Page 51]]
of a party or a person testifying or producing evidence.
Subpart G--Rules of Practice in FAA Civil Penalty Actions
Source: Amdt. 13-21, 55 FR 27575, July 3, 1990, unless otherwise
noted.
Sec. 13.201 Applicability.
(a) This subpart applies to the following actions:
(1) A civil penalty action in which a complaint has been issued for
an amount not exceeding $50,000 for a violation arising under the
Federal Aviation Act of 1958, as amended (49 U.S.C. 1301, et seq.), or a
rule, regulation, or order issued thereunder.
(2) A civil penalty action in which a complaint has been issued for
a violation arising under the Federal Aviation Act of 1958, as amended
(49 U.S.C. 1471, et seq.) and the Hazardous Materials Transportation Act
(49 U.S.C. 1801 et seq.), or a rule, regulation, or order issued
thereunder.
(b) This subpart applies only to proceedings initiated after
September 7, 1988. All other cases, hearings, or other proceedings
pending or in progress before September 7, 1988, are not affected by the
rules in this subpart.
(c) Notwithstanding the provisions of paragraph (a) of this section,
the United States district courts shall have exclusive jurisdiction of
any civil penalty action initiated by the Administrator:
(1) Which involves an amount in controversy in excess of $50,000;
(2) Which is an in rem action or in which an in rem action based on
the same violation has been brought;
(3) Regarding which an aircraft subject to lien has been seized by
the United States; and
(4) In which a suit for injunctive relief based on the violation
giving rise to the civil penalty has also been brought.
Sec. 13.202 Definitions.
Administrative law judge means an administrative law judge appointed
pursuant to the provisions of 5 U.S.C. 3105.
Agency attorney means the Deputy Chief Counsel, the Assistant Chief
Counsel, Enforcement, the Assistant Chief Counsel, Regulations, the
Assistant Chief Counsel, Europe, Africa, and Middle East Area Office,
each Regional Counsel, the Aeronautical Center Counsel, or the Technical
Center Counsel, or an attorney on the staff of the Assistant Chief
Counsel, Enforcement, the Assistant Chief Counsel, Regulations, the
Assistant Chief Counsel, Europe, Africa, and Middle East Area Office,
each Regional Counsel, the Aeronautical Center Counsel, or the Technical
Center Counsel who prosecutes a civil penalty action. An agency attorney
shall not include:
(1) The Chief Counsel, the Assistant Chief Counsel for Litigation,
or the Special Counsel and Director of Civil Penalty Adjudications; or
(2) Any attorney on the staff of either the Assistant Chief Counsel
for Litigation or the Special Counsel and Director of Civil Penalty
Adjudications who advises the FAA decisionmaker regarding an initial
decision or any appeal to the FAA decisionmaker; or
(3) Any attorney who is supervised in a civil penalty action by a
person who provides such advice to the FAA decisionmaker in that action
or a factually-related action.
Attorney means a person 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.
Complaint means a document issued by an agency attorney alleging a
violation of the Federal Aviation Act of 1958, as amended, or a rule,
regulation, or order issued thereunder, or the Hazardous Materials
Transportation Act, or a rule, regulation, or order issued thereunder
that has been filed with the hearing docket after a hearing has been
requested pursuant to Sec. 13.16(d)(3) or Sec. 13.16(e)(2)(ii) of this
part.
FAA decisionmaker means the Administrator of the Federal Aviation
Administration, acting in the capacity of the decisionmaker on appeal,
or any person to whom the Administrator has delegated the
Administrator's decisionmaking authority in a civil penalty action. As
used in this subpart, the FAA decisionmaker is the official authorized
to issue a final decision and order of the Administrator in a civil
penalty action.
[[Page 52]]
Mail includes U.S. certified mail, U.S. registered mail, or use of
an overnight express courier service.
Order assessing civil penalty means a document that contains a
finding of violation of the Federal Aviation Act of 1958, as amended, or
a rule, regulation, or order issued thereunder, or the Hazardous
Materials Transportation Act, or a rule, regulation, or order issued
thereunder and may direct payment of a civil penalty. Unless an appeal
is filed with the FAA decisionmaker in a timely manner, an initial
decision or order of an administrative law judge shall be considered an
order assessing civil penalty if an administrative law judge finds that
an alleged violation occurred and determines that a civil penalty, in an
amount found appropriate by the administrative law judge, is warranted.
Unless a petition for review is filed with a U.S. Court of Appeals in a
timely manner, a final decision and order of the Administrator shall be
considered an order assessing civil penalty if the FAA decisionmaker
finds that an alleged violation occurred and a civil penalty is
warranted.
Party means the respondent or the Federal Aviation Administration
(FAA).
Personal delivery includes hand-delivery or use of a contract or
express messenger service. ``Personal delivery'' does not include the
use of Government interoffice mail service.
Pleading means a complaint, an answer, and any amendment of these
documents permitted under this subpart.
Properly addressed means a document that shows an address contained
in agency records, a residential, business, or other address submitted
by a person on any document provided under this subpart, or any other
address shown by other reasonable and available means.
Respondent means a person, corporation, or company named in a
complaint.
[Amdt. 13-21, 55 FR 27575, July 3, 1990, as amended by Amdt. 13-24, 58
FR 50241, Sept. 24, 1993; Amdt. 13-29, 62 FR 46866, Sept. 4, 1997]
Sec. 13.203 Separation of functions.
(a) Civil penalty proceedings, including hearings, shall be
prosecuted by an agency attorney.
(b) An agency employee engaged in the performance of investigative
or prosecutorial functions in a civil penalty action shall not, in that
case or a factually-related case, participate or give advice in a
decision by the administrative law judge or by the FAA decisionmaker on
appeal, except as counsel or a witness in the public proceedings.
(c) The Chief Counsel, the Assistant Chief Counsel for Litigation,
the Special Counsel and Director of Civil Penalty Adjudications, or an
attorney on the staff of either the Assistant Chief Counsel for
Litigation or the Special Counsel and Director of Civil Penalty
Adjudications, will advise the FAA decisionmaker regarding an initial
decision or any appeal of a civil penalty action to the FAA
decisionmaker.
[Amdt. 13-21, 55 FR 27575, July 3, 1990, as amended by Amdt. 13-24, 58
FR 50241, Sept. 24, 1993]
Sec. 13.204 Appearances and rights of parties.
(a) Any party may appear and be heard in person.
(b) Any party may be accompanied, represented, or advised by an
attorney or representative designated by the party and may be examined
by that attorney or representative in any proceeding governed by this
subpart. An attorney or representative who represents a party may file a
notice of appearance in the action, in the manner provided in
Sec. 13.210 of this subpart, and shall serve a copy of the notice of
appearance on each party, in the manner provided in Sec. 13.211 of this
subpart, before participating in any proceeding governed by this
subpart. The attorney or representative shall include the name, address,
and telephone number of the attorney or representative in the notice of
appearance.
(c) Any person may request a copy of a document upon payment of
reasonable costs. A person may keep an original document, data, or
evidence, with the consent of the administrative law judge, by
substituting a legible copy of the document for the record.
Sec. 13.205 Administrative law judges.
(a) Powers of an administrative law judge. In accordance with the
rules of
[[Page 53]]
this subpart, an administrative law judge may:
(1) Give notice of, and hold, prehearing conferences and hearings;
(2) Administer oaths and affirmations;
(3) Issue subpoenas authorized by law and issue notices of
deposition requested by the parties;
(4) Rule on offers of proof;
(5) Receive relevant and material evidence;
(6) Regulate the course of the hearing in accordance with the rules
of this subpart;
(7) Hold conferences to settle or to simplify the issues by consent
of the parties;
(8) Dispose of procedural motions and requests; and
(9) Make findings of fact and conclusions of law, and issue an
initial decision.
(b) Limitations on the power of the administrative law judge. The
administrative law judge shall not issue an order of contempt, award
costs to any party, or impose any sanction not specified in this
subpart. If the administrative law judge imposes any sanction not
specified in this subpart, a party may file an interlocutory appeal of
right with the FAA decisionmaker pursuant to Sec. 13.219(c)(4) of this
subpart. This section does not preclude an administrative law judge from
issuing an order that bars a person from a specific proceeding based on
a finding of obstreperous or disruptive behavior in that specific
proceeding.
(c) Disqualification. The administrative law judge may disqualify
himself or herself at any time. A party may file a motion, pursuant to
Sec. 13.218(f)(6), requesting that an administrative law judge be
disqualified from the proceedings.
[Amdt. 13-21, 55 FR 27575, July 3, 1990; 55 FR 29293, July 18, 1990]
Sec. 13.206 Intervention.
(a) A person may submit a motion for leave to intervene as a party
in a civil penalty action. Except for good cause shown, a motion for
leave to intervene shall be submitted not later than 10 days before the
hearing.
(b) If the administrative law judge finds that intervention will not
unduly broaden the issues or delay the proceedings, the administrative
law judge may grant a motion for leave to intervene if the person will
be bound by any order or decision entered in the action or the person
has a property, financial, or other legitimate interest that may not be
addressed adequately by the parties. The administrative law judge may
determine the extent to which an intervenor may participate in the
proceedings.
Sec. 13.207 Certification of documents.
(a) Signature required. The attorney of record, the party, or the
party's representative shall sign each document tendered for filing with
the hearing docket clerk, the administrative law judge, the FAA
decisionmaker on appeal, or served on each party.
(b) Effect of signing a document. By signing a document, the
attorney of record, the party, or the party's representative certifies
that the attorney, the party, or the party's representative has read the
document and, based on reasonable inquiry and to the best of that
person's knowledge, information, and belief, the document is--
(1) Consistent with these rules;
(2) Warranted by existing law or that a good faith argument exists
for extension, modification, or reversal of existing law; and
(3) Not unreasonable or unduly burdensome or expensive, not made to
harass any person, not made to cause unnecessary delay, not made to
cause needless increase in the cost of the proceedings, or for any other
improper purpose.
(c) Sanctions. If the attorney of record, the party, or the party's
representative signs a document in violation of this section, the
administrative law judge or the FAA decisionmaker shall:
(1) Strike the pleading signed in violation of this section;
(2) Strike the request for discovery or the discovery response
signed in violation of this section and preclude further discovery by
the party;
(3) Deny the motion or request signed in violation of this section;
(4) Exclude the document signed in violation of this section from
the record;
[[Page 54]]
(5) Dismiss the interlocutory appeal and preclude further appeal on
that issue by the party who filed the appeal until an initial decision
has been entered on the record; or
(6) Dismiss the appeal of the administrative law judge's initial
decision to the FAA decisionmaker.
Sec. 13.208 Complaint.
(a) Filing. The agency attorney shall file the original and one copy
of the complaint with the hearing docket clerk, or may file a written
motion pursuant to Sec. l3.218(f)(2)(i) of this subpart instead of
filing a complaint, not later than 20 days after receipt by the agency
attorney of a request for hearing.
The agency attorney should suggest a location for the hearing when
filing the complaint.
(b) Service. An agency attorney shall personally deliver or mail a
copy of the complaint on the respondent, the president of the
corporation or company named as a respondent, or a person designated by
the respondent to accept service of documents in the civil penalty
action.
(c) Contents. A complaint shall set forth the facts alleged, any
regulation allegedly violated by the respondent, and the proposed civil
penalty in sufficient detail to provide notice of any factual or legal
allegation and proposed civil penalty.
(d) Motion to dismiss allegations or complaint. Instead of filing an
answer to the complaint, a respondent may move to dismiss the complaint,
or that part of the complaint, alleging a violation that occurred on or
after August 2, 1990, and more than 2 years before an agency attorney
issued a notice of proposed civil penalty to the respondent.
(1) An administrative law judge may not grant the motion and dismiss
the complaint or part of the complaint if the administrative law judge
finds that the agency has shown good cause for any delay in issuing the
notice of proposed civil penalty.
(2) If the agency fails to show good cause for any delay, an
administrative law judge may dismiss the complaint, or that part of the
complaint, alleging a violation that occurred more than 2 years before
an agency attorney issued the notice of proposed civil penalty to the
respondent.
(3) A party may appeal the administrative law judge's ruling on the
motion to dismiss the complaint or any part of the complaint in
accordance with Sec. 13.219(b) of this subpart.
[Admt. 13-21, 55 FR 27575, July 3, 1990, as amended by Admt. 13-22, 55
FR 31176, Aug. 1, 1990]
Sec. 13.209 Answer.
(a) Writing required. A respondent shall file a written answer to
the complaint, or may file a written motion pursuant to Sec. 13.208(d)
or Sec. 13.218(f)(1-4) of this subpart instead of filing an answer, not
later than 30 days after service of the complaint. The answer may be in
the form of a letter but must be dated and signed by the person
responding to the complaint. An answer may be typewritten or may be
legibly handwritten.
(b) Filing and address. A person filing an answer shall personally
deliver or mail the original and one copy of the answer for filing with
the hearing docket clerk, not later than 30 days after service of the
complaint, to the Hearing Docket, Federal Aviation Administration, 800
Independence Avenue, SW., Room 924A, Washington, DC 20591, Attention:
Hearing Docket Clerk. The person filing an answer should suggest a
location for the hearing when filing the answer.
(c) Service. A person filing an answer shall serve a copy of the
answer on the agency attorney who filed the complaint.
(d) Contents. An answer shall specifically state any affirmative
defense that the respondent intends to assert at the hearing. A person
filing an answer may include a brief statement of any relief requested
in the answer.
(e) Specific denial of allegations required. A person filing an
answer shall admit, deny, or state that the person is without sufficient
knowledge or information to admit or deny, each numbered paragraph of
the complaint. Any statement or allegation contained in the complaint
that is not specifically denied in the answer may be deemed an admission
of the truth of that allegation. A general denial of the complaint is
deemed a failure to file an answer.
[[Page 55]]
(f) Failure to file answer. A person's failure to file an answer
without good cause shall be deemed an admission of the truth of each
allegation contained in the complaint.
Sec. 13.210 Filing of documents.
(a) Address and method of filing. A person tendering a document for
filing shall personally deliver or mail the signed original and one copy
of each document to the Hearing Docket, Federal Aviation Administration,
800 Independence Avenue, SW., Room 924A, Washington, DC 20591,
Attention: Hearing Docket Clerk. A person shall serve a copy of each
document on each party in accordance with Sec. 13.211 of this subpart.
(b) Date of filing. A document shall be considered to be filed on
the date of personal delivery; or if mailed, the mailing date shown on
the certificate of service, the date shown on the postmark if there is
no certificate of service, or other mailing date shown by other evidence
if there is no certificate of service or postmark.
(c) Form. Each document shall be typewritten or legibly handwritten.
(d) Contents. Unless otherwise specified in this subpart, each
document must contain a short, plain statement of the facts on which the
person's case rests and a brief statement of the action requested in the
document.
[Amdt. 13-21, 55 FR 27575, July 3, 1990; 55 FR 29293, July 18, 1990]
Sec. 13.211 Service of documents.
(a) General. A person shall serve a copy of any document filed with
the Hearing Docket on each party at the time of filing. Service on a
party's attorney of record or a party's designated representative may be
considered adequate service on the party.
(b) Type of service. A person may serve documents by personal
delivery or by mail.
(c) Certificate of service. A person may attach a certificate of
service to a document tendered for filing with the hearing docket clerk.
A certificate of service shall consist of a statement, dated and signed
by the person filing the document, that the document was personally
delivered or mailed to each party on a specific date.
(d) Date of service. The date of service shall be the date of
personal delivery; or if mailed, the mailing date shown on the
certificate of service, the date shown on the postmark if there is no
certificate of service, or other mailing date shown by other evidence if
there is no certificate of service or postmark.
(e) Additional time after service by mail. Whenever a party has a
right or a duty to act or to make any response within a prescribed
period after service by mail, or on a date certain after service by
mail, 5 days shall be added to the prescribed period.
(f) Service by the administrative law judge. The administrative law
judge shall serve a copy of each document including, but not limited to,
notices of prehearing conferences and hearings, rulings on motions,
decisions, and orders, upon each party to the proceedings by personal
delivery or by mail.
(g) Valid service. A document that was properly addressed, was sent
in accordance with this subpart, and that was returned, that was not
claimed, or that was refused, is deemed to have been served in
accordance with this subpart. The service shall be considered valid as
of the date and the time that the document was deposited with a contract
or express messenger, the document was mailed, or personal delivery of
the document was refused.
(h) Presumption of service. There shall be a presumption of service
where a party or a person, who customarily receives mail, or receives it
in the ordinary course of business, at either the person's residence or
the person's principal place of business, acknowledges receipt of the
document.
Sec. 13.212 Computation of time.
(a) This section applies to any period of time prescribed or allowed
by this subpart, by notice or order of the administrative law judge, or
by any applicable statute.
(b) The date of an act, event, or default, after which a designated
time period begins to run, is not included in a computation of time
under this subpart.
(c) The last day of a time period is included in a computation of
time unless
[[Page 56]]
it is a Saturday, Sunday, or a legal holiday. If the last day of the
time period is a Saturday, Sunday, or legal holiday, the time period
runs until the end of the next day that is not a Saturday, Sunday, or
legal holiday.
Sec. 13.213 Extension of time.
(a) Oral requests. The parties may agree to extend for a reasonable
period the time for filing a document under this subpart. If the parties
agree, the administrative law judge shall grant one extension of time to
each party. The party seeking the extension of time shall submit a draft
order to the administrative law judge to be signed by the administrative
law judge and filed with the hearing docket clerk. The administrative
law judge may grant additional oral requests for an extension of time
where the parties agree to the extension.
(b) Written motion. A party shall file a written motion for an
extension of time with the administrative law judge 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. The administrative law judge
may grant the extension of time if good cause for the extension is
shown.
(c) Failure to rule. If the administrative law judge 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 granted for no
more than 20 days after the original date the document was to be filed.
Sec. 13.214 Amendment of pleadings.
(a) Filing and service. A party shall file the amendment with the
administrative law judge and shall serve a copy of the amendment on all
parties to the proceeding.
(b) Time. A party shall file an amendment to a complaint or an
answer within the following:
(1) Not later than 15 days before the scheduled date of a hearing, a
party may amend a complaint or an answer without the consent of the
administrative law judge.
(2) Less than 15 days before the scheduled date of a hearing, the
administrative law judge may allow amendment of a complaint or an answer
only for good cause shown in a motion to amend.
(c) Responses. The administrative law judge shall allow a reasonable
time, but not more than 20 days from the date of filing, for other
parties to respond if an amendment to a complaint, answer, or other
pleading has been filed with the administrative law judge.
Sec. 13.215 Withdrawal of complaint or request for hearing.
At any time before or during a hearing, an agency attorney may
withdraw a complaint or a party may withdraw a request for a hearing
without the consent of the administrative law judge. If an agency
attorney withdraws the complaint or a party withdraws the request for a
hearing and the answer, the administrative law judge shall dismiss the
proceedings under this subpart with prejudice.
Sec. 13.216 Waivers.
Waivers of any rights provided by statute or regulation shall be in
writing or by stipulation made at a hearing and entered into the record.
The parties shall set forth the precise terms of the waiver and any
conditions.
Sec. 13.217 Joint procedural or discovery schedule.
(a) General. The parties may agree to submit a schedule for filing
all prehearing motions, a schedule for conducting discovery in the
proceedings, or a schedule that will govern all prehearing motions and
discovery in the proceedings.
(b) Form and content of schedule. If the parties agree to a joint
procedural or discovery schedule, one of the parties shall file the
joint schedule with the administrative law judge, setting forth the
dates to which the parties have agreed, and shall serve a copy of the
joint schedule on each party.
(1) The joint schedule may include, but need not be limited to,
requests for discovery, any objections to discovery
[[Page 57]]
requests, responses to discovery requests to which there are no
objections, submission of prehearing motions, responses to prehearing
motions, exchange of exhibits to be introduced at the hearing, and a
list of witnesses that may be called at the hearing.
(2) Each party shall sign the original joint schedule to be filed
with the administrative law judge.
(c) Time. The parties may agree to submit all prehearing motions and
responses and may agree to close discovery in the proceedings under the
joint schedule within a reasonable time before the date of the hearing,
but not later than 15 days before the hearing.
(d) Order establishing joint schedule. The administrative law judge
shall approve the joint schedule filed by the parties. One party shall
submit a draft order establishing a joint schedule to the administrative
law judge to be signed by the administrative law judge and filed with
the hearing docket clerk.
(e) Disputes. The administrative law judge shall resolve disputes
regarding discovery or disputes regarding compliance with the joint
schedule as soon as possible so that the parties may continue to comply
with the joint schedule.
(f) Sanctions for failure to comply with joint schedule. If a party
fails to comply with the administrative law judge's order establishing a
joint schedule, the administrative law judge may direct that party to
comply with a motion to discovery request or, limited to the extent of
the party's failure to comply with a motion or discovery request, the
administrative law judge may:
(1) Strike that portion of a party's pleadings;
(2) Preclude prehearing or discovery motions by that party;
(3) Preclude admission of that portion of a party's evidence at the
hearing, or
(4) Preclude that portion of the testimony of that party's witnesses
at the hearing.
Sec. 13.218 Motions.
(a) General. A party applying for an order or ruling not
specifically provided in this subpart shall do so by motion. A party
shall comply with the requirements of this section when filing a motion
with the administrative law judge. A party shall serve a copy of each
motion on each party.
(b) Form and contents. A party shall state the relief sought by the
motion and the particular grounds supporting that relief. If a party has
evidence in support of a motion, the party shall attach any supporting
evidence, including affidavits, to the motion.
(c) Filing of motions. A motion made prior to the hearing must be in
writing. Unless otherwise agreed by the parties or for good cause shown,
a party shall file any prehearing motion, and shall serve a copy on each
party, not later than 30 days before the hearing. Motions introduced
during a hearing may be made orally on the record unless the
administrative law judge directs otherwise.
(d) Answers to motions. Any party may file an answer, with
affidavits or other evidence in support of the answer, not later than 10
days after service of a written motion on that party. When a motion is
made during a hearing, the answer may be made at the hearing on the
record, orally or in writing, within a reasonable time determined by the
administrative law judge.
(e) Rulings on motions. The administrative law judge shall rule on
all motions as follows:
(1) Discovery motions. The administrative law judge shall resolve
all pending discovery motions not later than 10 days before the hearing.
(2) Prehearing motions. The administrative law judge shall resolve
all pending prehearing motions not later than 7 days before the hearing.
If the administrative law judge issues a ruling or order orally, the
administrative law judge shall serve a written copy of the ruling or
order, within 3 days, on each party. In all other cases, the
administrative law judge shall issue rulings and orders in writing and
shall serve a copy of the ruling or order on each party.
(3) Motions made during the hearing. The administrative law judge
may issue rulings and orders on motions made during the hearing orally.
Oral rulings or orders on motions must be made on the record.
[[Page 58]]
(f) Specific motions. A party may file the following motions with
the administrative law judge:
(1) Motion to dismiss for insufficiency. A respondent may file a
motion to dismiss the complaint for insufficiency instead of filing an
answer. If the administrative law judge denies the motion to dismiss the
complaint for insufficiency, the respondent shall file an answer not
later than 10 days after service of the administrative law judge's
denial of the motion. A motion to dismiss the complaint for
insufficiency must show that the complaint fails to state a violation of
the Federal Aviation Act of 1958, as amended, or a rule, regulation, or
order issued thereunder, or a violation of the Hazardous Materials
Transportation Act, or a rule, regulation, or order issued thereunder.
(2) Motion to dismiss. A party may file a motion to dismiss,
specifying the grounds for dismissal. If an administrative law judge
grants a motion to dismiss in part, a party may appeal the
administrative law judge's ruling on the motion to dismiss under
Sec. 13.219(b) of this subpart.
(i) Motion to dismiss a request for a hearing. An agency attorney
may file a motion to dismiss a request for a hearing instead of filing a
complaint. If the motion to dismiss is not granted, the agency attorney
shall file the complaint and shall serve a copy of the complaint on each
party not later than 10 days after service of the administrative law
judge's ruling or order on the motion to dismiss. If the motion to
dismiss is granted and the proceedings are terminated without a hearing,
the respondent may file an appeal pursuant to Sec. 13.233 of this
subpart. If required by the decision on appeal, the agency attorney
shall file a complaint and shall serve a copy of the complaint on each
party not later than 10 days after service of the decision on appeal.
(ii) Motion to dismiss a complaint. A respondent may file a motion
to dismiss a complaint instead of filing an answer. If the motion to
dismiss is not granted, the respondent shall file an answer and shall
serve a copy of the answer on each party not later than 10 days after
service of the administrative law judge's ruling or order on the motion
to dismiss. If the motion to dismiss is granted and the proceedings are
terminated without a hearing, the agency attorney may file an appeal
pursuant to Sec. 13.233 of this subpart. If required by the decision on
appeal, the respondent shall file an answer and shall serve a copy of
the answer on each party not later than 10 days after service of the
decision on appeal.
(3) Motion for more definite statement. A party may file a motion
for more definite statement of any pleading which requires a response
under this subpart. A party shall set forth, in detail, the indefinite
or uncertain allegations contained in a complaint or response to any
pleading and shall submit the details that the party believes would make
the allegation or response definite and certain.
(i) Complaint. A respondent may file a motion requesting a more
definite statement of the allegations contained in the complaint instead
of filing an answer. If the administrative law judge grants the motion,
the agency attorney shall supply a more definite statement not later
than 15 days after service of the ruling granting the motion. If the
agency attorney fails to supply a more definite statement, the
administrative law judge shall strike the allegations in the complaint
to which the motion is directed. If the administrative law judge denies
the motion, the respondent shall file an answer and shall serve a copy
of the answer on each party not later than 10 days after service of the
order of denial.
(ii) Answer. An agency attorney may file a motion requesting a more
definite statement if an answer fails to respond clearly to the
allegations in the complaint. If the administrative law judge grants the
motion, the respondent shall supply a more definite statement not later
than 15 days after service of the ruling on the motion. If the
respondent fails to supply a more definite statement, the administrative
law judge shall strike those statements in the answer to which the
motion is directed. The respondent's failure to supply a more definite
statement may be deemed an admission of unanswered allegations in the
complaint.
[[Page 59]]
(4) Motion to strike. Any party may make a motion to strike any
insufficient allegation or defense, or any redundant, immaterial, or
irrelevant matter in a pleading. A party shall file a motion to strike
with the administrative law judge and shall serve a copy on each party
before a response is required under this subpart or, if a response is
not required, not later than 10 days after service of the pleading.
(5) Motion for decision. A party may make a motion for decision,
regarding all or any part of the proceedings, at any time before the
administrative law judge has issued an initial decision in the
proceedings. The administrative law judge shall grant a party's motion
for decision if the pleadings, depositions, answers to interrogatories,
admissions, matters that the administrative law judge has officially
noticed, or evidence introduced during the hearing show that there is no
genuine issue of material fact and that the party making the motion is
entitled to a decision as a matter of law. The party making the motion
for decision has the burden of showing that there is no genuine issue of
material fact disputed by the parties.
(6) Motion for disqualification. A party may file a motion for
disqualification with the administrative law judge and shall serve a
copy on each party. A party may file the motion at any time after the
administrative law judge has been assigned to the proceedings but shall
make the motion before the administrative law judge files an initial
decision in the proceedings.
(i) Motion and supporting affidavit. A party shall state the grounds
for disqualification, including, but not limited to, personal bias,
pecuniary interest, or other factors showing disqualification, in the
motion for disqualification. A party shall submit an affidavit with the
motion for disqualification that sets forth, in detail, the matters
alleged to constitute grounds for disqualification.
(ii) Answer. A party shall respond to the motion for
disqualification not later than 5 days after service of the motion for
disqualification.
(iii) Decision on motion for disqualification. The administrative
law judge shall render a decision on the motion for disqualification not
later than 15 days after the motion has been filed. If the
administrative law judge finds that the motion for disqualification and
supporting affidavit show a basis for disqualification, the
administrative law judge shall withdraw from the proceedings
immediately. If the administrative law judge finds that disqualification
is not warranted, the administrative law judge shall deny the motion and
state the grounds for the denial on the record. If the administrative
law judge fails to rule on a party's motion for disqualification within
15 days after the motion has been filed, the motion is deemed granted.
(iv) Appeal. A party may appeal the administrative law judge's
denial of the motion for disqualification in accordance with
Sec. 13.219(b) of this subpart.
Sec. 13.219 Interlocutory appeals.
(a) General. Unless otherwise provided in this subpart, a party may
not appeal a ruling or decision of the administrative law judge to the
FAA decisionmaker until the initial decision has been entered on the
record. A decision or order of the FAA decisionmaker on the
interlocutory appeal does not constitute a final order of the
Administrator for the purposes of judicial appellate review under
section 1006 of the Federal Aviation Act of 1958, as amended.
(b) Interlocutory appeal for cause. If a party files a written
request for an interlocutory appeal for cause with the administrative
law judge, or orally requests an interlocutory appeal for cause, the
proceedings are stayed until the administrative law judge issues a
decision on the request. If the administrative law judge grants the
request, the proceedings are stayed until the FAA decisionmaker issues a
decision on the interlocutory appeal. The administrative law judge shall
grant an interlocutory appeal for cause if a party shows that delay of
the appeal would be detrimental to the public interest or would result
in undue prejudice to any party.
(c) Interlocutory appeals of right. If a party notifies the
administrative law judge of an interlocutory appeal of right, the
proceedings are stayed until
[[Page 60]]
the FAA decisionmaker issues a decision on the interlocutory appeal. A
party may file an interlocutory appeal with the FAA decisionmaker,
without the consent of the administrative law judge, before an initial
decision has been entered in the case of:
(1) A ruling or order by the administrative law judge barring a
person from the proceedings.
(2) Failure of the administrative law judge to dismiss the
proceedings in accordance with Sec. 13.215 of this subpart.
(3) A ruling or order by the administrative law judge in violation
of Sec. 13.205(b) of this subpart.
(d) Procedure. A party shall file a notice of interlocutory appeal,
with supporting documents, with the FAA decisionmaker and the hearing
docket clerk, and shall serve a copy of the notice and supporting
documents on each party and the administrative law judge, not later than
10 days after the administrative law judge's decision forming the basis
of an interlocutory appeal of right or not later than 10 days after the
administrative law judge's decision granting an interlocutory appeal for
cause, whichever is appropriate. A party shall file a reply brief, if
any, with the FAA decisionmaker and serve a copy of the reply brief on
each party, not later than 10 days after service of the appeal brief.
The FAA decisionmaker shall render a decision on the interlocutory
appeal, on the record and as a part of the decision in the proceedings,
within a reasonable time after receipt of the interlocutory appeal.
(e) The FAA decisionmaker may reject frivolous, repetitive, or
dilatory appeals, and may issue an order precluding one or more parties
from making further interlocutory appeals in a proceeding in which there
have been frivolous, repetitive, or dilatory interlocutory appeals.
[Amdt. 13-21, 55 FR 27575, July 3, 1990, as amended by Amdt. 13-23, 55
FR 45983, Oct. 31, 1990]
Sec. 13.220 Discovery.
(a) Initiation of discovery. Any party may initiate discovery
described in this section, without the consent or approval of the
administrative law judge, at any time after a complaint has been filed
in the proceedings.
(b) Methods of discovery. The following methods of discovery are
permitted under this section: depositions on oral examination or written
questions of any person; written interrogatories directed to a party;
requests for production of documents or tangible items to any person;
and requests for admission by a party. A party is not required to file
written interrogatories and responses, requests for production of
documents or tangible items and responses, and requests for admission
and response with the administrative law judge or the hearing docket
clerk. In the event of a discovery dispute, a party shall attach a copy
of these documents in support of a motion made under this section.
(c) Service on the agency. A party shall serve each discovery
request directed to the agency or any agency employee on the agency
attorney of record.
(d) Time for response to discovery requests. Unless otherwise
directed by this subpart or agreed by the parties, a party shall respond
to a request for discovery, including filing objections to a request for
discovery, not later than 30 days of service of the request.
(e) Scope of discovery. Subject to the limits on discovery set forth
in paragraph (f) of this section, a party may discover any matter that
is not privileged and that is relevant to the subject matter of the
proceeding. A party may discover information that relates to the claim
or defense of any party including the existence, description, nature,
custody, condition, and location of any document or other tangible item
and the identity and location of any person having knowledge of
discoverable matter. A party may discover facts known, or opinions held,
by an expert who any other party expects to call to testify at the
hearing. A party has no ground to object to a discovery request on the
basis that the information sought would not be admissible at the hearing
if the information sought during discovery is reasonably calculated to
lead to the discovery of admissible evidence.
(f) Limiting discovery. The administrative law judge shall limit the
frequency
[[Page 61]]
and extent of discovery permitted by this section if a party shows that-
-
(1) The information requested is cumulative or repetitious;
(2) The information requested can be obtained from another less
burdensome and more convenient source;
(3) The party requesting the information has had ample opportunity
to obtain the information through other discovery methods permitted
under this section; or
(4) The method or scope of discovery requested by the party is
unduly burdensome or expensive.
(g) Confidential orders. A party or person who has received a
discovery request for information that is related to a trade secret,
confidential or sensitive material, competitive or commercial
information, proprietary data, or information on research and
development, may file a motion for a confidential order with the
administrative law judge and shall serve a copy of the motion for a
confidential order on each party.
(1) The party or person making the motion must show that the
confidential order is necessary to protect the information from
disclosure to the public.
(2) If the administrative law judge determines that the requested
material is not necessary to decide the case, the administrative law
judge shall preclude any inquiry into the matter by any party.
(3) If the administrative law judge determines that the requested
material may be disclosed during discovery, the administrative law judge
may order that the material may be discovered and disclosed under
limited conditions or may be used only under certain terms and
conditions.
(4) If the administrative law judge determines that the requested
material is necessary to decide the case and that a confidential order
is warranted, the administrative law judge shall provide:
(i) An opportunity for review of the document by the parties off the
record;
(ii) Procedures for excluding the information from the record; and
(iii) Order that the parties shall not disclose the information in
any manner and the parties shall not use the information in any other
proceeding.
(h) Protective orders. A party or a person who has received a
request for discovery may file a motion for protective order with the
administrative law judge and shall serve a copy of the motion for
protective order on each party. The party or person making the motion
must show that the protective order is necessary to protect the party or
the person from annoyance, embarrassment, oppression, or undue burden or
expense. As part of the protective order, the administrative law judge
may:
(1) Deny the discovery request;
(2) Order that discovery be conducted only on specified terms and
conditions, including a designation of the time or place for discovery
or a determination of the method of discovery; or
(3) Limit the scope of discovery or preclude any inquiry into
certain matters during discovery.
(i) Duty to supplement or amend responses. A party who has responded
to a discovery request has a duty to supplement or amend the response,
as soon as the information is known, as follows:
(1) A party shall supplement or amend any response to a question
requesting the identity and location of any person having knowledge of
discoverable matters.
(2) A party shall supplement or amend any response to a question
requesting the identity of each person who will be called to testify at
the hearing as an expert witness and the subject matter and substance of
that witness' testimony.
(3) A party shall supplement or amend any response that was
incorrect when made or any response that was correct when made but is no
longer correct, accurate, or complete.
(j) Depositions. The following rules apply to depositions taken
pursuant to this section:
(1) Form. A deposition shall be taken on the record and reduced to
writing. The person being deposed shall sign the deposition unless the
parties agree to waive the requirement of a signature.
(2) Administration of oaths. Within the United States, or a
territory or possession subject to the jurisdiction of the United
States, a party shall take a deposition before a person authorized to
administer oaths by the laws of the
[[Page 62]]
United States or authorized by the law of the place where the
examination is held. In foreign countries, a party shall take a
deposition in any manner allowed by the Federal Rules of Civil
Procedure.
(3) Notice of deposition. A party shall serve a notice of
deposition, stating the time and place of the deposition and the name
and address of each person to be examined, on the person to be deposed,
on the administrative law judge, on the hearing docket clerk, and on
each party not later than 7 days before the deposition. A party may
serve a notice of deposition less than 7 days before the deposition only
with consent of the administrative law judge. If a subpoena duces tecum
is to be served on the person to be examined, the party shall attach a
copy of the subpoena duces tecum that describes the materials to be
produced at the deposition to the notice of deposition.
(4) Use of depositions. A party may use any part or all of a
deposition at a hearing authorized under this subpart only upon a
showing of good cause. The deposition may be used against any party who
was present or represented at the deposition or who had reasonable
notice of the deposition.
(k) Interrogatories. A party, the party's attorney, or the party's
representative may sign the party's responses to interrogatories. A
party shall answer each interrogatory separately and completely in
writing.If a party objects to an interrogatory, the party shall state
the objection and the reasons for the objection. An opposing party may
use any part or all of a party's responses to interrogatories at a
hearing authorized under this subpart to the extent that the response is
relevant, material, and not repetitious.
(1) A party shall not serve more than 30 interrogatories to each
other party. Each subpart of an interrogatory shall be counted as a
separate interrogatory.
(2) A party shall file a motion for leave to serve additional
interrogatories on a party with the administrative law judge before
serving additional interrogatories on a party. The administrative law
judge shall grant the motion only if the party shows good cause for the
party's failure to inquire about the information previously and that the
information cannot reasonably be obtained using less burdensome
discovery methods or be obtained from other sources.
(l) Requests for admission. A party may serve a written request for
admission of the truth of any matter within the scope of discovery under
this section or the authenticity of any document described in the
request. A party shall set forth each request for admission separately.
A party shall serve copies of documents referenced in the request for
admission unless the documents have been provided or are reasonably
available for inspection and copying.
(1) Time. A party's failure to respond to a request for admission,
in writing and signed by the attorney or the party, not later than 30
days after service of the request, is deemed an admission of the truth
of the statement or statements contained in the request for admission.
The administrative law judge may determine that a failure to respond to
a request for admission is not deemed an admission of the truth if a
party shows that the failure was due to circumstances beyond the control
of the party or the party's attorney.
(2) Response. A party may object to a request for admission and
shall state the reasons for objection. A party may specifically deny the
truth of the matter or describe the reasons why the party is unable to
truthfully deny or admit the matter. If a party is unable to deny or
admit the truth of the matter, the party shall show that the party has
made reasonable inquiry into the matter or that the information known
to, or readily obtainable by, the party is insufficient to enable the
party to admit or deny the matter. A party may admit or deny any part of
the request for admission. If the administrative law judge determines
that a response does not comply with the requirements of this rule or
that the response is insufficient, the matter is deemed admitted.
(3) Effect of admission. Any matter admitted or deemed admitted
under this section is conclusively established for the purpose of the
hearing and appeal.
(m) Motion to compel discovery. A party may make a motion to compel
discovery if a person refuses to answer
[[Page 63]]
a question during a deposition, a party fails or refuses to answer an
interrogatory, if a person gives an evasive or incomplete answer during
a deposition or when responding to an interrogatory, or a party fails or
refuses to produce documents or tangible items. During a deposition, the
proponent of a question may complete the deposition or may adjourn the
examination before making a motion to compel if a person refuses to
answer.
(n) Failure to comply with a discovery order or order to compel. If
a party fails to comply with a discovery order or an order to compel,
the administrative law judge, limited to the extent of the party's
failure to comply with the discovery order or motion to compel, may:
(1) Strike that portion of a party's pleadings;
(2) Preclude prehearing or discovery motions by that party;
(3) Preclude admission of that portion of a party's evidence at the
hearing; or
(4) Preclude that portion of the testimony of that party's witnesses
at the hearing.
[Amdt. 13-21, 55 FR 27575, July 3, 1990, as amended by Amdt. 13-23, 55
FR 45983, Oct. 31, 1990]
Sec. 13.221 Notice of hearing.
(a) Notice. The administrative law judge shall give each party at
least 60 days notice of the date, time, and location of the hearing.
(b) Date, time, and location of the hearing. The administrative law
judge to whom the proceedings have been assigned shall set a reasonable
date, time, and location for the hearing. The administrative law judge
shall consider the need for discovery and any joint procedural or
discovery schedule submitted by the parties when determining the hearing
date. The administrative law judge shall give due regard to the
convenience of the parties, the location where the majority of the
witnesses reside or work, and whether the location is served by a
scheduled air carrier.
(c) Earlier hearing. With the consent of the administrative law
judge, the parties may agree to hold the hearing on an earlier date than
the date specified in the notice of hearing.
Sec. 13.222 Evidence.
(a) General. A party is entitled to present the party's case or
defense by oral, documentary, or demonstrative evidence, to submit
rebuttal evidence, and to conduct any cross-examination that may be
required for a full and true disclosure of the facts.
(b) Admissibility. A party may introduce any oral, documentary, or
demonstrative evidence in support of the party's case or defense. The
administrative law judge shall admit any oral, documentary, or
demonstrative evidence introduced by a party but shall exclude
irrelevant, immaterial, or unduly repetitious evidence.
(c) Hearsay evidence. Hearsay evidence is admissible in proceedings
governed by this subpart. The fact that evidence submitted by a party is
hearsay goes only to the weight of the evidence and does not affect its
admissibility.
Sec. 13.223 Standard of proof.
The administrative law judge 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, the reliable, probative, and
substantial evidence contained in the record. In order to prevail, the
party with the burden of proof shall prove the party's case or defense
by a preponderance of reliable, probative, and substantial evidence.
Sec. 13.224 Burden of proof.
(a) Except in the case of an affirmative defense, the burden of
proof is on the agency.
(b) Except as otherwise provided by statute or rule, the proponent
of a motion, request, or order has the burden of proof.
(c) A party who has asserted an affirmative defense has the burden
of proving the affirmative defense.
Sec. 13.225 Offer of proof.
A party whose evidence has been excluded by a ruling of the
administrative law judge may offer the evidence for the record on
appeal.
[[Page 64]]
Sec. 13.226 Public disclosure of evidence.
(a) The administrative law judge 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 administrative
law judge and serving a copy of the motion on each party. The party
shall state the specific grounds for nondisclosure in the motion.
(b) The administrative law judge shall grant the motion to withhold
information in the record if, based on the motion and any response to
the motion, the administrative law judge determines that disclosure
would be detrimental to aviation safety, disclosure would not be in the
public interest, or that the information is not otherwise required to be
made available to the public.
Sec. 13.227 Expert or opinion witnesses.
An employee of the agency may not be called as an expert or opinion
witness, for any party other than the FAA, in any proceeding governed by
this subpart. An employee of a respondent may not be called by an agency
attorney as an expert or opinion witness for the FAA in any proceeding
governed by this subpart to which the respondent is a party.
Sec. 13.228 Subpoenas.
(a) Request for subpoena. A party may obtain a subpoena to compel
the attendance of a witness at a deposition or hearing or to require the
production of documents or tangible items from the hearing docket clerk.
The hearing docket clerk shall deliver the subpoena, signed by the
hearing docket clerk or an administrative law judge but otherwise in
blank, to the party. The party shall complete the subpoena, stating the
title of the action and the date and time for the witness' attendance or
production of documents or items. The party who obtained the subpoena
shall serve the subpoena on the witness.
(b) Motion to quash or modify the subpoena. A party, or any person
upon whom a subpoena has been served, may file a motion to quash or
modify the subpoena with the administrative law judge at or before the
time specified in the subpoena for compliance. The applicant shall
describe, in detail, the basis for the application to quash or modify
the supoena including, but not limited to, a statement that the
testimony, document, or tangible evidence is not relevant to the
proceeding, that the subpoena is not reasonably tailored to the scope of
the proceeding, or that the subpoena is unreasonable and oppressive. A
motion to quash or modify the subpoena will stay the effect of the
subpoena pending a decision by the administrative law judge on the
motion.
(c) Enforcement of subpoena. Upon a showing that a person has failed
or refused to comply with a subpoena, a party may apply to the local
Federal district court to seek judicial enforcement of the subpoena in
accordance with section 1004 of the Federal Aviation Act of 1958, as
amended.
Sec. 13.229 Witness fees.
(a) General. Unless otherwise authorized by the administrative law
judge, the party who applies for a subpoena to compel the attendance of
a witness at a deposition or hearing, or the party at whose request a
witness appears at a deposition or hearing, shall pay the witness fees
described in this section.
(b) Amount. Except for an employee of the agency who appears at the
direction of the agency, a witness who appears at a deposition or
hearing is entitled to the same fees and mileage expenses as are paid to
a witness in a court of the United States in comparable circumstances.
Sec. 13.230 Record.
(a) Exclusive record. The transcript of all testimony in the
hearing, all exhibits received into evidence, and all motions,
applications, requests, and rulings shall constitute the exclusive
record for decision of the proceedings and the basis for the issuance of
any orders in the proceeding. Any proceedings regarding the
disqualification of an administrative law judge shall be included in the
record.
(b) Examination and copying of record. Any person may examine the
record at the Hearing Docket, Federal Aviation Administration, 800
Independence Avenue, SW., Room 924A, Washington, DC
[[Page 65]]
20591. Any person may have a copy of the record after payment of
reasonable costs to copy the record.
Sec. 13.231 Argument before the administrative law judge.
(a) Arguments during the hearing. During the hearing, the
administrative law judge shall give the parties a reasonable opportunity
to present arguments on the record supporting or opposing motions,
objections, and rulings if the parties request an opportunity for
argument. The administrative law judge may request written arguments
during the hearing if the administrative law judge finds that submission
of written arguments would be reasonable.
(b) Final oral argument. At the conclusion of the hearing and before
the administrative law judge issues an initial decision in the
proceedings, the parties are entitled to submit oral proposed findings
of fact and conclusions of law, exceptions to rulings of the
administrative law judge, and supporting arguments for the findings,
conclusions, or exceptions. At the conclusion of the hearing, a party
may waive final oral argument.
(c) Posthearing briefs. The administrative law judge may request
written posthearing briefs before the administrative law judge issues an
initial decision in the proceedings if the administrative law judge
finds that submission of written arguments would be reasonable. If a
party files a written posthearing brief, the party shall include
proposed findings of fact and conclusions of law, exceptions to rulings
of the administrative law judge, and supporting arguments for the
findings, conclusions, or exceptions. The administrative law judge shall
give the parties a reasonable opportunity, not more than 30 days after
receipt of the transcript, to prepare and submit the briefs.
Sec. 13.232 Initial decision.
(a) Contents. The administrative law judge shall issue an initial
decision at the conclusion of the hearing. In each oral or written
decision, the administrative law judge shall include findings of fact
and conclusions of law, and the grounds supporting those findings and
conclusions, upon all material issues of fact, the credibility of
witnesses, the applicable law, any exercise of the administrative law
judge's discretion, the amount of any civil penalty found appropriate by
the administrative law judge, and a discussion of the basis for any
order issued in the proceedings. The administrative law judge is not
required to provide a written explanation for rulings on objections,
procedural motions, and other matters not directly relevant to the
substance of the initial decision. If the administrative law judge
refers to any previous unreported or unpublished initial decision, the
administrative law judge shall make copies of that initial decision
available to all parties and the FAA decisionmaker.
(b) Oral decision. Except as provided in paragraph (c) of this
section, at the conclusion of the hearing, the administrative law judge
shall issue the initial decision and order orally on the record.
(c) Written decision. The administrative law judge may issue a
written initial decision not later than 30 days after the conclusion of
the hearing or submission of the last posthearing brief if the
administrative law judge finds that issuing a written initial decision
is reasonable. The administrative law judge shall serve a copy of any
written initial decision on each party.
(d) Order assessing civil penalty. Unless appealed pursuant to
Sec. 13.233 of this subpart, the initial decision issued by the
administrative law judge shall be considered an order assessing civil
penalty if the administrative law judge finds that an alleged violation
occurred and determines that a civil penalty, in an amount found
appropriate by the administrative law judge, is warranted.
Sec. 13.233 Appeal from initial decision.
(a) Notice of appeal. A party may appeal the initial decision, and
any decision not previously appealed pursuant to Sec. 13.219, by filing
a notice of appeal with the FAA decisionmaker. A party shall file the
notice of appeal with the Federal Aviation Administration, 800
Independence Avenue, SW., Room 924A, Washington, DC 20591, Attention:
Appellate Docket Clerk. A party shall file the notice of appeal not
later than 10 days after entry of the oral initial decision on the
record or service of the
[[Page 66]]
written initial decision on the parties and shall serve a copy of the
notice of appeal on each party.
(b) Issues on appeal. A party may appeal only the following issues:
(1) Whether each filing of fact is supported by a preponderance of
reliable, probative, and substantial evidence;
(2) Whether each conclusion of law is made in accordance with
applicable law, precedent, and public policy; and
(3) Whether the administrative law judge committed any prejudicial
errors during the hearing that support the appeal.
(c) Perfecting an appeal. Unless otherwise agreed by the parties, a
party shall perfect an appeal, not later than 50 days after entry of the
oral initial decision on the record or service of the written initial
decision on the party, by filing an appeal brief with the FAA
decisionmaker.
(1) Extension of time by agreement of the parties. The parties may
agree to extend the time for perfecting the appeal with the consent of
the FAA decisionmaker. If the FAA decisionmaker grants an extension of
time to perfect the appeal, the appellate docket clerk shall serve a
letter confirming the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an
extension of time for perfecting an appeal, a party desiring an
extension of time may file a written motion for an extension with the
FAA decisionmaker and shall serve a copy of the motion on each party.
The FAA decisionmaker may grant an extension if good cause for the
extension is shown in the motion.
(d) Appeal briefs. A party shall file the appeal brief with the FAA
decisionmaker and shall serve a copy of the appeal brief on each party.
(1) A party shall set forth, in detail, the party's specific
objections to the initial decision or rulings in the appeal brief. A
party also shall set forth, in detail, the basis for the appeal, the
reasons supporting the appeal, and the relief requested in the appeal.
If the party relies on evidence contained in the record for the appeal,
the party shall specifically refer to the pertinent evidence contained
in the transcript in the appeal brief.
(2) The FAA decisionmaker may dismiss an appeal, on the FAA
decisionmaker's own initiative or upon motion of any other party, where
a party has filed a notice of appeal but fails to perfect the appeal by
timely filing an appeal brief with the FAA decisionmaker.
(e) Reply brief. Unless otherwise agreed by the parties, any party
may file a reply brief with the FAA decisionmaker not later than 35 days
after the appeal brief has been served on that party. The party filing
the reply brief shall serve a copy of the reply brief on each party. If
the party relies on evidence contained in the record for the reply, the
party shall specifically refer to the pertinent evidence contained in
the transcript in the reply brief.
(1) Extension of time by agreement of the parties. The parties may
agree to extend the time for filing a reply brief with the consent of
the FAA decisionmaker. If the FAA decisionmaker grants an extension of
time to file the reply brief, the appellate docket clerk shall serve a
letter confirming the extension of time on each party.
(2) Written motion for extension. If the parties do not agree to an
extension of time for filing a reply brief, a party desiring an
extension of time may file a written motion for an extension with the
FAA decisionmaker and shall serve a copy of the motion on each party.
The FAA decisionmaker may grant an extension if good cause for the
extension is shown in the motion.
(f) Other briefs. The FAA decisionmaker may allow any person to
submit an amicus curiae brief in an appeal of an initial decision. A
party may not file more than one appeal brief or reply brief. A party
may petition the FAA decisionmaker, in writing, for leave to file an
additional brief and shall serve a copy of the petition on each party.
The party may not file the additional brief with the petition. The FAA
decisionmaker may grant leave to file an additional brief if the party
demonstrates good cause for allowing additional argument on the appeal.
The FAA decisionmaker will allow a reasonable time for the party to file
the additional brief.
(g) Number of copies. A party shall file the original appeal brief
or the original
[[Page 67]]
reply brief, and two copies of the brief, with the FAA decisionmaker.
(h) Oral argument. The FAA decisionmaker has sole discretion to
permit oral argument on the appeal. On the FAA decisionmaker's own
initiative or upon written motion by any party, the FAA decisionmaker
may find that oral argument will contribute substantially to the
development of the issues on appeal and may grant the parties an
opportunity for oral argument.
(i) Waiver of objections on appeal. If a party fails to object to
any alleged error regarding the proceedings in an appeal or a reply
brief, the party waives any objection to the alleged error. The FAA
decisionmaker is not required to consider any objection in an appeal
brief or any argument in the reply brief if a party's objection is based
on evidence contained on the record and the party does not specifically
refer to the pertinent evidence from the record in the brief.
(j) FAA decisionmaker's decision on appeal. The FAA decisionmaker
will review the briefs on appeal and the oral argument, if any, to
determine if the administrative law judge committed prejudicial error in
the proceedings or that the initial decision should be affirmed,
modified, or reversed. The FAA decisionmaker may affirm, modify, or
reverse the initial decision, make any necessary findings, or may remand
the case for any proceedings that the FAA decisionmaker determines may
be necessary.
(1) The FAA decisionmaker may raise any issue, on the FAA
decisionmaker's own initiative, that is required for proper disposition
of the proceedings. The FAA decisionmaker will give the parties a
reasonable opportunity to submit arguments on the new issues before
making a decision on appeal. If an issue raised by the FAA decisionmaker
requires the consideration of additional testimony or evidence, the FAA
decisionmaker will remand the case to the administrative law judge for
further proceedings and an initial decision related to that issue. If an
issue raised by the FAA decisionmaker is solely an issue of law or the
issue was addressed at the hearing but was not raised by a party in the
briefs on appeal, a remand of the case to the administrative law judge
for further proceedings is not required but may be provided in the
discretion of the FAA decisionmaker.
(2) The FAA decisionmaker will issue the final decision and order of
the Administrator on appeal in writing and will serve a copy of the
decision and order on each party. Unless a petition for review is filed
pursuant to Sec. 13.235, a final decision and order of the Administrator
shall be considered an order assessing civil penalty if the FAA
decisionmaker finds that an alleged violation occurred and a civil
penalty is warranted.
(3) A final decision and order of the Administrator after appeal is
precedent in any other civil penalty action. Any issue, finding or
conclusion, order, ruling, or initial decision of an administrative law
judge that has not been appealed to the FAA decisionmaker is not
precedent in any other civil penalty action.
Sec. 13.234 Petition to reconsider or modify a final decision and order of the FAA decisionmaker on appeal.
(a) General. Any party may petition the FAA decisionmaker to
reconsider or modify a final decision and order issued by the FAA
decisionmaker on appeal from an initial decision. A party shall file a
petition to reconsider or modify with the FAA decisionmaker not later
than 30 days after service of the FAA decisionmaker's final decision and
order on appeal and shall serve a copy of the petition on each party.
The FAA decisionmaker will not reconsider or modify an initial decision
and order issued by an administrative law judge that has not been
appealed by any party to the FAA decisionmaker.
(b) Form and number of copies. A party shall file a petition to
reconsider or modify, in writing, with the FAA decisionmaker. The party
shall file the original petition with the FAA decisionmaker and shall
serve a copy of the petition on each party.
(c) Contents. A party shall state briefly and specifically the
alleged errors in the final decision and order on appeal, the relief
sought by the party, and the grounds that support, the petition to
reconsider or modify.
[[Page 68]]
(1) If the petition is based, in whole or in part, on allegations
regarding the consequences of the FAA decisionmaker's decision, the
party shall describe these allegations and shall describe, and support,
the basis for the allegations.
(2) If the petition is based, in whole or in part, on new material
not previously raised in the proceedings, the party shall set forth the
new material and include affidavits of prospective witnesses and
authenticated documents that would be introduced in support of the new
material. The party shall explain, in detail, why the new material was
not discovered through due diligence prior to the hearing.
(d) Repetitious and frivolous petitions. The FAA decisionmaker will
not consider repetitious or frivolous petitions. The FAA decisionmaker
may summarily dismiss repetitious or frivolous petitions to reconsider
or modify.
(e) Reply petitions. Any other party may reply to a petition to
reconsider or modify, not later than 10 days after service of the
petition on that party, by filing a reply with the FAA decisionmaker. A
party shall serve a copy of the reply on each party.
(f) Effect of filing petition. Unless otherwise ordered by the FAA
decisionmaker, filing of a petition pursuant to this section will not
stay or delay the effective date of the FAA decisionmaker's final
decision and order on appeal and shall not toll the time allowed for
judicial review.
(g) FAA decisionmaker's decision on petition. The FAA decisionmaker
has sole discretion to grant or deny a petition to reconsider or modify.
The FAA decisionmaker will grant or deny a petition to reconsider or
modify within a reasonable time after receipt of the petition or receipt
of the reply petition, if any. The FAA decisionmaker may affirm, modify,
or reverse the final decision and order on appeal, or may remand the
case for any proceedings that the FAA decisionmaker determines may be
necessary.
[Amdt. 13-21, 55 FR 27575, July 3, 1990; 55 FR 29293, July 18, 1990;
Amdt. 13-23, 55 FR 45983, Oct. 31, 1990]
Sec. 13.235 Judicial review of a final decision and order.
A person may seek judicial review of a final decision and order of
the Administrator as provided in section 1006 of the Federal Aviation
Act of 1958, as amended. A party seeking judicial review of a final
decision and order shall file a petition for review not later than 60
days after the final decision and order has been served on the party.
Subpart H--Civil Monetary Penalty Inflation Adjustment
Source: Docket No. 28762, 61 FR 67445, Dec. 20, 1996, unless
otherwise noted.
Sec. 13.301 Scope and purpose.
(a) This subpart provides a mechanism for the regular adjustment for
inflation of civil monetary penalties in conformity with the Federal
Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 (note),
as amended by the Debt Collection Improvement Act of 1996, Public Law
104-134, April 26, 1996, in order to maintain the deterrent effect of
civil monetary penalties and to promote compliance with the law. This
subpart also sets out the current adjusted maximum civil monetary
penalties or range of minimum and maximum civil monetary penalties for
each statutory civil penalty subject to the FAA's jurisdiction.
(b) Each adjustment to the maximum civil monetary penalty or the
range of minimum and maximum civil monetary penalties, as applicable,
made in accordance with this subpart applies prospectively from the date
it becomes effective to actions initiated under this part,
notwithstanding references to a specific maximum civil monetary penalty
or range of minimum and maximum civil monetary penalties contained
elsewhere in this part.
Sec. 13.303 Definitions.
(a) Civil Monetary Penalty means any penalty, fine, or other
sanction that:
(1) Is for a specific monetary amount as provided by Federal law or
has a maximum amount provided by Federal law;
(2) Is assessed or enforced by the FAA pursuant to Federal law; and
[[Page 69]]
(3) Is assessed or enforced pursuant to an administrative proceeding
or a civil action in the Federal courts.
(b) Consumer Price Index means the Consumer Price Index for all
urban consumers published by the Department of Labor.
Sec. 13.305 Cost of living adjustments of civil monetary penalties.
(a) Except for the limitation to the initial adjustment to statutory
maximum civil monetary penalties or range of minimum and maximum civil
monetary penalties set forth in paragraph (c) of this section, the
inflation adjustment under this subpart is determined by increasing the
maximum civil monetary penalty or range of minimum and maximum civil
monetary penalty for each civil monetary penalty by the cost-of-living
adjustment. Any increase determined under paragraph (a) of this section
is rounded to the nearest:
(1) Multiple of $10 in the case of penalties less than or equal to
$100;
(2) Multiple of $100 in the case of penalties greater than $100 but
less than or equal to $1,000;
(3) Multiple of $1,000 in the case of penalties greater than $1,000
but less than or equal to $10,000;
(4) Multiple of $5,000 in the case of penalties greater than $10,000
but less than or equal to $100,000;
(5) Multiple of $10,000 in the case of penalties greater than
$100,000 but less than or equal to $200,000; and
(6) Multiple of $25,000 in the case of penalties greater than
$200,000.
(b) For purposes of paragraph (a) of this section, the term ``cost-
of-living adjustment'' means the percentage (if any) for each civil
monetary penalty by which the Consumer Price Index for the month of June
of the calendar year preceding the adjustment exceeds the Consumer Price
Index for the month of June of the calendar year in which the amount of
such civil monetary penalty was last set or adjusted pursuant to law.
(c) Limitation on initial adjustment. The initial adjustment of
maximum civil penalty or range of minimum and maximum civil monetary
penalties made pursuant to this subpart does not exceed 10 percent of
the statutory maximum civil penalty before an adjustment under this
subpart is made. This limitation applies only to the initial adjustment,
effective on January 21, 1997.
(d) Inflation adjustment. Minimum and maximum civil monetary
penalties within the jurisdiction of the FAA are adjusted for inflation
as follows: Minimum and Maximum Civil Penalties--Adjusted for Inflation,
Effective March 13, 2002.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum penalty
Civil monetary penalty New adjusted minimum amount when last set New or Adjusted
United States Code citation description Minimum penalty amount penalty amount or adjusted pursuant Maximum penalty
to law amount
--------------------------------------------------------------------------------------------------------------------------------------------------------
49 U.S.C. 5123(a).................. Violations of $250 per violation $250 per violation... $27,500 per violation $30,000 per
hazardous materials adjusted 1/27/1997. adjusted 1/21/1997. violation, adjusted
transportation law, effective 3/30/02.
regulations, or
orders..
49 U.S.C. 46301(a)(1).............. Violations of N/A................... N/A.................. $1,100 per violation, $1,100 per violation,
statutory provisions adjusted 1/21/1997. adjusted 1/21/1997.
listed in 49 U.S.C.
46301(a)(1),
regulations
prescribed, or orders
issued under those
provisions..
49 U.S.C. 46301(a)(2).............. Violations of N/A................... N/A.................. $11,000 per $11,000 per
statutory provisions violation, adjusted violation, adjusted
listed in 49 USC 1/21/1997. 1/21/1997.
46301(a)(2),
regulations
prescribed, or orders
issued under those
provisions by a
person operating an
aircraft for the
transportation of
passengers or
property for
compensation.
49 U.S.C. 46301(a)(3)(A)........... Violations of N/A................... N/A.................. $11,000 per $11,000 per
statutory provisions violation, adjusted violation, adjusted
listed in 49 U.S.C. 1/21/1997. 1/21/1997.
46301(a)(1),
regulations
prescribed, or orders
issued under those
provisions relating
to the transportation
of hazardous
materials by air..
[[Page 70]]
49 U.S.C. 46301(a)(3)(B)........... Violations of N/A................... N/A.................. $11,000 per $11,000 per
statutory provisions violation, adjusted violation, adjusted
listed in 49 U.S.C. 1/21/1997. 1/21/1997.
46301(a)(1),
regulations
prescribed, or orders
issued under those
provisions relating
to the registration
or recordation under
chapter 441 of Title
49, United States
Code, or an aircraft
not used to provide
air transportation..
49 U.S.C. 46301(a)(3)(C)........... Violations of 49 N/A................... N/A.................. $10,000, set 10/9/ $10,000, set 10/9/
U.S.C. 44718(d), or 1996. 1996.
regulations
prescribed or orders
issued under it,
relating to limiting
construction or
establishment of
landfills.
49 U.S.C. 46301(a)(3)(D)........... Violations of 49 N/A................... N/A.................. $10,000, adopted 4/5/ $10,000, adopted 4/5/
U.S.C. 44725, or 2000. 2000.
regulations
prescribed or orders
issued under it,
relating to the safe
disposal of life-
limited aircraft
parts.
49 U.S.C. 46301(b)................. Tampering with a smoke N/A................... N/A.................. $2,200 per violation, $2,200 per violation,
alarm device.. adjusted 1/21/1997. adjusted 1/21/1997.
49 U.S.C. 46302.................... Knowingly providing N/A................... N/A.................. $11,000 per $11,000 per violation
false information violation, adjusted adjusted 1/21/1997.
about alleged 1/21/1997.
violations involving
the special aircraft
jurisdiction of the
United States..
49 U.S.C. 46303.................... Carrying a concealed N/A................... N/A.................. $11,000 per $11,000 per
dangerous weapon. violation, adjusted violation, adjusted
1/21/1997. 1/21/1997.
49 U.S.C. 46318.................... Interference with N/A................... N/A.................. $25,000 per $25,000 per
cabin or flight crew. violation, adopted 4/ violation, adopted 4/
5/2000. 5/2000.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[61 FR 67445, Dec. 20, 1996, as amended by Amdt. 13-28, 62 FR 4134, Jan.
29, 1997; 67 FR 6366, Feb. 11, 2002]
Subpart I--Flight Operational Quality Assurance Programs
Sec. 13.401 Flight Operational Quality Assurance Program: Prohibition against use of data for enforcement purposes.
(a) Applicability. This section applies to any operator of an
aircraft who operates such aircraft under an approved Flight Operational
Quality Assurance (FOQA) program.
(b) Definitions. For the purpose of this section, the terms--
(1) Flight Operational Quality Assurance (FOQA) program means an
FAA-approved program for the routine collection and analysis of digital
flight data gathered during aircraft operations, including data
currently collected pursuant to existing regulatory provisions, when
such data is included in an approved FOQA program.
(2) FOQA data means any digital flight data that has been collected
from an individual aircraft pursuant to an FAA-approved FOQA program,
regardless of the electronic format of that data.
(3) Aggregate FOQA data means the summary statistical indices that
are associated with FOQA event categories, based on an analysis of FOQA
data from multiple aircraft operations.
(c) Requirements. In order for paragraph (e) of this section to
apply, the operator must submit, maintain, and adhere to a FOQA
Implementation and Operation Plan that is approved by the Administrator
and which contains the following elements:
(1) A description of the operator's plan for collecting and
analyzing flight
[[Page 71]]
recorded data from line operations on a routine basis, including
identification of the data to be collected;
(2) Procedures for taking corrective action that analysis of the
data indicates is necessary in the interest of safety;
(3) Procedures for providing the FAA with aggregate FOQA data;
(4) Procedures for informing the FAA as to any corrective action
being undertaken pursuant to paragraph (c)(2) of this section.
(d) Submission of aggregate data. The operator will provide the FAA
with aggregate FOQA data in a form and manner acceptable to the
Administrator.
(e) Enforcement. Except for criminal or deliberate acts, the
Administrator will not use an operator's FOQA data or aggregate FOQA
data in an enforcement action against that operator or its employees
when such FOQA data or aggregate FOQA data is obtained from a FOQA
program that is approved by the Administrator.
(f) Disclosure. FOQA data and aggregate FOQA data, if submitted in
accordance with an order designating the information as protected under
part 193 of this chapter, will be afforded the nondisclosure protections
of part 193 of this chapter.
(g) Withdrawal of program approval. The Administrator may withdraw
approval of a previously approved FOQA program for failure to comply
with the requirements of this chapter. Grounds for withdrawal of
approval may include, but are not limited to--
(1) Failure to implement corrective action that analysis of
available FOQA data indicates is necessary in the interest of safety; or
(2) Failure to correct a continuing pattern of violations following
notice by the agency; or also
(3) Willful misconduct or willful violation of the FAA regulations
in this chapter.
[Doc. No. FAA-2000-7554, 66 FR 55048, Oct. 31, 2001; Amdt. 13-30, 67 FR
31401, May 9, 2002]
PART 14--RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 1980--Table of Contents
Subpart A--General Provisions
Sec.
14.01 Purpose of these rules.
14.02 Proceedings covered.
14.03 Eligibility of applicants.
14.04 Standards for awards.
14.05 Allowance fees and expenses.
Subpart B--Information Required From Applicants
14.10 Contents of application.
14.11 Net worth exhibit.
14.12 Documentation of fees and expenses.
Subpart C--Procedures for Considering Applications
14.20 When an application may be filed.
14.21 Filing and service of documents.
14.22 Answer to application.
14.23 Reply.
14.24 Comments by other parties.
14.25 Settlement.
14.26 Further proceedings.
14.27 Decision.
14.28 Review by FAA decisionmaker.
14.29 Judicial review.
14.30 Payment of award.
Authority: 5 U.S.C. 504; 49 U.S.C. 106(f), 40113, 46104 and 47122.
Source: 54 FR 46199, Nov. 1, 1989, unless otherwise noted.
Subpart A--General Provisions
Sec. 14.01 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides
for the award of attorney fees and other expenses to eligible
individuals and entities who are parties to certain administrative
proceedings (adversary adjudications) before the Federal Aviation
Administration (FAA). An eligible party may receive an award when it
prevails over the FAA, unless the agency's position in the proceeding
was substantially justified or special circumstances make an award
unjust. The rules in this part describe the parties eligible for awards
and the proceedings that are covered. They also explain
[[Page 72]]
how to apply for awards, and the procedures and standards that the FAA
Decisionmaker will use to make them. As used hereinafter, the term
``agency'' applies to the FAA.
Sec. 14.02 Proceedings covered.
(a) The Act applies to certain adversary adjudications conducted by
the FAA under 49 CFR part 17 and the Acquisition Management System
(AMS). These are adjudications under 5 U.S.C. 554, in which the position
of the FAA is represented by an attorney or other representative who
enters an appearance and participates in the proceeding. This subpart
applies to proceedings under 49 U.S.C. 46301, 46302, and 46303 and to
the Default Adjudicative Process under part 17 of this chapter and the
AMS.
(b) If a proceeding includes both matters covered by the Act and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.
(c) Fees and other expenses may not be awarded to a party for any
portion of the adversary adjudication in which such party has
unreasonably protracted the proceedings.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32935, June
18, 1999]
Sec. 14.03 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to the adversary
adjudication for which it seeks an award. The term ``party'' is defined
in 5 U.S.C. 504(b)(1)(B) and 5 U.S.C. 551(3). The applicant must show
that it meets all conditions or eligibility set out in this subpart.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $2 million at
the time the adversary adjudication was initiated;
(2) The sole owner of an unincorporated business who has a net worth
of not more than $7 million, including both personal and business
interests, and not more than 500 employees at the time the adversary
adjudication was initiated;
(3) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees at the time the adversary adjudication
was initiated; and
(4) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees at the time the adversary adjudication was initiated; and
(5) Any other partnership, corporation, association, or public or
private organization with a net worth of not more than $7 million and
not more than 500 employees at the time the adversary adjudication was
initiated.
(c) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was initiated.
(d) An applicant who owns an unincorporated business will be
considered an ``individual'' rather than a ``sole owner of an
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interest.
(e) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be included
on a proportional basis.
(f) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual, corporation, or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
part, unless the ALJ or adjudicative officer determines that such
treatment would be unjust and contrary to the purposes of the Act in
light of the actual relationship between the affiliated entities. In
addition, the ALJ or adjudicative officer may determine that financial
relationships of the applicant, other than those described in this
paragraph, constitute special circumstances that would make an award
unjust.
[[Page 73]]
(g) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
if not itself eligible for an award.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32935, June
18, 1999]
Sec. 14.04 Standards for awards.
(a) A prevailing applicant may receive an award for attorney fees
and other expenses incurred in connection with a proceeding, or in a
significant and discrete substantive portion of the proceeding, unless
the position of the agency over which the applicant has prevailed was
substantially justified. Whether or not the position of the FAA was
substantially justified shall be determined on the basis of the record
(including the record with respect to the action or failure to act by
the agency upon which the civil action is based) which was made in the
civil action for which fees and other expenses are sought. The burden of
proof that an award should not be made to an eligible prevailing
applicant is on the agency counsel, who may avoid an award by showing
that the agency's position was reasonable in law and fact.
(b) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the proceeding or if special circumstances
make the award sought unjust.
Sec. 14.05 Allowance fees and expenses.
(a) Awards will be based on rates customarily charged by persons
engaged in the business of acting as attorneys, agents, and expert
witnesses, even if the services were made available without charge or at
a reduced rate to the applicant.
(b) No award for the fee of an attorney or agent under this part may
exceed $125 per hour, or such rate as prescribed by 5 U.S.C. 504. No
award to compensate an expert witness may exceed the highest rate at
which the agency pays expert witnesses. However, an award may also
include the reasonable expenses of the attorney, agent, or witness as a
separate item, if the attorney, agent, or witness ordinarily charges
clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an
attorney, agent, or expert witness, the ALJ or adjudicative officer
shall consider the following:
(1) If the attorney, agent, or witness is in private practice, his
or her customary fee for similar services, or if an employee of the
applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in
which the attorney, agent, or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services
provided.
(d) The reasonable cost of any study, analysis, engineering report,
test, project, or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the service does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of the applicant's case.
(e) Fees may be awarded only for work performed after the issuance
of a complaint, or in the Default Adjudicative Process for a protest or
contract dispute under part 17 of this chapter and the AMS.
[Amdt. 13-18, 53 FR 34655, Sept. 7, 1988, as amended by Amdt. 14-1, 55
FR 15131, Apr. 20, 1990; Amdt. 14-03, 64 FR 32935, June 18, 1999]
Subpart B--Information Required From Applicants
Sec. 14.10 Contents of application.
(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought. The application shall show that the applicant has prevailed and
identify the position of the agency in the proceeding that the applicant
alleges was not substantially justified. Unless the applicant is an
individual, the application shall also state the number of employees of
the applicant and describe briefly the type and purpose of its
organization or business.
[[Page 74]]
(b) The application shall also include a statement that the
applicant's net worth does not exceed $2 million (if an individual) or
$7 million (for all other applicants, including their affiliates) at the
time the adversary adjudication was initiated. However, an applicant may
omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)), or in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(2) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall state the amount of fees and expenses for
which an award is sought.
(d) The application may also include any other matters that the
applicant wishes this agency to consider in determining whether and in
what amount an award should be made.
(e) The application shall be signed by the applicant or an
authorized officer or attorney for the applicant. It shall also contain
or be accompanied by a written verification under oath or under penalty
of perjury that the information provided in the application is true and
correct.
(f) If the applicant is a partnership, corporation, association,
organization, or sole owner of an unincorporated business, the
application shall state that the applicant did not have more than 500
employees at the time the adversary adjudication was initiated, giving
the number of its employees and describing briefly the type and purpose
of its organization or business.
Sec. 14.11 Net worth exhibit.
(a) Each applicant except a qualified tax-exempt organization or
cooperative association must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates when
the proceeding was initiated. If any individual, corporation, or other
entity directly or indirectly controls or owns a majority of the voting
shares or other interest of the applicant, or if the applicant directly
or indirectly owns or controls a majority of the voting shares or other
interest of any corporation or other entity, the exhibit must include a
showing of the net worth of all such affiliates or of the applicant
including the affiliates. The exhibit may be in any form convenient to
the applicant that provides full disclosure of the applicant's and its
affiliates' assets and liabilities and is sufficient to determine
whether the applicant qualifies under the standards in this part. The
administrative law judge may require an applicant to file additional
information to determine the eligibility for an award.
(b) The net worth exhibit shall describe any transfers of assets
from, or obligations incurred by, the applicant or any affiliate,
occurring in the one-year period prior to the date on which the
proceeding was initiated, that reduced the net worth of the applicant
and its affiliates below the applicable net worth ceiling. If there were
no such transactions, the applicant shall so state.
(c) Ordinarily, the net worth exhibit will be included in the public
record of the proceeding. However, an applicant that objects to public
disclosure of the net worth exhibit, or any part of it, may submit that
portion of the exhibit directly to the ALJ or adjudicative officer in a
sealed envelope labeled ``Confidential Financial Information,''
accompanied by a motion to withhold the information.
(1) The motion shall describe the information sought to be withheld
and explain, in detail, why it should be exempt under applicable law or
regulation, why public disclosure would adversely affect the applicant,
and why disclosure is not required in the public interest.
(2) The net worth exhibit shall be served on the FAA counsel, but
need not be served on any other party to the proceeding.
(3) If the ALJ or adjudicative officer finds that the net worth
exhibit, or any part of it, should not be withheld from disclosure, it
shall be placed in the public record of the proceeding. Otherwise, any
request to inspect or copy
[[Page 75]]
the exhibit shall be disposed of in accordance with the FAA's
established procedures.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32935, June
18, 1999]
Sec. 14.12 Documentation of fees and expenses.
The application shall be accompanied by full documentation of the
fees and expenses, including the cost of any study, analysis,
engineering report, test, project or similar matter, for which an award
is sought. A separate itemized statement shall be submitted for each
professional firm or individual whose services are covered by the
application, showing the hours spent in connection with the proceedings
by each individual, a description of the specific services performed,
the rate at which each fee has been computed, any expenses for which
reimbursement is sought, the total amount claimed, and the total amount
paid or payable by the applicant or by any other person or entity for
the services provided. The administrative law judge may require the
applicant to provide vouchers, receipts, or other substantiation for any
expenses claimed.
Subpart C--Procedures for Considering Applications
Sec. 14.20 When an application may be filed.
(a) An application may be filed whenever the applicant has prevailed
in the proceeding, but in no case later than 30 days after the FAA
Decisionmaker's final disposition of the proceeding, or service of the
order of the Administrator in a proceeding under the AMS.
(b) If review or reconsideration is sought or taken of a decision to
which an applicant believes it has prevailed, proceedings for the award
of fees shall be stayed pending final disposition of the underlying
controversy.
(c) For purposes of this part, final disposition means the later of:
(1) Under part 17 of this chapter and the AMS, the date on which the
order of the Administrator is served;
(2) The date on which an unappealed initial decision becomes
administratively final;
(3) Issuance of an order disposing of any petitions for
reconsideration of the FAA Decisionmaker's final order in the
proceeding;
(4) If no petition for reconsideration is filed, the last date on
which such a petition could have been filed; or
(5) Issuance of a final order or any other final resolution of a
proceeding, such as a settlement or voluntary dismissal, which is not
subject to a petition for reconsideration.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32936, June
18, 1999]
Sec. 14.21 Filing and service of documents.
Any application for an award or other pleading or document related
to an application shall be filed and served on all parties to the
proceeding in the same manner as other pleadings in the proceeding,
except as provided in Sec. 14.11(b) for confidential financial
information. Where the proceeding was held under part 17 of this chapter
and the AMS, the application shall be filed with the FAA's attorney and
with the Office of Dispute Resolution for Acquisition.
[Doc. No. FAA-1998-4379, 64 FR 32936, June 18, 1999]
Sec. 14.22 Answer to application.
(a) Within 30 days after service of an application, counsel
representing the agency against which an award is sought may file an
answer to the application. Unless agency counsel requests an extension
of time for filing or files a statement of intent to negotiate under
paragraph (b) of the section, failure to file an answer within the 30-
day period may be treated as a consent to the award requested.
(b) If the FAA's counsel and the applicant believe that the issues
in the fee application can be settled, they may jointly file a statement
of their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 30 days,
and further extensions may be granted by the ALJ or adjudicative officer
upon request by the FAA's counsel and the applicant.
(c) The answer shall explain in detail any objections to the award
requested
[[Page 76]]
and identify the facts relied on in support of agency counsel's
position. If the answer is based on any alleged facts not already in the
record of the proceeding, agency counsel shall include with the answer
either supporting affidavits or a request for further proceedings under
Sec. 14.26.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32936, June
18, 1999]
Sec. 14.23 Reply.
Within 15 days after service of an answer, the applicant may file a
reply. If the reply is based on any alleged facts not already in the
record of the proceeding, the applicant shall include with the reply
either supporting affidavits or a request for further proceedings under
Sec. 14.26.
Sec. 14.24 Comments by other parties.
Any party to a proceeding other than the applicant and the FAA's
counsel may file comments on an application within 30 days after it is
served, or on an answer within 15 days after it is served. A commenting
party may not participate further in proceedings on the application
unless the ALJ or adjudicative officer determines that the public
interest requires such participation in order to permit full exploration
of matters raised in the comments.
[Doc. No. FAA-1998-4379, 64 FR 32936, June 18, 1999]
Sec. 14.25 Settlement.
The applicant and agency counsel may agree on a proposed settlement
of the award before final action on the application, either in
connection with a settlement of the underlying proceeding, or after the
underlying proceeding has been concluded. If a prevailing party and
agency counsel agree on a proposed settlement of an award before an
application has been filed, the application shall be filed with the
proposed settlement.
Sec. 14.26 Further proceedings.
(a) Ordinarily the determination of an award will be made on the
basis of the written record; however, on request of either the applicant
or agency counsel, or on his or her own initiative, the ALJ or
adjudicative officer assigned to the matter may order further
proceedings, such as an informal conference, oral argument, additional
written submissions, or an evidentiary hearing. Such further proceedings
shall be held only when necessary for full and fair resolution of the
issues arising from the application and shall be conducted as promptly
as possible.
(b) A request that the administrative law judge order further
proceedings under this section shall specifically identify the
information sought or the disputed issues and shall explain why the
additional proceedings are necessary to resolve the issues.
[54 FR 46199, Nov. 1, 1989, as amended by Amdt. 14-03, 64 FR 32936, June
18, 1999]
Sec. 14.27 Decision.
(a) The ALJ shall issue an initial decision on the application
within 60 days after completion of proceedings on the application.
(b) An adjudicative officer in a proceeding under part 17 of this
chapter and the AMS shall prepare a findings and recommendations for the
Office of Dispute Resolution for Acquisition.
(c) A decision under paragraph (a) or (b) of this section shall
include written findings and conclusions on the applicant's eligibility
and status as prevailing party and an explanation of the reasons for any
difference between the amount requested and the amount awarded. The
decision shall also include, if at issue, findings on whether the FAA's
position was substantially justified, or whether special circumstances
make an award unjust.
[Doc. No. FAA-1998-4379, 64 FR 32936, June 18, 1999]
Sec. 14.28 Review by FAA decisionmaker.
(a) In proceedings other than those under part 17 of this chapter
and the AMS, either the applicant or the FAA counsel may seek review of
the initial decision on the fee application. Additionally, the FAA
Decisionmaker may decide to review the decision on his/her own
initiative. If neither the applicant nor the FAA's counsel seeks review
within 30 days after the decision is issued, it shall become final.
Whether to review a decision is a matter within
[[Page 77]]
the discretion of the FAA Decisionmaker. If review is taken, the FAA
Decisionmaker will issue a final decision on the application or remand
the application to the ALJ who issue the initial fee award determination
for further proceedings.
(b) In proceedings under part 17 of this chapter and the AMS, the
adjudicative officer shall prepare findings and recommendations for the
Office of Dispute Resolution for Acquisition with recommendations as to
whether or not an award should be made, the amount of the award, and the
reasons therefor. The Office of Dispute Resolution for Acquisition shall
submit a recommended order to the Administrator after the completion of
all submissions related to the EAJA application. Upon the
Administrator's action, the order shall become final, and may be
reviewed under 49 U.S.C. 46110.
[Doc. No. FAA-1998-4379, 64 FR 32936, June 18, 1999]
Sec. 14.29 Judicial review.
If an applicant is dissatisfied with the determination of fees and
other expenses made under this subsection, pursuant 5 U.S.C. 504(c)(2),
that applicant may, within thirty (30) days after the determination is
made, appeal the determination to the court of the United States having
jurisdiction to review the merits of the underlying decision of the FAA
adversary adjudication. The court's determination on any appeal heard
under this paragraph shall be based solely on the factual record made
before the FAA. The court may modify the determination of fees and other
expenses only if the court finds that the failure to make an award of
fees and other expenses, or the calculation of the amount of the award,
was unsupported by substantial evidence.
Sec. 14.30 Payment of award.
An applicant seeking payment of an award shall submit to the
disbursing official of the FAA a copy of the FAA Decisionmaker's final
decision granting the award, accompanied by a statement that the
applicant will not seek review of the decision in the United States
courts. Applications for award grants in cases involving the FAA shall
be sent to: The Office of Accounting and Audit, AAA-1, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591. The
agency will pay the amount awarded to the applicant within 60 days,
unless judicial review of the award or of the underlying decision of the
adversary adjudication has been sought by the applicant or any other
party to the proceeding.
PART 15--ADMINISTRATIVE CLAIMS UNDER FEDERAL TORT CLAIMS ACT--Table of Contents
Subpart A--General Procedures
Sec.
15.1 Scope of regulations.
15.3 Administrative claim, when presented; appropriate office.
15.5 Administrative claim, who may file.
15.7 Administrative claims; evidence and information to be submitted.
15.9 Investigation and examination.
Subpart B--Indemnification Under Section 1118 of the Federal Aviation
Act of 1958
15.101 Applicability.
15.103 Exclusions.
15.105 Filing of requests for indemnification.
15.107 Notification requirements.
15.109 Settlements.
15.111 Conduct of litigation.
15.113 Indemnification agreements.
15.115 Payment.
Authority: 5 U.S.C. 301; 28 U.S.C. 2672, 2675; 49 U.S.C. 106(g),
40113, 44721.
Subpart A--General Procedures
Source: Docket No. 25264, 52 FR 18171, May 13, 1987, unless
otherwise noted.
Sec. 15.1 Scope of regulations.
(a) These regulations apply to claims asserted under the Federal
Tort Claims Act, as amended, for money damages against the United States
for injury to, or loss of property, or for personal injury or death,
caused by the negligent or wrongful act or omission of an employee of
the FAA acting within the scope of office or employment. The regulations
in this part supplement the Attorney General's regulations in 28 CFR
Part 14, as amended. The regulations in 28 CFR Part 14, as amended, and
the regulations in this part apply
[[Page 78]]
to consideration by the FAA of administrative claims under the Federal
Tort Claims Act.
Sec. 15.3 Administrative claim, when presented; appropriate office.
(a) A claim is deemed to have been presented when the FAA receives,
at a place designated in paragraph (b) of this section, an executed
Standard Form 95 or other written notification of an incident,
accompanied by a claim for money damages in a sum certain for injury to,
or loss of, property or for personal injury or death, alleged to have
occurred by reason of the incident. A claim which should have been
presented to the FAA but which was mistakenly filed with another Federal
agency, is deemed presented to the FAA on the date the claim is received
by the FAA at a place designated in paragraph (b) of this section. A
claim addressed to, or filed with, the FAA by mistake will be
transferred to the appropriate Federal agency, if that agency can be
determined, or returned to the claimant.
(b) Claims shall be delivered or mailed to the Assistant Chief
Counsel, Litigation Division, AGC-400, Federal Aviation Administration,
800 Independence Avenue, SW., Washington, DC 20591, or alternatively,
may be mailed or delivered to the Regional Counsel in any of the FAA
Regional Offices or the Assistant Chief Counsel, Europe, Africa, and
Middle East Area Office.
(d) A claim presented in accordance with this section may be amended
by the claimant at any time prior to final FAA action or prior to the
exercise of the claimant's option, under 28 U.S.C. 2675(a), to deem the
agency's failure to make a final disposition of his or her claim within
6 months after it was filed as a final denial. Each amendment to a claim
shall be submitted in writing and signed by the claimant or the
claimant's duly authorized agent or legal representative. Upon the
timely filing of an amendment to a pending claim, the FAA has 6 months
thereafter in which to make a final disposition of the claim as amended,
and the claimant's option under 28 U.S.C. 2675(a) does not accrue until
6 months after the filing of the amendment.
[Doc. No. 18884, 44 FR 63723, Nov. 5, 1979, as amended by Amdt. 15-1, 54
FR 39290, Sept. 25, 1989; Amdt. 15-4, 62 FR 46866, Sept. 4, 1997]
Sec. 15.5 Administrative claim, who may file.
(a) A claim for injury to, or loss of, property may be presented by
the owner of the property interest which is the subject of the claim or
by the owner's duly authorized agent or legal representative.
(b) A claim for personal injury may be presented by the injured
person or that person's duly authorized agent or legal representative.
(c) A claim based on death may be presented by the executor or
administrator of the decedent's estate or by any other person legally
entitled to assert such a claim under applicable State law.
(d) A claim for loss wholly compensated by an insurer with the
rights of a subrogee may be presented by the insurer. A claim for loss
partially compensated by an insurer with the rights of a subrogee may be
presented by the insurer or the insured individually, as their
respective interest appear, or jointly. Whenever an insurer presents a
claim asserting the rights of a subrogee, it shall present with its
claim appropriate evidence that it has the rights of a subrogee.
(e) A claim presented by an agent or legal representative shall be
presented in the name of the claimant, be signed by the agent or legal
representative, show the title or legal capacity of the person signing,
and be accompanied by evidence of authority to present a claim on behalf
of the claimant as agent, executor, administrator, parent, guardian, or
other representative.
Sec. 15.7 Administrative claims; evidence and information to be submitted.
(a) Death. In support of a claim based on death, the claimant may be
required to submit the following evidence or information:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
[[Page 79]]
(2) The decedent's employment or occupation at time of death,
including monthly or yearly salary or earnings (if any), and the
duration of last employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of the decedent's survivors, including identification of those survivors
who were dependent for support upon the decedent at the time of death.
(4) Degree of support afforded by the decedent to each survivor
dependent upon decedent for support at the time of death.
(5) Decedent's general, physical, and mental conditions before
death.
(6) Itemized bills for medical and burial expenses incurred by
reason of the incident causing death or itemized receipts of payment for
such expenses.
(7) If damages for pain and suffering prior to death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain, and the
decedent's physical condition in the interval between injury and death.
(8) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the death or the
amount of damages claimed.
(b) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant may be required to submit the
following evidence or information:
(1) A written report by the attending physician or dentist setting
forth the nature and extent of the injuries, nature and extent of
treatment, any degree of temporary or permanent disability, the
prognosis, period of hospitalization, and any diminished earning
capacity.
(2) In addition to the report required by paragraph (b)(1) of this
section, the claimant may be required to submit to a physical or mental
examination by a physician employed by the FAA or another Federal
agency. A copy of the report of the examining physician is made
available to the claimant upon the claimant's written request if the
claimant has, upon request, furnished the report required by paragraph
(b)(1), and has made or agrees to make available to the FAA any other
physician's reports previously or thereafter made on the physical or
mental condition which is the subject matter of the claim.
(3) Itemized bills for medical, dental, and hospital expenses
incurred or itemized receipts of payment for such expenses.
(4) If the prognosis reveals the necessity for future treatment, a
statement of expected expenses for such treatment.
(5) If a claim is made for loss of time from employment, a written
statement from the claimant's employer showing actual time lost from
employment, whether the claimant is a full or part-time employee, and
wages or salary actually lost.
(6) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually
lost.
(7) Any other evidence or information which may have a bearing on
the responsibility of the United States for the personal injury or the
damages claimed.
(c) Property damage. In support of a claim for injury to or loss of
property, real or personal, the claimant may be required to submit the
following evidence or information:
(1) Proof of ownership of the property interest which is the subject
of the claim.
(2) A detailed statement of the amount claimed with respect to each
item of property.
(3) An itemized receipt of payment for necessary repairs or itemized
written estimates of the cost of such repairs.
(4) A statement listing date of purchase, purchase price, and
salvage value, where repair is not economical.
(5) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the injury to or loss
of property or the damages claimed.
Sec. 15.9 Investigation and examination.
The FAA may investigate a claim or conduct a physical examination of
a claimant. The FAA may request any other Federal agency to investigate
a
[[Page 80]]
claim or conduct a physical examination of a claimant and provide a
report of the investigation or examination to the FAA.
Subpart B--Indemnification Under Section 1118 of the Federal Aviation
Act of 1958
Source: Amdt. 15-2, 55 FR 18710, May 3, 1990, unless otherwise
noted.
Sec. 15.101 Applicability.
This subpart prescribes procedural requirements for the
indemnification of a publisher of aeronautical charts or maps under
section 1118 of the Federal Aviation Act of 1958, as amended, when the
publisher incurs liability as a result of publishing--
(a) A chart or map accurately depicting a defective or deficient
flight procedure or airway that was promulgated by the FAA; or
(b) Aeronautical data that--
(1) Is visually displayed in the cockpit of an aircraft; and
(2) When visually displayed, accurately depicts a defective or
deficient flight procedure or airway promulgated by the FAA.
Sec. 15.103 Exclusions.
A publisher that requests indemnification under this part will not
be indemnified if--
(a) The complaint filed against the publisher, or demand for payment
against the publisher, first occurred before December 19, 1985;
(b) The publisher does not negotiate a good faith settlement;
(c) The publisher does not conduct a good faith defense;
(d) The defective or deficient flight procedure or airway--
(1) Was not promulgated by the FAA;
(2) Was not accurately depicted on the publisher's chart or map;
(3) Was not accurately displayed on a visual display in the cockpit,
or
(4) Was obviously defective or deficient;
(e) The publisher does not give notice as required by Sec. 15.107 of
this part and that failure is prejudicial to the Government; or
(f) The publisher does not appeal a lower court's decision pursuant
to a request by the Administrator under Sec. 15.111(d)(2) of this part.
Sec. 15.105 Filing of requests for indemnification.
A request for indemnification under this part--
(a) May be filed by--
(1) A publisher described in Sec. 15.101 of this part; or
(2) The publisher's duly authorized agent or legal representative;
(b) Shall be filed with the Chief Counsel, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591; and
(c) Shall state the basis for the publisher's assertion that
indemnification under this part is required.
Sec. 15.107 Notification requirements.
A request for indemnification will not be considered by the FAA
unless the following conditions are met:
(a) The publisher must notify the Chief Counsel of the FAA, within
the time limits prescribed in paragraph (b) or (c) of this section, of
the publisher's first receipt of a demand for payment, or service of a
complaint in any proceeding, federal or state, in which it appears that
indemnification under this part may be required.
(b) For each complaint filed, or demand for payment made, on or
after December 19, 1985, and before June 4, 1990, the notice required by
paragraph (a) of this section must be received by the FAA on or before
July 2, 1990.
(c) For each complaint filed, or demand for payment made, on or
after June 4, 1990, the notice required by paragraph (a) of this section
must be received by the FAA within 60 days after the day the publisher
first receives the demand for payment or service of the complaint.
(d) Within 5 days after the day a judgment is rendered against the
publisher in any proceeding, or within 30 days of the denial of an
appeal, whichever is later, the publisher must notify the FAA Chief
Counsel that--
(1) There is an adverse judgment against the publisher; and
(2) The publisher has a claim for indemnification against the FAA
arising out of that judgment.
[[Page 81]]
Sec. 15.109 Settlements.
(a) A publisher may not settle a claim with another party, for which
the publisher has sought, or intends to seek, indemnification under this
part, unless--
(1) The publisher submits a copy of the proposed settlement, and a
statement justifying the settlement, to the Chief Counsel of the FAA;
and
(2) The Administrator and where necessary, the appropriate official
of the Department of Justice, approves the proposed settlement.
(3) The publisher submits a signed release that clearly releases the
United States from any further liability to the publisher and the
claimant.
(b) If the Administrator does not approve the proposed settlement,
the Administrator will--
(1) So notify the publisher by registered mail within 60 days of
receipt of the proposed settlement; and
(2) Explain why the request for indemnification was not approved.
(c) If the Administrator approves the proposed settlement, the
Administrator will so notify the publisher by registered mail within 60
days after the FAA's receipt of the proposed settlement.
(d) If the Administrator does not have sufficient information to
approve or disapprove the proposed settlement, the Administrator will
request, within 60 days after receipt of the proposed settlement, the
additional information needed to make a determination.
Sec. 15.111 Conduct of litigation.
(a) If a lawsuit is filed against the publisher and the publisher
has sought, or intends to seek, indemnification under this part, the
publisher shall--
(1) Give notice as required by Sec. 15.107 of this part;
(2) If requested by the United States--
(i) Implead the United States as a third-party defendant in the
action; and
(ii) Arrange for the removal of the action to Federal Court;
(3) Promptly provide any additional information requested by the
United States; and
(4) Cooperate with the United States in the defense of the lawsuit.
(b) If the lawsuit filed against the publisher results in a proposed
settlement, the publisher shall submit that proposed settlement to the
FAA for approval in accordance with Sec. 15.109 of this part.
(c) If the lawsuit filed against the publisher results in a judgment
against the publisher and the publisher has sought, or intends to seek,
indemnification under this part as a result of the adverse judgment, the
publisher shall--
(1) Give notice to the FAA as required by Sec. 15.107(d) of this
part;
(2) Submit a copy of the trial court's decision to the FAA Chief
Counsel not more than 5 business days after the adverse judgment is
rendered; and
(3) If an appeal is taken from the adverse judgment, submit a copy
of the appellate decision to the FAA Chief Counsel not more than 30 days
after that decision is rendered.
(d) Within 60 days after receipt of the trial court's decision, the
Administrator by registered mail will--
(1) Notify the publisher that indemnification is required under this
part;
(2) Request that the publisher appeal the trial court's adverse
decision; or
(3) Notify the publisher that it is not entitled to indemnification
under this part and briefly state the basis for the denial.
Sec. 15.113 Indemnification agreements.
(a) Upon a finding of the Administrator that indemnification is
required under this part, and after obtaining the concurrence of the
United States Department of Justice, the FAA will promptly enter into an
indemnification agreement providing for the payment of the costs
specified in paragraph (c) of this section.
(b) The indemnification agreement will be signed by the Chief
Counsel and the publisher.
(c) The FAA will indemnify the publisher for--
(1) Compensatory damages awarded by the court against the publisher;
(2) Reasonable costs and fees, including reasonable attorney fees at
a rate not to exceed that permitted under the Equal Access to Justice
Act (5 U.S.C. 504), and any postjudgment interest, if
[[Page 82]]
the publisher conducts a good faith defense, or pursues a good faith
appeal, at the request, or with the concurrence, of the FAA.
(d) Except as otherwise provided in this section, the FAA will not
indemnify the publisher for--
(1) Punitive or exemplary damages;
(2) Civil or criminal fines or any other litigation sanctions;
(3) Postjudgment interest;
(4) Costs;
(5) Attorney fees; or
(6) Other incidental expenses.
(e) The indemnification agreement must provide that the Government
will be subrogated to all claims or rights of the publisher, including
third-party claims, cross-claims, and counterclaims.
Sec. 15.115 Payment.
After execution of the indemnification agreement, the FAA will
submit the agreement to the United States Department of Justice and
request payment, in accordance with the agreement, from the Judgment
Fund.
PART 16--RULES OF PRACTICE FOR FEDERALLY-ASSISTED AIRPORT ENFORCEMENT PROCEEDINGS--Table of Contents
Subpart A--General Provisions
Sec.
16.1 Applicability and description of part.
16.3 Definitions.
16.5 Separation of functions.
Subpart B--General Rules Applicable to Complaints, Proceedings Initiated
by the FAA, and Appeals
16.11 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.
[[Page 83]]
Source: Docket No. 27783, 61 FR 54004, October 16, 1996, unless
otherwise noted.
Subpart A--General Provisions
Sec. 16.1 Applicability and description of part.
(a) General. The provisions of this part govern all 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 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.
[[Page 84]]
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
[[Page 85]]
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 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
[[Page 86]]
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,
[[Page 87]]
accompanied by affidavits or other evidence relied upon, provided that
the answer to the motion is filed within 10 days after the motion has
been served upon the person answering, or any other period set by the
hearing officer. Where a motion is made during a 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.
[[Page 88]]
(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, 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.
[[Page 89]]
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;
[[Page 90]]
(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;
(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.
[[Page 91]]
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.
Sec. 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.
[[Page 92]]
(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 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
[[Page 93]]
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.